No. 12-0688 -        Daniel W. Thomas, Angela Y. Thomas, individually, and Angela Y.
                     Thomas, as mother and next friend of Luke D. Thomas, an infant v.
                     William Ray McDermitt and State Farm Mutual Automobile Insurance
                     Company
                                                                          FILED
                                                                      November 26, 2013

                                                                     RORY L. PERRY II, CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA



Davis, Justice, dissenting:

              This case involves a simple, straightforward issue with a correspondingly

simple, straightforward resolution. However, in rendering their decision in this case, the

majority has failed to appreciate that an insurer’s loss of the statutory presumption provided

by W. Va. Code § 33-6-31d (1993) (Repl. Vol. 2011) and a consequent reversion to the

standards enunciated by this Court in Bias v. Nationwide Mutual Insurance Company, 179

W. Va. 125, 365 S.E.2d 789 (1987), should result in the provision of underinsured motorist

coverage in this case.



              The governing statute, W. Va. Code § 33-6-31d, makes clear that an insurer

must use a form prescribed by the West Virginia Insurance Commissioner to receive the

presumption that the insurer has made an effective offer of underinsured motorist coverage1

to its insured and that the use of such form is mandatory:



              1
              While this statutory provision also pertains to optional, additional limits of
uninsured motorist coverage, the case sub judice concerns only optional underinsured
motorist coverage. See generally W. Va. Code § 33-6-31d(a) (1993) (Repl. Vol. 2011).

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                      (a) Optional limits of uninsured motor vehicle coverage
              and underinsured motor vehicle coverage required by section
              thirty-one [§ 33-6-31] of this article shall be made available to
              the named insured at the time of initial application for liability
              coverage and upon any request of the named insured on a form
              prepared and made available by the insurance commissioner.
              The contents of the form shall be as prescribed by the
              commissioner and shall specifically inform the named insured
              of the coverage offered and the rate calculation therefor,
              including, but not limited to, all levels and amounts of such
              coverage available and the number of vehicles which will be
              subject to the coverage. The form shall be made available for
              use on or before the effective date of this section. The form
              shall allow any named insured to waive any or all of the
              coverage offered.

                     (b) Any insurer who issues a motor vehicle insurance
              policy in this state shall provide the form to each person who
              applies for the issuance of such policy by delivering the form to
              the applicant or by mailing the form to the applicant together
              with the applicant’s initial premium notice. . . . The contents of
              a form described in this section which has been signed by an
              applicant shall create a presumption that such applicant and all
              named insureds received an effective offer of the optional
              coverages described in this section and that such applicant
              exercised a knowing and intelligent election or rejection, as the
              case may be, of such offer as specified in the form. . . .

W. Va. Code §§ 33-6-31d(a-b) (emphasis added). See also W. Va. Code § 33-6-31d(c)

(applying tenets of W. Va. Code § 33-6-31d(b) to all named insureds of subject policy of

motor vehicle insurance). There is no dispute that the insurer in this case, State Farm, failed

to use the form prescribed by the Insurance Commissioner when offering Mrs. Thomas

optional underinsured motorist coverage. Because State Farm did not use the requisite form,




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it is not entitled to the statutory presumption that it made an “effective offer of the optional

coverage[]”2 to Mrs. Thomas.



              The statute is silent, however, as to what happens when an insurer has lost the

presumption that it has made an effective offer of optional coverage. Absent legislative

guidance, the common law in existence at the time the statutory provision was promulgated

applies to answer this interpretive question. This is so because the Legislature specifically

has recognized that “[t]he common law . . ., so far as it is not repugnant to the principles of

the constitution of this state, shall continue in force within the same, except in those respects

wherein it . . . has been, or shall be, altered by the Legislature of this state.” W. Va. Code

§ 2-1-1 (1923) (Repl. Vol. 2013). In other words, “‘[t]he common law is not to be construed

as altered or changed by statute, unless legislative intent to do so be plainly manifested.’

Shifflette v. Lilly, 130 W. Va. 297[, 43 S.E.2d 289 (1947)].” Syl. pt. 4, Seagraves v. Legg,

147 W. Va. 331, 127 S.E.2d 605 (1962). Accord Syl. pt. 3, Seagraves, 147 W. Va. 331, 127

S.E.2d 605 (“The common law, if not repugnant of the Constitution of this State, continues

as the law of this State unless it is altered or changed by the Legislature. Article VIII,

Section 21 of the Constitution of West Virginia; Chapter 2, Article 1, Section 1, of the Code

of West Virginia.”). Because the Legislature has not supplanted the common law by

explaining the scope of coverage provided by a policy of motor vehicle insurance when the


              2
                  W. Va. Code § 33-6-31d(b).

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statutory presumption of an effective offer of optional coverage has been lost by the insurer,

the prevailing common law governs. The common law addressing the ramifications of an

ineffective offer of optional motor vehicle insurance coverage is set forth in this Court’s

opinion in Bias v. Nationwide Mutual Insurance Company, 179 W. Va. 125, 365 S.E.2d 789

(1987).



