Cunningham v. Hill

Citation226 W.Va. 180,698 S.E.2d 944
Decision Date18 June 2010
Docket Number34862.,No. 34861,34861
CourtSupreme Court of West Virginia
PartiesGUY R. CUNNINGHAM and Bridgett L. Cunningham, His Wife, Plaintiffs,v.Walter Lee HILL, an Individual; Erie Insurance Property and Casualty Company, a Pennsylvania Corporation; B. Michael Bentley, an Individual; Encompass Insurance Company of America, an Illinois Corporation; State Farm Mutual Automobile Insurance Company, an Illinois Corporation; and William Wilson, an Individual, Defendants.

Syllabus by the Court

1. “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syllabus Point 1 Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

2. When two insurers issue separate automobile liability insurance policies upon different vehicles containing underinsured motorist coverages which provide coverage for the same loss, policy language which provides that the limits of underinsured motorist coverage available from all policies shall not exceed the liability limits of the policy with the highest limit of underinsured motorist coverage is not valid and enforceable.

3. “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syllabus Point 1 State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997) ( quoting Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951)).

4. W. Va.Code § 33-6-31, as amended, “is remedial in nature and, therefore, must be construed liberally in order to effect its purpose.” Syllabus Point 7, in part Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711 (1986).

5. “Insurers may incorporate such terms conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes.” Syllabus Point 3 Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).

James D. Lamp, Julia A. Warren, Lamp, O'Dell, Bartram, Levy & Trautwein, Huntington, WV, for Defendant, Erie Insurance.

R. Carter Elkins, Laura L. Gray, Campbell Woods PLLC, Huntington, WV, for Defendant, State Farm.

Matthew M. Hatfield, Hatfield & Hatfield, Madison, WV, for Plaintiffs, Cunninghams.

Scott S. Blass, James B. Stoneking, Bordas & Bordas PLLC, Anthony I. Werner, Bachman, Hess, Bachman & Garden PLLC, Wheeling, WV, for Amicus Curiae West Virginia Association for Justice.

BENJAMIN, Justice:

These two consolidated matters are before the Court upon a certified question from the Circuit Court of Boone County.1 The certified question is as follows:

When two insurers issue separate automobile liability insurance policies upon different vehicles containing underinsured motorist coverages which provide coverage for the same loss, is policy language which provides that the limits of underinsured motorist coverage available from all policies shall not exceed the liability limits of the policy with the highest limit of underinsured motorist coverage valid and enforceable?

The circuit court answered this question in the negative. Upon review of the parties' briefs, arguments and the record, we answer the certified question and remand this matter for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL BACKGROUND

The facts are not in dispute and were stipulated by the parties below. On April 11, 2005, the plaintiff, Guy Cunningham, was operating a 2001 Mercury Grand Marquis in a southerly direction on U.S. Route 119, in Boone County, West Virginia. At the time, Mr. Cunningham was in the scope and course of his employment with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives. The 2001 Mercury Grand Marquis was owned by his employer, the United States government. Also on that date, Walter Hill was operating a 1997 Chevrolet truck, owned by Beaury Cochran, in a northerly direction on U.S. Route 119. Walter Hill turned the 1997 Chevrolet truck across U.S. Route 119 to enter Big Ugly Road and struck the vehicle operated by Mr. Cunningham. Mr. Cunningham was injured as a result of the collision.

The vehicle operated by Walter Hill was insured under an automobile liability insurance policy issued by West Virginia National Auto Insurance Company. West Virginia National Auto paid its per person liability policy limits of $20,000.00 to Mr. Cunningham. There was no underinsured motorist coverage upon the 2001 Mercury Grand Marquis operated by Guy Cunningham at the time of the accident.

On the date of the accident, Mr. Cunningham and his wife were the named insureds under an automobile liability insurance policy issued by Erie which provided coverage upon a 2001 Chevrolet Silverado and a 2003 Cadillac Escalade. The Erie policy, which was in full force and effect on that date, contained underinsured motorist coverage with limits of $100,000 per person and $300,000 per accident. Additionally, on that date, Mr. Cunningham was also the named insured under a liability insurance policy issued by State Farm, which covered a 1995 Harley Davidson motorcycle. The State Farm policy, which was in full force and effect on that date, contained underinsured motorist coverage with limits of $50,000 per person and $100,000 per accident.

Both the Erie policy and the State Farm policy contained policy language which limited recovery to the highest liability limits available when more than one policy provided underinsured motorist coverage. Specifically, the Erie policy provided the following in the uninsured/underinsured endorsement:

Other Insurance:
If “anyone we protect” has other similar insurance that applies to the accident, we will pay “our” share of the loss, subject to the other terms and conditions of the policy and this endorsement. “Our” share will be the proportion of the Limit of Protection of this insurance bears to the total Limit of Liability of all applicable insurance. Recovery will not exceed the highest limit available among the applicable policies.

