No. 25539 -- Paul Mitchell, as executor of the Estate of
Mary Mitchell v. Anthony George Broadnax, AND Naomi S. Mitchell and Geraldine O'Dell v.
Anthony Broadnax
Starcher, Chief Justice, dissenting:
The real issue in this case, one discussed
nowhere in the majority's opinion or in Imgrund v. Yarborough, 199 W.Va. 187, 483
S.E.2d 533 (1997), is whether an insurance company can riddle uninsured motorist coverage
with so many exceptions that it becomes illusory. Applying Imgrund without thought
in this case, the majority opinion has once again given insurance companies the green
light to rake in premiums from unwitting insurance consumers who buy insurance to protect
themselves and their families from uninsured motorists -- and at the same time, allowed
the insurance companies to keep that money through the use of bizarre, irrational
exclusions in their insurance policies. Exclusions, mind you, that totally violate the
plain terms of West Virginia's uninsured motorist insurance laws.
Mary Mitchell was an elderly lady who
shared her home with her daughter, Naomi. Mary and Naomi jointly owned a 1989 Pontiac
which they insured through Kentucky Central Insurance Company. Mary also owned a 1981
Buick in her own right. As part of the insurance policy on the Buick, she bought and paid
for $300,000 in uninsured motorist coverage from appellee Anthem Casualty Insurance
Company.
While riding home from church with Naomi
in the jointly-owned Pontiac, Mary Mitchell was smashed head-on by everyone's worst
driving nightmare -- an unlicensed drunk driver, driving what was essentially a stolen
car. And not your average drunk driver, either. This one tried to drive away from the
scene. A bystander pulled the keys from the ignition of the drunk driver's car, and tossed
them to Naomi -- and the drunk proceeded to beat Naomi to get the keys back. All the
while, Mary Mitchell lay in the passenger seat, unable to move because of a broken hip
that would later take her life.
Mary Mitchell bought and paid for $300,000
in coverage, to protect her and her family from horrific situations exactly like this.
Anthem Casualty Insurance Company, however, had a surprise for Mary Mitchell's family.
First, it refused coverage because it
claimed the drunk driver was insured. Then it refused coverage because it claimed the
Kentucky Central Insurance Company policy on the car Mary Mitchell was riding in was
“primary.” Then, as a last resort, it totally refused coverage because Mary
Mitchell was a joint owner of the car she was riding in when she was smashed by the drunk
driver.
Then, Anthem decided it would go ahead and
pay Mary Mitchell's estate $20,000 -- based upon our decision in Imgrund -- but it
would go ahead and keep the remaining $280,000, ostensibly because that's what Mary
Mitchell agreed it could do.
The majority opinion embodies some fantasy
notion that Mary Mitchell sat down across the conference table from an Anthem insurance
agent and spent a few days dickering over what terms were going to be in the uninsured
motorist “contract.” And after extensive negotiations, the Anthem agent
announced that, for an “appropriately adjusted premium,” Mary Mitchell could buy
uninsured motorist coverage that would cover her anywhere in the free world EXCEPT when
she was in, on or upon a vehicle that she or a family member owned but didn't insure under
the Anthem policy. The policy also wouldn't cover her if she was hit by such a vehicle. It
didn't matter to Anthem whether that other vehicle was insured or not; what mattered was
that Anthem got a monopoly from Mary Mitchell so that every car she owned, and every car
her family members owned, was insured by Anthem, under the same, not separate, policies.
In this fantasy world, Mary Mitchell, after consultation with her team of lawyers,
announced her acceptance of the exclusion in the uninsured motorist policy in return for
the “adjusted” premiums.
This is all, of course, garbage. Mary
Mitchell didn't have a clue what was in her policy; she probably never got a copy until
after she paid her first premium. Even more likely, she (actually, her estate) never got a
copy until after this lawsuit was filed.
And I guarantee you that Mary Mitchell
never had a clue what the “appropriately adjusted premiums” were for her
uninsured motorist coverage. There is absolutely no evidence of an adjustment in the
record. I'm sure someone at Anthem could produce an affidavit, long after the fact, to
show how much her premiums were adjusted. But it would take an army of actuaries and
accountants to figure whether that premium adjustment was “appropriate.”
And in the end, while the insurance
company shareholders are laughing their way to the bank, teams of lawyers and bean
counters are back at the home office, huddling over the current uninsured motorist policy,
trying to figure out what new exclusions can be included in future policies. Thanks to the
majority's opinion in this case and in Imgrund, an insurance company can include
whatever ridiculous exclusions it wants to include in an uninsured motorist insurance
policy, regardless of what West Virginia law says -- and there's nothing anyone can do
about it, because there's someone at the insurance company's home office who will fill out
an affidavit saying the premiums for the policy were “appropriately adjusted” to
reflect the ridiculous exclusion.
The spoken issue that we were asked to
examine in this case was an “owned but not insured” exclusion in an uninsured
motorist policy in light of the requirements of our uninsured motorist insurance statute, W.Va.
Code, 33-6-31 [1995]. An “owned but not insured” exclusion in an automobile
insurance policy attempts to eliminate uninsured motorist coverage when an insured person
is injured by an uninsured driver while the insured is riding inside a vehicle that the
insured person owns, but does not insure under the particular automobile insurance policy.
The majority in this case concluded, as it
did in Imgrund, that an “owned but not insured” exclusion cannot operate
to eliminate uninsured motorist coverage below the “mandatory limits” set by W.Va.
Code, 17D-4-2 and 33-6-31(b), or $20,000 in bodily injury coverage per person.
However, above those “mandatory limits,” the majority held the appellee
insurance company could incorporate into its policy exclusions that would eliminate the
appellant's right to $280,000 in coverage that Mary Mitchell paid for and thought she
would get if she was ever injured by an uninsured motorist.
I was in the majority of Imgrund,
and in 1997 believed the Court's reasoning based on the facts of Imgrund to be
sound. However, having re-read the language of the uninsured motorist statute,
particularly parts of the statute that were not discussed in Imgrund, I now believe
I was wrong in Imgrund and respectfully dissent in the instant case. It is clear to
me that “owned but not insured” exclusions in an uninsured motorist policy are
totally invalid under West Virginia law -- and just as clear that Imgrund should be
overruled.See footnote 1 1
First, uninsured motorist coverage is
personal; it follows the named insured and his or her family wherever they may go.
