Shamblin v. Nationwide Mut. Ins. Co., 16399

• Citation: 332 S.E.2d 639,175 W.Va. 337
• Decision Date: 10 July 1985
• Docket Number: No. 16399,16399
• Parties: Clarence SHAMBLIN, d/b/a Shamblin's Mobile Cleaning v. NATIONWIDE MUTUAL INSURANCE COMPANY.
• Court: West Virginia Supreme Court

Page 639

332 S.E.2d 639

175 W.Va. 337

Clarence SHAMBLIN, d/b/a Shamblin's Mobile Cleaning v. NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 16399.

Supreme Court of Appeals of

West Virginia.

July 10, 1985.

Syllabus by the Court

1. " 'Whenever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.' " Syl. pt. 1, Surbaugh v. Stonewall Casualty Co., 171 W. Va. 390, 283 S.E.2d 859 (1981), quoting syl. pt. 1, Prete v. Merchants Property Insurance Co., 159 W.Va. 508, 223 S.E.2d 441 (1976).

2. " 'Where 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.' " Syl., Farmers' & Merchants' Bank v. Balboa Insurance Co., 171 W.Va. 390, 299 S.E.2d 1 (1982), quoting syl., Tynes v. Supreme Life Insurance Co., 158 W.Va. 188, 209 S.E.2d 567 (1974).

3. The term "occurrence" in a limitation of liability clause within an automobile liability insurance policy refers unmistakably to the resulting event for which the insured becomes liable and not to some antecedent cause(s) of the injury.

4. When an automobile liability insurance policy contains language limiting the insurer's liability as the result of any one occurrence, "[r]egardless of the number of ... automobiles to which this policy applies," the insured is not entitled to "stack" liability coverages for each vehicle for which the insured has paid a separate premium. In light of the explicit "anti-stacking" language, the payment of a separate premium for each vehicle does not create an ambiguity in the insurance policy which should be resolved against the insurer.

5. A limitation of liability clause within an automobile liability insurance policy which limits coverage for any one occurrence, regardless of the number of covered vehicles, does not violate any applicable insurance statute or regulation, and there is no judicial policy that prevents an insurer from so limiting its liability and yet collecting a premium for each covered vehicle because each premium is for the increased risk of an "occurrence."

Goodwin & Goodwin, Richard E. Rowe and Robert Q. Sayre, Jr., Charleston, for appellant.

John R. Fowler, Meyer, Darragh, Buckler, Bebenek & Eck, Mary S. Richards, Anita R. Casey, Charleston, for appellee.

McHUGH, Justice:

This case is before this Court upon appeal from the declaratory judgment order ¹ entered on October 17, 1983, by the Circuit Court of Kanawha County, West Virginia. This Court has before it the petition for appeal, all matters of record, ² and the briefs and oral argument of counsel.

I

On or about January 16, 1977, the appellant, Clarence Shamblin, d/b/a Shamblin's Mobile Cleaning, purchased an automobile liability insurance policy from the appellee, Nationwide Mutual Insurance Company. At all times relevant herein, the insurance policy remained in effect. In addition to covering other vehicles, the policy specifically covered the appellant's three vehicles mentioned herein. For each of these vehicles the appellant paid a separately computed premium, and coverage for each vehicle under the one policy included the following: automobile bodily injury liability--$100,000 limit for each person, $300,000 limit for each occurrence; automobile property damage liability--$50,000 limit for each occurrence.

On or about April 10, 1979, the appellant's employees, Messrs. Owens, Beller, and Haynes, were driving three of the appellant's vehicles in the scope and during the course of their employment. There was evidence that during the trip together these three drivers had communicated with each other by citizens band ("CB") radios to signal each other as to when it was clear to pass other vehicles. At a certain point during their trip Owens was advised over his "CB" radio by another driver, allegedly one of his fellow employees (Beller or Haynes), who had already passed another truck, that it was safe for Owens to pass the same. In attempting to pass the other truck Owens collided with the same and another vehicle. The driver and passenger in the latter vehicle were injured in the collision, and the driver brought a civil action for the injuries in the Circuit Court of Kanawha County, West Virginia. The jury in that action awarded the plaintiff therein $775,000.00 in damages and apportioned 90% of the liability for the same to the appellant herein.

