Erie Ins. Co. v. Dolly
Erie Ins. Co. v. Dolly
Opinion of the Court
Erie Insurance Property and Casualty Company ("Erie") appeals two orders of the Circuit Court of Hampshire County entered in a civil action instituted by Ricky A. Dolly, Erie's insured. First, Erie appeals the November 10, 2016, Order Granting Plaintiff's Petition for Declaratory Judgment, wherein the circuit court held that Erie was required to provide Mr. Dolly with the statutory minimum amount of uninsured motorist coverage
I. Factual and Procedural Background
On September 13, 2013, Mr. Dolly was driving his pick-up truck along a highway in Hampshire County. The truck was towing a trailer that carried an ATV, both of which were owned by Mr. Dolly. Emily M. Cole, while operating a sports utility vehicle owned by her father, negligently struck the side of Mr. Dolly's vehicle. Mr. Dolly was not injured but he suffered the total loss of his truck, trailer, and ATV as the result of this collision.
The Coles failed to maintain any liability insurance on their sports utility vehicle, and Mr. Dolly filed a claim with his own automobile insurance carrier, Erie. His Erie automobile policy provided $10,000 in uninsured motorist coverage for property damage. Soon after the collision, Erie paid Mr. Dolly for the loss of his truck.
Mr. Dolly filed suit against the Coles in May 2014. In December 2014, the complaint was amended to name Erie as a notice party, but no claims were asserted against Erie.
On March 9, 2016, Mr. Dolly moved the circuit court for leave to amend his complaint to add claims against Erie; this motion was granted on March 17, 2016. In this amended complaint, Mr. Dolly sought a declaratory ruling that Erie was responsible for paying for the trailer and the ATV pursuant to his uninsured motorist coverage. In separate counts, he also alleged and sought damages for common law bad faith and violation of the UTPA. Erie filed a motion to dismiss this amended complaint as time-barred, which the circuit court denied by order of July 11, 2016. Thereafter, Erie filed a counterclaim for declaratory relief arguing that there was no uninsured motorist coverage for the trailer and the ATV because of the policy exclusions.
After considering the parties' arguments, the circuit court entered its declaratory judgment order on November 10, 2016. The court concluded that despite the exclusionary language in the policy, Mr. Dolly was entitled to recover up to the statutorily-mandated uninsured motorist coverage minimum limit for the loss of his trailer and for the ATV that was being hauled on the trailer. See W.Va. Code § 33-6-31(b) (1998) (requiring uninsured motorist coverage in minimum amount specified by W.Va. Code § 17D-4-2 (1979) ). At the time of this collision and the effective dates of Mr. Dolly's policy, the mandatory minimum for property damage coverage was $10,000. See id. However, the circuit court also determined that Erie was not required by law to provide uninsured motorist coverage for amounts in excess of the statutorily-mandated minimum. Accordingly, the circuit court entered judgment against Erie in the amount of $10,000.
II. Standard of Review
The coverage issue that Erie brings before this Court presents a question of law arising from a declaratory judgment order. "A circuit court's entry of a declaratory judgment is reviewed de novo ." Syl. Pt. 3, Cox v. Amick ,
III. Discussion
A. Uninsured motorist coverage for the trailer and ATV
Erie argues that pursuant to its clear and unambiguous policy exclusions, Mr. Dolly's trailer and ATV are not covered by his uninsured motorist coverage. "Where provisions in an insurance policy are plain and unambiguous and where such provisions are not contrary to a statute ... the provisions will be applied and not construed." Syl. Pt. 2, in part, Shamblin v. Nationwide Mut. Ins. Co. ,
The issue before this Court is whether, notwithstanding the policy exclusions, the Uninsured Motorist Law, West Virginia Code § 33-6-31(b) (1998),
Nor shall any such policy or contract [of motor vehicle liability insurance] be so issued or delivered unless it shall contain an endorsement or provisions undertaking to pay the insured all *881sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than the requirements of section two [ § 17D-4-2 ], article four, chapter seventeen-d of this code, as amended from time to time: Provided, That such policy or contract shall provide an option to the insured with appropriately adjusted premiums 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 up to an amount of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, in the amount of three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident and in the amount of fifty thousand dollars because of injury to or destruction of property of others in any one accident[.]