It is not “vehicle” oriented, and a great majority of states have held that
“owned but not insured” exclusions are void under those states' laws because it
limits coverage based on the location of the insured. The “owned but not
insured” exclusion in this case attempts to limit coverage based on the location of
the “insured” -- she was inside of a vehicle she partially owned but did not
insure through Anthem -- and the exclusion should have been held to be void and
unenforceable by the very terms of our own uninsured motorist insurance laws.
Second, this Court has repeatedly held
that insurance companies are statutorily required, in every single automobile insurance
policy that they sell, to offer the insurance consumer the ability to purchase uninsured
and underinsured motorist coverage with limits up to or equal to the limits of liability
coverage bought by the consumer. It makes no sense to say that the insurance company is
required by law to offer particular levels of coverage -- but then say the insurance
company can riddle that coverage with so many exclusions that the coverage is illusory.
The exclusion at issue in this case attempts to limit coverage to less than the amount
which an insurance company is required to offer under West Virginia law, and should have
been declared void and unenforceable.
Third, the majority in this case and in Imgrund
concluded that the “owned but not insured” exclusion is valid and enforceable
because of W.Va. Code, 33-6-31(k), a statute which, when read out of context,
suggests that an insurance company can include in a policy any “exclusions as may be
consistent with the premiums charged.” This statute has been thoroughly misconstrued
in the majority opinion, and has absolutely no application to liability, uninsured, and
underinsured motorist coverage -- and because the statute forms the basis for Imgrund,
a correct construction of the statute forms the basis for overruling Imgrund.
Furthermore, there is no evidence in this
case to indicate that Mary Mitchell's insurance premiums were adjusted in any way to be
consistent with the “owned but not insured” exclusion, nor any evidence to show
that Mary Mitchell bargained for lower premiums in return for the insurance company's
inclusion of the exclusion. Even assuming W.Va. Code, 33-6-31(k) has some bearing
on this case, the insurance company failed to meet its burden of proving the premiums paid
by Mary Mitchell were appropriately adjusted to reflect the exclusion, and that that
adjustment was conveyed to Mary Mitchell. Hence, again, the exclusion is void and
unenforceable.
A.
Uninsured Motorist Coverage is “Person-Oriented”
West Virginia law requires every insurance
company, in every automobile insurance policy, to include uninsured motorist coverage.
Uninsured motorist coverage is not designed to protect the automobile -- it is
specifically designed to protect responsible insurance consumers and their families.
W.Va. Code, 33-6-31(b) requires
every insurance policy to contain coverage “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[.]” (Emphasis added.)
The term “insured” is defined by
W.Va. Code, 33-6-31(c) in the following manner (with emphasis added):
As used in this section, . . . the term
“insured” shall mean the named insured and, while resident of the same
household, the spouse of any such named insured and relatives of either, while in a
motor vehicle or otherwise, and any person, except a bailee for hire, who uses, with
the consent, expressed or implied, of the named insured, the motor vehicle to which the
policy applies or the personal representative of any of the above[.]
Our statute therefore mandates uninsured motorist coverage for:
1. The person named in the declarations
pageSee footnote 2 2 while in a motor
vehicle or otherwise;
2. Such person's spouse if a resident of
the same household while in a motor vehicle or otherwise;
3. Relatives of the named insured or spouse
resident in the same household while in a motor vehicle or otherwise;
4. Any other person (except a bailee for
hire) who uses the insured vehicle with the consent of the named insured; or
5. The personal representative of any of
the above.
This statute was ignored by the majority
opinion in Imgrund; hence, the outcome of Imgrund is totally out of whack
with West Virginia law. The appellee/insured in Imgrund was a motorcycle driver
living in his parents' household. When the appellee was struck by an uninsured motorist
while riding his motorcycle, he tried to collect benefits from his parents' uninsured
motorist policy. Because the motorcycle was owned by the appellee, but not insured under
his parents' policy, the parent's insurance company argued there should be no coverage,
citing to an “owned but not insured” exclusion. We upheld the exclusion on
appeal, and denied the appellee any recovery under his parents' policy.See footnote 3 3
The result in Imgrund was driven by
the fact that the appellee did not pay for coverage under his parents' uninsured motorist
policy. We held in Imgrund that because the appellee did not opt to buy additional
coverage under his motorcycle policy, “Imgrund cannot now claim that he is entitled
to benefit from the prudence of his parents.” 199 W.Va. at 195, 483 S.E.2d at 541.
This basis for our decision in Imgrund
totally ignores W.Va. Code, 33-6-31(b) and (c). The Legislature intended for every
automobile insurance policy sold in West Virginia to include uninsured motorist protection
for the relatives of a named insured who live in the named insured's home. In other words,
the Legislature intended to protect children such as Imgrund who live at home with their
parents and brothers and sisters. Because Imgrund's parents were prudent, they
bought plenty of insurance coverage ($100,000 worth) for themselves and their children,
just as they were allowed to do by West Virginia law. The majority opinion in Imgrund
denied Imgrund's parents the benefit of their bargain, and the benefit of coverage that,
prior to the release of this Court's opinion in Imgrund, they could have reasonably
expected under a simple reading of W.Va. Code, 33-6- 31(b) and (c).
Another faulty conclusion we reached in Imgrund
was our statement that the purpose of W.Va. Code, 33-6-31(b) “is to require
motorists to have in force and effect uninsured motorist coverage for each motor
vehicle he or she owns.” 199 W.Va. at 195, 483 S.E.2d at 541. This is just wrong. The
uninsured motorist statutes are not intended to bolster the profits of an insurance
company, and facilitate the sale of additional automobile insurance policies. W.Va.
Code, 33-6-31(c), by its own terms, requires the insurance company to provide
uninsured motorist coverage, not for each motor vehicle owned by the named insured, but
instead for the “named insured,” his or her resident spouse, and the relatives
of either who reside in their household, while “in a motor vehicle or
otherwise.”See footnote 4 4
The Legislature's intent to connect
uninsured motorist coverage to the person and not the insured vehicle is indicated by the
terms used in W.Va. Code, 33-6-31(c). The statute states that the named insured,
his or her resident spouse, and relatives of either who reside in their household, are to
be covered by an uninsured motorist policy while riding in “a” motor vehicle,
not “an insured” motor vehicle.See footnote
5 5 Conversely, the Legislature connected coverage for “any [other]
person” specifically to the insured motor vehicle -- stating that coverage applies to
“any person . . . who uses, with the consent, expressed or implied, of the named
insured, the motor vehicle to which the policy applies.” The Legislature could have
tied uninsured motorist coverage in all instances to the vehicle insured under the
automobile policy; it did not, and instead chose to tie coverage to the named insured, his
or her spouse, and their relatives residing in their household, whether in a motor vehicle
-- any motor vehicle -- or otherwise.
