Alexander v. State Auto Mutual Insurance
Annotate this Case
January 1992 Term
___________
No. 20630
___________
LENA ALEXANDER,
Plaintiff Below,
v.
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY,
AN OHIO CORPORATION; AND
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
AN ILLINOIS CORPORATION,
Defendant Below
___________________________________________________________
Certified Question from the United States District Court
for the Northern District of West Virginia
Honorable Robert E. Maxwell, Judge
Civil Action No. 90-143-E
CERTIFIED QUESTION ANSWERED
___________________________________________________________
Submitted: January 15, 1992
Filed: March 20, 1992
James C. West, Jr.
Kathryn K. Allen
West & Jones
Clarksburg, West Virginia
Attorney for the Plaintiff
Catherine D. Munster
McNeer, Highland & McMunn
Clarksburg, West Virginia
Attorney for the Defendant,
State Automobile Mutual Insurance Co.
JUSTICE BROTHERTON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "W.Va. Code, 33-6-31(b), as amended, on uninsured and
underinsured motorist coverage, contemplates recovery, up to
coverage limits, from one's own insurer, of full compensation for
damages not compensated by a negligent tortfeasor who at the time
of the accident was an owner or operator of an uninsured or
underinsured motor vehicle. Accordingly, the amount of such
tortfeasor's motor vehicle liability insurance coverage actually
available to the injured person in question is to be deducted from
the total amount of damages sustained by the injured person, and
the insurer providing underinsured motorist coverage is liable for
the remainder of the damages, but not to exceed the coverage
limits." Syllabus point 4, State Automobile Mutual Insurance
Company v. Youler, 183 W.Va. 556, 396 S.E.2d 737 (1990).
2. "Insurers may incorporate such terms, conditions and
exclusions in an automobile insurance policy as may be consistent
with the premium charged, so long as any such exclusions do not
conflict with the spirit and intent of the uninsured and
underinsured motorists statutes." Syllabus point 3, Deel v.
Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).
3. Underinsured motorist coverage is not available to a
guest passenger unless the statute or policy language specifically
provides for such coverage.
4. Where an insurance policy specifically excludes any
motor vehicle owned by the policy holder from the definition of an
"underinsured motor vehicle," then the underinsured motorist
coverage was intended to protect the insured against losses caused
by the negligence of another motorist who is underinsured.
Liability insurance is intended to compensate an injured guest
passenger for any negligence on the part of the driver/insured.
Brotherton, Justice:
This case involves certified questions from the United
States District Court for the Northern District of West Virginia.
The questions certified read as follows:
1. Whether the owned-underinsured motor
vehicle exclusion of the insurance policy
issued to the automobile owner, Louise
Lowther, excludes underinsured motorist
coverage of the guest passenger, Lena
Alexander, where the owner's liability
limits have been paid to the guest
passenger under the policy?
2. Whether the insurance policy requirements
that the tortfeasor's liability for
damages arise from the ownership,
maintenance, or use of an underinsured
vehicle precludes underinsured motorist
coverage for a guest passenger injured in
an automobile owned by the insured?
3. Whether a guest passenger is entitled to
maintain a direct action for damages
against an insurance carrier under the
underinsured motorist provision of an
insurance policy where the guest passenger
has settled with the tortfeasor's
insurance carrier expressly reserving the
right to pursue a claim for applicable
underinsured motorist coverage, if any?
4. Whether an underinsured motorist insurance
carrier is liable to a guest passenger for
prejudgment interest, attorneys' fees, and
for additional damages in addition to the
carrier's stated underinsured motorist
policy limits?
On October 6, 1989, Lena Alexander was injured in an automobile accident in Harrison County, West Virginia. The vehicle in which Mrs. Alexander was riding was owned by her sister, Louise
Lowther and was being driven by another sister, Verna Elbon. The
accident occurred when Mrs. Elbon turned left across an oncoming
lane of traffic and was struck by another vehicle. The driver of
the vehicle which struck the car in which Mrs. Alexander was riding
was not sued and is not party to this suit. Mrs. Alexander was not
a member of the Lowther household nor was the vehicle in which she
was riding furnished or available for her regular use. The vehicle
was insured at the time of the accident by State Automobile Mutual
Insurance Company (State Auto). Mrs. Elbon, the driver of the car,
was covered by an insurance policy issued by State Farm Mutual
Automobile Insurance Company (State Farm). Mrs. Alexander did not
have underinsured motorist coverage.
