Travelers Property Casualty Co. of America v. Ely

KELSEY, J., dissenting.

Travelers Property Casualty Company of America appeals two decisions of the Workers’ Compensation Commission requiring Travelers to provide workers’ compensation coverage beyond the expiration of its insurance policies. Finding no statutory basis for this compulsory coverage, I respectfully dissent.

I.

This consolidated appeal includes two cases. The first involves an insurance policy issued by Travelers to Graycon, Inc. By its terms, the policy expired on July 30, 2004. In May 2004, Travelers offered the employer an opportunity to renew the policy prior to its expiration. If accepted by the employer, the renewal would have extended the policy for another year. The employer failed to renew, mistakenly thinking it could do so after the policy expired.

In September 2004, a month and a half after the policy expired, an employee (Leslie C. Ely) injured himself on the job. Travelers declined coverage, arguing that its policy had expired because the employer failed to renew it. The employee’s claim, Travelers contended, should be compensated by other statutory employers or their insurance carriers. A deputy commissioner agreed with Travelers. On review, the full commission reversed and held that Travelers failed to provide the employer and the commission notice of nonrenewal “by the insurer” as required by Code § 65.2-804(B). Travelers must pay the claim, the commission concluded.

*279The second case involves a policy issued by Travelers to Willie M. Thomas Home Improvements. By its terms, this policy expired on October 25, 2004. More than two months prior to the policy expiration, Travelers offered the employer an opportunity to renew the policy for another year of coverage. The employer failed to respond to the offer. About a month and a half after the policy expired, an employee (Mathew L. Bailey) sustained a job-related injury. Two days later, the employer asked Travelers to renew the prior policy and to provide retroactive coverage for the employee’s injury. Travelers refused, arguing that the claim should be paid by the Uninsured Employer’s Fund (“UEF”) pursuant to Code § 65.2-1203.2 A deputy commissioner ordered Travelers to cover the claim, concluding that Travelers failed to provide the employer and the commission notice of nonrenewal “by the insurer” as required by Code § 65.2-804(B). On review, the full commission affirmed on the same basis.

In both cases, the commission’s records demonstrate that the employers had filed proof-of-coverage notices with the National Council for Compensation Insurance (NCCI), with whom the commission has outsourced much of its data management duties with respect to insurance coverage. See generally Villwock v. Ins. Co. of N. Am./CIGNA, 22 Va.App. 127, 130-31, 468 S.E.2d 130, 132 (1996). The commission regularly uses NCCI’s “Proof of Coverage Policy Information System.” Squire v. Elco Concrete Co., Inc., VWC File No. 185-16-50, 1998 Va. Wrk. Comp. Lexis 4838, at *2 (April 23, 1998).3 NCCI’s proof-of-coverage records for the nonrenewed policies *280at issue specifically disclose their expiration dates. The commission, therefore, had notice of the expected expiration date of both policies.

II.

On appeal, Travelers argues that the commission misconstrued Code § 65.2-804(B) because that statute requires the insurer to notify the insured and the commission only when the policy has been “cancelled or nonrenewed by the insurer.” Id. (emphasis added). This argument presents a pure question of law, a matter of statutory interpretation we review de novo. See Mattaponi Indian Tribe v. Commonwealth, 43 Va.App. 690, 707, 601 S.E.2d 667, 675 (2004) (recognizing that “pure statutory interpretation is the prerogative of the judiciary”).

Our analysis should begin, “as always, with the language of the statute.” Meador v. Va. Birth-Related Neurological Injury Comp. Program, 44 Va.App. 149, 153-54, 604 S.E.2d 88, 90 (2004) (citation omitted). Working from the statutory text, “we strive to give that language a ‘literal construction’ unless doing so ‘would involve a manifest absurdity.’” Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va.App. 264, 276, 590 S.E.2d 631, 638 (2004) (citation omitted). By literal, we mean the words “should be given their ‘common, ordinary and accepted’ ” understanding. Meador, 44 Va.App. at 154, 604 S.E.2d at 91 (citation omitted). This textualist approach presumes the legislature “ ‘chose, with care,’ the specific words of the statute.” Kane v. Szymczak, 41 Va.App. 365, 371, 585 S.E.2d 349, 352-53 (2003) (citations omitted).

