1 Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

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Kinser, JJ., and Poff, Senior Justice 

BERNARD J. TRISVAN, JR. 

v. Record No. 962600 OPINION BY JUSTICE ELIZABETH B. LACY 

 October 31, 1997 

AGWAY INSURANCE COMPANY 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 In this appeal, we construe Code § 38.2-2206 to determine 

whether, in a single vehicle accident, the uninsured/ 

underinsured motorist (UM/UIM) endorsement of a tortfeasor's 

automobile liability insurance policy is to be considered when 

determining the extent to which the tortfeasor's motor vehicle is 

underinsured. 

 The facts are not in dispute. On April 9, 1994, Bernard J. 

Trisvan, Jr., was a passenger in a car driven by Marcus Wilson 

Smith. The car overturned, and Trisvan suffered injuries 

resulting in damages exceeding $125,000. Smith's vehicle was 

insured by Integon Indemnity Corporation (Integon), with policy 

limits of $25,000 per person for bodily injury liability and 

$25,000 per person UM/UIM coverage. Trisvan was insured under a 

family automobile policy issued to his father by Agway Insurance 

Company (Agway) with a limit of $100,000 for UM/UIM coverage. 

 Trisvan filed a personal injury action against Smith and 

served Agway as his underinsurance carrier. In settlement of the 

personal injury action, Integon paid Trisvan the $25,000 

liability limit under Smith's policy. Agway then tendered 

Trisvan $75,000 and filed a declaratory judgment action seeking a 

ruling that $75,000 was the total amount it owed Trisvan under 
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Trisvan's UM/UIM policy. Trisvan, in his grounds of defense and 

counterclaim, asserted that the total amount of available UM/UIM 

coverage was $125,000 and, therefore, Agway was liable for 

$100,000 rather than $75,000. The trial court, on cross motions 

for summary judgment, concluded that Smith's vehicle was 

underinsured by $75,000, not $100,000, and that Trisvan was 

therefore only entitled to $75,000 from Agway. We awarded this 

appeal. 

 In this case, we are not concerned with construing the terms 

of an insurance policy to determine whether an applicant is 

entitled to recovery. Trisvan did not seek recovery from Integon 

under the terms of the UM/UIM endorsement in Smith's policy and 

counsel for Trisvan stated at oral argument that he could not 

recover under that portion of the policy because of the policy 

limits. The sole question here requires interpretation of a 

portion of § 38.2-2206, regarding the method for calculating the 

amount by which a vehicle is underinsured. 

 Since 1982, § 38.2-2206 has required that automobile 

liability insurance policies issued in Virginia include an 

endorsement which obligates the insurer to pay the insured for 

damages caused by the operation or use of an underinsured motor 

vehicle. Subsection (B) of that section provides that a motor 

vehicle is considered underinsured: 

 when, and to the extent that, the total amount of 

bodily injury and property damage coverage applicable 

to the operation or use of the motor vehicle and 

available for payment for such bodily injury or 

property damage, . . . is less than the total amount of 
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uninsured motorist coverage afforded any person injured 

as a result of the operation or use of the vehicle. 

 Trisvan asserts that, in construing this provision, the 

legislature's use of the word "total" commands that even in a 

single car accident the driver's UM/UIM coverage always be 

stacked onto other UM/UIM coverage. According to Trisvan, the 

8 purpose of the 1982 amendments to § 38.2-2206 was to "increase 

the total protection afforded to insurance claimants injured by 

negligent motorists. See 

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Nationwide Mutual Insurance v. Scott, 

234 Va. 573, 363 S.E.2d 703 (1988)." Therefore, Trisvan reasons, 

the General Assembly must have intended that, in calculating the 

extent to which a vehicle is underinsured, a driver's UM/UIM 

insurance would be considered to be "afforded" to his passengers 

even if the driver is the sole tortfeasor. We disagree. 

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 The increased insurance protection for injured claimants, to 

which Trisvan refers, was not an arbitrary expansion of recovery 

options. The 1982 amendments were enacted in response to a 

specific anomaly which had arisen following the adoption of 

mandatory uninsured motorist endorsements in automobile liability 

insurance policies. As explained in Scott, a person injured by 

an uninsured motorist could realize greater financial protection 

than if injured by an insured motorist, where the injured party 

had elected uninsured motorist coverage in an amount greater than 

the liability limits of the insured tortfeasor. 234 Va. at 575-

76, 363 S.E.2d at 704. The General Assembly in mandating the 

underinsurance endorsement corrected this anomaly by allowing a 

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claimant to access the "over-insurance" in his UM/UIM 

endorsement, even if the tortfeasor was insured. This 

legislation was not enacted to expand protection to injured 

parties generally. 

 Trisvan's construction of § 38.2-2206(B), requiring the 

UM/UIM endorsement applicable to the tortfeasor's motor vehicle 

to be stacked onto other available UM/UIM coverage, is also at 

odds with other portions of § 38.2-2206. Subsection (A) of that 

section states that the underinsurance endorsement 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 damage caused by "an uninsured 

motor vehicle" contemplates the existence of two motor vehicles, 

not the single vehicle suggested by Trisvan, when read in the 

context of the entire subsection. Subsection (A) provides that 

the amount of UM/UIM coverage can either be equal to or less than 

the amount of the liability coverage. It may not, in any case, 

exceed the amount of the liability coverage. Thus, when 

comparing the amounts of liability and UM/UIM coverage in the 

tortfeasor's policy applicable to his motor vehicle, that vehicle 

could not be "an underinsured motor vehicle."1

 The provisions of subsection (G) of § 38.2-2206 provide 

another example of the General Assembly's intentions regarding 

 1Compare Nationwide Mut. Ins. Co. v. Hill, 247 Va. 78, 

439 S.E.2d 335 (1994)(UM/UIM recovery allowed where two 

vehicles involved). 
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the use of UM/UIM coverage. That section gives the insurer a 

right of subrogation for the UM/UIM payment against the person 

causing the injury. Applying Trisvan's rationale, the insurer 

would have a subrogation right against its insured, the negligent 

driver. We do not believe the General Assembly intended such a 

result when it sought to eliminate the anomaly discussed above 

and allowed an insured to access its UM/UIM insurance coverage 

when injured by an underinsured motor vehicle. 

