Second, the position urged by the dissenters would have the effect of giving
the insurance company a windfall at the expense of the school board and the taxpayers of this
State. The policy clearly covers the perverted acts of malfeasance inflicted by Donald
Glendenning, and the school board and taxpayers paid premiums for that coverage. The
dissenters would let the insurance company pocket those premiums, at the expense of the
school board, the taxpayers, and _ most importantly _ Mr. Glendenning's victims.
Third, the Governmental Tort Claims and Insurance Reform Act was adopted
by the Legislature to “limit liability of political subdivisions and provide immunity to
political subdivisions in certain instances.” W.Va. Code, 29-12A-1 [1986]. The Act was not
designed to limit the contractual liability of insurance companies, or to provide immunity to
insurance companies that provide insurance to political subdivisions. The immunity belongs
to the political subdivision, not the insurance company. Therefore, an insurance company
cannot say it sold coverage to a political subdivision for a particular risk for which the
political subdivision is immune, and when a loss later occurs, announce to the political
subdivision that there is no coverage under the Act _ all the while, pocketing the premiums
paid for the coverage by the political subdivision.
Fourth, my dissenting colleagues assert that the Act can only be read to
establish the maximum amount of coverage that insurance companies must provide to a
political subdivision. But the majority's opinion makes clear that the Act can be read another
way. The Act can also be read _ like most insurance statutes are _ to delineate the minimum
amount of coverage that insurance companies must legally provide. Viewed this way, the
Act says that the minimum coverage a company must provide to a school board is liability
coverage against “damages for injury, death, or loss to persons or property allegedly caused
by an act or omission of the employee if the act or omission occurred or is alleged to have
occurred while the employee was acting in good faith and not manifestly outside the scope
of his employment or official responsibilities.” W.Va. Code, 29-12A-11(a)(1) [1986].
Likewise, W.Va. Code, 29-12-5a [1986] (See footnote 1) specifies the minimum coverage that the State
Board of Risk and Insurance Management “shall” purchase for school boards and school
employees. There is nothing in the language of either statute preventing an insurance
company from selling, and a school board from buying, coverage that exceeds these statutory
minimums. Applied to this case, as the majority opinion holds, there is nothing preventing
a school board from purchasing insurance against wrongful acts or acts of malfeasance.
Fifth, the position advocated by my dissenting colleagues is wholly contrary
to public policy. School boards unfortunately routinely incur stupendous financial losses as
a result of sexual misconduct by teachers and other school employees. The risk that a school
employee will engage in sexual misconduct with a student is known, definable and
measurable to the insurance industry. Accordingly, if the insurance industry chooses to sell
liability coverage for that risk, then good public policy is that school boards should be
permitted to minimize their risk of financial loss by buying that coverage. My dissenting
colleages instead appear to suggest that either school boards and taxpayers should bear the
financial burden of a rogue teacher's conduct; or the victims of the teacher's conduct should
bear their losses without any remedy. The law abhors allowing a wrong without a remedy.
Finally, the Tort Claims and Insurance Reform Act is, in a word, a “snafu.”
The various provisions of the Act are vague, convoluted and conflicting, and (as this case
shows) are fertile ground for clever lawyers to breed wasteful litigation. Take, for instance,
the lawyers in this case. The plaintiffs filed their lawsuit in 2001 seeking recompense for
their injuries inflicted by Mr. Glendenning and, to a far lesser degree, the Webster County
Board of Education. The parties want some closure. Yet here we are, five years later with
the lawyers dickering over the meaning of the Tort Claims and Insurance Reform Act. All
the while the insurance company is pocketing interest on the premiums paid by the school
board.
The majority's opinion was a proper reading of the insurance policy purchased
by the Webster County Board of Education. That policy was purchased for expensive
premiums, and the language of the policy fairly protected the school board and its employees
against liability _ even from “wrongful acts” and “malfeasance.” To hold otherwise, as my
dissenting colleagues wish, would be manna from heaven for insurance companies.
I therefore respectfully concur.