Dotts v. Taressa J.A., 19124
| Court | Supreme Court of West Virginia |
| Writing for the Court | MILLER |
| Citation | 182 W.Va. 586,390 S.E.2d 568 |
| Parties | Joseph DOTTS v. TARESSA J.A., et al., Fairmont Marion County Transit Authority, a Public Corporation, and Buckeye Union Insurance Company. |
| Docket Number | No. 19124,19124 |
| Decision Date | 23 February 1990 |
Page 568
v.
TARESSA J.A., et al., Fairmont Marion County Transit
Authority, a Public Corporation, and Buckeye Union
Insurance Company.
West Virginia.
Page 569
[182 W.Va. 587] Syllabus by the Court
1. "There is neither a duty to defend an insured in an action for, nor a duty to pay for, damages allegedly caused by the sexual misconduct of an insured, when the liability insurance policy contains a so-called 'intentional injury' exclusion. In such a case the intent of an insured to cause some injury will be inferred as a matter of law." Syllabus, Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988).
2. Language in a motor vehicle liability insurance policy defining "accident" to include "bodily injury or property damage the insured neither expected or intended" is designed to exclude coverage for an intentional tort such as sexual assault.
3. A transit authority created under W.Va.Code, 18-27-1, et seq., is not a political subdivision of the state within the meaning of W.Va.Code, 17D-2A-2 (1982). Such transit authority's motor vehicle liability insurance policy is, therefore, subject to the provisions of our Motor Vehicle Safety Responsibility Law, W.Va.Code, 17D-2A-1, et seq.
4. An intentional tort exclusion in a motor vehicle liability insurance policy is precluded under our Motor Vehicle Safety Responsibility Law, W.Va.Code, 17D-2A-1, et seq., up to the amount of the minimum insurance coverage required therein. The policy exclusion will operate as to any amount above the statutory minimum.
5. As a consequence of the elevated duty of care owed to passengers by common carriers, assaults made by employees on passengers arise out of the use or operation of the vehicle within the meaning of a motor vehicle liability insurance policy.
Paul E. Parker, III and Charles A. Shields, Rose, Padden & Petty, Fairmont, for Teri J., James A. and Taressa J. A.
David L. Solomon and Michael L. Solomon, Solomon & Solomon, Morgantown, for Buckeye Union Ins. Co.
Kevin V. Sansalone, Fairmont, for Joseph Dotts.
MILLER, Justice:
The Circuit Court of Marion County, by summary judgment, decided that Buckeye Union Insurance Company (Buckeye) was required to provide coverage, under a liability policy it had issued to the Fairmont Marion County Transit Authority (Transit Authority), to Joseph Dotts, an employee of the Transit Authority, for damages resulting from his sexual assault of a passenger. There is no dispute that Mr. Dotts committed the sexual offense against the infant plaintiff while she was a passenger on the bus he was driving. 1
I.
Policy Provision
The business auto liability insurance portion of Buckeye's policy obligated it to "pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto." (Emphasis added). The term "accident" is defined in the policy as follows: "Accident includes continuous or repeated exposure to the same conditions resulting in bodily injury or property damage the insured neither expected or intended." (Emphasis added).
We recently considered an analogous factual situation in Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988). In that case, the insurance policy contained the following express exclusion for damages arising from an intentional injury: " 'This policy does not apply to liability ... caused intentionally by or at the direction of any insured[.]' " 180
Page 570
[182 W.Va. 588] W.Va. at 377, 376 S.E.2d at 583. We concluded in the Syllabus of Leeber that such exclusion foreclosed coverage for sexual misconduct on the part of an insured: 2"There is neither a duty to defend an insured in an action for, nor a duty to pay for, damages allegedly caused by the sexual misconduct of an insured, when the liability insurance policy contains a so-called 'intentional injury' exclusion. In such a case the intent of an insured to cause some injury will be inferred as a matter of law."
We arrived at this conclusion after an extensive review of the law in this area and summarized the underlying rationale of the "no coverage" rule as follows:
"The majority of the jurisdictions deciding these questions hold that there is neither a duty to defend nor to pay under such circumstances. Most courts deny liability insurance coverage for alleged sexual misconduct by applying an objective test to an intentional injury exclusion in the policy. They hold that the insured must have intended not only the act (the alleged sexual contact) but also must have intended to cause some kind of injury. However, the intent to cause some injury will be inferred as a matter of law in a sexual misconduct liability insurance case, due to the nature of the act (the alleged sexual contact), which is so inherently injurious, or 'substantially certain' to result in some injury, that the act is considered a criminal offense for which public policy precludes a claim of unintended consequences, that is, a claim that no harm was intended to result from the act." 180 W.Va. at 378-379, 376 S.E.2d at 584-85. (Emphasis in original; footnote omitted).
