WEST VIRGINIA RECORD

CHARLESTON – A 2008 automobile accident case was sent back to the Circuit Court of Harrison County for further deliberations after the state Supreme Court made several holdings regarding state insurance law on Nov. 15.

On Oct. 27, 2008, Jeffrey Jenkins was injured during an automobile accident with Stephen P. Stanton. Jenkins was operating a vehicle owned by his employer, Bombardier Aerospace Corporation, and Stanton was driving a vehicle owned by his employer, the City of Elkins.

The injuries 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 Jenkins’ employment, he received workers’ compensation benefits.

Jenkins filed an action against the City of Elkins and Stanton, and then served a notice of the complaint to his personal automobile insurer, Westfield Insurance Company. Westfield then brought a claim against Bombardier, Jenkins’ employer, and National Union Fire Insurance Company, the City of Elkins’ insurance company.

The circuit court found that City of Elkins and Stanton were immune, as was the insurer for the city, National. The order of the circuit court also limited both Bombardier and Westfield to the statutory minimum of $20,000 each on the uninsured motorists claims, due to a “government vehicle” exclusion found in each of the insurer’s policies.

The court further found that Jenkins was not entitled to “auto medical coverage” by Bombardier or Westfield due to his injuries happening while he was on the job and workers’ compensation having applied.

Five issues were presented on appeal to the Supreme Court: (1) whether City of Elkins, Stephen P. Stanton, and National Union Fire Insurance Company were immune; (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.

The Supreme Court found that immunity for the City, Stanton and National was proper under the 1992 O’Dell decision that had interpreted state law to give 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.”

Justice Robin Jean Davis noted that since 1992, the Legislature could have rewritten the statute O’Dell interpreted so as to nullify the interpretation and, “The fact that the Legislature has not done so is clear evidence that the O’Dell court’s decision is correct.”

On the next issue, the Court noted that in West Virginia, the statutory definition of “uninsured motor vehicle” is that a vehicle “not have personal injury and property liability coverage.”

On this “issue of first impression” the Court held, “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. statute], 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.”

On the third issue before the Court, after analysis of the interpretation of the phrase “legally entitled to recover” from other states, the Court held, “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… 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.”

The Court moved to the fourth issue - “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” West Virginia statute.

This provision had limited the coverage by Bombardier and Westfield to the $20,000 mandatory minimum.

Again, the court covered new ground by holding “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.”

On the fifth and final issue of “whether a policy exclusion for an injury arising out of and in the course of employment precluded medical payment coverage,” the Court once again ruled in favor of the plaintiff, Jenkins.

“Consequently, we now hold that an employer’s insurance policy that excludes coverage for auto medical payment benefits to an employee who sustained an injury arising out of and in the course of employment is only enforceable to exclude medical payment coverage for that part of a claim that exceeds the amount subrogated by the employer’s workers’ compensation carrier,” the opinion says.

This specific holding opened the door for Jenkins, and future plaintiffs, to claim “auto medical payments” over the amounts paid by workers’ compensation.

Davis concluded for the Court: “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 policy.”