Most courts examining similar language in
their uninsured motorist statutes have concluded that their legislatures intended, by
focusing uninsured motorist coverage on the “insured” rather than the
“insured vehicle,” to make uninsured motorist coverage “person
oriented” rather than “vehicle oriented.” The coverage therefore attaches
to the insured person, wherever located, not the insured vehicle.See footnote 6 6
The majority of states, applying statutory
language similar to W.Va. Code, 33- 6-31(b) and (c), have concluded that uninsured
motorist coverage is intended to protect insurance consumers and their families, and not
the insured vehicle. “The coverage is portable: The insured and family members are
covered not only when occupying the covered vehicle, but also when in another automobile,
and when on foot, on a bicycle or even sitting on a porch.” Bradley v. Mid-Century
Ins. Co., 409 Mich. 1, 24, 294 N.W.2d 141, 145 (1980). As the Michigan Supreme Court
stated in Bradley:
The status of the named insured and his
relatives as persons insured against negligent uninsured motorists is not altered by there
being other family vehicles having no uninsured motorist coverage. They acquire their
insured status when coverage is purchased for any household vehicle. Thereafter, they are
insured no matter where they are injured. They are insured when injured in an owned
vehicle named in the policy, in an owned vehicle not named in the policy, in an unowned
vehicle, on a motorcycle, on a bicycle, whether afoot or on horseback or even on a pogo
stick.
409 Mich. at 38, 294 N.W.2d at 152.
I would therefore hold that W.Va. Code,
33-6-31(b) [1995] requires an insurance company, in any automobile insurance policy, to
provide uninsured motorist coverage that will pay the “insured” all sums which
he or she shall be legally entitled to recover as damages from the owner or operator of an
uninsured motor vehicle. Uninsured motorist coverage protects the “insured”
person, as defined in W.Va. Code, 33-6-31(c), who is injured by an uninsured
motorist, no matter where the insured person may be at the time of injury. Because Imgrund
v. Yarborough, 199 W.Va. 187, 483 S.E.2d 533 (1997) conflicts with this statutory
principle, it should be overruled.See footnote 7 7
B.
An Insurance Company Must Offer Uninsured and Underinsured Motorist
Coverage in Amounts Up To and Equal to the Limits of Liability Coverage --
Without Conditions, Limitations, or Exclusions
The second statutory clause that was not
discussed in Imgrund is that portion of W.Va. Code, 33-6-31(b) which requires
an insurance company to offer uninsured motorist coverage in excess of the statutory
mandatory minimum. W.Va. Code, 33-6-31(b) states, in pertinent part, that within an
automobile insurance policy an insurance company:
. . . 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.
We have repeatedly construed this language to mean that an insurance company is required
to offer an insurance consumer the right to purchase an amount of uninsured motorist
coverage equal to the level of liability coverage. This is a mandatory requirement -- it
is not an option on the part of the insurance company.
In Bias v. Nationwide Mut. Ins. Co.,
179 W.Va. 125, 365 S.E.2d 789 (1987), we interpreted this clause in W.Va. Code,
33-6-31(b) to mean that an ability to purchase a higher limit of uninsured motorist
coverage “shall be offered [to the consumer], and this [statutory] language
must be afforded a mandatory connotation.” 179 W.Va. at 127, 365 S.E.2d at 791. The
insurance company must offer the coverage; the insurance consumer then has the
option to purchase that coverage. We went on to hold, at Syllabus Point 1, that
Where an offer of optional coverage is
required by statute, the insurer has the burden of proving that an effective offer was
made, and that any rejection of said offer by the insured was knowing and informed.
In Riffle v. State Farm Mut. Auto Ins.
Co., 186 W.Va. 54, 410 S.E.2d 413 (1991), we made clear that if an insurance company
fails to make an effective offer of the level of un- or underinsured motorist coverage
required by W.Va. Code, 33-6-31(b), then under Bias that level of insurance
will be read into the policy.See footnote 8 8
As we stated in Syllabus Point 2, “when an insurer fails to prove an effective
offer and a knowing and intelligent waiver by the insured, the insurer must provide the
minimum coverage required to be offered under the statute.” We held in Riffle
that, in the absence of a proper offer, the minimum amount of uninsured and underinsured
motorist coverage that an insurance company will be required to provide under the statute
is “'an amount not less than the limits of bodily injury liability insurance and
property damage liability insurance.'” 186 W.Va. at ___, 410 S.E.2d at 414.
Our cases applying Bias have
repeatedly interpreted W.Va. Code, 33-6-31(b) as imposing a mandatory requirement
that an insurance company offer a consumer uninsured motorist coverage in an amount equal
to the level of liability coverage purchased. If the insurance company fails to make a
proper offer, then uninsured motorist coverage in an amount equal to the level of
liability coverage is presumed, as a matter of law, to be included in the policy.
This line of cases, however, is
contradicted by our holding in Imgrund. Imgrund, sub silentio, suggests that
an insurance company's offer of uninsured and underinsured motorist coverage above the
statutory mandatory minimum is purely optional -- and therefore, the amount of coverage
can be limited by exclusions. Imgrund, 199 W.Va. at 193, 483 S.E.2d at 539.
Thus, there is a contradiction between our
interpretation of W.Va. Code, 33-6- 31(b) in Bias and its progeny, and its
interpretation in Imgrund. Bias holds that an insurance company must
offer a certain amount of uninsured motorist coverage -- if the insurance company fails to
make a commercially reasonable offer of coverage, then uninsured motorist coverage in an
amount equal to the amount of liability coverage is automatically read into the policy. Imgrund
tells insurance companies they can meet their statutory obligation by offering uninsured
motorist coverage with limits equal to the level of liability coverage -- but can
condition and limit that coverage by including numerous exceptions, so long as the
insurance consumer is only asked to pay “appropriately adjusted premiums.”
This contradiction undermines the
Legislature's goal of fully protecting responsible citizens and their families from
irresponsible, uninsured motorists. “[T]he preeminent public policy of this state in
uninsured and underinsured motorist cases is that the injured person 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 Auto.
Mut. Ins. Co. v. Youler, 183 W.Va. 556, 564, 396 S.E.2d 737, 745 (1990). The
Legislature could not have intended to require an insurance company to offer uninsured
motorist coverage, and then allowed the insurance company to void that coverage through
the use of exclusions.