Guided by these principles, I would hold that Code § 65.2-804(B) means just what it says: An insurer must notify the employer and commission only when the policy has been cancelled or nonrenewed “by the insurer.” That did not happen here. Travelers did nothing to nonrenew either of the two policies at issue in this consolidated appeal. Just the opposite is true. Travelers timely offered the employers the opportunity to renew, but both failed to do so. The policies *281were nonrenewed solely by the actions or inactions of the employers, not the insurer.

Under generally accepted principles of insurance law, extended coverage cannot be judicially imposed on an insurer that expressly “offered a renewal but the insureds permitted the policy to expire on its own terms.” 3 Eric Mills Holmes, Appleman on Insurance § 16.5, at 321 (2d ed.1998). “The statutory notice requirement applies only to policies that are not renewed by the insurer and not those which are not renewed by the insured.” Id. (emphasis added). Notice statutes may not extend coverage when the insured knew the policy “was about to expire well before the expiration date but failed to renew the policy by paying or tendering the premium.” 2 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 29:8, at 29-14 (3d ed.1995). When an insurer offers to renew and the insured fails to take the necessary steps to accept the offer, the policy has been nonrenewed by the insured, not “by the insurer.” Axson v. A. Mortgage Co., Inc., 312 S.C. 433, 441 S.E.2d 193, 194, aff'd, 316 S.C. 253, 449 S.E.2d 491 (1994). In my opinion, this generally accepted view is the most natural reading of the by-the-insurer qualification to the notice requirement of Code § 65.2-804(B).

The commission adopted a contrary view on the premise that the phrase “by the insurer” was ambiguous. The commission resolved this ambiguity by construing the phrase “by the insurer” to apply to all nonrenewals—whether caused by the insurer or by the employer. “We believe this to be the most reasonable approach,” the commission reasoned, “because it is the insurer who performs the final act of issuing or not issuing the policy.” After all, the commission observed, “ultimately control over renewal and nonrenewal is with the insurer.”

I cannot concur with this reasoning. Renewing a policy is a bilateral act of both contracting parties. Together the insured and insurer must agree to extend the expiration date of the existing policy or to substitute in its place a new policy beginning upon the expiration of the old one. Absent a *282contrary provision in the policy, “neither party has any right to require a renewal” and “neither is bound to renew the contract.” Russ & Segalla, supra, § 29:5, at 29-8.

In contrast, a nonrenewal of a policy can be (and usually is) a wholly unilateral act by one of the two contracting parties. The failure of either party to agree dooms a renewal. The nonrenewal decision, therefore, is not within the ultimate control of the insurer any more than it is in the ultimate control of the insured. Thus, when “the insurer has clearly manifested its willingness to renew a policy but the insured failed to accept the offer in a timely manner, the policy will lapse upon the expiration of the policy period.” Holmes, supra, § 16.5, at 321. When this occurs, the policy is nonrenewed by the insured. A nonrenewal by the insured does not require, as the commission reasoned, some “final act” by the insurer. It requires no act at all by the insurer.

In defense of the commission’s interpretation, the appellees argue that a literal reading of “by the insurer” undermines the overriding statutory policy of ensuring that adequate insurance funds always remain available for employees with legitimate claims. Though the point seems to me overstated,41 see no need to engage it directly. In Virginia, “when a statutory text speaks clearly on a subject, ‘effect must be given to it regardless of what courts think of its wisdom or policy.’ ” South v. Commonwealth, 47 Va.App. 247, 251-52, 623 S.E.2d 419, 421 (2005) (quoting Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944)), remanded for resentencing, 272 Va. 1, 630 S.E.2d 318 (2006). “We can only administer the law as it is written.” Uninsured Employer’s Fund v. Wilson, 46 Va.App. 500, 506, 619 S.E.2d 476, 479 (2005) (citation omitted). “Whether it ‘may or may not be better public policy’ to do otherwise, ‘such judgments are not ours to make.’ ” Id. (citation omitted).

