Newark Ins. Co. v. Brown

624 S.E.2d 783

NEWARK INSURANCE COMPANY, Plaintiff Below, Appellee, v. James P. BROWN, et al., Defendants Below, Appellants.

No. 32566.

Supreme Court of Appeals of West Virginia.

Submitted: October 11, 2005.

Filed: November 18, 2005.

Syllabus by the Court

1. "A circuit court's entry of a declaratory judgment is reviewed de novo." Syllabus point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).

2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

3. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syllabus point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).

4. "`It is always presumed that the legislature will not enact a meaningless or useless statute.' Syllabus Point 4, State ex rel. Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963)." Syllabus point 1, Richards v. Harman, 217 W.Va. 206, 617 S.E.2d 556 (2005).

5. "`The Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, the court must presume that a change in the law was intended.' Syl. pt. 2, Hall v. Baylous, 109 W.Va. 1, 153 S.E. 293 (1930)." Syllabus point 2, Butler v. Rutledge, 174 W.Va. 752, 329 S.E.2d 118 (1985).

6. W. Va.Code § 33-6-31(b) (1998) (Repl.Vol.2003) does not require insurers to offer an insured uninsured and underinsured motor vehicle coverage in an amount not less than the policy's liability limits when an insured purchases a policy of umbrella insurance.

7. "It is well established that the word `shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).

8. W. Va.Code § 33-6-31f(a) (2001) (Repl.Vol.2003) specifically requires that insurers "shall offer uninsured and underinsured motor vehicle coverage on ... policies [that are of an excess or umbrella type and which are written to cover automobile liability] in an amount not less than the amount of liability insurance purchased by the named insured."

Ralph C. Young, Hamilton, Burgess, Young & Pollard, PLLC, Fayetteville, for the Appellants.

Mary H. Sanders, Brian J. Headley, Huddleston Bolen LLP, Charleston, for the Appellee, Shelby Casualty Insurance Company.

Justice DAVIS delivered the Opinion of the Court.

DAVIS, Justice.

The appellants herein and defendants below, James P. Brown, D.D.S., and his wife, Lynn Brown [hereinafter collectively referred to as "Dr. Brown"], appeal from an order entered July 21, 2004, by the Circuit Court of Fayette County granting declaratory judgment to the appellee herein, Shelby Casualty Insurance Company [hereinafter referred to as "Shelby"].¹ By the terms of that order, the circuit court determined that, at the time Dr. Brown initially purchased and later renewed his policy of umbrella insurance with Shelby, W. Va.Code § 33-6-31(b) (1998) (Repl.Vol.2003) did not require Shelby to offer Dr. Brown uninsured or underinsured motor vehicle coverage in an amount up to the liability limits of such policy. On appeal to this Court, Dr. Brown contends that the circuit court erred because, he claims, the Legislature had imposed such a duty upon Shelby prior to its 2001 enactment of W. Va.Code § 33-6-31f(a) (2001) (Repl.Vol.2003), which specifically imposes such a duty upon umbrella insurance carriers. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we find that the circuit court did not commit error in finding that Shelby did not have a duty, at the time of the events at issue herein, to offer Dr. Brown uninsured and underinsured motor vehicle coverage when he purchased his policy of umbrella insurance. Accordingly, we affirm the circuit court's July 21, 2004, order.

I. FACTUAL AND PROCEDURAL HISTORY

The instant proceeding has its origins in a fatal car accident that occurred in Fayette County, West Virginia, on July 22, 2000. As a result of the accident, the minor driver and three minor passengers of the car that pulled into the path of the vehicle Dr. Brown was driving were killed,² and Dr. and Mrs. Brown sustained various injuries.³ Following the accident, an interpleader suit was filed by the minor driver's insurance carrier, Newark Insurance Company, in the Circuit Court of Fayette County, against Dr. and Mrs. Brown and the estates of the minors involved in the accident.⁴ Dr. Brown also filed a declaratory judgment action against his own insurer, Shelby Casualty Insurance Company, on October 24, 2001, to recover additional underinsured motorist benefits⁵ for the injuries he and his wife sustained in the accident.⁶

