JUSTICE SCOTT delivered the Opinion of the Court.
A self-insured automobile rental company qualifies as an insurance company
for purposes of accepting service of process on behalf of a nonresident motorist driver
pursuant to the provisions of West Virginia Code § 56-3-31 (Supp. 1999).
This case arises upon certified question from the United States District Court
for the Northern District of West Virginia and presents the issue of whether a self-insured
automobile rental company is an insurance company within the meaning of West Virginia
Code § 56-3-31(h)(7) (Supp. 1999) for purposes of effecting service of process on behalf of
a nonresident motorist driver. After examining the applicable statutory provisions, we
conclude that the statutory definition of insurance company does include entities such as
self-insured automobile rental companies and accordingly, answer the certified question in
On July 15, 1997, Defendant Yi removed the action to federal courtSee footnote 3
a motion to dismiss on the grounds that Korea does not permit service of process via the
mail. The district court rejected this theory on substantive groundsSee footnote 4
and the Fourth Circuit
Court of Appeals dismissed Yi's appeal from this ruling on procedural grounds.See footnote 5
filed a motion for summary judgment on grounds that neither he nor any agent of his had
received service of process by certified mail or any other means. On December 10, 1998, the
district court dismissed the Korzuns' civil action for failure to obtain service of process
within the 120-day period required under Rule 4(m) of the Federal Rules of Civil Procedure.
The district court denied Plaintiffs' motion for an extension of time in which to effect service
as to Yi.
On December 16, 1998, Plaintiffs filed the present civil action against Yi in the
Circuit Court of Monongalia County. After service of process via the Secretary of State's
office was ineffectual, the Korzuns filed the affidavit required by West Virginia Code § 56-3-
31(g)See footnote 6
to obtain service against The Hertz Corporation. Yi removed the second action to
federal court in March 1999 and filed a motion to dismiss for insufficiency of service of
process on the grounds that Hertz is not an insurance company under West Virginia Code
§ 56-3-31 and the running of the applicable statute of limitations.See footnote 7
By order entered on June 30, 1999, Judge Keeley certified the following
question of law to this Court:See footnote 8
Under West Virginia law, is a self-insured automobile rental company, which provides contractual indemnification to authorized operators of its vehicles up to the minimum financial responsibility limits required by West Virginia law, an insurance company under W.Va. Code § 56-3-31(h)(7) upon whom process may be effected on behalf of a non-resident motorist driver of a rented vehicle?
As support for his position, Defendant Yi maintains that, because Hertz does
not issue insurance policies, the car rental agency is necessarily precluded from qualifying
as an insurance company. We find this argument untenable as the statutory definition is
not stated in terms of requiring the issuance of insurance policies as a prerequisite to
qualification as a statutory insurance company. Moreover, as Plaintiffs observe, this
Court's recent pronouncements concerning self-insurance in Jackson v. Donahue, 193 W.Va.
587, 457 S.E.2d 524 (1995), suggest that inclusion of self-insurers such as Hertz as
insurance companies is consistent with the underlying rationale for authorizing companies
to be self-insurers.
In Jackson, this Court recognized that the option to self-insure 'is a privilege,
and it is unimaginable [that] the legislature intended those to whom [West Virginia] grants
this privilege would then be able to use it as a shield against liability to the public under
circumstances where liability insurance would be required to pay.' Id. at 594, 457 S.E.2d
at 531. This Court made clear in Jackson that self-insurers are no different than third-party
insurers with respect to the insurance coverage they provide.See footnote 11
Pivotal to our ruling in
Jackson was acknowledgment of the following tenet: '[T]he fact that the legislature permits
companies to formulate the most efficient insurance coverage should not be misconstrued as
a device to avoid liability by the self-retention of risk.' Id. at 592, 457 S.E.2d at 529
(quoting Hillegass v. Landwehr, 499 N.W.2d 652, 655-56 (Wis. 1993)).
None of the cases cited favorably by Defendant are apposite, either factually
or legally.See footnote 12
At issue in State Farm Mutual Automobile Insurance Co. v. Bogart, 717 P.2d
449 (Ariz. 1986), superseded by statute as stated in Consolidated Enters., Inc. v. Schwindt,
831 P.2d 828 (Ariz. Ct. App. 1991), was whether the payment of the full amount of coverage
provided under Hertz's car rental contract triggered excess insurance coverage under the
driver's individual policy or his employer's policy. After observing that under Arizona law
[a] self-insured car rental agency is treated as primarily responsible for liability arising from
the use of its rented cars, the Supreme Court of Arizona concluded that 'other insurance'
clauses are not triggered by the existence of primary, self-insured responsibility. 717 P.2d
at 454. Defendant cites the Arizona court's statements that a 'self-insurer is not an insurer'
and '[a] self-insurer does not insure liability other than its own' without benefit of any
contextual references. Id. (citing Orkin Exterminating Co. v. Robles, 624 P.2d 329, 331
(Ariz. Ct. App. 1980)) (emphasis omitted). These pronouncements were made solely in
connection with determining whether the availability of self-insurance activated the other
insurance clauses of the two policies at issue. Neither the holding reached in Bogart, nor
the dicta cited by Defendant, has any relevance to the issue of statutory interpretation under
Just as inapplicable is the decision in Cordova v. Wolfel, 903 P.2d 1390 (N.M.
