Boggs v. Camden-clark Mem'l Hosp. Corp.

• Decision Date: 01 April 2010
• Docket Number: No. 35223.,35223.
• Citation: 225 W.Va. 300,693 S.E.2d 53
• Parties: Bernard BOGGS, Plaintiff,v.CAMDEN-CLARK MEMORIAL HOSPITAL CORPORATION, Defendant,v.Bernard Boggs, Plaintiff,v.Richard A. Hayhurst and Cincinnati Insurance Company, Defendants.
• Court: West Virginia Supreme Court

225 W.Va. 300

693 S.E.2d 53

West Virginia.

Bernard BOGGS, Plaintiff,

v.CAMDEN-CLARK MEMORIAL HOSPITAL CORPORATION, Defendant,

v.Bernard Boggs, Plaintiff,

v.Richard A. Hayhurst and Cincinnati Insurance Company, Defendants.

No. 35223.

Supreme Court of Appeals of

Submitted March 10, 2010.

Decided April 1, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. The term “professional services” contained in a commercial general liability policy, when not otherwise specifically defined, denotes those services rendered by someone with particularized knowledge or skill in his or her chosen field.

2. As a general matter, in the absence of policy language to the contrary, a professional services exclusion in a commercial general liability policy applies to claims asserted by an insured's client, or a nonclient, for harm arising out of professional services rendered by the insured.

3. The term “professional liability” contained in a personal umbrella policy that excludes a personal injury arising out of any act, malpractice, error or omission committed by an insured in the conduct of any profession, means those services rendered by an insured with particularized knowledge or skill in his or her chosen field.

4. As a general matter, in the absence of policy language to the contrary, a professional liability exclusion in a personal umbrella policy applies to claims asserted by an insured's client, or a nonclient, for harm arising out of professional services rendered by the insured.

Ancil G. Ramey, Steptoe & Johnson, Charleston, WV, for Defendant, Richard A. Hayhurst.

Christopher J. Regan, Bordas & Bordas, Wheeling, WV, for Plaintiff, Bernard Boggs.

Adam Barnes, Walsh, Collin & Blackmer, Pittsburgh, PA, for Defendant, Cincinnati Insurance Co.

Dino S. Colombo, Richard W. Stuhr, Colombo & Stuhr, Morgantown, WV, for Defendant, Camden-Clark Memorial Hospital.

Davis, Chief Justice:

This matter comes before this Court upon a request from the Circuit Court of Wood County to answer four certified questions. The parties to this proceeding are: Richard A. Hayhurst (hereinafter “Mr. Hayhurst”), defendant; Cincinnati Insurance Company (hereinafter “CIC”), defendant; and Bernard Boggs (hereinafter “Mr. Boggs”), plaintiff. By order dated March 20, 2009, the circuit court certified the following four questions to this Court:

1. Do allegations of a malicious prosecution suit against the insured, an attorney, by a client's former opponent in a previous action defended by the insured fall within the scope of a commercial general liability policy of [sic] personal umbrella liability policy issued to the attorney wherein the term “personal injury” is defined to include “malicious prosecution”?

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                ||Answer: Yes |X||No|||
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2. Under a liability insurance policy wherein the term “personal injury” is defined to include “malicious prosecution,” is a malicious prosecution suit against the insured, an attorney, by a client's former opponent in a previous action defended by the insured excluded by policy language that states that “This insurance does not apply to ... ‘personal injury’ ... due to rendering ... professional services unless professional liability coverage has been endorsed hereon or stated in the Declarations. This includes but is not limited to: (1) Legal, accounting or advertising services”?

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                ||Answer: Yes |X||No|||
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3. Under a personal umbrella liability insurance policy wherein the term “personal injury” is defined to include “malicious prosecution,” is a malicious prosecution suit against the insured, an attorney, by a client's former opponent in a previous action defended by the insured excluded by policy language that states that “This insurance does not apply to ... ‘personal injury’ arising out of any act, malpractice, error or omission committed by any ‘insured’ in the conduct of any profession or ‘business,’ even if covered by ‘underlying insurance’ ”?

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                ||Answer: Yes |X||No|||
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4. Do the “professional services” exclusion of the business owners package policy and/or the “professional liability” exclusion of the personal umbrella liability policy apply when the claim asserted against the policyholder for which coverage is sought is not made by a person or entity to whom the policyholder rendered professional services, but by a third-party to whom no professional services were rendered?

