IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
__________
May 31, 2017
released at 3:00 p.m.
No. 16-0750 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
__________ OF WEST VIRGINIA
GOVERNMENT EMPLOYEES INSURANCE COMPANY,
Plaintiff below, Petitioner
v.
STEVE SAYRE, as Administrator of the Estate of Robert Sayre,
Defendant below, Respondent
______________________________________________________
Appeal from the Circuit Court of Jackson County
Honorable David W. Nibert
Civil Action No. 10-C-144
REVERSED AND REMANDED
_______________________________________________________
Submitted: May 23, 2017
Filed: May 31, 2017
Don C.A. Parker, Esq. George B. Morrone III, Esq.
Glen A. Murphy, Esq. Mundy & Associates
Spilman Thomas & Battle, PLLC Huntington, West Virginia
Counsel for Petitioner
Carrie L. Newton, Esq.
Ripley, West Virginia
Counsel for Respondent
CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “West Virginia Code § 33-6-31 (1992) does not forbid the inclusion and
application of an anti-stacking provision in an automobile insurance policy where a single
insurance policy is issued by a single insurer and contains an underinsured endorsement even
though the policy covers two or more vehicles. Under the terms of such a policy, the insured
is not entitled to stack the coverages of the multiple vehicles and may only recover up to the
policy limits set forth in the single policy endorsement.” Syl. Pt. 5, Russell v. State Auto.
Mut. Ins. Co., 188 W.Va. 81, 422 S.E.2d 803 (1992).
2. An insured is not entitled to stack underinsured motorist coverage for every
vehicle covered by a single policy where the insured received a multi-car premium discount
and the policy contains language expressly limiting the insurer’s liability regardless of the
number of vehicles insured under the policy.
LOUGHRY, Chief Justice:
The petitioner, Government Employees Insurance Company (“GEICO”),
appeals from the July 13, 2016, order of the Circuit Court of Jackson County granting
summary judgment to the respondent, Steve Sayre,1 in connection with determining the
amount of underinsured motorist insurance (“UIM”) that is owed by GEICO to Mr. Sayre.
Finding an ambiguity in the GEICO policy language, the trial court ruled that, because there
were two underinsured motorists involved in this case, the UIM coverage was triggered
separately by each of those motorists. GEICO argues that the circuit court erred, both in its
finding of ambiguity, and in improperly applying the policy language to require GEICO,
contrary to policy limits, to pay double the amount of UIM coverage purchased by the
respondent. Upon our careful review of this matter, we conclude that the circuit court erred
and, accordingly, reverse.
I. Factual and Procedural Background
The decedent, Robert Keith Sayre, died from injuries sustained in a car
accident on August 21, 2008, in Jackson County. At the time of the accident, the decedent
1
Mr. Sayre filed the initial wrongful death suit individually and as administrator of
the estate of his son, Robert Keith Sayre; in this declaratory judgment action Mr. Sayre is
named solely as the estate administrator.
1
was a guest passenger in a vehicle operated by Richard Ryan Smith.2 A second vehicle was
involved in the accident, which was operated by Kurtis Barnett. The accident was
determined to be proximately caused by the independent negligence of both drivers of the
two vehicles. There is no dispute based on the damages involved and the availability of
insurance that each of the vehicles was driven by an underinsured motorist. It is further
undisputed that the decedent was covered by separate automobile policies–one issued by
GEICO and one by 21st Century.3
GEICO filed the underlying declaratory judgment action on September 16,
2010, to resolve the issue of UIM coverage.4 Both GEICO and Mr. Sayre filed motions for
summary judgment on the issue of whether the respondent was entitled to an additional
$20,000 of UIM insurance coverage rather than the $20,000 policy limits that GEICO had
already tendered.5 By its ruling issued on July 13, 2016, the circuit court granted summary
2
Mr. Smith also died as a result of the accident.