During the pendency of the personal injury action against the appellant, the appellee informed the appellant that the automobile liability insurance policy limits for bodily injury and property damage for each vehicle would not be available to the appellant even if it were determined that more than one of the appellant's vehicles contributed to the accident. The appellant consequently commenced a declaratory judgment proceeding in the Circuit Court of Kanawha County, West Virginia, for the court to construe the insurance policy and to declare that the liability limits for each vehicle contributing to the accident were available to the appellant.

The trial court ruled that there was one "occurrence" within the meaning of the insurance policy and, thus, the appellee's liability to the appellant was limited to $100,000.00 for bodily injury to one person (and to $300,000.00 for bodily injury to two or more persons) for the one "occurrence."

II

On this appeal the appellant asserts that the "occurrence clause" of the insurance policy is ambiguous and must be construed against the insurer as preparer of the document and as the party better able to sustain the financial burden. In addition, the appellant argues that the allegedly two separate acts of negligence by two of the appellant's drivers in two covered vehicles for which separately computed premiums were paid require a conclusion that there was an "occurrence" for each of the appellant's vehicles. We disagree and affirm the trial court's order.

III

The pertinent provisions of the comprehensive automobile liability insurance policy are set forth in the footnote. ³

The threshold inquiry is whether the insurance policy's definition of "each occurrence" ("one occurrence") is ambiguous. We conclude that it is not ambiguous, at least not in the sense meant by the appellant in this case.

In syl. pt. 1, Surbaugh v. Stonewall Casualty Co., --- 168 W.Va. 208, 283 S.E.2d 859 (1981), this Court, quoting syl. pt. 1, Prete v. Merchants Property Insurance Co., 159 W.Va. 508, 223 S.E.2d 441 (1976), set forth the test to determine whether an insurance policy provision is ambiguous so as to warrant judicial construction of the provision: " 'Whenever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.' " If ambiguity is found to exist, we stated in syl. pt. 2 of Surbaugh:

"Ambiguous and irreconcilable provisions of an insurance policy should be construed strictly against the insurer and liberally in favor of the insured, although such construction should not be unreasonably applied to contravene the object and plain intent of the parties." Syllabus point 2, Marson Coal Co. v. Ins. Co. of State of Pa. W.Va. , 210 S.E.2d 747 (1974).

On the other hand, if ambiguity is not found to exist, the following well settled principle applies: " 'Where 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.' [Syl.,] Tynes v. Supreme Life Insurance Company of America, W.Va. , 209 S.E.2d 567 (1974)." Syl., Farmers' & Merchants' Bank v. Balboa Insurance Co., 171 W.Va. 390, 299 S.E.2d 1 (1982).

The appellant contends that the occurrence clause in this case is ambiguous in that it is reasonably susceptible of a meaning different from that found by the trial court, specifically, two "occurrences," not one, result from allegedly two negligent acts of an insured which together cause an accident (and injuries or damage). The parties have not cited, nor has our research disclosed, any cases precisely on point.

The annotation at 55 A.L.R.2d 1300 (1957 and Later Case Service), entitled "What constitutes 'each,' 'a single,' 'one,' 'any one,' 'any,' or 'an' accident or occurrence, within liability policy limiting insurer's liability to specified amount," contains a thorough analysis of the classic dichotomy, cause v. effect; that is, some cases approach the question of whether one, or more than one, occurrence is involved from the standpoint of the insured whose action (or inaction) caused the claims to flow, while other cases view each resulting claim from the standpoint of the injured person(s), with the latter approach, of course, more apt to find more than one occurrence. For an excellent discussion of the two approaches see the leading case of Saint Paul-Mercury Indemnity Co. v. Rutland, 225 F.2d 689, 692 (5th Cir. 1955). See also American Casualty Co. v. Heary, 432 F.Supp. 995, 997 (E.D.Va.1977).

Nearly all of the reported cases, however, appear to involve either multiple impacts or multiple persons' injuries or damages from a single impact. See Slater v. United States Fidelity & Guaranty Co., 379 Mass. 801, 804-08, 400 N.E.2d 1256, 1259-61 (1980). Very few of the cases appear to analyze the subject situation, that is, the allegedly concurrent negligence ⁴ of two employees of an insured which together constitute the proximate cause of an accident involving one impact and one person being injured. ⁵

The following language is pertinent to the subject situation: "[W]hen ordinary people speak of an 'accident' in the usual sense, they are referring to a single, sudden, unintentional...