DAVIS, Justice:
This appeal was brought by Jeffrey Jenkins and his spouse M. Jean McNabb, Plaintiffs below and Petitioners herein, from a summary judgment order of the Circuit Court of Harrison County. The trial court's order granted summary judgment in favor of the City of Elkins, Stephen P. Stanton, and National Union Fire Insurance Company. The order also granted summary judgment in part to Westfield Insurance Company and Bombardier Aerospace Corporation.
The facts of this case show that on or about October 27, 2008, Jeffrey Jenkins was injured during an automobile accident with Stephen P. Stanton. At the time of the accident, Mr. Jenkins was operating a vehicle owned by his employer, Bombardier Aerospace Corporation (hereinafter "Bombardier"). Also at the time of the accident, Mr. Stanton was driving a vehicle owned by his employer, the City of Elkins. The injuries Mr. Jenkins sustained included a left hip dislocation, left hip fracture, and left open tibia fracture. As a result of the accident occurring during the course of Mr. Jenkins' employment, he received workers' compensation benefits in the amount of $170,823.92.
On or about April 29, 2010, Mr. Jenkins and his wife filed an action against the City of Elkins and Mr. Stanton to recover for the injuries that occurred as a result of the automobile accident.
Although not named as a defendant, Westfield filed an answer to the complaint.
The Plaintiffs filed an answer to Westfield's counterclaim. In that answer, the Plaintiffs set out a claim for declaratory judgment relief against all of the parties.
Motions for summary judgment were filed by all of the parties.
This is an appeal from a summary judgment order. We have made clear that our standard of review of a summary judgment order is de novo. See Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").
Five errors have been assigned for this Court's determination on appeal: (1) whether summary judgment was properly granted to the City of Elkins, Stephen P. Stanton, and National Union Fire Insurance Company based upon statutory immunity; (2) whether uninsured motorist coverage is triggered when a tortfeasor has immunity; (3) whether the phrase "legally entitled to recover" is ambiguous; (4) whether "government owned vehicle" policy exclusions violate public policy; and (5) whether a policy exclusion for an injury arising out of and in the course of employment precluded medical payment coverage. We will consider them in turn.
The first issue raised by the Plaintiffs is that the circuit court committed error in granting summary judgment to the City of Elkins, Mr. Stanton, and National. The Plaintiffs make two arguments for reversing summary judgment as to these defendants: (1) this Court should overrule O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992), and (2) National's policy did not preserve immunity. We will address each argument separately.
Syl. pt. 4, O'Dell, 188 W.Va. 596, 425 S.E.2d 551. It was also held in O'Dell that "W. Va.Code, 29-12A-5(a)(11), clearly contemplates immunity for political subdivisions from tort liability in actions involving claims covered by workers' compensation even though the plaintiff was not employed by the defendant political subdivision at the time of the injury." Syl. pt. 6, O'Dell, 188 W.Va. 596, 425 S.E.2d 551.
The Plaintiffs in the instant case do not dispute that O'Dell provides immunity to the City of Elkins, Mr. Stanton and National because Mr. Jenkins received workers' compensation. To get around the application of O'Dell, the Plaintiffs have asked this Court to overrule that decision. The Plaintiffs have alleged that O'Dell wrongly concluded that W. Va.Code § 29-12A-5(a)(11) was applicable to an injured plaintiff who was not employed by the political subdivision being sued.
We have considered the Plaintiffs' arguments for overruling O'Dell and find that none of those arguments justify deviating from stare decisis. "[T]he doctrine of stare decisis requires this Court to follow its prior opinions." State Farm Mut. Auto. Ins. Co. v. Rutherford, 229 W.Va. 73, 83, 726 S.E.2d 41, 51 (2011) (Davis, J., concurring, in part, and dissenting, in part). In Syllabus point 2 of Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974), we held that
In this case, no relevant circumstances have changed so as to require a departure from our prior precedent interpreting W. Va.Code § 29-12A-5(a)(11). It has been twenty years since the decision in O'Dell. During that time, the Legislature could have rewritten the statute so as to nullify O'Dell's interpretation of W. Va.Code § 29-12A-5(a)(11). The fact that the Legislature has not done so is clear evidence that the O'Dell court's decision is correct.
