USAA Casualty Insurance v. Alexander ( 1994 )

JUSTICE COMPTON, with whom JUSTICE WHITING joins,

dissenting in part.

I disagree with that part of the majority’s ruling, expressed in Part III of the opinion, that Sherman Alexander’s $25,000 policy limit should be stacked when computing available underinsured motorist coverage.

In clear, unambiguous language, the uninsured motorist statute provided: “Where the insured contracts for higher limits,” the endorsement for those higher limits shall obligate the insurer to make payment for bodily injury resulting from the operation of an underinsured motor vehicle “to the extent the vehicle is underinsured, as defined in subsection B” of the statute. Code § 38.2-2206(A). The basis for turning to subsection (B) hinged on the condition precedent set forth in subsection (A): “Where the insured contracts for higher limits.” In other words, subsection (A) plainly stated that unless the insured had contracted for higher limits, there was no need to turn to subsection (B), which the majority employs to create an ambiguity.

In the present case, the majority ruled correctly that Sherman Alexander did not contract “for higher limits.” That ends the inquiry, and he is precluded from claiming underinsured motorist coverage.

Accordingly, I would hold that $150,000, not $175,000, in underinsured motorist coverage is available, to be reduced by the payments made by Jackson’s liability carrier.