Jenkins v. City of Elkins, No. 11-1059
| Court | Supreme Court of West Virginia |
| Writing for the Court | DAVIS |
| Decision Date | 15 November 2012 |
| Parties | JEFFREY JENKINS and M. JEAN McNABB, Plaintiffs Below, Petitioners v. CITY OF ELKINS, STEPHEN P. STANTON, WESTFIELD INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY, AND BOMBARDIER AEROSPACE CORPORATION, Defendants Below, Respondents |
| Docket Number | No. 11-1059 |
JEFFREY JENKINS and M. JEAN McNABB, Plaintiffs Below, Petitioners
v.
CITY OF ELKINS, STEPHEN P. STANTON, WESTFIELD INSURANCE COMPANY,
NATIONAL UNION FIRE INSURANCE COMPANY,
AND BOMBARDIER AEROSPACE CORPORATION, Defendants Below, Respondents
No. 11-1059
SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2012 Term
Submitted: October 16, 2012
Filed: November 15, 2012
David A. Jividen
Chad C. Groome
Jividen Law Offices
Wheeling, West Virginia
David J. Straface
John R. Angotti
Morgantown, West Virginia
Attorneys for Petitioners
Amy Smith
Monte L. Williams
Carlie M. Parker
Steptoe & Johnson
Morgantown, West Virginia
Attorneys for Respondents
City of Elkins and
Stephen P. Stanton
Page 2
Glen A. Murphy
Andrew S. Dornbos
Don C. Parker
Spilman Thomas & Battle
Charleston, West Virginia
Attorney for Respondent
National Fire Insurance Company
Susan R. Snowden
Martin & Seibert, L.C.
Martinsburg, West Virginia
Attorney for Respondent
Westfield Insurance Company
Michelle L. Gorman
Mary Margaret Hill
Pietragallo Gordon Alfano Bosick & Raspanti
Weirton, West Virginia
Attorneys for Respondent
Bombardier Aerospace Corporation
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
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1. "W. Va. Code, 29-12A-5(a)(11), clearly contemplates immunity for political subdivisions from tort liability in actions involving claims covered by workers' compensation even though the plaintiff was not employed by the defendant political subdivision at the time of the injury." Syllabus point 6, O'Dell v. Town of Gauley Bridge, 188 W. Va. 596, 425 S.E.2d 551 (1992).
2. Under the definition of uninsured motor vehicle contained in W. Va. Code § 33-6-31 (c) (1998) (Repl. Vol. 2011), uninsured motor vehicle coverage is triggered when a person sustains an automobile injury or loss that is caused by a tortfeasor who is immune from liability.
3. The phrase "legally entitled to recover" contained in the uninsured motorist statute, W. Va. Code § 33-6-31(b) (c) (1998) (Repl. Vol. 2011), is construed to mean that an insured is entitled to uninsured coverage merely by establishing fault on the part of the tortfeasor and the amount of the insured's damages. Under this definition, the fact that a tortfeasor is immune from liability will not preclude recovery of uninsured motorist benefits.
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4. An uninsured motor vehicle policy exclusion for a government owned vehicle is against the public policy of this State and is therefore void and unenforceable.
5. An employer's insurance policy that excludes coverage for auto medical payment benefits to an employee who sustained an injury arising out of and in the course of employment is only enforceable to exclude medical payment coverage for that part of a claim that exceeds the amount subrogated by the employer's workers' compensation carrier.
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Davis, Justice:
This appeal was brought by Jeffrey Jenkins and his spouse M. Jean McNabb, Plaintiffs below and Petitioners herein, from a summary judgment order of the Circuit Court of Harrison County. The trial court's order granted summary judgment in favor of the City of Elkins, Stephen P. Stanton, and National Union Fire Insurance Company. The order also granted summary judgment in part to Westfield Insurance Company and Bombardier Aerospace Corporation.1 The issues presented in this case are: (1) whether summary judgment was properly granted to the City of Elkins, Stephen P. Stanton, and National Union Fire Insurance Company based upon statutory immunity; (2) whether uninsured motorist coverage is triggered when a tortfeasor has immunity; (3) whether the phrase "legally entitled to recover" is ambiguous; (4) whether "government owned vehicle" policy exclusions violate public policy; and (5) whether a policy exclusion for an injury arising out of and in the course of employment precluded medical payment coverage. After listening to arguments of the parties and a careful review of the briefs and record, we affirm, in part; reverse, in part; and remand this case for further disposition.
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The facts of this case show that on or about October 27, 2008, Jeffrey Jenkins was injured during an automobile accident with Stephen P. Stanton. At the time of the accident, Mr. Jenkins was operating a vehicle owned by his employer, Bombardier Aerospace Corporation (hereinafter "Bombardier"). Also at the time of the accident, Mr. Stanton was driving a vehicle owned by his employer, the City of Elkins. The injuries Mr. Jenkins sustained included a left hip dislocation, left hip fracture, and left open tibia fracture. As a result of the accident occurring during the course of Mr. Jenkins' employment, he received workers' compensation benefits in the amount of $170,823.92.2
On or about April 29, 2010, Mr. Jenkins and his wife filed an action against the City of Elkins and Mr. Stanton to recover for the injuries that occurred as a result of the automobile accident.3 At the time the action was filed, the Plaintiffs served a notice of the complaint on their personal automobile insurer, Westfield Insurance Company (hereinafter "Westfield").
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Although not named as a defendant, Westfield filed an answer to the complaint.4 In that answer, Westfield set out a counterclaim for declaratory judgment, a crossclaim against the City of Elkins and Mr. Stanton, and a third party claim against Bombardier5 and National Union Fire Insurance Company (hereinafter "National").6
The Plaintiffs filed an answer to Westfield's counterclaim. In that answer, the Plaintiffs set out a claim for declaratory judgment relief against all of the parties.
Motions for summary judgment were filed by all of the parties.7 On June 8, 2011, the circuit court entered an order on the respective motions for summary judgment.
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The order found that the City of Elkins and Mr. Stanton were immune from liability and therefore were entitled to summary judgment. It was also determined that National was entitled to summary judgment because its policy incorporated the immunity provided to the City of Elkins and Mr. Stanton. The summary judgment order further determined that a "government vehicle" exclusion contained in the policy covering Bombardier8 and the policy issued by Westfield was valid and enforceable for any claims by the Plaintiffs above the statutory uninsured minimum coverage of $20,000.9 That is, Bombardier and Westfield were subject to payment of damages of not more than $20,000 each.10 Finally, the circuit court ruled that the Plaintiffs were not entitled to auto medical coverage under the policy covering Bombardier and the policy issued by Westfield because Mr. Jenkins' injuries were sustained
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during the course of his employment.11 This appeal followed entry of the summary judgment order.12
This is an appeal from a summary judgment order. We have made clear that our standard of review of a summary judgment order is de novo. See Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").
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Five errors have been assigned for this Court's determination on appeal:(1) whether summary judgment was properly granted to the City of Elkins, Stephen P. Stanton, and National Union Fire...
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