Both State Farm and State Auto paid the maximum limits of
their medical liability coverage and their bodily injury liability
coverage to Mrs. Alexander. Thus, State Auto paid $1,000 in
medical expenses and $50,000 in bodily injury coverage, while State
Farm paid $25,000 in medical expenses and $100,000 in bodily injury
coverage.
Both the State Farm and State Auto policies had
provisions for underinsured motorist coverage in the amount of
$20,000 per person. Releases executed by Mrs. Alexander to State
Farm and State Auto both claimed to preserve her right to pursue
future claims for underinsured motorist coverage under both
policies.
Thereafter, Mrs. Alexander made a demand for underinsured
motorist coverage upon both insurance companies. Initially, both
insurance companies refused to pay the claims. The plaintiff then
filed an action against State Farm and State Auto for breach of
contract for refusing to make payment under the underinsured
motorist provisions. Shortly thereafter, Mrs. Alexander accepted
$20,000 from State Farm as payment of the underinsured motorist
claim for the coverage provided to Verna Elbon, along with a sum of
$8,000 for fees and consequential damages.
However, State Auto moved to dismiss Mrs. Alexander's
claim on the ground that the underinsured motorist coverage was not
available because the Lowther vehicle was not an underinsured
vehicle within the policy language. State Auto also contended that
this action was not maintainable because judgment against the
tortfeasor had not been obtained. Last, State Auto argued that the
plaintiff may not recover prejudgment interest in excess of the
available policy limits. On July 25, 1991, the United State
District Court for the Northern District of West Virginia certified
the four questions listed above to this Court. We agreed to hear
these questions on November 5, 1991.
The State Auto underinsured motorist coverage policy
provides, in part, as follows:
We will pay damages which an "insured" is
legally entitled to recover from the owner or
operator of an "uninsured motor vehicle" or
"underinsured motor vehicle" . . .
1. "Bodily injury" sustained by an
"insured" and caused by the accident; . . .
The owner's or operator's liability for
these damages must arise out of the ownership,
maintenance or use of the . . . "underinsured
motor vehicle." We will pay damages under
this coverage caused by an accident with an
"underinsured motor vehicle" only after the
limits of liability under any applicable
liability bonds or policies have been
exhausted by payment of judgments or
settlements.
* * *
"Insured" as used in this endorsement
means:
* * *
2. Any person "occupying" "your covered
auto."
* * *
However, neither "uninsured motor vehicle"
nor "underinsured motor vehicle" includes any
vehicle or equipment:
1. Owned by or furnished or available for
the regular use of you or any "family member."
Consequently, the issue before this Court is whether under this policy language, a guest passenger can obtain underinsured motorist coverage from the policy covering the car in which she was riding at the time of the injury, a policy separate and apart from her own insurance policy. It is uncontested that Mrs. Alexander sustained bodily injury while occupying Mrs.Lowther's insured automobile and while Ms. Elbon was driving. However, Mrs. Alexander's status as an insured under the underinsured motorist vehicle policy is contingent on whether the
vehicle in which she was riding at the time of the injury
constitutes an underinsured motor vehicle under the policy
language.
The public policy surrounding underinsured motorist
coverage has been fully defined by this Court: "in uninsured or
underinsured motorist cases . . . the uninsured person [should] 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." State Automobile Mutual Ins. Co.
v. Youler, 183 W.Va. 556, 396 S.E.2d 737, 745 (1990); see also syl.
pt. 1, Pristavec v. Westfield Ins. Co., 184 W.Va. 331, 400 S.E.2d 575 (1990). However, the party's status as an insured under the
policy must first be established before it can be determined that
the underinsured coverage is available.
West Virginia Code § 33-6-31(b) (1992) defines an
"underinsured motor vehicle":
"Underinsured motor vehicle" means a motor
vehicle with respect to the ownership,
operation, or use of which there is liability
insurance applicable at the time of the
accident, but the limits of that insurance are
either (i) less than limits the insured
carried for underinsured motorists' coverage,
or (ii) has been reduced by payments to others
injured in the accident to limits less than
limits the insured carried for underinsured
motorists' coverage.
Underinsured motorist coverage has been interpreted by this Court in recent years in two major cases. The first, State Automobile
Mutual Ins. Co. v. Youler, 183 W.Va. 556, 396 S.E.2d 737 (1990),
involved a plaintiff who was struck and injured by a car driven by
Clifford Moore. The plaintiff sued Moore and sought $500,000 in
compensatory damages, $5,000 in property damages, and $10,000 in
consequential damages for loss of business property (for property
damaged in the accident). Moore's automobile liability insurance
carrier, Nationwide Mutual, offered Youler $50,000, which the
policy bodily injury limits for one person. Youler refused to
accept the offered $50,000 as full satisfaction.