The relevant language of National's policy is contained in the Certificate of Liability Insurance and provides as follows:
In 2008, National provided a subsequent amendment to the policy as Endorsement No. 10, which incorporated the Certificate of Liability Insurance into the policy. The relevant language of Endorsement No. 10 is as follows:
The circuit court found that the quoted policy language was conspicuous, plain, and clear and that it preserved the immunity afforded the City of Elkins, Mr. Stanton, and National. We agree.
In arguing that the immunity was not preserved, the Plaintiffs cite to and quote only the Certificate of Liability Insurance. From this narrow view, the Plaintiffs argue that the "immunity preservation contained therein does not appear in the policy verbiage." The Plaintiffs go further and contend that because
We categorically reject the Plaintiffs' partial view of the evidence on this issue. The Plaintiffs' entire argument is founded upon a complete lack of recognition of Endorsement No. 10. The Plaintiffs have not even attempted to argue that Endorsement No. 10 is somehow flawed. The Plaintiffs have simply ignored it. See W. Va.Code § 33-6-30(a) (2002) (Repl.Vol.2011) ("Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended or modified by any rider, endorsement or application attached to and made a part of the policy."). It is clear to this Court that the Plaintiffs have ignored Endorsement No. 10 because it completely undermines their attack on the policy. Endorsement No. 10 makes clear, as found by the circuit court, that the immunity preservation found in the Certificate of Liability Insurance is part of the policy.
The Plaintiffs have argued that the per curiam opinion in Bender v. Glendenning, 219 W.Va. 174, 632 S.E.2d 330 (2006), somehow changed our law as to what is sufficient to show that a policy has preserved an insured's immunity. We disagree.
To begin, we have indicated that "if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion." Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992), overruled on other grounds by Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001). Thus, as a fundamental matter, this Court did not change or alter any law in Bender. Next, the decision in Bender has no substantive relevancy to the facts of this case. Bender was a declaratory judgment action filed by an insurer seeking to determine whether it had a duty to defend a political subdivision employee against a claim for intentional sexual misconduct. To resolve the issue, this Court narrowly focused upon whether the coverage provided by the policy for "wrongful act" conduct extended to intentional sexual misconduct. We found that the coverage existed under the definition of "wrongful act" provided in the policy. We noted further in Bender that only one provision of the policy might have excluded coverage. That provision sought to exclude all coverages that were not allowed by statute. This Court found that the provision was not "sufficiently `conspicuous, plain, and clear' so as to clearly identify the precise limitation of liability it is intended
In sum, there is nothing remotely set out in Bender that changed the principles we use in reviewing the language of a policy, nor does the decision have any substantive relevancy to the issue of whether National's policy adequately preserved the immunity that is at issue here.
As a result of the immunity granted to the City of Elkins and Mr. Stanton, the trial court determined that the Plaintiffs' claims were sought from an accident involving an uninsured motorist. Bombardier has argued that the trial court committed error in holding that a tortfeasor's immunity can trigger uninsured motorist coverage. This is an issue of first impression for this Court.
We begin our analysis by examining the relevant statute. It is provided under W. Va.Code § 33-6-31(c) (1998) (Repl.Vol.2011) that "the term `uninsured motor vehicle' shall mean a motor vehicle as to which there is no: (I) Bodily injury liability insurance and property damage liability insurance[.]" We do not find any ambiguity in this definition, as it relates to the issue presented. "[A]ccording to the established rules of construction, the intention must be collected from the words used when they are free from ambiguity." Wheeling Gas Co. v. City of Wheeling, 5 W.Va. 448, 462 (1872). See Mingo County Redevelopment Auth. v. Green, 207 W.Va. 486, 490, 534 S.E.2d 40, 44 (2000) ("[W]e have a duty to apply the statute as written when its terms are not ambiguous."). We believe the definition of uninsured motor vehicle under W. Va.Code § 33-6-31(c) is broad enough to encompass a tortfeasor who is immune from liability.
The definition of uninsured motor vehicle provided by W. Va.Code § 33-6-31 (c) requires only that a vehicle not have personal injury and property liability coverage. This statute does not say that a person must fail to purchase personal injury and property liability coverage in order for a vehicle to be considered uninsured. However, this is the limitation that Bombardier seeks. Bombardier "essentially asks this court to insert words into an otherwise unambiguous statute, something we are loath to do." Schmehl v. Helton, 222 W.Va. 98, 105, 662 S.E.2d 697, 704 (2008). "We are not at liberty to insert words or qualifications into a statute to make it conform to our notions of what it ought to be, for this would be legislating." Wheeling Gas, 5 W.Va. at 462. In the instant case there is no personal injury and property liability coverage because the City of Elkins and Mr. Stanton are immune from liability. Immunity from liability is no different than failure to purchase liability insurance for purposes of W. Va.Code § 33-6-31(c).
