Tuesday 5th June, 2007.

Travelers Property Casualty Company of America, Appellant, against Record No. 1056-06-1 Claim No. 220-77-37 Leslie C. Ely, Graycon, Inc., J.F. Schoch Building Corporation and Building Insura nce Association, Inc., Appellees. Travelers Property Casualty Company of America, Appellant, against Record No. 1057-06-1 Claim No. 221-88-76 Matthew L. Bailey, Willie M. Thomas Home Improvements and Uninsured Employer’s Fund, Appellees.

Upon a Rehearing En Banc Before Chief Judge Felton, Judges Benton, Elder, Frank, Humphreys, Clements, Kelsey, Haley, Petty, and Beales

Gerard E.W. Voyer (Audrey Marcello ; Taylor & Walker, P.C., on brief), for appellant. Andrew R. Blair (Blair Law Offices, on brief), for appellees J.F. Schoch Building Corporation, Building Insuran ce Association, Inc. and Uninsured Employer’s Fund. Lisa Frisina Clement (Kari Lou Frank; PennStuart, on brief), for appellee Willie M. Thomas Home Improvement. No brief or argument for appellees Leslie C. Ely, Graycon, Inc., or Matthew L. Bailey.

By opinion dated February 6, 2007, a divided panel of this Court affirmed the decision of the Virginia Workers’ Compensation Commission. Travelers Property Cas. of Amer. v. Ely , 49 Va. App. 271, 640 S.E.2d 520 (2007). On March 13, 2007, we granted rehearing en banc , vacated the panel-2- opinion, and stayed the mandate ente red on that date. Upon rehearing en banc , the commission’s decision is affirmed without opinion by an evenly di vided Court. Accordingl y, the Court’s February 6, 2007 mandate is vacated. The appellant shall pay to appellees Leslie C. Ely and Matthew L. Bailey damages according to law. Judges Elder, Frank, Humphreys, Petty, and Beales voted to affirm the commission’s decision. Chief Judge Felton, Judges Benton, Clements , Kelsey, and Haley voted to reverse the

commission’s decision. This order shall be published and certified to the Virginia Workers’ Compensation Commission.

A Copy,

Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 13th 

### day of March, 2007

.

Travelers Property Casualty Company of America, Appellant, against Record No. 1056-06-1 Claim No. 220-77-37 Leslie C. Ely, Graycon, Inc. and J. F. Schoch Building Corporation and Build ing Insurance Association, Inc., Appellees.

Travelers Property Casualty Company of America, Appellant, against Record No. 1057-06-1 Circuit Court No. 221-88-76 Matthew L. Bailey, Willie M. Thomas Home Improvements and Uninsured Employers’ Fund, Appellees. Upon a Petition for Rehearing En Banc

Before the Full Court

On February 16, 2007 came the appellant, by counsel, and filed a petition requesting that the Court set aside the judgment rendered herein on February 6, 2007, and grant a rehearing en banc thereof. On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on February 6, 2007 is stayed pending the decision of the Court en banc , and the appeal is

reinstated on the docket of this Court. Notwithstanding the provisions of Rule 5A: 35, the following briefing schedule hereby is established: Appellant shall fi le an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellees shall file an appellee’s brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc-2- within 14 days of the date on which the appellees’ br ief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion pr eviously rendered by the

Court in this matter. It is further ordered that th e appellant shall file twelve additional copies of the appendix previously filed in this case.

A Copy,

Teste: Cynthia L. McCoy, Clerk By: Deputy ClerkCOURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Beales Argued at Chesapeake, Virginia

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

v. Record No. 1056-06-1 LESLIE C. ELY, GRAYCON, INC., J.F. SCHOCH BUILDI NG CORPORATION AND BUILDING INSUR ANCE ASSOCIATION, INC. OPINION BY JUDGE ROBERT P. FRANK TRAVELERS PROPERTY CAS UALTY FEBRUARY 6, 2007 COMPANY OF AMERICA

v. Record No. 1057-06-1 MATTHEW L. BAILEY, WILLIE M. THOMAS HOME IMPROV EMENTS AND UNINSURED EM PLOYER’S FUND

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Gerard E.W. Voyer (Audrey Marc ello; Taylor & Walker, P.C., on briefs), for appellant. Andrew R. Blair (Blair Law Offi ces, on briefs), fo r appellees J.F. Schoch Building Corporation, Bu ilding Insurance As sociation, Inc. and Uninsured Employer’s Fund. Lisa Frisina Clement (Kari Lou Frank; PennStuart, on brief), for appellee Willie M. Thomas Home Improvement. No brief or argument for appellees Leslie C. Ely, Graycon, Inc. and Matthew L. Bailey.

