Atkins v. Stonewall Cas. Co.
| Citation | 181 S.E.2d 269,155 W.Va. 81 |
| Decision Date | 25 May 1971 |
| Docket Number | No. 12998,12998 |
| Parties | Jean G. ATKINS, Administratrix of the Estate of Henry L. Atkins, Deceased, v. STONEWALL CASUALTY COMPANY, a Corporation. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court
1. A provision in an automobile insurance policy which excludes liability for loss of property subject to an undeclared and undescribed encumbrance is, in the absence of a statutory provision to the contrary, valid and binding on the parties to the insurance contract and is neither unreasonable nor against public policy.
2. 'Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.' Keffer v. Prudential Insurance Company of America, 153 W.Va. 813 (172 S.E.2d 714).
3. The existence of a lien upon an automobile insured against loss by collision under a policy which provided that the policy does not apply if the automobile is or at any time becomes subject to encumbrance not specifically declared and described in the policy, constitutes a breach of the insurance contract and relieves the insurer of liability for the loss.
Michael C. Smith, Union, for appellant.
Preiser, Greene, Hunt & Wilson, Donald R. Wilson, Charleston, for appellee.
This is a civil action instituted in the Circuit Court of Monroe County, July 15, 1969 in which the plaintiff, Jean G. Atkins, Administratrix of the Estate of Henry L. Atkins, deceased, seeks a recovery under a policy of insurance issued by the defendant, Stonewall Casualty Company, a corporation for loss which resulted from a collision involving an automobile owned by the insured, Henry L. Atkins, when the policy of insurance was issued and when the loss occurred.
The complaint charged two causes of action. The first cause of action was based upon the policy of insurance issued by the defendant to Henry L. Atkins on December 8, 1968 by which the defendant insured the owner against loss by collision of a certain Ford truck, a copy of which policy was filed as an exhibit with the complaint, and which truck on February 25, 1969 while the policy was in effect, was damaged and destroyed by collision, and upon the refusal of the defendant to pay the plaintiff the amount of the loss under the terms of the policy of insurance. The second cause of action was that the defendant entered into a contract with the plaintiff to settle the claim for the sum of $5,475.00, the stipulated amount of the loss, and that the defendant refused to comply with the terms of the settlement and pay the amount of the loss. The answer of the defendant denied the allegations with respect to both causes of action and alleged that under the policy of insurance the defendant owes no sum of money whatsoever because by the terms of the policy it is not applicable to the loss claimed by the plaintiff.
Plaintiff demanded a trial by jury but before the beginning of the trial the court dismissed the jury for the reason that from the stipulations, the agreements of facts, and the agreements as to the admission of certain documents in evidence there was no issue of fact to be tried by a jury and directed counsel for the parties to submit memoranda of authorities with respect to the questions (1) whether the provision in the insurance policy which excludes from coverage an automobile which at any time becomes subject to any bailment lease, conditional sale, purchase agreement or other encumbrance not specifically declared and described in the policy, is a valid and enforceable provision of the insurance contract and (2) whether the parties had concluded a settlement agreement enforceable against the defendant.
By its final judgment rendered August 8, 1970, the court found that the exclusionary clause in the policy of insurance was valid and enforceable and excluded from coverage the loss claimed by the plaintiff and that there had been no negotiated settlement of the claim and held that the plaintiff take nothing and dismissed the action at the cost of the plaintiff.
Though the plaintiff objected to the action of the court in dismissing the jury and in ruling that there had been no negotiated settlement of the plaintiff's claim, the brief of the plaintiff contains no assignment of error as to the action of the court in dismissing the jury and the single assignment of error is the action of the court in holding that the exclusionary provision of the policy excluded coverage of the loss claimed by the plaintiff.
To the final judgment of the circuit court this appeal was granted September 14, 1970 upon the application of the plaintiff. The sole question for decision is whether the exclusionary provision of the policy of insurance between the insured Henry L. Atkins and the defendant insurer excludes from the coverage of the policy the loss claimed by the plaintiff, the amount of which, if recovered, is stipulated to be $5,475.00. That provision of the policy is in this form: 'This policy does not apply: * * * (k) under coverages D, E, F, G, H, I, and J, if the automobile is or at any time becomes subject to any bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance not specifically declared and described in this policy; * * *.' Coverage E provision, relating to collision or upset, contains this language: 'To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount if any, stated in the declarations as applicable hereto.'
As previously indicated, it is stipulated that the loss, if recoverable, is $5,575.00 less the agreed deductible amount of $100.00 or $5,475.00. At the time of the issuance of the policy of insurance and at the time of the loss there was a lien against the automobile in the amount of $3,800.00 which lien was not disclosed in the application for the policy and was not declared or described in the policy, and the defendant insurer did not know of its existence until after the loss and until negotiations to pay the loss had progressed to the stage that a check had been drawn to cover the loss which was not delivered when the existence of the encumbrance was discovered during the negotiations. The evidence discloses...
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