Nat'l Union Fire Ins. Co. of Pittsburgh v. Miller

• Decision Date: 24 February 2012
• Docket Number: No. 11–0315.,11–0315.
• Citation: 724 S.E.2d 343
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant Below, Petitioner v. Jennifer MILLER, Individually and as Mother and Next Friend of Trais Westfall, an Infant, Plaintiff Below, Respondent.
• Court: West Virginia Supreme Court

724 S.E.2d 343

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant Below, Petitioner

v.Jennifer MILLER, Individually and as Mother and Next Friend of Trais Westfall, an Infant, Plaintiff Below, Respondent.

No. 11–0315.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 2012.Decided Feb. 24, 2012.

Syllabus by the Court

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “ ‘This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.’ Syllabus point 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).” Syl. pt. 2, Younker v. E. Associated Coal Corp., 214 W.Va. 696, 591 S.E.2d 254 (2003).

3. “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

4. “ ‘A party who moves for summary judgment has the burden of showing that there is no genuine issue of material fact and any doubt as to the existence of such issue is resolved against the movant for such judgment.’ Syl. Pt. 4, Aetna Cas. & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. pt. 4, Kelley v. City of Williamson, 221 W.Va. 506, 655 S.E.2d 528 (2007).

5. “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, fall outside the traditional constitutional bar to suits against the State.” Syl. pt. 2, Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).

6. “ ‘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.’ Syllabus point 4, Employers' Liability Assurance Corp. v. Hartford Accident & Indemnity Co., 151 W.Va. 1062, 158 S.E.2d 212 (1967).” Syl. pt. 2, Arnold v. Palmer, 224 W.Va. 495, 686 S.E.2d 725 (2009).

7. “ ‘The entry of an order denying a motion for summary judgment made at the close of the pleadings and before trial is merely interlocutory and not then appealable to this court.’ Syllabus, Wilfong v. Wilfong, 156 W.Va. 754, 197 S.E.2d 96 (1973).” Syl. pt. 1, Arnold v. Palmer, 224 W.Va. 495, 686 S.E.2d 725 (2009).

8. “Where the policy language involved is exclusionary, it will be strictly construed against the insurer in order that the purpose of providing indemnity not be defeated.” Syl. pt. 5, Nat'l Mut. Ins. Co. v. McMahon & Sons, 177 W.Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. U.S. Fidelity & Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998).

9. “ ‘Language in an insurance policy should be given its plain, ordinary meaning.’ Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986), overruled, in part, on other grounds by National Mut. Ins. Co. v. McMahon & Sons, 177 W.Va. 734, 356 S.E.2d 488 (1987).” Syl. pt. 1, Mylan Labs. Inc. v. Am. Motorists Ins. Co., 226 W.Va. 307, 700 S.E.2d 518 (2010).

10. “ ‘Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.’ Syllabus, Keffer v. Prudential Ins. Co., 153 W.Va. 813, 172 S.E.2d 714 (1970).” Syl. pt. 2, Mylan Labs. Inc. v. Am. Motorists Ins. Co., 226 W.Va. 307, 700 S.E.2d 518 (2010).

Don C.A. Parker, Esq., Glen A. Murphy, Esq., Charity K. Flynn, Esq., Spilman Thomas & Battle, PLLC, Charleston, WV, for Petitioner.

Chad S. Lovejoy, Esq., Duffield, Lovejoy & Stemple, PLLC, Huntington, WV, Stephen C. Littlepage, Hyer & Littlepage, Point Pleasant, WV, for Respondent.

PER CURIAM:

This case is before the Court upon the appeal of the defendant below, National Union Fire Insurance Company of Pittsburgh, PA (“National Union”). In this case, National Union appeals from the September 30, 2010, order of the Circuit Court of Kanawha County. This order denied National Union's motion for summary judgment and found as a matter of law that insurance coverage exists for the claims of the respondent, Jennifer Miller. National Union contends that the circuit court erred in finding that insurance coverage exists as to Ms. Miller's claims. National Union seeks reversal of the order granting judgment in Ms. Miller's favor.

