James I. Stealey
Anita R. Casey
Goldenberg, Goldenberg & Stealey Donna S. Quesenberry
Parkersburg, West Virginia MacCorkle, Lavender, Casey & Quesenberry
Attorney for the Plaintiff Charleston, West Virginia
Attorneys for the Defendants
James S. Crockett, Jr.
Mary M. August
Spilman Thomas & Battle, PLLC
Charleston, West Virginia
Attorney for Amicus Curiae,
West Virginia Insurance Federation
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE McGRAW dissents.
2. When a statute is clear and unambiguous and the legislative intent is plain,
the statute should not be interpreted by the courts, and in such case it is the duty of the courts
not to construe but to apply the statute. Syl. Pt. 5, State v. General Daniel Morgan Post
No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
3. In the interpretation of statutory provisions the familiar maxim expressio
unius est exclusio alterus, the express mention of one thing implies the exclusion of another,
applies. Syl. Pt. 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).
4. The provisions of West Virginia Code § 33-6-31d (1993) (Repl. Vol. 2003)
are free from ambiguity as to what events trigger the requirement that insurers make
available the optional insurance coverages required by West Virginia Code § 33-6-31(b)
(1998) (Repl. Vol. 2003), and the events specified by statute do not include either the death
of a named insured or the removal of a named insured from the policy.
5. The removal of a named insured as a policyholder on an automobile
liability policy who directly or constructively executed a waiver of underinsured motorist
coverage does not, standing alone, invalidate the statutory effect of the waiver that was
implemented pursuant to the provisions of West Virginia Code § 33-6-31d (1993) (Repl.
6. The language contained in West Virginia Code § 33-6-31d(e) (1993) (Repl.
Vol. 2003) that requires insurers to offer underinsured motorist coverage to insureds upon
a request for different coverage limits refers to a request for different liability coverage
limits and does not refer to a request for changes in other types of coverage such as collision,
comprehension, loss of use, or towing.
7. Only changes that are requested by insureds to alter their actual liability coverage will invoke the statutory duty imposed on insurers to make underinsured motorist coverage available within the meaning of West Virginia Code § 33-6-31d(e) (1993) (Repl. Vol. 2003).
These two cases arise by certified question from the United States District
Court for the Southern District of West Virginia and both cases present related issues
concerning the application of certain statutory requirements which address the circumstances
under which insurance companies are required to make underinsured motorist coverage
available to insureds. While underinsured motorist coverage was waived in each case at one
point in time, the questions presented by the federal court involve a determination of
whether the death of the named insured who executes a waiver of such optional coverage
or the removal of such person from the policy terminates the otherwise binding effect of that
waiver. Additionally, we are asked to determine whether policy changes made by the
insured, which concern the types of coverage but do not involve any alteration of the actual
liability limits, can trigger the statutory requirements that require the offering of
underinsured motorist coverage.
Due to Mrs. Chapman's serious illness,
(See footnote 3)
she was removed as an insured
driver from the Nationwide policy on April 26, 1997. In May 1999, Nationwide sent out a
form letter to all of its insureds that offered increased optional levels of uninsured and
underinsured motorist coverage. Ms. Burrows did not reply to or return the form offering
her an increased level of uninsured or underinsured motorist coverage. On July 9, 2001,
Ms. Burrows was involved in an automobile accident and the insurance limits of the other
driver's policy did not cover the costs of all her injuries.
During the period when she was the sole named insured, Ms. Burrows did not alter the previously established limits of liability coverage or the amount of uninsurance.
There were only two changes made prior to the accident. On August 21, 1997, she increased
her comprehensive deductible from zero to $100 and removed $2,000 in medical payments
coverage. In addition, on April 3, 2000, Ms. Burrows added loss of use, towing and labor
coverage to her Nationwide policy.
When Nationwide denied her claim for underinsured motorist benefits, Ms.
