                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1189


SHIRLEY A. WESTVEER, Administrator Personal Representative
of the Estate of Arthur E. Westveer, Jr.,

                Plaintiff − Appellant,

           v.

GARRISON PROPERTY & CASUALTY INSURANCE COMPANY,

                Defendant − Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:11-cv-00255-RGD-DEM)


Argued:   January 30, 2013                 Decided:   March 22, 2013


Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


John Stephen Wilson, WILSON & MCINTYRE, PLLC, Norfolk, Virginia,
for Appellant.     Brian Nelson Casey, TAYLOR & WALKER, PC,
Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     After     her   husband    was    killed    in   a   car   wreck,   Shirley

Westveer brought this action seeking a declaration that she was

entitled to “stack” the limits of underinsured motorist coverage

for each of the vehicles insured under an automobile insurance

policy issued to the Westveers by Garrison Property & Casualty

Insurance Company.        The district court held that stacking was

prohibited under the terms of the policy, and Westveer appeals.

For the reasons set forth below, we affirm.

                                        I.

     Subject to certain exceptions not relevant here, Virginia

law requires every automobile liability insurance policy issued

in the state to include coverage for damages caused by uninsured

vehicles (“UM” coverage).             See Va. Code Ann. § 38.2-2206(A).

The statute also obligates the insurer to pay for damages caused

by an underinsured vehicle (“UIM” coverage), “to the extent the

vehicle   is    underinsured,    as    defined   in   subsection    B    of   this

section.”      Id.   Under subsection B,

     [a] motor vehicle is “underinsured” 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 . . . is
     less than the total amount of uninsured motorist
     coverage afforded any person injured as a result of
     the operation or use of the vehicle.




                                        2
Va. Code Ann. § 38.2-2206(B) (emphasis added).                        Accordingly, a

vehicle that causes an accident is “underinsured” for purposes

of the statute only if the liability insurance covering the at-

fault vehicle is less than the total amount of UM/UIM insurance

available to the injured party.                  See id.; see also USAA Cas.

Ins. Co. v. Alexander, 445 S.E.2d 145, 148 (Va. 1994) (“[A]

motor   vehicle     is   underinsured       to    the      extent    that    liability

coverage on such vehicle is less than the UM coverage available

to the claimant on account of the operation of such vehicle.”).

       Section    38.2-2206(B)     requires       a    comparison     of     the   total

UM/UIM coverage to the total liability coverage.                        Accordingly,

if   the   injured    party   is   entitled           to   payment    from    multiple

sources of UM/UIM coverage, the coverage limits for each such

source must be “aggregated, or stacked, before the total amount

of this coverage is compared with the total amount of liability

coverage.”       Alexander, 445 S.E.2d at 149.                  If the injured party

is insured under a single automobile policy that covers multiple

vehicles, the injured insured may stack the UM/UIM limits for

each car insured unless the policy clearly and unambiguously

prohibits stacking.       See Goodville Mut. Cas. Co. v. Borror, 275

S.E.2d 625, 627 (Va. 1981) (“[I]t is now the rule in Virginia

that    the   [intra-policy]       stacking        of      UM    coverage     will   be

permitted unless clear and unambiguous language exists on the

face of the policy to prevent such multiple coverage.”).

                                        3
                                          II.

     Arthur Westveer (“Arthur”) was killed when his car collided

with a car driven by Heather Anderson, and the parties have

stipulated      for     purposes    of   this   action   that   Anderson   was    at

fault     in    the     collision.        Anderson     was   insured    under     an

automobile policy with liability limits of $100,000 per person

and $300,000 per accident for claims involving bodily injury,

and $50,000 per accident for property damage claims.

     Arthur was the named insured on an automobile policy issued

by   Garrison.          The   Garrison      policy    insured   three   cars     and

provided       UM/UIM    coverage    with    stated   limits    of   $100,000    per

person and $300,000 per accident for bodily injury, and $50,000

for property damage.           The policy includes a clause (the “anti-

stacking clause”) stating that:

          The limit of Bodily Injury Liability shown in the
     Declarations for each person for Uninsured Motorists
     Coverage[1] is our maximum limit of liability for all
     damages . . . arising out of bodily injury sustained
     by any one person in any one accident. . . .

          This is the most we will pay regardless of the
     number of:

     1.    Insureds;

     2.    Claims made; or

     3.    Vehicles or premiums shown in the Declarations.

     1
        The anti-stacking clause is contained in Part C of the
policy.    Although the policy describes Part C coverage as
“Uninsured Motorists Coverage,” J.A. 31, Part C includes
coverage for both uninsured and underinsured vehicles.


