No. 22-0155, Greg Allen Ball v. United Financial Casualty Company, Milton Hardware, 

LLC, Builders Discount, LLC, and Rodney Perry

Armstead, Justice, dissenting: 

In this case, Rodney Perry allegedly backed a truck into, and injured, Greg 

Ball. The United States Circuit Court of Appeals for the Fourth Circuit has asked us to 

state whether the vehicle’s insurer, United Financial Casualty Company, must provide Mr. 

Perry either (a) the full amount of coverage available under its automobile liability

insurance policy (the “Policy”) or (b) the minimum amount of coverage required by the 

Motor Vehicle Safety Responsibility Law, W. Va. Code §§ 17D-1-1 to 17D-6-7 (the 

“MVSRL”). In practical terms, the question is whether United Financial is obligated for

$1 million of liability coverage or $25,000 of liability coverage.

1

 

Ordinarily, the Policy’s terms and conditions would control, but in this case, 

the Policy includes language that purports to exclude coverage because Mr. Perry was 

driving a truck belonging to Milton Hardware, LLC, and because Mr. Ball was Milton 

Hardware’s employee. See United Fin. Cas. Co. v. Ball, 941 F.3d 710, 714-15 (4th Cir. 

2019) (describing the Policy’s “Employee Indemnification and Employer’s Liability 

exclusion” (the “Exclusion”)). According to the Fourth Circuit, this Exclusion or 

“limitation of coverage for a permissive user of an insured vehicle contravenes West

1 See W. Va. Code § 17D-4-2(b) (eff. 2015) (defining “proof of financial 

responsibility” as “proof of ability to respond in damages for liability . . . arising out of the 

. . . use of a motor vehicle . . . in the amount of $25,000 because of bodily injury to or death 

of one person in any one accident . . .”).

FILED

November 17, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2 

Virginia Code § 33-6-31(a) [(eff. 2015)] and . . . renders the exclusion unenforceable.” 

United Financial, 941 F.3d at 717. Nevertheless, this conclusion “must be understood in 

context.” United Fin. Cas. Co. v. Milton Hardware, LLC, No. CV 3:17-2002, 2020 WL 

1545766, at *2 (S.D. W. Va. Mar. 31, 2020) (memorandum opinion and order). “When 

the language of an insurance policy is contrary to statute and therefore void,” that is not 

the end of the matter. Adkins v. Meador, 201 W. Va. 148, 153, 494 S.E.2d 915, 920 (1997). 

On the contrary, we must construe “the policy . . . to contain the coverage required by West 

Virginia law.” Id. Thus, the question before us is what level of coverage West Virginia 

law requires when the exclusion, an aspect of the bargain between United Financial and 

Milton Hardware, cannot be enforced because it contravenes West Virginia Code § 33-6-

31(a).

We have answered a similar question in a previous opinion issued by this 

Court. In the Syllabus of Jones v. Motorists Mut. Ins. Co., we held that “[a] ‘named driver 

exclusion’ endorsement in a motor vehicle liability insurance policy in this State is of no 

force or effect up to the limits of financial responsibility required by W.Va.Code, 17D–4–

2 [1979]”; nevertheless, “above those mandatory limits . . . a ‘named driver exclusion’ 

endorsement is valid under W.Va.Code, 33–6–31(a) [1982].” 177 W. Va. 763, 356 S.E.2d 

634 (1987), overturned due to legislative action (emphasis added).2

 We applied the same 

rule in Syllabus Point 4 of Dotts v. Taressa J.A., 182 W. Va. 586, 390 S.E.2d 568 (1990) 

2 See W. Va. Code § 33-6-31h(c) (eff. 2015) (stating that insurers need not 

“provide any coverage” for “any person . . . specifically excluded from coverage under the 

provisions of a motor vehicle liability policy”). 
3 

(holding that “[a]n intentional tort exclusion . . . is precluded under . . . [the MVSRL] up 

to the amount of the minimum insurance coverage required therein” but enforceable “as to 

any amount above the statutory minimum”); Ward v. Baker, 188 W. Va. 569, 573, 425 

