9.2 STATUTORY ANALYSIS
9.201 When Uninsured Motorist Coverage Must Be Provided.
A. In General. The Virginia Code requires that
[n]o policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance, or use of a motor vehicle shall be issued or delivered in this Commonwealth to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this Commonwealth upon any motor vehicle principally garaged or used in this Commonwealth unless it contains an endorsement or provisions undertaking to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits not less than the requirements of § 46.2-472. 9
Section 38.2-2206 also provides exceptions to the coverage requirement. "Insurers issuing or providing liability policies that are of an excess or umbrella type or which provide liability coverage incidental to a policy and not related to a specifically insured motor vehicle, shall not be required to . . .
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provide . . . uninsured or underinsured . . . coverage as defined in subsection A." 10
In GuideOne Mutual Insurance Co. v. Murray, 11 an employee sought uninsured/underinsured motorist coverage through his employer's policy for injuries sustained while the employee was driving his own vehicle on company business. The carrier had issued a commercial general liability policy that it claimed provided only excess coverage. 12 The policy provided that it would pay all sums an insured must pay as damages resulting from a use of a "covered auto"; however, it did not identify any specific vehicle to which the coverage applied. 13 The employee sought underinsured motorist coverage after obtaining a judgment against an underinsured driver. 14
The employee was a "second-class" insured because he was neither a named insured nor a relative thereof residing in the same household. 15 Consequently, the uninsured motorist statute required that he be covered only if he was in a listed vehicle. 16 The policy defined "covered auto" to include "nonowned autos" used in connection with the employer's business, including cars owned by employees, but the uninsured motorist endorsement's "Who Is an Insured" provision stated that "an insured is anyone who uses a covered auto with the named insured's permission except an employee if the covered auto is owned by that employee." 17 Because the employee had been operating his own vehicle, which was not listed in the policy, the exclusion of the employee from coverage was not inconsistent with the uninsured motorist statute; he was a second-class insured who was only entitled to underinsured coverage if he was in a vehicle listed in the policy. 18
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Finally, excluding the employee from coverage did not conflict with the "omnibus" statute mandating insurance for permissive users 19 because the named insured cannot give permission to use a vehicle he does not own. The employer did not own the vehicle that the employee was driving and therefore could not have given consent for him to drive it. 20 The "excess" policy was therefore not void for being in conflict with the statutorily mandated uninsured motorist coverage. 21
B. Distinguished from Underinsured Motorist Coverage. Where a vehicle has only $10,000 of bodily injury coverage, it does not have insurance in the amount specified by section 46.2-472 of the Virginia Code ($25,000) 22 and, thus, invokes uninsured motorist coverage, not underinsured coverage. 23
C. "Principally Garaged or Used" in Virginia. Uninsured motorist coverage is to be provided if, at the date of the accident, the insured vehicle is principally garaged or used in Virginia. For a vehicle to be "principally garaged or used" in Virginia, unless otherwise exempted, it must be registered in Virginia and subject to personal property taxation according to Virginia state and local law on the date of the accident. 24
D. Waiver. Uninsured motorist coverage
shall equal but not exceed the limits of the liability insurance provided by the policy, unless any one named insured rejects the additional uninsured motorist insurance coverage by notifying the insurer as provided in subsection B of § 38.2-2202. This rejection of the additional uninsured motorist insurance coverage by any one named insured shall be binding upon all insureds
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under such policy as defined in subsection B of this chapter. 25
Only a "named insured" can waive maximum uninsured motorist coverage. 26 Once the insured has effectively waived higher uninsured motorist coverage by notifying the insurer in accordance with section 38.2-2202(B), the waiver and reduction of coverage remains in effect during subsequent renewals of the policy. 27 Thus, the mere fact that an uninsured motorist carrier sent the insured a waiver form (and the insured did not respond) was insufficient to negate the insured's earlier decision to waive higher uninsured motorist coverage. 28 Nevertheless, some evidence to indicate that the insured rejected matching limits must exist, and when the insured and the agent failed to address the issue, uninsured/underinsured motorist coverage will be held to exist at the level of the policy's liability limits notwithstanding the fact that the declarations and premiums for the policy and its annual renewal referenced a lower level of coverage. 29
