_______________ 

 

 

 

 

 

____________________________________________________________ 

 

 

 

____________________________________________________________ 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2014 Term FILED 

February 5, 2014 

released at 3:00 p.m. 

No. 12-1500 RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

_______________ OF WEST VIRGINIA 

UNITED SERVICES AUTOMOBILE ASSOCIATION,
 

Defendant Below, Petitioner
 

v. 

KIMBERLY LUCAS,
 

Plaintiff Below, Respondent
 

Appeal from the Circuit Court of Cabell County
 

The Honorable F. Jane Hustead, Judge
 

Civil Action No. 08-C-528
 

AFFIRMED
 

Submitted: January 14, 2014
 

Filed: February 5, 2014
 

Daniel J. Konrad, Esq. Neil R. Bouchillon, Esq.
 

Anna M. Price, Esq. Amy C. Crossan, Esq.
 

Huddleston Bolen LLP Bouchillon, Crossan & Colburn, L.C.
 

Huntington, West Virginia Huntington, West Virginia
 

Counsel for the Petitioner Counsel for the Respondent
 

JUSTICE KETCHUM delivered the Opinion of the Court.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “A statute that is ambiguous must be construed before it can be 

applied.” Syllabus Point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). 

2. “Where a statute is of doubtful meaning, the contemporaneous 

construction placed thereon by the officers of government charged with its execution is 

entitled to great weight, and will not be disregarded or overthrown unless it is clear that 

such construction is erroneous.” Syllabus Point 7, Evans v. Hutchinson, 158 W.Va. 359, 

360, 214 S.E.2d 453, 456 (1975). 

3. “Once a disputed regulation is legislatively approved, it has the force 

of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more 

than mere deference; it is entitled to controlling weight. As authorized by legislation, a 

legislative rule should be ignored only if the agency has exceeded its constitutional or 

statutory authority or is arbitrary or capricious.” Syllabus Point 2, W.Va. Health Care 

Cost Review Auth. v. Boone Mem’l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996). 

4. When a motor vehicle liability policy has been in existence for a 

continuous period of two or more years, W.Va. Code § 33-6-36 [1993] requires an insurer 

to notify a named insured and the spouse of a named insured, upon any change or 

termination in coverage, of the right of the named insured or spouse to request a separate 

policy in the event of either: (a) the named insured’s death; (b) the legal separation of the 

named insured and spouse; or (c) the termination of the named insured and spouse’s 

marital relationship. 

i 
 

 

 

 

 

 

 

 

 

 

 

5. When a motor vehicle liability policy has been in existence for a 

continuous period of two or more years, W.Va. Code § 33-6-36 [1993] requires an 

insurer, upon request, to issue a separate policy to a named insured or the spouse of a 

named insured when either: (a) the named insured has died; (b) the named insured and 

spouse have legally separated; or (c) the named insured and spouse have terminated their 

marital relationship. The named insured or spouse must request their own separate policy 

within 30 days of the expiration or termination of the policy. 

6. “Where there has been an invalid cancellation of an automobile 

liability insurance policy, the policy remains in effect until the end of its term or until a 

valid cancellation notice is perfected, whichever event first occurs.” Syllabus Point 4, 

Dairyland Ins. Co. v. Conley, 218 W.Va. 252, 624 S.E.2d 599 (2005). 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Justice Ketchum: 

In this appeal from the Circuit Court of Cabell County, we are asked to 

review a declaratory judgment order against a motor vehicle liability insurer. As set forth 

below, we affirm the circuit court’s declaratory judgment order. 

I.
 

FACTUAL AND PROCEDURAL BACKGROUND
 

On October 23, 2007, Francis McComas, Jr., lost control of his vehicle, 

hydroplaned on a rain-slicked road, and collided head-on with plaintiff Kimberly Lucas’s 

vehicle. Mr. McComas was killed in the collision. Ms. Lucas was seriously injured, and 

she later filed a lawsuit against the estate of Mr. McComas. In her lawsuit, she included a 

declaratory judgment count against an insurance company, defendant United Services 

Automobile Association (“USAA”). The plaintiff contended that a USAA motor vehicle 

policy provided liability coverage for Mr. McComas’s negligence. 

