Wrenn v. West Virginia Dept. of Transp.

• Decision Date: 02 November 2009
• Docket Number: No. 34717.,34717.
• Citation: 686 S.E.2d 75
• Court: West Virginia Supreme Court
• Parties: Howard WRENN and Sandra Belcher, as Natural Parents and Co-Administrators of the Estate of Matthew Wrenn; and Angelia Harper, as Natural Mother and Administrator of the Estate of Justin Janes, Plaintiffs Below, Appellants v. The WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant Below, Appellee.

686 S.E.2d 75

Howard WRENN and Sandra Belcher, as Natural Parents and Co-Administrators of the Estate of Matthew Wrenn; and Angelia Harper, as Natural Mother and Administrator of the Estate of Justin Janes, Plaintiffs Below, Appellants v. The WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant Below, Appellee.

No. 34717.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 2009.

Decided November 2, 2009.

Dissenting Opinion of Justice Davis November 12, 2009.

Syllabus by the Court

1. "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 coverage, fall outside the traditional constitutional bar to suits against the State." Syl. Pt. 2, Pittsburgh Elevator v. West Virginia Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).

2. "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, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), overruled, in part, on other grounds by Potesta v. U.S. Fid. & Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998).

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." Syllabus Keffer v. Prudential Ins. Co. of Am., 153 W.Va. 813, 172 S.E.2d 714 (1970).

4. "The general rule of construction in governmental tort legislation cases favors liability, not immunity." Syl. Pt. 2, in part, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).

5. "The Legislature has also vested in the State Board of Insurance (Risk and Insurance Management) considerable latitude to fix the scope of coverage and contractual exceptions to that coverage by regulation or by negotiation of the terms of particular applicable insurance policies." Syl. Pt. 4, in part, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

6. Recognizing the breadth of the Division of Highway's "primary functions," and the expense that would be incurred by providing insurance coverage for every function, the coverage currently afforded by the State's liability insurance policy meets the requirement that such coverage provide "significantly broad protection." Although the exclusions contained in Endorsement No. 7 to the State's liability insurance policy preclude coverage of many of the Division of Highway's primary functions, the Endorsement does not violate the laws and public policy of West Virginia.

Mark W. Kelley, Esq., Keith B. Walker, Esq., Ray, Winton & Kelley, Charleston, WV, for the Appellants.

John L. MacCorkle, Esq., MacCorkle, Lavender, Casey & Sweeney, Charleston, WV, for the Appellee.

WORKMAN, Justice:

This case is before this Court upon an appeal from a final order of the Circuit Court of Wyoming County, West Virginia, granting a motion to dismiss filed by the Appellee and Defendant below, the West Virginia Department of Transportation, Division of Highways (hereinafter called "DOH"). In that Order, the circuit court concluded that the DOH is entitled to sovereign immunity in this case because the plain language of Endorsement No. 7 of the State of West Virginia's (hereinafter called "the State") liability insurance policy excludes coverage for the claims asserted by the Appellants and Plaintiffs below, the Estates of Matthew Wrenn and Justin Janes. For the following reasons, the Court affirms the circuit court's Order and holds that the exemptions contained in Endorsement No. 7 do not violate West Virginia law or public policy.

I. FACTS

Returning from a hunting trip on the evening of November 26, 2007, two young men, Matthew Wrenn and Justin Janes, were traveling together in a vehicle on County Route 35/1, also known as Devil's Fork Road. As the men rounded an "S" curve and started across a single-lane bridge, their vehicle dropped off the edge and overturned in a deep impoundment of water. Both men drowned.

The Appellants, Howard Wrenn and Sandra Belcher, as natural parents and co-administrators of the estate of Matthew Wrenn, and Angelia Harper, as natural mother and administrator of the estate of Justin Janes, allege that numerous accidents have occurred at this particular site on Devil's Fork Road. Indeed, another motorist had died in a similar accident at the same bridge only months before the deaths in this case. The Appellants state that this section of the road consists of multiple, sharp "S" curves, which open into a single-lane bridge that crosses several steel culverts. They allege that, as a result of "washing out" and the buildup of excess debris, a deep impoundment of water has formed approximately fifteen feet under the bridge. They further assert that the bridge itself has no shoulder, guardrails, warning signs, fog lines, edge lines, or other markings to alert motorists to the danger. Moreover, no signs precede the bridge to warn motorists of what they are approaching.