In this consolidated appeal, Travelers Pr operty Casualty Company (Travelers) appeals two decisions of the Workers’ Compensati on Commission finding that Travelers failed to- 2 - comply with the notice requirements of Code § 65.2-804(B). 1 On appeal, Travelers contends that upon the insured’s/employer’s failure to re new policies of insurance, Travelers was not required to file a Form 45H of non-renewal with the commission. We hold the commission properly found that Travelers was required to file a Form 45H in each case, that the failure to do so kept the existing policies in effect, and that Travelers is responsible for the payment of benefits. Therefore, we affirm the awards.

BACKGROUND Claimant Leslie C. Ely The material facts are not in dispute. Gr aycon, Inc., the insure d, obtained a workers’ compensation insurance policy with Travelers effective from July 30, 2003 through July 30, 2004. Prior to the expiration of the policy, an unde rwriter from Travelers offered the insured the opportunity to renew the policy. The insured inadve rtently did not remit a premium to Travelers, and Travelers took no action to renew the policy. Travelers did not file a Form 45H non-renewal

notice with the commission. Claimant was injured in a work-re lated accident on September 17, 2004.

1 Code § 65.2-804(B) states: No policy of insurance hereafter i ssued under the provi sions of this title, nor any membership agreement in a group self-insurance association, shall be cancelled or non-renewed by the insurer issuing such policy or by the group self-insurance association canceling or nonrenewing such memb ership, except on thirty days’ notice to the employer and the Workers’ Compensation Commission, unless the employer ha s obtained other insurance and the Workers’ Compensation Commissi on is notified of that fact by the insurer assuming the risk, or unless, in the event of cancellation, said cancellation is for nonpayment of premiums; then ten days’ notice shall be given the employer and the Workers’ Compensation Commission.- 3 - Claimant Mathew L. Bailey The material facts are not in dispute. Travelers issued a workers’ compensation insurance policy to Willie M. Thomas Home Impr ovements, the insured, effective from October 25, 2003 through October 25, 2004. An underwriter for Tr avelers sent notice to the insured that the policy was about to expire and offered to renew the policy. Travelers received a premium payment on December 18, 2004, after the policy’s expi ration date. Prior to receiving this late premium payment, Travelers did not file a Form 45H non-renewal notice with the commission. Claimant was injured in a work-re lated incident on December 16, 2004. Findings by the Full Commission In each case, the commission interpreted the language of Code § 65.2-804(B) to

determine whether the insured or Travelers was responsible for notifying the commission upon non-renewal of a policy. The full commission found that the operative ph rase “non-renewed by the insurer” is ambiguous, stating: The language of [Code §] 65.2-804 can be interpreted to mean non-renewed at the election of the insurer or that the insurer did not renew the policy, whether it was at the behest of the employer or insurer, as a result of an oversight by the parties, or for other reasons. In interpreting Code § 65.2-804(B), the commissi on looked to the intent of the statute and determined that “all non-renewals are ‘non-renew[ als] by the insurer’ as contemplated by [Code] § 65.2-804(B).”

The commission found in each case that becau se Travelers did not file a commission Form 45H, the policies were not effectively terminated and Travelers was responsible for benefits associated with each compensable inju ry. From these decisions, Travelers appeals.- 4 - ANALYSIS

The narrow issue in these consolidated cases is whether the phras e “non-renewed by the insurer” in Code § 65.2-804(B) refers to only wh en the insurer initiate s the non-renewal, or whether it is broad enough to encompass situatio ns where the insured initiates the non-renewal. Put differently, is the insurer obligated to no tify the commission and the insured every time the policy is not renewed, or only when the insurer/ca rrier initiates the non-re newal? In the cases before us, the insured did not pay the insurance premium prior to the expiration date of their respective policies. As we stated above, our resolution of the i ssue before us is the meaning of “non-renewed by the insurer.” We find that in all cases of non-renewals, the insurer mu st provide notification pursuant to Code § 65.2-804(B). This appeal requires that we reconcile tw o neighboring provisions of the Workers’ Compensation Act: Code § 65.2-804(A) dealing with notice requirements when an insured cancels his coverage; and Code § 65.2-804(B) dealing with notice requirements when the insurer cancels or does not renew the coverage. In or der to reconcile the statutes, we apply the applicable rules of statutory construction.