3
Each of the policies included endorsements providing for UIM coverage. Each of
the two policies insured two vehicles owned by Mr. Sayre and both of the polices provided
a multi-car discount with regard to the premium.
4
On August 20, 2010, Mr. Sayre filed a wrongful death action against Kurtis Barnett
and his father, as well as James Smith and Theresa K. Smith, the parents of Richard Smith.
Mr. Sayre named GEICO as a defendant in that action and sought relief from it for bad faith
and unfair trade practices.
5
The UIM benefits under the GEICO policy were $20,000 per “each person” and
$40,000 per “each occurrence.”
2
judgment to Mr. Sayre, ordering GEICO to pay an additional $20,000 in UIM coverage
based on the existence of two underinsured motorists involved in the accident.6 It is from
this ruling that GEICO seeks relief.
II. Standard of Review
Our review of the circuit court’s decision to grant summary judgment is de
novo. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). As we
recognized in Payne v. Weston, 195 W.Va. 502, 466 S.E.2d 161 (1995), “[t]he interpretation
of an insurance contract, including the question of whether the contract is ambiguous, is a
legal determination which, like the court’s summary judgment, is reviewed de novo on
appeal.” Id. at 506-07, 466 S.E.2d at 165-66. Mindful of this governing standard, we
proceed to determine whether the circuit court erred in its determination that additional UIM
insurance coverage was available in this case.
III. Discussion
Because this case revolves around the interpretation of the UIM endorsement
language, our analysis is necessarily controlled by the policy language. See Syllabus, Keffer
v. Prudential Ins. Co. of America, 153 W.Va. 813, 172 S.E.2d 714 (1970) (“Where the
6
The drivers of each of the two vehicles involved in the accident are the underinsured
motorists.
3
provisions of an insurance policy contract are clear and unambiguous they are not subject
to judicial construction or interpretation, but full effect will be given to the plain meaning
intended.”). The policy amendment providing for UIM extends coverage for “bodily injury
and property damage which an insured is legally entitled to recover from the owner or
operator of an underinsured motor vehicle.” Such coverage comes into play “only after the
limits of liability under any applicable liability policies or bonds have been exhausted by
payment of judgments or settlements.” The dispute at issue concerns the meaning of the
section of the Underinsured Motorists Amendment that sets forth “LIMITS OF
LIABILITY.” That section provides, in pertinent part, the following conditions:
Regardless of the number of autos or trailers to which this
policy applies:
1. The Underinsured Motorists Bodily Injury Liability limit for
“each person” less any liability coverage available to the
insured from the tortfeasor or tortfeasors is the maximum we
will pay for damages for bodily injury, including all derivative
claims and any claim for damages for care and loss of services,
to one person in one accident;
...
4. When coverage is afforded to two or more autos, the limits
of liability shall apply separately to each auto as stated in the
Declarations.
GEICO takes the position that condition number one makes patently clear that
the underinsured per person policy limits of $20,000 “is the maximum we will pay for
4
damages for bodily injury.” Mr. Sayre looks instead to condition number four, which states
that “the limits of liability shall apply separately to each auto.” He maintains that, because
there were two underinsured motorists involved in the accident at the center of this dispute,
the $20,000 in UIM coverage applies to each of those motorists for an aggregate amount of
$40,000 in UIM benefits. We examine the merits of each of these contentions.
In making its argument, GEICO stresses that the policy at issue unambiguously
defined its provision of a $20,000 “each person” limit of liability for UIM benefits
“[r]egardless of the number of autos . . . to which this policy applies.” Because the decedent
was the only insured under the policy involved in the subject accident, GEICO insists the
“each person” policy limit unequivocally governs the issue of UIM coverage. Moreover,
GEICO maintains that the circuit court erred by framing its ruling on a finding that the
subject policy does not “specifically limit liability based upon the number of underinsured
motorists involved in a crash.” As GEICO explains, the circuit court’s analysis both
misapprehends the meaning of the policy language in dispute and contravenes well-
established tenets of insurance law that permit anti-stacking provisions where multiple cars
are insured under one policy with a discernable premium discount.
