JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
Per Curiam:
The appellants (See
footnote 1) herein and plaintiffs below, Jeremy Bender, Travis Sturm,
Jason Gregory, and Jason Brooks [hereinafter collectively referred to as “Mr.
Bender”], appeal from an order entered December 9, 2004, by the Circuit
Court of Webster County. By the terms of that order, the circuit court awarded
summary judgment to Continental Casualty Company [hereinafter referred to as “Continental”], (See
footnote 2) finding that the policy of insurance issued by Continental
to the Webster County Board of Education [hereinafter referred to as “the
Board”] did not provide coverage for the acts of sexual misconduct which
the various appellants allege that the Board's former (See
footnote 3) employee, Donald Ray Glendenning, Jr. [hereinafter referred
to as “Mr. Glendenning”], committed against them. On appeal to this
Court, the appellants argue that the circuit court erred by granting summary
judgment in favor of Continental and by concluding that the subject policy of
insurance did not provide coverage for Mr. Glendenning. Upon a review of the
parties' arguments, the record designated for appellate consideration, and
the pertinent authorities, we agree with the appellants and find that the Continental
insurance policy did, in fact, provide coverage for the acts of sexual misconduct
that the appellants have alleged against Mr. Glendenning. Accordingly, we reverse
the December 9, 2004, order of the Circuit Court of Webster County and remand
this case for further proceedings consistent with this opinion.
to the West Virginia Penitentiary for a term of not less than Five (5) nor more than Fifteen (15) years for the felonious crime of sexual abuse by a parent, guardian, or custodian and not less than One (1) nor more than Five (5) years for the felonious crime of sexual assault in the 3rd degree with sentences to run consecutively,
which sentences he currently is serving.
Thereafter, on about July 6, 2001, Mr. Bender,
Mr. Sturm, Mr. Gregory, and Mr. Brooks filed civil actions against Mr. Glendenning
claiming that they had all been victims of Mr. Glendenning's sexual abuse and/or
assault and for which injuries they now sought damages. (See
footnote 6) During the course of this litigation, on April 13, 2004,
Mr. Glendenning filed a petition for declaratory relief asking the circuit court
to ascertain whether the Board's policy of insurance with Continental provided
coverage to him for the
aforementioned claims. Specifically, Mr. Glendenning argued that because he
was an insured under the terms of the Board's policy of insurance with Continental, (See
footnote 7) Continental should provide both indemnity and a defense
for the claims made against him.
Continental then filed a motion for summary
judgment on about September 14, 2004, contending that the policy did not provide
coverage for Mr. Glendenning's wrongful acts of sexual misconduct and, thus,
that it was entitled to judgment as a matter of law. Following a hearing on the
matter, the circuit court, by order entered December 9, 2004, granted summary
judgment to Continental, finding that Continental had no duty to defend Mr. Glendenning
and further concluding that Mr. Glendenning's criminal
actions were outside the scope of his employment duties with the Board and,
likewise, outside the scope of the “wrongful act” coverage provided
by the Continental policy. From this adverse ruling, Mr. Bender appeals to
this Court.
If a policy or contract of liability insurance covering a political subdivision or its employees is applicable, the terms of the policy govern the rights and obligations of the political subdivision and the insurer with respect to the investigation, settlement, payment and defense of suits against the political subdivision, or its employees, covered by the policy. The insurer may not enter into a settlement for an amount which exceeds the insurance coverage.
W. Va. Code § 29-12A-9(a) (1986) (Repl. Vol. 2004). But see W. Va.
Code § 29-12A- 16(d) (1986) (Repl. Vol. 2001) (indicating that political
subdivision's purchase of an insurance policy does not automatically waive
immunity provided by the Act). (See
footnote 9) In other
words, the existence of an insurance policy does not per se eliminate the grants
of immunity provided by the Act unless the policy fails to include appropriate
language and/or exclusions which specifically preserve the Act's immunity provisions.
The broad policy of insurance issued by Continental to the Board in the case sub
judice does not contain any such limiting language and/or exclusions and,
thus, its terms define the scope and extent of the Board's liability as well
as that of its employee, Mr. Glendenning.