The Youlers were covered by an underinsured motorist
provision from two insurance policies issued by State Automobile
Mutual Insurance Company. Each of these two underinsured motorist
policy endorsements contained limits of $100,000 for bodily injury
of one person in an automobile accident. State Auto later brought
a declaratory judgment action to determine their rights and
liabilities under the policy with respect to the insured's claim
for underinsured motorist benefits. In Youler, the Court discussed
the liability limits which constitute underinsured motorist
coverage. Id. at 749. The Court then concluded that:
W.Va. Code, 33-6-31(b), as amended, on
uninsured and underinsured motorist coverage,
contemplates recovery, up to coverage limits,
from one's own insurer, of full compensation
for damages not compensated by a negligent
tortfeasor who at the time of the accident was
an owner or operator of an uninsured or
underinsured motor vehicle. Accordingly, the
amount of such tortfeasor's motor vehicle
liability insurance coverage actually
available to the injured person in question is
to be deducted from the total amount of
damages sustained by the injured person, and
the insurer providing underinsured motorist
coverage is liable for the remainder of the
damages, but not to exceed the coverage
limits.
Id. at syl. pt. 4 (emphasis added).
Thus, while our opinion in Youler was pertinent to the
issue of stacking multiple coverages, there was no question that
the Youlers were entitled to the available underinsured motorist
coverage. The only question in Youler was just how much coverage
was available and what setoff was allowed. Youler's relevance to
our opinion today is found in the principle that underinsured
motorist coverage contemplates recovery "from one's own insurer .
. . ," not from a third party. Id. (emphasis added).
In Pristavec v. Westfield Ins. Co., 184 W.Va. 331, 400 S.E.2d 575 (1990), this Court again discussed a situation involving a plaintiff injured by an automobile other than her own. On March 2, 1987, the plaintiff's car collided with an automobile owned by Leonard Williams. The plaintiff alleged that Williams' negligence caused her damages in excess of $200,000. Williams had an automobile liability insurance policy with limits of $100,000 per person, and that policy limit was paid to the plaintiff. The plaintiff was insured by the defendant, Westfield Insurance Company, which provided underinsured motorist coverage to the plaintiff with limits of $100,000 per person. The plaintiff brought an action which was removed to the United States District
Court for the Northern District of West Virginia. That court
certified a question to this Court, specifically asking whether the
plaintiff was "entitled to recover from the defendants . . . her
legal damages, up to policy limits of her underinsured motorist's
insurance, without setoff against proceeds received by the
plaintiff from her own or any other policy . . . ." Id. at 577.
The Court in Pristavec answered the certified question in
the affirmative. Like the situation in Youler, there was no
question that the plaintiff, Pristavec, was entitled to
underinsured motorist coverage. However, unlike the case at hand,
the underinsured motorist coverage issued from her own policy
rather than that of a separate party. Thus, Alexander presents an
entirely new question on the issue of the availability of
underinsured motorist coverage.
More relevant to the issue before us today is this Court's opinion in Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989). In Deel, the plaintiff was driving his personally owned vehicle when he was struck by the defendant, who was uninsured and driving an automobile owned by a third party. The third party had a policy with Dairyland Insurance Company with a $20,000 bodily injury limit. Dairyland attempted to settle with the plaintiff, but the plaintiff claimed injuries greater than the $20,000 bodily injury limit. The plaintiff's car was insured, but his policy did not include underinsured motorist coverage. However, the
plaintiff's father, Junior Deel, had a valid policy of insurance
which included $100,000 worth of underinsured motorist coverage per
person and $300,000 per occurrence. Because the plaintiff lived in
his father's household at the time of the accident, he sought to
recover under his father's underinsured motorist policy with Aetna.
Junior Deel's Aetna policy provided that:
We will pay damages which a covered person
is legally entitled to recover from the owner
or operator of an underinsured motor vehicle
because of bodily injury sustained by a
covered person and property damage caused by
an accident. The owner's or operator's
liability for these damages must arise out of
the ownership, maintenance or use of the
underinsured motor vehicle.
* * *
EXCLUSIONS
(a) We do not provide Underinsured Motorist
Coverage for bodily injury and property damage
sustained by any person:
(1) While occupying, or when struck by,
any motor vehicle or trailer of any type owned
by you or any family member which is not
insured for this coverage under this policy.
