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Kronjaeger v. Buckeye Union Ins. Co.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 1997 Term

No. 23829 STELLA R. KRONJAEGER, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF FRANK NELSON KRONJAEGER, Plaintiff Below, Appellant

V.

THE BUCKEYE UNION INSURANCE COMPANY, A CORPORATION, AND MCDONOUGH CAPERTON INSURANCE GROUP, INC., A WEST VIRGINIA CORPORATION, Defendants Below, Appellees.

Appeal from the Circuit Court of Ohio County

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Honorable Fred Risovich, II, Judge Civil Action No. 93-C-721

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS

Submitted: May 6, 1997 Filed: July 12, 1997

John Preston Bailey Cheryl Dean Riley Bailey, Riley, Buch & Harman, L.C. Wheeling, West Virginia Attorneys for the Appellant

Stephen J. Dalesio Gaca, Matis & Baum Pittsburgh, Pennsylvania Attorney for the Appellees

JUSTICE DAVIS delivered the Opinion of the Court. SYLLABUS BY THE COURT

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1. "'"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963).' Syl. Pt. 1, Bauer Enters., Inc. v. Frye, 181 W. Va. 234, 382 S.E.2d 71 (1989)." Syllabus point 7, Arndt v. Burdette, 189 W. Va. 722, 434 S.E.2d 394 (1993).

2. "'W. Va. Code, 33-6-31(b), as amended, on uninsured and underinsured motorist coverage, contemplates recovery, up to coverage limits, from one's own insurer, of full compensation for damages not compensated by a negligent tortfeasor who at the time of the accident was an owner or operator of an uninsured or underinsured motor vehicle. Accordingly, the amount of such tortfeasor's motor vehicle liability insurance coverage actually available to the injured person in question is to be deducted from the total amount of damages sustained by the injured person, and the insurer providing underinsured motorist coverage is liable for the remainder of the damages, but not to exceed the coverage limits.' Syllabus Point 4, State Automobile Mutual Insurance Co. v. Youler, 183 W. Va. 556, 396 S.E.2d 737 (1990)." Syllabus point 2, State ex rel. Allstate Insurance Company v. Karl, 190 W. Va. 176, 437 S.E.2d 749 (1993).

3. "The statutory obligation of an insurer to pay under W. Va. Code, 33-6-31(b) is confined to the policy limits of the uninsured or underinsured motorist coverage." Syllabus point 5, in part, Marshall v. Saseen, 192 W. Va. 94, 450 S.E.2d 791 (1994).

4. "The statutory subrogation right contained in W. Va. Code, 33-6-31(f) (1988), ordinarily precludes an injured party from settling for less than the liability policy limits of the tortfeasor and giving a general release without the consent of the underinsured motorist carrier that has coverage for the injured party." Syllabus point 4, Barth v. Keffer, 195 W. Va. 51, 464 S.E.2d 570 (1995).

5. "'A consent-to-settle provision of an automobile insurance policy pertaining to underinsured motorist[s] coverage whereby an insured voids his underinsurance coverage by settling a claim with a tortfeasor without first obtaining the insurer's written consent when such claim involves either the insured's underinsurance coverage or potentially involves that coverage is a valid and enforceable means by which an insurer may protect its statutorily-mandated right to subrogate claims pursuant to West Virginia Code

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