Howard v. Property & Casualty Insurance Company of Hartford
MEMORANDUM OPINION AND ORDER denying plaintiff's 31 MOTION for Summary Judgment; granting defendant's 33 MOTION for Summary Judgment. Signed by Judge David A. Faber on 9/30/2011. (cc: attys) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
GERALDINE HOWARD and
CIVIL ACTION NO. 2:09-1027
PROPERTY & CASUALTY INSURANCE
COMPANY OF HARTFORD,
MEMORANDUM OPINION AND ORDER
Pending before the court are the parties’ cross motions
for summary judgment. (Docs. 31 and 33).
For the reasons set
forth more fully below, plaintiffs’ motion for summary judgment
is DENIED and defendant’s motion for summary judgment is GRANTED.
This civil action arises out of an automobile accident
occurring in Kanawha County, West Virginia, on January 6, 2009.
On that date, plaintiff Lester Howard lost control of the vehicle
he was driving and ran off the road.
Complaint ¶¶ 2-3.
Geraldine was a passenger in the vehicle and, according to the
Complaint, “suffered severe injuries to her head and body.”
at ¶ 4.
At the time of the accident, Mr. Howard was insured by a
Policy of insurance issued by defendant Property & Casualty
Insurance Company of Hartford (“Hartford”).
The Policy, No. 55
PHK165757, had liability limits of $100,000 per person and
$300,000 per occurrence.
According to the Complaint, the Policy
was delivered to plaintiff in West Virginia.
Geraldine Howard submitted a claim to Harford under the
policy for the injuries she sustained in the aforementioned car
She received the limits of her no-fault “Personal
Injury Protection Coverage” but she was denied liability coverage
based upon a family member exclusion contained in the Policy.1
However, at some point, Mrs. Howard was paid the West Virginia
mandatory minimum limits of financial responsibility, $20,000.00.
Mrs. Howard contends that family member exclusion is invalid in
its entirety and that, under West Virginia law, she is entitled
to liability coverage above the mandatory minimums already paid.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure
The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.
The Policy provides in pertinent part: “We do not provide
Liability Coverage for any insured: . . . 10. For bodily injury
to you or any family member.” See Exhibit F to Defendant’s
Motion for Summary Judgment at p. 58.
The moving party has the burden of establishing that
there is no genuine issue as to any material fact.
v. Catrett, 477 U.S. 317, 323 (1986).
This burden can be met by
showing that the nonmoving party has failed to prove an essential
element of the nonmoving party's case for which the nonmoving
party will bear the burden of proof at trial.
Id. at 322.
the moving party meets this burden, according to the United
States Supreme Court, "there can be 'no genuine issue as to any
material fact,' since a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily
renders all other facts immaterial."
Id. at 323.
Once the moving party has met this burden, the burden
shifts to the nonmoving party to produce sufficient evidence for
a jury to return a verdict for that party.
The mere existence of a scintilla of evidence in
support of the plaintiff's position will be
insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.
The judge's inquiry, therefore, unavoidably asks
whether reasonable jurors could find, by a
preponderance of the evidence, that the plaintiff
is entitled to a verdict . . . .
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted."
Id. at 250-51.
Defendant contends that it is entitled to entry of
summary judgment in its favor because the Policy at issue is a
Florida policy and, in Florida, family member exclusions are
valid and enforceable.
Moreover, Hartford contends that even if
the Policy was delivered in West Virginia, plaintiff’s claim
still fails because West Virginia’s family member exclusion is
valid above the West Virginia mandatory minimum limits of
financial responsibility contained in West Virginia’s Motor
Vehicle Safety Responsibility Law.2
Even if the court were able to resolve the issue of where
the policy was “delivered or issued for delivery” on the basis of
the record before it (and the court is uncertain whether it
could), it is unnecessary to do so.
The court finds that, even
if West Virginia law does apply to the Policy, the family member
The purpose of West Virginia’s Motor Vehicle Safety
Responsibility Law, West Virginia Code §§ 17D-1-1 et seq., is “to
provide a minimum level of financial security to third-parties
who might suffer bodily injury or property damage from negligent
drivers.” Dairyland Ins. Co. v. East, 425 S.E.2d 257, 261 (W.