It is well established that a statute should be read and considered as a whole, and the language of a statute should be examined in its entirety to dete rmine the intent of the General Assembly from the words contained in the statute. In doing so, the various parts of the statute s hould be harmonized so that, if practicable, each is given a sensible and intelligent effect. Thus, “[a] statute is not to be cons trued by singling out a particular phrase; every part is presumed to ha ve some effect and is not to be disregarded unless absolutely necessary.” Commonwealth v. Zamani , 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998); accord Jeneary v. Commonwealth , 262 Va. 418, 430, 551 S.E.2d 321, 327 (2001). Dep’t of Med. Assistance v. Beverly Healthcare , 268 Va. 278, 285, 601 S.E.2d 604, 608 (2004) (other citations omitted).- 5 - “We consider the language of each statute at issue to determine the General Assembly’s intent from the plain and natural meaning of the words used. When the language of a statute is unambiguous, courts are bound by the plain meani ng of that language.” Hoffman Family, LLC v. City of Alexandria , 272 Va. 274, 284, 634 S.E.2d 722, 727 (2006) (citations omitted). Because statutory interpretation presents a pure question of law, it is subject to de novo review by this Court. Boynton v. Kilgore , 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006). Our analysis begins with the premise that the Workmen’s Compensation Act was adopted for the protection of workers and their dependents. Hartford Co. v. Fidelity , 223 Va. 641, 643, 292 S.E.2d 327, 328 (1982). It is undisputed th at Code § 65.2-804(B) includes a notice and delay provision. The notice a nd delay requirements of Code § 65.2-804(B) protect the worker against a lapse in his employer’s insurance cove rage where a workers’ compensation insurance policy is canceled or not rene wed by giving the employer an opportunity to acquire other insurance and by giving the commission the oppor tunity to timely invoke its enforcement authority. Pennsylvania Mfrs. Ass’n v. Waldron , 16 Va. App. 991, 994, 434 S.E.2d 690, 691 (1993). In interpreting this statutory language, we mu st review the entire statutory scheme. We begin by reviewing all subsections of Code § 65.2-804 in order to understand the import of the notice provisions. Code § 65.2-804(A)(1) requires each insured to file annually with the commission evidence of compliance w ith the insurance requirements of the Act. However, if the employer subsequently cancels the insurance, employer shall immediately notify the commission of such cancellation. Every in surer must also notify the commission “immediately upon the cancellation of any policy issued by it . . . .” Additionally, Code § 65.2-804(A)(2) requires the employer, prior to canceling the insurance, to give employees 30 days written notice of its intent to cancel. “Every employer who received the no tice required under subsecti on (B) of this section- 6 - shall immediately forward a copy to his employ ees covered.” Thus, subsection (A) addresses notice requirements when the employer cancels the insurance. Prior to 1993, Code § 65.2-804(B) provided that the insurer notify the commission upon cancellation initiated exclusively by the insurer. During that same time, Code § 65.2-804(A) addressed the notice requirements when the insured exclusively initiated cancellation. In 1993, however, the General Assembly amended the st atute to also include notification to the commission upon “non-renewal” of a policy. Importantly, the legislature changed only subsection (B), the provision that deals with cancellation by the insu rer. Subsection (A) remained unchanged. We interpret this legisla tive action to mean that the General Assembly contemplated that in the case of every non-rene wal, the insurer was the party responsible for giving notice to the commission. Had the legislatur e intended that in cases in which the insured initiated a non-renewal, renderi ng the insured rather than the insurer responsible for giving notice, then the General Assembly would have also amended subsection (A), which addresses actions taken by the insured. Thus, we find that “non-renewal by the insurer” as stated in subsection (B) contemplates all non-renewals. Claimant Ely’s case presents an ideal exam ple in support of the commission’s ruling that subsection (B) requires the insurer to notify th e commission in all non-renewals. While the insured/employer acknowledged receiving Travelers’ renewal package prior to the expiration of the policy, employer erroneously understood the policy had been renewed. A representative

from Travelers testified that Tr avelers never notified employer of non-renewal. Had Travelers complied with the mandate of subsection (B ), it would have notif ied employer and the commission of the status of the policy. Employe r would then have had the opportunity to secure another policy. This notice also would have alerted the commission to employer’s non-compliance.- 7 - Travelers’ suggested interpretation fails to ‘“promote the ability of the enactment to remedy the mischief at which [Code § 65.2-804] is directed.’” Natr ella v. Bd. of Zoning Appeals , 231 Va. 451, 461, 345 S.E.2d 295, 301 (1986) (quoting Jones v. Conwell , 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). Such an interpretation ignores the commission’s enforcement duties, deprives the employer of the delay prov isions, and fails to acknowledge the purpose of the notice provisions.