In this case, we are asked to interpret W.Va. Code § 33-6-36 [1993], a 

statute which, in certain circumstances, requires insurance companies to continue motor 

vehicle liability coverage for a spouse after the death of, or separation or divorce from, 

the named insured. Shortly before the collision with plaintiff Lucas, Mr. McComas had 

separated from and then divorced a USAA named insured, and USAA had cancelled Mr. 

McComas’s liability coverage. The parties ask us to discern whether USAA was required 

by this statute to notify Mr. McComas of his right to buy a separate liability insurance 

policy. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The USAA motor vehicle policy in question was issued to Felecity Cooper 

in 2004. On February 18, 2006, Felecity and Mr. McComas were married, and Mr. 

McComas was added to Felecity’s USAA policy as an “operator.” Felecity was listed on 

the policy’s declarations page as the “Named Insured,” and both Felecity and Mr. 

McComas were listed as “operators.” 

Felecity and Mr. McComas separated in May 2007. Approximately 18 

months after adding Mr. McComas to her USAA policy, on August 17, 2007, Felecity 

contacted USAA by telephone and said that she and Mr. McComas had separated and 

were getting divorced. She asked USAA to remove Mr. McComas from the policy, and 

gave USAA an address where Mr. McComas could be contacted. Effective that same 

day, USAA removed Mr. McComas from Felecity’s policy. USAA never sent any notice 

to Mr. McComas’s new address indicating that his coverage had been cancelled.1 

Furthermore, USAA never sent Mr. McComas a notice advising him of his right to 

purchase a new USAA policy separate from Felecity with the same coverages. 

1 The appendix record indicates that, even though USAA was aware of Mr. 

McComas’s new address, it continued to send all correspondence to Felecity’s address. 

First, it sent a new declarations page to Felecity showing Mr. McComas had been 

removed as an operator. Then it sent a separate declarations page providing coverage to 

Mr. McComas for the period August 18, 2007 to February 18, 2008, with the same 

coverage already in place under the prior USAA policy. Then, three days later on August 

20th , it sent Mr. McComas a letter – again, to Felecity’s address – saying USAA 

understood he and Felecity were separated and that the company was “dedicated to 

ensuring a smooth transition of your insurance policy.” Ten days after that, USAA sent a 

letter to Mr. McComas at the same incorrect address saying the policy had been cancelled 

effective August 18, 2007. There is nothing in the record to suggest that any notices were 

sent to the correct address, or that Mr. McComas ever received any of these documents 

from USAA. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. McComas and Felecity were formally divorced by a family court on 

October 16, 2007. Seven days later Mr. McComas died in the head-on collision with the 

plaintiff, Ms. Lucas. 

When the plaintiff filed her lawsuit against Mr. McComas’s estate and 

USAA, she asserted in her declaratory judgment count that W.Va. Code § 33-6-36 

requires a motor vehicle insurer to notify an insured, “upon any change or termination of 

the policy” arising from the “separation or termination of the marital relationship of the 

named insured,” of the insured’s right to continue with the same coverage under a new 

policy. The plaintiff contended that W.Va. Code § 33-6-36 applied to any motor vehicle 

insurance policy that had been in effect “for a period of two or more years.” The plaintiff 

asked the circuit court for a declaratory judgment that USAA was obligated to provide 

liability insurance coverage for the collision because it had failed to properly notify Mr. 

McComas, after his separation and divorce, that his coverage had been cancelled and that 

he had a right to purchase a new USAA motor vehicle policy with the same coverage. 

USAA filed a motion for summary judgment challenging the plaintiff’s 

interpretation of W.Va. Code § 33-6-36. USAA contended that the statute only applied to 

a “spouse covered by a motor vehicle liability policy for a period of two or more years.” 

USAA conceded that its policy with Felecity had been in effect for more than two years 

in August 2007 when she cancelled coverage for Mr. McComas. However, Felecity only 

added Mr. McComas to her USAA policy after their February 2006 marriage, and he was 

removed from the policy 18 months later. Accordingly, USAA argued that it was neither 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

required by the statute to notify Mr. McComas of any right to purchase a new policy, nor 

was it required to issue such a policy. 

