Canal Insurance Company v. James Barker, III

Filing 920091231

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1301

CANAL INSURANCE COMPANY, Plaintiff - Appellee, v. JAMES M. BARKER, III, d/b/a Barker & Son; DENISE A. PENN; HOUSTONIA CLYMER, Defendants ­ Appellants, and JUSTIN J. COLVARD, Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:07-cv-00339-JRS)

Argued:

October 29, 2009

Decided:

December 31, 2009

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and Norman K. MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John Janney Rasmussen, INSURANCE RECOVERY LAW GROUP, PLC, Richmond, Virginia, for Appellants. Marc A. Peritz, MORIN & BARKLEY, Charlottesville, Virginia, for Appellee. ON BRIEF:

Elliott M. Buckner, CANTOR ARKEMA, PC, Richmond, Virginia, for Appellant Denise A. Penn; Joseph R. Winston, LAW OFFICES OF JOSEPH R. WINSTON, Richmond, Virginia, for Appellant James M. Barker, III, d/b/a Barker & Son; M. Scott Bucci, BUCCI & DIX, Richmond, Virginia, for Appellant Houstonia Clymer.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: A truck owned by James M. Barker III, d/b/a Barker & Son ("Barker"), and driven by Justin J. Colvard ("Colvard"),

collided with a car, which was driven by Denise A. Penn ("Penn") and carrying Houstonia Clymer ("Clymer") (collectively,

"Appellants"). Penn and Clymer were injured in the collision. Canal Insurance Company ("Canal" or "Appellee") brought suit

seeking a declaratory judgment as to the policy limits of an insurance policy that Canal issued to Barker. The district court rejected Appellants' contention that Virginia Code § 46.2-2143 or federal regulations would operate to increase the policy's limit to $750,000 through its "Out of State Insurance"

provision, and instead granted Canal's Motion for Judgment on the Pleadings that the policy was limited to the face amount of $100,000 listed on its declaration page. We agree and affirm the judgment.

I. On August 2, 2005, the tractor-trailer driven by Colvard and owned by Barker was traveling southbound on Interstate 85 in Brunswick County, Virginia, when it was involved in the

collision with the car carrying Penn and Clymer. Earlier that day, Colvard and made was a delivery to a location in with Petersburg, an empty

Virginia,

"deadheading" 3

(traveling

trailer) at the time of the accident. The following day, Colvard was expected to pick up property in Salisbury, North Carolina and transport it to Elberton, Georgia. Barker and Colvard were both domiciled in Georgia, and Penn and Clymer were both

domiciled in New York. Canal is a corporation with its principal place of business in, and organized under the laws of, South Carolina. Barker had previously purchased an insurance policy from Canal, Basic Automobile Policy No. 447668 ("the Policy"),

covering the period between September 2004 and September 2005. The Policy provides on the declaration page that Barker was

insured to a $100,000 limit of liability, and Canal offered to pay that amount to satisfy Penn and Clymer's claims arising out of the accident. At issue is the meaning and effect that the Policy's Out of State Insurance provision has on the Policy's liability operates limit, to and specifically the limit to whether $750,000, this the provision amount of

increase

insurance that Appellants allege is required by Virginia law. 1

1

The "Out of State Insurance" provision states in pertinent

part: If, under the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state or province, a non-resident is required to maintain insurance with respect to the operation or use of a motor vehicle in such state or province and (Continued) 4

Canal brought suit, seeking a declaratory judgment that the Policy had a liability limit of the face value of $100,000. Penn and Clymer counterclaimed that Canal owed a duty to indemnify Barker and Colvard at least $750,000 to cover claims arising from the accident. Penn and Clymer argued, inter alia, that

Virginia Code § 46.2-2143(B) required that "[a]ll motor carriers shall keep in force at all times insurance . . . in an amount required by this section," and that under subsection (C), that amount of "minimum insurance for motor carriers operating in interstate commerce shall equal the minimum required by federal law, rule, or regulation." Viewed with reference to federal

regulations 49 C.F.R. §§ 387.7 and 387.9, which set the minimum level of financial responsibility for interstate motor carriers at $750,000, Penn and Clymer argued that both Virginia law, and federal regulations, operated to increase the Policy's liability limit to $750,000. Canal contended that a holistic reading of the statutory scheme in Virginia regulating motor carriers

such insurance requirements are greater than the insurance provided by the policy, the limits of the company's liability and kinds of coverage afforded by the policy shall be as set forth in such law, in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of a motor vehicle in such state or province....

