Bell v. State Farm Mut. Auto. Ins. Co.

• Citation: 157 W.Va. 623,207 S.E.2d 147
• Decision Date: 19 March 1974
• Docket Number: No. 13312,13312
• Parties: Shirley Ann Murray BELL et al. v. STATE FARM MUTUAL AUTOMOBILE INS. CO.
• Court: Supreme Court of West Virginia

Page 147

207 S.E.2d 147

157 W.Va. 623

Shirley Ann Murray BELL et al. v. STATE FARM MUTUAL AUTOMOBILE INS. CO.

No. 13312.

Supreme Court of Appeals of West Virginia.

March 19, 1974.

Dissenting Opinion July 29, 1974.

Syllabus by the Court

1. The Uninsured Motorist Law, Chapter 33, Article 6, Section 31, Code of West Virginia, 1931, as amended, governs the relationship between an insured and insurer and provisions within a motor vehicle insurance policy which conflict with the requirements of the statute, either by adding to or taking away from its requirements are void and ineffective.

2. An exclusionary clause within a motor vehicle insurance policy issued by a West Virginia licensed insurer which excludes uninsured motorist coverage for bodily injury caused while the insured is occupying an owned-but-not-insured motor vehicle is void and ineffective under Chapter 33, Article 6, Section 31, Code of West Virginia, 1931, as amended.

3. A limitation clause within a motor vehicle insurance policy issued by a West Virginia licensed insurer which limits uninsured motorist coverage to the excess of the amount recovered by the insured under any other similar insurance available to the insured is void and ineffective under Chapter 33, Article 6, Section 31, Code of West Virginia, 1931, as amended.

4. An insured covered simultaneously by two uninsured notorist policies may recover on both policies up to the limits of liability on each policy or the amount of the judgment obtained from the uninsured motorist, whichever is less, as a result of one accident and injury.

Steptoe & Johnson, Robert M. Steptoe, Jr. and Kingsley R. Smith, Clarksburg, for appellant.

David L. Solomon, Morgantown, for appellees.

NEELY, Justice:

This is an appeal from the Circuir Court of Monongalia County in which plaintiffs were awarded the sum of $20,000 in a suit under the West Virginia Uninsured Motorist Law against the defendant insurer. Plaintiffs Hubert Murray and Shirley Murray Bell are respectively father and daughter, each of whom carried a separate automobile liability insurance policy with the defendant State Farm. Both policies were in effect on June 8, 1970, when an uninsured motorist collided with Shirley Bell, and both policies included uninsured motorist coverage. Shirley Bell's policy protected her against loss from the operation of her 1970 Fiat automobile and Hubert Murray's policy covered a 1966 Ford automobile.

The accident which gave rise to this suit occurred while Shirley Bell was operating a 1968 Honda motorcycle which was owned by Shirley Bell, but which was not insured under either policy. After the accident, under the provisions of the uninsured motorist policy, plaintiffs brought an action against the uninsured motorist and recovered a $40,000 judgment. Upon demand that defendant pay the judgment up to the limits of coverage, State Farm denied liability under both policies. Plaintiffs then brought this action against State Farm and the Circuit Court determined that plaintiffs could recover the maximum policy coverage of $10,000 under each of the State Farm policies.

The basis upon which State Farm denies liability is found in two exclusionary clauses in the uninsured motorist coverage. The first excludes payment when the policyholder sustains bodily injury while occupying a motor vehicle which is owned by an insured but to which the insured's liability coverage does not apply, and the second provides that uninsured motorist protection will be considered excess coverage over any other applicable insurance of a similar nature. The Honda motorcycle would qualify for the first exclusion, as it was owned by Shirley Bell but was not listed for coverage in her policy, which insured only her 1970 Fiat automobile.

Plaintiff Hubert Murray based his suit against State Farm under his policy which insured all family members of his household against losses sustained through the negligence of uninsured motorists. State Farm denied liability under this claim for the same reasons that it denied Shirley Bell's claim.

The exclusionary clause regarding an owned but not insured vehicle provides:

'This (uninsured motorist) insurance does not apply:

'(a) To bodily injury to an insured while occupying a motor vehicle (other than an insured motor vehicle) owned by the named insured or if a resident of the same household as the named insured, his spouse or relatives of either, or through being struck by such a motor vehicle.'

The limitation clause providing for uninsured motorist coverage to be excess coverage under any other applicable policy provides:

'Under (the uninsured motorist coverage) with respect to bodily injury to an insured while occupying a motor vehicle not owned by the named insured, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such motor vehicle as primary insurance, and this insurance shall then apply only in the amount by which the Limit of Liability for this coverage exceeds the applicable limit of liability of such other insurance.'

State Farm represents that the terms of the insurance policies are specific, unambiguous in meaning, and fair and reasonable in effect. As applied to the facts of this case the plaintiffs would be foreclosed from recovery if the rights of the parties were governed exclusively by the terms of the contract. Plaintiffs assert that the terms of the insurance policies on which the defendant relies to deny liability are void because they are more restrictive than permitted by the uninsured motorist statute.

Chapter 33, Article 6, Section 31(b), Code of West Virginia, 1931, as amended, requires all motor vehicle insurance policies issued by any licensed insurer in West Virginia to contain a 'provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle. . . .' Code, 33--6--31(c), defines 'insured' as 'the named insured and, while resident of the same household, the spouse of any such named insured, and relatives of either, while in a motor vehicle or otherwise. . . .' An uninsured motorist clause in an insurance policy, if such policy conforms to the statute, insures all family members of a named insured's household without exception whenever bodily injury results from an accident with an uninsured motorist in which the uninsured motorist would be legally liable. Within this required uninsured motorist coverage there are no distinctions with regard to an owned but not insured motor vehicle, as the coverage applies to use or occupancy of 'a motor vehicle or otherwise.'

As automobile transportation has attained a pervasive status in the organization of society and commerce, the State has a legitimate interest in assuring that the burden of loss in owning, operating, and maintaining automobiles be justly and equitably...