*1 Inc., 386, 572 S.E.2d Syl. pt. Realty Hatten v.
See Mason also 380, 135 S.E.2d
(“Questions present negligence jury the evi- fact for determination when conflicting issues is pertaining
dence to such facts, though undisputed, even where men draw dif- such that reasonable them.”).
ferent conclusions
IV.
CONCLUSION foregoing, we find view Stanley’s properly
circuit court denied Ms.
pre-verdict judgment of a matter motion judgment Consequently, law. entered Chevy is affirmed. favor of Dr.
Affirmed. Individually
Misty BLESSING, and as the Estate
Administrator of Wallie Below, Appellant
Blessing, Plaintiff
NATIONAL ENGINEERING & CON COMPANY, Foreign
TRACTING Cor Beatty Construction,
poration; Balfour Foreign Corporation;
Inc., Virginia Department Transpor
West
tation, Highways, Agency An Division of Virginia, of West State Site-Blau Inc; Engineers, Arrow Concrete
velt
Company; Concrete of Arrow West Vir Inc.; Nutting
ginia, Company; H.C. P.E.,
Byron Smith, Individually, Defen Below, Appellees.
dants
No. 33433. Appeals
Supreme Court of Virginia. Feb. 2008.
Submitted April
Decided
Concurring Opinion of Justice
Benjamin June Opinion of
Concurring Justice July
Starcher
Roger Williams, D. McHugh, James P. Charleston, Appellant. for Waller, Tabit, Eric R. Steptoe Joanna I. & Johnson, PLLC, Charleston, Appellees, for Engineering National Contracting Compa- & ny; Construction, Beatty and Balfour Inc. Wilcox, Stonestreet, Timbera C. Robert M. Shohl, LLP, Charleston, Dinsmore & Ap- for pellees, Virginia Department West of Trans- portation, Highways, Division of Byron Smith.
PER CURIAM: Misty Blessing appeals from Septem- 13, 2006, ber order of the Circuit Court of County granting summary Kanawha judg- Appellee ment to Department West (the of Transportation “Department”) in con- wrongful nection with a death Appel- action against lant filed and its employee, Appellee Byron grant- Smith. ing summary judgment Smith, and Mr. the trial court ruled that the absence of insurance Appel- barred pursuing lant from her claims under the doc- sovereign immunity. trine of Upon our re- matter, view of this genuine we think that a issue of material fact exists as to' the issue of and, in this ease accord- ingly, we reverse.
I. Factual
Background
and Procedural
3, 2003,
On October
working
Ap-
while
for
pellee National Engineering and Contracting
(“NECC”)1
at a construction site
Bridge
known as the
Logan
Man/Rita
County,
Virginia, Appellant’s
husband
Blessing
Wallie
injuries
sustained fatal
scaffolding2
the tremie
on which he was
working collapsed. Appellant
instituted a
wrongful
September
death action on
through which she asserted
negli-
various
1. NECC was the
hopper
contractor the state hired
and a concrete
pouring
bridge.
build the
pillars
concrete into caissons that form the
that a
bridge
upon.
deck sits
specialized
2. A
type
tremie scaffold is a
of scaf-
folding
pipe
which involves the use of a tremie
”
gence
de novo.
Id. at
claims
manag-
Department’s project
standard of
for the sum
152. Our
review
er for the construction of the
mary judgment
appealed from simi
Man/Rita
Bridge.3
Syl.
Peavy,
larly
Painter v.
de novo.
Pt.
189, 192
lawsuit,
response to
*3
(1994). And,
customary
as is
our
review
summary
and
Mr. Smith filed motion for
summary judgment rulings,
of
the test we
judgment, asserting that
the circuit court
there
apply is to examine whether
remains
jurisdiction
subject
lacked
matter
over them
of
tried
any genuine issues
fact to be
and
sovereign
based on the doctrine of
immuni-
inquiry regarding
whether further
facts
ty.4
recognizing the inapplicability
After
of
clarify
of the
application
desirable to
law.