In other words, the appealing logic of Imgrund
withers in the full light of W.Va. Code, 33-6-31(b).
I would therefore hold that when a
consumer purchases an automobile insurance policy, under W.Va. Code, 33-6-31(b)
[1995], the insurance company is required to offer the consumer the ability to purchase
uninsured motorist coverage in an amount up to the level of bodily injury liability
insurance and property damage liability insurance purchased by the consumer. Any attempt
to limit the amount of uninsured motorist coverage purchased by the consumer pursuant to W.Va.
Code, 33-6-31(b) is therefore void as against public policy. Because Imgrund conflicts
with this statutory principle, it should be overruled.
C.
W.Va. Code, 33-6-31(k) Has No Application to Liability,
Uninsured or Underinsured Motorist Coverage
The majority opinion in this case, and
in Imgrund, contends that W.Va. Code, 33-6-31(b) only requires an insurance
company to offer the mandatory minimum limit of uninsured motorist coverage set by W.Va.
Code, 17D-4-2, or $20,000 bodily injury protection per person, $40,000 bodily injury
protection per occurrence, and $10,000 in property damage protection. The majority opinion
leaves the impression that any amounts offered above that mandatory minimum limit is
offered at the grace and beneficence of the insurance company -- and that W.Va. Code,
33-6-31(k) specifically authorizes the insurance company to include any exclusions that it
wants in that optional coverage.
W.Va. Code, 33-6-31(k) states:
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.
W.Va. Code, 33-6-31(k) is not a
model of statutory drafting. The statute was enacted by the Legislature in 1979,See footnote 9 9 as part of a complete
revision of the compulsory insurance laws. However, there is no hint of what the
Legislature meant by the statute. See 1979 Acts of the Legislature, Chapter
61. But in attempting to interpret the statute, it must be read in its entirety, and not
as a string of separate clauses.
In the construction of a legislative
enactment, the intention of the legislature is to be determined, not from any single part,
provision, section, sentence, phrase or word, but rather from a general consideration of
the act or statute in its entirety.
Syllabus Point 1, Parkins v. Londeree, 146 W.Va. 1051, 124 S.E.2d 471 (1962).
W.Va. Code, 33-6-31 prescribes the
basic terms for automobile liability insurance, uninsured motorist coverage, and
underinsured motorist coverage. The first clause of W.Va. Code, 33-6-31(k) states
that nothing in W.Va. Code, 33-6-31, as a whole, prevents an insurance company from
offering “benefits and limits other than those prescribed herein[.]” This means
that an insurance company can offer other types of benefits and coverage in an automobile
insurance policy different from liability, uninsured motorist, and underinsured motorist
coverage -- such as comprehensive coverage, collision coverage, towing coverage, alien
abduction insurance, or whatever.
The second clause of W.Va. Code,
33-6-31(k) must be read together with the first clause; it cannot be read separately, as
the majority opinion did in Imgrund. The second clause states that if an insurance
company offers these “other” coverages, then the insurance company also has the
right to include as part of that “other” coverage “such terms, conditions
and exclusions as may be consistent with the premium charged.” The terms, conditions
and exclusions can be placed on the “other” coverages -- not on
liability, un- or underinsured motorist coverages.
I find absolutely nothing in W.Va.
Code, 33-6-31(k) to suggest that the Legislature intended to allow insurance companies
to limit the mandatory liability, uninsured and underinsured motorist coverage required by
W.Va. Code, 33-6-31. Furthermore, we are required by principles of statutory
construction to interpret W.Va. Code, 33-6-31(k) in a manner favorable to the
insurance consumer. “The uninsured motorist statute, West Virginia Code Sec. 33-6-31
(Supp. 1986), is remedial in nature and, therefore, must be construed liberally in order
to effect its purpose.” Syllabus Point 7, Perkins v. Doe, 177 W.Va. 84, 350
S.E.2d 711 (1986).
Yet the majority opinion in this case and
in ImgrundSee footnote 10 10 stretches
and tortures W.Va. Code, 33-6-31 to allow insurance companies to eliminate these
mandatory coverages through the use of exclusions -- and does so to the detriment of
insurance consumers. By stretching W.Va. Code, 33-6-31(k) from applying only to
optional coverages to applying also to mandatory liability, un- and underinsured motorist
coverages, the majority suggests that insurance companies can give coverage with one hand
and take it away with the other. Applying Imgrund in its literal sense, an
insurance company can offer insurance consumers $300,000 in uninsured motorist coverage --
but then say that, as to $280,000 in that coverage, coverage is excluded if the consumer
is injured by an uninsured motorist on any day between Monday and Saturday, or coverage is
excluded if the uninsured motorist was driving an American made car, or coverage is
excluded if the insured consumer happens to be riding in an automobile she jointly owns
with another person, but which is fully insured by another insurance company, and so on.
As long as the insurance company has asked the consumer to pay “appropriately
adjusted premiums,”See footnote 11 11
it appears the insurance company can include any ridiculous exclusion that it wants to
include in its policy.See footnote 12 12
The Imgrund majority's fundamental
breach of the statutory construction principles that are set forth in Perkins v. Doe
has not yet been brought to the Court's attention. When it is brought before the Court, I
hope the Court realizes the loophole it has created by its misinterpretation of W.Va.
Code, 33-6-31(k), and places a proper interpretation on the statute.See footnote 13 13
Just for argument's sake, however, let us
assume that the Legislature did intend for W.Va. Code, 33-6-31(k) to apply to
uninsured motorist coverage, and did intend to allow an insurance company to limit that
coverage through exclusions subject to “appropriately adjusted premiums.” The
evidence in this case is that Mary Mitchell paid Anthem Casualty Insurance Company $72
every 6 months for $300,000 per person, $300,000 per occurrence in uninsured and
underinsured motorists bodily injury coverage. She also paid $14 every 6 months for
$300,000 in property damage coverage. That's it; there is no other evidence regarding
whether these premiums were “appropriately adjusted” to reflect the “owned
but not insured” exclusion.
We have repeatedly taken the position in
our case law that “[i]nsurance contracts are notoriously complex . . . and border on
the status of contracts of adhesion. Under this view the insured and insurer do not stand
in pari causa, and therefore, the insured's assent to the agreement lacks
completeness in relation to that of the insurer.” Bell v. State Farm Mut. Auto
Ins. Co., 157 W.Va. 623, 628-29, 207 S.E.2d 147, 150-151 (1974) (citations omitted).
