Present:    All the Justices

ALLSTATE INSURANCE COMPANY
                      OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 001349               April 20, 2001

MARCELLUS D. JONES

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Melvin R. Hughes, Jr., Judge

     In this appeal, we consider whether a passenger in a car

that was insured at the time of an accident is entitled to

enforce a judgment entered against a named insured driver

pursuant to the uninsured motorist provisions of the driver's

automobile liability insurance policy even though the

insurance company which issued the policy denied liability

coverage to its named insured driver for failure to cooperate.

     The relevant facts are not in dispute.    On May 14, 1996,

Marcellus D. Jones was injured when he was a passenger in an

automobile owned and operated by Christopher D. Robinson.

Allstate Insurance Company (Allstate) had issued a policy of

automobile liability insurance to Robinson, a named insured

under the provisions of the policy.

     Jones filed a negligence action against Robinson in the

circuit court.    During the pendency of the negligence action,

Allstate informed Jones and his counsel that it denied

liability coverage to Robinson because of his lack of

cooperation.    Jones served Allstate with process in the tort
action.   Jones obtained a judgment against Robinson in the

tort action in the amount of $55,000 with costs and interest.

     Jones initiated this proceeding by filing a separate

motion for judgment against Allstate.     He alleged that when

Allstate denied liability coverage to Robinson, Robinson

became an uninsured motorist pursuant to the provisions of

Code § 38.2-2206 and that Allstate was required to pay the

$25,000 uninsured motorist insurance limit prescribed in the

policy that Allstate had issued to Robinson as partial

satisfaction of Jones' judgment.      Allstate denied that it had

any obligation to satisfy any part of the judgment.     Both

litigants filed motions for summary judgment.     The circuit

court held that pursuant to Code § 38.2-2206, Allstate had an

obligation to pay its uninsured motorist policy limit, and the

court entered summary judgment in favor of Jones in the amount

of $25,000.   Allstate appeals.

     Allstate contends that it has no obligation to pay its

prescribed policy limit to satisfy a portion of the judgment

that Jones obtained against Robinson.     Allstate says that to

recover under its insurance policy, Jones "must first qualify

as an 'insured' at the time the vehicle became uninsured.

Only as an insured under said policy can [Jones] avail himself

of the coverage imbued via its uninsured motorist

endorsement."   Allstate observes that "[t]he policy


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endorsement relating to uninsured motorists provides coverage

to, inter alia, persons occupying insured motor vehicles.

Hence, the analysis which counsels reversal of the [c]ircuit

[c]ourt's judgment requires this [C]ourt to . . . determine

whether . . . Robinson's vehicle constituted an insured motor

vehicle at the time [Jones] served Allstate."      Furthermore,

Allstate asserts that as a condition precedent to uninsured

motorist coverage, there must be both an insured motor vehicle

and an uninsured motor vehicle.       Allstate, relying upon our

decision in Superior Insurance Company v. Hunter, 258 Va. 338,

520 S.E.2d 646 (1999), contends that an automobile cannot be

deemed both "an insured motor vehicle and an uninsured motor

vehicle."

     Responding, Jones contends that Allstate has an

obligation to pay the limits of its insurance policy to

partially satisfy the judgment pursuant to the uninsured

motorist provisions of the policy because he is an insured as

defined by Code § 38.2-2206(B).       Continuing, Jones argues that

our decision in Superior Insurance Company is not applicable

to the facts and circumstances of this proceeding.

     Code § 38.2-2206 provides in relevant part:

          "A. . . . [N]o policy or contract of bodily
     injury or property damage liability insurance
     relating to the ownership, maintenance, or use of a
     motor vehicle shall be issued or delivered in this
     Commonwealth to the owner of such vehicle or shall


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     be issued or delivered by any insurer licensed in
     this Commonwealth upon any motor vehicle principally
     garaged or used in this Commonwealth unless it
     contains an endorsement or provisions undertaking to
     pay the insured all sums that he is legally entitled
     to recover as damages from the owner or operator of
     an uninsured motor vehicle . . . .
          "B. . . . .
          " 'Insured' as used in subsections A, D, G, and
     H of this section means the named insured and, while
     resident of the same household, the spouse of the
     named insured, and relatives, wards or foster
     children of either, while in a motor vehicle or
     otherwise, and any person who uses the motor vehicle
     to which the policy applies, with the expressed or
     implied consent of the named insured, and a guest in
     the motor vehicle to which the policy applies or the
     personal representative of any of the above.
          " 'Uninsured motor vehicle' means a motor
     vehicle for which (i) there is no bodily injury
     liability insurance and property damage liability
     insurance in the amounts specified by § 46.2-472,
     (ii) there is such insurance but the insurer writing
     the insurance denies coverage for any reason
     whatsoever, including failure or refusal of the
     insured to cooperate with the insurer . . . ."

     In applying the statutory definitions contained in Code

§ 38.2-2206(B), we must consider whether, at the time of the

accident, Jones was a guest in Robinson's motor vehicle and

whether, at the time of the accident, there was a bodily

injury liability insurance policy in effect, but the insurer

writing the insurance subsequently denied coverage for any

reason whatsoever.

     Applying the plain and unambiguous language in Code

§ 38.2-2206, we hold that Allstate is required to pay the

limit of its uninsured motorist insurance coverage policy



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toward the judgment that Jones obtained against Robinson.

Even though Allstate had issued a policy of automobile

liability insurance to Robinson, its named insured, which was

in effect at the time Jones was injured, Allstate denied

coverage to Robinson because Allstate believed that he had

breached his duty to cooperate as required by the terms of

that policy.