At the time of the subject accident, Dr. Brown carried a motor vehicle liability insurance policy with Shelby that had limits of $100,000/$300,000, with identical amounts of uninsured and underinsured motor vehicle coverage.⁷ In addition, Dr. Brown had a $1,000,000 personal liability umbrella insurance policy⁸ also with Shelby that was in force and effect at the relevant time. Central to the issues Dr. Brown raised in his litigation against Shelby are the dates on which he purchased the aforementioned policy of umbrella insurance. He initially purchased said policy on April 15, 1994, and has subsequently renewed this policy on an annual basis. At the time relevant to the underlying automobile accident, Dr. Brown had renewed his umbrella insurance policy with Shelby on April 15, 2000, and the policy covered the period from April 15, 2000, to April 15, 2001.⁹

Before the circuit court, Dr. Brown asserted that he was entitled to recover underinsured motorist benefits from his policy of umbrella insurance because, he alleged, W. Va.Code § 33-6-31(b) (1998) (Repl.Vol.2003)¹⁰ specifically requires that an insurer who sells a policy providing motor vehicle insurance coverage is required to offer the insured the opportunity to purchase uninsured and underinsured motor vehicle coverage in an amount equal to the liability limits of said umbrella liability policy, in this case, $1,000,000. Because, Dr. Brown claimed, Shelby never offered him the opportunity to purchase such coverage,¹¹ it will be read into his umbrella insurance policy as a matter of public policy and he is entitled to collect the additional underinsured motorist benefits that would have been provided thereby.

By contrast, Shelby contended that W. Va.Code § 33-6-31(b) did not require it to offer Dr. Brown an opportunity to purchase such uninsured and underinsured motor vehicle coverage when he purchased or renewed his umbrella insurance policy because this duty was not specifically imposed by the Legislature until it enacted W. Va.Code § 33-6-31f(a) (2001) (Repl.Vol.2003)¹² in 2001. Furthermore, Dr. Brown's policy of umbrella insurance expressly did "not provide Uninsured Motorists coverage, Underinsured Motorists coverage, or any similar coverage unless the policy is endorsed to provide such coverage." Insofar as the underinsured motorist benefits which Dr. Brown sought to recover from his umbrella insurance policy were specifically excluded thereby, Shelby asserted that he was not entitled to such a recovery.

Upon Dr. Brown's complaint requesting declaratory relief, the circuit court, by order entered July 21, 2004, found in favor of Shelby, concluding that, at the times relevant to this case, Shelby did not have a duty to offer Dr. Brown the option to purchase uninsured or underinsured motor vehicle coverage in an amount up to the liability limits of his umbrella insurance policy in conjunction with his purchase thereof. In so ruling, the circuit court explained that

[I]t appears to the Court that the intention of the legislature during the period from April, 1994 through July, 2000, was to require the offer of uninsured and underinsured motor vehicle coverage only to automobile liability insurance policies or contracts. It appears to the Court that if the legislature had intended to include excess liability and umbrella type policies or any other general liability policies prior to July of 2001, as it did in 2001, it would have done so.

From this adverse ruling, Dr. Brown appeals to this Court.

II. STANDARD OF REVIEW

The sole issue presented for our determination and decision by the instant appeal concerns the circuit court's interpretation and application of two statutory provisions: W. Va.Code § 33-6-31(b) and W. Va.Code § 33-6-31f(a). When we are called upon to review an order of a lower court rendering a declaratory judgment, we apply a plenary review to the circuit court's ruling. "A circuit court's entry of a declaratory judgment is reviewed de novo." Syl. pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). Accord Syl. pt. 2, Carvey v. West Virginia State Bd. of Educ., 206 W.Va. 720, 527 S.E.2d 831 (1999).

Likewise, with respect to the circuit court's rulings interpreting and applying the two statutory provisions at issue herein, we also apply a de novo standard of review. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). See also Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) ("Interpreting a statute or an administrative rule or regulation presents...