American States Insurance v. Barbara Surbaugh
745 S.E.2d 179
W. Va.2013Background
- In 1997, Gerald Kirchner was accidentally shot and killed at Grimmett Enterprises, where Robbie Bragg was an employee.
- Grimmett Enterprises was insured by American States; the dispute centers on an employee exclusion in the policy.
- In 2002, Bragg and Grimmett Enterprises settled with Ms. Surbaugh, with an agreed judgment and assignment of insurer claims.
- Ms. Surbaugh filed a 2005 declaratory judgment action against American States to determine coverage for the claim.
- The circuit court bifurcated the declaratory action from the underlying wrongful death suit and denied summary judgment on the declaratory claim in 2010 and 2011.
- A 2011 jury verdict held the exclusion was not brought to Grimmett’s attention; the circuit court later reversed and remanded for summary judgment in American States’ favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who decides if the exclusion was brought to attention? | Surbaugh urged the issue be tried by a jury as a fact question. | American States contends this is a matter for the court as a question of law. | Trial court, not jury, determines adequacy of notice. |
| Whether the exclusion is enforceable as a matter of law | Surbaugh argues factual disputes on disclosure preclude summary judgment. | American States argues the exclusion is unambiguous, conspicuous, and disclosed; hence summary judgment should be granted. | Exclusion is unambiguous, conspicuous, and disclosed; insurer is entitled to summary judgment. |
Key Cases Cited
- McMahon & Sons, Inc. v. National Mutual Insurance Co., 177 W.Va. 734 (1987) (exclusion must be conspicuous and brought to attention)
- Luikart v. Valley Brook Concrete & Supply, Inc., 216 W.Va. 748 (2005) (exclusion disclosure sufficient where policy warned to read entire policy)
- Mitchell v. Broadnax, 208 W.Va. 36 (2000) (duty to read policy; exclusions may be explained by disclosure doctrine)
- Mountain Lodge Ass’n v. Crum & Forster Indem. Co., 210 W.Va. 536 (2001) (Jury on triable issues in declaratory actions; otherwise court determines issues of law)
- Payne v. Weston, 195 W.Va. 502 (1995) (policy interpretation and ambiguity governed by contract principles)
- New Hampshire Ins. Co. v. RRK, Inc., 230 W.Va. 52 (2012) (reasonable expectations doctrine in pre- and post-sale representations)