Burrows initiated a civil action in state court against Nationwide, as well as the driver of the
vehicle involved in her accident and his mother, the policy owner. Nationwide removed that
proceeding to federal court and the Honorable Joseph R. Goodwin has framed two questions
for this Court's resolution before the primary issue of whether the mass mailing Nationwide
distributed to its insureds in 1999 constituted a commercially reasonable offer of
underinsured motorist coverage can be resolved in the federal proceeding.
(See footnote 4)
certified to us by the federal district court are:
1. Is the rejection of optional underinsured motorist coverage by the plaintiff's mother, who, with the plaintiff, was a named insured on the policy at the time of waiver, binding upon the plaintiff after (a) the mother comes off the insurance policy, or (b) the mother's death?
2. Does the phrase requests different insurance coverage limits in West Virginia Code § 33-6-31d(e) encompass the addition of comprehensive coverage, loss of use, and/or towing and labor coverage to an existing automobile policy, such that an insurer is required to make a new offer of underinsured motorist coverage pursuant to that statute?
In December 1990, Mrs. Anderson decided to increase her bodily injury
liability to $50,000 per person/$100,000 per occurrence.
(See footnote 6)
With this change, she maintained
her uninsured motorist coverage at $20,000 per person/$40,000 per occurrence and again
waived underinsured motorist coverage. By the time Ms. Beeler was involved in an accident
on June 9, 2001, her mother had increased the bodily injury liability coverage to $100,000
per person/$300,000 per occurrence. While Mrs. Anderson continued to maintain the
statutorily required amount of uninsurance,
(See footnote 7)
there was no underinsurance coverage in effect
at the time of Ms. Beeler's accident.
In response to Nationwide's denial of her claim for underinsured motorist benefits, Ms. Beeler initiated a civil action in state court against Nationwide, as well as the driver of the vehicle involved in her accident, and one of the two policy owners. Nationwide removed that proceeding to federal court and the Honorable Joseph R. Goodwin determined that the following question must be addressed by this Court before it can consider the ultimate issue of whether the mass mailing Nationwide distributed to its insureds in 1999 constituted a commercially reasonable offer of underinsured motorist coverage: (See footnote 8)
1. Does the phrase requests different coverage limits in West
Virginia Code § 33-6-31d(e) encompass the addition of
comprehensive and collision coverage to an existing automobile
policy, such that an insurer is required to make a new offer of
underinsured motorist coverage pursuant to that statute?
By separate orders entered on May 21, 2003, this Court accepted these two cases involving certified questions from the federal district court. We proceed to consider and answer these questions to aid the federal court with its resolution of the ultimate issue presented by both of these cases.
Individuals who receive this form offering the optional insurance
underinsurance coverage but choose not to return the same to their insurer within the thirty-
day period prescribed by statute
(See footnote 12)
are subject to the following presumption:
Failure of the applicant or a named insured to return the form described in this section [W.Va. Code § 33-6-31d] to the insurer as required by this section within the time periods specified in this section creates a presumption that such person received an effective offer of the optional coverages described in this section and that such person exercised a knowing and intelligent rejection of such offer. Such rejection is binding on all persons insured under the policy.
W.Va. Code § 33-6-31d(d).
Just as the non-return of the form offering underinsured motorist coverage is
binding on all insureds under a particular policy, the completion and transmittal of this form
by an individual insured is treated, by legislative design, as binding on all persons insured
under the policy. W.Va. Code § 33-6-31d(b). While there is no dispute that Mrs. Chapman
twice expressly rejected Nationwide's offer of optional underinsured motorist coverage, the
query raised in connection with the issue of coverage available to her daughter is whether
the removal of Mrs. Chapman as a named insured from the policy
(See footnote 13)
statutory reach of that waiver from applying to Ms. Burrows.
Presented in another fashion, this Court is being asked to identify the events
which statutorily impose upon an insurer the duty to make an offer of optional insurance
coverage to its insureds. To begin our analysis of this issue, we look to the statutory
language of West Virginia Code § 33-6-31d to identify three events, the separate occurrence
of which requires an insurer to make an offer of optional underinsured motorist coverage.