5
Beginning with this Court’s decision in Shamblin v. Nationwide Mutual
Insurance Company, 175 W.Va. 337, 332 S.E.2d 639 (1985), the validity of anti-stacking
language in an insurance policy has been settled:
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.”
Id. at 339, 332 S.E.2d at 640, syl. pt. 5. In Russell v. State Automobile Mutual Insurance
Company, 188 W.Va. 81, 422 S.E.2d 803 (1992), we resolved the related and specifically
apposite issue of whether a policy providing for underinsurance coverage for two separate
vehicles that contained anti-stacking language was enforceable. As we made resoundingly
clear:
West Virginia Code § 33-6-31 (1992) does not forbid the
inclusion and application of an anti-stacking provision in an
automobile insurance policy where a single insurance policy is
issued by a single insurer and contains an underinsured
endorsement even though the policy covers two or more
vehicles. Under the terms of such a policy, the insured is not
entitled to stack the coverages of the multiple vehicles and may
only recover up to the policy limits set forth in the single policy
endorsement.
Russell, 188 W.Va. at 81-82, 422 S.E.2d at 803-04, syl. pt. 5 (emphasis supplied).
6
Explaining the rationale underlying our ruling in Russell, we stated:
[I]t is easily discernible that the reason a single policy was
issued rather than multiple policies was that the premium for
underinsured motorist coverage on the second vehicle was set
at a lesser rate than the premium for the first vehicle.
Furthermore, because of the multi-car discount given, it is
obvious that the insured appellee bargained for only one policy
and only one underinsured motorist coverage endorsement.
This multi-car discount is of particular import since it signifies
that the respondent was receiving a reduced rate on his
automobile insurance in return for taking out only one policy
instead of two. Meanwhile, the insurer was assuming an
increased risk of injury which could occur while the insured
was occupying the second vehicle as consideration for the
second premium. The insured was therefore receiving the
benefit of that which he bargained for and should not receive
more.
188 W.Va. at 85, 422 S.E.2d at 807. We later clarified that the validity of anti-stacking
language applicable to UIM coverage was not dependent on the provision of a specific
multi-vehicle discount for that particular type of coverage, as had been the case in Russell.
See Syl. Pt. 4, in part, Miller v. Lemon, 194 W.Va. 129, 459 S.E.2d 406 (1995) (“Anti
stacking language in an automobile insurance policy is valid and enforceable as to uninsured
and underinsured motorist coverage where the insured purchases a single insurance policy
to cover two or more vehicles and receives a multi-car discount on the total policy
premium.”); accord Marvin v. Lavender, 194 W.Va. 319, 322, 460 S.E.2d 454, 457 (1995)
(holding that Russell decision does not make validity of anti-stacking language contingent
7
upon specific multi-vehicle discount for UIM coverage). There is no dispute that the
GEICO policy purchased by Mr. Sayre contained a multi-car premium discount.
This Court considered an issue analogous to the issue at hand when addressing
the insured’s argument in Payne that he was entitled to recover twice the policy limits
because two vehicles were covered by the subject policy. In examining this contention, we
looked to the limiting language that “plainly and unambiguously” set forth “the ‘each
person’ policy coverage limit” as well as language verbatim to condition four in GEICO’s
policy providing that the terms of the policy apply separately to each vehicle.7 195 W.Va.
at 507, 466 S.E.2d at 166. Emphasizing the singular coverage trigger of the accident (an
“occurrence”) and the express policy language limiting the insured’s liability, we rejected
the insured’s contention that the policy limits of an insurance policy should be multiplied
by the number of vehicles covered by that policy. Id. at 511-12, 466 S.E.2d at 170-71; see
also Shamblin, 175 W.Va. at 343, 332 S.E.2d at 644 (concluding that negligent acts of
multiple tortfeasors caused just one occurrence which in turn invoked just one policy limit
of liability).