Id. at 93.
After analyzing the Aetna policy, the Court in Deel found that the automobile owned by the plaintiff was not an insured vehicle under the policy language. Thus, the question before the Court was whether the underinsured motorist coverage purchased by Junior Deel, the plaintiff's father, provided coverage to the plaintiff while he was driving his personally owned vehicle insured by another company. The lower court found that the underinsured
motorist provisions of the father's Aetna policy did not cover the
plaintiff, and we agreed:
Insurers may incorporate such terms,
conditions and exclusions in an automobile
insurance policy as may be consistent with the
premium charged, so long as any such
exclusions do not conflict with the spirit and
intent of the uninsured and underinsured
motorists statutes.
Id. at syl. pt. 3.
In reaching this conclusion, the Court in Deel stated
that if the insurance policy's exclusionary clause was more
restrictive than the statute, it would be considered void. Thus,
we examined W.Va. Code §§ 33-6-31(b) & (k), which discuss
exclusions to policies and the option for an insured to increase
his uninsured motorist coverage to "all sums which he shall be
legally entitled to recover as damages from the owner or operator
of an uninsured motor vehicle . . . ." Id. at 95. The Court also
noted that in 1982, W.Va. Code § 33-6-31(b) was further amended to
require an insurer to provide optional underinsured motorist
coverage for "appropriately adjusted premiums." Id. Because of
the 1982 amendment, the Court concluded that the legislature did
not view:
uninsured and underinsured coverage in the
same light. Uninsured motorist coverage is
required, while underinsured motorist coverage
is optional. There are significant policy
reasons for mandatory requirement of uninsured
coverage . . . . The purpose of optional
underinsured motorist coverage is to enable
the insured to protect himself, if he chooses
to do so, against losses occasioned by the
negligence of other drivers who are
underinsured. A contract for greater benefits
generally justifies a greater premium . . . .
The insurer must offer underinsured motorist
coverage; the insured has the option of taking
it; and terms, conditions, and exclusions can
be included in the policy was may be
consistent with the premiums charged.
Clearly, an insurer can limit its liability so
long as such limitations are not in conflict
with the spirit and intent of the statute and
the premium charged is consistent therewith.
Id. (emphasis added). Both the reasoning and the conclusion
reached in Deel are applicable to the case at hand.
In this case, the exclusionary language found in the
State Auto policy is not more restrictive than, and thus is not
contrary to, the statute. West Virginia Code §§ 33-6-31(b) and (k)
state:
(b) Nor shall any such policy or contract
be so issued or delivered unless it shall
contain an endorsement or provisions
undertaking to pay the insured all sums which
he shall be legally entitled to recover as
damages from the owner or operator of an
uninsured motor vehicle, within limits which
shall be no less than the requirements of
section two, article four, chapter seventeen-d
of the code of West Virginia, as amended from
time to time: Provided, That such policy or
contract shall provide an option to the
insured with appropriately adjusted premiums
to pay the insured all sums which he shall be
legally entitled to recover as damages from
the owner or operator of an uninsured motor
vehicle up to an amount of one hundred
thousand dollars because of bodily injury to
or death of one person in any one accident,
and, subject to said limit for one person, in
the amount of three hundred thousand dollars
because of bodily injury to or death of two or
more persons in any one accident, and in the
amount of fifty thousand dollars because of
injury to or destruction of property of others
in any one accident: . . . Provided further,
That such policy or contract shall provide an
option to the insured with appropriately
adjusted premiums to pay the insured all sums
which he shall legally be entitled to recover
as damages from the owner or operator of an
uninsured or underinsured motor vehicle up to
an amount not less than limits of bodily
injury liability insurance and property damage
liability insurance purchased by the insured
without setoff against the insured's policy or
any other policy. "Underinsured motor
vehicle" means a motor vehicle with respect to
the ownership, operation, or use of which
there is liability insurance applicable at the
time of the accident, but the limits of that
insurance are either (i) less than limits the
insured carried for underinsured motorists'
coverage, or (ii) has been reduced by payments
to others injured in the accident to limits
less than limits the insured carried for
underinsured motorists' coverage. No sums
payable as a result of underinsured motorists'
coverage shall be reduced by payments made
under the insured's policy or any other
policy.
* * *
(k) Nothing contained herein shall prevent
any insurer from also offering benefits and
limits other than those prescribed herein, nor
shall this section be construed as preventing
any insurer from incorporating in such terms,
conditions and exclusions as may be consistent
with the premium charged.