                                            4
J.A. 32-33.

     Shirley Westveer, Arthur’s widow and the administrator and

personal representative of his estate, filed a claim for UIM

benefits    under    the     Garrison       policy.        Garrison       rejected         the

claim,     asserting      that     Anderson’s        car     was   not        underinsured

because its UM/UIM policy limits did not exceed the liability

limits of Anderson’s policy.

     Westveer       thereafter        brought         this     action          under       the

Declaratory       Judgment    Act,    see       28   U.S.C.    §     2201,         seeking    a

determination of the coverage provided by the Garrison policy.

Westveer contended that Anderson’s car was underinsured because

the UM/UIM coverage limits for each of the three cars insured

under the Garrison policy must be stacked and the stacked UM/UIM

coverage    limits       exceeded     the    liability        limit      of    Anderson’s

policy.

     The    district       court     rejected        Westveer’s      reading         of    the

policy.      In    the    district     court’s        view,    the    policy’s            anti-

stacking clause was indistinguishable from a clause that the

Supreme    Court    of    Virginia     had      found      sufficient         to    preclude

intra-policy stacking.             See Goodville, 275 S.E.2d at 627-28.

Accordingly, the court held that the Garrison policy clearly and

unambiguously precluded stacking and that the per-person limit

of UM/UIM coverage under the policy was $100,000.                                  The court



                                            5
entered judgment denying Westveer’s motion for summary judgment

and granting Garrison’s cross-motion for summary judgment.

                                       III.

      On appeal, Westveer argues that the district court erred by

concluding   that   stacking   was      prohibited         by   the   anti-stacking

clause.   She argues that, at best, the anti-stacking clause is

ambiguous when considered in conjunction with policy provisions

that she believes affirmatively authorize stacking rights and

that, at worst, the clause is deceptive and thus unenforceable.

                                       A.

      As the district court held, the anti-stacking clause here

is   materially    indistinguishable          from   the    clause       enforced    in

Goodville.    In    that   case,   a    multi-vehicle           policy    included    a

clause which stated that,

      Regardless of the number of motor vehicles to which
      this insurance applies, (a) the [$25,000] limit of
      liability for bodily injury stated in the schedule as
      applicable to “each person” is the limit of the
      company’s liability for all damages because of bodily
      injury sustained by one person as the result of any
      one accident . . . .

Id. at 627 (internal alteration omitted).                   The court held that

the “clear and unambiguous” language of the clause “requires the

construction that stacking is not permissible.”                   Id. at 628.        As

the court explained, the portion of the clause underlined above

“plainly limits [the insurer’s] UM liability for damages to any

one person as a result of any one accident to $25,000.                      The mere

                                        6
fact that two vehicles are insured and two separate premiums are

charged is of no consequence in light of the express language of

the policy.”        Id. at 628.

       The anti-stacking clause here likewise makes it clear that

where “any one person” is injured “in any one accident,” the

per-person UIM limit for bodily injury claims is the “maximum

limit of liability for all damages.”                         And by emphasizing that

the per-person bodily-injury UIM limit “is the most we will pay”

even    if    the    policy      insures      multiple          vehicles      and    charges

separate premiums         for    each       car   insured,       the   clause       makes    it

clear that the separate premiums are not purchasing separate

units of UM/UIM coverage.              Cf. Cunningham v. Insurance Co. of N.

Am., 189 S.E.2d 832, 837 (Va. 1972) (stacking of UM benefits

permitted       because       multi-car,          separate-premium            policy        was

ambiguous:          “Defendant     here      chose      to     issue   coverage      on     two

separate automobiles and to accept a premium for each. . . .

When    we    pay   a   double    premium         we    expect    double      coverage.”).

       Although the anti-stacking clause requires reference to the

policy’s Declarations page to determine the dollar amount of the

relevant      UIM    limit,      the    reference         in     no    way    muddies       the

otherwise      clear    language       of    the       anti-stacking         clause.        Cf.

Virginia Farm Bureau Mut. Ins. Co. v. Williams, 677 S.E.2d 299,

303    (Va.   2009)     (finding       otherwise        clear    anti-stacking         clause

ambiguous when considered in conjunction with declarations page

                                              7
referenced in clause).                 The Declarations page includes a table

listing    the       various      categories            of    coverage      provided          by    the

policy    and     showing        the       liability         limits   for        each    category.