7
The significance of this “separate application” language, as we explained in Payne,
is “merely [to] assure[] the applicability of the policy to whichever car is involved in an
accident, or to all the cars, and [it] does no more.” 195 W.Va. at 509 n.8, 466 S.E.2d at 168
n.8. (internal citation omitted).
8
While Payne involved an attempt to stack liability coverage based on the
number of vehicles insured under a multi-car policy, we specifically addressed whether UIM
coverage could be stacked based on the number of cars insured in Linkinoggor v.
Nationwide Mutual Insurance Company, 200 W.Va. 265, 489 S.E.2d 19 (1997). Finding
the limiting language that stated “[t]he insuring of more than one person or vehicle under
this policy does not increase our Underinsured Motorists payment limits” to be unambiguous
in meaning, we rejected the insured’s attempt to stack UIM coverage. Id. at 269, 489 S.E.2d
at 23.
Notwithstanding the similar limiting language in the GEICO policy–language
that “cannot be subject to divergent interpretations”8– the trial court focused its analysis on
the absence of language which “limit[ed] liability based upon the number of underinsured
motorists involved in a crash.” This analysis, as well as the trial court’s finding of ambiguity
“with respect to the various conditions under which UIM coverage is limited” is misguided
and devoid of merit. Of critical import is the language prominently set forth in the
introductory language to the Limits on Liability of the UIM endorsement that applies to each
condition–“regardless of the number of vehicles subject to this policy”–which is then
followed by the unmistakable limiting of the amount of UIM liability to the UIM “per
person” limit of $20,000 as the “maximum we will pay for bodily injury.” This language
8
Payne, 195 W.Va. at 509, 466 S.E.2d at 168.
9
states in no uncertain terms that the “per person” limit of UIM coverage is the maximum
amount of UIM coverage available in this circumstance.9 Contrary to the circuit court’s
reasoning, the absence of language directly linking the limits of UIM coverage to the
number of underinsured tortfeasors has no stultifying effect on the unambiguous limiting
language contained in the UIM amendment.
While the existence of an underinsured motorist is what triggers the payment
provisions of UIM coverage, the existence of multiple underinsured motorists does not
operate, as the circuit court ruled, to “expand[] UIM coverage where there is more than one
insured vehicle.” This is because the amount of UIM coverage is not correlatively linked
to the number of underinsured motorists any more than the amount of liability coverage is
linked to the number of tortfeasors. See Shamblin, 175 W.Va. at 343, 332 S.E.2d at 644
(recognizing that “two antecedent negligent acts do not constitute two ‘occurrences’”). The
only thing that could increase the amount of UIM coverage, as in fact occurred in this case,
is the existence of a second insurance policy providing for UIM.10 See Payne, 195 W.Va.
at 511, 466 S.E.2d at 170 (stating that whereas “liability insurance coverage is triggered only
when the vehicle involved in the accident is covered under the policy, . . . stacking is
9
Had two insureds been involved in that accident, the decedent and one of his insured
family members, then the “per occurrence” UIM limit of $40,000 would have applied.
10
Mr. Sayre was awarded $100,000 in UIM benefits under the 21st Century policy
because that insurer was unable to demonstrate it had tendered a “reasonably commercial
offer of underinsured motorist coverage” to him. See W.Va. Code § 33-6-31d(b) (2011).
10
triggered only when the insured is covered simultaneously by two or more policies providing
uninsured or underinsured coverage”).
In viewing condition number four, the “separate application” language, as a
mechanism by which to multiply the amount of UIM coverage by the number of vehicles
insured, the circuit court and the respondent have misconstrued the meaning of this
language. In providing that the policy limits apply separately to each insured vehicle,
GEICO clarified, in customary language, that for each vehicle insured there is a total amount
of insurance available upon a policy occurrence or trigger. For example, if both of Mr.
