Employers' Liability Assur. Corp. v. Hartford Acc. & Indem. Co.

• Decision Date: 21 December 1967
• Docket Number: No. 12651,12651
• Parties: The EMPLOYERS' LIABILITY ASSURANCE CORPORATION v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and Jewell Ridge Coal Corporation.
• Court: West Virginia Supreme Court

Page 212

158 S.E.2d 212

151 W.Va. 1062

The EMPLOYERS' LIABILITY ASSURANCE CORPORATION v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and Jewell Ridge Coal Corporation.

No. 12651.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1967.

Decided Dec. 21, 1967.

Syllabus by the Court

1. The summary judgment proceeding provided by Rule 56 of the West Virginia Rules of Civil Procedure is not a substitute for a trial or a trial by a jury or by the court of an issue of fact, but is a determination that, as a matter of law, there is no issue of fact to be tried.

2. The summary judgment proceeding governed by Rule 56 of the West Virginia Rules of Civil Procedure is not a trial within the meaning of Rule 59 of the West Virginia Rules of Civil Procedure and the provision of Rule 59(b) that a motion for a new trial shall be served not later than ten days after the entry of judgment does not apply to a summary judgment proceeding.

3. The provision of Rule 80(c) of the West Virginia Rules of Civil Procedure that when a transcript of the proceedings had and testimony taken at a trial is filed with the court, the party causing it to be filed shall promptly give notice thereof to all other parties, applies only to a transcript of the proceedings had and testimony taken at a trial of issues of fact on the merits and does not apply to a transcript of the proceedings had and testimony taken at a hearing in a summary judgment proceeding which is not a trial within the meaning of Rule 59 of the West Virginia Rules of Civil Procedure.

4. As the purpose of the summary judgment proceeding is to expedite the disposition of the case a summary judgment may be rendered against the party moving for judgment and in favor of the opposing party even though such party has made no motion for judgment.

5. Upon a hearing on a motion of one of the parties for summary judgment, after due notice, when it is found that there is no genuine issue as to any material fact and that the adverse party is entitled to judgment as a matter of law, the failure of such party to file a motion for summary judgment does not preclude the entry of such judgment in his favor.

6. When it is found from the pleadings, depositions and admissions on file, and the affidavits of any party, in a summary judgment proceeding under Rule 56 of the West Virginia Rules of Civil Procedure, that a party who has moved for summary judgment in his favor is not entitled to such judgment and that there is no genuine issue as to any material fact, a summary judgment may be rendered against such party in such proceeding.

Burton & Burkett, Walter W. Burton, Billy E. Burkett, Ben B. White, Jr., Princeton, for appellant.

Hudgins, Coulling & Brewster, Paul S. Hudgins, Jerry J. Cameron, Bluefield, for appellee.

HAYMOND, Judge.

In this declaratory judgment action instituted in the Circuit Court of McDowell County on June 25, 1965, the plaintiff, The Employers' Liability Assurance Corporation, hereinafter sometimes referred to as Employers, seeks relief from its coverage obligation under an insurance policy issued by it to the defendant, Jewell Ridge Coal Corporation, hereinafter sometimes referred to as Jewell Ridge, and to require the defendant, Hartford Accident and Indemnity Company, hereinafter sometimes referred to as Hartford, to provide insurance coverage to the defendant Jewell Ridge Coal Corporation under an insurance policy issued by the defendant Hartford Accident and Indemnity Company to Superior Pocahontas Mining Company, Inc., a corporation, hereinafter sometimes referred to as Superior, and to determine the relative rights of the respective parties under such policies of insurance.

By judgment rendered March 12, 1966, the circuit court overruled the motion of the defendant Hartford Accident and Indemnity Company for summary judgment in its favor and by summary judgment required it to defend and afford coverage to the defendant Jewell Ridge Coal Corporation in certain civil actions pending against that defendant in that court; and by summary judgment rendered June 21, 1966, the circuit court held, without any motion for summary judgment by the plaintiff Employers' Liability Assurance Corporation, that the plaintiff is not liable to Jewell Ridge Coal Corporation with respect to the claims involved in the foregoing civil actions and is not required to defend it in such actions.