In an order entered November 5, 2012, the circuit court denied USAA’s 

motion for summary judgment and granted the plaintiff her sought-after declaratory 

judgment. The circuit court determined that W.Va. Code § 33-6-36 was intended to warn 

“a separate insured that his or her spouse has sought to terminate the marital insurance 

coverage,” and “gives the insured notice that he or she needs to effectuate, timely, a new 

or different policy.” The circuit court further determined that the statute applies to any 

motor vehicle policy that has been in existence for a continuous period of two or more 

years. Because the USAA policy at issue had been in effect for more than two years 

when coverage for Mr. McComas was cancelled, the circuit court found he was entitled 

to notice of the right to purchase a new policy. Because that statutory notice was not 

given to Mr. McComas, the circuit court ruled that USAA was required to provide 

liability coverage to Mr. McComas’s estate. 

USAA now appeals the circuit court’s November 5, 2012 order. 

II.
 

STANDARD OF REVIEW
 

In this appeal, we are asked to review the circuit court’s interpretation of 

W.Va. Code § 33-6-36 in a declaratory judgment. It is well established that, “Where the 

issue on an appeal from the circuit court is clearly a question of law or involving an 

interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). See also, Syllabus 

Point 1, Appalachian Power Co. v. State Tax Dept. of W.Va., 195 W.Va. 573, 466 S.E.2d 

424 (1995) (“Interpreting a statute or an administrative rule or regulation presents a 

purely legal question subject to de novo review.”). Likewise, “A circuit court’s entry of a 

declaratory judgment is reviewed de novo.” Syllabus Point 3, Cox v. Amick, 195 W.Va. 

608, 466 S.E.2d 459 (1995). 

III.
 

ANALYSIS
 

The Legislature adopted W.Va. Code § 33-6-36 in 1993 to provide for “the 

continuation of coverage under automobile liability policies” in certain circumstances. 

1993 Acts of the Legislature, Ch. 72. The statute ensures continuity of coverage for 

married couples who buy a motor vehicle liability insurance policy. If one spouse should 

die, then the statute requires an insurer to offer the same coverage to the surviving spouse 

without any lapse in coverage. If the marriage should dissolve in separation or divorce, 

then the insurer is required to offer the same coverage to both parties. Whenever the 

coverage is changed or terminated, the statute requires the insurer to notify the couple of 

their rights to continue individual coverage. However, the continuation of coverage is 

not automatic. Either spouse must request that the insurer issue a separate policy within 

30 days of the expiration or termination of the policy. 

The statute contains a two-year waiting period before an insurer must abide 

by the notice and coverage continuation requirements, and the plaintiff and USAA 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

dispute when that two-year period is triggered. Paragraphs (a) and (b) of W.Va. Code § 

33-6-36 state, in part and with emphasis on the language disputed by the parties: 

(a) In the event of death, legal separation or 

termination of the marital relationship of the named insured, 

the named insured or spouse covered by a motor vehicle 

liability policy for a period of two or more years shall, upon 

request of the named insured or spouse within thirty days of 

the expiration of said policy, be issued his or her own 

individual motor vehicle liability insurance policy providing 

the same coverage as the original policy through the same 

insurer, without any lapse in coverage: Provided, That any 

such named insured or spouse may elect to increase or 

decrease the amount of coverage in his or her respective 

policies without affecting any privilege provided by this 

section. . . . 

(b) Insurers shall notify all named insureds at policy 

issuance or the first renewal after the effective date of this 

section and upon any change or termination of the policy for 

reasons other than those provided in sections one and four of 

article six-a of this chapter of the right of the named insured 

or spouse to continue coverage as provided by this section. 

The plaintiff and USAA argue that this statute is clear and unambiguous. 

Yet both parties have proposed vastly different meanings of the phrase “the named 

insured or spouse covered by a motor vehicle liability policy for a period of two or more 

years.” The plaintiff interprets the statute to require continuation of coverage when a 

motor vehicle liability policy has been in existence for a continuous period of two or 

more years. USAA claims the statute only protects a person who has been married and 

covered by their spouse’s policy for two or more years. 

Hence, we must resolve whether a motor vehicle liability policy must be in 

effect for two continuous years, or whether a married person must be covered by their 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

spouse’s policy for two years, before an insurer is required to provide notice of the right 

to continue coverage with a new policy under W.Va. Code § 33-6-36. 

