Starr v. State Farm Fire and Cas. Co.

• Decision Date: 13 November 1992
• Docket Number: No. 21170,21170
• Citation: 423 S.E.2d 922,188 W.Va. 313
• Court: West Virginia Supreme Court
• Parties: Judith STARR, Plaintiff Below, Appellee, v. STATE FARM FIRE AND CASUALTY COMPANY, a Corporation, Defendant Below, Appellant.

Page 922

423 S.E.2d 922

188 W.Va. 313

Judith STARR, Plaintiff Below, Appellee, v. STATE FARM FIRE AND CASUALTY COMPANY, a Corporation,

Defendant Below, Appellant.

No. 21170.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 15, 1992.

Decided Nov. 13, 1992.

Syllabus by the Court

1. Uninsured or underinsured motorist provisions of an automobile insurance policy which separately define coverage for the owner, spouse, and any relative living in the owner's household as one group, and for other persons while occupying the covered vehicle with the consent of the owner or his or her spouse as another group, create two distinct classes of covered individuals. The first class includes the named insured, his or her spouse, and their resident relatives. The second class consists of the permissive users of the named insured's vehicle.

2. Under provisions of a motor vehicle insurance policy which tie a permissive user's right to uninsured/underinsured motorist benefits to his or her occupancy of a covered automobile, a person who is injured while occupying a covered vehicle with the permission of the named insured or his or her spouse is entitled to recover uninsured or underinsured motorist benefits under the namedinsured's coverage only on the occupied vehicle involved in the accident and may not stack the named insured's uninsured/underinsured motorist coverage on another vehicle.

3. "Statutory provisions mandated by the Uninsured Motorist Law, W.Va.Code § 33-6-31 [1988] may not be altered by insurance policy exclusions." Syllabus Point 1, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).

4. Under W.Va.Code, 33-6-31(c) (1988), one who is entitled to uninsured or underinsured motorist benefits solely by virtue of his or her occupancy or use of the policyholder's vehicle may not stack the policyholder's uninsured/underinsured motorist coverage on another vehicle not involved in the accident.

5. " 'When, upon the trial of a case, the evidence decidedly preponderates against the verdict of a jury or the finding of a trial court upon the evidence, this Court will, upon review, reverse the judgment; and, if the case was tried by the court in lieu of a jury, this Court will make such finding and render such judgment on the evidence as the trial court should have made and rendered.' Syllabus Point 9, Bluefield Supply Co. v. Frankel's Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965)." Syllabus Point 5, Estate of Bayliss v. Lee, 173 W.Va. 299, 315 S.E.2d 406 (1984).

R. Carter Elkins, Laura L. Gray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for appellant.

Menis E. Ketchum, John H. Bicknell, Greene, Ketchum, Bailey & Tweel, Huntington, for appellee.

MILLER, Justice:

This is an appeal by the defendant below, State Farm Fire and Casualty Co. (State Farm), from an order of the Circuit Court of Cabell County, entered December 4, 1991, which held that the plaintiff below, Judith Starr, a guest passenger in a vehicle owned by William Cline, was entitled to recover underinsured motorist benefits pursuant to a motor vehicle insurance policy covering another vehicle owned by Mr. Cline which was not involved in the accident in which the plaintiff was injured. We conclude that the plaintiff cannot recover, and we reverse the judgment of the circuit court.

I.

On October 5, 1990, the plaintiff was a guest passenger in a 1990 Toyota Celica, owned by William Cline and driven by Sherry Cline, which was struck by a vehicle driven by Virgil Cantrell, Jr. As a result of the accident, the plaintiff was injured. It was undisputed for purposes of this appeal that Mr. Cantrell was at fault.

Mr. Cantrell's liability insurer paid the plaintiff $20,000, the limits of insurance available to her under Mr. Cantrell's liability insurance policy. The plaintiff also recovered $40,000 in underinsured motorist benefits under two automobile insurance policies she had purchased from Allstate Insurance Company (Allstate). ¹ In addition, the plaintiff received $20,000 in underinsured motorist benefits under the State Farm policy covering the Toyota in which she was a passenger.

Mr. Cline also owned a 1984 Ford Ranger which was not involved in the accident and which was covered by a separate State Farm insurance policy (the Ford policy) providing up to $50,000 in underinsured motorist benefits. The plaintiff instituted a declaratory judgment action in the Circuit Court of Cabell County asserting that she was entitled to recover underinsured motorist benefits under the Ford policy. The circuit court granted the plaintiff's motion for summary judgment and, by order entered December 4, 1991, ruled that the plaintiff was an "insured" under the Ford policy and was, therefore, entitled to underinsured benefits under that policy.

