Progressive Max Insurance Company v. Christine Brehm and Amber R. Hess

FILED
April 14, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

Nos. 20-0850, 20-0851 – Progressive Max Insurance Company v. Brehm and Hess.

WOOTON, J., concurring:

I fully concur in the Court’s opinion concluding that the plain language of

West Virginia Code § 33-6-29(b) and § 33-6-31(c) do not extend underinsured motorists

(“UIM”) coverage to guest passengers in rental vehicles. I further concur in the Court’s

conclusion that Respondents Christine Brehm and Amber Hess (“Respondents”) are not

entitled to recover under the plain language of Susan Bindernagel’s insurance policy with

Petitioner Progressive Max Insurance Co. I write separately to address what some may

perceive as an apparent inequity in the law which has been highlighted by this opinion.

As the majority thoroughly explains, Respondents are not “insureds” under

the plain terms of Ms. Bindernagel’s personal automobile insurance policy such that they

could receive the benefit of her UIM coverage. This is so because Ms. Bindernagel’s

personal automobile insurance policy only extended UIM coverage to guest passengers in

a “Covered Auto” as that term was defined in the policy. Under the policy, three vehicles

meet the definition of “Covered Auto”: (1) the vehicle listed on the policy (Ms.

Bindernagel’s 2011 Subaru); (2) an “additional auto,” meaning a vehicle Ms. Bindernagel

purchases and adds to the policy; or (3) a “replacement auto,” meaning a vehicle that

permanently replaces the vehicle listed on the policy. Under the plain language of the

policy, a rental vehicle can never fall into one of these categories, and counsel for Petitioner

conceded as much at oral argument.

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 Accordingly, under the language of the policy, Respondents would have been

able to recover if they had been injured in a car Ms. Bindernagel owned—including one

she purchased as an additional car or one that permanently replaced her listed vehicle.

However, assume hypothetically we altered the facts of the case at bar. Imagine, for the

sake of argument, that instead of simply operating any rental vehicle, Ms. Bindernagel’s

2011 Subaru (the listed vehicle) had been damaged such that Progressive furnished her

with a rental vehicle to drive while repairs were being made to her listed vehicle. If the

rental vehicle provided by Progressive was then involved in a collision resulting in the

same injuries as the case at bar, would Respondents be permitted to recover under Ms.

Bindernagel’s UIM policy? The answer is still no because, though the rental in this

hypothetical is replacing the 2011 Subaru, it is not doing so permanently, nor could the

rental in this hypothetical be an additional auto under the policy because Ms. Bindernagel

has not purchased it.

Therefore, because the plain terms of Ms. Bindernagel’s policy do not extend

UIM coverage to guest passengers like Respondents in rental vehicles, they could only

receive the benefit of that coverage if it was statutorily mandated. However, as explained

thoroughly in the Court’s opinion, West Virginia Code § 33-6-29(b) and § 33-6-31(c) do

not operate to extend UIM coverage to guest passengers in rental vehicles. We are bound

to reach this result under the law because the statutes make no mention of extending such

coverage, and because the canons of statutory construction do not permit us to “read into a

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statute that which it does not say.” Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W. Va. 355,

738 S.E.2d 21 (2013).

To the extent this may seem inequitable—or some may say fundamentally

unfair—we have long adhered to the pronouncement that

[t]his Court does not sit as a superlegislature,
commissioned to pass upon the political, social, economic or
scientific merits of statutes pertaining to proper subjects of
legislation. It is the duty of the Legislature to consider facts,
establish policy, and embody that policy in legislation. It is the
duty of this Court to enforce legislation unless it runs afoul of
the State or Federal Constitutions.

Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W. Va. 724, 679 S.E.2d 323 (2009); accord

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 692, 408 S.E.2d 634, 642 (1991)

(“[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of

legislative policy determinations made in areas that neither affect fundamental rights nor

proceed along suspect lines.”); Syl. Pt. 1, in part, State ex rel. Appalachian Power Co. v.

Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965) (“Courts are not concerned with questions

relating to legislative policy. The general powers of the legislature, within constitutional

limits, are almost plenary.”). As such, the remedy for this perceived inequity lies not with

this Court, but with the West Virginia Legislature.

For the foregoing reasons, I respectfully concur.

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