ELK RUN COAL COMPANY, INC. d/b/a Republic Energy, Defendant and Third-Party Plaintiff, Petitioner v. CANOPIUS U.S. INSURANCE, INC. (f/k/a Omega U.S. Insurance, Inc.); RSUI Indemnity Company; National Casualty Company; and Scottsdale Insurance Company, Third-Party Defendants, Respondents.
No. 14-0723.
Supreme Court of Appeals of West Virginia.
Submitted April 22, 2015. Decided June 9, 2015.
775 S.E.2d 65
Brent K. Kesner, Kesner & Kesner, P.L.L.C., Charleston, West Virginia, Attorney for Respondents, Canopius U.S. Insurance, Inc. and RSUI Indemnity Company.
Charles K. Gould, Jenkins Fenstermaker, P.L.L.C., Huntington, West Virginia, Attorney for Respondents, National Casualty Company and Scottsdale Insurance Company.
DAVIS, Justice:
Petitioner, Elk Run Coal Co., Inc., d/b/a Republic Energy (“Elk Run“), defendant and third-party plaintiff below, appeals four separate orders entered by the Circuit Court of Kanawha County on May 28, 2014. The orders grant summary judgment in favor of four different insurance companies and deny Elk Run‘s motion for partial summary judgment against one insurer. Third-party complaints filed by Elk Run against the four insurers were dismissed with prejudice. Elk Run contends that the circuit court erred in concluding that none of the insurance policies provided coverage to Elk Run where a contract between Elk Run and the named insured under the policies, Medford Trucking, LLC (“Medford“),1 was an insured contract. The four insurance companies filed timely responses arguing that the circuit court did not err in relying on certain policy provisions to determine there was no coverage. After a careful review of the briefs submitted by the parties, the record submitted for appeal, the oral arguments presented to this Court, and the applicable case law, we determine that the circuit court erred in granting summary judgment to two of the insurers. We therefore reverse, in part; affirm, in part; and remand this case for additional proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
The facts leading to the instant dispute begin with a “Hauling and Delivery Agreement” (“H & D Agreement“) between Elk Run and Medford whereby Medford would haul Elk Run‘s coal to various destinations designated by Elk Run.
On May 31, 2011, Medford truck driver Timothy Walker (“Mr. Walker“) was sitting seat-belted in his parked coal truck while the truck was being loaded with coal by Elk Run employee Eric Scott Redden (“Mr. Redden“). Mr. Redden had directed Mr. Walker where to park the truck and had begun loading it with coal using a piece of equipment referred to as an “end-loader” or “front-end loader.” During the course of loading the truck, Mr. Redden allegedly lost consciousness and struck the truck with the front-end loader thereby flipping the truck and causing injury to Mr. Walker. Elk Run and Mr. Redden have stipulated that they “will not argue or assert a comparative negligence defense against Plaintiff Timothy Walker at the trial of this matter.” Similarly, there has been no allegation that Medford caused or contributed to the accident in any way.
Following the accident, Mr. Walker commenced a civil action against Elk Run and others on October 3, 2011.
The instant dispute involves the availability of insurance coverage to Elk Run in relation
9.1 Except as otherwise expressly provided herein, Contractor [Medford] shall indemnify, defend and save harmless Owner [Elk Run], its members, parent companies, sister companies, predecessors, successors, affiliates, insurers, reinsurers, other contractors, successors and assigns, and the officers, directors, shareholders, employees and agents of each of the foregoing (collectively “Owner‘s Indemnified Persons“) from and against any and all demands, actions, suits, claims, rights, losses (including, but not limited to, diminution in value), controversies, damages, costs, expenses (including, but not limited to, interest, fines, penalties, costs of preparation and investigation, and the reasonable fees and expenses of attorneys, accountants and other professional advisers), and any other liability of whatsoever kind or nature against Owner‘s Indemnified Persons (collectively, “Losses“), whether on account of damage or injury (including death) to persons or property, violation of law or regulation, or otherwise, relating to, resulting from, arising out of, caused by or sustained in connection with, directly or indirectly, Contractor‘s performance of the Work 2 or other activities performed pursuant to this Agreement (including work and activities performed by subcontractors) or Contractor‘s nonperformance or breach of the terms of this Agreement. . . .
(Emphasis and footnote added).3
In addition, pursuant to the “Indemnity; Insurance” clause of the H & D Agreement, Medford was required to purchase insurance:
9.3 Before commencing Work hereunder, Contractor [Medford] . . . shall obtain, and throughout the term of this Agreement maintain, at its sole expense, the following insurance coverages:
. . . .
