Robert D. Aitcheson, Esq.
Charles Town, West Virginia
Attorney for the Appellant
Curtis G. Power, III, Esq.
Steptoe & Johnson
Martinsburg, West Virginia
Attorney for the Appellees
JUSTICE NEELY delivered the Opinion of the Court.
1. "'Where provisions in an insurance policy are plain
and unambiguous and where such provisions are not contrary to a
statute, regulation, or public policy, the provisions will be
applied and not construed.' Syl. Pt. 2, Shamblin v. Nationwide
Mut. Ins. Co.  W.Va. , 332 S.E.2d 639, 640 (1985)."
Syllabus Point 2, Deel v. Sweeney, 181 W. Va. 460, 383 S.E.2d 92
2. Although the stacking of uninsured motorist coverage
can be based on the public policy mandate of W. Va. Code 33-6-31
, there exists no statutory or other public policy
requirement that would provide a basis for invalidating or
modifying the anti-stacking language for medical benefits contained
in an insurance policy.
3. "Insurers may incorporate such terms, conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes." Syllabus Point 3, Deel v. Sweeney, 181 W. Va. 460, 383 S.E.2d 92 (1989).
Eric J. Keiper, a guest passenger in a car owned by Ernie
M. Jones, appeals from a declaratory judgment holding that as non-household member, Mr. Keiper is not entitled to stack medical
payments coverage and benefits under Mr. Jones' three separate
insurance policies issued by State Farm Mutual Insurance Company.
Because the language of the policies unambiguously precludes the
stacking of medical payments, we affirmed the decision of the
On 26 April 1989, Mr. Keiper, a guest passenger in a 1984
Buick owned by Mr. Jones and driven by his son, David R. Jones, was
injured when the car left the road and struck a utility pole. Only
the 1984 Buick was involved. As a result of the accident Mr.
Keiper's medical expenses were in excess of $20,000.See footnote 1 Mr. Jones'
insurance provided medical coverage of $10,000 per person on the
Buick. Mr. Jones also had separate policies on the family's other
two vehicles, which, except for a $25,000 limit, provided identical
medical coverage. All of Mr. Jones' policies were issued by State
State Farm paid $10,000, the limit under the Buick's
medical coverage, and refused to pay any medical expenses based on
Mr. Jones' other two policies. Asserting that he is entitled to
recover under Mr. Jones' other policies, Mr. Keiper filed an action
for declaratory judgment in the Circuit Court of Jefferson County.
The parties filed cross-motions for summary judgment. The circuit
court granted summary judgment to State Farm, holding "[t]hat the
Plaintiff, Eric J. Keiper cannot stack the medical payments
coverage under the three Jones policies, because he is not a named
insured on those policies." Mr. Keiper appeals to this Court
arguing that Mr. Jones' insurance policies do not prohibit the
stacking of the medical coverage.
The question of whether medical coverage in insurance
policies can be stacked by a guest passenger has not previously
been considered by this Court. However, in a series of opinions
this Court has outlined when anti-stacking provisions for uninsured
or underinsured motorist benefits are void under the uninsured
motorist statute, W. Va. Code § 33-6-31 . See Syllabus
Points 3 and 4, Bell v. State Farm Mut. Auto. Ins. Co., 157 W. Va.
623, 207 S.E.2d 147 (1974)(anti-stacking provisions for uninsured
motorist coverage are void and ineffective under the statute);
State Mut. Auto. Ins. Co. v. Youler, 183 W. Va. 556, 564, 396
S.E.2d 737, 745 (1990)(legislature has a strong public policy that
"in uninsured or underinsured motorist cases. . . the injured
person [should] be fully compensated for his or her damages" up to
the limits of the uninsured or underinsured motorist coverage);
Russell v. State Auto. Mut. Ins. Co., W. Va. , 422 S.E.2d 803
(1992)(neither the statute nor public policy requires the stacking
of underinsured motorist coverage provided by a single insurance
policy with a multi-car discount); Starr v. State Farm Fire and
Cas. Co., W. Va. , 423 S.E.2d 922 (1992)(a policy can prohibit
stacking of uninsured and underinsured benefits for a permissive
This Court also addressed the question of stacking of
liability coverage in Shamblin v. Nationwide Mut. Ins. Co., 175 W.
