Gregory W. Sproles
Breckinridge, Davis, Sproles & Stollings
Summersville, West Virginia
Attorney for the Appellees
B. Karleton Kesner
Anita R. Casey
Meyer, Darragh, Buckler, Bebenek & Eck
Charleston, West Virginia
Attorneys for the Appellants
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
JUDGE FOX sitting by temporary assignment.
RETIRED JUSTICE MILLER sitting by temporary assignment.
"Anti-stacking language in an automobile insurance policy is valid and enforceable as to uninsured and underinsured motorist coverage where the insured purchases a single insurance policy to cover two or more vehicles and receives a multi-car discount on the total policy premium. If no multi-car discount for uninsured or underinsured motorist coverage is apparent on the declararions page of the policy, the parties must either agree or the court must find that such a discount was given. In such event, the insured is not entitled to stack the coverages of the multiple vehicles and may only recover up to the policy limits set forth in the single policy endorsement." Syl. Pt. 4, Miller v. Lemon, No. 22589, W. Va. , S.E.2d (June 19, 1995).
The Appellant, Westfield Insurance Company (hereinafter
"Westfield"), appeals from a May 11, 1994, order of the Circuit
Court of Nicholas County. The order essentially permitted the
Appellees, Ben and Leah Marvin, to "stack" the underinsured
motorist coverage contained in their Westfield automobile insurance
policy. Westfield asserts that stacking is inappropriate under the
Marvins' policy. After careful consideration of the briefs, record
and oral argument, we agree. Accordingly, for the reasons set
forth below, we hereby reverse the circuit court's ruling.
On March 16, 1992, Ben Marvin was injured when his 1988
Oldsmobile was struck by a vehicle owned and operated by James C.
Jackson, an underinsured motorist.See footnote 1 Mr. Marvin sustained serious
injuries to his legs, feet, ankles, face and other parts of his
body as a result of this accident. At the time of the collision,
the Marvins were insured under a Westfield automobile insurance
policy. The policy contained, inter alia, a provision for
underinsured motorists coverage and insured the 1988 Oldsmobile and
three other vehicles owned by the Marvins.
The declarations page of the policy does not reflect a
specific, multi-vehicle premium discount for underinsured motorists
coverage.See footnote 2 It appears to be undisputed, however, that the Marvins
did receive at least a general or "across-the-board" discount for
insuring their multiple vehicles under a single Westfield policy.
Westfield explains this general multi-vehicle discount, in part, by
reference to an affidavit by Thomas W. McFadden, the Westfield
casualty manager for personal lines. Mr. McFadden asserted in his
affidavit that if each of the four vehicles had been covered by
four separate Westfield policies, the total premium payable would
have been $1,374. By insuring all four vehicles under a single
policy, however, the McFadden affidavit indicates that the Marvins
received a general multi-vehicle discount which reduced the single-
policy premium to $1,106.
While the Marvins apparently do not dispute that they received
this general multi-vehicle discount, they do point to evidence
which demonstrates that there was no multi-vehicle discount given
specifically for underinsured motorists coverage. For instance,
the Marvins note the following exchange between their attorney and
Mr. McFadden at the latter's deposition:
Q. With regard to underinsured motorist . . . [coverage,] how much was charged for each vehicle?
A. 25/50 $3.
Q. Was there any multi-car discount?
A. On that?
Q. Just for underinsured motorist.
A. Per se, no.
Subsequent to the accident, the Marvins reached a settlement
with Mr. Jackson's liability insurance carrier for his liability
limits of $20,000. Westfield consented to the settlement and
waived its subrogation rights against Mr. Jackson's estate. Later,
the Marvins entered negotiations with Westfield concerning the
appropriate amount of underinsured motorists coverage to which they
were entitled under their Westfield policy. Westfield ultimately
agreed to pay the Marvins $25,000, the limits of the policy's
underinsured motorists coverage. The parties, however, reserved
the right to litigate the question of whether the underinsured
motorists coverage could be stacked for the four automobiles
covered by the Marvin's single policy with Westfield.
On February 26, 1993, the Marvins filed a two-count complaint
in the Circuit Court of Nicholas County. Count One sought recovery
for personal injuries sustained by Mr. Marvin and for loss of
consortium suffered by Mrs. Marvin. Count Two petitioned for a
declaratory judgment permitting the stacking of the underinsured
motorists coverage available under the Westfield policy, thus
resulting in a recovery of $25,000 per vehicle insured or $100,000.
