Findley v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 06 December 2002
• Docket Number: No. 30842.,30842.
• Citation: 213 W.Va. 80,576 S.E.2d 807
• Court: West Virginia Supreme Court
• Parties: Laura A. FINDLEY, Individually and on behalf of All Other Persons Similarly Situated, Plaintiff Below, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant Below, Appellee, Nationwide Mutual Insurance Company, Intervenor.

576 S.E.2d 807

213 W.Va. 80

Laura A. FINDLEY, Individually and on behalf of All Other Persons Similarly Situated, Plaintiff Below, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant Below, Appellee, Nationwide Mutual Insurance Company, Intervenor.

No. 30842.

Supreme Court of Appeals of West Virginia.

Submitted November 14, 2002.

Decided December 6, 2002.

Concurring Opinion of Justice Starcher December 13, 2002.

Concurring and Dissenting Opinion of Justice McGraw January 6, 2003.

J. Michael Benninger, Esq., Paul T. Farrell, Jr., Esq., Wilson, Frame, Benninger & Metheney, PLLC, Morgantown, James M. Pietz, Esq., Malakoff, Doyle & Finberg, P.C., Pittsburgh, PA, for the Appellant.

Clarence E. Martin, III, Esq., Susan R. Snowden, Esq., Ronald S. Rossi, Esq., Martin & Seibert, L.C., Martinsburg, for the Intervenor.

Mary E. Alexander, Esq., President, Jeffrey R. White, Esq., Counsel, The Association of Trial Lawyers of America, Washington, DC, William L. Frame, Esq., Wilson, Frame, Benninger & Metheney, PLLC, Morgantown, for Amicus Curiae, The Association of Trial Lawyers of America.

Bert Ketchum, Esq., Greene Ketchum Bailey & Tweel, Huntington, for Amicus Curiae, West Virginia Trial Lawyers Association.

Catherine D. Munster, Esq., James A. Varner, Sr., Esq., Debra Tedeschi Herron, Esq., McNeer, Highland, McMunn and Varner, L.C., Clarksburg, for the Appellee.

J. Michael Weber, Esq., Dean A. Furner, Esq., Spilman Thomas & Battle, PLLC, Parkersburg, for Amici Curiae, West Virginia Insurance Federation, West Virginia Chamber of Commerce, West Virginia Manufacturers Association, West Virginia Business and Industry Council, West Virginia Bankers Association, Builders Supply Association of West Virginia, West Virginia Association of Insurance and Financial Advisors, West Virginia Automobile and Truck Dealers Association, and The Professional Independent Insurance Agents of West Virginia. DAVIS, Chief Justice.

The appellant herein and plaintiff below, Laura A. Findley, individually and in her representative capacity¹ [hereinafter collectively referred to as "Ms. Findley"], appeals from an August 1, 2002, order entered by the Circuit Court of Barbour County in favor of the appellee herein and defendant below, State Farm Mutual Automobile Insurance Company [hereinafter referred to as "State Farm"]. By the terms of that order, the circuit court concluded that State Farm was entitled to summary judgment because (1) the vehicle in which Ms. Findley was riding at the time of the accident was not an underinsured motor vehicle, and therefore, she was not entitled to recover underinsured motorist [hereinafter referred to as "UIM"] benefits from State Farm; (2) the multi-car discount contained in the applicable State Farm policy precluded the stacking of coverages under multiple State Farm policies available to Ms. Findley; and (3) the provisions of W. Va. Code §§ 33-6-30(b-c) (2002) (Supp.2002) barred Ms. Findley's cause of action. On appeal to this Court, Ms. Findley argues that the circuit court erred by (1) retroactively applying W. Va.Code §§ 33-6-30(b-c); (2) concluding that she does not have standing to challenge, pursuant to Mitchell v. Broadnax, 208 W.Va. 36, 537 S.E.2d 882 (2000), State Farm's definition of an underinsured motor vehicle; (3) upholding the anti-stacking provisions contained in her State Farm motor vehicle insurance policy; and (4) denying her cross-motion for summary judgment. State Farm additionally asserts several cross-assignments of error urging the affirmance of the circuit court's rulings. Upon a review of the parties' arguments, the record designated for appellate consideration, and the parties' arguments, we affirm the decision of the Circuit Court of Barbour County. In summary, we find that (1) the provisions of W. Va.Code §§ 33-6-30(b-c) do not apply retroactively; (2) Ms. Findley cannot assert a claim for relief pursuant to our prior decision in Mitchell v. Broadnax, 208 W.Va. 36, 537 S.E.2d 882 (2000); (3) the anti-stacking exclusions contained in the State Farm policy at issue herein are valid and enforceable; and (4) Ms. Findley is not entitled to judgment as a matter of law.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts upon which this proceeding is based were found by the circuit court as follows. On March 18, 2000, Ms. Findley was riding as a passenger in a 1987 Chevrolet Cavalier, which she jointly owned with her estranged husband John Findley² [hereinafter referred to as "Mr. Findley"] and of which she had been given exclusive use.³ At the time of the single car accident, Rusty Hyde, who did not own an automobile and thus had no motor vehicle insurance, was driving the Cavalier with Ms. Findley's permission. Ms. Findley was injured as a result of this accident, and recovered under the $50,000 liability provisions of Mr. Findley's State Farm policy insuring said vehicle.⁴

