Bias v. Nationwide Mut. Ins. Co.

Citation179 W.Va. 125,365 S.E.2d 789
Decision Date08 December 1987
Docket NumberNo. CC,CC
PartiesJanice BIAS v. NATIONWIDE MUTUAL INSURANCE COMPANY. Nancy A. YOUNG and Royce N. Young v. AETNA LIFE AND CASUALTY COMPANY. Bonnie K. RAINEY and Henry T. Rainey v. UNITED STATES FIDELITY AND GUARANTY INS. UNDERWRITERS, INC. and Fidelity and Guaranty Insurance Company. Anoway SMITH v. FEDERAL KEMPER INSURANCE COMPANY. 966.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. Where an offer of optional coverage is required by statute, the insurer has the burden of proving that an effective offer was made, and that any rejection of said offer by the insured was knowing and informed.

2. When an insurer is required by statute to offer optional coverage, it is included in the policy by operation of law when the insurer fails to prove an effective offer and a knowing and intelligent rejection by the insured.

Sam R. Harshbarger, Milton, for plaintiffs.

John F. Wood, Jr., Huntington, for U.S. Fidelity & Guar., Aetna Life.

Edward M. Kowal, Jr., Huntington, for Nationwide Mut.

D.C. Offutt, Jr., Huntington, for Federal Kemper, Ins. Co.

Randall L. Trautwein, Huntington, for State Farm Mut. Auto.

McGRAW, Chief Justice:

This proceeding involves certified questions from the Circuit Court of Cabell County. Following a serious bus accident, some of the passengers filed lawsuits against the bus owner and his insurer, Nationwide Mutual Insurance Company. Several plaintiffs also named their own insurers as defendants, asserting coverage for uninsured and underinsured motorists. Nationwide established a $250,000.00 escrow account to cover its liability as the bus insurer, and the plaintiffs in the instant case participated in the damage determination and settlement agreement which resulted in the distribution of that escrow sum among the passengers making claims against the bus liability policy.

These plaintiffs next sought payment from their own insurers for the difference between their damages as determined through the settlement process and their pro rata share of the escrow fund. The plaintiffs assert that they are entitled to underinsured motorist coverage on their own automobile policies, and further contend that their insurers are bound by the damage findings made during the settlement process. One of the plaintiffs' insurance companies, Nationwide, contests coverage and all of the insurers deny they are bound by the settlement's damage assessment. The circuit court certifies to us the questions of whether there is coverage by operation of the underinsured motorist provision of West Virginia Code § 33-6-31 (Supp.1987) and of whether the defendant insurance companies are bound by the damage findings of the special commissioner in the settlement agreement. 1 We agree with the court below that Code § 33-6-31 extends underinsured motorist coverage to the plaintiffs, but we find that the defendant insurance companies are not bound by the damage findings made as part of the settlement process.

I.

Code § 33-6-31(b) addresses both uninsured and underinsured motorist coverage. It provides, first, that every automobile liability insurance policy issued or delivered in West Virginia contain uninsured motorist coverage with minimal limits of coverage as set forth in West Virginia Code § 17D-4-2 (1986 Replacement Vol.). Additionally, it provides that each policy shall offer an option for somewhat higher dollar limits of uninsured motorist coverage, which coverage is automatic unless waived in writing by the insured. The section's third proviso is that each policy shall offer an option for both uninsured and underinsured motorist coverage up to the dollar limits of the liability insurance purchased by the insured.

