West Virginia Code § 29-12A-16(a) (1992) conveys
broad discretion to both the West Virginia State Board of Risk
and Insurance Management, as well as governmental entities,
with regard to the type and amount of insurance to obtain.
Consequently, when an insurer issues a custom-designed
insurance policy to a governmental entity pursuant to the the
Governmental Tort Claims and Insurance Reform Act, West
Virginia Code §§ 29-12A-1 to -18 (1992), that entity may
incorporate language absolutely limiting liability under the
policy, even if such language would otherwise violate the
provisions of West Virginia Code § 33-6-31(b) (1996).
Clearly, BRIM employees such as Mr. Mitts have the statutory authority to limit the coverage available to state employees and anyone else using state-owned vehicles. It is not this Court's job to second guess the decisions that BRIM employees make pursuant to that statutory authority. In Syllabus Point 5 of Gibson, this Court held that any limiting terms and conditions included such policies must be the result of some choice, judgment, volition, wish or inclination as a result of investigation or reasoning by the governmental entity. Because the appellants produced absolutely no evidence to refute the matters set forth in the affidavit of Mr. Mitts, there is simply nothing suggesting that BRIM's decision to include the exclusionary language was not the result of an honest-to-goodness deliberative act on the part of the government entity.
The majority's decision in this case upholds the legislative policy of this State. Just as it would not be proper for this Court to take away benefits which the Legislature has chosen to provide to the hard-working employees of this State who travel the highways in state-owned vehicles, it would also be improper for this Court to create new benefits and impose new costs on governmental entities in contravention of W.Va. Code § 19-12A-16(a). As with all insurance, broader coverage typically costs more. By allowing governmental entities to custom-design their own policies, the Legislature intended to place the ultimate decision of how much to pay and how many benefits to provide in the hands of those entities. In this case, BRIM chose not to provide underinsured motorist coverage for employees who are covered under workers' compensation. While I have sympathy for any state employee who is injured on the job, this Court has no authority to take away the discretion to negotiate the terms and conditions of state insurance policies which the Legislature expressly gave to BRIM. Accordingly, I concur with the majority's decision in this case.