Trent v. Cook

• Citation: 198 W.Va. 601,482 S.E.2d 218
• Decision Date: 17 December 1996
• Docket Number: No. 23077,23077
• Court: Supreme Court of West Virginia
• Parties: Stevie Ray TRENT and Pamela E. Trent, His Wife, Plaintiffs Below, Appellees, v. Tammy L. COOK, Defendant Below, Appellee. Continental Casualty Company, Defendant Below, Appellant.

Page 218

482 S.E.2d 218

198 W.Va. 601

Stevie Ray TRENT and Pamela E. Trent, His Wife, Plaintiffs Below, Appellees, v. Tammy L. COOK, Defendant Below, Appellee.

Continental Casualty Company, Defendant Below, Appellant.

No. 23077.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 19, 1996.

Decided Dec. 17, 1996.

Syllabus by the Court

1. West Virginia Code § 29-12A-16(a) (1992) conveys broad discretion to both the West Virginia State Board of Risk and Insurance Management, as well as governmental entities, with regard to the type and amount of insurance to obtain. Consequently, when an insurer issues a custom-designed insurance policy to a governmental entity pursuant to the the Governmental Tort Claims and Insurance Reform Act, West Virginia Code §§ 29-12A-1 to -18 (1992), that entity may incorporate language absolutely limiting liability under the policy, even if such language would otherwise violate the provisions of West Virginia Code § 33-6-31(b) (1996).

2. "[T]he Supreme Court of Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those matters passed upon by the court below and fairly arising upon the portions of the record designated for appellate review." Syl. Pt. 6, in part, Parker v. Knowlton Const. Co., Inc., 158 W.Va. 314, 210 S.E.2d 918 (1975).

3. The issue of whether an insurance policy, issued to a governmental subdivision pursuant to West Virginia Code § 29-12A-16(a) (1992), is a "custom-designed" policy must be raised, developed and preserved for review at the trial court level.

Charles B. Mullins II, Pineville, for Appellees.

John W. Alderman III, Steptoe & Johnson, Charleston, for Continental Casualty Company, defending in the name of Tammy Cook.

Scott S. Segal, Mark R. Staun, John F. Dascoli, Segal and Davis, L.C., Charleston, Barry M. Hill, Gompers, McCarthy, Hill & McClure, Weirton, for Amicus Curiae, The West Virginia Trial Lawyers Association.

WORKMAN, Justice:

This case is before the Court ¹ upon the appeal ² of Continental Casualty Company ³ from the March 8, 1995, final order of the Circuit Court of Wyoming County, denying Appellant's post-trial motions to set aside a jury verdict finding Appellee Stevie Ray Trent forty percent negligent and the tortfeasor, Tammy L. Cook, sixty percent negligent. ⁴ Appellant argues that the trial court erred in denying its post-trial motion to set aside the jury verdict because: 1) Appellee was not "occupying" the insured vehicle at the time of the accident and is not an "insured" under the terms of the state's insurance policy; 2) Appellee is precluded from coverage pursuant to the workers' compensation exclusion contained in the state's insurance policy or in the alternative, the exclusion operates to reduce the amount of coverage available to him; 3) Appellee elicited no testimony at trial establishing his future medical expenses to a reasonable degree of medical certainty; and 4) Appellant is not required to reimburse Appellee for damages already awarded to him through workers' compensation payments. Based on our review of the record, we find that Appellee was not entitled to underinsured motorist coverage under the state's insurance policy and, accordingly, we reverse the lower court's decision.

I. Factual and Procedural Background

On March 24, 1992, Appellee, a deputy sheriff for the Wyoming County Sheriff's Department, responded to a one-vehicle accident on Route 97 near Saulsville, West Virginia. Appellee testified that upon his arrival at the scene, he parked his police cruiser on the side of the road and began his investigation of the accident. Almost twenty-five minutes later, while still conducting his investigation, a vehicle driven by Tammy Cook struck and injured Appellee. At the time of the impact, Appellee was standing more than thirty feet away from his cruiser, preparing the accident report. As a result of the accident, Appellee suffered a broken right leg and he was forced to undergo an amputation of his left leg.

Subsequent to the accident, Appellee filed a complaint in the Circuit Court of Wyoming County against the tortfeasor, Ms. Cook, and Appellant, the underinsurance carrier for the State of West Virginia that provided coverage for the Wyoming County Commission ("county commission"). Appellee settled with Ms. Cook prior to trial for the limits of her liability policy. The action proceeded against Appellant, who defended the action in Ms. Cook's name.