Beneath     the       “PART      C     –     UNINSURED         MOTORISTS”         heading,          the

Declarations page shows the liability limits as follows:

               BODILY INJURY                     EA PER      $100,000
                                                 EA ACC      $300,000
               PROPERTY DAMAGE                   EA ACC      $50,000

J.A. 15.       Where one person is injured, the anti-stacking clause

states    that       Garrison’s        maximum         liability      is    “[t]he        limit      of

Bodily    Injury       Liability           shown       in    the   Declarations          for       each

person    for     Uninsured          Motorists          Coverage.”          J.A.        32.        That

language points directly to, and only to, the $100,000 “ea per”

bodily injury limit listed under Part C in the Declarations.

There is only one dollar amount shown for per-person/bodily-

injury    in    the    Uninsured           Motorists         section,      and    there       are    no

other limits on the Declarations page to which the clause could

be referring.          See Williams, 677 S.E.2d at 303 (clause limiting

liability       to     UM     per-person/bodily                injury       limit        shown       in

declarations found to be ambiguous because declarations showed

three    per-person         UM    limits         in    two     different         amounts).           We

therefore      conclude       that         the   anti-stacking          clause      clearly         and

unambiguously precludes stacking of the UM/UIM coverage limits.




                                                   8
                                                B.

       Westveer, however, contends that even if the language of

the    anti-stacking         clause       is    clear     enough   in    isolation,      the

policy affirmatively authorizes stacking through its definition

of “underinsured motor vehicle.”                     According to Westveer, because

the     policy        affirmatively             grants     stacking      rights     while

simultaneously purporting to withdraw those rights through the

anti-stacking         clause,       the        policy,    viewed    as    a    whole,        is

ambiguous and thus does not preclude stacking.                           See id. at 302

(“[A]ny ambiguity regarding the stacking of coverage within a

policy will be construed against the insurer.”).

       Under    the    policy,       an    “underinsured        motor    vehicle”       is    a

vehicle for which the total liability insurance “available for

payment    is     less       than   the        sum   of   the   limits    of    liability

applicable to the Insured for Uninsured Motorists Coverage under

this   policy     or     any    other      policy.”        J.A.    31.     According         to

Westveer,       the    phrase       “the       sum   of   the   limits    of    liability

applicable      to     the     Insured”        requires    stacking.          Because    the

definition requires adding (or “sum[ming]”) the limits (plural)

of applicable UM/UIM coverage, Westveer argues that there must

always and necessarily be more than one UM/UIM coverage limit

that is “applicable to the Insured” under the Garrison policy.

In Westveer’s view, all of the coverages provided by the policy

for each car insured are generally “applicable” to the insured.

                                                 9
Westveer thus argues that the phrase “the sum of the limits of

liability      applicable          to     the    Insured      for      Uninsured        Motorists

Coverage” requires stacking of the UM/UIM limits for each car

insured under the policy.                 We disagree.

       The    Garrison           policy    sets       separate        per-person        and    per-

accident limits for claims involving bodily injury and still

another       limit        for     claims        involving       property         damage,       any

combination         of   which      could       be   implicated        in   any    given       case.

When    the       policy     definition          is    read      in     context,        with    the

structure of the policy and policy limits in mind, the meaning

and import of the phrase is apparent.                         See, e.g., Hill v. State

Farm Mut. Auto. Ins. Co., 375 S.E.2d 727, 729 (Va. 1989) (“[A]s

in   the     case     of    any     other       contract,     the      words      used    [in    an

insurance policy] are given their ordinary and customary meaning

when they are susceptible of such construction.”).                                  The plural

“limits of liability” does not mean that more than one liability

limit      will     always        be    applicable,        but        simply      reflects      the

possibility that a single incident might trigger more than one

of   the     UM/UIM      limits.          And    the   “applicable          to    the    Insured”

language directs consideration of only those limits that are

relevant and appropriately applied to the case at hand – for

example, the per-person limit if one insured is injured, or the

per-person and per-accident limits if more than one insured is

injured.          See Webster’s Encyclopedic Unabridged Dictionary of

                                                 10
the    English      Language      102     (2001)        (defining        “applicable”          as

“capable of being applied; relevant; suitable; appropriate”).

