eNotes: Liability – August 2022 – Virginia

SIGNIFICANT CASE SUMMARIES

VA CASE SUMMARY

Khattab v. Berkley Reg’l Ins. Co.
United States District Court for the Eastern District of Virginia
No. 3:21cv789-HEH

Decided: April 15, 2022

Va. Code § 38.2-2022 does not mandate specific language required to reduce uninsured/underinsured motorist coverage.

Background

Plaintiff, Affan Mohamad Khattab’s widow, pursued a wrongful death action as administrator of his estate. In the underlying suit, Plaintiff alleged that Diane Harvey was negligently driving her vehicle when she struck and killed Mr. Khattab. Plaintiff sought $10,250,000 in compensatory damages, and Ms. Harvey’s liability policy provided only $100,000 for personal injury or death claims. At the time of his death, Mr. Khattab was driving a vehicle owned by his employer, Richmond Express. Berkley Regional Insurance Company issued an Uninsured Motorist Endorsement to Richmond Express. A notice contained in this policy states that the uninsured/underinsured motorist coverage would equal the policy’s liability limits unless a named insured expressly selected to reduce those limits. An agent of Richmond Express completed the provided form to reduce the uninsured motorist coverage to $70,000.

Plaintiff alleged that Richmond Express did not properly communicate a decision to reduce the underinsured motorist coverage from $1,000,000 to $70,000. While Virginia Code § 38.2-2202 provides instructions for how an insurance carrier must notify the insured of uninsured and underinsured motorist coverage limits, the only language describing the procedure for the insured to reduce those limits is that “the insurer may require that a request to reduce coverage be in writing.” Plaintiff claims that the form provided by Berkley to reduce coverage only refers to “Uninsured Motorists Coverage” and therefore does not apply to underinsured motorist coverage limits. Defendant argued that the language in Virginia Code § 38.2-2022 does not require any specific language for the insured’s selection of different limits for uninsured or underinsured motorist coverage.

Holding

The Court held that Richmond Express had only $70,000 of uninsured motorist coverage. The Court held that, even if Virginia Code § 38.2-2022 was read to require use of the term “uninsured/underinsured” as Plaintiff claimed, the provided form substantially complied with the statute because it defined “Uninsured Motorists Coverage” to include underinsured motor vehicles. The Court must look to the plain meaning of uninsured and underinsured motorist coverage in the policy and endorsement because the form used by Berkley to reduce coverage limits is not controlled by statute. Here, the policy defined “Uninsured Motorist Coverage” to include underinsured motor vehicles, so the form for insureds to reduce uninsured motorist coverage was sufficient and proper.

Questions about this case can be directed to Mackenzie Payne at (571) 470-1906 or mpayne@tthlaw.com.