5

clearly establishes that Virginia Code § 46.2-2143 only applies to motor carriers who are registering in Virginia. The district court found Canal's interpretation of the

statutory scheme in Virginia regulating motor carriers to be more persuasive. J.A. 110. Particularly, the court found this interpretation to be supported by Virginia Code § 46.2-2102(2), which exempts "from this chapter . . . [t]ransportation of

property between any point in this Commonwealth and any point outside this Commonwealth or between any points wholly within the limits of any city or town in this Commonwealth." Therefore, the court held that § 46.2-2102(2) exempts the application of Chapter 21 (which includes § 46.2-2143) to motor carriers like Barker who engage in interstate commerce. J.A. 110. The court also found that § 46.2-2143, when read in its entirety, sets forth the requirements for a motor carrier to register in

Virginia. J.A. 110-11. The district court was not persuaded by the argument that federal regulations operated, through the Out of State Insurance provision, to increase the Policy's liability limit to $750,000. J.A. 112. Even though Barker was required by federal regulations to show a financial responsibility of

$750,000, the court held that Barker was not required to carry insurance and could opt to meet the financial responsibility through one of several ways. J.A. 113-14.

6

II. We review de novo a district court's decision to grant

judgment on the pleadings. See Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). In reviewing an award of judgment on the pleadings, we assume the facts alleged in the relevant pleadings to be true, and we draw all reasonable inferences therefrom. Volvo Constr. Equip. N. Am. v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir. 2004) (citing Elkins Radio, 278 F.3d at 406). The appellants have raised several issues upon appeal, and we address each in turn. A. The principal question raised on appeal is whether the

district court erred in its holding that Virginia Code § 46.22143 only served to establish financial responsibility

requirements for motor carriers who are registered in the state of Virginia, or whether, as Appellants contend, § 46.2-2143 also applies to interstate motor carriers such as Barker. We hold

that the district court did not err in its interpretation of the Virginia statute. The applicable rules of statutory interpretation, to be

applied in the interpretation of a Virginia statute, are not in

7

dispute. 2

Where

the

language

of

a

statute

is

clear

and

unambiguous, "a court may look only to the words of the statute to determine its meaning." Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 339, v. 497 S.E.2d 335, 337 (1998) 253 (citing Va. Harrison 368, &

Bates,

Inc.

Featherstone

Assocs.,

364,

484

S.E.2d 883, 885 (1997)). Furthermore, it is a "settled principle of statutory construction that every part of a statute is

presumed to have some effect and no part will be considered meaningless unless absolutely necessary." Id. at 340-41 (citing Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 405, 468 S.E.2d 905, 909 (1996)). "Whenever possible, however, it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal. `[A] statute is not to be construed by singling out a particular phrase.'" Virginia Elec. & Power Co. v. Bd. of County

Supervisors of Prince William County, 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983) (quoting VEPCO v. Citizens, 222 Va. 866, 869, 284 S.E.2d 613, 615 (1981)). "Consequently, courts apply the plain language of a statute unless . . . applying the plain

Additionally, as the parties have observed, Canal issued the insurance policy to Barker in Georgia; therefore, the interpretation of the policy is governed by Georgia law. See Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005).

2

8

language would lead to an absurd result." Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006). The plain terms of Virginia Code § 46.2-2143, when read in their entirety, and even without reference to other sections of the Code, make clear that it is a registration statute. Virginia Code § 46.2-2143(B) provides that "[a]ll motor carriers shall keep in force at all times insurance, a bond or bonds, in an amount required by this section." Furthermore, Virginia Code § 46.2-2143(C) provides that "[t]he minimum insurance for motor carriers operating by in interstate law, commerce rule, or shall equal the The

minimum required

federal

regulation."

Appellants conclude that these two subsections of § 46.2-2143, in conjunction with certain federal regulations, operate as an insurance requirement for all motor carriers and not only those registering in Virginia. However, a reasonable interpretation of Virginia Code §

46.2-2143 must try to reconcile subsection (A) with subsections (B) and (C), in an attempt "to interpret the several parts of a statute as a consistent and harmonious whole." Virginia Elec. & Power Co., 226 Va. at 388. Subsection (A) provides that "[n]o certificate of public convenience and necessity, permit,

identification marker, registration card, or license plate shall be issued by the Department to any vehicle operated by a motor carrier until the motor carrier certifies to the Department that 9

the

vehicle

is

covered"

under

one

of

four

different

listed

methods of coverage. In addition, subsection (A) provides that motor carriers who have filed proof of financial responsibility "in accordance by with 49 the single § 14504 state or registration the unified system carrier

authorized

U.S.C.

