Submitted:
October 11, 2005
Filed:
December 2, 2005
Margaret L. Workman, Esq.
Michael
J. Farrell, Esq.
Charleston, West Virginia
Robert
L. Hogan, Esq.
Attorney for Appellant
Farrell,
Farrell & Farrell
Huntington,
West Virginia
Attorneys
for Appellees
JUSTICE
STARCHER delivered the Opinion of the Court.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the Decision
of the Court.
JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the
Decision of the Court.
JUDGE RUDOLPH J. MURENSKY, sitting by temporary assignment.
JUDGE O. C. SPAULDING, sitting by temporary assignment.
JUDGE SPAULDING dissents.
2. “In
the interpretation of statutory provisions the familiar maxim expressio unius
est exclusio alterius, the express mention of one thing implies the exclusion
of another, applies.” Syllabus Point 3, Manchin v. Dunfee, 174 W.Va.
532, 327 S.E.2d 710 (1984).
3. W.Va.
Code, 33-6-31(a) [1998] expressly requires that a motor vehicle insurance
policy contain a provision insuring the named insured and any other person responsible
for the use of or using the motor vehicle against liability to another for death,
bodily injury, loss or damage sustained as a result of negligence in the operation
or use of such vehicle. Any additional provision in a motor vehicle insurance
policy which tends to limit, reduce or nullify that statutorily-mandated liability
coverage, such as a “defense within limits provision” or similar provision
that allows defense costs and litigation expenses to be deducted from the limits
of liability coverage, is void and ineffective as against public policy.
4. “West Virginia Code § 29-12A-16(a) (1992) conveys broad discretion to both the West Virginia State Board of Risk and Insurance Management, as well as governmental entities, with regard to the type and amount of insurance to obtain. Consequently, when an insurer issues a custom-designed insurance policy to a governmental entity pursuant to the Governmental Tort Claims and Insurance Reform Act, West Virginia Code §§ 29-12A-1 to -18 (1992), that entity may incorporate language absolutely limiting liability under the policy, even if such language would otherwise violate the provisions of West Virginia Code § 33-6-31(b) (1996).” Syllabus Point 1, Trent v. Cook, 198 W.Va. 601, 482 S.E.2d 218 (1996).
5. An insurance company may incorporate limiting terms and conditions that violate W.Va. Code, 33-6-31 into a governmental entity's insurance policy. However, to be permissible under W.Va. Code, 29-12A-16(a) [2003], the limiting terms and conditions in the insurance policy must clearly be “determined by the political subdivision in its discretion.” The limiting terms and conditions must therefore be the result of some choice, judgment, volition, wish or inclination as a result of investigation or reasoning by the governmental entity. The terms and conditions are not enforceable merely because they are different from those found in the typical insurance policy. To the extent that Trent v. Cook, 198 W.Va. 601, 482 S.E.2d 218 (1996) says otherwise, it is modified.
Starcher,
J.:
In this
appeal from the Circuit Court of Kanawha County, we are asked to examine a “defense
within limits” provision in an automobile liability insurance policy purchased
by the City of Charleston. In a typical liability insurance policy, the insured
receives indemnification up to the policy limits under one portion of the policy,
and an unfettered defense against claims in another portion of the policy. But
in a defense within limits policy, all costs of defense are chargeable against,
and thereby erode or reduce, the indemnification policy limits. When the policy
limits are exhausted _ whether through the payment of claims to third parties
or the payment of defense costs _ the insurance company's obligation to provide
coverage and a defense terminates, and the City is exposed to any additional
liability.
The appellant filed the instant declaratory judgment action against the City's insurance company to determine the validity of the defense within limits provision. The appellant first learned of the provision in the course of a wrongful death lawsuit against the City, when the City revealed that nearly one-third of its liability coverage had been consumed by the insurance company for its attorney and litigation costs. The appellant contended that the defense within limits provision violated West Virginia law and public policy. The circuit court, however, entered an order concluding that the defense within limits provision in the City of Charleston's policy did not violate West Virginia law or public policy.
As
set forth below, we reverse the circuit court's order.
