Jenkins v. City of Elkins, No. 11–1059.

CourtSupreme Court of West Virginia
Writing for the CourtJustice BENJAMIN concurs
Citation230 W.Va. 335,738 S.E.2d 1
PartiesJeffrey 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 NumberNo. 11–1059.
Decision Date20 November 2012

230 W.Va. 335
738 S.E.2d 1

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.

Submitted Oct. 16, 2012.
Decided Nov. 15, 2012.

Concurring and Dissenting in Part Opinion of Justice Benjamin
Nov. 20, 2012.


[738 S.E.2d 3]





Syllabus by the Court

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.

[738 S.E.2d 4]

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.


David A. Jividen, Chad C. Groome, Jividen Law Offices, Wheeling, WV, David J. Straface, John R. Angotti, Morgantown, WV, for Petitioners.

Amy Smith, Monte L. Williams, Carlie M. Parker, Steptoe & Johnson, Morgantown, WV, for Respondents City of Elkins and Stephen P. Stanton.


Glen A. Murphy, Andrew S. Dornbos, Don C. Parker, Spilman Thomas & Battle, Charleston, WV, for Respondent National Fire Insurance Company.

Susan R. Snowden, Martin & Seibert, L.C., Martinsburg, WV, for Respondent Westfield Insurance Company.

Michelle L. Gorman, Mary Margaret Hill, Pietragallo Gordon Alfano Bosick & Raspanti, Weirton, WV, for Respondent Bombardier Aerospace Corporation.

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.

I.
FACTUAL AND PROCEDURAL HISTORY

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,

[738 S.E.2d 5]

Westfield Insurance Company (hereinafter “Westfield”).

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 Bombardier 5 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. 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 Bombardier 8 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 during the course of his employment.11 This appeal followed entry of the summary judgment order.12

[738 S.E.2d 6]

II.
STANDARD OF REVIEW

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.”).

III.
DISCUSSION

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 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. We will consider them in turn.

A. Summary Judgment in Favor of the City of Elkins, Mr. Stanton, and National

The first issue raised by the Plaintiffs is that the circuit court committed error in granting summary judgment to the City of Elkins, Mr. Stanton, and National. The Plaintiffs make two arguments for reversing summary judgment as to these defendants: (1) this Court should overrule O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992), and (2) National's policy did not preserve immunity. We will address each argument separately.

1. The O'Dell decision. The Plaintiffs argue that this Court should revisit the decision in O'Dell, in order to strip the City of Elkins, Mr. Stanton, and National of the immunity granted by W. Va.Code § 29–12A–5(a)(11) (1986) (Repl.Vol.2008). This statute provides that “[a] political subdivision is immune from liability if a loss or claim results from ... [a]ny claim covered by any workers' compensation law or any employer's liability law[.]”

In O'Dell we rejected constitutional challenges to the statute and held that W. Va.Code, 29–12A–5(a)(11), giving political subdivisions immunity from tort liability in suits by injured persons whose claims are covered by workers' compensation or employer's liability laws, does not violate the equal protection principles of Article III, Section 10 or the “certain remedy” provision of Article III, Section 17 of the West Virginia Constitution.

Syl. pt. 4, O'Dell, 188 W.Va. 596, 425 S.E.2d 551. It was also held in O'Dell that “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.” Syl. pt. 6, O'Dell, 188 W.Va. 596, 425 S.E.2d 551.


The Plaintiffs in the instant case do not dispute that O'Dell provides immunity to the City of Elkins, Mr. Stanton and National because Mr. Jenkins received workers' compensation. To get around the application of O'Dell, the Plaintiffs have asked this Court to overrule that decision. The Plaintiffs have alleged that O'Dell wrongly concluded that W. Va.Code § 29–12A–5(a)(11) was applicable to an injured plaintiff who was not employed by the political subdivision being sued.

