Broy v. Inland Mut. Ins. Co., No. 13757

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation233 S.E.2d 131,160 W.Va. 138
PartiesElsie P. BROY v. INLAND MUTUAL INSURANCE COMPANY.
Decision Date15 March 1977
Docket NumberNo. 13757

Page 131

233 S.E.2d 131
160 W.Va. 138
Elsie P. BROY
v.
INLAND MUTUAL INSURANCE COMPANY.
No. 13757.
Supreme Court of Appeals of West Virginia.
March 15, 1977.

Syllabus by the Court

1. If an insured with coverage under a liability insurance policy does not pay the underlying judgment entered in a personal injury action, the injured plaintiff may institute a direct action against the insurance company to recover the amount of the judgment up to the limits of the policy.

2. Where an additional insured causes injury to a named insured under an automobile liability policy, the named insured may, in the absence of any exclusionary language to the contrary, maintain a direct action against the insurance company to

Page 132

recover the amount of the judgment rendered against the additional insured.

3. [160 W.Va. 139] The doctrine of interspousal immunity does not apply where one spouse sues an insurance company to recover a judgment obtained against an additional insured under the insurance policy, where such additional insured is not a spouse and even though both spouses are named insureds on the policy.

4. Admissions made pursuant to Rule 36, West Virginia Rules of Civil Procedure, when offered at trial, are subject to all pertinent objections to admissibility which may be interposed. Once such objections have been settled, it is then appropriate to read the admissions to the jury.

Archibald McDougall, Martinsburg, for appellant.

Clarence E. Martin, Jr., Wm. Richard McCune, Jr., Martinsburg, for appellee.

MILLER, Justice:

On September 11, 1973, the plaintiff, Elsie Broy, recovered a $7,000 jury verdict against Frances J. Miller as a result of injuries received from being struck by a pick-up truck driven by Mrs. Miller with the consent of the owner of the truck, Arthur Broy, plaintiff's husband.

Execution was issued on the judgment and returned "no property found." Mrs. Broy then brought the present action against her husband's insurance carrier, the Inland Mutual Insurance Company, for the amount of money Mrs. Miller had been adjudged liable.

At the conclusion of the plaintiff's evidence the trial court, upon the motion of the defendant insurance company, directed a verdict in defendant's favor, holding that Mrs. Broy could not recover as a matter of law for either of two reasons. First, if she was a jointly named [160 W.Va. 140] insured with her husband on the policy sued upon, she was, in effect, suing herself. Secondly, if not a named insured, the doctrine of interspousal immunity precluded her suit in that her husband was a named insured. 1

We reverse as to both theories.

Although the plaintiff did not introduce into evidence the insurance policy in existence at the time of the accident, the insurance agent who had issued the policy was subpoenaed and did give some general testimony concerning its provisions.

It does not appear questioned that the insurance policy was a standard form of liability insurance conforming to the provisions of W.Va.Code, 33-6-31(a), which requires that a vehicular liability policy issued in this State shall contain what is commonly called an "omnibus clause." Such provision mandates that coverage be extended to any person who uses the vehicle with the consent, express or implied, of the named insured. Likewise, it is demonstrated from the record that the operator of the vehicle at the time of the accident, Mrs. Miller, was operating it with the consent of Mr. Broy, a named insured.

This suit brought by Mrs. Broy was based on established law that if an insured with coverage under a liability insurance policy does not pay the underlying judgment entered in a personal injury action, the injured plaintiff may institute a direct action against the insurance company to recover the amount of the judgment up to the limits of the policy. See Hall v. Ocean Accident & Guarantee Corp., 122 W.Va. 188, 9 S.E.2d 45 (1940); Criss v. United States Fidelity & Guaranty Co., 105 W.Va. 380, 142 S.E. 849 (1928); 8 Appleman, Insurance Law and Practice § 4851, et seq.

[160 W.Va. 141] We find no cases decided by this Court touching on the question of whether a named...