Mr. Anderson sustained serious injuries when his motorcycle impacted the ambulance; Mrs. Anderson was thrown from the motorcycle and died of her injuries the next day. Thereafter, Mr. Anderson and the administratrix of Mrs. Anderson's Estate, appellant Lillian Gibson, retained different attorneys. The attorney representing Mr. Anderson filed a personal injury suit against the City on August 20, 1999; a wrongful death action on behalf of Mrs. Anderson's Estate was filed on November 16, 1999. Thereafter these two actions were consolidated for discovery and trial.
The City of Charleston had purchased a “Public Entity All Lines Aggregate” insurance policy from the appellant, Northfield Insurance Company (“Northfield”). The policy contained an “aggregation” of numerous types of coverage, (See footnote 2) but pertinent to this case contained a $1,000,000.00 limit for automobile liability coverage. The policy was effective from March 31, 1999, until March 31, 2000.
Under most liability insurance policies, the insurance company has the twin, but separate, duties of indemnifying the insured against liability for a claim within the limits of the policy, and in addition to the limits of the policy providing a defense of any claim. However, by 2001, the attorneys for Mr. Anderson and Mrs. Anderson's Estate discovered that the City of Charleston's liability insurance policy had a “defense within limits” provision that included defense costs and litigation expenses within the limits of liability coverage. (See footnote 3) Under this provision, the $1,000,000.00 limit available for paying liability claims was first reduced by the costs of investigating and defending these claims.
The attorney
representing the appellee thereafter filed the instant declaratory judgment action
against appellant Northfield, asserting that the defense within limits provision
violated state law and public policy, and asked the circuit court to reform the
insurance policy to include a total of $1,000,000.00 in liability coverage.
In July
2002, the attorneys for Mr. Anderson and Mrs. Anderson's Estate learned that
defense litigation expenses had consumed over thirty percent of the City's insurance
coverage, and that the amount of insurance coverage available continued to be
reduced by ongoing defense attorney fees and costs. (See
footnote 4) On July 12, 2002, the parties agreed to settle their
claims against the City for the remaining balance of policy limits, a total
of $688,361.86 _ ostensibly to avoid further “cannibalization” of
the policy limits by the insurance company for defense costs. Of that amount,
Mr. Anderson received $150,000.00, and in return he waived his right to pursue
any additional relief.
Mrs.
Anderson's estate received the remaining $538,361.86. However, as part of the
settlement, the attorney representing Mrs. Anderson's Estate reserved the right
to pursue her declaratory judgment action against Northfield for the remaining
proceeds of the $1,000,000.00 liability policy _ that is, the $311,638.14 spent
by the insurance company on defense costs to the date of the settlement. (See
footnote 5)
After conducting discovery, the parties submitted the petition for declaratory relief to the circuit court for decision. On April 8, 2004, the circuit court entered an order denying the appellant's request for declaratory relief and dismissed the case. The circuit court concluded that the insurance policy purchased by the City of Charleston was a “custom- designed insurance policy,” and that as a custom-designed policy it could incorporate language that might violate specific requirements of West Virginia law. While the circuit court considered the appellant's argument that the Northfield insurance policy violated public policy, the court found that the public policy arguments advanced by the appellant were without merit. In dismissing the appellant's case, the circuit court refused to reform the policy to include $1,000,000.00 in liability coverage exclusive of defense attorney fees and litigation expenses.
The appellant
now appeals the circuit court's April 8, 2004 order.
Underwriters
hereby agree, subject to the limitations, terms and conditions hereunder mentioned,
to indemnify the Assured (See
footnote 6) for all sums which the Assured shall be obligated to
pay by reason
of the liability imposed upon the Assured by law or assumed by the Assured
under contract or agreement, for damages direct or consequential, and expenses,
all as more fully defined by the term 'ultimate net loss', arising out of any
occurrence on account of bodily injury including death at any time resulting
therefrom, suffered or alleged to have been suffered by any person or persons
(excepting employees of the Assured injured in the course of their employment),
and/or damage to or destruction of property or the loss of use thereof, arising
out of the ownership, maintenance or use of any automobile.