The State Farm policy specifically provided:

If There is Other Coverage-Coverage W
1. If underinsured motor vehicle coverage for bodily injury is available to an insured from more than one policy provided by us or any other insurer, the total limit of liability available from all policies provided by all insurers shall not exceed the limit of liability of the single policy providing the highest limit of liability. This is the most that will be paid regardless of the number of policies involved persons covered, claims made, vehicles insured, premiums paid or vehicles involved in the accident.
2. Subject to item 1 above, any coverage applicable under this policy shall apply:

...

b. on an excess basis if the insured sustained bodily injury while occupying or otherwise using a vehicle not owned by or leased to you, your spouse, or any relative.
3. Subject to items 1 and 2 above, if this policy and one or more other policies provide coverage for bodily injury:

...

b. on an excess basis, we are liable only for our share. Our share is that percent of the damages payable on an excess basis that the limit of liability of this policy bears to the total of all applicable underinsured motor vehicle coverage provided on an excess basis.
The total damages payable from all policies that apply on an excess basis shall not exceed the amount by which the limit of liability of the single policy providing the highest limit of liability on an excess basis exceeds the limit of liability of the single policy providing the highest limit of liability on a primary basis.

Erie paid Mr. Cunningham $66,667.66 in underinsured motorist coverage benefits and State Farm paid Mr. Cunningham $33,333.34 in underinsured motorist coverage benefits, so that he received a total of $100,000.00 in underinsured motorist coverage benefits.

On March 23, 2007, the plaintiffs filed a Complaint against Erie and State Farm and others alleging entitlement to coverage limits from the underinsured coverage in policies issued to them by each insurer. Both Erie and State Farm filed Motions for Summary Judgment which contended that the unambiguous “other insurance” provisions in the policies only entitled the plaintiffs to collect the highest limit available under the two policies. Because this issue is one of first impression in West Virginia, the circuit court held certified question hearings on July 24, 2008 and October 29, 2008. By order dated December 30, 2008, the circuit court certified the question at issue pursuant to W. Va.Code § 58-5-2(1967) and answered it in the negative.

In its reasoning, the circuit court found that neither State Farm nor Erie was aware of the presence of the other and as each insurer insured one vehicle owned by the plaintiffs, there was no multi-vehicle discount for the plaintiffs. Although the circuit court did not dispute that a general discount may have been applied or given by either insurer to the plaintiffs, the court found that the plaintiffs received no benefit of buying two separate automobile insurance policies. The circuit court specifically found that West Virginia law and public policy favor full compensation to the plaintiffs and that W. Va.Code § 33-6-31(b)(1998) would be violated by application of the State Farm and Erie policy limiting provisions relating to the underinsured motorist coverage policy limits.

Additionally, the circuit court found that the language in the Erie underinsured motorist policy was ambiguous because in addition to the policy language quoted above, the Erie policy's Uninsured/Underinsured Motorists Coverage Endorsement also contained the section entitled “Limitations of Payment” which provides in part:

LIMITS OF PROTECTION
Limitations of Payment
If “anyone we protect” insures more than one “auto” and none of the “autos” are involved in the accident, the highest limit of
...

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5 cases
  • Jenkins v. City of Elkins
    • United States
    • West Virginia Supreme Court
    • November 20, 2012
    ...denials of coverage strike at the heart of the purposes of the uninsured ... motorist statutes provisions.’ ” Cunningham v. Hill, 226 W.Va. 180, 186, 698 S.E.2d 944, 950 (2010) (quoting Deel, 181 W.Va. at 463, 383 S.E.2d at 95). “Accordingly, if the language of [the] policy does not comply ......
  • Jenkins v. City of Elkins
    • United States
    • West Virginia Supreme Court
    • November 15, 2012
    ...denials of coverage strike at the heart of the purposes of the uninsured . . . motorist statutes provisions.'" Cunningham v. Hill, 226W. Va. 180, 186, 698 S.E.2d 944, 950 (2010) (quoting Deel, 181 W. Va. at 463, 383 S.E.2d at 95). "Accordingly, if the language of [the] policy does not compl......
  • State Farm Mut. Auto. Ins. Co. v. Schatken
    • United States
    • West Virginia Supreme Court
    • November 16, 2012
    ...such reduction and that this Court struck down a similar attempt at reduction of underinsured motorist benefits in Cunningham v. Hill, 226 W.Va. 180, 698 S.E.2d 944 (2010). Therefore, a close examination of both cases is warranted. In Youler, this Court was presented with a certified questi......
  • Liberty Mut. Ins. Co. v. Morrisey, 13–0195.
    • United States
    • West Virginia Supreme Court
    • June 11, 2014
    ...Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391, 397 (1992)). See also, Cunningham v. Hill, 226 W.Va. 180, 185, 698 S.E.2d 944, 949 (2010). As further noted by this Court in Taylor v. Nationwide Mut. Ins. Co., 214 W.Va. 324, 328, 589 S.E.2d 55, 59 (2003), ......
  • Request a trial to view additional results

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