Blessing v. Nat. Eng. & Cont. Co.

• Decision Date: 25 April 2008
• Docket Number: No. 33433.,33433.
• Court: West Virginia Supreme Court
• Parties: Misty BLESSING, Individually and as the Administrator of the Estate of Wallie Blessing, Plaintiff Below, Appellant v. NATIONAL ENGINEERING & CONTRACTING COMPANY, a Foreign Corporation; Balfour Beatty Construction, Inc., a Foreign Corporation; and the West Virginia Department of Transportation, Division of Highways, An Agency of the State of West Virginia, Site-Blauvelt Engineers, Inc; Arrow Concrete Company; Arrow Concrete of West Virginia, Inc.; H.C. Nutting Company; and Byron Smith, P.E., Individually, Defendants Below, Appellees.

664 S.E.2d 152

Misty BLESSING, Individually and as the Administrator of the Estate of Wallie Blessing, Plaintiff Below, Appellant v. NATIONAL ENGINEERING & CONTRACTING COMPANY, a Foreign Corporation; Balfour Beatty Construction, Inc., a Foreign Corporation; and the West Virginia Department of Transportation, Division of Highways, An Agency of the State of West Virginia, Site-Blauvelt Engineers, Inc; Arrow Concrete Company; Arrow Concrete of West Virginia, Inc.; H.C. Nutting Company; and Byron Smith, P.E., Individually, Defendants Below, Appellees.

No. 33433.

Supreme Court of Appeals of West Virginia.

Submitted February 27, 2008.

Decided April 25, 2008.

Concurring Opinion of Justice Benjamin June 23, 2008.

Concurring Opinion of Justice Starcher July 17, 2008.

Syllabus by the Court

1. "Suits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State." Syl. Pt. 2, Pittsburgh Elevator v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).

2. "It is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured." Syl. Pt. 4, Nat'l Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987).

Roger D. Williams, James P. McHugh, Charleston, for Appellant.

Eric R. Waller, Joanna I. Tabit, Steptoe & Johnson, PLLC, Charleston, for Appellees, National Engineering & Contracting Company; and Balfour Beatty Construction, Inc.

Timbera C. Wilcox, Robert M. Stonestreet, Dinsmore & Shohl, LLP, Charleston, for Appellees, West Virginia Department of Transportation, Division of Highways, and Byron Smith.

PER CURIAM:

Misty Blessing appeals from the September 13, 2006, order of the Circuit Court of Kanawha County granting summary judgment to Appellee West Virginia Department of Transportation (the "Department") in connection with a wrongful death action Appellant filed against the Department and its employee, Appellee Byron Smith. In granting summary judgment to the Department and Mr. Smith, the trial court ruled that the absence of insurance coverage barred Appellant from pursuing her claims under the doctrine of sovereign immunity. Upon our review of this matter, we think that a genuine issue of material fact exists as to the issue of insurance coverage in this case and, accordingly, we reverse.

I. Factual and Procedural Background

On October 3, 2003, while working for Appellee National Engineering and Contracting Company ("NECC")¹ at a construction site known as the Man/Rita Bridge in Logan County, West Virginia, Appellant's husband Wallie Blessing sustained fatal injuries when the tremie scaffolding² on which he was working collapsed. Appellant instituted a wrongful death action on September 17, 2004, through which she asserted various negligence claims against the Department and Mr. Smith, the Department's project manager for the construction of the Man/Rita Bridge.³

In response to the lawsuit, the Department and Mr. Smith filed a motion for summary judgment, asserting that the circuit court lacked subject matter jurisdiction over them based on the doctrine of sovereign immunity.⁴ After recognizing the inapplicability of sovereign immunity where recovery is sought solely from the state's insurer,⁵ the trial court examined the state's liability policy and concluded that, unless "Mr. Blessing's injuries directly resulted from and occurred while `employees of the State of West Virginia were physically present at the site of the incident ... performing construction, maintenance, repair, or cleaning (but excluding inspection of work being performed or materials being used by others),'" there was no coverage under the applicable policy. Deciding that Mr. Smith's on-site duties "as the Project Supervisor d[id] not amount to performance of `construction, maintenance, repair or cleaning,'" the circuit court determined that there was no insurance coverage under the state's liability policy and consequently ruled that Appellant's claims were barred by sovereign immunity.

Arguing that there are issues of fact as to the existence of insurance coverage that preclude this matter from being resolved without further factual inquiry, Appellant seeks a reversal of the lower court's grant of summary judgment.