1995), in which the New Mexico Supreme Court examined whether a self-insured
automobile rental company was liable for the negligent acts of an unauthorized driver
pursuant to the state's mandatory financial responsibility act. Preferring to emphasize the
New Mexico Supreme Court's rejection of self-insurance as a sub-set of insurance,
Defendant Yi omitted entirely from his discussion of the Cordova case a critical difference
between New Mexico's and West Virginia's respective financial responsibility laws. Id. at
1392. Unlike West Virginia, New Mexico specifically exempts self-insured motor vehicles
from the provisions of its financial responsibility act. 903 P.2d at 1393. Based solely on the
inapplicability of these laws to self-insured vehicles, the New Mexico Supreme Court
concluded that insurance protection was not afforded to an unauthorized driver of a self-
insured rental vehicle. Id. While Defendant cites Cordova for the purpose of iterating the
distinctions drawn by the court in differentiating self-insurance from insurance,See footnote 13
distinctions have no impact on the limited issue of whether the terms insurance company,
as used in this state's nonresident motorist statute, encompass both issuers of typical
insurance and issuers of self-insurance.
The final case relied upon by Defendant is Quick v. National Auto Credit, 65
F.3d 741 (8th Cir. 1995), cert. denied, 516 U.S. 1153 (1996). In considering and rejecting
the argument that a company's status as a self-insurer was determinative of the applicability
of a bad faith cause of action, the court commented that [t]he Missouri Supreme Court has
recognized . . . that a self-insurer does not automatically assume all the rights and duties that
would exist under an insurance policy. Id. at 745. Rather than resolving the liability issue
solely on the basis of the self-insurer's status, the court looked to the policy language at issue
to determine whether the self-insurer had reserved to itself the exclusive right to accept an
offer to compromise a claim and to settle a dispute. Id. While Yi cites Quick as yet another
case illustrative of the differences between self-insurance and insurance, that decision, like
the others he relies upon, did not involve, even tangentially, the issue of whether a self-
insurer can fall within the definitional language of a statutory provision aimed at permitting
insurance companies to accept service on behalf of nonresident motorists.
What is solely decisive of the issue before us is the language of the statutory
definition of insurance company. Contrary to the view advanced by Yi, nothing in the
definition either requires or suggests that an insurance company must issue an actual policy
of insurance to come within the terms of that definition. It is axiomatic that statutory
provisions which are clear and unambiguous must be given full force and effect. See Syl.
Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Finding no ambiguity
concerning the definitional language of insurance company, we conclude that a self-
insured automobile rental company qualifies as an insurance company for purposes of
accepting service of process on behalf of a nonresident motorist driver pursuant to the
provisions of West Virginia Code § 56-3-31. Cf. Cincinnati Ins. Co. v. Hertz Corp., 776
F.Supp. 1235, 1239-40 (S.D. Ohio 1991) (rejecting Hertz's claim that it was not an insurer
under Nevada's insurance laws where insurer defined to include every person engaged
as principal and as indemnitor surety or contractor in the business of entering into contracts
of insurance). Accordingly, we answer the certified question in the affirmative.
Our decision, while reached without reference to the policy reasons advanced
by Plaintiffs, nonetheless comports with the same objectives discussed in Jackson. In
reaching our holding in Jackson, this Court considered the fact that federal and state
statutory and regulatory schemes concerning self-insurance . . . have for their purpose the
protection of the public. 193 W.Va. at 593, 457 S.E.2d at 530. Similarly, the enactment of
subsection (g), which permits service to be effected on a nonresident defendant's insurer,
also stemmed from concerns rooted in protecting this state's citizenry in the event of a
vehicular accident with a nonresident driver.See footnote 14
See W.Va. Code § 56-3-31(g). While our
interpretation of the phrase insurance company was reached independently of such public
protection objectives, legislative inclusion of self-insured automobile rental companies
within such definition clearly serves the public interest.
Having answered the certified question in the affirmative, this case is dismissed.
Certified question answered.