CONCLUSION We conclude that Code § 65.2-804(B) requires that when th e policy is not renewed, the insurer must notify the commission and the empl oyer of the non-renewal, irrespective of who initiated the non-renewal. Thus, the policy of each claimant was in effect on the date of each claimant’s injury. We affi rm the commission’s decisions.

Affirmed.- 8 - Kelsey, J., dissenting. Travelers Property Casualty Company of Amer ica appeals two decisions of the Workers’ Compensation Commission requirin g Travelers to provide workers’ compensation coverage beyond the expiration of its insura nce policies. Finding no statutor y basis for this compulsory coverage, I respectfully dissent.

I. This consolidated appeal includes two cases . The first involves an insurance policy issued by Travelers to Graycon, Inc. By its terms, the policy expired on July 30, 2004. In May 2004, Travelers offered the employer an opportunity to renew the policy prio r to its expiration. If accepted by the employer, the renewal would have extended the policy for another year. The employer failed to renew, mistakenly thi nking it could do so afte r the policy expired. In September 2004, a month and a half after the policy expired, an employee (Leslie C. Ely) injured himself on the job. Travelers declined coverage, ar guing that its policy had expired because the employer failed to renew it. The em ployee’s claim, Traveler s contended, should be compensated by other statutory employers or th eir insurance carriers. A deputy commissioner agreed with Travelers. On review, the full commi ssion reversed and held that Travelers failed to provide the employer and the commission notice of nonrenewal “by the insurer” as required by Code § 65.2-804(B). Travelers must pay the claim, the commission concluded. The second case involves a policy issued by Travelers to Willie M. Thomas Home Improvements. By its terms, this policy expi red on October 25, 2004. More than two months prior to the policy expiration, Travelers offered the employer an opportunity to renew the policy for another year of coverage. The employer failed to respond to the offer. About a month and a half after the policy expired, an employee (Mathe w L. Bailey) sustained a job-related injury. Two days later, the employer asked Travelers to renew the prior policy and to provide retroactive- 9 - coverage for the employee’s injury. Travelers refused, arguing that the claim should be paid by the Uninsured Employer’s Fund (“UEF”) pursuant to Code § 65.2-1203. 2 A deputy

commissioner ordered Travelers to cover the claim, concluding th at Travelers failed to provide the employer and the commission notice of nonrenew al “by the insurer” as required by Code § 65.2-804(B). On review, the full commi ssion affirmed on the same basis. In both cases, the commission’s records demons trate that the employers had filed proofof-coverage notices with the National Council fo r Compensation Insuranc e (NCCI), with whom

the commission has outsourced much of its data management duties with respect to insurance coverage. See generally Villwock v. Ins. Co. of N. Am./Cigna , 22 Va. App. 127, 130-31, 468 S.E.2d 130, 132 (1996). The commission regularly uses NCCI’s “Proof of Coverage Policy Information System.” Squire v. Elco Concrete Co., Inc. , VWC File No. 185-16-50, 1998 Va. Wrk. Comp. L EXIS 4838, at *2 (April 23, 1998). 3 NCCI’s proof-of-coverage records for the nonrenewed policies at issue spec ifically disclose their expi ration dates. The commission, therefore, had notice of the expected expiration date of both policies.

II. On appeal, Travelers argues that the co mmission misconstrue d Code § 65.2-804(B) because that statute requires the insurer to no tify the insured and the commission only when the policy has been “cancelled or nonrenewed by the insurer .” Id. (emphasis added). This argument

2 Funded by “taxes levied upon insurers,” Uninsured Employer’s Fund v. Flanary , 27 Va. App. 201, 206, 497 S.E.2d 912, 914 (1998), the UE F provides compensation “to claimants for benefits awarded against an employer which has breached its duty ‘to secure compensation insurance.’” Uninsured Employer’s Fund v. Mounts , 255 Va. 254, 258, 497 S.E.2d 464, 466 (1998) (citation omitted).