(See footnote 14)
Under the terms of West Virginia Code § 33-6-31d, the insurer must make an offer of optional underinsurance coverage concurrent with the initial purchase of liability coverage. In mandatory terms, the statute provides that [o]ptional limits of . . .
underinsured motor vehicle coverage required by section 31 [§ 33-6-31] of this article shall
be made available to the named insured at the time of initial application for liability
coverage. W.Va. Code § 33-6-31d(a). The manner in which the form offering the
underinsurance coverage is required to be transmitted to the insurance applicant is further
set forth by statute. The insurer has the option of either delivering the form to the
applicant or mailing the form to the applicant together with the applicant's initial premium
notice. W.Va. Code § 33-6-31d(b).
In addition to the initial application for liability insurance, the statute provides
two other triggers for offering underinsurance to an insured. The statute is clear that upon
any request of the named insured, underinsurance has to be made available. W.Va. Code
§ 33-6-31d(a). Finally, the statute provides that the forms offering the optional underinsured
motorist coverage are to be made available to any named insured who requests different
coverage limits. W.Va. Code § 33-6-31d(e). As to whether the statute imposes a duty to
offer underinsurance upon insurers other than as expressly delineated, the Legislature clearly
anticipated this issue and responded statutorily by providing: No insurer is required to
make such form available or notify any person of the availability of such optional coverages
authorized by this section except as required by this section. Id. (emphasis supplied)
Ms. Burrows argues that any waiver of underinsurance coverage effectuated
by her mother was extinguished either when Mrs. Anderson was removed from the policy
as a named insured, or alternatively, when she died.
(See footnote 15)
To support her position, she looks to
the objectives underlying the statutory requirements governing underinsurance, maintaining
that she should have been treated as a new policyholder and separately advised of the
availability of underinsurance coverage when she became the sole insured under the
Nationwide policy. In her attempt to fall within the specified statutory criteria that control
underinsured motorist coverage and, specifically, when it is required to be made available,
Ms. Burrows also contends she was an applicant for a new policy of insurance at the time
she called her agent to have her mother removed as an insured from the policy. Before
addressing this issue, however, we first consider whether the objectives of underinsured
motorist coverage are being thwarted by Nationwide's denial of such coverage in this case.
Citing this Court's recognition in State Automobile Mutual Insurance
Company v. Youler, 183 W.Va. 556, 396 S.E.2d 737 (1990), of the public policy of full
indemnification or compensation [which] underl[ie] both uninsured and underinsured
motorist coverage, Ms. Burrows argues that Nationwide contravened this policy by failing
to separately offer her underinsurance coverage following her mother's removal from the
policy. This objective of full indemnification or compensation, as we explained in Youler
was made in reference to obtaining compensation for damages not compensated by a
negligent tortfeasor, up to the limits of the uninsured or underinsured motorist coverage.
Id. at 564, 396 S.E.2d at 745. Expounding further on the statutory objectives at issue, we
stated in Riffle v. State Farm Mutual Automobile Insurance Co., 186 W.Va. 54, 410 S.E.2d
413 (1991), that
[t]he purpose of W.Va. Code 33-6-31  is to provide all insurance buyers with an opportunity to purchase a minimum amount of underinsured motorist coverage. When the buyer is not given this opportunity, the statute provides him with the minimum coverage. The statute and our decision in Bias (See footnote 16) encourage insurance companies to make a real effort to inform customers about the opportunity for underinsured motorist coverage.