(b) Commercial General Liability Insurance with minimum limits of $2,000,000 for each occurrence and $2,000,000 general aggregate, for death, bodily injury and property damage, including coverage for independent contractors, products and completed operations, Blanket Broad Form Contractual, cross-liability, personal injury liability, Broad Form Property Damage, and where an exposure exists, coverage with the explosion, collapse and underground (XCU) hazard exclusions deleted from the policy.
. . . .
(d) Automobile Liability Insurance, including owned, non-owned and hired vehicle coverage with limits of liability of not less than $2,000,000 combined single limits for death, bodily injury and property damage claims.
. . . .
B. Except as to workers’ compensation insurance, Owner [Elk Run] shall be named as an additional insured.
(Emphasis added).
In apparent accordance with the foregoing provisions, Medford purchased a commercial general liability (“CGL“) policy from Canopius U.S. Insurance, Inc., f/k/a Omega U.S. Insurance, Inc. (“Canopius“), and a related commercial excess liability policy (“excess policy“) from RSUI Indemnity Company (“RSUI“). Additionally, Medford purchased a commercial automobile liability policy, issued by National Casualty Company (“National“), and a related commercial automobile excess liability policy, issued by Scottsdale Insurance Company (“Scottsdale“). Each of these policies provided coverage in the amount of $1,000,000 per occurrence.
On October 9, 2012, Mr. Walker filed an amended complaint naming Elk Run and Mr. Redden as defendants. Thereafter, Elk Run asserted a third-party complaint against Dr. Yasar J. Aksoy.4 On May 16, 2013, Elk Run filed an amended third-party complaint adding as defendants Canopius, RSUI, National, and Scottsdale. Elk Run‘s complaint sought, in relevant part, a declaration that there was insurance coverage for Mr. Walker‘s claim against Elk Run under either the CGL policy issued to Medford by Canopius (with excess coverage by RSUI) or the automobile liability policy issued to Medford by National (with excess coverage by Scottsdale).
Meanwhile, Mr. Walker made a settlement demand on Elk Run. Elk Run forwarded the demand to Canopius, and Canopius responded that it would not make any offer in response. Elk Run eventually reached a settlement agreement with Mr. Walker, and his claims against Elk Run and Mr. Redden were dismissed. None of the insurers contributed to the settlement; therefore, Elk Run‘s third-party declaratory action against the insurers remained.
In January 2014, Elk Run moved for partial summary judgment against Canopius. On February 3, 2014, and February 11, 2014, respectively, Canopius and RSUI each filed a motion for summary judgment against Elk Run. On March 7, 2014, National and Scottsdale each filed a motion for summary judgment. On April 8, 2014, Elk Run filed a cross-motion for summary judgment against National.
On May 28, 2014, the circuit court entered four separate orders granting summary judgment in favor of Canopius, RSUI, National, and Scottsdale, and denying Elk Run‘s motion for partial summary judgment against Canopius.5 Elk Run‘s third-party complaints against Canopius, RSUI, National, and Scottsdale were dismissed with prejudice. This appeal followed.
II. STANDARD OF REVIEW
We review de novo Elk Run‘s appeal of the circuit court‘s summary judgment orders. “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). To the extent that the circuit court also denied summary judgment to Elk Run, we note that “[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). Our de novo review is guided by the principle 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.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
We additionally observe that “[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination that, like a lower court‘s grant of summary judgment, shall be reviewed de novo on appeal.” Syl. pt. 2, Riffe v. Home Finders Assocs., Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999). It is also pertinent for us to note that the “[d]etermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.” Syl. pt. 1, Tennant v. Smallwood, 211 W.Va. 703, 568 S.E.2d 10 (2002). With due regard for the forgoing standards, we consider the issues raised by Elk Run.
III. DISCUSSION
Elk Run seeks coverage under four policies of insurance; however, two of the policies are for excess coverage. Coverage under the excess policies is, in part, dependent upon coverage under the primary policies. Therefore, it is necessary to first determine whether there is coverage under the primary policies. We begin with the CGL policy.