Turning now to the applicable Continental
insurance policy in question, we first must ascertain whether Mr. Glendenning
was, in fact, an insured under the Board's policy and then, if he was, whether
the policy provided coverage for the acts with which he has been charged. We
previously have held that “[l]anguage in an insurance policy should be given
its plain, ordinary meaning.” Syl. pt. 1, Soliva v. Shand, Morahan & Co.,
Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), abrogated on other grounds
by National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va. 734,
356 S.E.2d 488 (1987). Thus, “[w]here provisions in an insurance policy
are plain and unambiguous and where such provisions are not contrary to a statute,
regulation, or public policy, the provisions will be applied and not construed.” Syl.
pt. 2, Shamblin v. Nationwide Mut. Ins. Co., 175 W. Va. 337, 332
S.E.2d 639 (1985). Accord Syl., Keffer v. Prudential Ins. Co. of America,
153 W. Va. 813, 172 S.E.2d 714 (1970) (“Where the provisions of an
insurance policy contract
are clear and unambiguous they are not subject to judicial construction or
interpretation, but full effect will be given to the plain meaning intended.”).
With specific regard to the parties involved
in the instant appeal, i.e., a political subdivision and its employee
who are both protected by the terms of the West Virginia Governmental Tort Claims
Act, we have observed that “[t]he general rule of construction in governmental
tort legislation cases favors liability, not immunity. Unless the legislature
has clearly provided for immunity under the circumstances, the general common-law
goal of compensating injured parties for damages . . . must prevail.” Syl.
pt. 2, in part, Marlin v. Bill Rich Constr., Inc., 198 W. Va. 635,
482 S.E.2d 620 (1996). Therefore,
[i]f the terms of the applicable insurance coverage and contractual exceptions thereto acquired under W. Va. Code § 29-12-5 expressly grant the State greater or lesser immunities or defenses than those found in the case law, the insurance contract should be applied according to its terms and the parties to any suit should have the benefit of the terms of the insurance contract.
Syl. pt. 5, Parkulo v. West Virginia Bd. of Probation & Parole,
199 W. Va. 161, 483 S.E.2d 507 (1996) (emphasis in original).
Considering the precise language employed
in the subject contract of insurance, we find that the policy language clearly
includes Mr. Glendenning as a named insured. In this regard, the named insured
endorsement plainly includes within its ambit
“each West Virginia County Board of Education[.]” (See
footnote 10) Thereafter, the policy language specifically defines
an “insured” to include “the 'named insured' and those persons
who were[,] are now[,] or shall be . . . employees of the 'named insured.'” (See
footnote 11) Insofar as the parties do not dispute that Mr. Glendenning
was an employee of the Board at all times relevant to Mr. Bender's claims against
him, we conclude that Mr. Glendenning was, in fact, a named insured under the
Board's Continental policy.
Next, we must determine whether the terms
of the Board's policy provide coverage to Mr. Glendenning for the various acts
of sexual misconduct with which he has been charged. The parties do not dispute
that the relevant policy language is the insurance contract's definition of and
statement of coverage for a “wrongful act”. In this regard, a
“[w]rongful act” shall mean any actual or alleged error or misstatement or act or omission or neglect or breach of duty including malfeasance[,] misfeasance, and non-feasance by the insureds in the discharge of their duties with the “named insured,” individually or collectively, or any other matter claimed against them solely by reason of their being or having been insureds.”
(Emphasis added). Given the broad nature of this language, we find that coverage
clearly exists under this definition of a wrongful act. Mr. Bender has alleged
that, while he was a student at an elementary school operated by the Webster
County Board of Education,
his teacher, Mr. Glendenning, who was employed by that same Board, committed
various acts of sexual misconduct against him. In short, Mr. Bender has made
his claims against his teacher, Mr. Glendenning, “solely by reason of
[Mr. Glendenning's] being or having been [an] insured[],” which basis
for recovery is plainly within the policy's definition of a wrongful act for
which coverage is provided.