Sayre’s vehicles were contemporaneously involved in an accident, each of them would
separately be subject to the $20,000/$40,000 per person/per occurrence amount of liability.
The second vehicle would not be left uncovered by virtue of the policy limits having been
met by the accident involving the first insured vehicle. More importantly, however, because
neither of the vehicles involved in the subject case were the insured’s vehicles, condition
number four is wholly inapplicable to this case. See supra note 7. Thus, the circuit court’s
reliance on this policy language as a basis for doubling the amount of UIM coverage in this
case was contrary to both the policy language and to our law authorizing the use of anti-
stacking provisions in insurance policies. See Shamblin, 175 W.Va. at 344, 332 S.E.2d at
646 (recognizing validity of anti-stacking insurance policy language limiting liability
regardless of the number of vehicles to which this policy applies).
11
The trial court reasoned that there was nothing in the GEICO policy “which
prevents each of the two underinsured motorists from activating a per person limit on
separate insured motor vehicles.” In suggesting that each underinsured motorist involved
in an accident separately triggers the availability of UIM insurance under one policy, the
circuit court wrongly sought to link each underinsured motorist to a specific insured vehicle.
As discussed above, while the right to UIM coverage necessarily requires the existence of
an underinsured motorist, the provision of UIM coverage is not connected to an insured’s
vehicle; instead, the coverage is linked to the exhaustion of the “limits of liability under any
applicable liability policies.” In seeking to connect separate policy limits for each insured
vehicle with each underinsured motorist, the circuit court misapprehends the nature of UIM.
Rather than springing into existence as a result of the matching of an underinsured motorist
with an insured’s vehicle, the coverage is not dependent on the number of insured vehicles.
As to the circuit court’s insistence that no policy language prevented it from ruling that an
additional $20,000 of UIM coverage was available, we need only refer to condition number
one, which expressly limits the amount of UIM coverage to the maximum “per person”
amount of UIM coverage–$20,000.
The circuit court erred in faulting GEICO for not including an express
limitation of its UIM liability based on the number of tortfeasors. This Court has made clear
what constitutes effective limiting language and the language included in the GEICO policy
12
is consistent with prior cases in which we have upheld similar limiting language for anti-
stacking purposes. See Linkinoggor, 200 W.Va. at 269, 489 S.E.2d at 23, Shamblin, 175
W.Va. at 344, 332 S.E.2d at 646. The circuit court, in awarding the respondent an additional
$20,000 of UIM coverage, tortured the language of the policy and granted Mr. Sayre
benefits for which he had neither contracted or paid. In choosing to purchase a singular
insurance policy from GEICO to insure his two vehicles, Mr. Sayre purchased just one UIM
amendment to be added to his policy. He did not purchase two UIM amendments with two
separate sets of liability limits from GEICO. Thus, when the circuit court doubled his UIM
coverage from the $20,000 “per person” limit that he paid for, it improperly awarded him
$20,000 more UIM coverage than he had purchased.
As this Court made clear in Russell, an insured, such as Mr. Sayre, who
purchases a multi-car insurance policy that contains enforceable anti-stacking language is
only entitled to recover up to the policy limits set forth in the single policy endorsement. See
Russell, 188 W.Va. at 81-82, 422 S.E.2d at 803-04, syl. pt. 5. Accordingly, we hold that an
insured is not entitled to stack underinsured motorist coverage for every vehicle covered by
a single policy where the insured received a multi-car premium discount and the policy
contains language expressly limiting the insurer’s liability regardless of the number of
vehicles insured under the policy.
13
IV. Conclusion
Based on the foregoing, the July 13, 2016, decision of the Circuit Court of
Jackson County is reversed, and this matter is remanded for entry of an order granting
summary judgment to GEICO on the issue of additional UIM coverage.
Reversed and remanded.
14