Further, information that supports an inference that an insured intended to reject additional uninsured motorist coverage within the requisite 20-day period is not sufficient to establish an actual rejection of the additional coverage. 30 Where an insured properly rejects increased uninsured motorist coverage but improperly rejects the mandatory minimum uninsured motorist coverage, the excessive rejection is not null and void so as to increase the uninsured motorist coverage to equal the liability coverage. 31
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In Bray v. Insurance Co. of Pennsylvania, 32 the court held that the fact that a trucking company accepted a policy with uninsured motorist coverage for less than required by Virginia law did not establish an affirmative decision to reject uninsured motorist coverage equal to the higher liability limits. The court also held that Virginia's rejection requirement, as applied to interstate carriers, does not violate the Commerce Clause or the Contracts Clause of the United States Constitution. 33 In Government Employees Insurance Co. v. Hall, 34 the court found that an insured effectively waived the maximum uninsured motorist insurance coverage when she submitted an uninsured motorist waiver form more than 20 days after receiving it from her insurer, and the waiver was effective during subsequent renewals of the policy. 35
In Jarrell-Henderson v. Liberty Mutual Fire Insurance Co., 36 the court considered whether an insured made a valid notification under section 38.2-2202 to purchase the statutory minimum uninsured motorist (UM) coverage. The UM Notification form contained the line, "I wish to elect Uninsured/Underinsured Motorist Coverage at:" followed by options, including "$70,000 single limits." 37 On its 2002 UM Notification form, the insured selected "$70,000 single limits" but did not select the line above it, reading "I wish to elect Uninsured/Underinsured Motorist Coverage at." 38 The policy was repeatedly renewed and in 2006 was triggered by an accident. 39 The court found the insured's actions in 2002 were not ambiguous and "explicitly rejected higher UM coverage." 40
In Jefferson v. Harco National Insurance Co., 41 the plaintiff alleged that the named insured did not properly reject uninsured/underinsured motorist coverage equal to the $1 million liability coverage. 42 The plaintiff
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was injured during the 2006-07 policy year. The original policy issued in 1998-99 included the notice required by section 38.2-2202(B) of the Virginia Code but no waiver form. In May 2000, the insurer asked the named insured to complete a waiver form that either selected or rejected equal uninsured motorist and liability coverage. 43 The named insured returned the form in 2001 and checked both boxes, selecting and rejecting equal uninsured/underinsured motorist and liability coverage. But the named insured also wrote that the uninsured motorist limit was $70,000 and signed his name. 44 Later, in 2004, the named insured increased the uninsured motorist coverage to $100,000. 45
Because a rejection of uninsured motorist coverage equal to the liability coverage is binding during subsequent renewal periods, the court examined whether there was a binding rejection of $1 million in uninsured motorist coverage in 2001. Although the plaintiff argued that the court could not look to the parties' intent when determining whether there was a valid rejection, the court disagreed, distinguishing White v. National Union Fire Insurance Co. 46 and relying on post-White cases to conclude that "there is flexibility in determining whether a waiver form has in fact expressed a rejection of coverage by examining the actions of the parties in order to determine their intent." 47 Ultimately, the court held that the written uninsured motorist limit of $70,000 on the original policy, the insured's request to increase the uninsured motorist coverage to $100,000, and the written limits of $100,000 for uninsured motorist coverage on all of the later policy statements established that the parties had intended to reject equal uninsured motorist coverage. 48
In Melton v. Discover Property & Casualty Insurance Co., 49 the plaintiff was injured while driving his employer's tractor-trailer. He sought uninsured/underinsured motorist coverage from the employer's liability carrier. The policy had a $1 million liability coverage limit, but the policy purported to have a $25,000 uninsured/underinsured motorist coverage limit. 50
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The plaintiff asserted that he was entitled to $1...