      Westveer,      however,      rejects        this       obvious      reading        of   the

policy.      The underinsured-vehicle calculation set out in the

policy      requires     a   comparison           of     the       limits    of       liability

insurance      “available        for    payment”        to       the    limits      if    UM/UIM

coverage “applicable to the Insured.”                             J.A. 31.          The policy

defines “available for payment” in a way that focuses on the

particular claim of the injured party, see J.A. 31 (defining

“available for payment” as “the amount of liability coverage

applicable to the claim of the Insured as reduced by the payment

of    any   other      claims     arising         out       of    the   same       occurrence”

(emphasis added)), but the policy does not define “applicable to

the Insured.”          Westveer argues that the presence of a claim-

specific     definition      on     the      liability-insurance               side      of   the

underinsured-vehicle calculation and the absence of a similarly

claim-specific definition on the UM/UIM side of that calculation

requires     a   broader     understanding              of       what   limits      of    UM/UIM

coverage     are    “applicable         to    the       Insured.”            Cf.     Forst     v.

Rockingham Poultry Mktg. Coop., Inc., 279 S.E.2d 400, 404 (1981)

(“When the General Assembly uses two different terms in the same

act, it is presumed to mean two different things.”).

      We find Westveer’s argument unpersuasive.                           As noted above,

the   policy     requires    a    comparison           of    the    limits     of     liability

                                             11
insurance      “available    for    payment”      to    the     limits     of   UM/UIM

coverage    “applicable      to    the   Insured.”          J.A.   31.      A   claim-

specific focus when determining the UM/UIM limits “applicable to

the Insured” is inherent in the use of the word “applicable.” 2

See Webster’s Encyclopedic Unabridged Dictionary 102.                           On the

liability-insurance         side    of    the     calculation,         however,     an

additional definition was needed to establish the claim-specific

focus    for    determining        the   amount        of    liability     insurance

“available for payment.”

     The absence of a specific definition of the UM/UIM that is

“applicable to the Insured” therefore cannot justify ignoring

the plain meaning of the terms used in the policy or assigning

more meaning than the terms reasonably can bear.                       The phrase at

issue here -- “the sum of the limits of liability applicable to

the Insured” -- cannot reasonably be interpreted as requiring

stacking    when    determining      whether      the       at-fault     vehicle   was

underinsured.       And because the policy does not affirmatively




     2
       Before the district court and in the briefs filed with
this court, counsel for Westveer contended that the policy
authorized stacking of all UIM limits -- per-person, per-
accident, and property damage -- for each car, for a total of
$1,350,000 in UM/UIM coverage.      At oral argument, however,
counsel abandoned that claim and asserted a right to stack only
the $100,000 per-person limit for each of the three cars insured
under the policy.   Counsel’s narrower argument seems implicitly
to reflect a similar understanding of the policy language.


                                         12
require    stacking,     we   reject     Westveer’s    claim   that   the   anti-

stacking clause creates an ambiguity within the policy. 3

                                         C.

     In    her   final    effort    to   avoid   the    effect   of   the   anti-

stacking    clause,      Westveer   argues    that     the   clause   itself   is

deceptive and thus unenforceable.

     The anti-stacking clause states that the UM/UIM per-person

bodily-injury limit (or the per-accident limit, if applicable)

“is our maximum limit of liability for all damages” and is “the

most” Garrison will pay under the policy.                    J.A. 32-33.       The

anti-stacking clause also includes a set-off provision stating

that any damages payable under the UM/UIM coverage “shall be

reduced” by the amount paid by or on behalf of the at-fault

driver.    J.A. 33.       Westveer argues that as to a claim involving

an underinsured vehicle, Garrison will never pay the full limit,


     3
       Westveer also refers to the insuring agreement contained
in the UM/UIM section of the policy and a statement on the
Declarations page when arguing that the anti-stacking clause
conflicts with other policy provisions authorizing stacking.
Because the policy’s definition of underinsured vehicle does not
require stacking and the uninsured motorist statute does not
require intra-policy stacking, there is no conflict between the
anti-stacking clause and Garrison’s promise in the insuring
agreement to pay damages in accordance with the statute.     And
because the policy does not require stacking, there is likewise
no conflict with the statement in the Declarations that the
“limits shown . . . may not be combined regardless of the number
of vehicles for which a premium is listed unless specifically
authorized elsewhere in this policy.” J.A. 15.