The Appellants further contend that following the previous deadly accident on this road, local citizens contacted the DOH to request that it inspect the site and take the steps necessary to eliminate or minimize the existing hazards. The DOH failed to respond to these requests; indeed, one citizen had allegedly set up a meeting with a DOH official who then failed to appear at the date and time arranged.

On April 18, 2008, the Appellants filed a complaint alleging that the accident in question was directly and proximately caused by the DOH's negligent failure to inspect, repair, maintain, attend to and make reasonably safe this section of Devil's Fork Road. They further requested that, should the DOH invoke exclusions to its insurance coverage contained in "Endorsement No. 7" to its liability policy, the circuit court declare such exclusion null and void as contravening West Virginia law and public policy.¹

In lieu of filing an answer, the DOH filed a motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(1), alleging that the circuit court lacked jurisdiction because the State is entitled to sovereign immunity. As predicted, the DOH asserted that exclusions set forth in Endorsement No. 7 to the State's liability insurance policy preclude coverage of the types of claims asserted in the Complaint. After conducting oral argument, the circuit court granted the DOH's motion, finding that the language of Endorsement No. 7 clearly and unambiguously excluded coverage of the claims asserted and that the DOH was entitled to sovereign immunity. Accordingly, the circuit court dismissed the Appellants' Complaint with prejudice.

II. STANDARD OF REVIEW

The Court generally reviews circuit court orders granting motions to dismiss de novo. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Moreover, "`appellate courts review questions involving principles of sovereign immunity de novo.'" Blessing v. Nat'l Eng'g & Contracting Co., 222 W.Va. 267, 269, 664 S.E.2d 152, 154 (2008) (quoting Gribben v. Kirk, 195 W.Va. 488, 493, 466 S.E.2d 147, 152 (1995)). Similarly, the appropriate standard of review for the determination of public policy questions is also plenary. Mitchell v. Broadnax, 208 W.Va. 36, 42, 537 S.E.2d 882, 888 (2000), superseded by statute on other grounds as stated in State ex rel. Citifinancial, Inc. v. Madden, 223 W.Va. 229, 236 n. 20, 672 S.E.2d 365, 372 n. 20 (2008). Consequently, the Court reviews both of the issued raised in this appeal under the de novo standard.

III. DISCUSSION

A. Overview of West Virginia's Liability Insurance Policy

Article VI, Section 35 of the Constitution of West Virginia grants sovereign immunity to the State. Regarding the DOH in particular, West Virginia Code § 17-4-37 (2009) specifically grants sovereign immunity for damages resulting from "the defective construction or condition of any state road or bridge."

Despite this broad immunity, the West Virginia Legislature has recognized that the State should, in certain instances, be held liable for damages resulting from acts undertaken, or responsibilities incurred, by its officials, agents and employees. Accordingly, West Virginia Code § 29-12-1 to -13 (2008) requires that the State establish and develop "an adequate, economical and sound state insurance and bonding service on all state property, activities and responsibilities." W. Va.Code § 29-12-1.

To accomplish this goal, the Legislature established the State Board of Risk and Insurance Management (hereinafter called "BRIM"), which is charged with the duty of supervising and controlling the state insurance program, id. at § 29-12-3, and is given significant discretion in doing so:

[BRIM] has, without limitation and in its discretion as it seems necessary for the benefit of the insurance program, general supervision and control over the insurance of state property, activities and responsibilities, including:

(A) The acquisition and cancellation of state insurance;

(B) Determination of the kind or kinds of coverage;

(C) Determination of the amount or limits for each kind of coverage;

(D) Determination of the conditions, limitations, exclusions, endorsements, amendments and deductible forms of insurance coverage;

(E) Inspections or examinations relating to insurance coverage of state property, activities and responsibilities;

(F) Reinsurance; and

(G) Any and all matters, factors and considerations entering into negotiations for advantageous rates on and coverage of such state property, activities and responsibilities.

Id. at § 29-12-5(a)(1) (emphasis added). West Virginia Code § 29-12-5(a)(2) further provides that:

[BRIM] shall endeavor to secure reasonably broad protection against loss, damage or liability to state property and...