W.Va. Code § 33-6-31(b), in part.
Because Mr. Dolly is "legally entitled to recover as damages" compensation for his destroyed trailer and ATV from Ms. Cole, who is "the owner or operator of an uninsured motor vehicle[,]" the circuit court found that Erie must, by law, provide the statutorily-mandated minimum amount of uninsured motorist coverage for this loss. It is well-settled that "[s]tatutory provisions mandated by the Uninsured Motorist Law ... may not be altered by insurance policy exclusions." Syl. Pt. 1, in part, Deel v. Sweeney ,
Instructive on the issue before us is Imgrund v. Yarborough ,
[a]n "owned but not insured" exclusion to uninsured motorist coverage is valid and enforceable above the mandatory limits of uninsured motorist coverage required by W.Va. Code §§ 17D-4-2 (1979) (Repl.Vol. 1996) and 33-6-31(b) (1988) (Supp. 1991). To the extent that an "owned but not insured" exclusion attempts to preclude recovery of statutorily mandated minimum limits of uninsured motorist coverage, such exclusion is void and ineffective consistent with this Court's prior holding in Syllabus Point 2 of Bell v. State Farm Mutual Automobile Insurance Company ,157 W.Va. 623 ,207 S.E.2d 147 (1974).
Imgrund at 188,
In an effort to support the legality of its exclusionary language, Erie relies heavily upon syllabus point eight of Boniey v. Kuchinski , wherein this Court held that "[a] provision in a motor vehicle liability insurance policy excluding an off-road all-terrain vehicle or ATV from uninsured motorist coverage does not violate the intent and purpose of the uninsured motorist statute at W.Va. Code § 33-6-31(b) (1998)." Boniey ,
In Boniey , Ms. Boniey was riding as the passenger on an ATV owned and driven by Mr. Kuchinski. Mr. Kuchinski wrecked the ATV and Ms. Boniey was injured. Mr. Kuchinski's insurance company denied coverage under his liability policy. Ms. Boniey filed a claim against her own uninsured motorist coverage, and her carrier also denied the claim.
Thus, pursuant to the applicable statutory law, the liable tortfeasor's ATV in Boniey was not an "uninsured motor vehicle" for purposes of uninsured motorist coverage.
Although Boniey does not support Erie's contention, it is obvious that the wording of syllabus point eight has caused unnecessary debate. Accordingly, in order to make the syllabus of Boniey more fully align with the analysis and decision in that case, we hereby modify syllabus point eight to provide that a provision in a motor vehicle liability insurance policy excluding an off-road all-terrain vehicle or ATV from being an uninsured motor vehicle does not violate the intent and purpose of the uninsured motorist statute at W.Va. Code § 33-6-31(b) (1998). This change mirrors key language in the Boniey opinion, including the introductory paragraph where the Court announced its "conclu[sion] that an ATV is not an 'uninsured motor vehicle' within the meaning of W.Va. Code § 33-6-31(b)[.]"
Erie also relies upon Blake v. State Farm Mutual Automobile Insurance Company ,
In this instance, Erie does not dispute that Ms. Cole was an uninsured motorist driving an uninsured motor vehicle. The issue of whether Mr. Dolly was "legally entitled to recover damages" from Ms. Cole is also settled. Ms. Cole's liability for destroying the truck, trailer, and ATV has never been disputed, and Mr. Dolly has a judgment order specifying an amount of damages for his property loss. See Syl. Pt. 3, in part, Jenkins v. City of Elkins ,
B. Denial of Erie's motion to dismiss the bad faith claims
Next, Erie argues that the circuit court erred by denying its motion to dismiss Mr. Dolly's common law and statutory bad faith claims as untimely filed. A one-year statute of limitations applies to bad faith claims,
The parties' briefs fail to discuss whether the statute of limitations issue is properly before this Court at this time but, upon examining the record, we are compelled to sua sponte consider this question. "[O]rdinarily, the denial of a motion to dismiss is an interlocutory order and, therefore, is not immediately appealable." Ewing v. Bd. of Educ. ,
The Legislature vested appellate jurisdiction in this Court with West Virginia Code § 58-5-1 (1998), which sets forth, in part, that
[a] party to a civil action may appeal to the Supreme Court of Appeals from a final judgment of any circuit court or from an order of any circuit court constituting a final judgment as to one or more but fewer than all claims or parties upon an express determination by the circuit court that there is no just reason for delay and upon an express direction for the entry of judgment as to such claims or parties.
