Trisvan v. Agway Insurance Company
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1 2 3 4 5 6 7 8 9 10 11 12 13 Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and Kinser, JJ., and Poff, Senior Justice BERNARD J. TRISVAN, JR. v. Record No. 962600 AGWAY INSURANCE COMPANY OPINION BY JUSTICE ELIZABETH B. LACY October 31, 1997 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge In this appeal, we construe Code § 38.2-2206 to determine 14 whether, in a single vehicle accident, the uninsured/ 15 underinsured motorist (UM/UIM) endorsement of a tortfeasor's 16 automobile liability insurance policy is to be considered when 17 determining the extent to which the tortfeasor's motor vehicle is 18 underinsured. 19 The facts are not in dispute. On April 9, 1994, Bernard J. 20 Trisvan, Jr., was a passenger in a car driven by Marcus Wilson 21 Smith. 22 resulting in damages exceeding $125,000. 23 insured by Integon Indemnity Corporation (Integon), with policy 24 limits of $25,000 per person for bodily injury liability and 25 $25,000 per person UM/UIM coverage. 26 family automobile policy issued to his father by Agway Insurance 27 Company (Agway) with a limit of $100,000 for UM/UIM coverage. 28 Trisvan filed a personal injury action against Smith and The car overturned, and Trisvan suffered injuries Smith's vehicle was Trisvan was insured under a 29 served Agway as his underinsurance carrier. In settlement of the 30 personal injury action, Integon paid Trisvan the $25,000 31 liability limit under Smith's policy. 32 Trisvan $75,000 and filed a declaratory judgment action seeking a 33 ruling that $75,000 was the total amount it owed Trisvan under Agway then tendered 1 Trisvan's UM/UIM policy. 2 counterclaim, asserted that the total amount of available UM/UIM 3 coverage was $125,000 and, therefore, Agway was liable for 4 $100,000 rather than $75,000. 5 for summary judgment, concluded that Smith's vehicle was 6 underinsured by $75,000, not $100,000, and that Trisvan was 7 therefore only entitled to $75,000 from Agway. 8 appeal. 9 Trisvan, in his grounds of defense and The trial court, on cross motions We awarded this In this case, we are not concerned with construing the terms 10 of an insurance policy to determine whether an applicant is 11 entitled to recovery. 12 under the terms of the UM/UIM endorsement in Smith's policy and 13 counsel for Trisvan stated at oral argument that he could not 14 recover under that portion of the policy because of the policy 15 limits. 16 portion of § 38.2-2206, regarding the method for calculating the 17 amount by which a vehicle is underinsured. 18 Trisvan did not seek recovery from Integon The sole question here requires interpretation of a Since 1982, § 38.2-2206 has required that automobile 19 liability insurance policies issued in Virginia include an 20 endorsement which obligates the insurer to pay the insured for 21 damages caused by the operation or use of an underinsured motor 22 vehicle. 23 24 25 26 27 28 vehicle is considered underinsured: when, and to the extent that, the total amount of bodily injury and property damage coverage applicable to the operation or use of the motor vehicle and available for payment for such bodily injury or property damage, . . . is less than the total amount of Subsection (B) of that section provides that a motor 2 1 2 3 uninsured motorist coverage afforded any person injured as a result of the operation or use of the vehicle. 4 Trisvan asserts that, in construing this provision, the 5 legislature's use of the word "total" commands that even in a 6 single car accident the driver's UM/UIM coverage always be 7 stacked onto other UM/UIM coverage. 8 purpose of the 1982 amendments to § 38.2-2206 was to "increase 9 the total protection afforded to insurance claimants injured by According to Trisvan, the 10 negligent motorists. 11 234 Va. 573, 363 S.E.2d 703 (1988)." 12 the General Assembly must have intended that, in calculating the 13 extent to which a vehicle is underinsured, a driver's UM/UIM 14 insurance would be considered to be "afforded" to his passengers 15 even if the driver is the sole tortfeasor. 