The declarations page of the policy states that the limits of liability for
such automobile liability coverage “shall not exceed . . . $1,000,000
each and every loss/and or occurrence . . . Ultimate net loss.” (See
footnote 7)
The resolution of this case centers upon the validity and effect of the policy's definition of “ultimate net loss.” It is the “ultimate net loss” provisions that convert the policy into a defense within limits policy. The policy defines “ultimate net loss” in the context of automobile liability coverage in this way:
For
Section III [“Automobile Liability”], the term “ultimate net loss” shall
mean the total sum which the Assured becomes obligated to pay by reason of bodily
injury or property damage claims, either through adjudication or compromise,
after making proper deductions for all recoveries and salvages.
“Ultimate
net loss” shall also include hospital, medical and funeral charges and all
sums paid as salaries, wages, compensation, fees, expenses for doctors and nurses,
also law costs, premiums on attachment of appeal bonds, expenses for
lawyers and investigators and other persons for litigation, settlement, adjustment
and investigation of claims or suits which are paid as a consequence of any
occurrence covered hereunder.
The appellant argues, inter alia, that the defense within limits language contained in the definition of “ultimate net loss” is contrary to public policy and should be unenforceable in an automobile liability insurance policy purchased by a governmental entity. The appellant also argues that, as a matter of law, every ambulance provider is required to have liability insurance coverage of $1,000,000.00. (See footnote 8) The appellant takes the position that an insurance company's inclusion of a defense within limits provision like that in appellee Northfield's policy, which reduces an emergency ambulance service provider's liability insurance coverage, violates public policy. Furthermore, as a general principle, the appellant contends that such a policy provision contained in a motor vehicle insurance policy also violates public policy.
The appellee argues, inter alia, that the insurance policy purchased by the City of Charleston is a “custom-designed policy.” The appellee concedes that for the typical insurance customer an insurance policy must contain the minimum types and amounts of coverage required by various statutes. However, the appellee argues that state law permits a governmental entity to purchase a custom-designed policy that does not meet the minimum statutory requirements. The appellee contends that the determination of whether a policy is custom-designed for a governmental entity does not depend upon the amount or degree of negotiation that went into the formation of the policy, and does not depend upon the particular words used in the policy. Instead, the appellee contends that a policy is custom- designed simply when it is different from the common, standardized, run-of-the-mill policy.
In sum, the appellee argues that the facts presented below show that the policy purchased by the City of Charleston is substantially different from most insurance policies, and is therefore custom-designed. Accordingly, even if the City's policy does not contain the statutorily-required elements of an insurance policy, the appellee argues that the policy is still enforceable.
The appellant counters by pointing out that the record shows that the City's manager simply requested that the appellee provide an insurance policy with $1,000,000.00 in liability coverage. The appellee argues that no specific, individualized provisions designed to meet the City's needs were requested, negotiated or included in the policy. Furthermore, the appellant asserts that the policy provided to the City of Charleston was a form policy which, in discovery below, the appellee admitted it had sold to dozens or hundreds of municipalities nationwide. The appellant therefore argues that the policy was not custom designed for the City, but was merely a form. To the extent the policy violates West Virginia law, the appellant argues that the policy should be reformed.
“In construing any insurance policy, it is appropriate to begin by considering whether the policy language is in accord with West Virginia law.” Adkins v. Meador, 201 W.Va. 148, 153, 494 S.E.2d 915, 920 (1997). The terms of the policy should be construed in light of the language, purpose and intent of the applicable statute. Provisions in an insurance policy that are more restrictive than statutory requirements are void and ineffective as against public policy. See Syllabus Point 2, Universal Underwriters Ins. Co. v. Taylor, 185 W.Va. 606, 408 S.E.2d 358 (1991); Syllabus Point 1, Bell v. State Farm Mut. Auto. Ins. Co., 157 W.Va. 623, 207 S.E.2d 147 (1974); Syllabus Point 2, Johnson v. Continental Casualty Co., 157 W.Va. 572, 201 S.E.2d 292 (1973).
When the language of an insurance policy is contrary to statute and therefore void, the policy should be reformed and construed to contain the coverage required by West Virginia law. W.Va. Code, 33-6-17 [1957] mandates that:
Any
insurance policy, rider, or endorsement hereafter issued and otherwise valid
which contains any condition or provision not in compliance with the requirements
of this chapter, shall not be thereby rendered invalid but shall be construed
and applied in accordance with such conditions and provisions as would have applied
had such policy, rider, or endorsement been in full compliance with this chapter.
