Benjamin dissent in insurance case says plaintiffs would get med payment windfall

By Nathan Bass | Nov 26, 2012


CHARLESTON – Justice Brent D. Benjamin has filed a dissent in an automobile accident case in which the Supreme Court of West Virginia made several significant insurance law holdings on Nov. 15.

The case, Jeffrey Jenkins and M. Jean McNabb v. City of Elkins et al., came about as a result of an Oct. 27, 2008 automobile accident involving Jeffrey Jenkins and City of Elkins employee Stephen P. Stanton.

Jenkins was injured and filed suit in the Circuit Court of Harrison County where the court made numerous rulings regarding insurance coverage and immunity. 

The case was ultimately appealed to the West Virginia Supreme Court on five issues: (1) whether City of Elkins, Stephen P. Stanton, and [their insurance carrier] 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 Court found that immunity for the City, Stanton, and National was proper under the 1992 O’Dell decision which 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.”

On the next issue, Justice Robin Jean Davis, writing for the majority, 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 Court ruled.

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

It is on this final issue of auto medical payments that Benjamin disagreed with the majority, writing in his dissent, “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.  Benyo concerned underinsured motorist benefits; the instant case concerns medical payments benefit.

“[U]ninsured coverage is intended to supplement an insured’s recovery from another driver in order to make the insured whole.

“The actual effect of the law created in the majority opinion is that the plaintiff will receive a windfall by virtue of having his or her medical bills paid more than once…Mr. Jenkins potentially will have his medical bills paid three times over.

“Such a result is inexplicable to me and has no basis in reason or in law. 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.”

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