II.

Initially, we note that the parties suggest that the lower court's ruling was erroneous when considered in light of this Court's recent decision in Alexander v. State Automobile Mutual Insurance Co., 187 W.Va. 72, 415 S.E.2d 618 (1992). The plaintiff in Alexander was injured in an automobile accident while a guest passenger in a vehicle owned by one of her sisters, Mrs. Lowther, and driven by another, Mrs. Elbon. Although another car was involved in the accident, it appeared that Mrs. Elbon was at fault. The plaintiff recovered medical and bodily injury liability benefits from Mrs. Lowther's liability insurance carrier, State Automobile Mutual Insurance Company (State Auto). The plaintiff then made a demand upon State Auto for underinsured motorist benefits under the same policy.

At issue in Alexander was whether the plaintiff's injuries were caused by an "underinsured motor vehicle." The terms of Mrs. Lowther's policy excluded from the definition of underinsured motor vehicle any vehicle owned by the policyholder. We considered the nature of underinsured motorist coverage, stating:

"[U]nderinsured motorist coverage is intended to compensate parties for injuries caused by other motorists who are underinsured. As long as the insured owns both the underinsured motorist policy in question and the vehicle, then the insured's vehicle will not be considered an underinsured motor vehicle for purposes of the insured's own underinsured motorist coverage. Because an underinsured motorist policy is intended to benefit the person who bought the policy, we conclude that underinsured motorist coverage is not available to a guest passenger unless the statute or policy language specifically provides for such coverage." 187 W.Va. at 79, 415 S.E.2d at 625. (Footnote omitted; citations omitted).

After reviewing the relevant provisions of our uninsured/underinsured motorist coverage statute, W.Va.Code, 33-6-31 (1988), we concluded that the policy's exclusion was not in conflict with the statute, and we held that the plaintiff was, therefore, not entitled to coverage.

It is important to note that in Alexander, we used the term "insured" in the general sense to refer to the owner of the vehicle to which the policy applies. The focus in Alexander was on the policy language which excluded from the definition of an uninsured or underinsured vehicle the insured's own vehicle. We concluded that underinsured motorist coverage was not designed to operate where the insured vehicle created the injury for which this coverage was sought. Such injuries are covered under the liability side of the policy.

Here, the plaintiff is not attempting to recover both liability and underinsured motorist benefits from the owner of the Toyota, the vehicle in which she was a passenger at the time of the accident. It is apparently uncontested that the plaintiff was injured as a result of Mr. Cantrell's negligent operation of his motor vehicle. Mr. Cline's vehicle was not at fault. Thus, unlike Alexander, the plaintiff's injuries were not caused by the use of the motor vehicle in which she was riding. Consequently, Alexander is not controlling in this case.

III.

The principal issue in this case turns on the definition of the term "insured" in the underinsured motorist provision of the Ford policy. State Farm argues that the plaintiff is not entitled to "stack" ² the Ford underinsured motorist coverage on top of the Toyota coverage for two reasons: (1) the plaintiff does not qualify as an "insured" under the Ford policy and is, therefore, not entitled to coverage as an underinsured motorist; and (2) the language of the policy defining the term "insured" is consistent with the definition of that term contained in W.Va.Code, 33-6-31(c).

A.

We begin with a discussion of the policy language and the scope of the coverage under the uninsured and underinsured motorist provision. The Ford policy provides, in pertinent part:

"Who Is an Insured

Insured--means the person or persons covered by uninsured motor vehicle or underinsured motor vehicle coverage.

This is:

1. you;

2. your spouse;

3. any relative; and

4. any other person while occupying:

a. with the consent of you or your spouse:

(1) your car[.]"

(Emphasis in original).

The policy defines "your car" as "the car or the vehicle described on the declarations page."

It is generally held that uninsured/underinsured motorist provisions of an automobile insurance policy which separately define coverage for the owner, spouse, and any relative living in the owner's household as one group, and for other persons while occupying the covered vehicle with the consent of the owner or his or her spouse as another group, create two distinct classes of covered individuals. E.g., Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla.1971); Ohio Casualty Ins. Co. v. Stanfield, 581 S.W.2d 555 (Ky.1979); Beeny v. California State Auto. Ass'n Inter-Ins. Bureau, 104 Nev. 1, 752 P.2d 756 (1988); Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). See generally 1 A. Widiss, Uninsured & Underinsured Motorist Insurance § 4.1 (1992); 3 A. Widiss, Uninsured & Underinsured...