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                ||Answer: Yes |X||No|||
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Upon review of the parties' briefs, arguments, and the record, we answer the certified questions, as reformulated, and remand this matter for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

This case relates to a medical malpractice/wrongful death lawsuit filed by Mr. Boggs against Camden-Clark Memorial Hospital and others in 2003.¹ During that proceeding, Camden-Clark was represented by Mr. Hayhurst. While the case was pending, Camden-Clark filed two unsuccessful counterclaims against Mr. Boggs. As a result of the unsuccessful counterclaims, Mr. Boggs, in 2005, filed a second lawsuit against Camden-Clark, alleging a claim for malicious prosecution as a result of the two unsuccessful counterclaims.²

In 2006, Mr. Boggs filed a separate lawsuit against Mr. Hayhurst. That lawsuit also alleged claims for malicious prosecution due to the filing of the two unsuccessful counterclaims. On August 8, 2006, Mr. Hayhurst sent a letter to his legal malpractice insurer, Liberty Insurance Underwriters, informing the insurer of the suit against him. In that letter, Mr. Hayhurst stated:

This claim arises from my services as trial counsel for Camden-Clark Memorial Hospital Corporation in two separate actions for wrongful death arising from alleged medical malpractice.... During the course of those two cases, the Hospital filed counterclaims against the plaintiff due to lack of foundation for proceeding against the Hospital. When applicable law changed, the counterclaims were dismissed.... Notwithstanding the ... dismissal of the counterclaims, the plaintiff ... sued the Hospital in 2005 for abuse of civil process and malicious prosecution. That action pends.

The enclosed civil action is identical in form and substance to the 2005 action brought by Mr. Boggs against the Hospital and makes the same charges against me by virtue of my actions as trial counsel for the Hospital....

... Please docket this claim and call me right away to discuss the identity of counsel to be assigned to me.

By letter dated September 6, 2006, Liberty Insurance notified Mr. Hayhurst that it would provide defense counsel for him, but that it was reserving its right to deny coverage based upon any applicable exclusion under its policy. Thereafter, on February 9, 2007, Mr. Hayhurst sent a letter to CIC requesting coverage under two policies it issued to him: a commercial general liability policy and a personal umbrella liability policy. CIC denied coverage under the two policies.

Eventually, the malicious prosecution actions against Camden-Clark and Mr. Hayhurst were consolidated. It appears that, after the consolidation, Mr. Boggs amended his complaint in 2008 to add CIC as a defendant. The claim against CIC was for declaratory judgment on the issue of whether the two insurance policies it issued to Mr. Hayhurst covered the malicious prosecution claims asserted against Mr. Hayhurst.³ After CIC was brought into the case, Mr. Hayhurst filed a cross-claim against CIC that involved the issue of insurance coverage.⁴

Subsequent to the filing of the amended complaint, Mr. Boggs, Mr. Hayhurst and CIC moved for summary judgment on the insurance coverage issue. By order entered March 20, 2009, the circuit court denied the summary judgment motions by Mr. Boggs and Mr. Hayhurst. In that same order, the circuit court found the two insurance policies at issue did not provide coverage for the claims asserted against Mr. Hayhurst. Therefore, the circuit court granted summary judgment in favor of CIC. On the same day, the circuit court also entered an order certifying the aforementioned four questions to this Court. ⁵

II.STANDARD OF REVIEW

Here, we are asked to respond to certified questions from the circuit court. We have held that “[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syl. pt. 1 Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). We would also note that, to the extent we are required to examine the language of insurance policies to answer the certified questions, we have held that “[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination that ... shall be reviewed de novo on appeal.” Syl. pt. 2, in part, Riffe v. Home Finders Assocs., Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999).

III.DISCUSSION

This case presents four certified questions from the Circuit Court of Wood County for our consideration and determination. However, based upon this Court's inherent authority,⁶ we have determined that the most efficient way to resolve these questions is to reformulate and consolidate them into a single question as follows:

Does the commercial general liability policy or the personal umbrella liability policy issued by CIC to Mr. Hayhurst cover the claims for malicious prosecution asserted by Mr. Boggs against Mr. Hayhurst?

When deciding cases concerning the language employed in an insurance policy, we look to the precise words employed in the policy of coverage. As a general rule, we accord the language of an insurance policy its common and customary meaning. That is, “[l]anguage in an insurance policy should be given its plain, ordinary meaning.” Horace Mann Ins. Co. v. Adkins, 215 W.Va. 297, 301, 599 S.E.2d 720, 724 (2004) (internal quotations and citation omitted). We accept the plain meaning of the policy...