 Finally, our interpretation of § 38.2-2206(B) is consistent 

with the views of other courts in this regard. Policy provisions 

prohibiting recovery under both the liability and UM/UIM portions 

in a single vehicle accident have been upheld on both statutory 

13 and public policy grounds. See, e.g., Fidelity & Cas. Co. v. 

14 Streicher, 506 So.2d 92 (Fla. Dist. Ct. App. 1987), review

15 denied, 515 So.2d 231 (Fla. 1987); Myers v. State Farm Mut. Auto. 

16 Ins. Co., 336 N.W.2d 288 (Minn. 1983); Millers Cas. Ins. Co. of 

17 Texas v. Briggs, 665 P.2d 891 (Wash. 1983). 

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 For these reasons, we hold that in applying § 38.2-2206(B), 

a passenger injured in a single vehicle accident is not entitled 

to include the UM/UIM coverage contained in the tortfeasor's 

automobile liability insurance policy when determining the extent 

to which the tortfeasor's vehicle was underinsured. Accordingly, 

we will affirm the judgment of the trial court holding that 

Agway's total liability to Trisvan is $75,000. 

25 Affirmed.
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JUSTICE COMPTON, with whom JUSTICE KINSER joins, concurring. 

 I agree with the result of this appeal. However, I cannot 

subscribe to the rationale employed by the majority to reach the 

result. 

 In deciding this case, one must be careful to recognize the 

distinctions among bodily injury liability insurance coverage, 

uninsured motorist coverage for bodily injury, and underinsurance 

motorist coverage for bodily injury. 

 On April 9, 1994, Trisvan, the claimant, was a passenger in 

a motor vehicle operated by Smith, the tortfeasor. The vehicle 

left the road because of the alleged negligence of the tortfeasor 

and overturned injuring the claimant. No other vehicle was 

involved in the accident. 

 At the time, the vehicle operated by the tortfeasor was 

insured by Integon Indemnity Corporation. The policy had bodily 

injury liability limits of $25,000 for each person injured and a 

like amount of uninsured and underinsured motorist coverage for 

bodily injury. Those were the minimum limits required by the 

applicable financial responsibility statute. Code § 46.2-472(3). 

 Thus, the tortfeasor's vehicle was not an uninsured motor 

vehicle. 

 The claimant qualified as an insured under a "Family 

Automobile Policy" issued to his parents by Agway Insurance 

Company. As relevant here, that policy contained an endorsement 

for uninsured motorist coverage for bodily injury and an 
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endorsement for underinsured motorist coverage for bodily injury 

with a single limit of $100,000 for each person. 

 The claimant's injuries resulted in damages exceeding 

$125,000. Thus, Integon paid the claimant the limits of $25,000 

under its bodily injury liability coverage. Agway paid the 

claimant $75,000 under its uninsured/underinsured motorist 

coverage for bodily injury, claiming that was the full sum it 

owed. 

 The claimant contends he is entitled to collect a total of 

$100,000 from Agway. This declaratory judgment proceeding 

ensued, and was decided in favor of Agway on cross motions for 

summary judgment. 

 The controversy must be resolved by determining the amount 

that the claimant's vehicle was underinsured under Code § 38.2-

2206(B). According to the statute, a motor vehicle is 

underinsured "when, and to the extent that, the total amount of 

bodily injury . . . coverage applicable to the operation or use 

of the motor vehicle . . . is less than the total amount of 

uninsured motorist coverage afforded any person injured as a 

result of the operation or use of the vehicle." 

 Here, the tortfeasor's vehicle was an insured motor vehicle, 

not an uninsured motor vehicle under the Integon policy. Thus, 

the uninsured motorist coverage for the tortfeasor's vehicle was 

not coverage "afforded" the claimant. In other words, the 

$25,000 Integon uninsured motorist limit may not be added when 
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computing "the total amount" of "coverage" referred to in the 

statute to determine the extent to which the claimant's vehicle 

was underinsured. 

 Therefore, because the tortfeasor was insured, there is 

$75,000 underinsured motorist coverage available to the claimant. 

 Combining Integon's payment of its liability limits of $25,000 

with Agway's payment of $75,000 means that the claimant has 

received a sum equal to his uninsured motorist limit of $100,000. 

 A contrary ruling, viz., that a tortfeasor's uninsured motorist 

coverage is always applicable when determining the amount of 

underinsured motorist coverage available to an injured claimant, 

would render meaningless the distinction in coverage available 

under the uninsured or underinsured provisions of a policy or the 

statute. In sum, the claimant is not entitled to assume that the 

tortfeasor's vehicle is uninsured in order to be able to use 

Integon's uninsured motorist coverage when computing available 

underinsured motorist coverage. 

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 For the foregoing reasons, I would affirm the trial court's 

judgment that Agway has fully discharged its lawful obligation to 

the claimant.