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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


September 2009 Term

No. 34596

FILED November 25, 2009
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


WANG-YU LIN,
Plaintiff Below, Appellee
v. SHIN YI LIN, ENTERPRISE RENT A CAR OF KENTUCKY, A KENTUCKY
CORPORATION, AND EMPIRE FIRE AND MARINE INSURANCE COMPANY,
A NEBRASKA CORPORATION,
Defendants Below
ENTERPRISE RENT A CAR OF KENTUCKY AND MARINE INSURANCE
COMPANY,
Appellants
______________________________________________________ Appeal from the Circuit Court of Kanawha County
The Honorable Jennifer Bailey Walker, Judge
Civil Action No. 06-C-2372
AFFIRMED
_____________________________________________________ Submitted: September 9, 2009
Filed: November 25, 2009


Thomas V. Flaherty, Esq. Erica M. Baumgras, Esq. Flaherty, Sensabaugh & Bonasso Charleston, West Virginia Attorneys for Appellants

William M. Tiano, Esq. Christina Smith, Esq. Berthold, Tiano & O'Dell Charleston, West Virginia Shawn A. Taylor, Esq. Charleston, West Virginia Attorneys for Appellee

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT


1.

"In the exercise of its appellate jurisdiction, this Court will not decide

nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken." Syllabus Point 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334 (1971). 2. "This Court may, on appeal, affirm the judgment of the lower court

when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syllabus Point 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).

Per Curiam:

This is an appeal by Enterprise Rent A Car of Kentucky and Empire Fire and Marine Insurance Company from a March 19, 2008, order of the Circuit Court of Kanawha County that granted a declaratory judgment on behalf of the appellee, Wang-Yu Lin. The court found that a supplemental liability insurance policy purchased by Mr. Lin from Empire Fire and Marine Insurance Company, at the time Mr. Lin rented a vehicle from Enterprise Rent A Car of Kentucky, provides coverage to Mr. Lin for injuries he suffered in an accident involving the rental vehicle. For the reasons provided below, we affirm the ruling of the circuit court.

I.
FACTS


The appellee, Wang-Yu Lin, a student at Salem International University, leased a vehicle from Appellant Enterprise Rent A Car of Kentucky ("Enterprise") at its Clarksburg, West Virginia office. A copy of the rental contract with Enterprise indicates that Mr. Lin did not request to add any additional authorized drivers to the contract.1 At the time of the rental,

1

The portion of the rental contract pertaining to additional authorized drivers provides:

ADDITIONAL AUTHORIZED DRIVER(S) - EXCEPT AS REQUIRED BY LAW, NONE PERMITTED WITHOUT OWNER'S WRITTEN APPROVAL.
1


Mr. Lin purchased a $1,000,000 Supplemental Liability Policy issued by Appellant Empire Fire and Marine Insurance Company ("Empire"). Specifically, Mr. Lin signed the portion of the contract indicating that "RENTER ACCEPTS OPTIONAL SUPPLEMENTAL LIABILITY PROTECTION (SLP) AT FEE SHOWN IN COLUMN TO RIGHT. SEE NOTICE BELOW AND PAGE 3, PARAGRAPH 17." At paragraph 17 of page 3 of the 4 page rental agreement, there is a summary of the supplemental policy benefits and exclusions.2 Mr. Lin was not provided a copy of the supplemental policy.

I REQUEST OWNER'S PERMISSION TO ALLOW NO OTHER DRIVER PERMITTED WHO IS UNDER MY CONTROL AND DIRECTION TO DRIVE VEHICLE FOR ME AND ON MY BEHALF. I AM RESPONSIBLE FOR THEIR ACTS WHILE THEY ARE DRIVING, AND FOR FULFILLING TERMS AND CONDITIONS OF THIS RENTAL AGREEMENT (AGREEMENT). USE OF VEHICLE BY AN UNAUTHORIZED DRIVER WILL AFFECT MY LIABILITY AND RIGHTS UNDER THIS AGREEMENT. Under Additional Terms and Conditions, the Rental Agreement further states as follows: 4. Limits on Use and Termination of Right to Use. a. Renter agrees to the following limits on use: (1) Vehicle shall not be driven by any person other than Renter or AAD(s) without Owner's prior written consent. A summary of the supplemental policy benefits as they appears in the rental agreement provides: 17. Optional Supplemental Liability Protection.
THE PURCHASE OF SUPPLEMENTAL LIABILITY

