Bruce Levine v. Employers Ins. Co. of Wausau

Filing

OPINION ATTACHMENT. [17-1342, 17-1432]

Appeal: 17-1342

Doc: 45

Filed: 04/12/2018

Pg: 1 of 5

COMMERCIAL AUTO
CA 21 21 11 02

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

This form has been promulgated by the Virginia State
Corporation Commission for use by all licensed insurers in the
Commonwealth issuing policies for motor vehicle insurance as
defined in § 38.2.124 of the Code of Virginia. This form
includes copyrighted material of Insurance Services Offices, Inc.,
with its permission and may only be used by a licensed insurer
in Virginia for risks located in Virginia. Use of this form for any
other purpose shall be with the express permission of ISO and
subject to the standard ISO copyright notice.

03
d

we
vie
2,
34
-1
17
o.

18
20

5/
/0

"Insurance Services Office, Inc. Copyright"

N

CA 21 21 11 02

© ISO Properties, Inc., 2002

Page 1 of 5

Appeal: 17-1342

Doc: 45

Filed: 04/12/2018

Pg: 2 of 5

UNINSURED MOTORISTS ENDORSEMENT
(VIRGINIA)
A. Words And Phrases With Special Meaning
The following words and phrases have special
meaning throughout this endorsement and appear
in quotation marks when used:
1. "You" and "your" mean the person or organization shown as the named insured in ITEM ONE
of the declarations.
2. "We", "us", and "our" mean the company providing insurance.
3. "Accident" includes continuous or repeated
exposure to the same conditions resulting in
"bodily injury" or "property damage" the "insured" neither expected nor intended.
4. "Available for payment" means the amount of
liability insurance coverage applicable to the
claim of the injured person for "bodily injury" or
"property damage" reduced by the payment of
any other claims arising out of the same "accident".
5. "Bodily injury" means bodily injury, sickness or
disease including death resulting from any of
these.

12. "Temporary substitute" means a motor vehicle
that is being used in place of a "covered auto".
The "covered auto" must be out of service because of its breakdown, repair, servicing, loss
or destruction.
13. "Underinsured motor vehicle" means a motor
vehicle, 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", including all bonds or deposits of
money or securities made pursuant to Article
15 (Section 46.2-435 et seq.) of Chapter 3 of
Title 46.2 of the Code of Virginia, is less than
the total amount of uninsured motorist coverage afforded any person injured as a result of
the operation or use of the motor vehicle.

7. "Family member" means a person related to
"you" by blood, marriage or adoption who is a
resident of "your" household, including a ward
or foster child.

8. "Insured" means any person or organization
qualifying as an insured in the Who Is An Insured section of this endorsement, including
the personal representative of any insured. Except with respect to "our" Limit Of Liability, the
insurance afforded applies separately to each
insured who is seeking coverage under this
endorsement.

N

9. "Loss" means direct and accidental damage or
loss.

5/
/0

03
d

a. For which:

we
vie
2,
34
-1
17
o.

6. "Covered auto" means a motor vehicle, or a
"temporary substitute", with respect to which
the "bodily injury" or "property damage" liability
coverage of the policy applies.

18
20

14. "Uninsured motor vehicle" means a motor
vehicle:
1. There is no "bodily injury" liability insurance and "property damage" liability insurance in the amounts specified by
Section 46.2-472 of the Code of Virginia.
2. There is such insurance but the insurer
writing the insurance denies coverage
for any reason whatsoever, including
failure or refusal of the insured to cooperate with the insurer.
3. There is no bond or deposit of money or
securities in lieu of such insurance.
4. The owner of the vehicle has not qualified as a self-insurer under the provisions of Section 46.2-368, or
5. The owner or operator of the motor
vehicle is immune from liability for negligence under the laws of the Commonwealth or the United States. A motor vehicle shall be deemed uninsured if its
owner or operator is unknown.

10. "Property damage" means damage to or loss of
use of tangible property.
11. "Occupying" means in, upon, using, getting in,
on, out of or off.