Under this statute, " '[a] case is final only when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.' Syllabus point 3, James M.B. v. Carolyn M. ,
Separate from its briefs, in a "Notice of Appeal" form filed with this Court, Erie indicated a reliance upon Rule 54(b) of the West Virginia Rules of Civil Procedure.
The key to determining if an order is final is not whether the language from Rule 54(b) of the West Virginia Rules of Civil Procedure is included in the order, but is whether the order approximates a final order in its nature and effect. We extend application of this rule to a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.
Syl. Pt. 1, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. ,
Clearly, the circuit court's order denying the motion to dismiss did not approximate a final order in its nature and effect. It did not resolve the bad faith claims. An order "properly may be certified under Rule 54(b) only if it possesses the requisite degree of finality.
*885That is, the judgment must completely dispose of at least one substantive claim." Hubbard v. State Farm Indem. Co. ,
The order denying the motion to dismiss may not even be the final word on the bad faith statute of limitations issue. In the absence of a declaration that an order constitutes a final judgement, an order adjudicating fewer than all of the claims in a case is "subject to revision at any time before the entry of" the final judgment. W.Va. R. Civ. P. 54(b). Additionally, Mr. Dolly suggests there may be a factual question regarding when he received notice of the denial,
The collateral order doctrine also does not defeat the rule of finality in this instance. Under the collateral order doctrine, an interlocutory order may be subject to immediate appeal if it "(1) conclusively determines the disputed controversy, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment." Credit Acceptance Corp. v. Front ,
IV. Conclusion
For the reasons set forth herein, the circuit court's declaratory judgment order is affirmed. The case is remanded to the circuit court for further proceedings on the bad faith claims.
Affirmed and remanded.
See W.Va. Code § 33-6-31(b) (1998) and § 17D-4-2 (1979).
See W.Va. Code § 33-11-4 (2002).
The appendix record does not reflect the amount that Erie paid for the truck.
The Erie policy provided:
LIMIT OF PROTECTION
Limitations of Payment
....
Uninsured/Underinsured Motorist Coverage is not provided for any "trailer," whether or not the "trailer" is attached to another "motor vehicle" or "miscellaneous vehicle." No separate limit of protection for Uninsured/Underinsured Motorists Coverage is available for a "trailer," whether attached or unattached to a "motor vehicle" or "miscellaneous vehicle." Uninsured/Underinsured Motorists Coverage does not apply to a "miscellaneous vehicle" owned or leased by "you" or a "relative" unless the "miscellaneous vehicle" is listed on the "Declarations" and a premium is shown for this coverage.
(Emphasis removed.) The policy defined "trailer" as "a vehicle designed to be pulled by a 'private passenger auto,' if not being used for business purposes except with a 'private passenger auto.' " The policy also specified that the term "miscellaneous vehicle" includes an "all terrain vehicle and any similar recreational vehicle."
Erie contends that it sent a November 4, 2013, letter to Mr. Dolly explaining that the policy exclusions meant there was no coverage for the trailer and ATV. However, Mr. Dolly asserts he did not receive this letter until it was subsequently produced in discovery. Erie responds that regardless of when the letter was received, Mr. Dolly has admitted that he knew Erie denied his claim for the ATV and trailer. The circuit court has not addressed this factual dispute.
See W.Va. Code § 33-6-31(d) (1998).
See supra note 4.