As a result of the plain language of our statute, we now hold that, under the definition of uninsured motor vehicle contained in W. Va.Code § 33-6-31(c) (1998) (Repl.Vol.2011), uninsured motor vehicle coverage is triggered when a person sustains an automobile injury or loss that is caused by a tortfeasor who is immune from liability. See Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265 (Colo.App.2001) (insured was entitled to uninsured motorist benefits because police officer was immune from liability under the Governmental Immunity Act); Georgia Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga.App. 540, 597 S.E.2d 430 (2004) (uninsured motorist coverage is available where it is impossible for the plaintiff to obtain a judgment against an insured motorist for reasons unrelated to the facts of the accident); Daniels v. Hetrick, 164 N.C. App. 197, 595 S.E.2d 700, 702 (2004) ("In cases where
Although we have determined that immunity triggered the uninsured motorist coverage provisions of the applicable policies, the issue of the Plaintiffs' entitlement to that coverage is not completely resolved. As a cross assignment of error, Bombardier has argued that if the Plaintiffs are not entitled to recover from the City of Elkins and Mr. Stanton, then they are not entitled to uninsured motorist coverage because W. Va.Code § 33-6-31(b) (1998) (Repl.Vol.2011) and its insurance policy both require a claimant be "legally entitled to recover" from the tortfeasor.
We start out by setting forth the policy and statutory language that is at issue. The following pertinent language appears in W. Va.Code § 33-6-31(b):
(Emphasis added). Bombardier's policy also provides:
(Emphasis added).
Both W. Va.Code § 33-6-31(b) and the Bombardier policy require that an insured be "legally entitled to recover" from the tortfeasor before uninsured motorist coverage is triggered.
The parties agree that neither the statute nor policy define the phrase "legally entitled to recover." However, the parties disagree on what meaning should be attached to the phrase. Bombardier contends that uninsured motorist coverage is not triggered because the Plaintiffs "are not `legally entitled to recover' any damages against Stanton or the City of Elkins." The Plaintiffs contend that the uninsured motorist coverage is triggered
The lack of a statutory or policy definition for the phrase "legally entitled to recover," and the parties' conflicting interpretation of the same, suggest to this Court that the phrase is sufficiently ambiguous.
We must begin our analysis by distinguishing a case, Wisman v. William J. Rhodes & Shamblin Stone, Inc., 191 W.Va. 542, 447 S.E.2d 5 (1994), that the parties failed to present. In Wisman, the plaintiff was injured while driving his employer's truck. The injury occurred when a co-employee ran into the plaintiff with another truck owned by their mutual employer. The employer insured the trucks with different insurers. Even though the plaintiff received workers' compensation, he sued the insurer of the truck he was driving, his co-employee, and employer. The insurer argued that the plaintiff could not recover uninsured benefits because he was not legally entitled to recover damages from his co-employee and employer as a result of workers' compensation immunity. The circuit court certified the following question to this Court:
Wisman, 191 W.Va. at 543, 447 S.E.2d at 6.
Prior to answering the certified question in Wisman, this Court discussed a similar issue that was presented to the Virginia Supreme Court in Aetna Casualty & Surety Co. v. Dodson, 235 Va. 346, 367 S.E.2d 505 (1988). The decision in Dodson held that the plaintiff's estate could not recover uninsured motorist benefits because workers' compensation afforded the exclusive remedy against the decedent's employer and fellow employee. Based upon the reasoning in Dodson, we held in Syllabus point 2 of Wisman:
The decision in Wisman is distinguishable for the reasons cited by this Court in Henry v. Benyo, 203 W.Va. 172, 506 S.E.2d 615 (1998). In Benyo we stated that "the scope of the Wisman decision is limited to those motor vehicle accidents involving two employees. Wisman does not discuss the situation here at hand regarding motor vehicle accidents between an employee and a third-party nonemployee." Benyo, 203 W.Va. at 176, 506 S.E.2d at 619. We would also note that the holding in Wisman was not based upon the phrase "legally entitled to recover" as set out under W. Va.Code § 33-6-31(b). Wisman never mentioned the statute.