Page 2 of 5

© ISO Properties, Inc., 2002

CA 21 21 11 02

Appeal: 17-1342

Doc: 45

Filed: 04/12/2018

If the owner or operator of any motor vehicle that causes "bodily injury" or "property
damage" to the "insured" is unknown, and if
the damage or injury results from an "accident" where there has been no contact between that motor vehicle and the motor vehicle occupied by the "insured", or where
there has been no contact with the person
of the "insured" if the "insured" was not "occupying" a motor vehicle, then for the "insured" to recover under this endorsement
pursuant to Paragraph a. of this definition,
the "accident" shall be reported promptly to
either:
1. The insurer or;
2. A law-enforcement officer having jurisdiction in the county or city in which the
"accident" occurred. If it is not reasonably practicable to make the report
promptly, the report shall be made as
soon as reasonably practicable under
the circumstances.
b. Which is an "underinsured motor vehicle".
B. We Will Pay
"We" will pay in accordance with the Virginia Uninsured Motorists Law, all sums the "insured" is legally entitled to recover as damages from the
owner or operator of an "uninsured motor vehicle".

Pg: 3 of 5

E. Our Limit Of Liability
1. Regardless of the number of "covered autos",
"insureds", claims made or motor vehicles involved in the "accident", the most "we" will pay
for all damages resulting from any one "accident" is the limit of Uninsured Motorists Insurance shown in the Schedule or Declarations. However, if more than one "covered
auto" is involved in the same "accident", the
limit of Uninsured Motorists Insurance shown in
the Schedule or Declarations will apply separately to each of these "covered autos". Such
limit of insurance shall first provide the separate limits required by the Virginia Motor Vehicle Safety Responsibility Act.
2. Except with respect to an "underinsured motor
vehicle", damages otherwise payable under this
coverage:

This insurance does not apply to:

5/
/0

03
d

b. With respect to an employee of a selfinsured employer, shall be reduced by all
sums paid or payable because of "bodily injury" under a workers' compensation law.

we
vie
2,
34
-1
17
o.

C. We Will Not Cover – Exclusions

18
20

a. Shall be reduced by all sums paid because
of "bodily injury" or "property damage" by or
on behalf of persons or organizations who
may be legally responsible.

F. Conditions

The conditions applicable to this coverage are as
follows:
1. Other Insurance

1. A "bodily injury" or "property damage" claim
settled by the "insured" without "our" consent
with anyone who may be legally liable.
2. The direct or indirect benefit of any insurer of
property.

N

3. The first $200 of the total amount of "property
damage" as the result of any one "accident" involving an unidentifiable driver or owner of an
"uninsured motor vehicle". This exclusion does
not apply if the owner or operator of the "uninsured motor vehicle" causing the damage can
be identified.

a. For "bodily injury" to an "insured" while
"occupying" a motor vehicle that is not a
"covered auto", this coverage shall apply
only as excess insurance over any other
similar insurance available to that "insured"
and applicable to that motor vehicle as primary insurance. However, this paragraph
does not apply to an "underinsured motor
vehicle".

2. Anyone else "occupying" a "covered "auto".

b. Except as provided in Paragraph a. above,
if the "insured" has other similar "bodily injury" insurance available to him or her and
applicable to the "accident", "we" shall not
be liable for a greater proportion of any
"loss" to which this coverage applies than
the limit of liability for this coverage bears to
the sum of the applicable limits of liability of
this insurance and such other insurance.
However, this provision does not apply to an
"underinsured motor vehicle".

3. Anyone for damages he or she is entitled to
recover because of "bodily injury" to which this
coverage applies, sustained by another "insured" under 1. or 2. above.

c. For "property damage", Uninsured Motorists Insurance is excess over all other collectible insurance of any kind applicable to
the "property damage".

4. Anyone using the "covered auto" without a
reasonable belief that the person is entitled to
do so.
D. Who Is Insured
1. "You" or any "family member".