As was the situation in Deel, underinsured motorist
coverage remains an optional coverage available at a minimal cost
to the insured. An insured has the choice whether to choose the
extra coverage, as we noted in Deel, "to enable the insured to
protect himself, if he chooses to do so, against losses occasioned
by the negligence of other drivers who are underinsured." Deel,
383 S.E.2d at 95 (emphasis added).
The United States District Court for the Southern
District of West Virginia reached a similar conclusion in Thompson
v. Nationwide Mutual Ins. Co., Civil Action No. 2:89-0139 (1991).
In Thompson, the plaintiff sued on behalf of the estate of his
wife, who was a passenger in an automobile driven by her husband,
the plaintiff. The plaintiff attempted to collect underinsured
motorist coverage from their family underinsured motorist policy,
and the insurance company refused to pay. The plaintiff filed
suit. In his opinion, Judge Copenhaver discussed the validity of
family vehicle exclusion under West Virginia law. After reviewing
the exception's constitutionality, the court determined that the
family vehicle exclusion was valid, not contrary to West Virginia's
public policy, and that the phrase in the exclusion, "a relative
living in your household," was unambiguous, express, and
enforceable.See footnote 1 Id. at 26-27.
Mrs. Alexander argues that Thompson has no applicability
to the case at hand because the exclusion in Thompson, unlike this
case, excluded "any vehicle owned by or furnished for the regular
use of you or a relative living in your household." Further, Mrs.
Alexander points out that since the injured party in Thompson was
also the insured's wife, then the vehicle was properly furnished
for Mrs. Thompson's use. Here, Mrs. Alexander contends that since
she was not a member of the insured's household and not a regular
user of the vehicle, Thompson could not be relevant to her case.
While Mrs. Alexander's point is well taken, she ignores
the difference in the language between the State Auto policy in
this case and the policy in Thompson, and the fact that Judge
Copenhaver did not have to analyze the policy exclusion any further
than the "relative living in your household" exception because Mrs.
Thompson, as the insured's wife, was so clearly a member of the
insured's family. In this case, the "any family member" exclusion
on which the plaintiff focuses is just one part of several
exclusions within one sentence. The policy language is disjunctive
-- the phrases are connected by the term "or," not "and."
However, neither "uninsured motor vehicle" or
"underinsured motor vehicle" includes any
vehicle or equipment
(1) owned by or furnished or available for the
regular use of you or any "family member."
(Emphasis added). This subtle difference is extremely important to
our analysis.
By reading the exclusion with the term "or" in place, it
is both plain and unambiguous to this Court that the policy
language is sufficient to exclude from underinsured motor vehicle
coverage accidents which involve a vehicle "owned by . . . you,"
the insured. This Court has held on numerous occasions that
"'[w]here provisions of an insurance policy are plain and
unambiguous and where such provisions are not contrary to a
statute, regulation or a public policy, the provisions will be
applied and not construed.'" Syl. pt. 2, Shamblin v. Nationwide
Mutual Ins. Co., 175 W.Va. 337, 332 S.E.2d 639, 640 (1985); Prete
v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441, 443 (1976); Atkins v. Stonewall Cas. Co., 155 W.Va. 81,
181 S.E.2d 269, 272 (1971).
In short, underinsured motorist coverage is intended to compensate parties for injuries caused by other motorists who are underinsured. As long as the insured owns both the underinsured motorist policy in question and the vehicle, then the insured's vehicle will not be considered an underinsured motor vehicle for purposes of the insured's own underinsured motorist coverage.See footnote 2
Because an underinsured motorist policy is intended to benefit the
person who bought the policy, we conclude that underinsured
motorist coverage is not available to a guest passenger unless the
statute or policy language specifically provides for such coverage.
See Youler, 396 S.E.2d at syl. pt. 4; Deel, 383 S.E.2d at 95.
We cannot help but conclude that the plaintiff's attempts to obtain underinsured motorist coverage from Mrs. Lowther's policy are far afield from what the Legislature intended in codifying the underinsured motorist coverage in Chapter 33 of the West Virginia Code.See footnote 3 During oral argument, counsel admitted that Mrs. Alexander,
like Johnny Deel, had not chosen to purchase underinsured motorist
coverage for herself. It seems patently
unfair that a person, who by her own free will, chooses not to buy
optional underinsured motorist coverage, should still seek to
benefit from someone else's choice to protect themselves, at a
cost, from the potential negligence of other motorists who are
underinsured. No allegations were raised that the insurance
company failed to advise the plaintiff of her option to buy
underinsured motorist coverage. It is unfortunate perhaps, but
common sense tells us that a party cannot get something for
nothing. In this case, Mrs. Alexander purposely chose not to
purchase underinsured motorist coverage, and thus, she cannot
benefit from another's prudence.