Insofar as the Legislature has not explicitly set out its intent in using the phrase "legally entitled to recover," it is prudent to examine how other jurisdictions have construed the phrase. The parties have pointed out that there is a split of authority on the meaning that should be attached to the phrase. Our research indicates that a slight majority of courts that have considered the issue have determined that the phrase "legally entitled to recover," or its equivalent, means that an insured is entitled to uninsured motorist coverage merely by establishing fault on the part of the tortfeasor and the amount of the insured's damages; the tortfeasor's immunity, for whatever reason, does not prevent coverage. See Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972); Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265 (Colo.App.2001); Tinsley v. Worldwide Ins. Co., 212 Ga.App. 809, 442 S.E.2d 877 (1994); Allstate Ins. Co. v. Elkins, 63 Ill.App.3d 62, 21 Ill.Dec. 66, 381 N.E.2d 1 (1978); Allied Fid. Ins. Co. v. Lamb, 361 N.E.2d 174 (Ind. Ct.App.1977); Speer v. Farm Bureau Mut. Ins. Co., Inc., 43 Kan.App.2d 520, 226 P.3d 558 (2010) (involved underinsured coverage); U.S. Fid. & Guar. Co. v. Preston, 26 S.W.3d 145 (Ky.2000); West American Ins. Co. v. Popa, 352 Md. 455, 723 A.2d 1 (1998); Reese v. Preferred Risk Mut. Ins. Co., 457 S.W.2d 205 (Mo.Ct.App.1970); Pemberton v. Farmers Ins. Exch., 109 Nev. 789, 858 P.2d 380 (1993); Boradiansky v. State Farm Mut. Auto. Ins. Co., 141 N.M. 387, 156 P.3d 25 (2007); Deluca v. Motor Vehicle Accident Indemnification Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Williams v. Holsclaw, 128 N.C. App. 205, 495 S.E.2d 166 (1998); Torres v. Kansas City Fire & Marine Ins. Co., 849 P.2d 407 (Okla. 1993); Sahloff v. Western Cas. & Sur. Co., 45 Wis.2d 60, 171 N.W.2d 914 (1969).
A leading case that illustrates the majority interpretation of the phrase "legally entitled to recover" is Borjas v. State Farm Mutual Automobile Insurance Co., 33 P.3d 1265 (Colo.App.2001). In Borjas, the plaintiff was injured when a police car crashed into the vehicle she was driving. The plaintiff filed an action against the police officer and his employer, the City of Alamosa. The action was dismissed on the grounds that the defendants were entitled to immunity under the laws of Colorado. Thereafter, the plaintiff filed an action against her automobile insurance carrier to recover under the uninsured motorist provision of her insurance policy. The trial court dismissed the action on the grounds that coverage was not provided because the police officer and the city were immune from liability, and, therefore, the plaintiff was not legally entitled to recover damages from them. The plaintiff appealed. One of the issues the plaintiff raised on appeal was that the trial court committed error in finding that the uninsured motorist policy was not triggered because she was not legally entitled to recover from the tortfeasor as required by the policy and the state's uninsured motorist statute. The appellate court agreed with the plaintiff as follows:
Borjas, 33 P.3d at 1268-69 (citations omitted).
A leading commentary on uninsured coverage also supports the majority position on this issue as follows:
Alan I. Widiss and Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance, § 7.14, at 532 (2005).
Unlike the majority view, a minority of courts take the position "that where there is no underlying uninsured ... person from whom the plaintiff is legally entitled to recover, due to the immunity provision of [a statute], the plaintiff's [uninsured] insurer is not legally liable to him." Hebert v. Clarendon American Ins. Co., 984 So.2d 952, 956 (La.Ct. App.2008). See Ex parte Carlton, 867 So.2d 332 (Ala.2003); Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla.1986); Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24 (Iowa 2005); Steen v. Metropolitan Prop. & Cas. Ins. Co., 858 So.2d 186 (Miss.Ct.App.2003); Kesterson v. Wallut, 157 S.W.3d 675 (Mo.Ct. App.2004); Matarese v. New Hampshire Mun. Ass'n Prop. Liab. Ins. Trust, Inc., 147 N.H. 396, 791 A.2d 175 (2002); Gabriel v. Minnesota Mut. Fire & Cas., 506 N.W.2d 73 (N.D.1993); Snyder v. American Family Ins. Co., 114 Ohio St.3d 239, 871 N.E.2d 574
We previously have noted that "the preeminent public policy of this state in uninsured... motorist cases is that the injured person be fully compensated for his or her damages not compensated by a negligent tortfeasor, up to the limits of the uninsured ... motorist coverage." State Auto. Mut. Ins. Co. v. Youler, 183 W.Va. 556, 564, 396 S.E.2d 737, 745 (1990) (emphasis in original). The strong public policy underlying uninsured motorist coverage demands that the phrase "legally entitled to recover," contained in W. Va.Code § 33-6-31(b), be given a liberal interpretation that is consistent with affording coverage for insureds.