The parties thereafter filed motions seeking a determination of the coverage issue contained in Count Two of the Marvins' complaint. On May 11, 1994, the circuit court entered an order which essentially held that since the Westfield policy did not provide a specific multi-vehicle discount for underinsured motorists coverage, the Marvins could stack that coverage for the four vehicles insured.
In its brief to this Court, Westfield primarily asserts two
arguments to avoid stacking. First, Westfield relies on our
decision in Russell v. State Automobile Mutual Insurance Co., 188
W. Va. 81, 422 S.E.2d 803 (1992), and alludes to the following
unambiguous anti-stacking language that was contained in the
LIMIT OF LIABILITY
A. If the Declarations indicates [sic]
a single limit of liability for
"each accident" for Underinsured
Motorists Coverage, the limit of
liability shown in the Declarations
for this coverage is our maximum
limit of liability for all damages
resulting from any one accident with
an underinsured motor vehicle. This
is the most we will pay regardless
of the number of:
2. Claims made;
3. Vehicles or premiums
shown in the
4. Vehicles involved in the
Second, again relying on Russell, Westfield argues that even
if the viability of the above anti-stacking provision is contingent
upon the presence of a multi-vehicle premium discount, a general
multi-vehicle discount, rather than a specific underinsured
motorists coverage discount, is sufficient to validate the anti-
stacking language. In sum, Westfield concludes that this case is
controlled by Russell, and that the Marvins are not entitled to
stack their underinsured motorists coverage.
The Marvins respond, inter alia, that the anti-stacking
language in their policy should be deemed void based upon our prior
cases. In regard to the question of a discount, the Marvins
suggest that the applicability of stacking is intimately tied to
the question of whether the insured received a specific multi-
vehicle premium discount for the coverage in question. While they
note that a multi-vehicle discount was given for some of their
chosen coverages, they assert that since these coverages were
separate and distinct from underinsured motorists coverage, a
discount as to these distinct coverages is irrelevant. The Marvins
also assert that Russell is distinguishable from the instant case
because no specific multi-vehicle discount was given for
underinsured motorists coverage herein. In sum, the Marvins
maintain that in order to receive the benefit of their bargain, and
to achieve full compensation, they must be permitted to stack the
The precise question in this case is whether our decision in
Russell makes the validity of anti-stacking language contingent
upon the presence of a specific multi-vehicle discount for
underinsured motorists coverage. We hold, consistent with our
recent precedent, that it does not.
This case is controlled by our decision this term in Miller v.
Lemon, No. 22589, W. Va. , S.E.2d (June 15,
1995), which clarified our holding in Russell. We stated as
follows in Miller:
Anti-stacking language in an automobile insurance policy is valid and enforceable as to uninsured and underinsured motorist coverage where the insured purchases a single insurance policy to cover two or more vehicles and receives a multi-car discount on the total policy premium. If no multi-car discount for uninsured or underinsured motorist coverage is apparent on the declararions page of the policy, the parties must either agree or the court must find that such a discount was given. In such event, the insured is not entitled to stack the coverages of the multiple vehicles and may only recover up to the policy limits set forth in the single policy endorsement.
Id., Syl. Pt. 4.
In the instant case, it is undisputed, and the circuit court
specifically found, that the Marvins (1) purchased a single
insurance policy to cover their four vehicles; and (2) received a
multi-car discount on their total policy premium. Further, the
anti-stacking provision in the instant case is materially identical
to that contained in the policy at issue in Lemon. Given these undisputed facts, it is clear that the anti-stacking language in
the Marvins' policy, and our recent decision in Lemon, restrict the
Marvins' recovery to their policy limits of $25,000. As stated in
Lemon, "Having contracted for only one policy of insurance, the
. . . [Marvins] likewise bargained for only one . . . [underinsured] motorist coverage endorsement." Id. at , S.E.2d at , slip. op. at 10.
For the reasons set forth above, we conclude that the circuit court erred in determining that the Marvins were entitled to stack their underinsured motorists coverage. Accordingly, we hereby reverse the circuit court's order and direct that judgment be entered for Westfield on Count Two of the complaint.
Footnote: 1 The record reflects that Mr. Jackson died as a result of the accident. Accordingly, Frank R. Lavender, the Sheriff of Raleigh County and administrator of Mr. Jackson's estate, has been substituted as a defendant.
Footnote: 2 The declarations page of the policy reflects a $3.00 premium per vehicle for the underinsured motorists coverage selected by the Marvins. The $3.00 rate does not appear to decrease in relation to the number of vehicles insured under the policy.