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13 practice notes
  • Hammons v. W. Va. Office of the Ins. Comm'r, Nos. 12–1473
    • United States
    • Supreme Court of West Virginia
    • May 20, 2015
    ...therefrom, is particularly warranted when those prior decisions involve a matter of statutory construction.” Jenkins v. City of Elkins, 230 W.Va. 335, 341, 738 S.E.2d 1, 7 (2012).It is painfully clear that although the Legislature has expressly indicated that workers' compensation claimants......
  • Cross v. State Farm Mut. Auto. Ins. Co., No. CV–17–169
    • United States
    • Court of Appeals of Arkansas
    • February 7, 2018
    ...found them to be void and unenforceable as contrary to their respective [uninsured] insurance laws." Jenkins v. City of Elkins , 230 W.Va. 335, 738 S.E.2d 1, 16 (2012) (citing Borjas v. State Farm Mut. Auto. Ins. Co. , 33 P.3d 1265, 1270 (Colo. App. 2001) ; Carter v. Saint Paul Fire &a......
  • Farm Family Cas. Ins. Co. v. Elwood, CIVIL ACTION NO. 5:19-cv-00892
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 3, 2021
    ...policy "where such provisions are not contrary to a statute, regulation, or public policy." Jenkins v. City of Elkins, 230 W. Va. 335, 341, S.E.2d 1, 7 (2012) (quoting Shamblin v. Nationwide Mutual Ins. Co., 175 W. Va 337, 341, 332 S.E.2d 639, 642 (1985)). The Supreme Court of App......
  • Erie Ins. Co. v. Dolly, No. 16-1151
    • United States
    • Supreme Court of West Virginia
    • March 12, 2018
    ...Dolly has a judgment order specifying an amount of damages for his property loss. See Syl. Pt. 3, in part, Jenkins v. City of Elkins , 230 W.Va. 335, 738 S.E.2d 1 (2012) ("The phrase 'legally entitled to recover' contained in the uninsured motorist statute ... is construed to mean that......
  • Request a trial to view additional results
13 cases
  • Hammons v. W. Va. Office of the Ins. Comm'r, Nos. 12–1473
    • United States
    • Supreme Court of West Virginia
    • May 20, 2015
    ...therefrom, is particularly warranted when those prior decisions involve a matter of statutory construction.” Jenkins v. City of Elkins, 230 W.Va. 335, 341, 738 S.E.2d 1, 7 (2012).It is painfully clear that although the Legislature has expressly indicated that workers' compensation claimants......
  • Cross v. State Farm Mut. Auto. Ins. Co., No. CV–17–169
    • United States
    • Court of Appeals of Arkansas
    • February 7, 2018
    ...found them to be void and unenforceable as contrary to their respective [uninsured] insurance laws." Jenkins v. City of Elkins , 230 W.Va. 335, 738 S.E.2d 1, 16 (2012) (citing Borjas v. State Farm Mut. Auto. Ins. Co. , 33 P.3d 1265, 1270 (Colo. App. 2001) ; Carter v. Saint Paul Fire &a......
  • Farm Family Cas. Ins. Co. v. Elwood, CIVIL ACTION NO. 5:19-cv-00892
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 3, 2021
    ...policy "where such provisions are not contrary to a statute, regulation, or public policy." Jenkins v. City of Elkins, 230 W. Va. 335, 341, S.E.2d 1, 7 (2012) (quoting Shamblin v. Nationwide Mutual Ins. Co., 175 W. Va 337, 341, 332 S.E.2d 639, 642 (1985)). The Supreme Court of App......
  • Erie Ins. Co. v. Dolly, No. 16-1151
    • United States
    • Supreme Court of West Virginia
    • March 12, 2018
    ...Dolly has a judgment order specifying an amount of damages for his property loss. See Syl. Pt. 3, in part, Jenkins v. City of Elkins , 230 W.Va. 335, 738 S.E.2d 1 (2012) ("The phrase 'legally entitled to recover' contained in the uninsured motorist statute ... is construed to mean that......
  • Request a trial to view additional results

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