Hall v. Wiesner
| Decision Date | 01 March 1994 |
| Docket Number | Civ. A. No. 93-7-M. |
| Citation | 844 F. Supp. 1120 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | George J. HALL, Jr., Administratrix of the Estate of George J. Hall, III, deceased; Suzanne Chavis, Administratrix of the Estates of Laurie J. Wiesner, deceased and Joshua A. Wiesner, deceased; and Michael Wiesner, Administrator of the Estate of Christopher Wiesner, II, deceased, Plaintiffs, v. Delores WIESNER, Administratrix of the Estate of Richard Wiesner, deceased; and State Farm Mutual Automobile Insurance Company, a corporation, Defendants. |
COPYRIGHT MATERIAL OMITTED
John E. Artimez, Jr., Artimez Law Offices, Moundsville, WV, for George J. Hall, Jr.
Mark Jenkinson, Hunt & Wilson, Martinsburg, WV, for Suzanne Chavis.
D. Michael Burke, Askin, Pill, Scales & Burke, Martinsburg, WV, for Michael Wiesner.
Gilbert Wilkes, III, Wilkes & Associates, L.C., Martinsburg, WV, for Delores Wiesner.
Curtis G. Power, III, Steptoe & Johnson, Martinsburg, WV, Tracey Brown Dawson, Steptoe & Johnson, Hagerstown, MD, for State Farm Mut.
Pending before the Court is defendant State Farm's Motion for Summary Judgment filed with a supporting memorandum of law on November 30, 1993. The motion has been fully briefed and is mature for disposition.1
This action was brought to recover for the wrongful death of plaintiffs' decedents and to seek a declaratory judgment regarding underinsured motorist coverage. By stipulated Order entered June 4, 1993, the Court directed that separate trials would be conducted and that the declaratory judgment action would commence prior to the trial of the wrongful death action. The instant Motion for Summary Judgment addresses the issue of underinsurance coverage raised by the cause of action for declaratory judgment.
It is undisputed that, on December 25, 1990, the plaintiffs' decedents were passengers in an automobile owned and operated by Richard Wiesner. The vehicle left the road on Low Water Bridge and was swept into Back Creek. Richard Wiesner, Christopher Wiesner, Sr., and the plaintiffs' decedents were killed.
It is further undisputed that, at the time of the accident, passenger Christopher Wiesner, Sr., was the named insured under an automobile liability policy with defendant State Farm, which policy provided bodily injury coverage protection with limits of $100,000.00 per person, $300,000.00 per accident. State Farm disputes the availability of underinsurance coverage under said policy.
State Farm urges that Christopher Wiesner, Sr., had not purchased underinsured motorist coverage for the period during which the accident occurred but had knowingly and intelligently waived such coverage in response to two commercially reasonable offers. The plaintiffs, however, contend that Christopher Wiesner, Sr., had not knowingly and effectively waived underinsured motorist coverage and that coverage exists by operation of law pursuant to Bias v. Nationwide Mutual Insurance Company, 179 W.Va. 125, 365 S.E.2d 789 (1987).
While the parties disagree somewhat over the application of certain case law, they appear to agree on certain aspects of underinsurance law. Every liability insurance policy issued or delivered in West Virginia shall offer an option for underinsurance motorist coverage up to the dollar limits of the liability insurance purchased by the insured. Bias v. Nationwide, 365 S.E.2d at 790. This is mandatory.
Where an offer of optional coverage is required by statute, the insurer has the burden of proving that an effective offer was made and that any rejection of said offer by the insured was knowing and informed. The insured's offer must be made in a commercially reasonable manner, so as to provide the insured with adequate information to make an intelligent decision. The offer must state, in definite, intelligible, and specific terms, the nature of the coverage offered, the coverage limits, and the costs involved. Bias v. Nationwide, 365 S.E.2d at 791.2
When an insurer is required by statute to offer optional coverage, it is included in the policy by operation of law when the insurer fails to prove an effective offer and a knowing and intelligent rejection by the insured. Bias, 365 S.E.2d at 791. When it is found that an insurer failed to prove that an effective offer was made and that a waiver was knowing and informed, the amount of coverage included in the policy by operation of law is the amount the insurer is required to offer under the statute (the limits of bodily injury liability insurance in the policy). Riffle v. State Farm Mut. Auto. Ins. Co., 186 W.Va. 54, 410 S.E.2d 413, 414 (1991).
