Mitchell v. Broadnax

Decision Date18 February 2000
Docket NumberNo. 25539.,25539.
Citation208 W.Va. 36,537 S.E.2d 882
PartiesPaul MITCHELL, as Executor of the Estate of Mary S. Mitchell, Plaintiff Below, Appellant, v. Anthony George BROADNAX, Defendant Below, Appellee. Naomi S. Mitchell and Geraldine O'Dell, Plaintiffs Below, v. Anthony Broadnax, Defendant Below.
CourtWest Virginia Supreme Court
Concurring Opinion of Justice Starcher April 21, 2000.

Concurring and Dissenting Opinion of Justice McGraw October 20, 2000.

Roslyn Clark-Payne, Wilbert A. Payne, Beckley, West Virginia, Attorneys for the Appellant.

Mark A. Bramble, Brent K. Kesner, Ellen R. Archibald, Kesner, Kesner & Bramble, Charleston, West Virginia, Attorneys for the Appellee, Anthem Casualty Insurance Company.

Wesley W. Metheney, Paul T. Farrell, Jr., Wilson, Frame, Benninger & Metheney, PLLC, Morgantown, West Virginia, Barry Hill, Law Offices of Barry Hill, Wheeling, West Virginia, Attorneys for Amicus Curiae, West Virginia Trial Lawyers Association. DAVIS, Justice.

The appellant herein and plaintiff below, Paul Mitchell [hereinafter "Mitchell"], as executor of the estate of Mary S. Mitchell [hereinafter "Ms. Mitchell" or "the decedent"], appeals from an April 15, 1998, order entered by the Circuit Court of Raleigh County. In that order, the circuit court awarded summary judgment and declaratory judgment to the appellee herein and defendant below, Anthem Casualty Insurance Company [hereinafter "Anthem"],1 and ruled that Anthem was obligated to pay to Mitchell, under the "owned but not insured" exclusion contained in the decedent's policy of motor vehicle insurance, uninsured motorist [hereinafter "UM"] benefits equal to the statutorily required minimum limits of such coverage, i.e., $20,000. See W. Va.Code ? 17D-4-2 (1979) (Repl.Vol.1996); W. Va.Code ? 33-6-31(b) (1995) (Repl.Vol.1996). Mitchell appealed the circuit court's decision to this Court and argued that the "owned but not insured" exclusion should be declared void and that he should be permitted to recover the full amount of uninsured motorist benefits provided for in the decedent's Anthem policy, i.e., $300,000. We previously upheld the circuit court's order in a per curiam opinion filed on July 16, 1999. See Mitchell v. Broadnax, No. 25539 (W.Va. July 16, 1999) (per curiam). Following Mitchell's petition for rehearing, we concluded that justice required us to revisit the public policy attending the enforcement of "owned but not insured" exclusions to motor vehicle insurance coverage, noting in our August 31, 1999, rehearing order that our reconsideration of this case would be limited to the "public policy" issue. Upon a second review of the pertinent authorities, the record presented for appellate review, and the parties' arguments, we conclude that we cannot definitively determine whether the circuit court's ruling was in error. Our decision of this case is hindered by the absence, in the appellate record, of two vital pieces of information: (1) evidence regarding whether Anthem, in incorporating the exclusionary language into Ms. Mitchell's policy, charged her a premium consistent with such limitation of coverage and (2) any indication that the circuit court considered whether Anthem had met the statutory requirements of W. Va.Code ? 33-6-31(k) (1995) (Repl.Vol.1996) requisite to incorporating such a policy exclusion. Accordingly, we vacate the ruling of the circuit court and remand the matter for further proceedings consistent with this opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts of this case are largely undisputed by the parties. On November 9, 1996, Ms. Mitchell; her daughter, Naomi Mitchell [hereinafter "Naomi"]; and Geraldine O'Dell [hereinafter "Ms. O'Dell"] were involved in an automobile accident in Raleigh County, West Virginia, when the 1989 Pontiac Grand Am in which they were traveling was hit by a 1983 Cadillac driven by Anthony George Broadnax [hereinafter "Broadnax"], an uninsured motorist2 who was driving without a valid driver's license.3 Ms. Mitchell and Naomi jointly owned the Grand Am,4 which was insured by a policy of motor vehicle insurance issued by Kentucky National Insurance Company [hereinafter "Kentucky National"].5 In addition, Ms. Mitchell, who was a passenger in the Grand Am at the time of the accident, held a policy of motor vehicle insurance for her separately owned vehicle, a 1981 Buick Century, which policy had been issued by Anthem.6 As a result of the accident, Ms. Mitchell sustained numerous injuries, and it is averred that these injuries contributed to her subsequent death in late March, 1997.

