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 Insurance 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 Insurance 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 entered on that date. Upon rehearing en banc, the commission’s 

decision is affirmed without opinion by an evenly divided Court. Accordingly, 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 Appeals 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 Building 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 file 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’ brief is filed. The appellant shall attach as an 

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the 

Court in this matter. It is further ordered that the appellant shall file twelve additional copies of the 

appendix previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 
COURT 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 BUILDING CORPORATION AND 

 BUILDING INSURANCE ASSOCIATION, INC. OPINION BY 

 JUDGE ROBERT P. FRANK 

TRAVELERS PROPERTY CASUALTY FEBRUARY 6, 2007 

 COMPANY OF AMERICA 

v. Record No. 1057-06-1 

MATTHEW L. BAILEY, 

 WILLIE M. THOMAS HOME IMPROVEMENTS AND 

 UNINSURED EMPLOYER’S FUND 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Gerard E.W. Voyer (Audrey Marcello; Taylor & Walker, P.C., on 

briefs), for appellant. 

 Andrew R. Blair (Blair Law Offices, on briefs), for appellees J.F. 

Schoch Building Corporation, Building Insurance 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. and 

Matthew L. Bailey. 

In this consolidated appeal, Travelers Property Casualty Company (Travelers) appeals 

two decisions of the Workers’ Compensation 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 renew 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. Graycon, Inc., the insured, 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 underwriter from Travelers offered the insured the 

opportunity to renew the policy. The insured inadvertently 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-related accident on September 17, 2004. 

 1

 Code § 65.2-804(B) states: 

No policy of insurance hereafter issued under the provisions 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 membership, except on thirty days’ 

notice to the employer and the Workers’ Compensation 

Commission, unless the employer has obtained other insurance and 

the Workers’ Compensation Commission 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 Improvements, the insured, effective from October 

25, 2003 through October 25, 2004. An underwriter for Travelers 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 expiration 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-related 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 phrase “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 commission 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 because Travelers did not file a commission 

Form 45H, the policies were not effectively terminated and Travelers was responsible for 

benefits associated with each compensable injury. From these decisions, Travelers appeals. 
- 4 - 

ANALYSIS

The narrow issue in these consolidated cases is whether the phrase “non-renewed by the 

insurer” in Code § 65.2-804(B) refers to only when the insurer initiates the non-renewal, or 

whether it is broad enough to encompass situations where the insured initiates the non-renewal. 

Put differently, is the insurer obligated to notify the commission and the insured every time the 

policy is not renewed, or only when the insurer/carrier initiates the non-renewal? 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 issue before us is the meaning of “non-renewed 

by the insurer.” We find that in all cases of non-renewals, the insurer must provide notification 

pursuant to Code § 65.2-804(B). 

This appeal requires that we reconcile two 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 order 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 determine the intent of the General 

Assembly from the words contained in the statute. In doing so, the 

various parts of the statute should be harmonized so that, if 

practicable, each is given a sensible and intelligent effect. Thus, 

“[a] statute is not to be construed by singling out a particular 

phrase; every part is presumed to have 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 meaning 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 that Code § 65.2-804(B) includes a notice and 

delay provision. The notice and delay requirements of Code § 65.2-804(B) protect the worker 

against a lapse in his employer’s insurance coverage where a workers’ compensation insurance 

policy is canceled or not renewed by giving the employer an opportunity to acquire other 

insurance and by giving the commission the opportunity 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 must 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 with the insurance requirements of the Act. However, if the 

employer subsequently cancels the insurance, employer shall immediately notify the commission 

of such cancellation. Every insurer 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 notice required under subsection (B) of this section 
- 6 - 

shall immediately forward a copy to his employees 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 statute 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 insurer. Subsection (A) 

remained unchanged. We interpret this legislative action to mean that the General Assembly 

contemplated that in the case of every non-renewal, the insurer was the party responsible for 

giving notice to the commission. Had the legislature intended that in cases in which the insured 

initiated a non-renewal, rendering 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 example in support of the commission’s ruling that 

subsection (B) requires the insurer to notify the 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 Travelers never notified employer of non-renewal. Had Travelers 

complied with the mandate of subsection (B), it would have notified employer and the 

commission of the status of the policy. Employer 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.’” Natrella 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 provisions, and fails to acknowledge the purpose of 

the notice provisions. 

