Cupano v. West Virginia Ins. Guar. Ass'n

• Decision Date: 14 June 2000
• Docket Number: No. 26650.,26650.
• Citation: 536 S.E.2d 127,207 W.Va. 703
• Parties: Antoinette CUPANO, Plaintiff Below, Appellant, v. WEST VIRGINIA INSURANCE GUARANTY ASSOCIATION, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

536 S.E.2d 127

207 W.Va. 703

Antoinette CUPANO, Plaintiff Below, Appellant, v. WEST VIRGINIA INSURANCE GUARANTY ASSOCIATION, Defendant Below, Appellee.

No. 26650.

Supreme Court of Appeals of West Virginia.

Submitted February 16, 2000.

Decided June 14, 2000.

Dissenting Opinion of Justice Starcher June 28, 2000.

D. Michael Burke, Esq., Burke & Schultz, Martinsburg, West Virginia, Attorney for Appellant.

Cheryl Lynne Connelly, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, West Virginia, Attorney for Appellee.

MAYNARD, Chief Justice:

This appeal arises from an order of the Circuit Court of Berkeley County granting a motion for summary judgment to the appellee, West Virginia Insurance Guaranty Association, against the appellant, Antoinette Cupano. The appellant alleges in this appeal that the circuit court erred in finding that she cannot stack her underinsured motorist coverages.

I. FACTS

The facts of this case are not in dispute. On June 22, 1995, the appellant and plaintiff below, Antoinette Cupano was a passenger in a vehicle operated by her mother, Mary Ann Cupano, and owned by her father, Vincent J. Cupano, Jr. (hereinafter "the Cupanos"). The vehicle driven by Mary Ann Cupano was struck by another vehicle driven by Stacey C. Miller. As a result of the accident, the appellant sustained injuries to her right knee and ankle. At the time of the accident, the Cupanos possessed an assigned risk personal automobile insurance policy issued by the Coronet Insurance Company (hereinafter "Coronet") with effective dates of July 20, 1994 to July 20, 1995. The policy covered two vehicles, a 1977 Chevrolet and a 1989 Oldsmobile. In pertinent part, the Cupanos' policy provided:

LIMIT OF LIABILITY

A. With respect to the Uninsured Motorists Coverage/Underinsured Motorist Coverage indicated as applicable in the Schedule or in the Declarations for damages caused by an accident with an "uninsured motor vehicle" or "underinsured motor vehicle" respectively:

1. The limit of Bodily Injury Liability shown for each person is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of "bodily injury" sustained by any one person in any one accident.

* * *

The limits of liability applicable to Uninsured Motorists Coverage and Underinsured Motorists Coverage are the most we will pay regardless of the number of:

1. "insureds";

2. Claims made;

3. Vehicles or premiums shown in the Schedule or the Declarations; or

4. Vehicles involved in the accident.

The Cupanos received a 10% multi-car discount per vehicle on the bodily injury liability coverage, the property damage liability coverage, and the medical payments liability coverage.¹ As a result of these discounts, the premium paid by the Cupanos on the policy was reduced from $1574.68 to $1429.00, which is a discount on the entire policy of $145.68.² The Cupanos did not receive a 10% multi-car discount on the underinsured motorists coverage. The Underinsured Motorists Coverage Offer (Form A) states that "Rates [ ] include [x] do not include multi-car discount."³ The policy provided underinsured motorists bodily injury coverage in the amount of $25,000 per person and $50,000 per accident on each vehicle covered.

At the time of the accident, Stacey C. Miller was insured under a policy by Nationwide Mutual Insurance Company which carried liability limits of $100,000 per person and $300,000 per accident. Nationwide entered into settlement negotiations with the appellant and offered its full coverage limit of $100,000. After Coronet waived its subrogation rights, the Nationwide settlement was concluded.

The appellant also asserted an underinsured motorist claim under the policy issued to the Cupanos by Coronet, in which she contended that she was entitled to stack the underinsured motorist coverage for each vehicle with a resulting limit of $50,000.⁴ Relying upon its anti-stacking language and multi-car premium discount, Coronet responded that its underinsured motorists coverage was limited to $25,000 which it offered to the appellant.

Coronet was subsequently declared to be insolvent, and the defendant below and appellee herein, the West Virginia Insurance Guaranty Association, (hereinafter "the Association") succeeded to and became liable, by operation of W.Va.Code § 33-26-1 et seq. for covered claims existing against Coronet.⁵ The Association paid the appellant $24,900, the underinsured motorists limit for one vehicle under the Coronet policy, less the statutory $100 deductible.⁶

On May 8, 1998, the appellant brought an action against the Association in which she sought to collect an additional $25,000 as the bodily injury limit of the underinsured motorists coverage on the second vehicle under the Cupanos' policy. By order of November 30, 1998, the circuit court denied the appellant's motion for summary judgment and granted the Association's cross motion for summary judgment. The circuit court found that the Cupanos' policy contained a valid anti-stacking provision and the Cupanos received a multi-car discount on the total policy premium. By order of January 27, 1999, the circuit court denied the appellant's motion to amend or alter the judgment.

II. STANDARD OF REVIEW

We begin our discussion by setting out the standard of review of an order granting summary judgment. In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we stated that "[a] circuit court's entry of summary judgment is reviewed de novo." Also, "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Also, in this case we are asked to determine the proper coverage of an insurance contract. We have stated that "[d]etermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law." Mitchell v. Federal Kemper Ins. Co., 204 W.Va. 543, 544, 514 S.E.2d 393, 394 (1998), citing Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3rd Cir.1985)

. With this in mind, we now consider the issues raised by the appellant.

III. DISCUSSION

Both parties agree that the disposition of this case is controlled by Syllabus Point 4 of Miller v. Lemon, 194 W.Va. 129, 459 S.E.2d 406 (1995), in which this Court stated:

Anti-stacking language in an automobile insurance policy is valid and enforceable as to uninsured and underinsured motorist coverage where the insured purchases a single insurance policy to cover two or more vehicles and receives a multi-car discount on the total policy premium. If no multi-car discount for uninsured or underinsured motorist coverage is apparent on the declarations page of the policy, the parties must either agree or the court must find that such a discount was given. In such event, the insured is not entitled to stack the coverages of the multiple vehicles and may only recover up to the policy limits set forth in the single policy endorsement.

In Miller, the plaintiffs purchased a single insurance policy for coverage of two vehicles, a 1977 Ford Mustang and a 1988 Oldsmobile Delta Eighty-eight. The policy contained unambiguous anti-stacking language. The plaintiffs' previous insurance policy covered only the 1977 Ford Mustang, and the total policy premium was $136. Specifically, under the previous policy, the plaintiffs paid $122 for bodily injury liability coverage; $6 for medical payments coverage; $7 for uninsured motorists bodily injury coverage; and $1 for uninsured motorists property damage coverage.⁷ Premiums paid on the subsequent single multi-vehicle policy were $94 for bodily injury liability coverage; $5 for medical payments coverage; $7 for uninsured motorists bodily injury coverage; and $1 for uninsured motorists property damage coverage. Thus, the plaintiffs received a multi-car discount of $28 on each vehicle for bodily injury liability coverage and $1 on each vehicle for medical payments coverage, for a total premium discount on the entire policy of $58.

The plaintiffs maintained, however, that because they received no discount specifically for uninsured motorist coverage, the anti-stacking provision was ineffective as to that coverage. This Court disagreed, and explained:

Having contracted for only one policy of insurance, the Millers likewise bargained for only one uninsured motorist coverage endorsement. In return, Federal Kemper "assum[ed] an increased risk of injury which could occur while [the Millers were] occupying the second vehicle as consideration for the second premium. [The Millers were] therefore receiving the benefit of that which [they] bargained for and should not receive more."

Miller, 194 W.Va. at 133, 459 S.E.2d at 410, quoting Russell v. State Auto. Mut. Insurance Co., 188 W.Va. 81, 85, 422 S.E.2d 803, 807 (1992)

. (Additional citation omitted).

In the instant case, there is no contention that the Cupanos' policy does not contain valid anti-stacking language. Also, it is undisputed that the Cupanos' policy is a single insurance policy which covers two vehicles. Accordingly, the dispositive issue in this case is whether the Cupanos received "a multi-car discount on the total policy premium" as required by syllabus point 4 of Miller.

As noted above, the circuit court found that the 10% multi-car discounts on the premiums charged for bodily injury liability, property damage liability, and medical payments coverages constitute a discount on the total policy premium. The appellant maintains, to the contrary, that multi-car discounts on some, but not all, coverages contained in a single insurance policy constitute a discount on only a partial policy premium and not the total policy premium. According to the appellant, a multi-car discount on the...