186 W.Va. at 56, 410 S.E.2d at 415 (footnote added).
In Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995), we reversed the trial
court's ruling that each individual insured under one insurance policy had to be offered the
opportunity to purchase or reject underinsured motorist coverage. Mr. Cox, the named
insured on the Nationwide policy at issue, had expressly waived underinsurance coverage
when he added his wife's vehicle to a policy he had owned prior to his marriage. In
discussing whether each insured under an automobile insurance policy to be offered the
optional insurance coverage mandated by West Virginia Code § 33-6-31b, we observed, as
a practical matter, it would be very time consuming and unreasonable to expect an insurer
to offer every person who would be an insured under the policy the optional coverage and
then ascertain whether the optional coverage was rejected. 195 W.Va. at 615, 466 S.E.2d
at 466. After determining that West Virginia Code §§ 33-6-31(b) and -31d were required
to be read in pari materia given their common subject matter, we applied the clear and
unambiguous statutory language to hold that
[u]nder W.Va. Code, 33-6-31d  a knowing and intelligent rejection of optional uninsured and underinsured motorists coverages by any named insured under an insurance policy creates a presumption that all named insureds under the policy received an effective offer of the optional coverages and that such person exercised a knowing and intelligent rejection of such offer. The named insured's rejection is binding on all persons insured under the policy.
Cox, 195 W.Va. at 610, 466 S.E.2d at 461, syl. pt. 13.
This case presents a related, but previously unaddressed, issue of whether a
waiver of underinsurance that is statutorily binding on all the insureds under one policy
continues to be binding when the named insured is no longer an insured under the policy.
The statute is silent as to this issue. However, the statute is unmistakably clear with regard
to identifying which events trigger an insurer's duty to make an offer of underinsured
motorist coverage and that those statutorily defined events are the only circumstances which
trigger an insurer's statutory duty to offer such optional insurance. See W.Va. Code § 33-6-31d.
Even if this Court viewed the position advocated by Ms. Burrows as wise from
a public policy standpoint,
(See footnote 17)
our duty is not to retool the statute but merely to apply its
provisions where the language at issue is unambiguous.
(See footnote 18)
As we recognized in syllabus point
five of State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d
353 (1959) [w]hen a statute is clear and unambiguous and the legislative intent is plain, the
statute should not be interpreted by the courts, and in such case it is the duty of the courts
not to construe but to apply the statute. Another rule of statutory construction that must be
considered provides that [i]n the interpretation of statutory provisions the familiar maxim
expressio unius est exclusio alterus, the express mention of one thing implies the exclusion
of another, applies. Syl. Pt. 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).
Application of this principle requires the conclusion that had the Legislature deemed the
removal of a named insured an event significant to trigger the requirement that optional
underinsured motorist coverage be made available to existing insureds, the statute would
have expressly directed insurers to distribute the above-discussed insurance form to the
remaining insured(s) upon the occurrence of such event.
There can be no dispute that it is the Legislature's sole prerogative to designate the circumstances upon which an insurer's statutory duty to offer optional insurance coverage such as underinsurance is triggered. The provisions of West Virginia Code § 33-6- 31d are free from ambiguity as to what events trigger the requirement that insurers make available the optional insurance coverages required by West Virginia Code § 33-6-31(b). As discussed above, those three events specified by statute for offering such insurance do not include either the death of a named insured or the removal of a named insured from the policy. Accordingly, we conclude that the removal of a named insured as a policyholder on an automobile liability policy who directly or constructively executed a waiver of underinsured motorist coverage does not, standing alone, invalidate the statutory effect of the waiver that was implemented pursuant to the provisions of West Virginia Code § 33-6- 31d. To conclude otherwise would be an act of judicial policy making. We prefer to leave for the Legislature the decision to amend this statute, should it so desire, rather than to improperly effect such an amendment through an opinion of this Court.
We are not persuaded by Ms. Burrows' contention that denial of underinsurance under the facts presented in her case contravenes the public policy sought to be achieved through the enactment of our insurance laws. As we explained in Riffle, it is the offering of such coverage - the opportunity to purchase such coverage - that is mandated by statute. 186 W.Va. at 56, 410 S.E.2d at 415. Insureds are free to reject this optional coverage and many insureds decidedly opt not to carry this additional coverage. While the Legislature's objective in mandating the offering of optional underinsurance coverage was certainly to provide a mechanism that would encourage or enable full compensation up to the limits of the . . . underinsured motorist coverage, there is no law which requires that underinsurance must be purchased. In those situations when underinsurance was not purchased after it was properly offered, this Court cannot, solely based on the laudatory ideals of encouraging full compensation, conclude that the insurer is obligated to provide such coverage. (See footnote 19) Youler, 183 W.Va. at 564, 396 S.E.2d at 745.