As we said in National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734,
741-42 n. 6, 356 S.E.2d 488, 495-96 n. 6 (1987):
These policies are contracts of adhesion,
offered on a take-it-or-leave-it basis, often sight unseen until the premium is paid and
accepted, full of complicated, almost mystical, language. “It is generally recognized
the insured will not read the detailed, cross-referenced, standardized, mass-produced
insurance form, nor understand it if he does.” C & J Fertilizer, Inc. v.
Allied Mutual Insurance Co., 227 N.W.2d 169, 174 (Ia.1975); accord, 3 Corbin
on Contracts § 559 (1960); Keeton, [Insurance Law Rights at Variance with Policy
Provisions,] 83 Harv.L.Rev. [961] at 968 [1970]. The majority rule is that the insured
is not presumed to know the contents of an adhesion-type insurance policy delivered to
him, 7 Williston on Contracts § 906 B (1963), and we hereby adopt the majority
view.
This Court does not seriously expect that
an insurance consumer will carefully read and understand an insurance policy. In fact,
most consumers never even see the policy until after the premiums are paid, and therefore
cannot be tightly bound by the terms of an exclusion that was never communicated to the
consumer at the time the policy was purchased. For example, the court in Rempel v.
Nationwide Life Ins. Co., Inc., 471 Pa. 404, ___, 370 A.2d 366, 368 (1977) recognized
that:
[T]he consumer's signature is not required
on the policy. In fact, it is received weeks, or perhaps longer, after the signing of the
application. The significant decision by the consumer is not made when the policy is
received. The receipt of the policy is the acceptance of the offer previously made. It is
at the time that the offer is being made by the consumer -- when the application is being
signed -- that the consumer is making the decision to “buy” or “not to
buy” the insurance. By the time the written policy is received, it has lost its
importance to the insured.
In Reliance Ins. Co. v. Moessner, 121 F.3d 895, 905 (3d Cir. 1997) the court
similarly stated that:
The control exercised by insurers is
especially problematic when the insured . . . does not receive the actual insurance policy
until after offering to buy insurance and paying the first premium. . . . [W]hen the
insured does not know or have reason to know of the existence of an unfavorable provision,
then the insured lacks the ability to negotiate a more favorable insurance policy, and
[the insured's] sophistication or putative bargaining power is meaningless.See footnote 14 14
Because of this, if an insurance
company intends to rely upon an exclusion that was stuck into an automobile insurance
policy with “appropriately adjusted premiums,” there must be some evidence that
the exclusion was brought to the attention of the insurance consumer. In other words, the
exclusion must be noted on the declarations page or some other document, with the
statement that the insurance company has reduced the consumer's premiums to reflect the
reduction in coverage.
The insurance company cannot simply say,
“Here's the premium. We've adjusted it to reflect the exclusion. Trust us!” The
insurance company similarly cannot introduce an affidavit from an attorney at the home
office who says the same thing. The only way the insurance consumer could challenge such
an unsupported statement is by hiring dozens of actuaries and accountants to spend a few
hundred thousand dollars plowing through mounds of insurance company premium data, all to
determine if the insurance company “appropriately” reduced its premium by a few
dollars.
“With respect to insurance contracts, the doctrine of reasonable expectations is that the objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” Syllabus Point 8, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). There is nothing in the record to indicate that Anthem Casualty Insurance Company specifically told Mary Mitchell of the existence of the “owned but not insured” exclusion, and nothing to show it told her it “appropriately adjusted [its] premiums” to reflect that exclusion. Therefore, even if a painstaking study of the policy might have revealed the exclusion to Mary Mitchell, she reasonably expected she paid premiums for full coverage under the policy -- and therefore, the exclusion is void and unenforceable.
D.
Conclusion
Provisions in an insurance policy that
are more restrictive than statutory requirements are void and ineffective as against
public policy. See Syllabus Point 2, Universal Underwriters Ins. Co. v. Taylor,
185 W.Va. 606, 408 S.E.2d 358 (1991); Syllabus Point 2, Johnson v. Continental Casualty
Co., 157 W.Va. 572, 201 S.E.2d 292 (1973). As to uninsured motorist coverage, we have
specifically held:
The Uninsured Motorist Law, Chapter 33,
Article 6, Section 31, Code of West Virginia, 1931, as amended, governs the relationship
between an insured and insurer and provisions within a motor vehicle insurance policy
which conflict with the requirements of the statute, either by adding to or taking away
from its requirements are void and ineffective.
Syllabus Point 1, Bell v. State Farm Mut. Auto. Ins. Co., 157 W.Va. 623, 207 S.E.2d
147 (1974). In other words, “[s]tatutory provisions mandated by the Uninsured
Motorist Law, W. Va. Code § 33-6-31 [1988] may not be altered by insurance policy
exclusions.” Syllabus Point 1, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92
(1989).
When the language of an insurance policy
is contrary to statute and therefore void, the policy should be construed to contain the
coverage required by West Virginia law. W.Va. Code, 33-6-17 [1957] mandates that:
Any insurance policy, rider, or
endorsement hereafter issued and otherwise valid which contains any condition or provision
not in compliance with the requirements of this chapter, shall not be thereby rendered
invalid but shall be construed and applied in accordance with such conditions and
provisions as would have applied had such policy, rider, or endorsement been in full
compliance with this chapter.
Because the language of Anthem's uninsured
motorist insurance policy does not comport with the broad terms of W.Va. Code,
33-6-31, the policy language is void and the policy must be construed to contain the
coverage provided for by statute.
The exclusion attempts to focus uninsured
motorist coverage, not on the insurance consumer, but on the insured vehicle. W.Va.
Code, 33-6-31(b) requires Anthem to provide uninsured motorist coverage to the
“insured,” wherever the insured may be when injured by an uninsured motorist;
the Anthem exclusion, however, improperly limits coverage based on the insured's location:
it precludes coverage when the insured is injured while riding in a vehicle owned by the
insured but not insured under the Anthem policy.
If Mary Mitchell had been injured by
Broadnax while she was riding in a car she did not partially own, while walking down the
road, or while sitting on the front porch of her house, then she would be covered by the
Anthem policy. Even under Anthem's theory, if Mary Mitchell had turned to her daughter
moments before the accident and given her daughter a gift of her 50% share of the Pontiac,
then she would be covered by the Anthem policy. W.Va. Code, 33-6-31(b) requires
coverage of Mary Mitchell in all these circumstances -- but it also requires coverage when
she was injured while riding in a vehicle that she partially owned. The coverage that Mary
Mitchell purchased from Anthem was personal to Mary Mitchell -- it traveled with her, not
with her car.