We believe that W.Va. Code § 33-6-36 is ambiguous. A statute is 

ambiguous when the statute’s language connotes “doubtfulness, doubleness of meaning 

or indistinctness or uncertainty of an expression[.]” Crockett v. Andrews, 153 W.Va. 

714, 718, 172 S.E.2d 384, 387 (1970). The statute has an “ambiguity which renders it 

susceptible of two or more constructions or of such doubtful or obscure meaning that 

reasonable minds might be uncertain or disagree as to its meaning.” Hereford v. Meek, 

132 W.Va. 373, 386, 52 S.E.2d 740, 747 (1949). In this case, the parties’ dueling, but 

reasonable, interpretations are indicative of the statute’s ambiguity.2 

“A statute that is ambiguous must be construed before it can be applied.” 

Syllabus Point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). 

When a court assesses a statute that is ambiguous, it should give significant 

weight to an interpretation of the statute by the executive branch agency charged by the 

Legislature with enforcing the statute. As we have often said, “Where a statute is of 

doubtful meaning, the contemporaneous construction placed thereon by the officers of 

2 The parties disagreement, however, does not always create an ambiguity. 

See, e.g., In re Resseger’s Estate, 152 W.Va. 216, 220, 161 S.E.2d 257, 260 (1968) 

(“That the parties disagree as to the meaning or the applicability of each provision does 

not of itself render either provision ambiguous or of doubtful, uncertain or obscure 

meaning.”); Deller v. Naymick, 176 W.Va. 108, 112, 342 S.E.2d 73, 77 (1985) (same); T. 

Weston, Inc. v. Mineral County, 219 W.Va. 564, 568, 638 S.E.2d 167, 171 (2006) (“The 

fact that parties disagree about the meaning of a statute does not itself create ambiguity or 

obscure meaning.”). 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

government charged with its execution is entitled to great weight, and will not be 

disregarded or overthrown unless it is clear that such construction is erroneous.” 

Syllabus Point 7, Evans v. Hutchinson, 158 W.Va. 359, 360, 214 S.E.2d 453, 456 

(1975).3 Thus, “a construction given a statute by the officers charged with the duty of 

executing it ought not to be discarded without cogent reason.” State ex rel. Daily Gazette 

Co. v. County Court, Kanawha County, 137 W.Va. 127, 132, 70 S.E.2d 260, 262 (1952). 

“An inquiring court—even a court empowered to conduct de novo review—must 

examine a regulatory interpretation of a statute by standards that include appropriate 

deference to agency expertise and discretion.” Appalachian Power Co. v. State Tax Dept. 

of W.Va., 195 W.Va. at 582, 466 S.E.2d at 433. 

W.Va. Code § 33-6-36(c) charges the Insurance Commissioner to adopt 

rules establishing the procedures and the form of notice that insurance companies are to 

3 See also, Thomas v. McDermitt, 751 S.E.2d 264, 270 (W.Va. 2013) (“This 

Court has generally held that an entity charged with the administration of a statutory 

scheme is entitled to some deference, unless the entity’s interpretations conflict with the 

statute they purport to cover.”); Wheeling Fire Ins. Co. v. Bd. of Equalization & Review 

of Ohio Cnty., 111 W.Va. 161, 169, 161 S.E. 427, 430 (1931) (“A contemporaneous 

construction placed upon an act practiced by and acquiesced in for a period of years by 

those having its administration is entitled to great weight in construing a doubtful statute, 

and will not be overthrown by the courts except for strong reasons, or unless clearly 

erroneous.”); Syllabus Point 2, State ex rel. Brandon v. Board of Control, 84 W.Va. 417, 

100 S.E. 215 (1919) (“Where a statute is of doubtful meaning the contemporaneous 

construction placed thereon by the officers of government charged with its execution is 

entitled to great weight, and will not be disregarded or overthrown unless it is clear that 

such construction is erroneous.”); Syllabus Point 6, Daniel v. Simms, 49 W.Va. 554, 39 

S.E. 690 (1901) (“The construction, given to a statute by those charged with the duty of 

executing it, ought not to be overruled without cogent reasons.”). 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

use under the statute.4 Important to the two-year trigger question in this case, the 

Insurance Commissioner adopted a rule specifying when an insurance company is 

required to issue a separate policy to a named insured or spouse. The rule, 114 C.S.R. § 

38.5, states (with emphasis added): 

5.1. As to all policies which have been in existence for a 

continuous period of two full years the insurer must issue a 

separate policy to any named insured or spouse of a named 

insured when: 

5.1.1. The named insured has died; 

5.1.2. The named insured as become legally separated from 

their spouse; or 

5.1.3. The named insured has terminated their marital 

relationship with their spouse; . . . 

