Submitted: January 9, 2018
from the Circuit Court of Hampshire County Honorable Charles
E. Parsons, Judge Civil Action No. 14-C-62
G. Ramey, Esq. Hannah C. Ramey, Esq. Steptoe & Johnson,
PLLC Huntington, West Virginia Eric J. Hulett, Esq. Steptoe
& Johnson, PLLC Martinsburg, West Virginia Counsel for
Jonathan G. Brill, Esq. Jonathan G. Brill, PLLC Romney, West
Virginia Counsel for Respondent
"Statutory provisions mandated by the Uninsured Motorist
Law, W.Va. Code § 33-6-31  may not be altered by
insurance policy exclusions." Syl. Pt. 1, Deel v.
Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).
"Insurers may incorporate such terms, conditions and
exclusions in an automobile insurance policy . . . so long as
any such exclusions do not conflict with the spirit and
intent of the uninsured . . . motorists statutes." Syl.
Pt. 3, in part, Deel v. Sweeney, 181 W.Va. 460, 383
S.E.2d 92 (1989).
"An 'owned but not insured' exclusion to
uninsured motorist coverage is valid and enforceable
above the mandatory limits of uninsured motorist
coverage required by W.Va. Code §§ 17D-4-2 (1979)
(Repl.Vol. 1996) and 33-6-31(b) (1988) (Supp. 1991). To the
extent that an 'owned but not insured' exclusion
attempts to preclude recovery of statutorily mandated minimum
limits of uninsured motorist coverage, such
exclusion is void and ineffective consistent with this
Court's prior holding in Syllabus Point 2 of Bell v.
State Farm Mutual Automobile Insurance Company, 157
W.Va. 623, 207 S.E.2d 147 (1974)." Syl. Pt. 4,
Imgrund v. Yarborough, 199 W.Va. 187, 483 S.E.2d 533
Syllabus point eight of Boniey v. Kuchinski, 223
W.Va. 486, 677 S.E.2d 922 (2009), is hereby modified to
provide that a provision in a motor vehicle liability
insurance policy excluding an off-road all-terrain vehicle or
ATV from being an uninsured motor vehicle does not violate
the intent and purpose of the uninsured motorist statute at
West Virginia Code § 33-6-31(b) (1998).
"'Where neither party to an appeal raises, briefs,
or argues a jurisdictional question presented, this Court has
the inherent power and duty to determine unilaterally its
authority to hear a particular case. Parties cannot confer
jurisdiction on this Court directly or indirectly where it is
otherwise lacking.' Syllabus point 2, James M.B. v.
Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995)."
Syl. Pt. 1, C & O Motors, Inc. v. West Virginia
Paving, Inc., 223 W.Va. 469, 677 S.E.2d 905 (2009).
"'Under W.Va. Code, 58-5-1 , appeals only may
be taken from final decisions of a circuit court. A case is
final only when it terminates the litigation between the
parties on the merits of the case and leaves nothing to be
done but to enforce by execution what has been
determined.' Syllabus point 3, James M.B. v. Carolyn
M., 193 W.Va. 289, 456 S.E.2d 16 (1995)." Syl. Pt.
2, C & O Motors, Inc. v. West Virginia Paving,
Inc., 223 W.Va. 469, 677 S.E.2d 905 (2009).
"The key to determining if an order is final is not
whether the language from Rule 54(b) of the West Virginia
Rules of Civil Procedure is included in the order, but is
whether the order approximates a final order in its nature
and effect. We extend application of this rule to a motion to
dismiss under Rule 12(b)(6) of the West Virginia Rules of
Civil Procedure." Syl. Pt. 1, State ex rel. McGraw
v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995).
Insurance Property and Casualty Company ("Erie")
appeals two orders of the Circuit Court of Hampshire County
entered in a civil action instituted by Ricky A. Dolly,
Erie's insured. First, Erie appeals the November 10,
2016, Order Granting Plaintiff's Petition for Declaratory
Judgment, wherein the circuit court held that Erie was
required to provide Mr. Dolly with the statutory minimum
amount of uninsured motorist coverage for a trailer and
all-terrain vehicle ("ATV") that Mr. Dolly was
towing when he was struck by an at-fault, uninsured motorist.
Second, Erie appeals the July 11, 2016, order through which
the circuit court denied Erie's motion to dismiss Mr.