S.E.2d 245, 249 (1992) (noting that the insurer had “paid into court the mandatory 

minimum $20,000 bodily injury coverage” and that, “due to the existence of the valid 

named driver exclusion, [the insurer] [wa]s not responsible for any damages in excess of 

the $20,000”); Syllabus Point 2 of Dairyland Ins. Co. v. East, 188 W. Va. 581, 425 S.E.2d 

257 (1992) (holding that “[a] named insured exclusion endorsement is invalid with respect 

to the minimum coverage amounts required by the . . . [MVSRL]” but that “[a]bove the 

minimum amounts of coverage required by West Virginia Code § 17D-4-12 (1992) . . . the 

endorsement remains valid”); and Imgrund v. Yarborough, 199 W. Va. 187, 193–94, 483 

S.E.2d 533, 539–40 (1997) (holding “that an ‘owned but not insured’ exclusion to 

uninsured motorist coverage is valid and enforceable above the mandatory limits of 

uninsured motorist coverage required by W. Va.Code §§ 17D–4–2 (1979) (Repl.Vol.1996) 

and 33–6–31(b) (1988) (Supp.1991)” but that “[t]o the extent that an ‘owned but not 

insured’ exclusion attempts to preclude recovery of statutorily mandated minimum limits 

of uninsured motorist coverage, such exclusion is void and ineffective . . .”).

3

 The majority 

appears to go to great lengths to in an attempt to distinguish these precedents, many of 

3 We likewise endorsed this rule in Burr v. Nationwide Mut. Ins. Co., 178 W. 

Va. 398, 405 n.10, 359 S.E.2d 626, 633 n.10 (1987) (noting our holding “in Jones that a 

driver exclusion in an automobile policy is inoperative up to the limits of liability insurance 

required under W.Va. Code, 17D–4–12” and stating that the “dealer plates” endorsement 

in question would “also be invalid under the analysis used in Jones.”). 
4 

which were correctly cited by the United States District Court in its decision that is the 

subject of the current appeal before the Fourth Circuit Court of Appeals. However, we 

have yet to overrule any of these cases, and I believe they reflect a clear pattern that the 

Fourth Circuit described more than thirty years ago: “When West Virginia has found that 

an attempt to exclude or restrict coverage violated state law, it has voided the restriction or 

exclusion only up to the level of minimum coverage. It has permitted it to operate above 

this minimum.” Nationwide Mut. Ins. Co. v. Cont’l Ins. Co., 943 F.2d 49, ----, 1991 WL 

181130, at *3 (4th Cir. 1991) (per curiam) (unpublished) (emphasis added). In my view, 

this is an entirely correct statement of our law, and I see no reason to depart from it in this 

case. Accordingly, I would hold that United Financial is only obligated to provide Mr. 

Perry the minimum amount of liability coverage required by the MVSRL (i.e., $25,000), 

and I would hold that the Exclusion is enforceable above that amount.

The majority opinion, however, adopts a different rule that finds the 

Exclusion void and ineffective to limit United Financial’s obligation to provide Mr. Perry

the “full limits” of liability coverage available under the Policy (i.e., $1 million). 

According to the majority opinion, West Virginia Code § 33-6-31(a) requires this result 

because it forbids any motor vehicle liability insurance policy to be issued unless it insures 

permissive users, like Mr. Perry, “against liability for death or bodily injury sustained or 

loss or damage occasioned within the coverage of the policy . . . .” Id. (emphasis added). 

However, as United Financial points out, West Virginia Code § 33-6-31 also 

states that it does not “prevent any insurer from incorporating in such terms, conditions and 
5 

exclusions as may be consistent with the premium charged.” Id. § 33-6-31(k) (emphasis 

added). That is not to say that subsection (k) grants insurers unfettered discretion to 

eliminate mandatory statutory coverages. It does not. As we held in Syllabus Point 3 of 

Deel v. Sweeney, “[i]nsurers may incorporate such terms, conditions and exclusions in an

automobile insurance policy as may be consistent with the premium charged, so long as

any such exclusions do not conflict with the spirit and intent of the uninsured and 

underinsured motorists statutes.” 181 W. Va. 460, 383 S.E.2d 92 (1989) (emphasis 

added).4

 

