D. Michael Burke, Esq.
Cheryl Lynne Connelly
Burke & Schultz Campbell, Woods, Bagley,
Martinsburg, West Virginia Emerson, McNeer & Herndon
Attorney for Appellant Huntington, West Virginia
Attorney for Appellee
CHIEF JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER AND JUSTICE MCGRAW dissent and reserve the right to file dissenting opinions.
*On September 27, 2000, JUSTICE MCGRAW withdrew his right to file a dissenting opinion and simply dissents.
Maynard, Chief Justice:
This appeal arises from an order of the Circuit Court of Berkeley County
granting a motion for summary judgment to the appellee, West Virginia Insurance
Guaranty Association, against the appellant, Antoinette Cupano. The appellant alleges in
this appeal that the circuit court erred in finding that she cannot stack her underinsured
The facts of this case are not in dispute. On June 22, 1995, the appellant and
plaintiff below, Antoinette Cupano was a passenger in a vehicle operated by her mother,
Mary Ann Cupano, and owned by her father, Vincent J. Cupano, Jr. (hereinafter the
Cupanos). The vehicle driven by Mary Ann Cupano was struck by another vehicle
driven by Stacey C. Miller. As a result of the accident, the appellant sustained injuries to
her right knee and ankle.
At the time of the accident, the Cupanos possessed an assigned risk personal
automobile insurance policy issued by the Coronet Insurance Company (hereinafter
Coronet) with effective dates of July 20, 1994 to July 20, 1995. The policy covered two
vehicles, a 1977 Chevrolet and a 1989 Oldsmobile. In pertinent part, the Cupanos' policy
LIMIT OF LIABILITY
A. With respect to the Uninsured Motorists Coverage/Underinsured Motorist Coverage indicated as applicable in the Schedule or in the Declarations for damages caused by an accident with an uninsured motor vehicle or underinsured motor vehicle respectively:
1. The limit of Bodily Injury Liability shown for each person is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one accident.
* * *
The limits of liability applicable to Uninsured
Motorists Coverage and Underinsured Motorists
Coverage are the most we will pay regardless of the
2. Claims made;
3. Vehicles or premiums shown in the Schedule or the Declarations; or
4. Vehicles involved in the accident.
The Cupanos received a 10% multi-car discount per vehicle on the bodily
injury liability coverage, the property damage liability coverage, and the medical payments
liability coverage.See footnote 1
As a result of these discounts, the premium paid by the Cupanos on
the policy was reduced from $1574.68 to $1429.00, which is a discount on the entire
policy of $145.68.See footnote 2
The Cupanos did not receive a 10% multi-car discount on the
underinsured motorists coverage. The Underinsured Motorists Coverage Offer (Form A)
states that Rates [ ] include [x] do not include multi-car discount.See footnote 3
The policy provided
underinsured motorists bodily injury coverage in the amount of $25,000 per person and
$50,000 per accident on each vehicle covered.
At the time of the accident, Stacey C. Miller was insured under a policy by Nationwide Mutual Insurance Company which carried liability limits of $100,000 per person and $300,000 per accident. Nationwide entered into settlement negotiations with the appellant and offered its full coverage limit of $100,000. After Coronet waived its subrogation rights, the Nationwide settlement was concluded.
The appellant also asserted an underinsured motorist claim under the policy
issued to the Cupanos by Coronet, in which she contended that she was entitled to stack
the underinsured motorist coverage for each vehicle with a resulting limit of $50,000.See footnote 4
Relying upon its anti-stacking language and multi-car premium discount, Coronet
responded that its underinsured motorists coverage was limited to $25,000 which it offered
to the appellant.
Coronet was subsequently declared to be insolvent, and the defendant below
and appellee herein, the West Virginia Insurance Guaranty Association, (hereinafter the
Association) succeeded to and became liable, by operation of W.Va. Code § 33-26-1 et
seq. for covered claims existing against Coronet.See footnote 5
The Association paid the appellant
$24,900, the underinsured motorists limit for one vehicle under the Coronet policy, less
the statutory $100 deductible.See footnote 6
On May 8, 1998, the appellant brought an action against the Association in
which she sought to collect an additional $25,000 as the bodily injury limit of the
underinsured motorists coverage on the second vehicle under the Cupanos' policy. By
order of November 30, 1998, the circuit court denied the appellant's motion for summary
judgment and granted the Association's cross motion for summary judgment. The circuit
court found that the Cupanos' policy contained a valid anti-stacking provision and the
Cupanos received a multi-car discount on the total policy premium. By order of January
27, 1999, the circuit court denied the appellant's motion to amend or alter the judgment.
We begin our discussion by setting out the standard of review of an order
granting summary judgment. In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189,
451 S.E.2d 755 (1994), we stated that [a] circuit court's entry of summary judgment is
reviewed de novo. Also, [a] motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the
facts is not desirable to clarify the application of the law. Syllabus Point 3, Aetna
Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770
Also, in this case we are asked to determine the proper coverage of an
insurance contract. We have stated that [d]etermination of the proper coverage of an
insurance contract when the facts are not in dispute is a question of law. Mitchell v.
Federal Kemper Ins. Co., 204 W.Va. 543, 544, 514 S.E.2d 393, 394 (1998), citing
Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3rd Cir. 1985). With this in mind, we
now consider the issues raised by the appellant.
Miller, 194 W.Va. at 133, 459 S.E.2d at 410, quoting Russell v. State Auto. Mut.