Elk Run asserts four errors by the circuit court in finding that Elk Run was not entitled to coverage under the Canopius CGL policy. We address them in turn. First, Elk Run contends that the H & D Agreement between Medford and Elk Run qualifies as an “insured contract.” Accordingly, Elk Run stands in the shoes of Medford for coverage purposes.6
The Canopius CGL policy defines an “insured contract” in relevant part as:
9.f. That part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
“Language in an insurance policy should be given its plain, ordinary meaning.” Syl. pt. 8, Cherrington v. Erie Ins. Prop. & Cas. Co., 231 W.Va. 470, 745 S.E.2d 508 (2013) (internal quotations and citations omitted). Applying the plain language above, it is clear that, insofar as the indemnity agreement between Elk Run and Medford was part of their H & D Agreement and required Medford to “assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization,” it is an “insured contract” under the policy.7 Because
Canopius argues that there is no coverage for Elk Run‘s sole negligence pursuant to the “Blanket Additional Insured Endorsement,” which provides, in relevant part, that
[t]he insurance provided to these additional insureds is limited as follows:
1. That person or organization is an additional insured only with respect to liability for “bodily injury“, “property damage” or “personal and advertising injury” caused, in whole or in part, by:
a. Your acts or omissions; or
b. The acts or omissions of those acting on your behalf.
(Emphasis added). To the extent that “your” refers to Medford as the named insured, subsection (a) does not apply insofar as the underlying liability does not result from any act or omission by Medford. However, the circuit court also concluded that subsection (b) does not apply based upon its conclusion that Elk Run was not “acting on [Medford‘s] behalf” in loading coal onto Medford‘s truck. We disagree.
A case similar to the instant matter is Norfolk Southern Railway Co. v. National Union Fire Insurance of Pittsburgh, PA, 999 F.Supp.2d 906 (S.D.W.Va.2014). The facts of Norfolk Southern are that employees of Norfolk Southern Railway Company (“Norfolk Southern“) and Cobra Natural Resources, LLC (“Cobra“) were “positioning a train under a coal loading facility.” Id. at 909. During this process, a rail broke causing several cars to derail. One car struck the coal loading facility causing it to collapse. Several lawsuits were subsequently filed against Norfolk Southern. Cobra did not cause the derailment. An agreement between Norfolk Southern and Cobra required Cobra to maintain insurance under which Norfolk Southern was an additional insured. The policy obtained by Cobra provided coverage for additional insureds “only with respect to liability arising out of ‘Your Work‘, ‘Your Product’ and to property owned or used by you.” Id. at 912 (internal quotations omitted).9 The district court observed that “[t]he policy defines ‘Your Work,’ in relevant part, as ‘(1) work or operations performed by you or on your behalf; and (2) materials, parts or equipment furnished in connection with such work or operations.‘” Id. (emphasis added). The court concluded that the policy provided coverage for Norfolk Southern, the additional insured, because the derailment “arose out of” Cobra‘s “work” as defined in the policy. Id. at 914. See also Twin City Fire Ins. Co. v. Ohio Cas. Ins. Co., 480 F.3d 1254, 1264 (11th Cir.2007) (finding coverage for indemnity obligation triggered by accident arising out of indemnitor‘s work because the work placed indemnitor‘s employees in the path of accident caused by indemnitee‘s negligence); Perkins v. Rubicon, Inc., 563 So.2d 258, 259 (La.1990) (finding indemnity provision requiring injury “arising out of” indemnitor‘s performance of work required “connexity similar to that required for determining cause-in-fact,” and concluding that injury triggered indemnification because injured employee would not have been present to be
Similarly, we find coverage for Elk Run under the Canopius policy provision qualifying Elk Run as “an additional insured only with respect to liability . . . caused, in whole or in part, by: . . . [the] acts or omissions of those acting on your [Medford‘s] behalf.” The underlying injury in this case occurred while an Elk Run employee was loading coal onto a Medford truck. In loading the coal onto the Medford truck, Elk Run was acting on Medford‘s behalf. First, the H & D Agreement originally acknowledged that Elk Run “shall supply a loader with operator to assist Contractor [Medford] in the performance of the Work.” The circuit court rejected this clause as evidence that Elk Run‘s activities were on behalf of Medford because this provision was omitted by an amendment to the H & D Agreement that became effective prior to the incident underlying this claim. To the contrary, however, we find the fact that Elk Run was no longer contractually obligated to supply a loader with operator to assist Medford does not diminish the fact that Elk Run, nevertheless, continued to provide this assistance and, in doing so, was acting on Medford‘s behalf.