We conclude that first, the "owned by" exclusion found in the State Auto insurance policy is not more restrictive than the statutory provisions on underinsured motorist coverage, W.Va. Code § 33-6-31, and consequently, the exclusion is valid. Second, the
"owned by" exclusion is both plain and unambiguous and thus, will
be applied as written. Finally, the State Auto policy specifically
excludes any motor vehicle owned by the policy holder from the
definition of an "underinsured motor vehicle." Therefore, the
underinsured motorist coverage was intended to protect the insured
against losses caused by the negligence of another motorist who is
underinsured. Liability insurance is intended to compensate an
injured guest passenger for any negligence on the part of the
driver/insured.
Accordingly, we answer the first certified question as
follows:
The owned-underinsured motor vehicle exclusion
of the insurance policy issued to Mrs. Lowther
excludes underinsured motorist coverage to the
guest passenger, Lena Alexander.
Because we have answered the first question to exclude coverage for
Mrs. Alexander, we do not reach the remaining certified questions.
Certified question answered.
Footnote: 1A Pennsylvania court reached a similar conclusion to
Judge Copenhaver's decision in Thompson in a case involving the
spouse of the insured driver where the insured's car was involved
in a single car accident. In Newkirk v. United Services
Automobile Ass'n, 564 A.2d 1263 (Pa.Super. 1989), appeal denied,
597 A.2d 1153 (Pa. 1990), the plaintiffs filed suit after the
insurance company refused to pay out underinsured motorist
coverage based upon the family vehicle exclusion found in the
insured's policy. As in the case now before us, the policy
excluded from the definition of an "underinsured motor vehicle"
any automobile "owned by or furnished or available for the
regular use of you or any family member." Id. at 1264. The
court found the exclusion of any family vehicle to be clear and
unambiguous, and noted that "[a]ny expectation, therefore, which
the Newkirks had that they were paying for underinsured motorist
coverage under the circumstances present in this case was
unreasonable." Id. at 1266.
Footnote: 2Numerous other courts have reached nearly identical
conclusions with respect to the interpretation of statutory and
policy language similar to that before us today. In Preferred
Risk Mutual Ins. Co. v. Tank, 703 P.2d 580 (Ariz.App. 1985), the
Arizona Court of Appeals ruled that since underinsured coverage
was optional:
[t]he statute relating to underinsured motorist coverage was clearly designed to permit the prudent insured to protect himself
and his family and passengers against the
possibility of injury caused by another
motorist with insufficient insurance. This
is a completely different type of insurance
from liability insurance, which protects
those who are injured against the negligence
of the insured, . . . . When operation of
the insured vehicle causes an injury,
liability coverage is available to the
injured party. By refusing to pay
underinsured motorist benefits in addition,
that type of coverage is limited to the
situations for which it was created --
compensation for injuries caused by other
motorists who are underinsured.
Id. at 583. See also Millers Casualty Ins. Co. of Texas v. Briggs, 665 P.2d 891 (Wash. 1983); Myers v. State Farm Mutual Auto. Ins. Co., 336 N.W.2d 288 (Minn. 1983). Footnote: 3The plaintiffs have proffered several cases which they claim support their position. In both jurisdictions, however, either the statute or policy language was different from the West Virginia statute, and was sufficient to alter the outcome of the lawsuits. In McDonald v. State Farm Mutual Auto. Ins. Co., 336 S.E.2d 492 (S.C.App. 1985), the South Carolina court found the policy exclusion provision to be invalid because South Carolina
requires insurance policies "of the kind involved here to provide
certain minimum benefits . . . ." Id. at 493. The West Virginia
Legislature has, of course, made the purchase of underinsured
motorist coverage to be optional, unlike uninsured motorist
coverage.
The plaintiff also relies on Oklahoma case law which invalidated the family vehicle exclusion based upon the Oklahoma statute's definition of an underinsured motor vehicle. Unlike Oklahoma, the West Virginia statute does not expressly include the insured vehicle in that definition. See Russell v. American States Ins. Co., 813 F.2d 306 (10th Cir. 1987); State Farm Mutual Ins. Co. v. Wendt, 708 P.2d 581 (Okla. 1985).
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