                                         13
since some amount of insurance is always available where UIM

benefits    are       sought    and      the   policy     calls   for     the   benefits

payable    to    be    reduced      by   the    amounts    paid      by   the   liability

insurer.        Westveer thus contends that the anti-stacking clause

is “deceptive and always untrue” in the UIM context, Brief of

Appellant at 26, because Garrison will never be required to pay

the “maximum limit” of the policy, J.A. 32.                           And because the

anti-stacking clause is deceptive, Westveer contends the clause

is unenforceable.            We disagree.

      Assuming        that    the    set-off        provision   is    enforceable     and

would operate as described by Westveer, we still find nothing

deceptive about the anti-stacking clause.                       The policy’s UM and

UIM coverage, including the anti-stacking clause, is set out in

Part C of the policy, which is entitled “Uninsured Motorists

Coverage.”        J.A. 31.          The policy consistently uses “Uninsured

Motorists Coverage” to refer to both UM and UIM coverage, and

the   anti-stacking           clause      likewise      encompasses        UM   and   UIM

coverage.        Even if the full limit will never be paid in UIM

cases, the full limit will always be paid in UM cases, where

there is no liability insurance and thus no basis for a benefits

offset.      The anti-stacking clause therefore is not deceptive,

and there is no basis for us to refuse to enforce it.




                                               14
                                           IV.

     In its order denying Westveer’s motion for summary judgment

and granting Garrison’s cross-motion for summary judgment, the

district court stated that “because [Westveer] is not entitled

to stack the UIM coverages present in the Declaration section of

the Policy, UIM coverage is limited to $100,000.”                          J.A. 440.

Westveer construes the court’s order as a declaration that she

is entitled to a payment of $100,000 in UIM benefits.                       Garrison

has refused to pay any amount under the policy, and Westveer

believes Garrison’s refusal to pay is premised on the set-off

provision discussed above.                Westveer argues that the set-off

provision is void and that Garrison therefore cannot rely on the

provision     to       evade     its     statutory    obligation      to     provide

underinsured coverage.               See Nationwide Mut. Ins. Co. v. Hill,

439 S.E.2d 335, 339 (Va. 1994) (holding that a policy provision

requiring    a     set-off      of   liability   insurance     payments      against

amount    payable      under    UM    coverage   is   “void   as   against    public

policy”).

     Contrary to Westveer’s claim, the district court simply did

not hold that Westveer was entitled to payment of $100,000 in

UIM benefits.          The district court held that the anti-stacking

clause precluded stacking of the UM/UIM benefits for each car

insured     under      the     Garrison    policy.      Because     stacking     was

precluded,       the   policy’s        per-person,    bodily-injury    limit     for

                                           15
UM/UIM    coverage          was   $100,000,        as        shown     in     the    policy

Declarations and as stated by the district court in its order.

       That    the    policy      included       UIM    coverage       with       per-person

limits    of   $100,000,       however,     does       not    mean    that    Garrison    is

obligated to pay UIM benefits in this case.                                Under § 38.2-

2206(A), Garrison is obligated to pay UIM benefits in this case

only “to the extent the vehicle is underinsured, as defined in

[§   38.2-2206(B).”            Va.   Code    Ann.       §     38.2-2206(A)         (emphasis

added).       In this case, the at-fault vehicle is not underinsured

within the meaning of the statute, because the non-stackable

$100,000 per-person UIM limit under the Garrison policy does not

exceed the liability limits of the at-fault driver’s insurance.

See id. § 38.2-2206(B) (“A motor vehicle is ‘underinsured’ when,

and to the extent that, the [applicable liability coverage] . .

. is less than the total amount of [UM/UIM] coverage afforded

any person injured as a result of the operation or use of the

vehicle.”).

       Because       the     at-fault     vehicle            was     not     underinsured,

Westveer’s UIM coverage was not triggered, and Garrison has no

obligation to pay UIM benefits in any amount; there is nothing

in the district court’s order that can be construed as holding

otherwise.       Accordingly, the set-off provision has nothing to do

with    Garrison’s         refusal   to   pay      benefits,         and     we   need   not



                                            16
consider whether the set-off clause would be enforceable in a

case where the insurer was obligated to pay UIM benefits.

                               V.

     As we have explained, the anti-stacking clause contained in

the Garrison policy is not deceptive or otherwise unenforceable,

and the clause clearly and unambiguously precludes stacking of

UM/UIM   benefits.   Accordingly,   the   district   court’s   order

granting summary judgment to Garrison is hereby

                                                          AFFIRMED.




                               17