immunity
recovery
sovereign
where
192,
According
See id. at
nance, cleaning excluding repair, or in- spection being performed of materi- work or III. Discussion others),’” als used there was syllabus point Pittsburgh of two coverage applicable policy. under the Decid- Virginia Regents, Elevator v. West Board of ing that Mr. Smith’s on-site duties “as the 743, (1983), 310 S.E.2d 172 W.Va. 675 we Project Supervisor per- d[id] amount recovery which seek no “[s]uits held ‘construction, maintenance, formance of re- funds, allege but rather that re from state pair cleaning,’” or court deter- circuit limits covery sought up under and coverage mined that there was insurance liability coverage, the State’s fall insurance liability policy under the conse- state’s and bar the traditional constitutional outside quently Appellant’s ruled claims were against the suits State.” See W.Va. Const. by sovereign immunity. barred VI, explained § 35. As in Pitts art. we Arguing that there are of fact as to Elevator, statutory burgh prohibition coverage pre- insurance existence of 29-12-5(a)(4) Virginia § Code found West from being clude this matter resolved with- (2004), prevents which insurers who issue inquiry, out further factual seeks policies Insur to the State Board of Risk and grant of sum- reversal of lower court’s (“Board Risk”) Management from ance mary judgment. grant relying on the state’s of constitutional II. of Review Standard immunity, functions as a limited bar to sover immunity.6 eign 172 310 ap W.Va. plenary
A of review standard Consequently, at 688. where the plies appeal recognition S.E.2d this based on our Kirk, subject issue are of insurance claims at 195 W.Va. 466 S.E.2d Gribben v. and (1995), procured by the of Risk “appellate review Board 147 courts directly sub- involving principles sovereign general treasury is not questions state’s grant negli- right of sov- grounded simple to waive constitutional Those claims negligence, gence, professional premises Pittsburgh lia- ereign immunity, explained as we bility. Elevator, recovery that seek from insurance suits purse logi- public than rather from the Const, VI, § 4. See art. W.Va. sovereign cally fail to invoke the doctrine pre- is to doctrine whose —a Virgi- Pittsburgh Syl. v. West 5. See Pt. Elevator legislatively diminution of funds from vent the Regents, nia 310 S.E.2d Bel. of purposes. appropriated W.Va. at 172 (1983). 675 S.E.2d at 688-89. 310 Despite recognition our in Mellon-Stuart Hall, 291, 296, 129 S.E.2d 359 Legislature not have the does risk, precept ployees jected to then the of the State of West constitutional physically present inci- at the site of the “[i]mmunity sovereign is relaxed [but] “bodily injury” dent at which the liability to the extent of the insurance cover “property damage” performing occurred age.” Virginia Dept. ex rel. State construction, maintenance, repair, or Madden, 497, 500, Transp. v. (but cleaning excluding inspection of being performed be- work or materials ease, seeking In this is not others) ing used to claims of recovery from the coffers.7 For the state’s “bodily injury” “property damage” necessary pre- that would which arise out maintenance or use serving vent as a buildings abut sidewalks which covered claims, separate bar to her she looks to two policy, (emphasis supplied) *4 policies agree- as well as an indemnification correctly by The trial court found that policy ment. The first issued to the was exclusionary language virtue of the set forth Virginia by of State West National Union coverage in Endorsement No. no insurance (“National Union”) Fire Insurance injuries directly Blessing’s exists “unless Mr. Pittsburgh, Pennsylvania, of and the second ‘employees resulted from occurred and while policy is one that to Balfour Beat- was issued Virginia physically of the State of West Construction, Inc., ty parent company of present per- at the site of the incident NECC, by Liberty Mutual. We will examine construction, maintenance, forming repair, or coverage separately of as to (but cleaning excluding inspection of work policies. each of these being performed or materials used Policy A. National Union others)....’” ruling As the basis for its that Blessing’s fatality, At the time of Mr. nonexistent, coverage was the trial court liability policy issued National Union ruled that “Mr. Smith’s conduct the Pro- as to the extended to the ject Supervisor perform- does not amount to negligence. state for certain acts of The ‘construction, maintenance, repair, ance of or ” parties in operative cleaning.’ policy language found in Endorsement No. Appellant argues that the trial court erred coverage by providing: modifies the which in that the record in this case is devoid agreed It is that this insurance afforded indicating “any employee of evidence of policy apply any under this does not physically the State of West was resulting ownership, design, claim from the present Blessing’s at the site of Wallie acci- selection, installation, maintenance, loca construction, maintenance, ‘performing dent ” tion, construction, supervision, operation, repair, cleaning_’ support or As for her use, (including or control of streets side position, Blessing deposition Mrs. cites to walks, highways public thorough or other Byron excerpts of Smith and Jack Hardin fares), tunnels, dams, culverts, bridges, that were attached as exhibits to her re- sewers, sanitary rights-of-way, storm or sponse Department’s motion for sum- markers, signs, warnings, markings, mary judgment, as well as answers several fences,
guardrails,
or related or similar
interrogatories that were referenced and in-
agreed
things
activities or
but it is
Appellant
cluded
the same document.
the insurance afforded under this
deposition testimony
maintains that
(1)
apply
“bodily inju
does
to claims of
Messrs. Smith and Hardin8 establish that
ry”
“property damage”
or
which
ongoing
Project
both
duties of Mr. Smith as a
directly result
and
Engineer
Supervisor9
occur while em~
or
were such that he
complaint, Appellant expressly
Project Engineer
In her amended
as the
at the construction site.
that,
pled
Department,
being "quality
as
she
Mr. Hardin described his duties as
only up
recover under and
liability
to the limits of the
control”
nature.
