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Trisvan v. Agway Insurance Co.10/31/1997
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
In this appeal, we construe Code § 38.2-2206 to determine whether, in a single vehicle accident, the uninsured/ underinsured motorist (UM/UIM) endorsement of a tortfeasor's automobile liability insurance policy is to be considered when determining the extent to which the tortfeasor's motor vehicle is underinsured.
The facts are not in dispute. On April 9, 1994, Bernard J. Trisvan, Jr., was a passenger in a car driven by Marcus Wilson Smith. The car overturned, and Trisvan suffered injuries resulting in damages exceeding $125,000. Smith's vehicle was insured by Integon Indemnity Corporation (Integon), with policy limits of $25,000 per person for bodily injury liability and $25,000 per person UM/UIM coverage. Trisvan was insured under a family automobile policy issued to his father by Agway Insurance Company (Agway) with a limit of $100,000 for UM/UIM coverage.
Trisvan filed a personal injury action against Smith and served Agway as his underinsurance carrier. In settlement of the personal injury action, Integon paid Trisvan the $25,000 liability limit under Smith's policy. Agway then tendered Trisvan $75,000 and filed a declaratory judgment action seeking a ruling that $75,000 was the total amount it owed Trisvan under Trisvan's UM/UIM policy. Trisvan, in his grounds of defense and counterclaim, asserted that the total amount of available UM/UIM coverage was $125,000 and, therefore, Agway was liable for $100,000 rather than $75,000. The trial court, on cross motions for summary judgment, concluded that Smith's vehicle was underinsured by $75,000, not $100,000, and that Trisvan was therefore only entitled to $75,000 from Agway. We awarded this appeal.
In this case, we are not concerned with construing the terms of an insurance policy to determine whether an applicant is entitled to recovery. Trisvan did not seek recovery from Integon under the terms of the UM/UIM endorsement in Smith's policy and counsel for Trisvan stated at oral argument that he could not recover under that portion of the policy because of the policy limits. The sole question here requires interpretation of a portion of § 38.2-2206, regarding the method for calculating the amount by which a vehicle is underinsured.
Since 1982, § 38.2-2206 has required that automobile liability insurance policies issued in Virginia include an endorsement which obligates the insurer to pay the insured for damages caused by the operation or use of an underinsured motor vehicle. Subsection (B) of that section provides that a motor vehicle is considered underinsured:
when, and to the extent that, the total amount of bodily injury and property damage coverage applicable to the operation or use of the motor vehicle and available for payment for such bodily injury or property damage, . . . is less than the total amount of uninsured motorist coverage afforded any person injured as a result of the operation or use of the vehicle.
Trisvan asserts that, in construing this provision, the legislature's use of the word "total" commands that even in a single car accident the driver's UM/UIM coverage always be stacked onto other UM/UIM coverage. According to Trisvan, the purpose of the 1982 amendments to § 38.2-2206 was to "increase the total protection afforded to insurance claimants injured by negligent motorists. See Nationwide Mutual Insurance v. Scott, 234 Va. 573, 363 S.E.2d 703 (1988)." Therefore, Trisvan reasons, the General Assembly must have intended that, in calculating the extent to which a vehicle is underinsured, a driver's UM/UIM insurance would be considered to be "afforded" to his passen
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