The complaint of the plaintiff alleged that it issued a general liability insurance policy to the defendant Jewell Ridge for the period July 21, 1962 to July 21, 1965; that during the time the policy was in effect an accident occurred in McDowell County, West Virginia, on August 18, 1964, in which Elwood Lelan Mullins and David Wayne Patrick were killed by coming in contact with a high voltage electric power line on real estate under lease to Superior, which was being managed by the defendant Jewell Ridge; that Jewell Ridge was notified immediately of and investigated the accident but did not notify the plaintiff of such accident until after actions were instituted in the Circuit Court of McDowell County on January 8, 1965, by the personal representatives of Mullins and Patrick against Superior; that Jewell Ridge was made a third party defendant in those actions by process issued March 26, 1965; that Jewell Ridge then for the first time notified the plaintiff of the accidents and the claims involved in such actions; that the policy issued by the plaintiff to Jewell Ridge contained the provision that 'When an occurrence takes place, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.'; that because of the delay upon the part of Jewell Ridge in reporting the accidents to the plaintiff it is not liable to Jewell Ridge or to any other person or persons under the policy and is not required to take any action with respect to the claims arising from the accident.

The complaint also alleged, on information and belief, that the defendant Hartford had issued a general liability insurance policy to Superior, which extended coverage to 'any organization * * * with respect to real estate management for the named insured.'; that at the time of the accident the policy issued by the defendant Hartford was in force and effect and that by virtue of the real estate management by Jewell Ridge for the named insured the policy afforded its full protection to Jewell Ridge. The prayer of the complaint was that the court decree that the plaintiff is not obligated under its insurance policy to the defendant Jewell Ridge with respect to the accident and that it be relieved from any obligation to conduct any defense for Jewell Ridge, that the court further decree that the defendant Hartford give insurance coverage to Jewell Ridge under the policy issued by it to Superior, and that the court determine the rights of the parties in this proceeding and grant to the plaintiff such other relief as may be proper.

The foregoing complaint, upon motion of the plaintiff, by order entered March 12, 1966, was amended by the addition of the allegation that the insurance policy issued by the defendant Hartford likewise affords coverage to any agent of Superior, and that by virtue of the fact that Jewell Ridge was acting as agent for Superior the policy afforded full protection to Jewell Ridge.

The defendant Hartford filed its answer to the complaint and in such answer denied that Mullins and Patrick were killed on real estate under lease to Superior and denied that such real estate was being managed by the defendant Jewell Ridge and alleged that such real estate was under lease by the New River and Pocahontas Coal Company to Mullins. The answer also denied that the policy of insurance issued by it to Superior afforded any coverage to Jewell Ridge because that corporation was not managing real estate on behalf of Superior at the time the accident occurred. The answer also denied that it was subject to any primary responsibility with respect to such accident and alleged that the plaintiff was solely responsible to defend Jewell Ridge.

The answer of the defendant Hartford, on its motion, by order entered May 11, 1966, was amended by the addition of the allegation that the defendant Hartford denied that its policy of insurance affords coverage to any agent of Superior and that action by Jewell Ridge as agent for Superior would not of itself entitle Jewell Ridge to any protection under such policy.

The defendant Jewell Ridge also filed an answer to the complaint in which it admitted the allegation in the complaint that Mullins and Patrick died in McDowell County, West Virginia, but alleged that it was not advised that the real estate on which they died was under lease to Superior but that if their deaths occurred on real estate under lease to Superior such real estate at the time was managed by the defendant Jewell Ridge; that Jewell Ridge is insured and covered by the policy issued to it by the plaintiff Employers or was covered by the policy issued by the defendant Hartford. The answer also denied that the plaintiff was relieved of liability to defend Jewell Ridge and alleged that the plaintiff was notified within a reasonable time of the occurrence of the accident and that it is required to comply in all respects with the provisions in the policy issued by it. The answer, however, did not deny the allegation of the complaint that the accident happened August 18, 1964 but that Jewell Ridge did not notify the plaintiff of its occurrence until shortly after March 26, 1965 when Jewell Ridge was made a party to the actions which were originally instituted against Superior on January 8, 1965. That undenied allegation shows that Jewell Ridge did not give notice to the plaintiff until more than seven months after the accident occurred. In Ragland v. Nationwide Mutual Insurance Company, 146 W.Va. 403, 120 S.E.2d 482, this Court held that a delay...