Pristavec v. Westfield Insurance , 184 W. Va. 331 ( 1990 )

NEELY, Chief Justice,

dissenting:

The Dialogue

Mr. Justice Wossname: Mr. Chief Justice, I move that the statute be amended by deleting the following language:

“Underinsured motor vehicle” means a motor vehicle with respect to the ownership, operation, or use of which there is liability insurance applicable at the time of the accident, but the limits of that insurance are either (i) less than limits the insured carried for underinsured motorists’ coverage, or (ii) has been reduced by payments to others injured in the accident to limits less than limits the insured carried for underinsured motorist’s coverage.

And by substituting in lieu thereof the language:

“Underinsured motorist” means when the amount of such tortfeasor’s motor vehicle liability insurance actually available to the injured person in question is less than the total amount of damages sustained by the injured person, regardless of the comparison between such liability insurance limits actually available and the underinsured motorist coverage limits.

The Chief Justice: The question now is on the passage of the amendment. All those in favor of the amendment will say aye, those opposed no, the clerk will prepare the machine. On this question four ayes, one nay, none absent and not voting; more than a majority having voted in the affirmative, I declare the amendment passed. Are there further amendments? The chair hears none. The question now is on the passage of the statute. All those in favor of the statute will vote aye, those opposed, no, the clerk will prepare the machine. On this question four ayes, one nay, none absent and not voting, more than a majority having voted in the affirmative, I declare the statute passed.

Mr. Justice Wossname: Mr. Chief Justice, I move the statute take effect retroactively, and on this question ask unanimous consent that the roll call used in the passage of the statute be used to make it so effective.

The Chief Justice: Is there objection? The chair hears none. On this question four ayes, one nay, none absent and not voting, more than two-thirds having voted in the affirmative, I declare that the statute takes effect retroactively.

The Disclaimer

Now none of this is to say that I’m above doing a little legislating from time to time myself. But I usually find a constitutional principle that trumps an obsolete or ill conceived statute, State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318 (1977), or I just “interpret” the statute out of existence, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

The Policy

Underinsured motorist coverage is not one of those issues touching isolated or insular minorities. United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). I have not the least inkling about how expanding underin-sured motorist coverage will affect insurance rates for motorists. The reason for my ignorance is that I am not available to be lobbied — a circumstance that I happily share with my colleagues.

Legislators and executives import sizable amounts of personal experience into their decisions, but they are also deluged with and force-fed information by outraged constituents, lobbyists, newspaper reporters, and their colleagues. In fact, for all the farce associated with political campaigns, the one valuable function campaigns perform is that they give politicians firsthand information about their constituents. Elected politicians suffer from many disabilities, but isolation from real life is not one of them. Judges do not have, and are not even allowed to have, any of these sources of information.

Politicians, of course, have much more than simple “access” to information. When I was in the state legislature, I used to enter the Daniel Boone Hotel in Charleston through a dark alley, wend my way through the trash cans and piled garbage around the hotel’s service entrance, take the servants’ elevator to the tenth floor, and then with the utmost stealth, walk up the stairs to my suite to avoid being snagged by interest group spokesmen. As a legislator, to sleep in my own house past 7:00 a.m. required silencing the bell on the telephone (taking the receiver off the hook was too obvious). Furthermore, the volume of incoming personal correspondence gave a whole new dimension to the expression “junk mail.”

The legislature has many smart members and, on an issue like automobile insurance, consumers are represented by organized groups like the trial lawyers and the labor unions. If the legislature decided to define “uninsured motorists” a particular way, the legislature must have had a good reason. Furthermore, it is little solace to me that the majority’s opinion is supported by “authority” from the land of Texaco v. Pennzoil, Co., 729 S.W.2d 768, (Tex.App. 1987) — conceivably the least well constructed and most corrupt appellate opinion written in this century! Therefore, I dissent.