State Farm has submitted several documents and two affidavits which tend to show that Laurie Wiesner, the wife of Christopher Wiesner, Sr., completed the application for the automobile liability policy on behalf of her husband, noting that she would also be a driver of the insured vehicle. The date of the application is April 4, 1988. It would also appear that on that date Laurie Wiesner signed a written rejection of underinsured motorist coverage.3
The plaintiffs do not deny that Mrs. Wiesner signed the rejection form. Nevertheless, they contend that the rejection form itself is evidence that the offer made on that date does not meet the strict standards set forth in Bias, particularly urging that the form does not reflect that Mrs. Wiesner was informed of the various coverage limits nor the costs of coverage. The plaintiffs also contend that West Virginia law does not permit a spouse to effectively waive coverage for the named insured.
In addition to the April 4, 1988 offer, State Farm alleges that another offer of underinsured motorist coverage was tendered in October 1988 when a brochure was enclosed with Mr. Wiesner's semi-annual policy renewal notice. The renewal notice advised:
The enclosed brochure contained a table of coverage limits and semi-annual premiums for underinsured motorist coverage. State Farm contends that Mrs. Wiesner rejected this second offer by tendering a premium amount which did not include underinsurance coverage.
Once again, plaintiffs urge that Mrs. Wiesner may not effectively waive coverage for her spouse. In addition, plaintiffs argue that State Farm has failed to show that Christopher Wiesner received notice of the second offer nor has State Farm produced evidence of any document which bears the signature of Laurie or Christopher Wiesner, Sr., with regard to the second offer. The plaintiffs also advance an argument that State Farm must make an effective offer of underinsured motorist coverage with each semi-annual premium notice and that, therefore, an effective waiver was not made within the relevant policy period.4
Two preliminary questions of law must be addressed before analyzing the standard for summary judgment. First, plaintiffs urge the Court to disregard the agents' affidavits because they relate to specific and direct conversations with one of the decedents, which, it is contended, violates the West Virginia Dead Man's Statute, West Virginia Code § 57-3-1. While plaintiffs attempt to distinguish Cross v. State Farm Mut. Auto. Ins. Co., 182 W.Va. 320, 387 S.E.2d 556 (1989), the Court finds no distinction between the issue presented in Cross and the issue under consideration.
Upon certified questions from the United States Court of Appeals for the Fourth Circuit, the West Virginia Supreme Court, in Cross, held that the Dead Man's Statute does not bar the testimony of an insurer's agents that they orally informed the decedent of the costs of various levels of uninsured motorist coverage, where the only assertion is that the insurer's agents are incompetent witnesses by virtue of their interests as agents. Cross v. State Farm, 387 S.E.2d at 563. Here, plaintiffs suggest that they are not objecting on the basis of interest but because the affidavits relate to specific conversations with a dead person. A reading of Cross, however, reflects that the Supreme Court was well aware that the agents would be testifying about specific conversations with dead persons and would not have remained silent on the issue if it was pertinent. In fact, the second certified question specifically addresses conversations between agents and the deceased which led to the alleged waiver of coverage.
Having addressed this initial question, the Court must also...
To continue reading
Request your trial
-
Westfield Ins. Co. v. Paugh
...Therefore, the Court concludes that UM/UIM coverage was included in the Umbrella Policy by operation of law. See Hall v. Wiesner, 844 F.Supp. 1120, 1122-23 (N.D.W.Va.1994); Bias v. Nationwide Mut. Ins. Co., 179 W.Va. 125, 127, 365 S.E.2d 789, 791 (1987). The legal authorities and reasoning ......