Elk Run next contends that the circuit court erred by finding that the public policy of the State of West Virginia does not permit one to obtain indemnification for one‘s own conduct. The circuit court relied on
W.Va.Code § 55-8-14 requires courts to void a broad indemnity agreement only: (1) if the indemnitee is found by the trier-of-fact to be solely (100 percent) negligent in causing the accident; and (2) it cannot be inferred from the contract that there was a proper agreement to purchase insurance for the benefit of all concerned.
Syl. pt. 2, Dalton v. Childress Serv. Corp., 189 W.Va. 428, 432 S.E.2d 98 (1993) (emphasis added); see also Id., at 431, 432 S.E.2d at 101 (“[A] just public policy demands that indemnity agreements be permitted unless they go beyond a mere allocation of potential joint and several liability and indemnify against the sole negligence of the indemnitee without an appropriate insurance fund, bought pursuant to the contract, for the express purpose of protecting all concerned. A contract that provides in substance that A shall purchase insurance to protect B against actions arising from B‘s sole negligence does not violate the statute as public policy encourages both the allocation of risks and the purchase of insurance.” (emphasis added)). The H & D Agreement between Elk Run and Medford clearly included an agreement to purchase insurance for the benefit of all concerned; therefore, even under Dalton, the agreement is not void and unenforceable. Finally, the circuit court‘s conclusion is contrary to this Court‘s precedent. Indeed, this Court has expressly declared that “[c]ontracts of indemnity against one‘s own negligence do not contravene public policy and are valid.” Syl. pt. 1, Sellers v. Owens-Illinois Glass Co., 156 W.Va. 87, 191 S.E.2d 166 (1972). Accord Syl. pt. 3, Riggle v. Allied Chem. Corp., 180 W.Va. 561, 378 S.E.2d 282 (1989); Syl. pt. 4, State ex rel. Vapor Corp. v. Narick, 173 W.Va. 770, 320 S.E.2d 345 (1984). Consequently, we find the circuit court erred in concluding that the H & D Agreement violated the public policy of this State.
Elk Run next asserts that the circuit court erred in finding the language of the H & D Agreement was not sufficiently clear to express that Medford had agreed to indemnify Elk Run for accidents arising from Elk Run‘s sole negligence. This Court, in Sellers v. Owens-Illinois Glass Co., 156 W.Va. 87, 191 S.E.2d 166, held that, “[g]enerally, contracts will not be construed to indemnify one against his own negligence, unless such intention is expressed in clear and definite
Elk Run‘s final argument related to the CGL policy is that the circuit court erred in finding the auto exclusion in the Canopius policy applicable. The Canopius policy contains an exclusion for “‘[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’ . . . owned or operated by . . . any insured.” The Medford truck in which Mr. Walker was sitting at the time of his injury qualifies as an “auto” under the Canopius policy.11 The question, then, is whether the loss was caused by the “use” of the auto. Pursuant to the policy, “[u]se includes operation and ‘loading or unloading.‘”12 Significantly, however, the definition
The Canopius policy fails to define the term “mechanical device.” As Elk Run notes, courts have concluded that a “front-end loader” is a “mechanical device.” See Palo, Inc. v. Williamsburg Nat‘l Ins. Co., 200 Cal.App.4th 282, 292, 132 Cal.Rptr.3d 592, 600 (2011) (referring to a front-end loader as a mechanical device); Cobb Cnty. v. Hunt, 166 Ga.App. 409, 410, 304 S.E.2d 403, 405 (1983) (referring to a front-end loader as a mechanical device); Lafata v. Village of Lisle, 185 Ill.App.3d 203, 207, 133 Ill.Dec. 373, 541 N.E.2d 210, 213 (1989) (finding that front-end loader was a mechanical contrivance or device), aff‘d, 137 Ill.2d 347, 148 Ill.Dec. 732, 561 N.E.2d 38 (1990). “It is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured.” Syl. pt. 4, National Mut. Ins. Co. v. McMahon & Sons, 177 W.Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. United States Fid. & Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998). Thus, given the authorities for concluding that a “front-end loader” is a “mechanical device,” we will treat it as such for purposes of the Canopius policy.
Because “loading or unloading” does not include the movement of property by means of a mechanical device other than a hand truck, and because the coal was being loaded onto Medford‘s truck using a mechanical device, the loading of the coal was not a “use” of an automobile as excluded by the policy. Accordingly, the circuit court erred in applying the auto exclusion of the Canopius policy as a grounds for finding coverage was not available to Elk Run.13
mechanical device, other than a hand truck, that is not attached to the . . . “auto“.
