Tiller v. Blevins
Annotate this Case
January 1995 Term
___________
No. 22535
___________
REBECCA MOORE TILLER
Plaintiff Below, Appellee
v.
CHRISTOPHER BLEVINS
Defendant Below
AND FEDERAL KEMPER INSURANCE COMPANY,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Mercer County
Honorable John R. Frazier, Judge
Civil Action No. 92-C-616-F
REVERSED AND REMANDED
___________________________________________________
Submitted: May 2, 1995
Filed: July 13, 1995
Mary H. Sanders
James C. Stebbins
Blake Benton
Huddleston, Bolen, Beatty, Porter & Copen
Charleston, West Virginia
Attorneys for the Appellant
J. W. Feuchtenberger
Lisa Davis Clark
Stone, McGhee, Feuchtenberger & Barringer
Bluefield, West Virginia
Attorneys for the Appellee
Heather Heiskell Jones
Robert A. Lockhart
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for The West Virginia Insurance Federation
Amicus Curiae
This Opinion was delivered PER CURIAM.
JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. "West Virginia Code sec. 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 Automobile Mutual
Insurance Company, 188 W. Va. 81, 422 S.E.2d 803 (1992).
2. "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. If no multi-car discount for
uninsured or underinsured motorist coverage is apparent on the
declarations page of the policy, the parties must either agree or
the court must find that such a discount was given. In such event,
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. 4, Miller v. Lemon, No.
22589, ___ W. Va. ___, ___ S.E.2d ___ (June 19, 1995).
Per Curiam:
This case is before this Court upon an appeal from a
final order of the Circuit Court of Mercer County entered on May
20, 1994. Pursuant to that order, the circuit court entered
judgment for the appellee, Rebecca Moore Tiller, and declared
invalid the anti-stacking language, concerning underinsured
motorist coverage, in an automobile insurance policy issued by the
appellant, the Federal Kemper Insurance Company. For the reasons
stated below, the judgment of the circuit court is reversed.
It should be noted that a brief amicus curiae has been
filed by the West Virginia Insurance Federation.
I.
In May 1990, Rebecca Moore Tiller sustained substantial
personal injuries when the car she was operating was struck by the
vehicle of a driver alleged to be intoxicated. The accident
occurred near the City of Princeton, Mercer County, West Virginia.
At the time of the accident, the car operated by Tiller
was insured by an automobile insurance policy, No. 0591318, issued
by the Federal Kemper Insurance Company to James E. Moore, Sr.
Rebecca Moore Tiller is the daughter of James E. Moore, Sr. and, as
a resident of the Moore home during the period in question, was
covered under the policy. Among other matters, the policy included
uninsured and underinsured coverage upon eight vehicles, including
the car operated by Rebecca Moore Tiller. Specifically, the policy
provided $50,000 per person bodily injury uninsured/underinsured
motorist coverage with respect to each of the Moore vehicles.
The premiums paid by James E. Moore, Sr. for the policy
issued by the Federal Kemper Insurance Company, totalling $959.00,
were set forth in the policy. In particular, the bodily injury
uninsured/underinsured motorist coverage was $11.00 for each of the
eight vehicles. The record is clear that although no multi-car
discount of any kind appears on the policy issued to James E.
Moore, Sr., a multi-car discount was, in fact, given by the Federal
Kemper Insurance Company and was reflected in the total policy
premium.See footnote 1
The policy issued to James E. Moore, Sr. also sets forth
the following anti-stacking language with regard to uninsured and
underinsured motorist coverage:
OUR LIMIT OF LIABILITY
Regardless of the number of insureds, claims
made, vehicles or premiums shown in the
Declarations or vehicles involved in the
accident, the most we will pay for all damages
resulting from any one accident is the limit
of UNINSURED MOTORIST INSURANCE or
UNDERINSURED MOTORIST INSURANCE shown in the
declarations.
Rebecca Moore Tiller instituted an action for personal
injuries in the Circuit Court of Mercer County and, subsequently,
amended her complaint by adding a count against the Federal Kemper
Insurance Company for declaratory relief. W. Va. R. Civ. P. 57;
W. Va. Code, 55-13-1, et seq., "Uniform Declaratory Judgments Act."
Indicating that the other driver in the accident was underinsured,
Rebecca Moore Tiller asserted, in the amended complaint, that she
is entitled to stack the $50,000 policy limits of underinsured
coverage, regarding the eight vehicles, for coverage in the total
amount of $400,000. However, asserting that the above anti-
stacking language is unambiguous and in conformity with law, the
Federal Kemper Insurance Company contends that stacking should not
be permitted.
Upon entering a stay of the personal injury cause of
action, the Circuit Court of Mercer County conducted a hearing upon
the declaratory judgment aspect of the case. Following the
hearing, the circuit court concluded that stacking should be
permitted and entered judgment for Rebecca Moore Tiller. The final
order of May 20, 1994, states: "The Court finds that the anti-
stacking language found in the subject insurance policy is invalid,
and that the Federal Kemper policy at issue provides underinsured
coverage, totalling $400,000, on each of the eight vehicles covered
under the subject policy."
II.