Dolly's separate claims for common law bad faith and
violation of the Unfair Trade Practices Act
("UTPA") (collectively referred to herein as
"the bad faith claims"). Upon a review of this
matter, we conclude that the circuit court correctly granted
declaratory judgment in favor of Mr. Dolly on the coverage
issue. We also determine that Erie's challenge to the
order denying its motion to dismiss the bad faith claims is
an interlocutory matter not subject to appeal at this time.
Accordingly, we affirm the declaratory judgment ruling and
remand the case to the circuit court for further proceedings.
Factual and Procedural Background
September 13, 2013, Mr. Dolly was driving his pick-up truck
along a highway in Hampshire County. The truck was towing a
trailer that carried an ATV, both of which were owned by Mr.
Dolly. Emily M. Cole, while operating a sports utility
vehicle owned by her father, negligently struck the side of
Mr. Dolly's vehicle. Mr. Dolly was not injured but he
suffered the total loss of his truck, trailer, and ATV as the
result of this collision.
Coles failed to maintain any liability insurance on their
sports utility vehicle, and Mr. Dolly filed a claim with his
own automobile insurance carrier, Erie. His Erie automobile
policy provided $10, 000 in uninsured motorist coverage for
property damage. Soon after the collision, Erie paid Mr.
Dolly for the loss of his truck. However, relying on policy
exclusions,  Erie denied coverage and refused to pay
for the trailer and ATV.
Dolly filed suit against the Coles in May 2014. In December
2014, the complaint was amended to name Erie as a notice
party, but no claims were asserted against
Erie. In or about September 2015, Mr. Dolly and
Ms. Cole entered into a settlement agreement whereby Ms. Cole
admitted liability, confirmed that she was an uninsured
motorist, and conceded that Mr. Dolly's uncompensated
property damages were $19, 420.72. Erie did not
object to the settlement agreement; therefore, by order
entered November 2, 2015, the circuit court adopted the
settlement terms and entered judgment in favor of Mr. Dolly
for $19, 420.72 plus interest.
March 9, 2016, Mr. Dolly moved the circuit court for leave to
amend his complaint to add claims against Erie; this motion
was granted on March 17, 2016. In this amended complaint, Mr.
Dolly sought a declaratory ruling that Erie was responsible
for paying for the trailer and the ATV pursuant to his
uninsured motorist coverage. In separate counts, he also
alleged and sought damages for common law bad faith and
violation of the UTPA. Erie filed a motion to dismiss this
amended complaint as time-barred, which the circuit court
denied by order of July 11, 2016. Thereafter, Erie filed a
counterclaim for declaratory relief arguing that there was no
uninsured motorist coverage for the trailer and the ATV
because of the policy exclusions. In cross motions, Mr. Dolly
and Erie each argued in support of their respective petitions
for declaratory judgment on the coverage issue.
considering the parties' arguments, the circuit court
entered its declaratory judgment order on November 10, 2016.
The court concluded that despite the exclusionary language in
the policy, Mr. Dolly was entitled to recover up to the
statutorily-mandated uninsured motorist coverage minimum
limit for the loss of his trailer and for the ATV that was
being hauled on the trailer. See W.Va. Code §
33-6-31(b) (1998) (requiring uninsured motorist coverage in
minimum amount specified by W.Va. Code § 17D-4-2
(1979)). At the time of this collision and the effective
dates of Mr. Dolly's policy, the mandatory minimum for
property damage coverage was $10, 000. See id.
However, the circuit court also determined that Erie was not
required by law to provide uninsured motorist coverage for
amounts in excess of the statutorily-mandated minimum.
Accordingly, the circuit court entered judgment against Erie
in the amount of $10, 000. By separate order, the circuit court
stayed its consideration of the common law bad faith and UTPA
claims pending Erie's appeal of the declaratory judgment
Standard of Review
coverage issue that Erie brings before this Court presents a
question of law arising from a declaratory judgment order.
"A circuit court's entry of a declaratory judgment
is reviewed de novo." Syl. Pt. 3, Cox v.
Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). Moreover,
it is well-settled that "[w]here the issue on an appeal
from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de
novo standard of review." Syl. Pt. 1, Chrystal
R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415
(1995). With this plenary standard in mind, we consider
Erie's petition for appeal.
Uninsured motorist coverage ...