Soliva v. Shand, Morahan & Co., Inc., CC957

• Court: Supreme Court of West Virginia
• Writing for the Court: BROTHERTON
• Citation: 176 W.Va. 430,345 S.E.2d 33
• Decision Date: 11 June 1986
• Docket Number: No. CC957,CC957
• Parties: Alfredo R. SOLIVA, M.D. v. SHAND, MORAHAN & CO., INC., etc., et al.

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345 S.E.2d 33 176 W.Va. 430 Alfredo R. SOLIVA, M.D.
v.
SHAND, MORAHAN & CO., INC., etc., et al. No. CC957. Supreme Court of Appeals of
West Virginia. June 11, 1986.

[176 W.Va. 431] Syllabus by the Court

1. Language in an insurance policy should be given its plain, ordinary meaning.

2. "Whenever the language of an insurance policy provision is reasonably susceptible to two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous." Syl. pt. 1, Prete v. Merchants Property Ins., 159 W.Va. 508, 223 S.E.2d 441 (1976).

3. "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." Syl. pt. 1, Christopher v. United States Life Ins., 145 W.Va. 707, 116 S.E.2d 864 (1960).

4. "In ascertaining the intention of the parties to an insurance contract, the test is what a reasonable person in the

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insured's position would have understood the words of the policy to mean." Thompson v. State Automobile Mut. Ins., 122 W.Va. 551, 554, 11 S.E.2d 849, 850 (1940).

5. A party to a contract has a duty to read the instrument.

Paul E. Pinson, Williamson, W.T. Shaffer, Gale R. Lea, Jackson, Kelly, Holt & O'Farrell, Charleston, W. Graham Smith, Jr., J. Brooks Lawson, Jr., Williamson, for appellants.

H. Truman Chafin, Williamson, for appellee.

BROTHERTON, Justice:

This is a certified question from the Circuit Court of Mingo County which asks this Court whether a medical malpractice insurance company is required to defend and pay a judgment on a claims-made policy where a claim was made against the insured more than a year after the policy had expired. The Circuit Court answered this question in the affirmative. We reach the opposite conclusion for the reasons set out below.

On May 25, 1980, Dr. Alfredo R. Soliva contracted with Evanston Insurance Company ("Evanston") for a policy of malpractice liability insurance on a "claims-made" basis for a period of one year, ending May 25, 1981. For unknown reasons, he chose not to renew the Evanston policy and instead contracted with Aetna Life and Casualty ("Aetna") for a malpractice insurance policy beginning June 1, 1981. The Aetna [176 W.Va. 432] policy was an "occurrence" policy. On June 1, 1981, Evanston sent a certified letter to Dr. Soliva, offering an "optional extension period" as provided for in the Evanston policy. Dr. Soliva chose not to avail himself of this offer.

On June 12, 1982, Dr. Soliva was sued for malpractice which allegedly occurred between August 8, 1980, and November 24, 1980. Because the action was not filed prior to May 25, 1981, Evanston denied coverage on the basis that a claim was not made during the policy period. Aetna denied coverage because the alleged malpractice occurred before the effective date of the Aetna policy.

Dr. Soliva, finding himself apparently without insurance coverage, then instituted suit against both insurers and Shand, Morahan & Co., Inc., the insurance agent for Aetna. Both Evanston and Aetna moved for summary judgment. The court below sustained Aetna's motion but denied the summary judgment for Evanston. Upon its own motion the court then entered an order of certification pursuant to W.Va.Code § 58-5-2 (Supp.1985), requesting that this Court consider the following question:

Is defendant, Evanston Insurance Company, required to defend and pay judgment, if any, on behalf of Dr. Soliva when the claims made medical malpractice insurance policy written by defendant had expired more than one year before the claim or demand received by the plaintiff for money or services was first made against him?

The circuit court answered this question in the affirmative.

In stating his case to this Court, Dr. Soliva makes several contentions, which include:

(1) The claims-made language of the policy was ambiguous.

(2) Dr. Soliva's reasonable expectations were not fulfilled; and

(3) West Virginia law prohibits a claims-made insurance policy which does not include a tail provision of at least two years duration;

We now address these points. ¹

I.

Interpreting contracts of insurance is a problem often seen by this Court. Like any other legal problem, there is no automatic answer when one party claims that there is an ambiguity. Instead, to determine whether a provision in an insurance

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contract is ambiguous, we look to four rules of construction.

(1) The contract should be read as a whole with all policy provisions given effect. See generally 2 Couch on Insurance 2d § 15:29 (rev. ed. 1984). If the policy as a whole is unambiguous then the insured will not be allowed to create an ambiguity out of sections taken out of context.

(2) The policy language should be given its plain, ordinary meaning. See, e.g., Adkins v. American Casualty Co., 145 W.Va. 281, 285, 114 S.E.2d 556, 559 (1960). In no event should the plain language of the policy be twisted or distorted. See Green v. Farm Bureau Mut. Auto. In...