applica-
insurance
in effect and
point during
9.At
some
the construction
allegations
complaint.
ble to the
in the
Bridge,
Mr. Smith’s classification
Man/Rita
the
upgraded
(EIT 2)
inspector employed by
engineer
training
8. Mr. Hardin was an
state as an
was
reported
daily
engineer
highway
state who
on a
Mr.
basis to
Smith
to that of
key
either
terms are
actively involved
the construction
definitions
multiple meanings.
lacking
susceptible
just
Bridge
and not
the Man/Rita
the term
the term “construction” nor
Neither
perform inspection-related duties.
site to
National
“inspection” is defined
within
Project Supervisor
Project Engi-
As the
adopted
principles
Based on
Union
physically
neer for
who was
contracts,
for the construction
present
scaffolding collapse
time of the
at the
argues
“inspection”
the term
death,
Blessing’s
that led to Mr.
narrowly
so as not
should be
defined
duties
asserts that
review Mr. Smith’s
performed by Mr. Smith
include the tasks
engaged
that he
in the
demonstrates
and, conversely,
“construction”
term
day-to-day
bridge
on a
construction
broadly
of encom
defined in terms
should
capacity
Project Engi-
In his
basis.
as
passing
performed
the tasks Mr. Smith
so
Supervisor,
su-
neer or
Smith
coverage.
See D’Annun
to find
favor
daily
pervised
progress occurring on a
Security-Connecticut
zio v.
Ins.
Life
right
and
basis but reserved
to intervene
39, 41, 410
progress upon observing
alter the work
(recognizing principle
reason
“[w]hen
practices
unsafe construction
or meth-
meaning of
people can differ
able
about
One such intervention occurred when
ods.
contract,
ambig
an insurance
the contract is
a “practice pour,”
Mr. Smith observed
uous,
ambiguities
all
be resolved
will
*5
appeared
“safety
to
a
issue”
noted what
be
insured”).
suggests
of the
favor
regard
pour.
to the
In
to
addition
terms
ambiguous meaning
that
the
of the
construction,
monitoring
progress
the
compels
in
ruling
discussion
a
favor
under
responsibility
approv-
the
Mr. Smith had
for
following
on the
construct:
based
payments to
ing progress
NECC.
Virginia that
“It
settled law in
is well
in
are
ambiguous terms
insurance contracts
response
arguments,
In
to these
the De-
strictly
construed
the insurance
to be
partment
employees,
that
includ-
contends
its
Syl.
company
and
favor of the insured.”
ing
actually performing
Mr.
“are not
Mut. Ins.
v. McMahon &
Pt.
Nat’l
Co.
any
the work attendant
to the construc-
Sons, Inc.,
S.E.2d 488
177 W.Va.
tion,
they
only inspecting
are
the
but rather
the
project to ensure
contractor uses
interpreta-
fully
While
convinced
proceeds according
and
to
correct materials
upon
impose
the
tion that
seeks to
specifications.” Refuting Appel-
contract
the
issue,10
agree
that
contract
we
insurance
deposi-
that
contention
the submitted
lant’s
necessary to re-
inquiry
factual
is
additional
testimony provides
of work
tion
evidence
interpretation.
this issue of contract
solve
performed by Mr.
that should be
Smith
developed,
currently
is
we
As the record
related,
Depart-
the
as construction
viewed
definitively opine
Mr. Smith
cannot
whether
testimony
argues
excerpted
that
the
ment
than
solely engaged
inspection rather
position
to reenforce
that Mr.
serves
its
working on site at
work while
construction
limited to tasks
Smith’s on-site work was
however,
note,
Bridge.
do
the
We
Man/Rita
solely inspection in nature.
that were
deposition testimony sug-
Smith’s
that Mr.
many questions
require
job
“quality
that
gests
As with
he viewed his
duties as
quality con-
policies,
Typically,
the
in nature.
interpretation of insurance
control”11
the
according
specifica-
acknowledge
Department's
proceeds
con-
the contract
We must
the
by
be covered
obtained under
is outside the risks
tention
tions"
designed
policy specifically
for
Union
under discussion.
National Union
the National
Moreover,
observes,
inju-
Department
any
.employees
be
as the
instances
responsible
injury
pres-
by
performed
their
ry
"for an
virtue of
attributable to
work
they
perform-
employees
and the
the insur-
ence at the scene
work
covered
contractor's
perform-
ing.”
Department’s
requires
contrast
the contractor
ance
the state
roads and
place.
maintenance-related work on
ance of
have
bridges
logical
presume the
which it is
for
job
highway
describing his
duties as a
coverage,
Depart-
procurement
insurance
project,
follows:
engineer
Mr.
said as
Smith
suggests
performs
for the
ment
work it
Well,
engineer
just
highway
a clas-
is—it’s
"inspecting
project
to ensure
supervi-
can
You
also be
uses the correct materials
sification.
the contractor
inspection-related aspects
explained
trol connotes the
As
we
Marlin v. Wetzel
Education,
than
County
of work rather
the work itself.