We begin
our consideration of the parties' positions by looking to the insurance code,
and specifically to the required elements of a motor vehicle insurance policy. W.Va.
Code, 33-6-31(a) [1998] mandates that every automobile insurance policy sold
in West Virginia must contain coverage that protects the named insured against
liability for death, bodily injury, loss or damage that results from negligence
in the operation or use of a vehicle. W.Va. Code, 33-6-31(a) [1998] requires
the following coverage:
No policy or contract of bodily injury liability insurance, or of property damage liability insurance, covering liability arising from the ownership, maintenance or use of any motor vehicle, shall be issued or delivered in this state to the owner of such vehicle, or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle for which a certificate of title has been issued by the division of motor vehicles of this state, unless it shall contain a provision insuring the named insured and any other person . . . responsible for the use of or using the motor vehicle with the consent, expressed or implied, of the named insured . . . against liability for death or bodily injury sustained or loss or damage occasioned within the coverage of the policy or contract as a result of negligence in the operation or use of such vehicle by the named insured or by such person[.]
Notably absent from W.Va. Code, 33-6-31(a) is any requirement that an automobile liability insurance policy, in addition to protecting the insured up to the policy's limits against liability for death or bodily injury or loss or damage to a third party, also expend the policy limits to protect the named insured against the fees and expenses incurred by the insured or by the insurance company in defending claims. This code section is silent concerning whether liability coverage, intended by the Legislature to protect the interests of injured third parties, may be reduced by the tortfeasor's expenses or the expenses of the tortfeasor's insurance company _ expenses such as law costs, fees for lawyers and investigators, or expenses for the litigation, settlement, adjustment and investigation of claims or suits _ arising as a result of the tortfeasor's negligence in the operation or use of a vehicle. The statute does not state that liability coverage should protect the named insured against liability for death, bodily injury, loss or damage and the insured's and the insurance company's litigation expenses, attorney fees and other costs incurred as a result of the negligent operation or use of a motor vehicle.
“In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies.” Syllabus Point 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984). “This doctrine informs courts to exclude from operation those items not included in the list of elements that are given effect expressly by statutory language.” State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 630 n.11, 474 S.E.2d 554, 560 n.11 (1996). “[E]xplicit direction for something in one provision, and its absence in a parallel provision, implies an intent to negate it in the second context.” Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773, 779 (D.C.Cir.1990).
W.Va. Code, 33-6-31(a) expressly requires that a motor vehicle insurance policy contain a provision insuring the named insured and any other person responsible for the use of or using the motor vehicle against liability for another's death, bodily injury, property damage or loss sustained as a result of negligence in the operation or use of such vehicle. Because the code section is silent regarding the inclusion of additional types of coverage under the rubric of death, bodily injury or property damage liability coverage, we infer that the Legislature intended to prohibit insurance companies from reducing the required types of coverage by including other forms of coverage.
We
therefore conclude that W.Va. Code, 33-6-31(a) expressly requires that
a motor vehicle insurance policy contain a provision insuring the named insured
and any other person responsible for the use of or using the motor vehicle
against liability to another for
death, bodily injury, loss or damage sustained as a result of negligence in
the operation or use of such vehicle. Any additional provision in a motor vehicle
insurance policy which tends to limit, reduce or nullify that statutorily-mandated
liability coverage, such as a “defense within limits” or similar
provision that allows defense costs and litigation expenses to be deducted
from the limits of liability coverage is void and ineffective as against public
policy.
Therefore, in the typical motor vehicle insurance policy, it would violate W.Va. Code, 33-6-31(a) to include a defense within limits provision that “erodes,” “exhausts,” “wastes,” and “cannibalizes” the death, bodily injury, loss or damage liability coverage of the policy. It would violate the intent of the Legislature to reduce or nullify a vehicle owner's liability coverage by charging insurance claims management expenses against that statutorily-required liability coverage.
The question remains, however, whether the defense within limits provision in Northfield's “ultimate net loss” definition is enforceable in the City of Charleston's policy. If the Northfield policy was “custom-designed,” such that the City deliberately chose to purchase a policy with automobile liability coverage that was contrary to the requirements of W.Va. Code, 33-6-31(a), then the defense within limits provision might be enforceable.
