Eggleston v. West Virginia Dept. of Highways

• Decision Date: 04 June 1993
• Docket Number: No. 21268,21268
• Citation: 189 W.Va. 230,429 S.E.2d 636
• Court: West Virginia Supreme Court
• Parties: , 30 A.L.R.5th 856 Homer A. EGGLESTON, Jr., Plaintiff Below, Appellant v. WEST VIRGINIA DEPARTMENT OF HIGHWAYS and Greiner Engineering Sciences, Inc., Defendants Below West Virginia Department of Highways, Appellee.

Page 636

429 S.E.2d 636

189 W.Va. 230, 30 A.L.R.5th 856

Homer A. EGGLESTON, Jr., Plaintiff Below, Appellant v. WEST VIRGINIA DEPARTMENT OF HIGHWAYS and Greiner Engineering

Sciences, Inc., Defendants Below

West Virginia Department of Highways, Appellee.

No. 21268.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 19, 1993.

Decided Feb. 24, 1993.

Dissenting Opinion of Chief Justice

Workman June 4, 1993.

Syllabus by the Court

1. W.Va.Code, 29-12-5(a) (1986), provides an exception for the State's constitutional immunity found in Section 35 of Article VI of the West Virginia Constitution. It requires the State Board of Risk and Insurance Management to purchase or contract for insurance and requires that such insurance policy "shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits."

2. "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." Syllabus Point 2, Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).

3. Language contained in the West Virginia Department of Highway's liability insurance policy procured under W.Va.Code, 29-12-5(a), which provides coverage for bodily injury arising out of and occurring during the performance of construction on a state highway will cover a bodily injury occurring up until the completion of the highway construction project. Such coverage provision does not relieve the plaintiff from proving negligence and proximate cause in order to recover for the bodily injury.

Deborah L. McHenry, Ranson, Ranson & McHenry, G. Patrick Jacobs, Bickley, Jacobs & Barkus, Charleston, for appellant.

Daniel R. Shuda, Janet N. Kawash, Steptoe & Johnson, George Joseph, Legal Div., W. Va. Dept. of Transp., Div. of Highways, Charleston, for appellee.

MILLER, Justice:

Homer A. Eggleston, Jr., appeals from an adverse ruling entered by the Circuit Court of Kanawha County granting summary judgment to the West Virginia Department of Highways (WVDOH) in a personal injury action. ¹ The trial court ruled that Mr. Eggleston's complaint was barred by the sovereign immunity from such actions granted to the State of West Virginia pursuant to Section 35 of Article VI of the West Virginia Constitution and W.Va.Code, 17-4-37. The circuit court found that the sovereign immunity defense was available because the WVDOH's liability insurance purchased pursuant to W.Va.Code, 29-12-5 (1986), did not apply to this accident pursuant to Shrader v. Holland, 186 W.Va. 687, 414 S.E.2d 448 (1992). We find that Mr. Eggleston's complaint and discovery material contains sufficient facts to come within the liability insurance policy coverage purchased by the WVDOH, at least for purposes of a summary judgment motion. We, therefore, reverse the order of the trial court and remand this case to the Circuit Court of Kanawha County.

I.

On July 10, 1990, Mr. Eggleston filed a civil action in the Circuit Court of Kanawha County alleging that he suffered injuries in a July 16, 1989, tractor-trailer accident on Interstate 64 between Beckley and Sam Black Church. Mr. Eggleston alleged that his accident was a direct and proximate result of negligence on the part of the WVDOH in designing, constructing, maintaining, and failing to properly warn him of the unsafe nature of the highway. The accident occurred on a recent addition to Interstate 64, on a portion of the highway first opened to public traffic the day before Mr. Eggleston's accident. Mr. Eggleston contends that his accident occurred on a very long, steep grade of Interstate 64 known as the "Sandstone Grade." He further contends that the highway was dangerous and incomplete because several warning signs meant to be placed prior to the "Sandstone Grade" descent had not been erected.

The plaintiff's chief complaint is that the highway construction plans called for large warning signs describing the length and degree of the precipitous slope of the road to be posted above I-64 near the top of the grade. ² These signs were not in place because the necessary fastening devices had not been procured before the road opened.

II.

