No. 33291 -
Yvonne Reed and Kermit Reed, her husband, v. Walter Jason Orme
Albright, Justice, concurring:
I concur with the result reached by the majority in upholding the trial court's
grant of summary judgment based solely on Appellants' failure to submit any counter
evidence to refute Appellees' evidence that the insurance policy at issue was a custom-
designed policy. I write separately, however, to recognize a flaw in the majority's
application of syllabus point five of
Gibson v. Northfield Insurance Co., 219 W.Va. 40, 631
S.E.2d 598 (2005). In relying on
Gibson to enforce a workers' compensation exclusion in
the subject insurance policy, the majority wrongly focused on the negotiating efforts of
BRIM. The only evidence of a custom-designed policy in the record of this case was the
affidavit of Bob Mitts, the underwriting manager for BRIM. The majority relies wholly on
that affidavit, stating that it demonstrated that “BRIM had investigated and researched the
need for the workers' compensation exclusion and had caused its inclusion in the National
Union policy.”
I submit that the custom-design evidence contemplated by syllabus point five
of
Gibson could not be fulfilled by the affidavit prepared by BRIM's underwriter. Even a
cursory reading of
Gibson demonstrates that the requisite evidence of a custom-designed
policy must relate to the efforts on the part of a political subdivision, in this case, the Logan
County Board of Education, to negotiate for specific policy exclusions.
(See footnote 1) That evidence is
simply not present in this case. Because there is no evidence in the record of this case that
demonstrates that the insured political subdivision at issue engaged in specific negotiations
that resulted in a custom-designed policy, I respectfully disagree with the majority's
conclusion that the workers' compensation exclusion contained in the National Union policy
is enforceable under this Court's holding in
Gibson.
Footnote: 1