Alternatively, coverage for Mr. Glendenning's
acts of sexual misconduct is provided by that part of the wrongful act's definition
that indemnifies its insureds against claims of “malfeasance”. Insofar
as the policy, itself, does not explain the meaning of the term “malfeasance,” we
must resort to the word's “plain, ordinary meaning.” Syl. pt. 1, in
part, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345
S.E.2d 33. “Malfeasance” is defined as “[a] wrongful or unlawful
act[.]” Black's Law Dictionary 968 (7th ed. 1999). Accord II Abbott's
Law Dictionary 71 (1879) (explaining “malfeasance” as “[t]he commission
of some act which is positively unlawful”); Ballentine's Law Dictionary
767 (3d ed. 1969) (defining “malfeasance” as “[t]he doing of an
act which is positively unlawful or wrong” (citation omitted)). Cf. 2
Bouvier's Law Dictionary Unabridged 2067 (8th ed. 1984) (construing “malfeasance” as “[t]he
unjust performance of some act which the party had no right, or which he had
contracted not, to do”). Thus, given that the acts of sexual misconduct
levied against Mr. Glendenning were criminal in nature, it goes without saying
that they constituted “wrongful or unlawful act[s],” which satisfy
the definition of malfeasance for which coverage is provided by the Board's
Continental policy. Accordingly, the Board's insurance contract not only identifies
Mr. Glendenning as an insured but also specifically provides coverage for the
claims Mr. Bender has asserted against him, both by virtue of Mr. Glendenning's
status as an employee of the Board and by reason of the criminal nature of
his misconduct against Mr. Bender.
Finally, where, as here, a policy of insurance
clearly provides coverage for a claim of loss, liability nevertheless may be
avoided where there exists an exclusion to limit the scope or extent of such
coverage. With specific regard to claims alleging sexual misconduct, we have
held that
[t]here is neither a duty to defend an insured in an action for, nor a duty to pay for, damages allegedly caused by the sexual misconduct of an insured, when the liability insurance policy contains a so-called “intentional injury” exclusion. In such a case the intent of an insured to cause some injury will be inferred as a matter of law.
Syl., Horace Mann Ins. Co. v. Leeber, 180 W. Va. 375, 376 S.E.2d 581 (1988). However, any type of exclusion, whether it limits coverage for intentional injuries, criminal acts, or other types of misconduct, must be stated with such clarity and specificity so as to place an insured on notice as to its existence in the subject policy of insurance. In other words,
[a]n
insurer wishing to avoid liability on a policy purporting to give general or
comprehensive coverage must make exclusionary clauses conspicuous, plain, and
clear, placing them in such a fashion as to make obvious their relationship to
other policy terms, and must bring such provisions to the attention of the insured.Syl.
pt. 10, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va.
734, 356 S.E.2d 488 (1987), abrogated on other grounds by Potesta v. United
States Fid. & Guar. Co., 202 W. Va. 308, 504 S.E.2d 135 (1998).
Reviewing the Continental policy at issue
in this case, we are able to identify only one provision that attempts to exclude
coverage in the case sub judice. Endorsement Number 6 of the policy states,
It is agreed that:
A.
The terms of the policy which are in conflict with the statutes of the state
of West Virginia wherein certain provisions and coverages included under this
policy are not permitted are hereby amended to cover only those provisions and
coverages as apply and conform to such statutes.
While this clause purportedly seeks to preserve the immunities granted to political
subdivisions and its employees by the West Virginia Governmental Tort Claims,
we do not find that it is sufficiently “conspicuous, plain, and clear” so
as to clearly identify the precise limitation of liability it is intended to
impart. Syl. pt. 10, in part, National Mut. Ins. Co. v. McMahon & Sons,
Inc., 177 W. Va. 734, 356 S.E.2d 488. See also Syl. pt. 5, id. (“Where
the policy language involved is exclusionary, it will be strictly construed
against the insurer in order that the purpose of providing indemnity not be
defeated.”). Because there are no other provisions in the Continental
policy which seek to exclude from coverage an insured's criminal or intentional
acts, we find that coverage existed under the
subject policy for Mr. Bender's claims against Mr. Glendenning. Accordingly,
we reverse the circuit court's ruling finding that the Board's policy did not
provide such coverage to Mr. Glendenning and the court's corresponding award
of awarding summary judgment to Continental. We further remand this matter
for further proceedings consistent with this opinion.