W.Va. Code, 29-12A-16 [2003] permits a municipality to purchase a custom- designed policy that is at odds with statutory requirements that are binding upon the general public. W.Va. Code, 29-12A-16(a) states, in part:
A
political subdivision may use public funds to secure insurance with respect to
its potential liability and that of its
employees for damages in civil actions for injury, death or loss to persons
or property allegedly caused by an act or omission of the political subdivision
or any of its employees, including insurance coverage procured through the
state board of risk and insurance management. The insurance may be at the limits
for the circumstances, and subject to the terms and conditions that are determined
by the political subdivision in its discretion.
We interpreted this Code section as follows in Syllabus Point 1 of Trent
v. Cook, 198 W.Va. 601, 482 S.E.2d 218 (1996):
West
Virginia Code § 29-12A-16(a) (1992) conveys broad discretion to both the
West Virginia State Board of Risk and Insurance Management, as well as governmental
entities, with regard to the type and amount of insurance to obtain. Consequently,
when an insurer issues a custom-designed insurance policy to a governmental entity
pursuant to the Governmental Tort Claims and Insurance Reform Act, West Virginia
Code §§ 29-12A-1 to -18 (1992), that entity may incorporate language
absolutely limiting liability under the policy, even if such language would otherwise
violate the provisions of West Virginia Code § 33-6-31(b) (1996).
In Eggleston
v. West Virginia Dept. of Highways, 189 W.Va. 230, 233, 429 S.E.2d 636, 639
(1993), we explained that the hallmark of a custom-designed policy is that it
is “different from the usual insurance policy that is prepared and printed
by an insurance company and delivered to the insured, whose only input ordinarily
is not as to its language, but as to the amount and type of coverage.” In Trent
v. Cook, supra, we attempted to clarify Eggleston by defining “custom-designed
policy” in the following manner:
It
is a term of art, perhaps not well chosen in Eggleston, because its common
usage suggests a sophisticated level of negotiations and specific reasoning that
preceded the governmental entity's purchase of the subject insurance contract. The
term custom-designed policy actually implies nothing more than a policy whose terms stand
in contrast in some manner to those of standardized insurance policies.
198 W.Va. at 607, 482 S.E.2d at 224 (emphasis added).
Both the appellee and the appellant in the instant case rely upon the above- emphasized sentence in Trent v. Cook to support their position that the Northfield policy was, or was not, custom designed for the City of Charleston. The appellee asserts that its policy is custom designed because most of its provisions _ including the defense within limits provisions _ stand in contrast to the provisions found in typical, standardized liability insurance policies. The appellant, however, asserts that the appellee's policy was not customized for the City, but rather was standardized and typical for large public entities. The appellant contends that the record shows that policies identical to that sold to the City of Charleston have been sold by the appellee to dozens if not hundreds of municipalities nationwide.
We begin our consideration of the parties' positions by carefully considering the statutory authority for governmental entities to purchase a “custom-designed” policy. W.Va. Code, 29-12A-16(a) states that a liability insurance policy purchased by a political subdivision may be subject to unique terms and conditions, but those terms and conditions must be “determined by the political subdivision in its discretion.” By using the words “determined” and “discretion,” we presume the Legislature intended that a governmental entity must exercise some choice, judgment, volition, wish or inclination as a result of investigation or reasoning when settling upon the particular conditions or terms of an insurance policy that are contrary to statutory requirements. (See footnote 9) “It is always presumed that the legislature will not enact a meaningless or useless statute.” Syllabus Point 4, State ex rel. Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963). Therefore, courts should not, in the absence of evidence to the contrary, blithely presume that a governmental entity intended to ignore its obligations under the law. For W.Va. Code, 29-12A-16(a) to have any meaning, a governmental entity must understand that it is waiving a particular form of available coverage required by law, and that in doing so it is exposing its employees and the public fisc to liability to others for an employee's negligence.
Our definition of “custom-designed policy” in Trent v. Cook is not, however, fully in accord with W.Va. Code, 29-12A-16(a). Trent v. Cook can be read to suggest that a policy is permissible under W.Va. Code, 29-12A-16(a) solely because its “terms stand in contrast in some manner to those of standardized insurance policies.” 198 W.Va. at 607, 482 S.E.2d at 224. This statement clearly mischaracterizes the statute. To the extent that Trent v. Cook suggests that certain terms and conditions in a policy are permissible under W.Va. Code, 29-12A-16(a) merely because they stand in contrast in some manner to those of standardized policies, Trent v. Cook must be modified.