Board
agree
indemnification
questions
Given
remain as to the
“essentially
ments are
nature
non-insur
extent of Mr. Smith’s on-site
involvement
ance contractual risk transfers.”
Id. at
Bridge,
the construction of the
we
Man/Rita
question,
Furthermore,
what
respect
to the issues Without
with
ease,
acting outside the law?
my
government
surrounding this
I must state
seri-
immunity
actor to
Sovereign
allows a state
regarding the constitutional-
ous reservations
private
actor under
escape liability
where
ity
prior
this Court’s
decision
Pitts-
be afforded
Virginia
the same circumstances would
burgh Elevator v. West
Board of
be
luxury; and for that reason should
Those
unnecessary
leading
confu
provide
to wholesale
ty’s decision to remand the case
jurisprudence.
Id. 205 W.Va.
sion
our
opportunity
to review
the circuit court
(Starcher, J.,
dissent
developed and ruled majority in the exception presented The at the circuit court level. opinion is: recovery from state seek no Suits which Justice, STARCHER, concurring: recovery funds, allege that but rather 2008) (Filed July up to the limits under and coverage, fall liability insurance State’s by the the result reached I concur with bar to constitutional outside the traditional separately I majority opinion. write against the State. suits juris our reiterate that based on “archaic constitutional prudence v. West Pittsburgh Elevator Syllabus point in the 21st language” that has little relevance Regents, 172 W.Va. Virginia Board of Virginia University Bd. century. 310 S.E.2d University v. ex rel. West Trustees colleague, Warren My Justice former *9 741, 118, 125, S.E.2d 748 Graf, 516 205 W.Va. actually McGraw, has state “[T]he noted (1998) (Starcher, J., dissenting). to NOT want perverse incentive large claim facing a English coverage when rooted in Sovereign is goals of risk to the runs counter King ‘the can do premise [which] “the under law Board, 743, 310 172 Regents, in-depth these contradic- discussion of 1. For an 1210-16; tions, 675, Stan. L.Rev. at see also see 53 682-87 S.E.2d Pittsburgh v. West Elevator 276 spreading protection catastrophic spread damages from costs it inflict-
loss_” Ayersman
citizen,
private
v. Division
Environ-
ed—rather than a
who is left
Protection,
544, 548,
mental
542
remedy.
Chemerinsky
argues,
As
58,
(McGraw, J.,
concur-
spread
injuries
better to
“[I]t is
the costs of
ring).
government
illegal
among
from
actions
citizenry
wronged
entire
than to make the
case,
High-
In the instant
the Division of
individual bear the entire loss.” Id. at 1217.
(“DOH”)
ways
argues that because its em-
ployee,
present in
“inspec-
Mr.
an
The
should
issue
whether insurance
capacity
Blessing
fatally
tion”
available,
is
but whether the State breached
injured,
the National Union
is not
duty
Yes,
damages.
taxpay-
its
and caused
applicable,
and the suit is barred
sover-
impact
damage judg-
ers
feel the
eign immunity.
argu-
The DOH is therefore
treasury,
ments on the state
and when tax-
ing that
it does not have insurance cover- payers
impact, they
feel that
will demand
contrary
to “a normal insured
—which
government.
better behavior
their
The
party
who wants maximum
in an
greater government
ultimate result will be
accident-”
Id. at
ed on the merits. prospect actuality
“The damages creating
can be crucial in an incentive for the
government comply with the law.”
Chemerinsky, 53 Stan.L.Rev. at 1214. With-
liability,
out fear of
the State has little incen-
actions,
tive to be careful in
its
because
Virginia,
STATE of West
Plaintiff
injuries resulting
perform
from a failure to
Below, Appellee,
its
are of
consequence.
duties
no financial
principal justification
A
for the doctrine of
sovereign immunity
protec
said to be
STAMM,
David Gabriel
Defendant
tion of the financial structure of the State.
Below, Appellant.
Elevator,
Pittsburgh
No. 33505.
article,
S.E.2d at 688.
In his
Professor
Chemerinsky
justification.
addresses this
Supreme
Appeals
Court of
Stan.
(Quoting
L.Rev.
1216-17.
Virginia.
Maine,
706, 749,
Alden v.
527 U.S.
119 S.Ct.
(1999)),
federal fiat and its into the debtor, subject status disfavored
power private levy citizens to on its trea
sury perhaps government buildings even property which the State administers public’s behalf.” 53 Stan.L.Rev. added).
(emphasis among
But us could who ever view negligent
debtor as a result of one’s own acts through “favorable”? When the State its individual, negligence injured
own has it is
precisely position the State that in a better