Appellant sought summary judgment on the coverage issue pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, arguing that Appellee was not an "insured" under the terms of the policy since he was not " 'occupying' a covered 'auto' or a temporary substitute for a covered 'auto' " at the time the accident occurred. Arguing that he was "using" the vehicle pursuant to that term's definition in West Virginia Code § 33-6-31(1996), Appellee filed a declaratory judgment action to resolve whether he was an insured under Appellant's underinsured insurance policy. Pursuant to an order dated April 19, 1993, the lower court, ruling on Appellee's declaratory judgment action, found that "[t]he West Virginia Underinsured Motorist Statute provides Deputy Trent was a person using the vehicle with the consent of the 'named insured[,]' " and concluded, as a matter of law, that "[t]he policy of insurance in this case is more restrictive than the statute. Under the terms of the statute, Deputy Trent was using the vehicle and therefore should be covered by the terms and benefits of underinsurance coverage." Appellant objected and excepted to this ruling.

II. Discussion

A. Policy Definition versus Statutory Requirements

The first issue we address concerns whether the trial court erroneously concluded that Appellee was insured under Appellant's policy on the basis that the term insured, as defined within the insurance policy, contravened the statutory language of West Virginia Code § 33-6-31. Appellant argues that underinsured motorist coverage is only invoked if Appellee was "occupying," as that term is defined within the policy, ⁵ a covered auto when he was hit by Ms. Cook. Appellant maintains that the facts undisputedly demonstrated that Appellee was not occupying his police cruiser at the time of the accident. Appellant further argues that the custom-designed ⁶ state insurance policy is immune from the requirements of West Virginia Code § 33-6-31. Conceding that he was not "occupying" the police cruiser at the time of the accident, Appellee advocates a liberal construction of the term "use," ⁷ as found in West Virginia Code § 33-6-31(c) and as interpreted by this Court, rather than the policy definitions of "insured" and "occupy," based on the remedial nature of the underinsured motorist statute. See State Auto. Mut. Ins. Co. v. Youler, 183 W.Va. 556, 564, 396 S.E.2d 737, 745 (1990) (stating purpose of W. Va.Code § 33-6-31 is "that the injured person be fully compensated for his or her damages, not compensated by a negligent tortfeasor, up to the limits of the uninsured or underinsured motorist coverage"); Syl. Pt. 7, Perkins v. Doe, 177 W.Va. 84, 85, 350 S.E.2d 711, 712 (1986) (holding that "[t]he uninsured motorist statute, West Virginia Code § 33-6-31 (Supp.1986), is remedial in nature and, therefore, must be construed liberally in order to effect its purpose"). Appellee maintains that the policy language is void as against public policy because it is more restrictive than the statutory language. See Syl. Pt. 2, Universal Underwriters Ins Co. v. Taylor, 185 W.Va. 606, 408 S.E.2d 358 (1991); Syl. Pt. 1, Bell v. State Farm Mut. Auto. Ins. Co., 157 W.Va. 623, 207 S.E.2d 147 (1974). ⁸

We begin by examining the pertinent policy provisions in relation to West Virginia Code § 33-6-31. The policy provides, in pertinent part, that the following individuals are considered to be insured for purposes of the policy:

1. You

2. If you are an individual, any "family member"

3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto"....

4. Anyone for damages he is entitled to recover because of "bodily injury" sustained by another "insured."

The policy proceeds to define the term "occupying" as "in, upon, getting in, on, out or off" of the covered vehicle. It is undisputed that, under the literal terms of the policy, Appellee was not "occupying" the vehicle at the time of the accident. ⁹

Since Appellee clearly was not an insured under the express policy terms, Appellee can only secure coverage under the policy if this Court determines that Appellant's policy is not a custom-designed state insurance policy immune from the requirements of West Virginia Code § 33-6-31. See Cook v. McDowell County Emergency Ambulance Serv. Auth., 191 W.Va. 256, 445 S.E.2d 197 (1994). Such a determination would result in Appellant not being entitled to incorporate a more restrictive definition of an insured into the policy than is found in the statutory definition. See id.

West Virginia Code § 33-6-31(c) defines "insured" as follows:

the term "insured" shall mean the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person, except a bailee for hire, who uses, with the consent, express or implied, of the named insured, the motor vehicle to which the policy applies or the personal representative of any of the above.

Id. (emphasis added). Although the Legislature did not define the term "uses" as it appears in the above-mentioned statute, we discussed the term "use" as it was employed in an "Intentional Acts Exclusion" of an insurance policy in Baber v. Fortner ex rel. Poe, 186 W.Va. 413, 412 S.E.2d 814 (1991). Under the terms of the policy, the incident had to "arise out of the 'ownership, maintenance or use' " of a covered vehicle for coverage to apply. Id. at 416, 412 S.E.2d at...