Mitchell v. Federal Kemper Ins. Co., 25063.

• Citation: 204 W.Va. 543,514 S.E.2d 393
• Decision Date: 04 December 1998
• Docket Number: No. 25063.,25063.
• Court: Supreme Court of West Virginia
• Parties: Reba MITCHELL and Ralph Mitchell, Plaintiffs, Appellants, v. FEDERAL KEMPER INSURANCE COMPANY, Jack Ray McCoy, Jr., and Does One Ten, Defendants, Appellees.

514 S.E.2d 393

204 W.Va. 543

Reba MITCHELL and Ralph Mitchell, Plaintiffs, Appellants, v. FEDERAL KEMPER INSURANCE COMPANY, Jack Ray McCoy, Jr., and Does One Ten, Defendants, Appellees.

No. 25063.

Supreme Court of Appeals of West Virginia.

Submitted September 16, 1998.

Decided December 4, 1998.

William S. Thompson, Cook & Cook, Madison, West Virginia, Attorney for Appellants.

Mary H. Sanders, James C. Stebbins, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, West Virginia, Attorneys for Appellees.

McCUSKEY, Justice.

This is an appeal by Reba Mitchell and Ralph Mitchell, her husband, from a declaratory judgment ruling made by the Circuit Court of Mingo County. In that ruling, the circuit court, in effect, held that the Mitchells were not entitled to collect underinsured motorists benefits under an automobile insurance policy issued to them by the appellee, Federal Kemper Insurance Company.

BACKGROUND FACTS

On November 11, 1992, Jack Ray McCoy, Jr., whose drivers license had previously been revoked, and who was drunk, but who, nonetheless, was operating a motor vehicle on West Virginia Route 80, struck a vehicle driven by Reba Mitchell, one of the appellants in this proceeding. Mrs. Mitchell was severely injured.

Mr. McCoy had no automobile insurance. Mrs. Mitchell was an insured under an automobile policy issued by Federal Kemper Insurance Company. That policy, along with the riders attached to it, contained both uninsured and underinsured motorist provisions which provided Mrs. Mitchell with $100,000 in uninsured motorist coverage and with an additional $100,000 in underinsured motorist coverage. The policy also contained an "antistacking" clause.

Following the accident which resulted in injury to Mrs. Mitchell, the Mitchells filed a claim with Federal Kemper Insurance Company to collect under both the uninsured and underinsured motorist coverages in their policy. Federal Kemper Insurance Company paid the Mitchells $100,000 in uninsured benefits, the maximum amount to which they were entitled under the coverage. The insurer, however, refused to pay pursuant to the underinsured motorist provision of the policy. In doing this, Federal Kemper claimed that the underinsured motorist provision in the Mitchells' policy did not apply to the facts of the case since Mr. McCoy was an uninsured motorist, and not an underinsured motorist, under the provisions of the policy. It also took the position that the Mitchells could not stack the two coverages; that is, that they could not collect under both the uninsured and underinsured motorist provisions because of the "anti-stacking" clause contained in the policy.

In the present proceeding, the Circuit Court of Mingo County was asked to declare whether the Mitchells could or could not stack the two coverages, and whether they could or could not recover under both coverages. The circuit court ruled that the Mitchells could neither stack nor recover, and it is from that ruling that the Mitchells now appeal.

STANDARD OF REVIEW

In this case we are primarily asked to review the circuit court's interpretation of an insurance contract. In Payne v. Weston, 195 W.Va. 502, 506-7, 466 S.E.2d 161, 165-66 (1995), we discussed the applicable standard of review in such cases. We stated that "[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination which, like the court's summary judgment, is reviewed de novo on appeal ." "Determination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law." Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3rd Cir.1985).

DISCUSSION

As previously indicated, Federal Kemper Insurance Company claimed that the underinsured motorist provision in the Mitchells' policy did not apply to Mrs. Mitchell based on the particular facts of this case. Federal Kemper's position is premised on language contained in the Mitchell's policy, including riders to that policy. Specifically, one rider states: "We will pay only compensatory damages which an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle," and an "underinsured motor vehicle" is defined as:

A land motor vehicle or trailer of any type for which the sum of all liability bonds or policies at the time of the accident provides at least the amounts required by the West Virginia Motor Vehicle Safety Responsibility Law but their limits are either: 1) less than the limits of liability for underinsured motorists coverage; or 2) reduced by payments to others injured in the accident to less than the limit of liability for underinsured motorists coverage.

It is the claim of Federal Kemper Insurance Company that this language requires that a vehicle be covered by insurance or bonds at least in the amounts required by the West Virginia Motor Vehicle Safety Law for it to be considered an "underinsured" motor vehicle, and it argues that, in the present case, the vehicle operated by Mr. McCoy had no insurance at all, and while it may have been an "uninsured" motor vehicle, it was not an "underinsured" motor vehicle within the meaning of the Mitchells' policy.

This Court has indicated that: "Where the provisions in an insurance policy are plain and unambiguous and where such provisions are not contrary to a statute, regulation, or public policy, the provisions will be applied and not construed." Syllabus, Tynes v. Supreme Life Insurance Company of America, 158 W.Va. 188, 209 S.E.2d 567 (1974). See, also Syllabus Point 2, Shamblin v. Nationwide Mutual Insurance Company, 175 W.Va. 337, 332 S.E.2d 639 (1985).

West Virginia Code § 33-6-31(b) recognizes that under West Virginia state law an appropriate definition of an "underinsured motor vehicle" is:

[A] motor vehicle with respect to the ownership, operation or use of which there is liability insurance applicable at the time of the accident, but the limits of that insurance are either: (i) Less than limits the insured carried for underinsured motorists' coverage; or (ii) has been reduced by payments to others injured in the accident to limits less than limits the insured carried for underinsured motorists' coverage.

A close examination of the definition of an "underinsured motor vehicle" contained in the rider to the Mitchells' policy which is quoted above closely tracts this statutory language, and like the statutory language, requires that a vehicle have some liability coverage in effect for it to be considered a "underinsured" motor vehicle.

In view of the fact that the language in the Mitchells' policy so closely tracks the statutory language, we conclude that the language in the Mitchells' policy is consistent with the statute and the public policy behind it. Li...