In view of the foregoing, we adopt the majority rule and hold that the phrase "legally entitled to recover" contained in the uninsured motorist statute, W. Va.Code § 33-6-31(b) (1998) (Repl.Vol.2011), is construed to mean that an insured is entitled to uninsured coverage merely by establishing fault on the part of the tortfeasor and the amount of the insured's damages. Under this definition, the fact that a tortfeasor is immune from liability will not preclude recovery of uninsured motorist benefits.
As a result of our holding, we reject Bombardier's cross assignment of error that since the Plaintiffs are not entitled to recover from the City of Elkins and Mr. Stanton, then the statutory and policy phrase "legally entitled to recover" prevents them from obtaining uninsured motorist coverage.
The Plaintiffs additionally argue that the circuit court committed error in holding that the "government owned vehicle" exclusion, found in Bombardier's policy and the policy issued by Westfield, were enforceable above the mandatory limits of uninsured motorist coverage required by W. Va.Code § 33-6-31 (1998) (Repl.Vol.2011).
The policy issued by Westfield provides the following:
It is clear that the "governmental owned vehicle" exclusion found in both policies is not ambiguous and plainly denies uninsured motorist coverage when an accident involves a government owned vehicle. We have held 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.'" Witt v. Sutton, 229 W.Va. 26, 30, 725 S.E.2d 195, 199 (2011) (quoting Syl., Tynes v. Supreme Life Ins. Co. of America, 158 W.Va. 188, 209 S.E.2d 567 (1974)).
Westfield relies upon our decision in Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989), to argue that we should uphold the government owned vehicle exclusion because
Bombardier's brief also has cited to Syllabus point 3 of Deel to support its argument that nothing precluded the insertion of the exclusion in its policy. It is also argued by Bombardier that, because of this Court's decision in Boniey v. Kuchinski, 223 W.Va. 486, 677 S.E.2d 922 (2009), the exclusion does not violate public policy. The decision in Boniey has no application to the instant case.
The issue we are being asked to decide, whether a government owned vehicle exclusion violates the public policy of this State, is an issue of first impression for this Court. Accordingly, we will look for guidance to other jurisdictions that have addressed the matter.
We begin by noting that the circuit court only enforced the government owned vehicle exclusion for amounts above the statutory uninsured minimum required coverage. This situation was squarely presented in Transportation Insurance Co. v. Martinez, 183 Ariz. 33, 899 P.2d 194 (Ct.App.1995). The insurer in Martinez filed a declaratory judgment action to determine whether an uninsured exclusion in its policy was enforceable. Under that exclusion, the policy did not provide uninsured motorist coverage in excess of the statutory minimum for an accident in which the insured was injured by a motorist operating a government owned vehicle. The trial court held that the exclusion was unenforceable. The appellate court agreed as follows:
Martinez, 899 P.2d at 196-98 (internal quotations and citations omitted).