              In Bias, we adopted two succinct holdings. First, when an offer of optional

coverage is mandated by statute, an insurer is required to show that it made an effective offer

of such optional coverage to its insured:

                      Where an offer of optional coverage is required by
              statute, the insurer has the burden of proving that an effective
              offer was made, and that any rejection of said offer by the
              insured was knowing and informed.

Syl. pt. 1, Bias, 179 W. Va. 125, 365 S.E.2d 789. The Bias Court’s explanation of the

criteria to be considered in determining whether an insurer has made an effective offer of

optional coverage to its insured has been superceded by the Legislature’s promulgation of

W. Va. Code § 33-6-31d which requires an insurer’s offer of such coverage to be made by

using the Insurance Commissioner’s form prescribed for that purpose. See W. Va. Code

§ 33-6-31d(a) (mandating use of requisite form).



              Second, the Bias Court held that when the insurer cannot show that it has made

a statutorily required effective offer of optional coverage to its insured, such optional

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coverage is included in the policy of insurance by operation of law:

                      When an insurer is required by statute to offer optional
              coverage, it is included in the policy by operation of law when
              the insurer fails to prove an effective offer and a knowing and
              intelligent rejection by the insured.

Syl. pt. 2, id. This holding remains good law and applies to answer the certified question

presented by the circuit court in this case.



              In the case sub judice, State Farm did not use the form prescribed by the

Insurance Commissioner when it offered optional underinsured motorist coverage to Mrs.

Thomas. Therefore, by operation of W. Va. Code §§ 33-6-31d(a-b), State Farm cannot show

that it made an effective offer of optional coverage to Mrs. Thomas, and, as a result, it has

lost its statutory presumption that it did so. Syllabus point 2 of Bias holds, in pertinent part,

that such optional coverage is “included in the policy by operation of law when the insurer

fails to prove an effective offer and a knowing and intelligent rejection by the insured.” 179

W. Va. 125, 365 S.E.2d 789. It goes without saying that there can be no “knowing and

intelligent rejection by the insured” if there is no “effective offer” in the first instance. Id.

Therefore, once it has been established that an insurer has failed to prove that it has made an

effective offer of optional coverage to its insured, Syllabus point 2 of Bias makes clear that

the inquiry is over and the optional coverage is included in the subject policy of insurance

as a matter of law. 179 W. Va. 125, 365 S.E.2d 789. Accord Syl. pt. 2, Riffle v. State Farm

Mut. Auto. Ins. Co., 186 W. Va. 54, 410 S.E.2d 413 (1991) (“W. Va. Code 33-6-31(b) [1988],

                                               5

mandates that when an insurer fails to prove an effective offer and a knowing and intelligent

waiver by the insured, the insurer must provide the minimum coverage required to be offered

under the statute.”).3 This inclusion of optional coverage is derived from the common law

as it existed immediately prior to the Legislature’s adoption of W. Va. Code § 33-6-31d, and,

as such, this Court’s holding in Syllabus point 2 of Bias, 179 W. Va. 125, 365 S.E.2d 789,

should have been applied exactly as this Court intended therein. To the extent my brethren

have interpreted and applied the clearly stated and unambiguous tenets of Bias in a contrary

manner, I respectfully dissent.




              3
                We further have clarified how the amount of this optional coverage is to be
calculated. See Syl. pt. 5, Jewell v. Ford, 214 W. Va. 511, 590 S.E.2d 704 (2003) (“When
an insurer fails to prove an effective offer and a knowing and intelligent waiver under W. Va.
Code § 33-6-31(b) (1998), the minimum uninsured or underinsured coverage required to be
included in the insured’s policy by operation of law is a sum recoverable as damages ‘up to
an amount not less than limits of bodily injury liability insurance and property damage
liability insurance purchased by the insured[.]’ This language clearly means that the
minimum uninsured or underinsured coverage included in the insured’s policy under these
circumstances is an amount equal to the bodily injury liability insurance and the property
damage liability insurance actually purchased by the insured.”).

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