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22 practice notes
  • Hensley v. Erie Ins. Co., No. CC917
    • United States
    • Supreme Court of West Virginia
    • October 20, 1981
    ...3, Polan v. Travelers Insurance Company, 156 W.Va. 250, 192 S.E.2d 481 (1972). See also, Broy v. Inland Mutual Insurance Company, W.Va., 233 S.E.2d 131 (1977); Thompson v. State Automobile Insurance Co., 122 W.Va. 551, 11 S.E.2d 849 (1940). This rule is but a tacit acknowledgment that the i......
  • Huggins v. Tri-County Bonding Co., TRI-COUNTY
    • United States
    • Supreme Court of West Virginia
    • November 8, 1985
    ...250, 192 S.E.2d 481 (1972). See also Hensley v. Erie Ins. Co., 168- W.Va. 172-, 283 S.E.2d 227 (1981); Broy v. Inland Mut. Ins. Co., 160 W.Va. 138, 233 S.E.2d 131 (1977); Thompson v. State Automobile Ins. Co., 122 W.Va. 551, 11 S.E.2d 849 (1940). "This rule is but a tacit acknowledgment tha......
  • Davis v. Robertson, No. CC941
    • United States
    • Supreme Court of West Virginia
    • April 22, 1985
    ...brought until the plaintiff's underlying suit against the insured had been resolved. In Syllabus Point 1 of Broy v. Inland Mut. Ins. Co., 160 W.Va. 138, 233 S.E.2d 131 (1977), we stated that the necessary precondition for bringing suit against an insurer was a judgment against the insured: ......
  • Christian v. Sizemore, No. 18682
    • United States
    • Supreme Court of West Virginia
    • July 14, 1989
    ...until a judgment had been obtained against the insured. In this connection, we cited Syllabus Point 1 of Broy v. Inland Mut. Ins. Co., 160 W.Va. 138, 233 S.E.2d 131 " 'If an insured with coverage under a liability insurance policy does not pay the underlying judgment entered in a personal i......
  • Request a trial to view additional results
22 cases
  • Hensley v. Erie Ins. Co., No. CC917
    • United States
    • Supreme Court of West Virginia
    • October 20, 1981
    ...3, Polan v. Travelers Insurance Company, 156 W.Va. 250, 192 S.E.2d 481 (1972). See also, Broy v. Inland Mutual Insurance Company, W.Va., 233 S.E.2d 131 (1977); Thompson v. State Automobile Insurance Co., 122 W.Va. 551, 11 S.E.2d 849 (1940). This rule is but a tacit acknowledgment that the i......
  • Huggins v. Tri-County Bonding Co., TRI-COUNTY
    • United States
    • Supreme Court of West Virginia
    • November 8, 1985
    ...250, 192 S.E.2d 481 (1972). See also Hensley v. Erie Ins. Co., 168- W.Va. 172-, 283 S.E.2d 227 (1981); Broy v. Inland Mut. Ins. Co., 160 W.Va. 138, 233 S.E.2d 131 (1977); Thompson v. State Automobile Ins. Co., 122 W.Va. 551, 11 S.E.2d 849 (1940). "This rule is but a tacit acknowledgment tha......
  • Davis v. Robertson, No. CC941
    • United States
    • Supreme Court of West Virginia
    • April 22, 1985
    ...brought until the plaintiff's underlying suit against the insured had been resolved. In Syllabus Point 1 of Broy v. Inland Mut. Ins. Co., 160 W.Va. 138, 233 S.E.2d 131 (1977), we stated that the necessary precondition for bringing suit against an insurer was a judgment against the insured: ......
  • Christian v. Sizemore, No. 18682
    • United States
    • Supreme Court of West Virginia
    • July 14, 1989
    ...until a judgment had been obtained against the insured. In this connection, we cited Syllabus Point 1 of Broy v. Inland Mut. Ins. Co., 160 W.Va. 138, 233 S.E.2d 131 " 'If an insured with coverage under a liability insurance policy does not pay the underlying judgment entered in a personal i......
  • Request a trial to view additional results

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