The ruling in Martinez to invalidate the government owned vehicle exclusion is consistent with the majority position in the nation. That is, "the majority of courts in other jurisdictions that have considered the validity of exclusions for government-owned vehicles have found them to be void and unenforceable as contrary to their respective [uninsured] insurance laws." Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265, 1270 (Colo.App.2001). See Carter v. Saint Paul Fire & Marine Ins. Co., 283 F.Supp. 384 (D.C.Ark.1968); Higgins v. Nationwide Mutual Ins. Co., 291 Ala. 462, 282 So.2d 301 (1973); Cropper v. State Farm Mut. Auto. Ins. Co., 671 A.2d 423 (Del.Super.Ct.1995); United Servs. Auto. Ass'n v. Phillips, 740 So.2d 1205 (Fla.Dist.Ct.App.1999); Franey v. State Farm Mut. Auto. Ins. Co., 5 Ill.App.3d 1040, 285 N.E.2d 151 (1972); Cincinnati Ins. Co. v. Trosky, 918 N.E.2d 1 (Ind.Ct.App. 2009) (involved underinsured coverage); Hillhouse v. Farmers Ins. Co., 226 Kan. 68, 595 P.2d 1102 (1979); Nationwide Mut. Ins. Co. v. Hatfield, 122 S.W.3d 36 (Ky.2003) (involved underinsured coverage); Mednick v. State Farm Mut. Auto. Ins. Co., 31 So.3d 1133 (La.Ct.App.2010); Young v. Greater Portland Transit Dist., 535 A.2d 417 (Me. 1987); West American Ins. Co. v. Popa, 352 Md. 455, 723 A.2d 1 (1998); Massachusetts Insurers Insolvency Fund v. Premier Ins. Co., 449 Mass. 422, 869 N.E.2d 576, 583 (2007); Ronning v. Citizens Sec. Mut. Ins. Co., 557 N.W.2d 363 (Minn.Ct.App.1996) (involved underinsured coverage); Welch v. Automobile Club Inter-Insurance Exch., 948 S.W.2d 718 (Mo.Ct.App.1997); Bartell v. American Home Assur. Co., 310 Mont. 276, 49 P.3d 623 (2002); Boradiansky v. State Farm Mut. Auto. Ins. Co., 141 N.M. 387, 156 P.3d 25 (2007); Gabriel v. Minnesota Mut. Fire & Cas., 506 N.W.2d 73 (N.D.1993) (involved underinsured coverage); Jennings v. Dayton, 114 Ohio App.3d 144, 682 N.E.2d 1070 (1996); State Farm Auto. Ins. Co. v. Greer, 777 P.2d 941 (Okla.1989); Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 746 A.2d 1118 (Pa.Super.Ct.1999); Rueschemeyer v. Liberty Mut. Ins. Co., 673 A.2d 448 (R.I.1996); Kyrkos v. State Farm Mut. Auto. Ins. Co., 121 Wn.2d 669, 852 P.2d 1078 (1993) (involved underinsured coverage); These courts have reasoned "that the exclusion of government owned vehicles from uninsured ... motorist coverage thwarts the expressed public policy of the statute setting forth the purpose of such coverage, namely to protect those innocent insureds who are harmed by an uninsured ... tortfeasor." Mednick v. State Farm Mut. Auto. Ins. Co., 31 So.3d 1133, 1137 (La.Ct.App.2010). The court in Rueschemeyer v. Liberty Mutual Insurance Co., 673 A.2d 448 (R.I.1996), rejected the government owned vehicle exclusion using the following reasoning:
Rueschemeyer, 673 A.2d at 451. The minority of jurisdictions that have upheld the government owned vehicle exclusion have done so because either their statute or regulations affirmatively authorized the exclusion. See Giglio v. American Econ. Ins. Co., 278 Conn. 794, 900 A.2d 27 (2006); Continental Western Ins. Co. v. Conn, 262 Neb. 147, 629 N.W.2d 494 (2001); Norcia v. Liberty Mut. Ins. Co.,
In determining whether a government owned vehicle exclusion violates the public policy of this State, we must ascertain the legislative intent underlying the uninsured motorist coverage statute. This Court has held that "[i]n construing any insurance policy, it is appropriate to begin by considering whether the policy language is in accord with West Virginia law. The terms of the policy should be construed in light of the language, purpose and intent of the applicable statute." Adkins v. Meador, 201 W.Va. 148, 153, 494 S.E.2d 915, 920 (1997).
It is provided under W. Va.Code § 33-6-31(b) that every automobile policy "shall contain an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle[.]" This Court repeatedly has recognized that W. Va.Code § 33-6-31(b) "is remedial in nature and, therefore, must be construed liberally in order to effect its purpose." Syl. pt. 7, in part, Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711 (1986). As we observed in State Automobile Mutual Insurance Co. v. Youler, 183 W.Va. 556, 396 S.E.2d 737 (1990):
Youler, 183 W.Va. at 564, 396 S.E.2d at 745 (emphasis in original).