CA 21 21 11 02

© ISO Properties, Inc., 2002

Page 3 of 5

Appeal: 17-1342

Doc: 45

Filed: 04/12/2018

d. If the injured person is entitled to underinsured motorists coverage under more than
one policy, the following order of priority applies and any amount "available for payment" shall be credited against such policies in the following order of priority:
(1) The policy covering a motor vehicle
"occupied" by the injured person at the
time of the "accident".
(2) The policy covering a motor vehicle not
involved in the "accident" under which
the injured person is a named insured.
(3) The policy covering a motor vehicle not
involved in the "accident" under which
the injured person is other than a named
insured.
If there is more than one insurer providing
coverage under one of the payment priorities set forth in Paragraph d. above, we will
pay only "our" share of the "loss". "Our"
share is the proportion that "our" limit of liability bears to the total of all limits applicable on the same level of priority.
2. Our Right To Recover From Others

Pg: 4 of 5

b. Within the coverage territory.
The coverage territory is:
a. The United States of America
b. The territories and possessions of the
United States of America.
c. Puerto Rico; and
d. Canada
"We" also cover "loss" to, or "accidents" involving, a "covered auto" while being transported
between any of these places.
8. Concealment, Misrepresentation, Or Fraud
Coverage for "your" claim under this endorsement is void in any case of fraud by "you" at
any time as it relates to this coverage. It is also
void if "you", at any time, intentionally conceal
or misrepresent a material fact concerning:
b. The "covered auto";

3. Legal Action Against Us

No legal action may be brought against "us" until there has been full compliance with all the
terms of the policy.

N

4. Changes

If a change requires a premium adjustment,
"we" will adjust the premium as of the effective
date of the change.

5. Transfer Of Rights And Duties
"Your" rights and duties under this endorsement may not be assigned without "our" written
consent.
6. Bankruptcy

5/
/0

c. "Your" interest in the "covered auto"; or
d. A claim under this coverage.

03
d

9. Premium Audit

a. The estimated premium for this endorsement is based on the exposures "you" told
"us" "you" would have when this policy began. "We" will compute the final premium
due when "we" determine "your" actual exposures. The estimated total premium will
be credited against the final premium due
and the First Named Insured will be billed
for the balance, if any. If the estimated total
premium exceeds the final premium due,
the First Named Insured will get a refund.

we
vie
2,
34
-1
17
o.

If "we" make any payment, "we" are entitled to
recover what "we" paid from other parties. Any
person to or for whom "we" make payment
must transfer to "us" his or her rights of recovery against any other party. The person must
do everything necessary to secure these rights
and must do nothing that would jeopardize
them.

18
20

a. This endorsement;

b. If this policy is issued for more than one
year, the premium for this endorsement will
be computed annually, based on "our" rates
or premiums in effect at the beginning of
each year of the policy.

10. Arbitration
a. If "we" and an "insured" disagree as to the
amount of damages that are recoverable by
that "insured", then the matter may be arbitrated. However, disputes concerning coverage under this endorsement may not be
arbitrated.

Bankruptcy or insolvency of the "insured" or the
"insured's" estate shall not relieve "us" of any
obligations under this endorsement.
7. Policy Period, Coverage Territory
Under this endorsement, "we" cover "accidents" and "losses" occurring:
a. During the policy period shown in the Declarations; and

Page 4 of 5

© ISO Properties, Inc., 2002

CA 21 21 11 02

Appeal: 17-1342

Doc: 45

Filed: 04/12/2018

"You" are not required to arbitrate; however,
if both parties agree to arbitrate, each party
will select an arbitrator. The two arbitrators
will select a third. If they cannot agree within
30 days, either may request that selection
be made by a judge of a court having jurisdiction. "We" will pay all arbitration expenses if "we" request arbitration. If an "insured" requests the arbitration, each party
will pay the expenses it incurs and bear the
expenses of the third arbitrator equally.

Pg: 5 of 5

b. Unless both parties agree otherwise, arbitration will take place in the county in which
the "insured" lives. Local rules of law as to
arbitration procedure and evidence will apply. A decision can be reached by two of the
arbitrators but will not be binding.

5/
/0

03
d

we
vie
2,
34
-1
17
o.

18
20

N

CA 21 21 11 02

© ISO Properties, Inc., 2002

Page 5 of 5