Insurance Co., 188 W.Va. 81, 85, 422 S.E.2d 803, 807 (1992). (Additional citation
In the instant case, there is no contention that the Cupanos' policy does not
contain valid anti-stacking language. Also, it is undisputed that the Cupanos' policy is a
single insurance policy which covers two vehicles. Accordingly, the dispositive issue in
this case is whether the Cupanos received a multi-car discount on the total policy
premium as required by syllabus point 4 of Miller.
As noted above, the circuit court found that the 10% multi-car discounts on
the premiums charged for bodily injury liability, property damage liability, and medical
payments coverages constitute a discount on the total policy premium. The appellant
maintains, to the contrary, that multi-car discounts on some, but not all, coverages
contained in a single insurance policy constitute a discount on only a partial policy
premium and not the total policy premium. According to the appellant, a multi-car
discount on the total policy premium can be shown in either of two ways. First, a discount
applied individually to the premiums charged for each separate coverage contained in a
policy constitutes a discount on the total policy premium. The appellant concedes,
however, that the validity of anti-stacking language is not contingent upon the presence of
a specific multi-car discount applied to the premium paid for underinsured motorists
coverage. Accordingly, the appellant avers that a multi-car discount on the total policy
premium also includes a discount applied to the aggregate of premiums charged on all
coverages contained in the insurance policy. In other words, the multi-car discount must
be subtracted from the total policy premium once it is calculated by adding together the
premiums on each separate coverage contained within the policy.
The appellant recognizes that the insurance policy at issue in Miller did not
include a multi-car discount on the premium charged for uninsured coverage. The
appellant distinguishes Miller from the case sub judice, however, by noting that in the
instant case a multi-car discount is expressly exempted for underinsured coverage whereas
in Miller there was no such specific exemption. The appellant also opines that it is unfair
to prevent her from stacking underinsurance coverage because her parents did not receive
a multi-car discount on the premium charged for such coverage. We disagree.
The appellant's argument essentially hinges on the words total policy
premium contained in syllabus point 4 of Miller. The appellant, however, urges us to
define these words in a way that is not in accord with the facts of Miller. [T]he statement
contained in a syllabus is to be read in the light of the opinion. Jones v. Jones, 133
W.Va. 306, 310, 58 S.E.2d 857, 859 (1949), citing Koblegard, Trustee v. Hale, 60 W.Va.
37, 41, 53 S.E. 793,  . See also State v. Franklin, 139 W.Va. 43, 79 S.E.2d
692 (1953). We believe it is clear from the facts of Miller that an anti-stacking provision
is valid as to underinsurance coverage even though no multi-car discount applies
specifically to that coverage. We also believe it is clear from Miller that in order to show
a multi-car discount on the total policy premium, one does not have to show that the
discount was applied to the aggregate of all the premiums on all the separate coverages
included in the policy.
As set forth previously, the facts of Miller show that the plaintiffs, by purchasing a single multi-vehicle insurance policy, received a discount in premiums for bodily injury liability coverage of $28 per vehicle and a discount in premiums for medical payments coverage of $1 per vehicle. No multi-car discount was applied to premiums for uninsured motorists bodily injury and property damage coverages. Also, there is no evidence that the multi-car discounts applied to the plaintiffs' single multi-vehicle policy were deducted from the aggregate of all the premiums of the various coverages. Rather, the multi-car discount was deducted from specific coverages contained in the policy, i.e., bodily injury liability coverage and medical payments coverage. In Miller, this Court considered these discounts to constitute a multi-car discount on the total policy premium.
Therefore, reading syllabus point 4 of Miller in light of its facts, we
conclude that it stands for the proposition that anti-stacking language in an automobile
insurance policy is valid and enforceable as to uninsured and underinsured motorist
coverages where the insured purchases a single insurance policy to cover two or more
vehicles and receives a multi-car discount on at least one of the coverages included in the
policy so that the insured pays less for his or her single multi-vehicle insurance policy than
if a separate insurance policy for each vehicle had been purchased.See footnote 8
In the present case, the Cupanos paid a total of $1,429.00 for their single multi-vehicle policy rather than the $1,574.68 they would have paid for separate policies for each vehicle. This is a discount of $145.68. We believe that the fact that the whole dollar premium was not added up without the discount and then the discount deducted from the total is irrelevant. Further, we find no relevance in the fact that the Cupanos' underinsured coverage specifically exempted a multi-car discount. The Cupanos received the benefit of their bargain by insuring two vehicles under one policy and thereby saving $145.68. Therefore, in accordance with Miller, the appellant is not entitled to stack the underinsured motorist coverage.
Finally, the appellant avers that Coronet failed to follow its own rating guideline in the West Virginia Automobile Insurance Plan Manual in charging undiscounted premiums for underinsured coverage. As a result, says the appellant, she is contractually entitled to stack underinsured coverage. The Association responds that the appellant failed to raise this issue below. Our review of the record confirms a failure to preserve this issue for appeal. We have stated many times that [t]his Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance. Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958). See also Vandevender v. Sheetz, Inc., 200 W.Va. 591, 490 S.E.2d 678 (1997), cert. denied, 522 U.S. 1091, 118 S.Ct. 883, 139 L.Ed.2d 871 (1998). Accordingly, we decline to address this issue for the first time on appeal.
For the reasons stated above, we conclude that the Cupanos received a multi-
car discount on the total policy premium of their single, multi-vehicle automobile insurance
policy. Therefore, according to syllabus point 4 of Miller v. Lemon, supra, the anti-
stacking language contained in the policy is valid and enforceable. Accordingly, the circuit
court's grant of summary judgment on behalf of the West Virginia Insurance Guaranty
Association is affirmed.