Va. 337, 332 S.E.2d 639 (1985)(refused to allow stacking of
liability insurance when the policy contained explicit anti-stacking language). We also note that the question of stacking of
medical coverage in West Virginia has been discussed several times
by the Federal District Court with different results. See Moomaw
v. State Farm Mut. Auto. Ins. Co., 379 F. Supp. 697 (S.D.W.Va.
1974)(held that based on a broad interpretation of Bell supra, the
stacking of medical coverage was allowed). See also Moore v. State
Farm Mut. Auto. Ins. Co., No. 2:87-0942 (S.D.W.Va. Feb. 16,
1989)(held that an insurance policy, by clear and unambiguous
terms, can prohibit the stacking of medical coverage). See also,
Transamerica Ins. Co. v. Arbogast, 662 F. Supp. 164, 165 (N.D.W.Va.
1987)(held that a policy can exclude coverage for vehicles that
were "owned but not insured for this coverage").
State Farm argues that the cases permitting stacking of
coverage are distinguishable from the present case because public
policy, as shown in the uninsured and underinsured motorist statute
(W. Va. Code 33-6-31 ), supports stacking.See footnote 2 State Farm
maintains that the present case, similar to Shamblin, must be
determined by the language of the insurance policy, which clearly
prohibits the stacking of medical coverage and benefits. Although
Mr. Keiper agrees that the policy language is controlling, Mr.
Keiper maintains that the policy contains no anti-stacking language
that would preclude his recovery under the other policies issued to
It is well-settled law in West Virginia that "[w]here
provisions in an insurance policy are plain and unambiguous and
where such provisions are not contrary to a statute, regulation, or
public policy, the provisions will be applied and not construed."
Syllabus Point 2, Shamblin, supra; Syllabus Point 2, Deel v.
Sweeney, 181 W. Va. 460, 383 S.E.2d 92 (1989); Syllabus, Farmers'
& Merchants' Bank v. Balboa Ins. Co., 171 W. Va. 390, 299 S.E.2d 1
(1982); Prete v. Merchants Property Ins. Co. of Indiana, 159 W. Va.
508, 511, 223 S.E.2d 441, 443 (1976); Tynes v. Supreme Life Ins.
Co. of America, 158 W. Va. 188, 209 S.E.2d 567 (1974); Atkins v.
Stonewall Cas. Co., 155 W. Va. 81, 88, 181 S.E.2d 269, 272 (1971).
See Syllabus Point 1, Russell, supra (where clear and unambiguous
insurance contract provisions exist, "full effect will be given to
the plain meaning intended").
The relevant portion of Mr. Jones' insurance policy
We will pay medical expenses for bodily injury sustained by:
1. a. the first person named in the declarations;
b. his or her spouse; and
c. their relatives.
These persons have to sustain the
a. while they operate or occupy a
vehicle covered under the
liability section; or
b. through being struck as a
pedestrian by a motor vehicle
A pedestrian means a person not an
occupant of a motor vehicle or
2. any other person while occupying:
a. a vehicle covered under the
liability coverage, except a
non-owned car. Such vehicle
has to be used by a person who
is insured under the liability
coverage. . . . [Emphasis in
The coverage provisions of the policy indicate that State
Farm will pay up to the stated limit - $10,000 for the 1984 Buick -to certain enumerated parties while they operate or occupy the
vehicle covered under the liability section, which defines the
vehicle as the car that the policy covers, namely the 1984 Buick.
Because each of Mr. Jones' policies contains identical provisions
linking medical coverage to the covered vehicle, Mr. Keiper, a
guest passenger, is entitled to benefits solely by virtue of his
occupancy of the covered vehicle.
Additionally, each of Mr. Jones' insurance policies
contains the following exclusionary clause:
What Is Not Covered.
THERE IS NO COVERAGE:
4. FOR MEDICAL EXPENSES FOR BODILY INJURY:
a. SUSTAINED WHILE OCCUPYING OR THROUGH
BEING STRUCK BY A VEHICLE OWNED BY
YOU, YOUR SPOUSE, OR ANY RELATIVE,
WHICH IS NOT INSURED UNDER THIS
COVERAGE. . . . [Emphasis in
The second quoted section of the policy further
excludes coverage for injury sustained while occupying any vehicle
owned by Mr. Jones that "is not insured under this" policy.