The statute says that an underinsurance option shall be offered, and this language must be afforded a mandatory connotation. Syl.Pt. 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982). Where an offer of optional coverage is required by statute, the insurer has the burden of proving that an effective offer was made, Holman v. All Nation Insurance Co., 288 N.W.2d 244 (Minn.1980), and that any rejection of said offer by the insured was knowing and informed, Kimbrell v. Great American Ins. Co., 420 So.2d 1086 (Fla.1982); Lane v. Waste Management, Inc., 432 So.2d 70 (Fla.App.Dist.1983). The insurer's offer must be made in a commercially reasonable manner, so as to provide the insured with adequate information to make an intelligent decision. State Farm Mutual Automobile Insurance Co. v. Wannamaker, 291 S.C. 518, 354 S.E.2d 555 (1987). The offer must state, in definite, intelligible, and specific terms, the nature of the coverage offered, the coverage limits, and the costs involved. Id.; Tucker v. Country Mutual Insurance Co., 125 Ill.App.3d 329, 80 Ill.Dec. 610, 465 N.E.2d 956 (1984). When an insurer is required by statute to offer optional coverage, it is included in the policy by operation of law when the insurer fails to prove an effective offer and a knowing and intelligent rejection by the insured. Wannamaker, 291 S.C. 518, 354 S.E.2d 555; Tucker, 125 Ill.App.3d 329, 80 Ill.Dec. 610, 465 N.E.2d 956; Holman, 288 N.W.2d 244; see Lane, 432 So.2d 70.

Of the defendant insurance companies in this case, only Nationwide contests coverage. While we agree with that defendant that Code § 33-6-31(b) does not require that underinsurance coverage be waived in writing, the insurer has presented no proof on the record before us that it made an effective offer of underinsured motorist coverage to Plaintiff Bias, and such coverage is, therefore, included in her policy by operation of law. Thus, we agree with the circuit court's ruling on the second certified question, except that this Court finds nothing in the statute or relevant case law which requires that an insured must reject such coverage in writing.

II.

Turning to the other certified question, the circuit court ruled that the defendant insurance companies are bound by the damage findings made in compliance with the settlement agreement. The defendants argue that they should not be bound by these findings, citing both contract and equity theories. The Court agrees and answers the certified question in the negative. When the plaintiffs entered into the settlement agreement, they, in effect, submitted their claims against the bus owner and his liability insurer to binding arbitration, and could not contest the measure of damages arrived at by that process. However, it is made clear in the settlement agreement that the purpose of such agreement was to settle the claims against the bus owner and its insurer. Nothing in the settlement agreement speaks to the liability of the plaintiffs' underinsurance carriers or restricts any party's right to present or contest evidence regarding the nature and amount of such liability.

While the plaintiffs argue that the defendant underinsurance carriers consented to the settlement and, thus, agreed to be bound by the commissioner's damage assessments, the facts do not support that argument. The plaintiffs' brief specifies only that the plaintiffs and the bus liability insurer approved the settlement order entered by the circuit court; it is not contended that any of the underinsurance carriers signed the settlement. Although three of the four underinsurance carriers gave permission for their insured to participate in the settlement, nothing in that permission could be construed as forming an enforceable agreement to be bound by the commissioner's findings. 2 Indeed, the letters...

To continue reading

Request your trial
43 cases
  • Cross v. State Farm Mut. Auto. Ins. Co.
    • United States
    • West Virginia Supreme Court
    • December 6, 1989
    ...right to uninsured motorist coverage at $100,000/$300,000/$50,000 limits. The plaintiff relied upon Bias v. Nationwide Mutual Insurance Co., 179 W.Va. 125, 365 S.E.2d 789 (1987). 3 Upon cross-motions for summary judgment the federal district court granted the plaintiff's motion for summary ......
  • Cox v. Amick
    • United States
    • West Virginia Supreme Court
    • December 11, 1995
    ...effective offer was made, and that any rejection of said offer by the insured was knowing and informed." Syl. pt. 1, Bias v. Nationwide Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987). 8. "When an insurer is required by statute to offer optional coverage, it is included in the policy by oper......
  • Parham v. Horace Mann Ins. Co.
    • United States
    • West Virginia Supreme Court
    • July 11, 1997
    ...shifted the burden of proof from Appellees to Appellants which is contrary to what this Court said in Bias v. Nationwide Mut. Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987). In Bias, this Court interpreted the third proviso of West Virginia Code § 33-6-31(b) (Supp.1987) 22 as requiring unin......
  • Mitchell v. Broadnax
    • United States
    • West Virginia Supreme Court
    • February 18, 2000
    ...on a separate waiver signifying that he/she has read and understood the coverage limitation. See, e.g., Syl. pt. 1, Bias v. Nationwide Mut. Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987) (directing insurer to obtain insured's knowing and informed rejection of optional coverage when the offe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT