Deel v. Sweeney, 18686

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN
• Citation: 383 S.E.2d 92,181 W.Va. 460
• Parties: Johnny DEEL v. Boyd Walter SWEENEY, et al.
• Docket Number: No. 18686,18686
• Decision Date: 21 July 1989

Page 92

383 S.E.2d 92 181 W.Va. 460 Johnny DEEL
v.
Boyd Walter SWEENEY, et al. No. 18686. Supreme Court of Appeals of
West Virginia. July 21, 1989. Syllabus by the Court

1. Statutory provisions mandated by the Uninsured Motorist Law, W.Va.Code § 33-6-31 [1988] may not be altered by insurance policy exclusions.

2. "Where provisions in an insurance policy are plain and unambigious and where such provisions are not contrary to a statute, regulation, or public policy, the provisions will be applied and not construed." Syl. Pt. 2, Shamblin v. Nationwide Mut. Ins. Co., 175 W.Va. 337, 332 S.E.2d 640 (1985).

3. 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

Page 93

[181 W.Va. 461] spirit and intent of the uninsured and underinsured motorists statutes.

William M. Walls, James C. Stuckey, Meyer & Perfater, Charleston, for Johnny Deel.

Anita R. Casey, Meyer, Darragh, Buckler, Bebenek Eck & Hall, Charleston, for Aetna.

WORKMAN, Justice:

This is an action to collect underinsured motorist insurance coverage benefits. Johnny Deel appeals to this Court from an Order of the Kanawha County Circuit Court granting Appellee Aetna Casualty & Surety Company's ("Aetna") Motion to Dismiss and Motion for Declaratory Judgment.

The question before this Court is whether the underinsured motorist coverage purchased by Junior Deel, Johnny Deel's father, provided coverage to the appellant while he was driving his personally owned vehicle insured by another company. The circuit court found the underinsured motorist provisions of the father's policy did not cover the appellant. After a review of the facts and the issues presented, we agree and affirm.

On January 5, 1986, Johnny Deel, while driving his personally owned vehicle, was struck by Boyd Sweeney, who was driving left of the center lane. Johnny Deel sustained serious injuries resulting in medical expenses of more than twenty-eight thousand dollars ($28,000), with medical treatment ongoing. The appellant also alleges permanent physical impairment and lost wages in excess of ten thousand dollars ($10,000). Sweeney, an uninsured motorist, was driving an automobile owned by Joan Ramsey. Ms. Ramsey's policy with Dairyland Insurance Company ("Dairyland") had a twenty thousand dollar ($20,000) bodily injury limit. ¹ Dairyland settled with the appellant for this bodily injury limit prior to the filing of this action. Johnny Deel's car was insured by Kemper Insurance Company, but his policy did not include underinsured motorist coverage. ²

Junior Deel had a valid policy of insurance which included underinsured motorist coverage in the amount of $100,000 per person/$300,000 per occurrence. For the purposes of a motor vehicle policy, an insured is defined by statute 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...." W.Va.Code § 33-6-31(c) [1988]. Since appellant was a resident in his father's household at the time of the accident, he sought to recover under his father's underinsured motorist policy with Aetna.

The pertinent provisions in the father's policy with Aetna state:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injuries sustained by a covered person and property damage caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the underinsured motor vehicle.

The policy continues on the same page, stating:

EXCLUSIONS

A. We do not provide Underinsured Motorist Coverage for bodily injury and property damage sustained by any person: (1) while occupying, or when struck by, any motor vehicle or trailer of any

Page 94

[181 W.Va. 462] type owned by you or any family member which is not insured for this coverage under this policy.

The automobile owned and operated by the appellant was not an insured vehicle under this policy.

By order of January 4, 1988, the circuit court concluded that the Aetna Policy did not cover the claims made by the appellant. This appeal was filed August 2, 1988.

Appellant contends that Aetna's exclusionary clause is more restrictive than the underinsured motorist statutes permit and argues that this Court should reverse the action of the circuit court based on the principles enunciated in Bell v. State Farm Mut. Auto Ins. Co., 157 W.Va. 623, 207 S.E.2d 147 (1974). Appellee argues the exclusion is clear, unambiguous and should be enforced.

It is well-settled law in West Virginia that "[w]here provisions of an insurance policy are plain and unambiguous and where such provisions are not...