registration system authorized by 49 U.S.C. § 14504a are deemed to have fulfilled the requirements of this article for insurance purposes," so long as the motor carrier has on board a

federally-authorized receipt of insurance. Only after § 46.22143 explains the prerequisites for registering a motor carrier in Virginia with the the Department issues of of Motor Vehicles of does the

statute

reach

the

types

financial

responsibility, when financial responsibility is required, and in what amount. Importantly, it is not just subsection (A) that couches motor carrier insurance and financial responsibility obligations in the context of registration. also provides as follows: Any motor carrier that meets the minimum federal financial responsibility requirements and also operates in intrastate commerce may submit, in lieu of a separate filing for its intrastate operation, proof of the minimum federal limits, provided that (i) both interstate and intrastate operations are insured, (ii) the public liability filed is at least $750,000, and (iii) any cargo insurance requirements of this section have been met. Virginia Code § 46.2-2143(C)

10

This

language, read

in as

light an

of

the

rest means

of of

the

statute, proof

is of

reasonably

alternative

filing

financial responsibility with the Virginia Department of Motor Vehicles prior to its issuance of motor carrier registration for carriers operating on an interstate and intrastate basis. A clear indicator that Virginia Code § 46.2-2143 is a

registration statute, although one that did not form the basis of the district court's opinion, is the title of that statutory section: "Surety bonds, insurance, letter of credit or

securities required prior to issuance of registration; amounts." (emphasis added). The Appellants place emphasis upon the article in which § 46.2-2143 is situated ("Insurance Requirements") as contrasted with the chapter in which its statutory predecessor was situated ("Titling and Registration of Motor Vehicles").

Appellants' Br. at 10-12. However, Appellants ignore the title of the statutory section, which is the more specific statutory interpretive marker. It is clear that "[t]he purpose of a title is to state the general subject covered by the act. While not a part of the act itself, it may be read to ascertain the act's purpose." Jakabcin v. Town of Front Royal, 271 Va. 660, 667 n.3, 628 S.E.2d 319, 323 (2006) (citing authorities). In this case, as the section title indicates, the general subject of Virginia Code § 46.2-2143 concerns the financial responsibility

11

requirements

for

motor

carriers

prior

to

the

issuance

of

registration from the Virginia Department of Motor Vehicles. Looking outside the provisions of § 46.2-2143, we agree with the district court that a "comprehensive reading of the pertinent sections of Chapter 21 supports Canal's interpretation of the § 46.2-2143." J.A. 110. Most applicable is § 46.2-

2101(2), which provides that "[t]he following are exempt from this point chapter in . . . [t]ransportation and of any property point between any this

this

Commonwealth

outside

Commonwealth or between any points wholly within the limits of any city or town in this Commonwealth." In connection with § 46.2-2102, which states that "[n]o motor carrier shall operate any motor vehicle on for the transportation in this of property on for an

compensation

any

highway

Commonwealth

intrastate basis except in accordance with the provisions of this chapter," this statutory on an scheme clearly basis, regulates but not motor those

carriers

operating

intrastate

operating on an interstate basis or operating entirely within city or town limits. We hold that Virginia Code § 46.2-2143 is a registration statute that sets forth the financial responsibility and

insurance requirements before the Department of Motor Vehicles can issue As registration Barker was for a vehicle no 12 operated to by a motor the

carrier.

under

obligation

register

tractor-trailer

involved

in

this

accident

in

Virginia,

and

instead had registered and principally garaged it in another state, § 46.2-2143 does not apply to Barker. Therefore, § 46.22143 does not require the liability limit of the Policy, through its Out of State Insurance provision, to be increased above the $100,000 face value of the Policy. B. A separate question, although one related to the

interpretation of Virginia Code § 46.2-2143, concerns the effect and application of the § 46.2-2101(2) exemption to the present circumstances. chapter" means The an exemption exemption under from § 46.2-2101(2) 21 from "this of

Chapter

("Regulation

Property Carriers"), which includes § 46.2-2143. The Appellants contend that "Barker did not even fall

within section 2101's literal exemption. . . .