Furthermore, Mary Mitchell had purchased
$300,000 in liability coverage on her 1981 Buick. Anthem properly offered her $300,000 in
uninsured motorist coverage, as it was required to do under Bias v. Nationwide Mut.
Ins. Co. and W.Va. Code, 33-6-31(b), and Mary Mitchell bought that coverage.
Anthem should not have been allowed to limit the coverage it was statutorily required to
provide through the “owned but not insured” exclusion. To do so violates the
long-standing public policy of this State that responsible insurance consumers and their
families, who have purchased or are otherwise covered by uninsured motorist coverage, be
fully compensated for any damages caused by a negligent, uninsured tortfeasor.See footnote 15 15
Lastly, the majority is just wrong in its
interpretation of W.Va. Code, 33-6- 31(k). That Code section applies to
various and sundry coverages other than liability, un- and under-insured motorist
coverages.
Because Imgrund conflicts with
each of these statutory principles, it should be overruled. Because the majority opinion
repeats these errors, I must respectfully disagree with the majority's conclusion. I
believe that Mary Mitchell's estate should be allowed to recover the full proceeds of the
policy that she paid for. I therefore respectfully dissent.
I am authorized to state that Justice
McGraw joins in this dissenting opinion.
Footnote: 1
1Similar reasoning applies to the underinsured motorist statute -- hence, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989) should also be overruled.Footnote: 2
2W.Va. Code, 33-6-31(c) defines a “named insured” in the following fashion:As used in this section, . . . the term “named insured” shall mean the person named as such in the declarations of the policy or contract and shall also include such person's spouse if a resident of the same household[.]
Footnote: 3
3In Imgrund, we noted that the appellee/insured had already recovered $20,000 in proceeds from an uninsured motorist policy covering his motorcycle. We concluded that because Imgrund had recovered the $20,000 he was statutorily entitled to recover, he could not collect additional amounts under his parents' policy.This conclusion is dead wrong. First, W.Va. Code, 33-6-31(b) tells insurance companies what coverage they must include in each separate insurance policy; its requirements do not apply to insurance consumers. Hence, even if the “owned but not insured” exclusion is valid and enforceable above the mandatory minimum limits under West Virginia law, Imgrund should have been able to collect $20,000 from his parents' policy because, by law, his parents' insurance company was required to provide the minimum limits of uninsured motorist coverage to each “insured” -- and as a resident relative of his parents' house, Imgrund meets the statutory definition of “insured.”
Furthermore, W.Va. Code, 33-6-31(b) requires every automobile insurance policy to contain uninsured motorist coverage that is available “without setoff against the insured's policy or any other policy.” Again, Imgrund holds that because Imgrund received $20,000 from his motorcycle insurance policy, that amount acts as a setoff to prevent recovery from his parents' insurance policy. This position plainly violates the insurance code.
Footnote: 4
4Professor Widiss, in his treatise on uninsured and underinsured motorist coverage, has also criticized the argument that the “owned but not insured” exclusion is designed to encourage the acquisition of uninsured motorist insurance on each vehicle owned by a motorist. He stated:. . . the exclusion serves both the industry's interest in promoting the sale of insurance and the public interest in having owners acquire liability insurance for all vehicles. Although these are laudable objectives, it is doubtful whether the exclusion has much impact in fulfilling them because most purchasers are probably unaware of the exclusion and its impact on the uninsured motorist coverage. Therefore, it is unlikely that the exclusion actually promotes the acquisition of liability insurance. In addition, most exclusions apply to all vehicles owned by family members who reside in the same household, regardless of whether the vehicles are covered by another insurance policy. Thus, it seems unlikely that promoting the acquisition of liability insurance for all vehicles owned by family members who reside in the same household is an important reason for the inclusion of this exclusion in the uninsured motorist coverage.
1 Alan I. Widiss, Uninsured and Underinsured Motorist Coverage § 4.19 at 157-58 (2d Rev. Ed. 1999).
The fallacy of the Court's statement in Imgrund, that W.Va. Code, 33-6-31(b) is intended to “require motorists to have in force and effect uninsured motorist coverage for each motor vehicle he or she owns,” is also made apparent by the facts in this case: Mary Mitchell had full liability and uninsured motorist coverage on both the Pontiac jointly owned with her daughter Naomi, and the Buick that she solely owned. If the Legislature intended for Mary Mitchell to purchase uninsured motorist coverage on each car she owned, then that goal was achieved. Imgrund acts to deny her coverage, not because she did not insure the Pontiac, because she bought her insurance coverage for the two vehicles from two separate insurance companies rather than one. In a sense, then, Imgrund encourages anti-competitive behavior by insurance companies in the insurance marketplace.
Footnote: 5
5The term “motor vehicle” can be problematic, as is illustrated by a case from Alaska.In Hillman v. Nationwide Mutual Fire Ins. Co., 758 P.2d 1248 (Alaska 1988), an
11-year-old girl was killed by an uninsured driver while she was riding on a three-wheeled
ATV. The ATV could not be insured under the Hillman's automobile insurance policy because
it did not meet the policy's definition of a “motor vehicle” -- it was not a
“vehicle designed to be driven on public roads.” The insurance company, however,
refused coverage because the girl was killed while riding on a motor vehicle that was
“owned but not insured” under the Hillman family's automobile insurance policy.
The Alaska Supreme Court concluded, based upon Alaska's uninsured motorist insurance law,
that:
All that the statutory coverage requires
is that the person injured be insured and that he or she be entitled to recover damages
from the operator of the uninsured motor vehicle arising out of the use of the uninsured
motor vehicle. Those conditions are met in this case. Statutory coverage bears no
relationship to the occupancy of any particular motor vehicle by the person insured. For
the policy to impose as a coverage limitation a requirement that the person insured not be
occupying an owned uninsured vehicle plainly conflicts with the mandated coverage[.]
The court went on to hold the “owned but not insured” exclusion was
unenforceable.