Arguing that she was a new applicant for insurance when she notified her
insurer of her mother's removal as an insured under the policy, Ms. Burrows argues that
Nationwide was required to make an offer of underinsured motorist coverage under the
terms of West Virginia Code § 33-6-31d. Although the terms of the Nationwide policy
clearly allow any insured to request the issuance of a new policy at any time, we cannot
equate the removal of a named insured from a policy with an actual request that a new policy
be issued. Moreover, there are specific monetary and contractual reasons why it is
preferable for insureds in many situations to continue their insurance coverage under an
existing policy rather than to apply for a new policy. These factors include premium
discounts and a policy of first-time accident forgiveness that are extended to long-term
insureds, as well as a prohibition against cancellation and nonrenewal.
(See footnote 20)
many circumstances it may not be prudent for a policy holder to request or come under the
terms of a separate policy. On the record presented in this case, we find no basis for
concluding that Ms. Burrows was seeking the issuance of a new policy from Nationwide
when she contacted her agent to have her mother removed from the policy. Simply put, the
policy change requested by Ms. Burrows was not the equivalent of requesting or applying
for a separate and new policy of insurance.
Ms. Beeler contends that the changes effected in her mother's policy
concurrent with her addition as a named insured to that policy in September 2000
(See footnote 23)
constituted the requisite change in coverage limits sufficient to obligate Nationwide to
make an offer of underinsured motorist coverage. Those changes were the addition of a
named insured; the addition of comprehensive and collision coverage for Ms. Beeler's 1996
Plymouth Neon vehicle; and the addition of a new covered vehicle (the Neon). With the
addition of Ms. Beeler's vehicle and the selected coverages, the premium for the policy held
by Mrs. Anderson was increased by $342.80 every six months.
Viewing this amount as significant, Ms. Beeler maintains that this premium
increase amounted to a material change which required Nationwide to issue a new policy
and to make a separate offer of underinsured motorist coverage.
(See footnote 24)
After acknowledging that
the issue presented is one of statutory interpretation, Ms. Beeler quickly proceeds to suggest
that [t]he only reasonable interpretation of the phrase 'different coverage limits' which is
consistent with the strong public policy [which] require[s] insurance companies to offer
UIM [underinsured motorist] coverage is that when material changes in coverage occur, the
insurer has an obligation to make UIM options forms available. . . . Rather than engaging
in any statutory analysis, Ms. Beeler presumes that whatever interpretation imposes upon
insurers the obligation to make an additional offer of underinsured motorist coverage is the
correct one, given the goal of encouraging full compensation. See Youler, 183 W.Va. at
564, 396 S.E.2d at 745. As support for her position, Ms. Burrows relies on
extrajurisdictional case law wherein the issue of whether underinsurance coverage had to
be offered in a variety of circumstances was resolved based on whether material changes
were affected to the policy at issue such that a new policy effectively resulted through the
requested changes. See, e.g., Matheny v. Glen Falls Ins. Co., 152 F.3d 348 (5th Cir. 1998)
(holding that addition of minor child as licensed driver with attendant 38% increase in
premium materially changed risk insured and resulted in new policy); Allstate Ins. Co. v.
Kaneshiro, 998 P.2d 490 (Haw. 2000) (finding substitution of wife as sole named insured
following divorce on policy where husband was previously sole named insured constituted
material change resulting in new policy and required separate waiver of underinsurance);
State Farm Mut. Ins. Co. v. Arms, 477 A.2d 1060 (Del. 1984) (ruling that changes to insured
vehicle and coverage amounts were material).