16 See Nationwide Mutual Insurance v. Scott, Therefore, Trisvan reasons, We disagree. The increased insurance protection for injured claimants, to 17 which Trisvan refers, was not an arbitrary expansion of recovery 18 options. 19 specific anomaly which had arisen following the adoption of 20 mandatory uninsured motorist endorsements in automobile liability 21 insurance policies. 22 an uninsured motorist could realize greater financial protection 23 than if injured by an insured motorist, where the injured party 24 had elected uninsured motorist coverage in an amount greater than 25 the liability limits of the insured tortfeasor. 26 76, 363 S.E.2d at 704. 27 underinsurance endorsement corrected this anomaly by allowing a The 1982 amendments were enacted in response to a As explained in Scott, a person injured by 234 Va. at 575- The General Assembly in mandating the 3 1 claimant to access the "over-insurance" in his UM/UIM 2 endorsement, even if the tortfeasor was insured. 3 legislation was not enacted to expand protection to injured 4 parties generally. 5 This Trisvan's construction of § 38.2-2206(B), requiring the 6 UM/UIM endorsement applicable to the tortfeasor's motor vehicle 7 to be stacked onto other available UM/UIM coverage, is also at 8 odds with other portions of § 38.2-2206. 9 section states that the underinsurance endorsement must Subsection (A) of that 10 "obligate the insurer to make payment for bodily injury or 11 property damage caused by the operation or use of an underinsured 12 motor vehicle." 13 motor vehicle" contemplates the existence of two motor vehicles, 14 not the single vehicle suggested by Trisvan, when read in the 15 context of the entire subsection. 16 the amount of UM/UIM coverage can either be equal to or less than 17 the amount of the liability coverage. 18 exceed the amount of the liability coverage. 19 comparing the amounts of liability and UM/UIM coverage in the 20 tortfeasor's policy applicable to his motor vehicle, that vehicle 21 could not be "an underinsured motor vehicle." 22 23 The reference to damage caused by "an uninsured Subsection (A) provides that It may not, in any case, Thus, when 1 The provisions of subsection (G) of § 38.2-2206 provide another example of the General Assembly's intentions regarding 1 Compare Nationwide Mut. Ins. Co. v. Hill, 247 Va. 78, 439 S.E.2d 335 (1994)(UM/UIM recovery allowed where two vehicles involved). 4 1 the use of UM/UIM coverage. 2 right of subrogation for the UM/UIM payment against the person 3 causing the injury. 4 would have a subrogation right against its insured, the negligent 5 driver. 6 result when it sought to eliminate the anomaly discussed above 7 and allowed an insured to access its UM/UIM insurance coverage 8 when injured by an underinsured motor vehicle. 9 That section gives the insurer a Applying Trisvan's rationale, the insurer We do not believe the General Assembly intended such a Finally, our interpretation of § 38.2-2206(B) is consistent 10 with the views of other courts in this regard. Policy provisions 11 prohibiting recovery under both the liability and UM/UIM portions 12 in a single vehicle accident have been upheld on both statutory 13 and public policy grounds. 14 Streicher, 506 So.2d 92 (Fla. Dist. Ct. App. 1987), review 15 denied, 515 So.2d 231 (Fla. 1987); Myers v. State Farm Mut. Auto. 16 Ins. Co., 336 N.W.2d 288 (Minn. 1983); Millers Cas. Ins. Co. of 17 Texas v. Briggs, 665 P.2d 891 (Wash. 1983). See, e.g., Fidelity & Cas. Co. v. 18 For these reasons, we hold that in applying § 38.2-2206(B), 19 a passenger injured in a single vehicle accident is not entitled 20 to include the UM/UIM coverage contained in the tortfeasor's 21 automobile liability insurance policy when determining the extent 22 to which the tortfeasor's vehicle was underinsured. 23 we will affirm the judgment of the trial court holding that 24 Agway's total liability to Trisvan is $75,000. 25 Accordingly, Affirmed. 