1

2

PROTECTION IS OPTIONAL AND NOT REQUIRED IN ORDER TO RENT A VEHICLE. THIS IS A SUMMARY ONLY AND IS SUBJECT TO ALL PROVISIONS, LIMITATIONS, EXCEPTIONS AND EXCLUSIONS OF THE SLP POLICY ISSUED BY EMPIRE FIRE AND MARINE INSURANCE COMPANY. UPON REQUEST, A COPY OF THE POLICY IS AVAILABLE FOR REVIEW. SLP MAY PROVIDE A DUPLICATION OF COVERAGE ALREADY FURNISHED UNDER A PERSONAL INSURANCE POLICY, OR SOME OTHER SOURCE. OWNER'S EMPLOYEES, AGENTS OR ENDORSEES ARE NOT QUALIFIED TO EVALUATE THE ADEQUACY OF RENTER'S EXISTING COVERAGE. SLP BENEFITS: Optional Supplemental Liability Protection (SLP) provides Renter with minimum financial responsibility limits as outlined in the applicable motor vehicle financial responsibility laws of the state where Vehicle is operated AND excess insurance provided by Empire Fire and Marine Insurance Company, which supplies Renter and AAD(s) with third-party liability protection with a combined single limit per accident equal to the difference between the minimum financial responsibility limits set forth above and $1,000,000 Combined Single Limit per accident. SLP will respond to third party accident claims that result from bodily injury, including death, and property damage that arise from the use or operation of Vehicle as permitted in this Agreement. The Empire Fire and Marine insurance policy does not provide coverage for any loss arising from the use or operation of Vehicle in Mexico. SLP is available for an additional charge as stipulated on Page 1. A summary of exclusions are provided in the rental agreement as follows: SLP EXCLUSIONS For all exclusions, see the SLP policy issued by Empire Fire
2


During the trip in the rental vehicle, Mr. Lin permitted a passenger, Shin Yi Lin, to drive the vehicle.3 Shortly thereafter, the vehicle was involved in a one-car accident wherein Mr. Lin, a passenger in the vehicle, sustained a serious head injury and subsequently incurred approximately $300,000 in medical expenses.

and Marine Insurance Company. exclusions:

Here are a few key

(a) Loss arising out of an accident which occurs while Renter or AAD(s) is under the influence of alcohol or drugs, or other substances unless prescribed by a physician; (b) Loss arising out of bodily injury or property damage sustained by Renter or AAD(s) or any relative or family member of Renter or AAD(s) who resides in the same household; (c) Loss arising out of the operation of Vehicle by any driver who is not Renter or AAD(s); (d) Liability arising out of or benefits payable under any uninsured or underinsured motorist law, in any state; (e) Liability arising out of or benefits payable under any first party benefit law, medical payments, no-fault or any similar law to the foregoing, in any state; (f) Bodily injury to an employee or the spouse, child, parent, brother or sister of that employee, arising out of and in the course of employment by Renter or AAD(s); (g) Property damage to property transported or in the care, custody or control of Renter or AAD(s); (h) Damage to Vehicle; (i) Liability arising out of the use of Vehicle, which was obtained based on false, misleading or fraudulent information; (j) Loss arising out of the use of Vehicle when such use is otherwise in violation of the terms and conditions of the Rental Agreement. (Bold in original).

3

Ms. Lin is of no relation to Mr. Lin.
3


Mr. Lin presented a claim to Empire for coverage under the supplemental policy.4 Empire denied Mr. Lin's claim for coverage based on the fact that Shin Yi Lin who was driving the vehicle at the time of the accident was not named as an additional authorized driver on the Enterprise rental contract. As a second basis for denial, Empire asserted that Mr. Lin cannot make a claim on an insurance policy which he purchased based on an insured exclusion.

Thereafter, Mr. Lin filed a declaratory judgment action in the Circuit Court of Kanawha County seeking a declaration of coverage under the supplemental policy. The parties filed cross motions for summary judgment. By order dated March 19, 2008, the circuit court granted summary judgment in favor of Mr. Lin finding that coverage is provided to him. Specifically, the circuit court found that the omnibus insurance statute, W. Va. Code

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