Based upon our reasoning above, we conclude that the circuit court erred in granting summary judgment to Canopius based upon the circuit court‘s erroneous finding that Elk Run was not entitled to coverage under the Canopius policy. We therefore reverse the circuit court‘s grant of summary judgment to Canopius. Because we additionally have found coverage for Elk Run under the terms of the Canopius policy, we likewise reverse the circuit court‘s denial of Elk Run‘s motion for partial summary judgment. We remand this case for proceedings consistent with this opinion, including the entry of an order granting partial summary judgment to Elk Run on the issue of coverage under the Canopius policy.
We next consider the excess policy issued by RSUI that is related to the Canopius policy. The circuit court gave two grounds for granting summary judgment to RSUI. First, the circuit court found that the RSUI excess policy does not apply to any occurrence for which the underlying insurance does not apply. Because we find coverage under the Canopius policy, this portion of the circuit court‘s ruling is erroneous. In addition, the circuit court found that the RSUI policy contains an exclusion that precludes coverage for Mr. Walker‘s claim against Elk Run independent of the Canopius policy. This “Employers Liability Exclusion Endorsement” provides, in relevant part, that the RSUI policy “does not apply to bodily injury . . . to: . . . [a]n employee of the insured arising out of and in the course
erred by finding no coverage under the Canopius CGL policy, we affirm, without discussion, the circuit court‘s grant of summary judgment to the commercial automobile insurer, National. In addition, because the excess policy issued by Scottsdale follows the terms, conditions, exclusions, definitions, and endorsements of the commercial automobile policy issued by National, we likewise affirm the circuit court‘s grant of summary judgment to Scottsdale.
of employment by the insured.” The provision goes on to provide that “[t]his exclusion applies: . . . [w]hether the insured may be liable as an employer or in any other capacity; and [t]o any obligation to share damages with or repay someone else who must pay damages because of the injury.” We conclude that this exclusion does not preclude coverage for Elk Run in the instant matter.
RSUI concedes that its policy is a following form policy. RSUI explains that such a policy incorporates the same terms as the Canopius Policy, unless the RSUI policy specifies otherwise.14 Notably, the RSUI policy contains no provisions addressing insured contracts. Therefore, the insured contract provisions of the Canopius policy apply. We determined above, in relation to the Canopius policy, that because this action involves an insured contract, Elk Run steps into the shoes of Medford for coverage purposes. See Syl. pt. 7, Consolidation Coal Co. v. Boston Old Colony Ins. Co., 203 W.Va. 385, 508 S.E.2d 102 (“In a policy for commercial general liability insurance . . . when a party has an ‘insured contract,’ that party stands in the same shoes as the insured for coverage purposes.“). Thus, Elk Run is an additional insured under the RSUI policy, just as it is under the Canopius policy. Looking at the plain language of the RSUI exception from the perspective of Elk Run as an insured thereunder, it becomes apparent that the exclusion does not apply. Elk Run is neither seeking coverage for an injury to its own employee, nor seeking to repay someone else who must pay damages because of the injury. Accordingly, the circuit court erred in granting summary judgment to RSUI and we reverse the same.
IV. CONCLUSION
For the reasons stated in the body of this memorandum decision, we reverse the May 28, 2014, order of the circuit court of Kanawha County granting summary judgment to Canopius and denying Elk Run‘s motion for partial summary judgment. Likewise, the circuit court‘s order of May 28, 2014, granting summary judgement to RSUI is reversed. We remand this case with instructions to the circuit court to enter an order granting partial summary judgment to Elk Run on the issue of coverage under the Canopius policy, and for further proceedings consistent with this memorandum decision. The two orders granting summary judgment to National and Scottsdale, also entered on May 28, 2014, are affirmed.15
Reversed, in part; Affirmed, in part; and Remanded.
Notes
Syl. pt. 5, Marlin v. Wetzel Cnty. Bd. of Educ., 212 W.Va. 215, 569 S.E.2d 462 (2002).[t]he phrase “liability assumed by the insured under any contract” in an insurance policy, or words to that effect, refers to liability incurred when an insured promises to indemnify or hold harmless another party, and thereby agrees to assume that other party‘s tort liability.
- a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or
- b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged.
- 11. “Loading or unloading” means the handling of property:
- a. After it is moved from the place where it is accepted for movement into or onto an “auto“;
- b. While it is in or on an “auto“; or
- c. While it is being moved from an “auto” to the place where it is finally delivered;