724 S.E.2d 343
W. Va.2012Background
- West Virginia’s WVDOF was insured by National Union for a July 1, 2007-July 1, 2008 policy that included Endorsement #7 limiting coverage for fences and related structures.
- Trais Westfall sustained facial injuries when a wire along the WVDOF property line contacted her while riding a bicycle near the Clements State Tree Nursery.
- Jennifer Miller sued WVDOF for negligence and sought indemnity from National Union under the policy.
- National Union moved for summary judgment arguing Endorsement #7 excludes the injury; the circuit court denied and found coverage as a matter of law.
- Two WVDOF foresters testified the involved structure appeared to be an old or remnant fence row, not clearly a current fence.
- The West Virginia Supreme Court of Appeals reversed, holding Endorsement #7’s applicability was a genuine factual issue and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Endorsement #7 excludes coverage for the injury | Miller contends the structure is a fence or related/similar, so exclusion may not apply | National Union contends Endorsement #7 excludes injuries from fences or related structures | Issue unresolved; remanded for fact determination; not final on coverage |
Key Cases Cited
- Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983) (suits against state liability insurance fall outside immunity when insurance applies)
- Aetna Cas. & Sur. Co. v. Fed. Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963) (summary judgment standards; burden on movant)
- Kelley v. City of Williamson, 221 W.Va. 506, 655 S.E.2d 528 (2007) (summary judgment standards; evidence burden)
- Mylan Labs. Inc. v. Am. Motorists Ins. Co., 226 W.Va. 307, 700 S.E.2d 518 (2010) (plain meaning governs but ambiguity resolved against insurer)
- Keffer v. Prudential Ins. Co., 153 W.Va. 813, 172 S.E.2d 714 (1970) (plain and unambiguous policy terms; strict construction against insurer)
- Nat'l Mut. Ins. Co. v. McMahon & Sons Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987) (exclusionary language construed against insurer; coverage interpretation)