Footnote: 6
6Numerous courts have held that “owned but not insured” exclusions are void and unenforceable on the ground that uninsured motorist coverage is “person oriented” rather than “vehicle oriented.” See, e.g., State Farm Auto. Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974) (owned but not insured exclusion was invalid because statute “mandates uninsured motorist coverage for 'persons insured thereunder' in the policy”); Calvert v. Farmers Ins. Co. of Arizona, 144 Ariz. 291, 697 P.2d 684 (1985) (relying on a “majority” of 26 jurisdictions that rejected “other vehicle” exclusions, court concluded that uninsured motorist statute established public policy “that every insured is entitled to recover damages he or she would have been able to recover if the uninsured had maintained a policy of liability insurance in a solvent company.”); Harvey v. Travelers Indem. Co.,188 Conn. 245, 449 A.2d 157 (1982) partially superseded by statute as stated in Travelers Ins. Co. v. Kulla, 216 Conn. 390, 579 A.2d 525 (1990) (exclusion was void as against public policy because the coverage required by the uninsured motorist statute is “person oriented” rather than “vehicle oriented.”); Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga.App. 285, 196 S.E.2d 485, aff'd in part, rev'd in part on other grounds, 231 Ga. 269, 201 S.E.2d 444 (1973) (in underinsured motorist coverage, “the named insured is covered wherever he is, whether in that car, another car or no car;” exclusion of coverage for “occupying . . . a vehicle owned by the named insured . . . if such vehicle is not an insured automobile” was void as contrary to the uninsured motorist statute); Squire v. Economy Fire & Cas. Co., 69 Ill.2d 167, 370 N.E.2d 1044 (1977) (to the extent the exclusion makes coverage dependent upon insured being in a vehicle listed in the policy, it is void; the uninsured motorist statute requires coverage regardless of the vehicle being driven); Farmers Ins. Co., Inc. v. Gilbert, 14 Kan.App.2d 395, 791 P.2d 742, aff'd 247 Kan. 589, 802 P.2d 556 (1990) (uninsured motorist coverage protects a named insured “no matter where the named insured may be at the time of injury;” KSA 40-284 [1981] specifically authorizes an exclusion of uninsured motorist coverage “arising out of the use of another owned vehicle only if the other owned vehicle is uninsured;” a broad exclusion of coverage is unenforceable); Chaffin v. Kentucky Farm Bureau Ins. Co., 789 S.W.2d 754 (Ken. 1990) (uninsured motorist coverage is mandated by statute and has a “personal nature;” coverage cannot be made illusory by exclusions, so exclusion is contrary to public policy and void); Bradley v. Mid-Century Ins. Co., 409 Mich. 1, 294 N.W.2d 141 (1980) (uninsured motorist “coverage is portable;” “owned vehicle exclusion” declared invalid); Jacobson v. Implement Dealer Mut. Ins. Co., 196 Mont. 542, 640 P.2d 908 (1982) (statute requires all automobile insurance policies contain uninsured motorist coverage; citing to cases making coverage “person oriented,” court held exclusion void because it reduces the scope of coverage required by statute, and is contrary to public policy); Martin v. Midwestern Group Ins. Co., 70 Ohio St.3d 478, 639 N.E.2d 438 (1994) (“other owned vehicle” exclusion was unenforceable; uninsured motorist statute mandates coverage to protect persons, not vehicles); Monteith v. Jefferson Ins. Co. of New York, 159 Vt. 378, 618 A.2d 488 (1992) (“the essence of UM/UIM coverage under § 941 is its portability. The statute does not allow insurers to condition coverage on the location of the insured nor the insured's status as a motorist, a passenger in a private or public vehicle, or as a pedestrian.”).See also, 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 4.2, at 60-61 (2d Ed. 1992) (“Persons who are either named insureds or family members residing with a named insured . . . are afforded relatively comprehensive protection by the provisions used in most uninsured motorist insurance coverages.” As insureds they “are protected when they are operating or are passengers in a motor vehicle, as well as when they are engaged in any other activity such as walking, riding a bicycle, driving a hay wagon, or even sitting on a front porch.”)
Footnote: 7
7Under W.Va. Code, 33-6-31(b) and (c), a family member of the “named insured” (i.e., the person named on the policy's declarations page) who resides in the same household as the named insured would, if injured due to the negligence of an uninsured driver, be entitled to coverage under the named insured's uninsured motorist policy, without regard to their location at the time of injury. The requirements of W.Va. Code, 33-6-31(b) and (c) apply to each separate “policy or contract” for insurance, not the person insured by the policy. Hence, plaintiff-below Naomi Mitchell, as a resident relative of Mary Mitchell's household, would be entitled to uninsured motorist coverage under Mary Mitchell's uninsured motorist policy -- regardless of whether she collected any benefits from any other uninsured motorist policy.Footnote: 8
8In the wake of Bias, the Legislature has provided insurance companies with the form which must be used to make a proper offer of uninsured and underinsured motorist coverage. See W.Va. Code, 33-6-31(d) (1995). See also, Westfield Ins. Co. v. Bell, 203 W.Va. 305, 507 S.E.2d 406 (1998) (per curiam).Footnote: 9
9W.Va. Code, 33-6-31(k) was adopted by the Legislature in 1979. In 1982, W.Va. Code, 33-6-31(b) was amended by the Legislature to impose upon an insurance company the aforementioned duty to offer uninsured motorist coverage with limits up to or equal to the limit of liability coverage purchased by the consumer. Again, it seems nonsensical for the Legislature to write a statute in 1982 that requires an insurance company to offer coverage, but allow that coverage to be undermined by a 1979 statute concerning exclusions. This supports the position taken in the text that the Legislature never intended for W.Va. Code, 33- 6-31(k) to have any application to liability, un- and under-insured motorist coverages.Footnote: 10
10And, in the context of an “owned but not insured” exclusion in an underinsured motorist policy, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).Footnote: 11
11I recognize that insurance companies have to justify their “appropriately adjusted premiums” by presenting evidence to the West Virginia insurance commissioner. But it is the insurance company that holds all of the cards; there is nothing to say an insurance company won't cook the books to increase its profits, and there is very little an insurance consumer can do to dispute the insurance company's evidence.Footnote: 12