5 1 2 JUSTICE COMPTON, with whom JUSTICE KINSER joins, concurring. I agree with the result of this appeal. However, I cannot 3 subscribe to the rationale employed by the majority to reach the 4 result. 5 In deciding this case, one must be careful to recognize the 6 distinctions among bodily injury liability insurance coverage, 7 uninsured motorist coverage for bodily injury, and underinsurance 8 motorist coverage for bodily injury. 9 On April 9, 1994, Trisvan, the claimant, was a passenger in 10 a motor vehicle operated by Smith, the tortfeasor. 11 left the road because of the alleged negligence of the tortfeasor 12 and overturned injuring the claimant. 13 involved in the accident. 14 The vehicle No other vehicle was At the time, the vehicle operated by the tortfeasor was 15 insured by Integon Indemnity Corporation. 16 injury liability limits of $25,000 for each person injured and a 17 like amount of uninsured and underinsured motorist coverage for 18 bodily injury. 19 applicable financial responsibility statute. 20 21 22 The policy had bodily Those were the minimum limits required by the Code § 46.2-472(3). Thus, the tortfeasor's vehicle was not an uninsured motor vehicle. The claimant qualified as an insured under a "Family 23 Automobile Policy" issued to his parents by Agway Insurance 24 Company. 25 for uninsured motorist coverage for bodily injury and an As relevant here, that policy contained an endorsement 6 1 endorsement for underinsured motorist coverage for bodily injury 2 with a single limit of $100,000 for each person. 3 The claimant's injuries resulted in damages exceeding 4 $125,000. 5 under its bodily injury liability coverage. 6 claimant $75,000 under its uninsured/underinsured motorist 7 coverage for bodily injury, claiming that was the full sum it 8 owed. 9 Thus, Integon paid the claimant the limits of $25,000 Agway paid the The claimant contends he is entitled to collect a total of 10 $100,000 from Agway. This declaratory judgment proceeding 11 ensued, and was decided in favor of Agway on cross motions for 12 summary judgment. 13 The controversy must be resolved by determining the amount 14 that the claimant's vehicle was underinsured under Code § 38.2- 15 2206(B). 16 underinsured "when, and to the extent that, the total amount of 17 bodily injury . . . coverage applicable to the operation or use 18 of the motor vehicle . . . is less than the total amount of 19 uninsured motorist coverage afforded any person injured as a 20 result of the operation or use of the vehicle." 21 According to the statute, a motor vehicle is Here, the tortfeasor's vehicle was an insured motor vehicle, 22 not an uninsured motor vehicle under the Integon policy. 23 the uninsured motorist coverage for the tortfeasor's vehicle was 24 not coverage "afforded" the claimant. 25 $25,000 Integon uninsured motorist limit may not be added when 7 Thus, In other words, the 1 computing "the total amount" of "coverage" referred to in the 2 statute to determine the extent to which the claimant's vehicle 3 was underinsured. 4 Therefore, because the tortfeasor was insured, there is 5 $75,000 underinsured motorist coverage available to the claimant. 6 Combining Integon's payment of its liability limits of $25,000 7 with Agway's payment of $75,000 means that the claimant has 8 received a sum equal to his uninsured motorist limit of $100,000. 9 A contrary ruling, viz., that a tortfeasor's uninsured motorist 10 coverage is always applicable when determining the amount of 11 underinsured motorist coverage available to an injured claimant, 12 would render meaningless the distinction in coverage available 13 under the uninsured or underinsured provisions of a policy or the 14 statute. 15 tortfeasor's vehicle is uninsured in order to be able to use 16 Integon's uninsured motorist coverage when computing available 17 underinsured motorist coverage. 18 In sum, the claimant is not entitled to assume that the For the foregoing reasons, I would affirm the trial court's 19 judgment that Agway has fully discharged its lawful obligation to 20 the claimant. 8
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