After a thorough review of the record presented for consideration, the briefs, the legal authorities cited, and the arguments of the petitioner and respondent, we find that the circuit court committed reversible error by determining as a matter of law that insurance coverage exists. We therefore reverse the circuit court's order denying the petitioner's motion for summary judgment and its finding of coverage in favor of the respondent, and we remand this case for proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 2007, while riding on a bicycle with a friend, Trais Westfall's face struck a wire strung along the property line of land owned by the West Virginia Department of Forestry (“WVDOF”) ¹ called the Clements State Tree Nursery. The nursery and the land through which Ms. Westfall traveled abutting the nursery is situated in West Columbia, Mason County, West Virginia. As a result of contact with the wire, Ms. Westfall suffered a severe laceration to her face which has required surgical repair and will require future medical care.

At the time of the accident, the executive branches of the State of West Virginia, including WVDOF, were covered by “Wrongful Act Liability Insurance” through insurance policy # RMGL 159–52–62 issued through National Union. The policy, effective between July 1, 2007, and July 1, 2008, provided,

The Company will pay on behalf of the “Named Insured,” in accordance with the terms of this coverage part, all sums which “Named Insured” shall become legally obligated to pay as damages for a “loss” arising from any “Wrongful Act” of the “Named Insured” or of any other person for whose actions the “Named Insured” is legally responsible....

(Boldface emphasis in original). Under this language of the policy, the “Company” refers to National Union, and “Named Insured” refers to State agencies such as WVDOF. A “Wrongful Act” is defined as “any actual or alleged act, breach of duty, neglect, error, misstatement, misleading statement or omission by the “insured(s)” in the performance of [its] duties....” (Boldface emphasis in original). In this portion of the policy, the term “insured(s)” also includes WVDOF. Endorsement # 7 of the policy explicitly modifies coverage:

It is agreed that the insurance afforded under this policy does not apply to any claim resulting from the ownership, design, selection, installation, maintenance, location, supervision, operation, construction, use, or control of streets (including sidewalks, highways or other public thoroughfares), bridges, tunnels, dams, culverts, storm or sanitary sewers, rights-of-way, signs, warnings, markers, markings, guardrails, fences, or related or similar activities or things but it is agreed that the insurance afforded under this policy does apply (1) to claims of “bodily injury” or “property damage” which both directly result from and occur while employees of the state of West Virginia are physically present at the site of the incident at which the “bodily injury” or “property damage” occurred performing construction, maintenance, repair, or cleaning....

(Emphasis in original omitted, additional emphasis added).

Respondent and plaintiff below, Ms. Miller, individually and as mother and next friend of her minor daughter, Trais Westfall, brought suit against the WVDOF for injuries Ms. Westfall suffered on or near the property line of land owned by the WVDOF. In the complaint, the respondent asserted (1) negligence on the part of WVDOF and (2) a declaratory judgment action against National Union seeking recognition that National Union must indemnify the State in this case. National Union responded by filing a motion for summary judgment in which it maintained that it is not responsible for indemnifying the state because the exclusionary language in Endorsement # 7 of the insurance policy excluded coverage for injury caused by “fences, or similar or related ... things.”

In support of its motion for summary judgment, National Union presented the circuit court with depositions of two foresters employed by WVDOF, Dan Kincaid and Jason Huffman. Neither Mr. Kincaid nor Mr. Huffman was present at the time of the accident, nor were any other WVDOF employees, but both visited the site of the accident after the fact.

In his June 9, 2010 deposition, Mr. Kincaid, who was the Assistant State Forester for Special Projects for WVDOF at the time of the accident, discussed what he saw at the site of the accident:

A. Well, they had—it's just an old fence row. There's an evident fence row all around the property. Some of the fence was in disrepair in places. Other places were completely overgrown. In some places, it was standing fence. Other places, it was obvious neighbors had probably either cut it or pushed it down toward them so—because there was places in the orchard where you could see where they had camped overnight and set little fires and things.... It was just a—like you see in the woods anywhere, just an old fence row.

Q. Now, you—you said that it was—...—but it was obvious that it was an old fence row. I think that was your testimony. This may sound like a funny question, but why was it obvious to you that it was an old fence row?

A. Well, I'm a forester I guess so I go...