II. Standard of Review

A plenary standard of review applies to this appeal based on our recognition in Gribben v. Kirk, 195 W.Va. 488, 466 S.E.2d 147 (1995), that "appellate courts review questions involving principles of sovereign immunity de novo." Id. at 493, 466 S.E.2d at 152. Our standard of review for the summary judgment ruling appealed from is similarly de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 192 W.Va. 189, 451 S.E.2d 755 (1994). And, as is customary with our review of summary judgment rulings, the test we apply is to examine whether there remains any genuine issues of fact to be tried and whether further inquiry regarding the facts is desirable to clarify application of the law. See id. at 192, 451 S.E.2d at 758. Accordingly, we proceed to determine whether there are antecedent factual issues that must be resolved before a conclusive ruling can issue regarding the availability of coverage for Appellant's claims under the state's liability policy.

III. Discussion

In syllabus point two of Pittsburgh Elevator v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), we held that "[s]uits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State." See W.Va. Const. art. VI, § 35. As we explained in Pittsburgh Elevator, the statutory prohibition found in West Virginia Code § 29-12-5(a)(4) (2004), which prevents insurers who issue policies to the State Board of Risk and Insurance Management ("Board of Risk") from relying on the state's grant of constitutional immunity, functions as a limited bar to sovereign immunity.⁶ 172 W.Va. at 756, 310 S.E.2d at 688. Consequently, where the claims at issue are the subject of insurance procured by the Board of Risk and the state's general treasury is not directly subjected to risk, then the constitutional precept of sovereign "[i]mmunity is relaxed [but] only to the extent of the liability insurance coverage." State ex rel. West Virginia Dept. of Transp. v. Madden, 192 W.Va. 497, 500, 453 S.E.2d 331, 334 (1994).

In this case, Appellant is not seeking any recovery from the state's coffers.⁷ For the necessary insurance coverage that would prevent sovereign immunity from serving as a bar to her claims, she looks to two separate policies as well as an indemnification agreement. The first policy was issued to the State of West Virginia by National Union Fire Insurance Company ("National Union") of Pittsburgh, Pennsylvania, and the second policy is one that was issued to Balfour Beatty Construction, Inc., the parent company of NECC, by Liberty Mutual. We will examine the availability of coverage separately as to each of these policies.

A. National Union Policy

At the time of Mr. Blessing's fatality, the liability policy issued by National Union to the Department extended coverage to the state for certain acts of negligence. The parties are in agreement that the operative policy language is found in Endorsement No. 7, which modifies the coverage by providing:

It is agreed that this insurance afforded under this policy does not apply to any claim resulting from the ownership, design, selection, installation, maintenance, location, supervision, operation, construction, use, or control of streets (including sidewalks, highways or other public thoroughfares), bridges, tunnels, dams, culverts, storm or sanitary sewers, rights-of-way, signs, warnings, markers, markings, guardrails, fences, or related or similar activities or things but it is agreed that the insurance afforded under this policy does apply (1) to claims of "bodily injury" or "property damage" which both directly result from and occur while employees of the State of West Virginia are physically present at the site of the incident at which the "bodily injury" or "property damage" occurred performing construction, maintenance, repair, or cleaning (but excluding inspection of work being performed or materials being used by others) and (2) to claims of "bodily injury" or "property damage" which arise out of the maintenance or use of sidewalks which abut buildings covered by this policy, (emphasis supplied)

The trial court correctly found that by virtue of the exclusionary language set forth in Endorsement No. 7, no insurance coverage exists "unless Mr. Blessing's injuries directly resulted from and occurred while `employees of the State of West Virginia were physically present at the site of the incident ... performing construction, maintenance, repair, or cleaning (but excluding inspection of work being performed or materials being used by others)....'" As the basis for its ruling that coverage was nonexistent, the trial court ruled that "Mr. Smith's conduct as the Project Supervisor does not amount to performance of `construction, maintenance, repair, or cleaning.'"

Appellant argues that the trial court erred in ruling that the record in this case is devoid of evidence indicating that "any employee of the State of West Virginia was physically present at the site of Wallie Blessing's accident `performing construction, maintenance, repair, or cleaning....'" As support for her position, Mrs. Blessing cites to deposition excerpts of Byron Smith and Jack Hardin that were attached as exhibits to her response to the Department's motion for summary judgment, as well as answers to several interrogatories that were referenced and included in...