When these coverage limits proved to be insufficient to fully recompense her injuries, Ms. Findley attempted to also collect under the UIM provisions of this policy, as well as under the UIM provisions of two other policies of motor vehicle insurance held by Mr. Findley,⁵ all of which coverage was denied by State Farm. In support of its denial of coverage, State Farm relied upon the policy definitions of UIM coverage and underinsured motor vehicle. Pursuant to this policy, "underinsured motorist coverage" is described as follows:

[w]e will pay for damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury or property damage must be caused by accident arising out of the operation, maintenance, or use of an underinsured motor vehicle.

An "underinsured motor vehicle" is further defined to exclude "a land motor vehicle ... insured under the liability coverage of this policy[.]"⁶ Moreover, the policy in question contains an anti-stacking exclusion: "If other underinsured motor vehicle coverage issued by us to you, your spouse, or any relative applies, the total limits of liability under all such policies shall not exceed that of the policy with the highest limit of liability."⁷

Thereafter, Ms. Findley instituted the underlying declaratory judgment action⁸ against State Farm in the Circuit Court of Barbour County on November 21, 2000. Subsequently, on May 8, 2001, Ms. Findley moved to amend her complaint⁹ to convert her suit into a class action proceeding;¹⁰ the circuit court granted Ms. Findley's motion by order entered July 10, 2001. Ms. Findley then filed her First Amended Class Action Complaint on July 25, 2001. Following discovery, State Farm moved for summary judgment on February 14, 2002, and Ms. Findley cross-moved for summary judgment on April 10, 2002. On May 16, 2002, State Farm filed a second motion for summary judgment, asserting additional theories upon which it based its entitlement to relief. After a hearing on these motions, the circuit court ultimately ruled in favor of State Farm by order entered August 1, 2002, concluding that:

State Farm is entitled to the granting of its First Motion for Summary Judgment (filed February 14, 2002), on the application of the "intra-policy setoff" provision, for the following reasons:

a. The Court finds as a matter of law that the subject vehicle is not an "underinsured motor vehicle" under the applicable insurance policy, as the definition of underinsured motor vehicle clearly and unambiguously precludes UIM coverage for a vehicle insured under the same policy for liability purposes. See Thomas v. Nationwide Mutual Insurance Company, 188 W.Va. 640, 425 S.E.2d [595] (1992)

; Alexander v. State [Automobile] Mutual Insurance Company, 187 W.Va. 72, 415 S.E.2d 618 (1992).

b. The definition of "underinsured motor vehicle" as contained within the applicable State Farm policy originally issued September 26, 1991 is consistent with the statutory requirements of the West Virginia Code and is in accord with public policy.

c. Moreover, as found by our state supreme court, to declare this provision invalid would "emasculate" this State's underinsured motorist statutory provisions, and, in effect, would transform the underinsured coverage into liability coverage. This finding is controlled by the West Virginia Supreme Court of Appeals rulings in Thomas v. Nationwide Mutual Insurance Company, 188 W.Va. 640, 425 S.E.2d 595 (1992); and Alexander v. State Automobile Mutual Insurance Company, 187 W.Va. 72, 415 S.E.2d 618 (1992).

d. The plaintiff's [Ms. Findley's] Broadnax arguments cannot be applied to this provision of the subject policy. The policy in question was issued September 26, 1991. Endorsement 6069AG received approval in December 1989 and became effective January 1, 1990, prior to issuance of the subject policy. If a challenge to the endorsement could be brought, the Court is of the opinion it could only be done by persons owing policies on January 1, 1990, alleging benefits were deleted from their policies without corresponding adjustments to premiums.

State Farm is entitled to the granting of its First Motion for summary judgment on the issue of Laura Findley's stacking claim in light of the clear and unambiguous exclusion prohibiting stacking, for which John Findley received a multi-car discount.

The issue of whether Laura Findley has standing to [assert] a "Broadnax" claim is factually in dispute. However, the Court finds the "Broadnax" claim not applicable as hereinafter set forth.

State Farm is also entitled to summary judgment as a matter of law for the reasons set forth in its Second Motion for Summary Judgment as the plaintiff's cause of action is barred by the provisions of West Virginia Code § 33-6-30(b) and (c) for the following reasons:

a. West Virginia Code § 33-6-30(b) and (c) is a clarification of existing law and does not overrule Mitchell v. Broadnax.

b. As clarified by West Virginia Code § 33-6-30(b) and (c), nothing

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