Accordingly, though I agree § 33-6-31(a) does not allow United Financial to 

entirely deny coverage to Mr. Perry as a permissive user, I believe that § 33-6-31(k) makes 

the Exclusion applicable beyond the statutory coverage limits set forth in Chapter 17D of 

the Code. I further believe that our previous holding in Jones supports this interpretation 

of the interplay between these statutory provisions. In Jones, we recognized an apparent 

“lack of harmony between this omnibus statute [i.e., § 33-6-31(a) and its express 

authorization to exclude specified persons] and the specific requirements of Chapter 17D 

of the Code concerning financial responsibility and minimum levels of insurance.” Jones, 

4 The majority opinion holds, based on Syllabus Point 3 of Gibson v.

Northfield Ins. Co., 219 W. Va. 40, 631 S.E.2d 598 (2005), that any provision of a motor 

vehicle insurance policy that “tends to limit, reduce or nullify” the coverage required by § 

33-6-31(a) is altogether “void and ineffective as against public policy.” However, Gibson, 

itself, reveals that, in certain circumstances, § 33-6-31(a) yields to other pertinent statutory 

provisions. See Gibson, 219 W. Va. at 42, 631 S.E.2d at 600, syl. pt. 5 (holding that an 

insurance company may incorporate limiting terms and conditions that are inconsistent 

with the provisions of W. Va. Code § 33–6–31 into an insurance policy where such terms 

are permitted under W. Va. Code § 29–12A–16(a)). 
6 

177 W. Va. at 766, 356 S.E.2d at 637. To reconcile this seeming inconsistency, we adopted 

“a common sense reading of [the] statutes in their entirety” and reasonably “conclude[d] 

that the legislature intended in Chapter 17[D] to provide a minimum level of financial 

security to third-parties who might suffer bodily injury or property damage from negligent 

drivers”; beyond that amount, we concluded that “Code 33–6–31(a) [1982] allows an

insurer and an insured to agree to a ‘named driver exclusion’ endorsement.” Id. 

The same common sense reasoning applies here. On the one hand, § 33-6-

31(k) authorizes “any insurer” to incorporate “such terms, conditions and exclusions as 

may be consistent with the premium charged.” Thus, § 33-6-31(k) would seem to support 

the Exclusion’s complete denial of coverage to Mr. Perry on the facts of this case. On the 

other hand, § 33-6-31(a) clearly requires that liability policies must include coverage for 

permissive drivers, and § 17D-4-12(b)(2) (eff. 2015) requires each such policy to provide 

liability coverage to such permissive users “in the amounts required in” § 17D-4-2. In 

addition, § 17D-4-2(b) defines “proof of financial responsibility,” for relevant purposes, as

“proof of ability to respond in damages for liability . . . in the amount of $25,000 because 

of bodily injury to or death of one person in any one accident[.]” Thus, I believe that §§ 

33-6-31(a), 17D-4-2(b), and 17D-4-12(b)(2), when read together, require United Financial 

to extend at least $25,000 of liability coverage to Mr. Perry in his capacity as a permissive 

user. However, reconciling these statutory provisions, and applying the previous decisions 

of this Court, I disagree with the majority’s conclusion that United Financial is required to 

provide the full $1 million of liability coverage to Mr. Perry in this case. This is particularly 
7 

true under the unique facts of this case in which Mr. Perry, and not an employee of Milton 

Hardware, was driving the Milton Hardware’s truck when it allegedly struck Mr. Ball, 

himself a Milton Hardware employee. Instead, I would follow Jones and hold that 

exclusions envisioned under § 33-6-31(k), but inconsistent with § 33-6-31(a)’s requirement 

that permissive drivers be covered, would have no force or effect up to the limits of 

financial responsibility required by § 17D-4-2(b); but above those limits, such exclusions

would be enforceable. Because the majority opinion renders the Employee 

Indemnification and Employer’s Liability exclusion entirely void and unenforceable in this 

case, even beyond the required coverage amounts set forth in W. Va. Code § 17D-4-2(b), 

I respectfully dissent.