We do not find it necessary to weigh the conflicting cases
(See footnote 25)
which rely on the
concept of material change
(See footnote 26)
for purposes of resolving the question of statutory
interpretation that is presented here. Instead, we proceed to examine the language at issue
to construe the third requirement which governs the issue of when insurers are statutorily
mandated to make an offer of underinsured motorist coverage. Although the terms
different coverage limits appear in West Virginia Code § 33-6-31d(e), we find it necessary
to refer to West Virginia Code § 33-6-31(b) for guidance on this issue, given that both of
these statutes deal with the optional insurance coverage of underinsurance.
Significant to our discussion is the fact that in structuring the statutory duty imposed on insurers to offer underinsurance, the Legislature expressly tied this type of optional insurance coverage to the limits of liability coverage. The option to purchase underinsurance is stated as follows in West Virginia Code § 33-6-31(b):
[S]uch policy or contract shall provide an option to the insured
with appropriately adjusted premiums to pay the insured all
sums which he shall legally be entitled to recover as damages
from the owner or operator of an . . . underinsured motor
vehicle up to an amount not less than limits of bodily injury
liability insurance and property damage liability insurance.
W.Va. Code § 33-6-31(b) (emphasis supplied).
The definition of underinsurance that is statutorily provided is also framed
with specific reference to liability insurance coverage:
Underinsured motor vehicle means a motor vehicle with respect to the ownership, operation or use of which there is liability insurance applicable at the time of the accident, but the limits of that insurance are either: (i) Less than limits the insured carried for underinsured motorists' coverage; or (ii) has been reduced by payments to others injured in the accident to limits less than limits the insured carried for underinsured motorists' coverage.
W.Va. Code § 33-6-31(b) (emphasis supplied). Nationwide argues that because the statutory definition of an underinsured motor vehicle is expressly tied to and dependent upon the existence of liability coverage, it stands to reason that the Legislature intended to directly link any alteration in liability coverage limits with the need to re-offer underinsured motorist coverage. See W.Va. Code § 33-6-31d(e).
Nationwide contends that its position is bolstered by the position taken by the
Insurance Commissioner in connection with the forms
(See footnote 27)
the Commissioner has promulgated
for the offering of this optional coverage.
(See footnote 28)
At the bottom of the form is the following
language: I have been given the opportunity to select the optional limits of UNDERinsured
motor vehicle coverage listed above and have selected the coverage that matches the box I
have checked. The form ends with the notice that [t]hese limits apply until a change in
limits is requested. Since the only limits of coverage that are identified on the insurance
form offering the underinsured motorist coverage are limits that correspond to bodily injury
and property damage liability amounts, Nationwide suggests that the Insurance
Commissioner has taken the position that the statutory language which refers to different
coverage limits was intended to indicate a change in liability coverage limits. W.Va. Code
The position advocated by Nationwide and purportedly adopted by the
Insurance Commissioner is the only interpretation of West Virginia Code § 33-6-31d(e) that
withstands scrutiny. Given that the statutory creation of the optional coverages of uninsured
and underinsured motorist benefits has a direct nexus to the limits of bodily injury liability
insurance and property damage liability insurance,
(See footnote 29)
it logically follows that the Legislature
would connect a change in liability limits with the need to redistribute the insurance form
offering such optional limits of coverage.
(See footnote 30)
Accordingly, we hold that the language
contained in West Virginia Code § 33-6-31d(e) that requires insurers to offer underinsured
motorist coverage to insureds upon a request for different coverage limits refers to a
request for different liability coverage limits and does not refer to a request for changes in
other types of coverage such as collision, comprehension, loss of use, or towing.
Consequently, only changes that are requested by insureds to alter their actual liability
coverage will invoke the statutory duty imposed on insurers to make underinsured motorist
coverage available within the meaning of West Virginia Code § 33-6-31d(e).
Based on the foregoing, we answered the first certified question in the
affirmative and the second certified question in the negative.