We have found no language in W. Va.Code § 33-6-31(b), nor in any of our motor vehicle statutes or regulations, that affirmatively permit an insurer to deny uninsured motorist coverage merely because a vehicle involved in an accident was government owned. Our cases have warned that "`[t]his Court will be vigilant in holding the insurers' feet to the fire in instances where ... exclusions or denials of coverage strike at the heart of the purposes of the uninsured ... motorist statutes provisions.'" Cunningham v. Hill, 226 W.Va. 180, 186, 698 S.E.2d 944, 950 (2010) (quoting Deel, 181 W.Va. at 463, 383 S.E.2d at 95). "Accordingly, if the language of [the] policy does not comply with the broad terms of [W. Va.Code § 33-6-31(b)], then the policy language is void and the policy must be construed to contain the coverage provided for by statute." Adkins v. Meador, 201 W.Va. 148, 153, 494 S.E.2d 915, 920 (1997).
In view of the foregoing, particularly the position of the majority of courts in the country, we now hold that an uninsured motor vehicle policy exclusion for a government owned vehicle is against the public policy of this State and is therefore void and unenforceable.
Based upon our holding, it is clear that the circuit court committed error by enforcing the government owned vehicle exclusions above the mandatory limits of uninsured motorist coverage.
The final issue we must address is the Plaintiffs' claim that the circuit court committed error in determining that they were not entitled to auto medical payments benefits under Bombardier's policy.
We do not find, nor is it argued by the Plaintiffs, that the language of this exclusion is ambiguous. Moreover, this Court has held that "[w]here the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended." Syl., Keffer v. Prudential Ins. Co., 153 W.Va. 813, 172 S.E.2d 714 (1970).
There is no dispute that Mr. Jenkins was injured during the course of his employment with Bombardier. Thus, under the plain meaning of the exclusion, the Plaintiffs cannot recover auto medical payment benefits under the policy. However, the Plaintiffs contend that under this Court's decision in Henry v. Benyo, 203 W.Va. 172, 506 S.E.2d 615 (1998), the exclusion should not apply.
In Benyo the plaintiff brought an action to recover underinsured motorist benefits under his employer's automobile policy, even though the plaintiff had received workers' compensation for injuries caused by a driver who was not an employee. After the trial court denied the insurer's motion for declaratory judgment that plaintiff was not entitled to underinsured motorist benefits, the insurer appealed. The issue addressed by this Court on appeal was whether an employee was entitled to underinsured motorist benefits for injuries caused by a third party tortfeasor in the course and scope of employment. We answered the question affirmatively as follows:
Syl. pt. 4, Benyo, 203 W.Va. 172, 506 S.E.2d 615.
The Plaintiffs admit that our holding in Benyo is not directly on point with the facts of their case. However, the Plaintiffs contend that based upon principles of equity and fairness, Benyo should be extended to void the exclusion in the instant case. We agree.
The exclusion at issue is, for all practical purposes, a workers' compensation exclusion.
(Footnote added).
We believe that the public policy considerations that were relied upon in Benyo to allow an employee to recover underinsured benefits from his or her employer's automobile policy, have equal application to the recovery of medical payment benefits under such policy. That is,
Benyo, 203 W.Va. at 179, 506 S.E.2d at 622.
The record in this case is clear in establishing that Mr. Jenkins was an employee of Bombardier. There also is no dispute that Mr. Jenkins received workers' compensation benefits through Bombardier for the injuries he sustained from the accident. The policy covering Bombardier's auto medical payment benefits excluded coverage for a claim covered by workers' compensation. Under our holding, this exclusion is only enforceable above the amount subrogated by Bombardier's workers' compensation carrier.
In light of the forgoing, we affirm that part of the circuit court's order that granted summary judgment to Mr. Stanton, the City of Elkins, and National. We reverse that part of the circuit court's order that held the uninsured motorist policies for Bombardier and Westfield were not enforceable above the mandatory limits of uninsured motorist coverage required by W. Va.Code § 33-6-31; and we also reverse that part of the circuit court's order that denied the Plaintiffs auto medical payment benefits under Bombardier's
Affirmed, in Part; Reversed, in Part; and Remanded.
Justice BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
BENJAMIN, Justice, concurring in part and dissenting in part:
I concur to the majority opinion except for its finding that the circuit court committed error in determining that the plaintiffs were not entitled to auto medical payments benefits under Mr. Jenkins' employer's insurance policy. I believe that the majority opinion's finding has no basis in the precedent of this Court.
