West Virginia Employers' Mut. Ins. Co. v. Summit Point Raceway Assocs., Inc.

228 W.Va. 360

719 S.E.2d 830

WEST VIRGINIA EMPLOYERS' MUTUAL INSURANCE COMPANY, d/b/a Brickstreet Mutual Insurance Company, d/b/a Brickstreet Insurance, Defendant Below, Petitioner

v.SUMMIT POINT RACEWAY ASSOCIATES, INC., Plaintiff Below, Respondent.

No. 101414.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 2011.Decided Nov. 18, 2011.

Syllabus by the Court

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

2. “ ‘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.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

3. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

4. In its enactment of W. Va.Code § 23–4C–6 (2005) (Repl.Vol.2010), the Legislature did not impose upon the West Virginia Employers' Mutual Insurance Company, d/b/a BrickStreet Mutual Insurance Company, the duty to make to its insureds an express, commercially reasonable offer of coverage for deliberate intent actions, as set out in W. Va.Code § 23–4C–1 et seq. , or to obtain a voluntary waiver of such coverage. Instead, the Legislature merely required that such coverage be made available to insureds upon their voluntary request.

5. “ ‘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).” Syllabus point 2, West Virginia Fire & Casualty Co. v. Stanley, 216 W.Va. 40, 602 S.E.2d 483 (2004).

6. “ ‘An insurer wishing to avoid liability on a policy purporting to give general or comprehensive coverage must make exclusionary clauses conspicuous, plain, and clear, placing them in such a fashion as to make obvious their relationship to other policy terms, and must bring such provisions to the attention of the insured.’ Syl. Pt. 10, Nat'l Mut. Ins. Co. v. McMahon & Sons, Inc., 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).” Syllabus point 6, Webster County Solid Waste Authority v. Brackenrich & Associates, Inc., 217 W.Va. 304, 306, 617 S.E.2d 851, 853 (2005).

Don C.A. Parker, Angela D. Herdman, Spillman, Thomas & Battle, Charleston, WV, for Petitioner.

William Richard McCune, Jr., Alex A. Tsiatsos, William Richard McCune, Jr. PLLC, Martinsburg, WV, Peter L. Chakmakian, Peter

L. Chakmakian, L.C., Charles Town, WV, for Respondent.

Carte P. Goodwin, Benjamin B. Ware, Goodwin & Goodwin, LLP, Charleston, WV, for Amicus Curiae, The West Virginia Business and Industry Council.Brent Kesner, Ernest G. Hentschel, II, Kesner, Kesner & Bramble, PLLC, Charleston, WV, for Amicus Curiae, TKS Contracting, Inc.; H. Talbott Tebay and H. Talbott Tebay DDS, Ltd.Jill Cranston Bentz, Mychal Sommer Schulz, Jacob A. Manning, Dinsmore & Shohl, LLP, Jeffrey M. Wakefield, Erica M. Baumgras, Flaherty Sensabaugh & Bonasso, PLLC, Charleston, WV, for Amicus Curiae, West Virginia Insurance Federation.DAVIS, Justice:

This case involves an appeal by West Virginia Employers' Mutual Insurance Company d/b/a BrickStreet Mutual Insurance Company (hereinafter referred to as “BrickStreet”), the petitioner herein and defendant below, from an “Agreed Judgment Order” entered by the Circuit Court of Jefferson County. The “Agreed Judgment Order” awarded to Summit Point Raceway Associates, Inc. (hereinafter referred to as “Summit Point”), the respondent herein and plaintiff below, the amount of $1,201,080.30 ¹ in damages and attorney's fees and costs in relation to the circuit court's earlier order granting Summit Point's motion for partial summary judgment on its bad faith claim against BrickStreet, which claim arose from a deliberate intent action that had been filed against Summit Point by one of its employees. BrickStreet argues in this appeal that, in granting partial summary judgment, the circuit court erred by concluding that, pursuant to W. Va.Code § 23–4C–6 (2005) (Repl.Vol.2010), BrickStreet had an affirmative duty to make a commercially reasonable offer of coverage for deliberate intent actions to Summit Point. In addition, BrickStreet contends that the circuit court erred in reaching its alternate conclusion that the “Workers Compensation and Employers Liability Insurance Policy” that BrickStreet issued to Summit Point was ambiguous with regard to deliberate intent coverage, and finding, therefore, that, under the doctrine of reasonable expectations, the BrickStreet policy included coverage for deliberate intent actions. Summit Point, on the other hand, argues that the circuit court's challenged conclusions were not erroneous. Based upon our consideration of the parties' briefs, the briefs of various Amici Curiae,² the pertinent authorities, and the oral arguments presented, we now reverse the order of the circuit court.