3 See also Celis v. Manganaro Corp. Md. , VWC File No. 197-01-57, 2000 WL 358266 (Va. Wrk. Comp. Feb. 18, 2000) (revi ewing NCCI records to identify insurance carrier); In Re: PRC, Inc. , VWC File No. E0203-57490, 2003 WL 21811823 (Va. Wrk. Comp. July 3, 2003) (using the “Commission’s NCCI records” to establish employer was insured).- 10 - presents a pure question of law, a matte r of statutory interp retation we review de novo . See Mattaponi Indian Tr ibe v. Commonwealth , 43 Va. App. 690, 707, 601 S.E.2d 667, 675 (2004) (recognizing that “pure statutory interpreta tion is the prerogative of the judiciary”). Our analysis should begin, “as always, with th e language of the statute.” Meador v. Va. Birth-Related Neurological Injury Comp. Program , 44 Va. App. 149, 153-54, 604 S.E.2d 88, 90 (2004) (citation omitted). Working from the statutory text, “we stri ve to give that language a ‘literal construction’ unless doing so ‘would involve a manifest absu rdity.’” Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield , 42 Va. App. 264, 276, 590 S.E.2d 631, 638 (2004) (citation omitted). By literal, we mean the words “should be given their ‘common, ordinary and accepted’” understanding. Meador , 44 Va. App. at 154, 604 S.E.2d at 91 (citation omitted). This textualist approach presumes the legislature “‘chose, with care,’ the specific words of the statute.” Kane v. Szymczak , 41 Va. App. 365, 371, 585 S.E.2d 349, 352-53 (2003) (citations omitted). Guided by these principles, I would hold th at Code § 65.2-804(B) means just what it says: An insurer must notify the employer and commission only when the policy has been cancelled or nonrenewed “by the in surer.” That did not happen he re. Travelers did nothing to

nonrenew either of the two policies at issue in this consolidated appeal. Just the opposite is true. Travelers timely offered the employers the opport unity to renew, but bot h failed to do so. The policies were nonrenewed solely by the actions or inactions of the employers, not the insurer. Under generally accepted principles of insu rance law, extended coverage cannot be judicially imposed on an insurer that expressly “offered a renewal but the insureds permitted the policy to expire on its own terms.” 3 Er ic Mills Holmes, Appleman on Insurance § 16.5, at 321 (2d ed. 1998). “The statutory notice requirement applies only to policies that are not renewed by

the insurer and not those which are not renewed by the insured .” Id. (emphasis added). Notice- 11 - statutes may not extend coverage when the insu red knew the policy “was about to expire well before the expiration date but failed to renew th e policy by paying or tend ering the premium.” 2 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 29:8, at 29-14 (3d ed. 1995). When an

insurer offers to renew and the insured fails to take the necessary steps to accept the offer, the policy has been nonrenewed by the insured, not “ by the insurer.” Axson v. A. Mortgage Co.,

Inc. , 441 S.E.2d 193, 194 (S.C. App.), aff’d , 449 S.E.2d 491 (S.C. 1994). In my opinion, this generally accepted view is the most natural reading of the by-the-insurer qualification to the notice requirement of Code § 65.2-804(B). The commission adopted a contrary view on th e premise that the phrase “by the insurer” was ambiguous. The commission resolved this ambiguity by construing the phrase “by the insurer” to apply to all nonrenewals

⎯ whether caused by the insure r or by the employer. “We believe this to be the most reasonable appro ach,” the commission reasoned, “because it is the insurer who performs the final act of issuing or not issuing the polic y.” After all, the commission observed, “ultimately control over rene wal and nonrenewal is with the insurer.”

I cannot concur with this reasoning. Renewing a policy is a bilateral act of both contracting parties. Together th e insured and insurer must agree to extend the expiration date of the existing policy or to substitute in its pl ace a new policy beginning upon the expiration of the old one. Absent a contrary provision in the polic y, “neither party has any right to require a

renewal” and “neither is bound to renew the contract.” Russ & Segalla, supra , § 29:5, at 29-8. In contrast, a nonrenewal of a policy can be (and usually is) a wholly unilateral act by one of the two contracting parties. The failure of either party to agree dooms a renewal. The nonrenewal decision, therefore, is not within the ultimate control of the insurer any more than it

is in the ultimate control of the insured. T hus, when “the insurer has clearly manifested its willingness to renew a policy but the insured faile d to accept the offer in a timely manner, the- 12 - policy will lapse upon the expiration of the policy period.” Holmes, supra , § 16.5, at 321. When this occurs, the policy is nonrenewed by the insured . A nonrenewal by the insured does not require, as the commission reasoned, some “final act” by the insurer. It requires no act at all by