The majority opinion holds that an employee injured by a third party in the course of his employment can receive both auto medical payment benefits from his employer's insurance policy and workers' compensation benefits. To support this holding, the majority opinion incorrectly relies on this Court's opinion in Henry v. Benyo, 203 W.Va. 172, 506 S.E.2d 615 (1998). Benyo concerned underinsured motorist benefits; the instant case concerns medical payments benefits. These two types of insurance coverage serve different purposes. Medical payments coverage "permits the insured to gain speedy reimbursement for medical expenses incurred as a result of a collision without regard to the insured's fault." Ferrell v. Nationwide Mut. Ins. Co., 217 W.Va. 243, 249, 617 S.E.2d 790, 796 (2005). In contrast, uninsured coverage is intended to supplement an insured's recovery from another driver in order to make the insured whole. In the instant case, Mr. Jenkins does not need a speedy reimbursement for medical expenses because workers' compensation paid his medical bills.
To support its holding, the majority opinion includes a quotation from Benyo, but modifies the statement in a way which I believe changes its meaning. The statement as quoted by the majority opinion is as follows:
Jenkins, ___ W.Va. at ___, 738 S.E.2d at 19, citing Benyo, 203 W.Va. at 179, 506 S.E.2d at 622 (footnote omitted). The actual statement from Benyo is as follows:
Benyo, 203 W.Va. at 179, 506 S.E.2d at 622.
The clear point of this Court's actual statement in Benyo is that an injured employee should be permitted to recover underinsurance benefits from his or her employer's motor vehicle policy in addition to workers' compensation benefits to compensate for those losses that are not covered by workers' compensation. This policy makes sense because it serves to make the plaintiff whole.
In contrast, the statement as modified in the majority opinion makes no sense. Significantly, there are no losses to the plaintiff caused by workers' compensation subrogation. Such subrogation simply means that a party other than the workers' compensation provider, and of course the plaintiff, is responsible for paying the plaintiff's medical bills. If there is no other party to pay the bills, the workers' compensation provider will not have a right of subrogation. Thus, under statutory subrogation, workers' compensation may be reimbursed for payment of the plaintiff's medical bills, but regardless, the plaintiff will have his or her bills paid.
Accordingly, I am compelled to dissent to the majority opinion's holding that the plaintiffs are entitled to auto medical payments benefits under Mr. Jenkins' employer's insurance policy. Accordingly, I concur, in part, and dissent, in part.
219 W.Va. 40, 631 S.E.2d 598. Gibson only authorizes discovery on the issue of a policy provision that violates a statute. A policy provision that merely preserves immunity does not violate any statute. Further, assuming for the sake of argument that the issue raised was a valid Gibson inquiry, we would still reject it. The record in this case does not show that the Plaintiffs filed a Rule 56(f) motion to stay a ruling on summary judgment because of a need to conduct discovery. See Syl. pt. 3, in part, Crain v. Lightner, 178 W.Va. 765, 364 S.E.2d 778 (1987) ("Where a party is unable to resist a motion for summary judgment because of an inadequate opportunity to conduct discovery, that party should file an affidavit pursuant to W. Va. R. Civ. P. 56(f) and obtain a ruling thereon by the trial court."). Morever, as pointed out by the defendants, the Plaintiffs moved for summary judgment on the very issue they now argue warranted discovery.
223 W.Va. 486, 677 S.E.2d 922.
Bombardier seeks to extend Boniey by arguing that the government owned vehicle exclusion does not violate public policy because federal government vehicles are exempted from registration under state law, and federal and state vehicles are exempt from paying registration fees under state law. See W. Va.Code § 17A-3-2(a)(4) (2010) (Supp.2012); W. Va.Code § 17A-10-8(1) (2007) (Repl.Vol.2009). Although the state Legislature has affirmatively exempted federal and state vehicles from certain revenue generating requirements, Bombardier has not cited to any affirmative legislation authorizing insurers to deny uninsured motorist coverage for accidents involving government owned vehicles. In the final analysis, whether or not federal and state vehicles are exempt from registration and licensing fees has no bearing on whether an insurance policy's exclusion of uninsured motorist coverage for a government owned vehicle violates the public policy of this State. The ruling in Boniey did not address the latter issue, nor does its narrow fact pattern implicate the issue in this case.