Along the same lines, the meaning of the statute cannot be judicially expanded “simply because it may seem to us that a *283similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used.” Franklin & Pittsylvania Ry. Co. v. Shoemaker, 156 Va. 619, 624, 159 S.E. 100, 102 (1931) (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (Holmes, J.)). For me, the “question here is not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative intent by what the statute says and not by what we think it should have said.” South, 47 Va.App. at 252, 623 S.E.2d at 421 (quoting Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406 (1963)).5

That said, I acknowledge that literalism has its limits. While undisturbed by the . mere banter of policy debates, a literal reading of a statute should not be adopted when “doing so ‘would involve a manifest absurdity.’ ” Meador, 44 Va.App. at 154, 604 S.E.2d at 91 (citation omitted). In this case, however, I see nothing absurd about the General Assembly’s decision to limit the insurer’s notification duty to nonrenewals “by the insurer.” The employer needs no notice of nonrenewals “by the employer.” Nor does the commission. Code § 65.2-804(A) requires the employer to report annually on insurance coverage. The required filing specifically alerts the commission to the policy expiration date. Unlike a cancellation, which can occur any time, a nonrenewal takes place at the end of the policy term. An employer’s failure to renew a policy, therefore, is something the commission could know from NCCI records the day after the previously announced expiration of the earlier year’s policy.

It is true, as the commission points out, that an employer might misread the insurer’s initial notice offering to renew the *284policy and mistakenly believe it need not respond to the offer for the renewal to take place. Under such circumstances, a final notice of nonrenewal by the insurer to the employer may prompt the employer to discover its mistake and cause it to correct the problem before a lapse in coverage occurs.

This hypothesis, however, falters even under the commission’s interpretation of Code § 65.2-804(B). As was true for both Travelers policies at issue here, an insurer’s offer to renew can usually be accepted by the employer at any time prior to the expiration of the policy term. The insurer would not know whether the offer has been accepted until the last day. A subsection (B) notice of nonrenewal must be made 80 days prior to the expiration of the policy term. The only way an insurer could file the notice on time—while still giving the employer its right to accept the renewal offer up until the last day—is to do something the statute nowhere contemplates, much less permits: to notify the commission and employer of a potential nonrenewal of the policy, which may or may not become an actual nonrenewal depending on what happens over the course of the last month of the policy term.

III.

Because Travelers did not violate Code § 65.2-804(B), I believe the commission erred in ordering the two Travelers policies in this case to remain in effect past their expiration dates for purposes of providing coverage for the two disputed injuries. For these reasons, I respectfully dissent.

. Funded by "taxes levied upon insurers," Uninsured Employer’s Fund v. Flanary, 27 Va.App. 201, 206, 497 S.E.2d 912, 914 (1998), the UEF provides compensation "to claimants for benefits awarded against an employer which has breached its duty 'to secure compensation insurance.’ ” Uninsured Employer's Fund v. Mounts, 255 Va. 254, 258, 497 S.E.2d 464, 466 (1998) (citation omitted).

. See also Celis v. Manganaro Corp. Md., VWC File No. 197-01-57, 2000 WL 358266 (Va.Wrk.Comp. Feb. 18, 2000) (reviewing NCCI records to identify insurance carrier); In Re: PRC, Inc., VWC File No. E020357490, 2003 WL 21811823 (Va.Wrk.Comp. July 3, 2003) (using the "Commission’s NCCI records" to establish employer was insured).

. See supra, note 2, at 9.

. We made a similar point in Pa. Mfrs. Ass’n v. Waldron, 16 Va.App. 991, 995-96, 434 S.E.2d 690, 692-93 (1993), holding that tibe unambiguous language in Code § 65.2-804(B) governing cancellations “by the insurer” did not apply to cancellations by the employer. The commission’s "standard policy” of equating the two, for purposes of enhancing its administrative oversight role, could not supersede the plain meaning of the statute. Id. at 996 & n. 4, 434 S.E.2d at 692-93 & n. 4.