Other courts that have examined policies with similar
exclusionary language have found the language unambiguous and have
rejected the stacking of medical benefits. See Sanchez v. Herrera,
109 N.M. 155, ___, 783 P.2d 465, 470 (1989)(held that an insurance
policy containing provisions similar to the provisions of Mr.
Jones' policies "unambiguously reflects the agreement of the
parties to exclude stacking of medical coverage" and refused to
allow the son of the named insurer to stack medical coverage under
his father's five separate policies); State Farm Mut. Auto. Ins.
Co. v. Scitzs, 394 So.2d 1371 (Miss. 1981)(held that the insured
could not stack medical benefits coverage provided under two
separate policies); Miletello v. State Farm Mut. Auto. Ins. Co.,
566 So.2d 676 (La.App. 1990)(held that insureds could claim medical
benefits only under the policy covering the vehicle they were
occupying at the time of the accident); Hempen v. State Farm Mut.
Auto. Ins. Co., 687 S.W.2d 894 (Mo. 1985)(refused to allow a named
insured to stack medical coverage provided under a separate policy
for a vehicle that was not involved in the accident); Frank v.
Allstate Ins. Co., 727 P.2d 577 (Okl. 1986)(refused to allow
stacking of medical coverage because the policy, by its terms,
applied separately to each automobile insured under the policy).
But see State Farm Mut. Auto Ins. Co. v. Knauss, 105 Nev. 407, 775
P.2d 707 (1989)(allowed stacking because the anti-stacking
provisions consisting of five separate provisions did not satisfy
statutory requirements of clear and prominently displayed stacking
limitations); State Farm Mut. Auto. Ins. Co. v. Castaneda, 339
So.2d 679 (Fla. App. 1976) app. dismissed, 359 So.2d 1211 (Fla.
1978)(allowed stacking because all three policies provided coverage
for family members who were struck by a highway vehicle while not
occupying another automobile); Lavin v. State Farm Mut. Auto. Ins.
Co., 193 Kan. 22, 391 P.2d 992 (1964)(allowed stacking because the
policy's exclusions created confusion and ambiguity); Hampton v.
Thomas, 433 So.2d 884 (La. App. 1983)(allowed stacking because the
policies contained no anti-stacking provisions).
In the present case, payment of up to $10,000 of Mr.
Keiper's medical expenses is authorized because Mr. Keiper, a
person unrelated to the named insured, was injured "while occupying
. . . a vehicle covered under the liability coverage," namely the
1984 Buick. However, because each of Mr. Jones' cars is insured
under separate policies containing identical language, the only
policy authorizing payment of Mr. Keiper's medical expenses is the
policy covering the 1984 Buick. In addition, the exclusionary
clause plainly states that Mr. Keiper is not entitled to stack his
medical coverage from any other policies.
We also note that although we have allowed the stacking
of uninsured motorist coverage based on the public policy mandate
of W. Va. Code 33-6-31 , there exists no statutory or other
public policy requirement that would provide a basis for
invalidating or modifying the anti-stacking language for medical
benefits contained in an insurance policy. In Syllabus Point 3 of
Deel, supra, we said:
Insurers may incorporate such terms, conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes.
Because the express anti-stacking language contained in Mr. Jones' insurance policies does not violate either the uninsured motorist statute or public policy, we find that Mr. Keiper is precluded from recovering medical expenses under any policy issued to Mr. Jones other than the policy covering the 1984 Buick.
For the above stated reasons the judgment of the Circuit
Court of Jefferson County is affirmed.
Footnote: 1State Farm argues that when the suit was filed only $116 of Mr. Keiper's medical bills remained unpaid, because the bills were paid either by Mr. Keiper's parents or medical insurer.
Footnote: 2Although Mr. Keiper maintained below that stacking of medical coverage was supported by a strong public policy, on appeal Mr. Keiper's argument is based solely on an interpretation of the insurance policy.