CONCLUSION

 We conclude that Code § 65.2-804(B) requires that when the policy is not renewed, the 

insurer must notify the commission and the employer 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 affirm the commission’s decisions. 

Affirmed.
- 8 - 

Kelsey, J., dissenting. 

Travelers Property Casualty Company of America appeals two decisions of the Workers’ 

Compensation Commission requiring Travelers to provide workers’ compensation coverage 

beyond the expiration of its insurance policies. Finding no statutory 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 prior to its expiration. 

If accepted by the employer, the renewal would have extended the policy for another year. The 

employer failed to renew, mistakenly thinking it could do so after 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, arguing that its policy had expired 

because the employer failed to renew it. The employee’s claim, Travelers contended, should be 

compensated by other statutory employers or their insurance carriers. A deputy commissioner 

agreed with Travelers. On review, the full commission 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 expired 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 (Mathew 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 that Travelers failed to provide 

the employer and the commission notice of nonrenewal “by the insurer” as required by Code 

§ 65.2-804(B). On review, the full commission affirmed on the same basis. 

In both cases, the commission’s records demonstrate that the employers had filed proofof-coverage notices with the National Council for Compensation Insurance (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. LEXIS 4838, at *2 (April 23, 1998).3 NCCI’s proof-of-coverage records for the 

nonrenewed policies at issue specifically disclose their expiration dates. The commission, 

therefore, had notice of the expected expiration date of both policies. 

II. 

On appeal, Travelers argues that the commission misconstrued Code § 65.2-804(B) 

because that statute requires the insurer to notify 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 UEF 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) (reviewing 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 matter of statutory interpretation we review de novo. See

Mattaponi Indian Tribe v. Commonwealth, 43 Va. App. 690, 707, 601 S.E.2d 667, 675 (2004) 

(recognizing that “pure statutory interpretation is the prerogative of the judiciary”). 

Our analysis should begin, “as always, with the 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 strive to give that language a 

‘literal construction’ unless doing so ‘would involve a manifest absurdity.’” 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 that 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 insurer.” That did not happen here. 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 opportunity to renew, but both 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 insurance 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 Eric 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 insured knew the policy “was about to expire well 

before the expiration date but failed to renew the policy by paying or tendering 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 the 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 insurer or by the employer. “We 

believe this to be the most reasonable approach,” the commission reasoned, “because it is the 

insurer who performs the final act of issuing or not issuing the policy.” After all, the 

commission observed, “ultimately control over renewal and nonrenewal is with the insurer.” 

I cannot concur with this reasoning. Renewing a policy is a bilateral act of both 

contracting parties. Together the insured and insurer must agree to extend the expiration date of 

the existing policy or to substitute in its place a new policy beginning upon the expiration of the 

old one. Absent a contrary provision in the policy, “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. Thus, when “the insurer has clearly manifested its 

willingness to renew a policy but the insured failed 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, the appellees argue that a literal reading of 

“by the insurer” undermines the overriding statutory policy of ensuring that adequate insurance 

funds always remain available for employees with legitimate claims. Though the point seems to 

me overstated,4

 I see no need to engage it directly. In Virginia, “when a statutory 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 may 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 statute cannot be judicially expanded “simply 

because it may seem to us that a similar policy applies, or upon the speculation that if the 

legislature had thought of it, very likely broader words would have 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 intent by what the statute says and 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 literal 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 absurd about the General Assembly’s decision to 

limit the insurer’s notification duty to nonrenewals “by the insurer.” The employer needs no 

notice of nonrenewals “by the employer.” Nor does the commission. Code § 65.2-804(A) 

requires the employer to report annually on insurance coverage. The required filing specifically 

alerts the commission to the policy expiration date. Unlike a cancellation, 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 NCCI records the day after the 

previously announced expiration of the earlier year’s policy. 

It is true, as the commission points out, that an employer might misread the insurer’s 

initial notice offering to renew the policy and mistakenly believe it need not respond to the offer 

for the renewal to take place. Under such circumstances, 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 policies 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 unambiguous language in Code § 65.2-804(B) 

governing cancellations “by the insurer” did not apply to cancellations 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 for the two disputed injuries. For these reasons, I respectfully 

dissent.