Prete v. Merchants Property Ins. Co. of Indiana, No. 13570

• Court: Supreme Court of West Virginia
• Writing for the Court: FLOWERS
• Citation: 223 S.E.2d 441,159 W.Va. 508
• Parties: James A. PRETE and Doris L. Prete v. The MERCHANTS PROPERTY INSURANCE COMPANY OF INDIANA, a corporation, and the Potomac Insurance Company, a corporation.
• Docket Number: No. 13570
• Decision Date: 06 April 1976

Page 441

223 S.E.2d 441 159 W.Va. 508 James A. PRETE and Doris L. Prete
v.
The MERCHANTS PROPERTY INSURANCE COMPANY OF INDIANA, a
corporation, and the Potomac Insurance Company, a
corporation. No. 13570. Supreme Court of Appeals of West Virginia. April 6, 1976.

Page 442

Syllabus by the Court

1. Whenever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.

2. 'Ambiguous and irreconcilable provisions of an insurance policy should be construed strictly against the insurer and liberally in favor of the insured, although such construction should not be unreasonably applied to contravene the object and plain intent of the parties.' Point 2, Syllabus, Marson Coal Co. v. Insurance Co., W.Va., 210 S.E.2d 747 (1974).

[159 W.Va. 509] 3. A case will be disposed of without remanding it to the trial court to find the facts specially and state separately its conclusions of law in accordance with Rule 52(a) of the Rules of Civil Procedure, when there is sufficient information in the record with regard to the facts which control the proper disposition of the case.

S. J. Angotti, Morgantown, for appellants.

Steptoe & Johnson, Robert M. Steptoe, Jr., Clarksburg, for appellees.

FLOWERS, Justice:

The plaintiffs, James A. Prete and Doris L. Prete, prosecute this appeal from an adverse judgment of the Circuit Court of Monongalia County. The plaintiffs were constructing an apartment building in the City of Morgantown and had purchased two multi-peril insurance policies with builder's risk provisions from the defendants, The Merchants Property Insurance Company of Indiana and The Potomac Insurance Company. The policies covered the apartment structure and any construction materials and supplies while stored within the specific areas designated by the policies. While stored in the basement of a building located across the street from the construction project, but within 82 feet of the insured premises, certain materials and supplies intended for use in the insured premises were destroyed by fire. The plaintiffs were denied recovery upon their two insurance policies by the court's conclusion that the destroyed materials were not on premises described in the policy when the fire occurred. The following policy provision is the focal point of the dispute:

[159 W.Va. 510] 'Coverage A--Building(s): . . ..

This policy also covers temporary structures, materials, equipment and supplies

Page 443

of all kinds incident to the construction of said building or structure and, when not otherwise covered by insurance, builders' machinery, tools and equipment owned by the insured or similar property of others for not exceeding the amount for which the insured is liable; All while in or on the described buildings, structures or temporary structures, or in the open (including within vehicles) on the described premises or within 100 feet thereof.' (emphasis added)

The plaintiffs and the defendants contend that the italicized language of the policy provision is clear and unambiguous but they ascribe different meanings to it. ¹

The defendants argue that construction materials are only covered when they are stored in a building on the 'described premises' or in the open within 100 feet of the premises. The...