Arbogast v. Nationwide Mutual Insurance

427 S.E.2d 461, 189 W. Va. 27, 1993 W. Va. LEXIS 4
CourtWest Virginia Supreme Court
DecidedFebruary 11, 1993
Docket21022
StatusPublished
Cited by3 cases

This text of 427 S.E.2d 461 (Arbogast v. Nationwide Mutual Insurance) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arbogast v. Nationwide Mutual Insurance, 427 S.E.2d 461, 189 W. Va. 27, 1993 W. Va. LEXIS 4 (W. Va. 1993).

Opinion

PER CURIAM:

This case involves an appeal by Nationwide Mutual Insurance Company from the May 23, 1991, final order of the Circuit Court of Brooke County. That order granted summary judgment against the appellant, Nationwide, and ruled that the ap-pellees, the Arbogasts, could stack three intra-policy underinsured motorist coverage within a single automobile insurance policy. The circuit court ordered that the wife and son of Jack Arbogast, Sr., could present claims for bystander recovery for negligent infliction of emotional distress.

On November 14, 1989, Elizabeth Parks lost control of her vehicle and ran into the parking lot of a service station operated by the appellee, Jack Arbogast, Jr. The automobile struck his father, Jack Arbogast, Sr., as he stood near the service station building, knocking him backwards through a plate glass window and pinning him to the ground. As a result of the accident, Mr. Arbogast, Sr., underwent the surgical amputation of his right foot and a portion of his right leg. When the accident occurred, his wife, Mary Elizabeth Arbogast, and his son, Jack Arbogast, Jr., were standing nearby and watched the vehicle strike him. Mrs. Arbogast was taken to the hospital, where she was treated for shock and released.

In October, 1990, Mr. Arbogast, Sr., his wife, and Jack Arbogast, Jr., an unmarried adult son who lived with his parents at the time of the accident, filed this lawsuit. In the complaint, Mrs. Arbogast alleged that she sustained physical injury upon observing the accident and stated that she went into shock at the accident scene and was transported by ambulance to a local hospital, where she was checked and released. There is no allegation in the complaint that Mr. Arbogast, Jr., sustained any type of physical injury, but he does argue that he suffered emotional injury as a result of witnessing the accident.

Subsequently, the appellees amended their complaint to include a declaratory judgment claim against Nationwide. At the time of the accident, the appellee, Jack Arbogast, Sr., was insured under an auto *30 mobile insurance policy issued by Nationwide which covered three vehicles. The policy included underinsured motorist coverage on each vehicle, with limits of $100,-000 per person and $300,000 per occurrence. The appellees argue that the under-insured motorist policies for those three vehicles should be stacked, which would afford the appellees total underinsured motorist coverage of $300,000 per person and $900,000 per occurrence.

Nationwide contends that the underin-sured motorist coverage was limited to $100,000 per person and $300,000 per occurrence, based upon the “Limits of Liability” section:

Limits apply as stated in the Declarations. The insuring of more than one person or vehicle under this policy does not increase our Underinsured Motorists payment limits. In no event will any insured be entitled to more than the highest limits applicable to any one motor vehicle under this policy or any other policy issued by us.

Nationwide also argues that the three un-derinsured motorist coverages could not be stacked because the premiums on the second and third Arbogast vehicles were discounted under a multi-car policy discount.

On May 23, 1991, the Circuit Court of Brooke County granted the appellees’ motion for summary judgment and ruled that the appellees could stack the underinsured motorist coverage of the three automobiles insured by the Nationwide policy. The court also ordered that “Jack Arbogast, Jr. and Mary Elizabeth Arbogast were entitled to proceed on bystander recovery claims for the negligent infliction of emotional distress upon them as a result of the alleged actions of the defendant, Elizabeth Parks.” This action is Nationwide’s appeal from that final order.

In State Auto Mutual Insurance Co. v. Youler, 183 W.Va. 556, 396 S.E.2d 737 (1990), this Court permitted stacking of underinsured motorist coverage:

So-called “antistacking” language in automobile insurance policies is void under W.Va.Code § 33-6-31(b), as amended, to the extent that such language is purportedly applicable to uninsured or underinsured motorist coverage, and an insured covered simultaneously by two or more uninsured or underinsured motorist policy endorsements may recover under all of such endorsements up to the aggregated or stacked limits of the same, or up to the amount of the judgment obtained against the uninsured or underinsured motorist, whichever is less, as a result of one accident or injury.

Id. at syl. pt. 3.

More recently, in Russell v. State Automobile Mutual Insurance Co., 188 W.Va. 81, 422 S.E.2d 803 (1992), this Court discussed stacking and multi-car coverage. In Russell, Tina Russell was a passenger in a vehicle owned by William and Judy Holt, driven by Laura Holt. Tina Russell was the granddaughter of Mary L. Russell. Tina Russell and Laura Holt died from injuries sustained in a collision with another vehicle. At the time, Tina Russell and Mary L. Russell, her grandmother, were the named insureds under an automobile insurance policy issued by State Automobile Insurance Companies. The policy provided underinsured motorist coverage of $20,000 per person and $40,000 per occurrence. The premium for the Russell policy, as in the Arbogasts’ coverage, reflected a multi-car discount. The declaration page listed two separate vehicles for the Rus-sells, with a discount for the second premium for the underinsured and uninsured motorist coverage.

Like Youler, the Russell State Auto policy involved antistacking language that limited the policy’s underinsured motorist coverage to the highest limit applicable for any one vehicle covered by the policy. However, in Russell, the Court ruled that the underinsured motorist coverage in the State Auto policy could not be stacked when multi-car discounts were given:

West Virginia Code § 33-6-31 does not forbid the inclusion and application of an anti-stacking provision in an automobile insurance policy where a single insurance policy is issued by a single insurer and contains an underinsured endorsement *31 even though the policy covers two or more vehicles. Under the terms of such a policy, the insured is not entitled to stack the coverages of the multiple vehicles and may only recover up to the policy limits set forth in the single policy endorsement.

Id. at syl. pt. 5. “[B]ecause of the multi-car discount given, it is obvious that the insured appellee bargained for only one policy and only one underinsurance motorist coverage endorsement.... The insured was therefore receiving the benefit of that which he bargained for and should not receive more.” Id. 422 S.E.2d at 807.

Thus, because the Russell policy owner had received a multi-car discount, the Court concluded that the insured had received the benefit of the bargain and was not entitled to anything additional in the way of stacking. Similarly, a multi-car discount was received by the Arbogasts.

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434 S.E.2d 394 (West Virginia Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
427 S.E.2d 461, 189 W. Va. 27, 1993 W. Va. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arbogast-v-nationwide-mutual-insurance-wva-1993.