After unsuccessful attempts to recover the UM benefits provided by the Kentucky National and Anthem policies, Paul Mitchell, on behalf of Ms. Mitchell,7 filed this action on March 24, 1997, in the Circuit Court of Raleigh County, seeking to collect the UM benefits provided by both the Kentucky National and Anthem policies.8 Kentucky National ultimately settled with Mitchell and tendered the full policy limits of UM coverage, i.e., $100,000.9 Anthem, however, denied coverage based upon an "owned but not insured" exclusion contained in that policy, which reads:

We do not provide Uninsured Motorists Coverage under this endorsement for property damage or bodily injury sustained by any person while occupying, or when struck by, any motor vehicle owned by you or any family member which is not insured for Uninsured Motorists Coverage under this policy. This includes a trailer of any type used with that vehicle.

Following Anthem's motion for summary judgment and declaratory judgment, the circuit court, in an order entered April 15, 1998, found the exclusion to be valid and enforceable above the minimum statutory limits of UM coverage, consistent with our recent holding in Imgrund v. Yarborough, 199 W.Va. 187, 483 S.E.2d 533 (1997).10 The court also ruled that Anthem's "liability to the plaintiff is limited to the statutory minimum limit of uninsured motorist benefits of $20,000.00, per person."11 Thereafter, Anthem tendered these benefits to Mitchell,12 and Mitchell appealed to this Court.

In our first decision of Mitchell's appeal, which was filed on July 16, 1999, and rendered per curiam, we upheld the circuit court's ruling. See Mitchell v. Broadnax, No. 25539 (W.Va. July 16, 1999) (per curiam). Upon Mitchell's petition for rehearing, we determined the need to further examine the public policy issues inherent in the enforcement of "owned but not insured" exclusions to motor vehicle coverage, based largely upon our conclusion that the parties had not adequately briefed this issue in their original appellate briefs.13 Accordingly, in our August 31, 1999, order granting rehearing, we instructed the parties that our reconsideration of this case would be limited to a consideration of "whether the `owned but not insured' exclusion is against public policy as set forth in West Virginia statutes and/or in case law," and requested their briefs on rehearing to address the same. Our determination of that narrow issue follows.

II.

STANDARD OF REVIEW

On appeal to this Court, Mitchell challenges the propriety of the circuit court's decision to award Anthem summary judgment and declaratory judgment. Typically, "`"[a] circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).' Syllabus point 1, McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389 (1997)." Syl. pt. 2, Wickland v. American Travellers Life Ins. Co. ., 204 W.Va. 430, 513 S.E.2d 657 (1998). Likewise, we afford plenary review to a declaratory judgment award: "`[a] circuit court's entry of a declaratory judgment is reviewed de novo.' Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995)." Syl. pt. 1, Anderson v. Wood, 204 W.Va. 558, 514 S.E.2d 408 (1999).

In addition to the procedural posture of this case, we also must consider the legal issue at the heart of this matter in determining the applicable standard of review. As we previously have upheld the validity of exclusions to motor vehicle insurance coverage generally, see Syl. pt. 3, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989),14 and of "owned but not insured" exclusions specifically, see Syl. pt. 4, Imgrund v. Yarborough, 199 W.Va. 187, 483 S.E.2d 533 (1997),15 we are primarily concerned in this appeal with the public policy considerations attending the incorporation of such exclusions into policies of motor vehicle insurance. Generally, "`[a] determination of the existence of public policy in West Virginia is a question of law ....' Syllabus point 1, [in part,] Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984)." Syl. pt. 1, in part, Page v. Columbia Natural Resources, Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996). Accordingly, the appropriate standard of review for our deliberation and determination of the public policy issue also is plenary:

"`Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." Syllabus point 2, Webster County Commission v. Clayton, 206 W.Va. 107, 522 S.E.2d 201 (1999).

Syl. pt. 1, State ex rel. McGraw v. Combs Services, 206 W.Va. 512, 526 S.E.2d 34 (1999). Having ascertained the relevant standards of review, we proceed to consider and decide the parties' arguments.

III.

DISCUSSION

With this appeal, we once again are invited to consider the ever-tumultuous realm of motor vehicle insurance law and insurer-incorporated exclusions to such coverage.16 In determining whether enforcement of the "owned but not insured" exclusion 17 at issue herein violates the public policy of this State, it is first necessary to review the historical underpinnings which have shaped such exclusions.

The seminal case of Bell v....

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