The plaintiff, while acknowledging Leeber, seeks to distinguish it on the ground that the Buckeye policy does not have an express exclusion for intentional torts. Buckeye responds that its definition of the term "accident," which is limited to "bodily injury or property damage the insured neither expected or intended," does not cover damages resulting from intentional torts such as sexual assaults. (Emphasis added). If such damages do not fall within the "accident" definition, there is no coverage or duty to defend.
There is a rather lengthy annotation at 31 A.L.R.4th 957 (1984), collecting cases that deal with policy language excluding coverage for injuries intended or expected by the insured. The annotator points out that this language attempted to clarify and replace the intentional injury exclusion by limiting the term "accident" for coverage purposes to those actions of the insured that were neither expected nor intended. This language was also designed to focus the evaluation of the event on the perspective of the insured rather than on that of the injured victim. Annot., 31 A.L.R.4th at 972. See Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888, 891 (Me.1981).
There does appear to be general agreement that this language is the equivalent of the intentional tort exclusion. 3 Consequently, we conclude that language in a motor vehicle liability insurance policy defining
Page 571
[182 W.Va. 589] "accident" to include "bodily injury or property damage the insured neither expected or intended" is generally designed to exclude coverage for an intentional tort such as sexual assault.II.
Safety Responsibility Law
A more viable argument advanced by the plaintiff is that an intentional tort policy exclusion is not valid with respect to the mandatory insurance provisions of our Safety Responsibility Law. W.Va.Code, 17D-1-1, et seq. This act requires mandatory automobile liability insurance in the amount of $20,000 for bodily injury to or death of any one person and $40,000 for any one accident. W.Va.Code, 17D-2A-3 (1982); 4 W.Va.Code, 17D-4-2 (1979). 5
A.
None of the parties raises the initial question of whether the Transit Authority is subject to the Safety Responsibility Law. W.Va.Code, 17D-2A-2 (1982), exempts from its provisions "motor vehicles owned by the State, any of its political subdivisions or by the federal government." See also W.Va.Code, 17D-2A-3; W.Va.Code, 17D-6-1. The Transit Authority was created pursuant to W.Va.Code, 8-27-1, et seq., the Urban Mass Transportation Authority Act, which permits municipalities and contiguous counties to create a transit authority. The entity so created has a governing board selected by the participating governmental entities, and has the right to sue and be sued, the power of eminent domain, and fairly extensive powers to operate a local transit system, including the right to issue revenue bonds. W.Va.Code, 8-27-5 (1971); W.Va.Code, 8-27-10 (1976).
The question of what type of an entity is a political subdivision of the state is not susceptible to a general formulation. It often depends on the statute in which the term is used. The term may be defined in a particular statute for purposes of that enactment. See W.Va.Code, 5-10-2(4) (1988) (Public Employees Retirement Act); W.Va.Code, 5-10C-3(7) (1989) (governmental employees retirement plans); W.Va.Code, 6A-1-3(e) (1961) (Emergency Interim Executive and Judicial Succession Act); W.Va.Code, 12-6-2(7) (1983) (Investment Management Law); W.Va.Code, 15-5-2(d) (1978) (emergency services); W.Va.Code, 29-12A-3(c) (1986) (Governmental Tort Claim and Insurance Reform Act).
Here, however, the term "political subdivision" is not statutorily defined, and, consequently, we resort to our case law interpretation of the term. In Kucera v. City of Wheeling, 153 W.Va. 531, 170 S.E.2d 217 (1969), we addressed the question of whether a municipality was a political subdivision of the state under a general statutory phrase similar to the one here. 6 We recognized that a municipality was a political subdivision of the state because it was created by the state and was authorized to exercise part of the state's police powers. More importantly, as to what constituted a political subdivision, we quoted with approval this statement from Dugas v. Beauregard, 155 Conn. 573, 578, 236 A.2d 87, 89 (1967):
" 'The attributes which are generally regarded as distinctive of a political subdivision are that it exists for the purpose of discharging some function of local government, that it has a prescribed area, and that it possesses authority for
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Grinnell Mut. Reinsurance Co. v. Thompson, No. 20090250.
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Mitchell v. Broudnax, 25539
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