If Barker's

truck was empty, it did not fall within section 2101 when the accident happened, as the truck had finished transporting

property into Virginia and would not transport property again until after it left the state." Appellants' Reply Br. at 6-7. We disagree that the term "transportation of property," as found in § 46.2-2101(2), would have such a narrow definition that it

would not cover Barker's carrying property into Virginia from out of state, and then "deadheading" (traveling with an empty trailer) back out of state. See Black's Law Dictionary 1638 (9th 13

ed. 2009) (defining "transportation" as the "movement of goods or persons from one place to another by a carrier"). A common sense interpretation of the exemption for "transportation of

property between any point in this Commonwealth and any point outside this Commonwealth" must include both the trip into the Commonwealth to unload property, and the return trip with an empty truck. Under the present facts, where Barker's truck had delivered property to Petersburg, Virginia earlier that day, and was "deadheading" back to North Carolina for a scheduled pickup, Barker falls within the § 46.2-2101(2) exemption from Chapter 21. Appellants further argue that § 46.2-2143 and § 46.2-

2101(2) are, in effect, in conflict concerning whether Virginia law specifically requires "motor carriers operating in

interstate commerce" to keep "minimum insurance" as set forth in Section 2143. Appellants' Br. at 16. Therefore, they conclude, "the specific should control the general," and "Section 2101 should not apply to exempt interstate motor carriers from

section 2143." Id. However, "[i]n a situation where one statute speaks to a subject generally and another deals with an element of that subject specifically, the statutes will be harmonized, if possible, and if they conflict, the more specific statute prevails." Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d

14

127,

129

(2005)

(internal

quotation

marks

omitted)(emphasis

added). We hold that the most natural reading of the applicable statutes scheme. makes We held clear above that that they form a harmonious § statutory is a

Virginia

Code

46.2-2143

registration statute that did not apply to Barker, and therefore there is no conflict between this statute and § 46.2-2101(2). Virginia's exemption statutory in § scheme makes that doubly Barker clear was not through required its to

46.2-2101(2)

carry insurance in the amount of $750,000. C. The Appellants challenge the district court's holding that the federal financial responsibility regulations, standing

alone, do not require Barker to maintain $750,000 in insurance. J.A. 112-15. The applicable federal regulations provide that the motor carrier's financial responsibility requirement can be

proven by obtaining: (1) liability insurance which includes a MCS-90 written endorsement; (2) to a Form MCS-82 surety the bond; or (3)

authorization

self-insure

from

Federal

Motor

Carrier Safety Administration. See 49 C.F.R. § 387.7(d). The federal financial responsibility regulations cannot be said to require a motor carrier to maintain a minimum of $750,000 in insurance, where a motor carrier opts not to use insurance to fulfill such requirements. It is undisputed that Barker was not 15

using the Policy to fulfill the federal financial responsibility requirements, as the Policy does not contain a MCS-90

endorsement. We hold then that the district court did not err in its did finding not that federal Barker financial to responsibility $750,000 Out an of in regulations insurance. Insurance whereby

require the not

maintain of the to

Furthermore, provision is

language

State

susceptible

interpretation

federal law, on its own, would trigger its application. D. Finally, Appellants argue that, because Penn and Clymer

never admitted to the accuracy of the policy attached to Canal's complaint when it brought suit, the district court could not enter a judgment on the pleadings. Both parties to the Policy, Barker and Canal, agree that the copy attached to the complaint is a true and complete copy of the Policy. See J.A. 13, 81. However, Penn and Clymer suggest that the policy copy attached to the complaint is not complete and accurate, on the basis of two signed endorsements produced by First Southern Insurance Agency (apparently acting as

insurance agent to Barker) that were not included therein. See J.A. 101-02. Had Appellants' allegations or their accompanying documents contained some basis for belief that the Policy attached to the complaint was not a complete and accurate copy of the Policy 16

that was in effect at the time of the accident, this argument might have gained some traction. One endorsement cited by

Appellants has an "Endorsement Effective Date" of September 9, 2005, and an "Issue Date" of September 21, 2005. J.A. 101. The other has an "Endorsement Effective Date" of September 3, 2005, and an "Issue Date" of September 19, 2005. J.A. 102. The two endorsements concern the schedule of insured equipment, and both endorsements CONDITIONS also clearly UNCHANGED." provide J.A. "ALL 101-02 OTHER TERMS AND in

REMAIN

(capitalization

original). As the Appellants provided no more than a basis for belief that subsequent changes were made to the Policy after the date of the accident on August 2, 2005, and there being no basis to doubt the true and complete nature of the policy copy

attached to Canal's complaint as of the date of the accident, the district court properly granted Canal's Motion for Judgment on the Pleadings.

III. For the foregoing reasons, the judgment of the district court is AFFIRMED.

17