the insurer. In defense of the commission’s interpretation, th e appellees argue that a literal reading of “by the insurer” undermi nes the overriding statutory policy of ensuring that adequate insurance funds always remain available for employees wi th legitimate claims. Though the point seems to me overstated, 4 I see no need to engage it directly. In Virginia, “when a st atutory text speaks clearly on a subject, ‘effect must be given to it regardless of what courts think of its wisdom or policy.’” South v. Commonwealth , 47 Va. App. 247, 251-52, 623 S.E.2d 419, 421 (2005) (quoting Temple v. City of Petersburg , 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944)), remanded

for resentencing , 272 Va. 1, 630 S.E.2d 318 (2006). “We can only administer the law as it is written.” Uninsured Employer’s Fund v. Wilson , 46 Va. App. 500, 506, 619 S.E.2d 476, 479 (2005) (citation omitted). “Whether it ‘may or ma y not be better public policy’ to do otherwise, ‘such judgments are not ours to make.’” Id. (citation omitted). Along the same lines, the meaning of the stat ute cannot be judicially expanded “simply because it may seem to us that a similar polic y applies, or upon the speculation that if the legislature had thought of it, very likely broader words would ha ve been used.” Franklin & Pittsylvania Ry. Co. v. Shoemaker , 156 Va. 619, 624, 159 S.E. 100, 102 (1931) (quoting McBoyle v. United States , 283 U.S. 25, 27 (1931) (Holmes, J.)). For me, the “question here is not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative in tent by what the statute says a nd not by what we think it should

4 See supra , note 2, at 9.- 13 - have said.” South , 47 Va. App. at 252, 623 S.E.2d at 421 (quoting Carter v. Nelms , 204 Va. 338, 346, 131 S.E.2d 401, 406 (1963)). 5 That said, I acknowledge that literalism has its limits. While undisturbed by the mere banter of policy debates, a lite ral reading of a statute should not be adopted when “doing so ‘would involve a manifest absurdity.’” Meador , 44 Va. App. at 154, 604 S.E.2d at 91 (citation omitted). In this case, however, I see nothing ab surd about the General Assembly’s decision to limit the insurer’s notification duty to nonrenew als “by the insurer.” The employer needs no notice of nonrenewals “by th e employer.” Nor does the commission. Code § 65.2-804(A) requires the employer to report annually on insura nce coverage. The required filing specifically alerts the commission to the polic y expiration date. Unlike a can cellation, which can occur any time, a nonrenewal takes place at the end of the policy term. An employer’s failure to renew a policy, therefore, is something the commission could know from N CCI records the day after the previously announced expiration of the earlier year’s policy. It is true, as the commissi on points out, that an employer might misread the insurer’s initial notice offering to renew the policy and mi stakenly believe it need not respond to the offer for the renewal to take place. Under such ci rcumstances, a final notice of nonrenewal by the insurer to the employer may prompt the employer to discover its mistake and cause it to correct the problem before a lapse in coverage occurs. This hypothesis, however, falters even under the commission’s interpretation of Code § 65.2-804(B). As was true for both Travelers policie s at issue here, an insurer’s offer to renew

5 We made a similar point in Pa. Mfrs. Ass’n v. Waldron , 16 Va. App. 991, 995-96, 434 S.E.2d 690, 692-93 (1993), holding that the un ambiguous language in Code § 65.2-804(B) governing cancellations “by the in surer” did not apply to cancel lations by the employer. The commission’s “standard policy” of equating the two, for purposes of enhancing its administrative oversight role, could not supersede the plain meaning of the statute. Id. at 996 & n.4, 434 S.E.2d at 692-93 & n.4.- 14 - can usually be accepted by the employer at any time prior to the expiration of the policy term.

The insurer would not know whether the offer has been accepted until the last day. A subsection (B) notice of nonrenewal must be made 30 days prior to the expiration of the policy term. The only way an insurer could file the notice on time

⎯ while still giving the employer its right to accept the renewal offer up until the last day

⎯ is to do something the statute nowhere contemplates, much less permits: to notify the commission and employer of a potential nonrenewal of the policy, which may or may not become an actual nonrenewal depending on what happens over the course of the last month of the policy term.

III. Because Travelers did not violate Code § 65.2-804(B), I believe the commission erred in ordering the two Travelers policies in this case to remain in effect past their expiration dates for purposes of providing coverage fo r the two disputed injuries. For these reasons, I respectfully

dissent.