     Once Allstate decided to deny coverage to its named

insured, Robinson, because of lack of cooperation, the vehicle

which Robinson was operating at the time of the accident met

the statutorily prescribed definition of an uninsured motor

vehicle.   Code § 38.2-2206(B) expressly provides that an

uninsured motor vehicle means a motor vehicle for which there

is insurance, "but the insurer writing the insurance denies

coverage for any reason whatsoever, including failure or

refusal of the insured to cooperate with the insurer."    And,

we observe that Jones, a passenger in the car at the time of

the accident, was an insured within the meaning of Code

§ 38.2-2206 because he was a guest in the motor vehicle.

     In Superior Insurance Company v. Hunter, supra, we

considered whether the underinsured motorist provision of a

tortfeasor's automobile liability insurance policy was

available to satisfy claims of passengers in the tortfeasor's

vehicle who were insured under the same policy and whose


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claims for damages exceeded the limits of the policy's

liability coverage.   Purcell Hunter and his daughter, Lekedra

D. Hunter, were passengers in a vehicle owned by Purcell

Hunter and driven by his wife, Eva L. Hunter.   The vehicle

collided with a car driven by Ikesha M. Dye.    Purcell Hunter,

Lekedra Hunter, Dye, and a passenger in Dye's vehicle were

injured in the accident.

     At the time of the accident, Purcell Hunter was a named

insured under an automobile insurance policy issued by

Superior Insurance Company (Superior).   Eva Hunter and Lekedra

Hunter were also named insureds under the terms of the policy,

which provided liability coverage of $25,000 for each person

injured, limited to $50,000 per accident.   The policy also

contained uninsured/underinsured motorist coverage with the

same limits.

     Dye and her passenger filed claims for their damages with

Superior and alleged that Eva Hunter was negligent in her

operation of the vehicle.   Superior paid these claims, which

totaled $38,500.   Purcell Hunter and Lekedra Hunter filed

claims with Superior for damages resulting from their personal

injuries, and they filed an action against Eva Hunter,

alleging that her negligence was a proximate cause of their

injuries.   Because Superior had previously paid $38,500 to

settle the claims of Dye and her passenger, only $11,500 in


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total liability coverage remained available to satisfy the

claim submitted by Purcell Hunter and Lekedra Hunter.

     Lekedra Hunter and Purcell Hunter filed actions against

Superior and sought declaratory judgments that Superior was

required to satisfy their claims in excess of $11,500 by

paying pursuant to the policy's underinsured motorist

coverage.

     Rejecting their contentions, we stated:

     "[I]n construing Code § 38.2-2206 as a whole, we
     conclude, even under the facts of this case when
     only one insurance policy is involved, that the
     General Assembly did not intend that a vehicle could
     be 'underinsured' with respect to itself. In light
     of the provisions of subsection (A), it is clear
     that subsection (B) contemplates a situation in
     which there are at least two applicable insurance
     policies at issue — the liability coverage provided
     by a tortfeasor's insurance policy, and the
     uninsured/underinsured motorist coverage provided by
     an injured party's insurance policy.
          "Subsection (A) provides that the limits of the
     uninsured/underinsured coverage of any policy issued
     in Virginia 'shall equal but not exceed the limits
     of the liability insurance provided.' It does not
     permit the amount of liability coverage provided by
     a policy to be less than uninsured/underinsured
     motorist coverage provided by that policy. The
     total amount of this coverage necessarily is to be
     determined at the time the policy is issued by the
     insurance company.
          "The definition of 'underinsured' in subsection
     (B), however, contemplates just such a scenario,
     that is, where the amount of the liability coverage
     is less than the amount of the uninsured/
     underinsured motorist coverage. The two subsections
     can be reconciled only if it is assumed, as we do
     here, that subsection (B) contemplates a situation
     in which there are two insurance policies at issue.
     Moreover, subsection (A) states that the


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       underinsured motorist coverage must 'obligate the
       insurer to make payment for bodily injury or
       property damage caused by the operation or use of an
       underinsured motor vehicle.' The reference to 'an
       underinsured motor vehicle' contemplates the
       existence of a second insurance policy.
            "Read together, subsection (A) and subsection
       (B) do not contemplate that, under the circumstances
       of this case, a claimant would be permitted to
       recover under both the liability and
       uninsured/underinsured motorist coverages of a
       single policy. In the present case, the
       uninsured/underinsured motorist coverage provided by
       Superior's policy would not be 'afforded to'
       [Lekedra Hunter and Purcell Hunter]. Thus, there
       are no underinsured motorist coverages afforded to
       [Lekedra Hunter and Purcell Hunter] to compare with
       the amount of liability coverage 'available for
       payment.' "

Superior Insurance Company, 258 Va. at 344-45, 520 S.E.2d at

649.

       As the aforementioned discussion clearly indicates, our

holding in Superior Insurance Company is not dispositive of

the issue in this appeal.   In Superior Insurance Company, we

held, under the facts and circumstances of that case, that the

underinsured motorist provisions of a tortfeasor's automobile

liability insurance policy could not be used to satisfy claims

of passengers who are insureds under the same policy and whose

claims exceed the limits of the policy's liability insurance

coverage.   Here, however, we are concerned with a completely

different factual scenario.   Unlike Superior Insurance

Company, we are not confronted with a situation in which an

insurance company, that had issued an automobile liability


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insurance policy, could be required to pay its contracted

limits of liability coverage and also pay underinsured

motorist coverage from the same policy.   Jones seeks to

recover solely on the uninsured motorist provisions and,

hence, Allstate cannot be subject to liability beyond its

contractual limits.

     In view of our holding, we need not consider Allstate's

remaining arguments.    Accordingly, we will affirm the judgment

of the circuit court.

                                                         Affirmed.




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