12I can find no other state that has stretched such a vague statute to mean that an insurance company is statutorily authorized to include an “owned but not insured” exclusion in an uninsured motorist policy. States that find the exclusion to be statutorily authorized rely upon statutes that specifically, clearly, and unquestionably state that uninsured motorist coverage may be excluded if the insured is injured while occupying a vehicle owned but not insured under the subject policy. See, e.g., California Ins. Code § 111580.2; New Hampshire Ins. Group v. Harbach, 439 So.2d 1383 (Fla. 1983); IDS Property Cas. Ins. Co. v. Kalberer, 661 N.E.2d 991 (Ind.Ct.App. 1996); Farmers Ins. Co. v. Gilbert, 14 Kan.App.2d 395, 791 P.2d 742, aff'd, 247 Kan. 589, 802 P.2d 556 (1990) (KSA 40-284 [1981] authorizes an exclusion of uninsured motorist coverage “arising out of the use of another owned vehicle only if the other owned vehicle is uninsured.”); Sandoz v. State Farm Mut. Auto. Ins. Co., 620 So.2d 441 (La. 1993); Powell v. State Farm Mut. Auto. Ins. Co., 86 Md.App. 98, 585 A.2d 468 (1991); Windrim v. Nationwide Ins. Co., 537 Pa. 129, 64 A.2d 1154 (1993); Dockins v. Balboa Ins. Co., 764 S.W.2d 529 (Tenn. 1989).Footnote: 13
13The insurance company in Imgrund argued, and this Court accepted, that this Court has repeatedly held that an insurance company is only required to provide the statutory mandatory minimum amount of certain types of coverage -- and above that minimum limit of coverage, exclusions can operate to deny the insurance consumer any coverage. This assertion misapplies our prior case law, and ignores the nature of uninsured motorist coverage.In Dotts v. Taressa J.A., 182 W.Va. 586, 390 S.E.2d 568 (1990), we examined liability coverage required by W.Va. Code, 17D-4-2, and held that an insurance company was required to provide the aforementioned minimum $20,000/$40,000/$10,000 limits of liability coverage. We held an exclusion for intentional acts was void up to these limits, but could be applied to exclude coverage above these limits. However, unlike W.Va. Code, 33-6-31(b) and uninsured motorist coverage, there is nothing in W.Va. Code, 17D-4-2 that requires an insurance company to offer liability coverage in an amount greater than the minimum limits. Also, W.Va. Code, 33-6-31(k) is nowhere mentioned in Dotts.
In Jones v. Motorists Mut. Ins. Co., the insurance consumer tried to exclude her teenage son from coverage under her automobile liability policy. The teenage son then wrecked the car and damaged the property of third parties. We held that because W.Va. Code, 17D-4-2 requires the minimum limits of liability coverage to protect third parties, the exclusion of drivers from the minimum limits of liability coverage is prohibited. Above those minimum limits, however, W.Va. Code, 33-6-31(a) specifically allows the insurance company to deny coverage for “any persons specifically excluded by any restrictive endorsement attached to the policy.” Jones, therefore, is substantially different from the instant case, because a “named driver exclusion” is specifically authorized by statute. In the case of uninsured motorist coverage, there is no statute specifically authorizing an “owned but not insured” exclusion.
Footnote: 14
14See also, Atwater Creamery Co. v. Western Nat'l Mut. Ins. Co., 366 N.W.2d 271, 277 (Minn. 1985) (“[I]n the majority of cases, a lay person lacks the necessary skills to read and understand insurance policies, which are typically long, set out in very small type and written from a legalistic or insurance expert's perspective.”); C&J Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 174 (Iowa 1975) (“It is generally recognized the insured will not read the detailed, cross-referenced, standardized, mass-produced insurance form, nor understandit is he does.”); J. Calamari, Duty to Read: A Changing Concept, 43 Fordham L.Rev. 341 (1974) (“[I]n the current era of mass marketing, a party may reasonably believe that he is not expected to read a standardized document and would be met with impatience if he did. In such circumstances an imputation that he assents to all of the terms in the document is dubious law. An assertion that he is bound by them would place a premium upon an artful draftsman who is able to put asunder what the salesman and the customer have joined together.”); Restatement of Contracts (Second) § 207 (noting that standard-form agreements are seldom read). See also, Davis v. M.L.G. Corp., 712 P.2d 985, 992 (Colo. 1986) (“[T]he detailed provisions of standardized contracts are seldom read by consumers.”).
Footnote: 15
15Numerous other states, in addition to those listed in footnote 6, have similarly concluded that the “owned but not insured” exclusion is unenforceable, because the exclusion violates a legislative policy to provide full uninsured motorist coverage to responsible insurance consumers. As Professor Widiss states in his treatise:Courts in a majority of the jurisdictions that have considered enforceability of the other owned vehicle/household family member exclusion have held that unless a coverage restriction is specifically authorized by the state's uninsured motorist legislation, the exclusion and comparable coverage limitations are against public policy and are, therefore, void.
1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance, §4.19 at 180-181 (Rev. 2d Ed. 1999). As in West Virginia, few states specifically authorize the exclusion. See, e.g., Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248 (Alaska 1988) (ATV struck by uninsured truck was a motor vehicle covered by policy; exclusion of owned but noninsured vehicles prohibited by uninsured motorist statute); Frank v. Horizon Assurance Co., 553 A.2d 1199 (Del.Supr. 1989); Kau v. State Farm Mut. Auto Ins. Co., 58 Hawaii 49, 564 P.2d 443 (1977) (per curiam); Nygaard v. State Farm Mut. Auto. Ins. Co., 301 Minn. 10, 221 N.W.2d 151 (1974); Lowery v. State Farm Mut. Auto. Ins. Co., 285 So.2d 767 (Miss. 1973) (court follows the “great weight of authority” and holds exclusion violates public policy); State Farm Mut. Auto. Ins. Co. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971); Beek v. Ohio Cas. Ins. Co., 73 N.J. 185, 373 A.2d 654 (1977); Chavez v. State Farm Mut. Auto. Ins. Co., 87 N.M. 327, 533 P.2d 100 (1975); Cothren v. Emcasco Ins. Co., 555 P.2d 1037 (Okla. 1976); Hogan v. Home Ins. Co., 260 S.C. 157, 194 S.E.2d 890 (1973); Allstate Ins. Co. v. Meeks, 207 Va. 897, 153 S.E.2d 222 (1967) (court looked to the definitions of “insured” and concluded coverage extended to owned but not insured vehicle). See also, Janet B. Jones, Uninsured Motorist Coverage: Validity of Exclusion of Injuries Sustained by Insured While Occupying “Owned” Vehicle Not Insured by Policy, 30 A.L.R.4th 172 (1981); Shannon M. McDonough, Note: Exclusions for Owned But Not Insured in Uninsured Motorist Provisions -- What Are States Really Driving At In Their Decisions?, 43 Drake.L.Rev. 917 (1995).