This regulation plainly states that W.Va. Code § 33-6-36 applies to “all 

policies which have been in existence for a continuous period of two full years.” 

Furthermore, the Legislature specifically approved the regulation in 1994. See W.Va. 

Code § 64-7-2(z) [1994] (“The legislative rules filed . . . by the insurance commissioner . 

. . relating to the insurance commissioner (continuation of coverage under automobile 

liability policies), are authorized.”). Our law is clear that, “Once a disputed regulation is 

legislatively approved, it has the force of a statute itself. Being an act of the West 

Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling 

4 W.Va. Code § 33-6-36(c) states, “The commissioner shall promulgate 

rules . . . regarding the form of such notice and procedures required by this section.” 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

weight.” Syllabus Point 2, in part, W.Va. Health Care Cost Review Auth. v. Boone Mem’l 

Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996). 

Accordingly, we hold that when a motor vehicle liability policy has been in 

existence for a continuous period of two or more years, W.Va. Code § 33-6-36 requires an 

insurer to notify a named insured and the spouse of a named insured, upon any change or 

termination in coverage, of the right of the named insured or spouse to request a separate 

policy in the event of either: (a) the named insured’s death; (b) the legal separation of the 

named insured and spouse; or (c) the termination of the named insured and spouse’s 

marital relationship. Furthermore, W.Va. Code § 33-6-36 requires an insurer, upon 

request, to issue a separate policy to a named insured or the spouse of a named insured 

when either: (a) the named insured has died; (b) the named insured and spouse have 

legally separated; or (c) the named insured and spouse have terminated their marital 

relationship. The named insured or spouse must request their own separate policy within 

30 days of the expiration or termination of the policy. 

In the instant case, the USAA motor vehicle liability insurance policy had 

been in existence for a continuous period in excess of two years when Felecity Cooper 

asked USAA to cancel coverage for Francis McComas, Jr., because of their separation 

and pending divorce. Hence, pursuant to W.Va. Code § 33-6-36, when USAA altered the 

policy and terminated coverage for Mr. McComas it had a duty to notify him of his right 

to request his own USAA policy providing the same coverage. USAA clearly failed to 

comply with the notice provisions of the statute when it cancelled his coverage. 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Our law is clear that “[w]here there has been an invalid cancellation of an 

automobile liability insurance policy, the policy remains in effect until the end of its term 

or until a valid cancellation notice is perfected, whichever event first occurs.” Syllabus 

Point 4, Dairyland Ins. Co. v. Conley, 218 W.Va. 252, 624 S.E.2d 599 (2005). See also, 

Bailey v. Kentucky Nat. Ins. Co., 201 W.Va. 220, 228, 496 S.E.2d 170, 178 (1997) 

(“With respect to a similar situation we have recognized that ‘[w]here there has been an 

invalid cancellation, the automobile liability insurance policy remains in effect until the 

end of its term or until a valid cancellation notice is perfected, whichever event first 

occurs.’”); Conn v. Motorist Mut. Ins. Co., 190 W.Va. 553, 558, 439 S.E.2d 418, 423 

(1993) (same). Since USAA failed to provide Mr. McComas with a valid notice of 

cancellation that advised him of his right to request his own USAA policy, its purported 

termination of his coverage was void. Accordingly, the USAA liability insurance policy 

on Mr. McComas remained in effect at the time of his fatal accident on October 23, 2007. 

IV.
 

CONCLUSION
 

The circuit court’s November 5, 2012 declaratory judgment found that 

USAA was obligated to provide liability insurance coverage for Mr. McComas’s October 

23, 2007, collision with the plaintiff. We find no error in that judgment. 

Affirmed. 

11