I.FACTUAL AND PROCEDURAL HISTORY

Summit Point is a West Virginia corporation that, in 2007, was insured under a “Workers Compensation and Employers Liability Insurance Policy” issued by BrickStreet.³ Brandon Gregory, an employee of Summit Point, was injured on February 27, 2007, when he caught his hand in a wood planer. Mr. Gregory submitted a claim for workers' compensation under Summit Point's policy with BrickStreet, which claim was paid in full. In addition, Mr. Gregory filed a deliberate intent lawsuit against Summit Point alleging a violation of W. Va.Code § 23–4–2(d)(2)(ii) (2005) (Repl.Vol.2010). On April 14, 2008, Summit Point notified BrickStreet of the deliberate intent lawsuit and requested BrickStreet to assume the costs of Summit Point's defense. Summit Point received no response to its April 14th letter. Thereafter, Summit Point submitted two additional communications to BrickStreet: a second letter sent by certified mail on June 24, 2008, and a third letter sent on July 29, 2008, also requesting BrickStreet to assume its defense of the deliberate intent action filed by Mr. Gregory. BrickStreet responded to Summit Point on August 14, 2008, and denied coverage based upon a “West Virginia Intentional Injury Exclusion Endorsement” contained in the policy issued to Summit Point. Meanwhile, Summit Point had assumed the attorney's fees and costs associated with defending and ultimately settling the deliberate intent action.⁴

Thereafter, in July 2009, Summit Point filed a complaint against BrickStreet alleging claims of breach of contract, common law bad faith, statutory violations, and unfair trade and claim practices. During discovery, Summit Point filed a motion seeking partial summary judgment based upon its assertion that BrickStreet had a statutory obligation to make a “commercially reasonable” offer of coverage for “deliberate intent” claims and actions. In addition, Summit Point asserted that language in the policy issued to it by BrickStreet that purported to exclude coverage for deliberate intent claims or actions was ambiguous. Consequently, Summit Point contended that BrickStreet was required to provide it with coverage for Mr. Gregory's deliberate intent lawsuit. By order entered May 4, 2010, the circuit court granted Summit Point's motion for partial summary judgment. By subsequent “Agreed Judgment Order” entered June 29, 2010, the circuit court awarded damages to Summit Point in the amount of $1,201,080.30, with interest accruing from May 15, 2010, until the judgment was paid in full. It is from this “Agreed Judgment Order” that BrickStreet now appeals.⁵

II.STANDARD OF REVIEW

In this appeal we are asked to determine whether the circuit court erred in granting partial summary judgment in favor of Summit Point. Thus, we are guided by the well-established rule that “[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). Furthermore, our case law has made clear that “ ‘[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.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992). With due regard for the foregoing principles, we will address the issues raised in this appeal.

III.DISCUSSION

On appeal to this Court, BrickStreet argues that the circuit court erred in granting partial summary judgment to Summit Point by concluding that: (1) BrickStreet's obligations with respect to deliberate intent coverage under W. Va.Code § 23–4C–6 and Syllabus point 1 of Bias v. Nationwide Mutual Insurance Co., 179 W.Va. 125, 365 S.E.2d 789 (1987), superseded by statute as recognized in Luikart v. Valley Brook Concrete & Supply, Inc., 216 W.Va. 748, 613 S.E.2d 896 (2005) (per curiam), mandate an express offer of coverage; and (2) the policy language at issue was ambiguous.⁶ We will address each of these issues in turn.

A. BrickStreet's Obligations under W. Va.Code § 23–4C–6 and Bias v. Nationwide Mutual Insurance Co.

In granting partial summary judgment, the circuit court concluded that W. Va.Code § 23–4C–6 and this Court's decision in Bias v. Nationwide Mutual Insurance Co., 179 W.Va. 125, 365 S.E.2d 789, required BrickStreet to expressly offer deliberate intent...