We therefore hold that an insurance company may incorporate limiting terms and conditions that violate W.Va. Code, 33-6-31 into a governmental entity's insurance policy. However, to be permissible under W.Va. Code, 29-12A-16(a) [2003], the limiting terms and conditions in the insurance policy must clearly be “determined by the political subdivision in its discretion.” The limiting terms and conditions must therefore be the result of some choice, judgment, volition, wish or inclination as a result of investigation or reasoning by the governmental entity. The terms and conditions are not enforceable merely because they are different from those found in the typical insurance policy. To the extent that Trent v. Cook, 198 W.Va. 601, 482 S.E.2d 218 (1996) says otherwise, it is modified.
Applied to the instant case, we conclude that the policy which the appellee provided to the City of Charleston was not a custom-designed policy. Certainly, defense within limits policy language, in which the limit of liability available for paying losses is reduced by the costs of defense, is unique and not typically found in the bulk of casualty insurance policies. (See footnote 10) The insurance policy presented to the City bore all the appearances of hat is defined in the insurance industry as a manuscript policy, a policy crafted to provide coverage to general groups of insureds with unique needs _ in this case, public or municipal entities. (See footnote 11) For instance, Section II(c) of the policy provides coverage for “law enforcement liability” to protect the City against claims for “Personal Injury, Bodily Injury, Property Damage, Violation of Civil Rights or First Aid” caused by the negligent acts of “a law enforcement official or officer[.]”
But the record below does not demonstrate that the City, through its employees or its elected representatives, consciously considered the terms and conditions contained within the Northfield insurance policy, and deliberately determined to purchase an insurance contract that was contrary to W.Va. Code, 33-6-31(a). The form nature of the policy, and lack of tailoring to the City's needs, is demonstrated most effectively by Section V of the Northfield policy, which sets forth provisions for workers' compensation insurance. Four pages of the policy are set aside to detail the various terms, conditions and exclusions applicable to the workers' compensation coverage. However, the declarations page of the policy notes that the City did not purchase workers' compensation coverage. Furthermore, in 1999, no private insurers were permitted to sell workers' compensation insurance in the State of West Virginia. Instead, employers _ including the City of Charleston _ were in most instances required to purchase coverage through the State-run Workers' Compensation Fund. (See footnote 12) Any suggestion that the Northfield policy was specifically and carefully crafted to meet the unique needs of the City of Charleston is therefore thwarted by the fact the policy contains four pages of language that were wholly irrelevant in the State of West Virginia _ all suggesting that the policy is simply another form policy.
We see nothing in the record to suggest that representatives for the City of Charleston exercised any discretion in selecting the “defense within limits” provision. There was no choice, judgment, volition, wish or inclination as a result of investigation or reasoning by the City; instead, the defense within limits language was included in the policy on a “take-it-or-leave-it” basis.
We therefore conclude that the appellee's policy sold to the City of Charleston was not a custom-designed policy within the meaning of W.Va. Code, 29-12A-16(a), and hold that the circuit court erred in ruling otherwise.
With that established, we further hold that the circuit court erred in holding that the defense within limits, or ultimate net loss, provision of the appellee's policy did not violate public policy. Specifically, a provision which allows defense costs and litigation expenses to be deducted from the limits of automobile liability coverage is contrary to W.Va. Code, 33-6-31(a). But on a more general note, we believe that the inclusion of a defense within limits provision in a governmental entity's insurance policy offends traditional notions of fairness. Governmental entities purchase liability insurance to protect their employees and to protect the public fisc. The quiet inclusion of a defense within limits provision into a governmental entity's liability policy subverts that intent by using the liability coverage to pay the insurance company's litigation expenses and attorney fees, rather than protecting the governmental entity and its employees and making injured third parties whole against their losses.
The circuit
court's order in favor of the appellee must therefore be reversed, and the case
remanded to permit the reformation of the policy so that it conforms with statutory
motor vehicle insurance requirements.
Reversed
and Remanded.