Before we address the issue of insurance policy coverage, it is useful to explain the underlying legal concept that enables the plaintiff to sue the WVDOH. There is no question that it is a state agency and entitled to the constitutional immunity contained in Section 35 of Article VI of the West Virginia Constitution, which states, in part: "The State ... shall never be made a defendant in any court of law or equity[.]" ³

Furthermore, under W.Va.Code, 17-4-37, there is the command that "[t]he State shall not be made the defendant in any proceeding to recover damages because of the defective construction or condition of any state road or bridge."

However, in W.Va.Code, 29-12-5(a) (1986), the State Board of Risk and Insurance Management is given the "general supervision and control over the insurance of all state property, activities and responsibilities[.]" This section contains the following proviso: "Any policy of insurance purchased or contracted for by the board shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the state of West Virginia against claims or suits[.]"

W.Va.Code, 29-12-5(a) (1986), provides an exception to the State's constitutional immunity found in Section 35 of Article VI of the West Virginia Constitution. It requires the State Board of Risk and Insurance Management to purchase or contract for insurance and requires that such insurance policy "shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits." In Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), we discussed the effect of W.Va.Code, 29-12-5, ⁴ as it related to the State's constitutional immunity. In Syllabus Point 2, we stated:

"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."

In other jurisdictions which have a similar type of statutory insurance provision, courts have also reached the result that, insofar as a plaintiff's damage claim is covered by the state's insurance policy barring the assertion of the state's constitutional immunity, the suit may be maintained. ⁵ See, e.g., Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957); Williams v. New Mexico Highway Comm'n, 82 N.M. 550, 484 P.2d 770 (App.1971); McCloud v. City of La Follette, 38 Tenn.App. 553, 276 S.W.2d 763 (1954). ⁶

Our focus is, therefore, whether the insurance policy at issue provides coverage for the type of accident that occurred in this case. Thus, we turn to the language of the policy and our decision in Shrader v. Holland, supra.

III.

The State's insurance policy in this case was a custom designed policy. It was different from the usual insurance policy that is prepared and printed by an insurance company and delivered to the insured, whose only input ordinarily is not as to its language, but as to the amount and type of coverage. The policy herein was typed and regarding the exclusion in question and the exception at issue provides:

"It is agreed that the insurance afforded under this policy does not apply to the: ownership, maintenance, supervision, operation, use of [sic ] control of streets, including sidewalks, highways or other public thoroughfares, bridges, tunnels, dams, culverts, storm or sanitary sewers, but this exclusion does not apply to bodily injury or property damage which arises out of and occurs during the performance or [sic] construction, street cleaning and repair operations or arises out of the maintenance or use of sidewalks which abut buildings covered by this policy." (Emphasis added).

In Shrader v. Holland, supra, we construed identical language in the WVDOH insurance policy and found two errors. The first error was in the fourth line where the word "of" appears and the second error was in the fourth line from the bottom where the word "or" appears. We identified those errors in Shrader through the use of the term "sic." This utilization of the term "sic" ⁷ was not the subject of any further comment in Shrader. The WVDOH asserts that the clear import of the last "sic" is that the phrase must be read "during the performance of construction." For purposes of this case, we will assume this to be a correct reading of the phrase. ⁸

The plaintiff contends that the language of the policy is ambiguous and, therefore, should be construed strictly against the insurer and liberally in favor of the insured. See, e.g., Shamblin v. Nationwide Mut. Ins. Co., 175 W.Va. 337, 332 S.E.2d 639 (1985); Marson Coal Co. v. Insurance Co. of State of Pa., 158 W.Va. 146, 210 S.E.2d 747 (1974). Whether there is an ambiguity in a contract was discussed in Syllabus Point 1 of Berkeley County Public Service District v. Vitro Corp. of America, 152 W.Va. 252, 162 S.E.2d 189 (1968), where we determined that it was a legal issue for court determination:

"The mere fact that parties do not agree to the construction of a contract does not render it ambiguous. The question as to whether a contract is ambiguous is a question of law to be determined by the court."

The parties acknowledge that the controlling language in the policy which allows coverage is "bodily injury or property damage which arises out [of] and occurs during the performance of construction" on a street or highway. In Shrader v. Holland, supra, we did not find this language to be ambiguous, although we did not...