Va. 1992). West Virginia Code § 17D-4-12(b)(2) provides that all
motor vehicle liability policies issued by this state:
[s]hall insure the person named therein and any other
person, as insured, ... against loss from the liability
imposed by law for damages ... subject to limits
exclusive of interest and costs, with respect to each
such vehicle as follows: Twenty thousand dollars
because of bodily injury to or death of one person in
any one accident and, subject to said limit for one
person, forty thousand dollars because of bodily injury
to or death of two or more persons in any one accident,
and ten thousand dollars because of injury to or
destruction of property of others in any one accident.
exclusion is void only within the minimum/mandatory limits of
According to plaintiff, the family member exclusion is
void in its entirety because the Office of the West Virginia
Insurance Commissioner has promulgated the following regulation:
“Motor vehicle liability policies shall not contain family member
W. Va. C.S.R. 114-63-3.5 (2003).
That same office,
however, has issued an “informational letter . . . to clarify the
family member exclusions included in automobile policies” and
concluded that “[a]ny automobile family member liability
exclusion applied within mandatory limits is therefore void.”
West Virginia Informational Letter No. 140.3
Virginia’s highest court specifically considered Informational
Letter No. 140 when it found that household or family member
exclusions are not a violation of West Virginia public policy.
Howe v. Howe, 625 S.E.2d 716, 724 (W. Va. 2005) (“Appellant
cannot point to any decision of this Court that declares
`household’ exclusions are a violation of West Virginia public
Indeed, none exist.
Nor does she address or acknowledge
The Informational Letter, dated July 2002, predates W. Va.
C.S.R. 114-63-3.5 (2003). However, the West Virginia Insurance
Commissioner has made clear that its Information Letters
“represent the Insurance Commissioner’s current policy positions
on various insurance-related topics.” West Virginia Offices of
the Insurance Commissioner,
.aspx (last visited Sept. 29, 2011).
prior decisions of this Court upholding similar family use
exclusions as valid and not against the public policy of this
State . . . .”).
The Howe court continued:
We likewise reject Appellant’s argument that
Information Letter No. 140 promulgated by the
West Virginia Insurance Commissioner in 2002
evidences a strong public policy against
“household” exclusions in policies of insurance.
In Informational Letter No. 140, the Insurance
Commissioner declared “household” exclusions in
automobile liability insurance policies void up
to the mandatory policy limits set forth in W.
Va. Code § 33-6-31. The letter went on to
recognize the potential validity of the
exclusions in some circumstances not involving
mandatory liability limits. Thus, we do not see
how this letter evidences the strong public
policy suggested by Appellant.
Furthermore, although the West Virginia Supreme Court of
Appeals has made clear that “the mandatory requirement of
insurance coverage under W. Va. Code, 17D-4-2, takes precedence
over any contrary or restrictive language in an automobile
liability insurance policy,”
Miller v. Lambert, 464 S.E.2d 582,
586 (W. Va. 1995), it has consistently found exclusionary policy
language to be enforceable above the statutorily mandated minimum
limit in other contexts.
See, e.g., Jones v. Motorists Mut Ins.,
Co., 356 S.E.2d 634, 637 (W. Va. 1987) (“[B]eyond the mandatory
In his dissenting opinion in Howe, Justice Starcher
specifically advanced the position that 144 C.S.R. § 63.3.5 was a
“clear regulatory statement of West Virginia public policy” - a position the majority did not embrace. Id. at 730 (Starcher,
twenty thousand dollar bodily injury for one person, forty
thousand dollar bodily injury for two or more persons, and ten
thousand dollar property damage minimum coverage requirements,
Code 33-6-31(a)  allows an insurer and an insured to agree
to a `named driver exclusion’ endorsement.”);
Ward v. Baker, 425
S.E.2d 245, 249 (W. Va. 1992) (“Erie has already paid into court
the mandatory minimum $20,000 bodily injury coverage for the
Therefore, due to the existence of the valid named
driver exclusion, Erie is not responsible for any damages in
excess of the $20,000.”); Dairyland Ins. Co. v. East, 425 S.E.2d
257, 261 (W. Va. 1992) (“For the same reasons that we concluded
in Jones that a named driver exclusion was valid above the limits
of financial responsibility imposed by West Virginia Code § 17D4-12(b)(2), a named insured exclusion endorsement is similarly
valid above the statutorily-imposed minimum amounts of
coverage.”); Dotts v. Taressa J.A., 390 S.E.2d 568, 574 (W. Va.
1990) (“We, therefore, conclude that an intentional tort
exclusion in a motor vehicle liability insurance policy is
precluded under our Safety Responsibility Law up to the minimum
insurance coverage required therein.
The policy exclusion will
operate as to any amount above the statutory minimum.”).
For these reasons, the court finds that the family member
exclusion contained in the Policy is valid above the amounts
mandated by West Virginia’s Motor Vehicle Safety Responsibility
Based on the foregoing, plaintiff’s motion for summary
judgment is DENIED and defendant’s motion for summary judgment is
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this the 30th day of September, 2011.
David A. Faber
Senior United States District Judge
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