In the declaratory judgment order, the circuit court found that Erie had previously accepted coverage for the damages to Mr. Dolly's truck through his policy's collision coverage. Consistent with that finding, the circuit court entered judgment for the entire $10,000 uninsured motorist mandatory minimum amount to compensate Mr. Dolly for the loss of his trailer and ATV. However, Erie represents to this Court that the truck was actually compensated through the policy's uninsured motorist coverage, not the collision coverage.
There is no indication in the record that Erie filed a motion with the circuit court to correct either the finding of fact regarding the collision coverage for the truck or the amount of the judgment entered against Erie for the trailer and ATV. Moreover, Erie's assignments of error do not designate these as issues on appeal. Although Erie moved this Court for permission to supplement the appendix record on appeal with documents purporting to show that it paid Mr. Dolly for his truck through the uninsured motorist coverage, the proffered documents were never presented to the circuit court and this Court denied the motion to supplement. See R. App. Pro. 6(a) ("The record [on appeal] consists of the papers and exhibits filed in the proceedings in the lower tribunal[.]"); R. App. Pro. 6(b) ("Anything not filed with the lower tribunal shall not be included in the record on appeal unless the Court grants a motion for leave to supplement the record on appeal for good cause shown."). Because the truck's coverage and the amount awarded in the declaratory judgment order were not assigned as errors on appeal, we decline to decide these issues. See Tiernan v. Charleston Area Med. Ctr., Inc. ,
As discussed more fully in section III-B of this opinion, Erie files this appeal pursuant to Rule 54(b) of the Rules of Civil Procedure. See Syl. Pt. 1, in part, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. ,
Based upon the date of the accident and the effective dates of Mr. Dolly's policy, the 1998 version of West Virginia Code § 33-6-31(b) applies to this case. Although the statute was amended in 2015, including by changing the word "shall" to "may" in subsection (b), those amendments are not at issue in this appeal.
West Virginia Code § 33-6-31(b) further allows for the optional purchase of additional uninsured motorist coverage up to the same amount as the insured's liability limits, as well as for the purchase of optional underinsured motorist coverage.
W.Va. Code § 17D-4-2 (1979).
Notably, West Virginia Code § 17D-4-2 requires proof of financial responsibility for trailers and, pursuant to West Virginia Code § 17A-3-2 (2010), a trailer is subject to West Virginia's vehicle registration and certificate of title requirements. See discussion of Boniey v. Kuchinski ,
W.Va. Code § 33-6-31(b), in part (emphasis added).
An " 'uninsured motor vehicle' shall mean a motor vehicle as to which there is no: ... Bodily injury liability insurance and property damage liability insurance both in the amounts specified by section two, article four, chapter seventeen-d of this code[.]" W.Va. Code § 33-6-31(c) (1998). Erie admits that Ms. Cole was an uninsured motorist by arguing that it paid for Mr. Dolly's truck pursuant to his uninsured motorist coverage.
The circuit court recognized this important distinction in the declaratory judgment order when finding that an "all-terrain vehicle is subject to a proper exclusion in the event that it [is] operated as a vehicle on the public highway, but in this instance, it [is] personal property, not utilized as a miscellaneous vehicle or recreational vehicle."
Although Erie's policy exclusions, as quoted in footnote four supra , were written to apply to both uninsured and underinsured motorist coverages, our holding today is limited to the amount of uninsured motorist coverage mandated by the Legislature. Uninsured coverage in excess of that amount, as well as underinsurance coverage, are optional and therefore may be excluded by unambiguous policy language.
This Court has held that common law and statutory bad faith claims sound in tort but do not involve property damage, personal injury, fraud, or deceit, thus the one-year limitations period specified in West Virginia Code § 55-2-12(c) (1923) applies. See Syl. Pt. 4, Noland v. Virginia Ins. Reciprocal ,
Indeed, there is no issue of timeliness regarding the declaratory judgment coverage issue. A direct suit against one's own insurance company for the recovery of uninsured motorist benefits is governed by the statute of limitations applicable to contracts. Syl. Pt. 2, Plumley v. May ,
Accord W.Va. Bd. of Educ. v. Marple ,
Rule 54(b) provides:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
See supra note 5.
Reference
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- ERIE INSURANCE COMPANY, Below v. Ricky A. DOLLY, Below
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