In this action, the automobile insurance policy in
question provided underinsured motorist coverage for multiple
vehicles and included anti-stacking language. In addition, the
premium for the policy included a multi-car discount, although not
reflected upon the policy. Similar circumstances were before this
Court in Russell v. State Automobile Mutual Insurance Company, 188
W. Va. 81, 422 S.E.2d 803 (1992).
In Russell, two vehicles were included in a single policy
providing uninsured and underinsured coverage. The annual combined
premium for uninsured and underinsured coverage was $6.00 for the
first vehicle and $5.00 for the second vehicle. The policy also
contained the following anti-stacking language, similar to the
anti-stacking language before this Court: "The limit of liability
applicable to Uninsured Motorists Coverage or Underinsured
Motorists Coverage is the most we will pay regardless of the number of: 1) 'Insureds' [;] 2) Claims made; 3) Vehicles or premiums
shown in the Schedule or in the Declarations; or 4) Vehicles
involved in the accident." That language was determined in Russell
to be clear and unambiguous and in conformity with the provisions
of W. Va. Code, 33-6-31(b) [1992], concerning this State's
standards for uninsured and underinsured provisions in automobile
insurance policies.See footnote 2 Moreover, in syllabus point 5 of Russell, we
held:
West Virginia Code sec. 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.
See also syl. pt. 2, Arbogast v. Nationwide Mutual Insurance
Company, 189 W. Va. 27, 427 S.E.2d 461 (1993); Nadler v. Liberty
Mutual Fire Insurance Company, 188 W. Va. 329 n. 6, 424 S.E.2d 256
n. 6 (1992). The rationale for that holding was expressed in
Russell as follows:
[I]t is easily discernable 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 underinsurance motorist
coverage endorsement. . . . The insured was
therefore receiving the benefit of that which
he bargained for and should not receive more.
Had this multi-car discount not been given by
the insurer and had the insured paid a full
premium for both vehicles, a different result
may have been reached by this Court.
188 W. Va. at 85, 422 S.E.2d at 807.
Even more relevant to the action before this Court, in
terms of the multi-car discount, is our recent decision in Miller
v. Lemon, No. 22589, ___ W. Va. ___, ___ S.E.2d ___ (June 19,
1995). In that case, Miller, who sustained personal injuries in an
automobile accident involving an uninsured driver, was insured by
a single automobile insurance policy which covered two vehicles and
included provisions for uninsured motorist coverage. The policy
also included anti-stacking language similar to the anti-stacking
language before us. In addition, the premium for the policy
included a multi-car discount, although not reflected upon the
policy.
As in Russell, this Court determined the anti-stacking
language in Miller to be clear and unambiguous and in conformity
with the provisions of W. Va. Code, 33-6-31(b). See n. 2, supra.
Moreover, syllabus point 4 of Miller holds:
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. If no multi-car discount for
uninsured or underinsured motorist coverage is
apparent on the declarations page of the
policy, the parties must either agree or the
court must find that such a discount was
given. In such event, 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.
As in Russell and Miller, the anti-stacking language in
the automobile insurance policy before this Court is clear and
unambiguous and entitled to "the plain meaning intended."
Syllabus, Keffer v. Prudential Insurance Company of America, 153 W.
Va. 813, 172 S.E.2d 714 (1970). Furthermore, inasmuch as the
policy issued by the Federal Kemper Insurance Company is not
substantially different from the policies under scrutiny in Russell
and Miller, the policy fully comports, as did those policies, with
the requirements of W. Va. Code, 33-6-31(b).
In addition, although not expressly set forth upon the
policy, the record demonstrates that a multi-car discount was, in
fact, given and was reflected in the total policy premium. As the
circuit court noted: "Federal Kemper, by affidavit, which was
uncontroverted, shows that the premium rate, calculated for each car, reflects that a multi-car discount was applied and is
reflected in total premium." See n. 1, supra.
In view of the above, therefore, we find syllabus point
4 of Miller dispositive of the stacking issue before this Court.
As indicated in the brief of the Federal Kemper Insurance Company,
the insurer received validation of the anti-stacking language of
the policy in exchange for extending the multi-car discount to the
insured. Thus, Rebecca Moore Tiller is not entitled to stack the
coverages of the eight vehicles.
Upon all of the above, the final order of the Circuit
Court of Mercer County entered on May 20, 1994, is reversed, and
this action is remanded to that court for further proceedings
consistent with this opinion.
Reversed and remanded.
Footnote: 1
The Moore family has asserted that they had no
knowledge that a multi-car discount had been given upon the
policy. Nevertheless, such a discount was given. As noted by
the Circuit Court of Mercer County in the final order: "Federal
Kemper, by affidavit, which was uncontroverted, shows that the
premium rate, calculated for each car, reflects that a multi-car
discount was applied and is reflected in total premium."
Preceding that order was the filing of an affidavit of
a Federal Kemper Insurance Company supervisor who stated:
Each of the eight vehicles insured under the
Moore Policy could have been insured by the
Moores under separate automobile insurance
policies with Federal Kemper. Because the
Moores insured their eight vehicles on a
single automobile policy with Federal Kemper,
they received a 'multi-car' discount in the
premium charged by Federal Kemper.
. . . .
In the event the Moores had insured their
eight vehicles under separate insurance
policies with Federal Kemper, the total
amount of the premium for [a] six (6) month
period which would have been charged for the
coverages provided in the Moore Policy would
have been One Thousand One Hundred Ninety
Five Dollars ($1,195.00). Because the Moores
received a multi-car discount for insuring
eight vehicles under a single insurance
policy, the total insurance premium charged
for [a] six (6) month period for these
coverages was Nine Hundred Fifty Nine Dollars
($959.00).Footnote: 2
W. Va. Code, 33-6-31(b) [1992], provides, in part,
that an automobile insurance policy:
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.
As the Russell opinion states: "[T]he pertinent
statutory provision does not prohibit an insurer from limiting
underinsured motorist coverage to the limits of bodily injury
liability coverage where multiple vehicles are listed on the same
insurance policy." 188 W. Va. at 83-84, 422 S.E.2d at 805-806.
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