No. 34717 -
Howard Wrenn and Sandra Belcher, as Natural Parents and Co-
Administrators of the Estate of Matthew Wrenn; and Angelia Harper,
as Natural Mother and Administrator of the Estate of Justin Janes v.
The West Virginia Department of Transportation, Division of Highways
Davis, J., dissenting:
In this case, two young men met untimely deaths when the vehicle in which
they were traveling fell off of a single-lane bridge, which had no posted signs, line markings,
shoulder, or guardrails, and plunged fifteen feet into an impoundment of water that had
resulted from the failure to clean the culverts over which the bridge traversed. Although the
decedents' Estates attempted to recover from the State's insurance policy for the Division
of Highways's failure to keep safe and to inspect the subject bridge and corresponding
roadway, the majority of the Court has concluded that the applicable policy exclusion
precludes coverage under these facts. The majority's decision essentially
(See footnote 1)
leaves the victims
of this fatal accident without a remedy for their losses even though the DOH had been placed
on notice as to the dangerousness of this bridge and accompanying roadway several months
before the decedents were killed when another motorist died in a fatal accident in this same
location
(See footnote 2)
and even though the DOH had scheduled and thereafter failed to attend a meeting
to discuss local citizens' concerns about the safety of this thoroughfare. Because the result
obtained by the majority absolves the DOH of its express statutory duties to keep safe and
to inspect the public highways of this State and, thus, fails to hold the DOH accountable for
its neglect of those responsibilities under the egregious facts of this case, I respectfully
dissent.
The roads and bridges of this State are vital thoroughfares that must be
maintained to ensure the safety of our citizenry. In this regard,
[t]he Legislature notes that there are public highways that
run over the surface of this land, over and through the navigable
streams, rivers and waterways on this earth and above the
surface of this earth in the form of highways in the sky,
commonly known as airways. The Legislature finds that each
of these types of public highways are essential to the
development of this state and that
the health and safety of each
of the citizens of this state are affected daily by the availability
of each of these three types of public highways, and that it is in
the best interests of the people of this state that each of these be
recognized and included within the meaning of public
highways. . . .
W. Va. Code § 17-1-3 (1989) (Repl. Vol. 2004) (emphasis added). To accomplish these
objectives, the Legislature has assigned the Commissioner of the Division of Highways the
task of maintaining the State's public highways. As they relate to the Estates' claims at issue
herein, such obligations include the following tasks:
[i]n addition to all other duties, powers and
responsibilities given and assigned to the commissioner in this
chapter, the commissioner may:
. . . .
(3)
Conduct investigations and experiments,
hold
hearings and public meetings and attend and participate in
meetings and conferences
within and without
the state for
purposes of acquiring information, making findings and
determining courses of action and procedure relative to
advancement and
improvement of the state road and highway
system;
. . . .
(36)
Investigate road conditions, official conduct of
department personnel and fiscal and financial affairs of the
department and hold hearings and make findings thereon or on
any other matters within the jurisdiction of the department[.]
W. Va. Code § 17-2A-8 (2002) (Repl. Vol. 2004) (emphasis added).
Under the egregious facts of the case
sub judice, it is apparent that the DOH
neglected to fulfill its statutory duties to keep the State's public highways safe, in accordance
with W. Va. Code § 17-1-3, and to inspect the public highways of this State, pursuant to
W. Va. Code §§ 17-2A-8(3,36), insofar as there is no evidence that the DOH
“[i]nvestigate[d] [the subject] road conditions”
(See footnote 3)
or otherwise acted to “improve[]”
(See footnote 4)
this
particular thoroughfare. Moreover, despite the DOH's obligation to “hold hearings and
public meetings and [to] attend and participate in meetings and conferences . . . for purposes
of acquiring information, making findings and determining courses of action and procedure
relative to . . . improvement of the state road and highway system,” it is undisputed that the
DOH failed to attend a scheduled meeting with concerned citizens to discuss these
treacherous road conditions, which meeting was scheduled to be held
before the occurrence
of the fatal accident at issue herein. In the course of scheduling this missed meeting, the
DOH was informed of the first fatal accident, which resulted in one person's death, and thus
had been put on notice of the dangerousness of the subject bridge and roadway and its
corresponding duties to inspect and to keep safe this specific portion of public highway.
After this missed meeting, the Estates' decedents were killed when they were involved in a
subsequent fatal accident on the same bridge and accompanying roadway; this second fatal
accident claimed the lives of two victims.
Despite this clear violation of the DOH's statutory duties to keep safe the
public highways of this State and to inspect the same, the majority has determined that the
victims' families have no remedy in this case because insurance coverage for their claims is
precluded by Endorsement Number 7 of the State's policy of insurance. I respectfully
disagree. Where, as here, a claim is made against the State's insurance coverage, this Court
repeatedly has held that a finding of liability, not immunity, is favored. “The 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 caused by negligent acts must
prevail.” Syl. pt. 2,
Marlin v. Bill Rich Constr., Inc., 198 W. Va. 635, 482 S.E.2d 620
(1996).
Accord Syl. pt. 3,
Zirkle v. Elkins v. Road Pub. Serv. Dist., 221 W. Va. 409, 655
S.E.2d 155 (2007) (per curiam); Syl. pt. 2,
Smith v. Burdette, 211 W. Va. 477, 566 S.E.2d
614 (2002); Syl. pt. 5,
Russell v. Bush & Burchett, Inc., 210 W. Va. 699, 559 S.E.2d 36
(2001); Syl. pt. 1,
Zelenka v. City of Weirton, 208 W. Va. 243, 539 S.E.2d 750 (2000); Syl.
pt. 2,
Reed v. Bord, 206 W. Va. 568, 526 S.E.2d 534 (1999) (per curiam); Syl. pt. 2,
Calabrese v. City of Charleston, 204 W. Va. 650, 515 S.E.2d 814 (1999); Syl. pt. 1,
Brooks
v. City of Weirton, 202 W. Va. 246, 503 S.E.2d 814 (1998). This Court has recognized this
constructive rule favoring liability because the Legislature has determined insurance
coverage for the State's agencies to be necessary to ensure that persons injured through the
State's negligence are compensated for their injuries.
See W. Va. Code § 29-12-1 (1957)
(Repl. Vol. 2004) (recognizing need for state insurance); W. Va. Code § 29-12-5(a)(2)
(2006) (Supp. 2008) (authorizing Board of Risk and Insurance Management to procure state
insurance).
See also Russell v. Bush & Burchett, Inc., 210 W. Va. at 706, 559 S.E.2d at 43
(“
W. Va. Code, 29-12-1 [1994] evidences a remedial legislative purpose that the State
establish mechanisms that will assure that the State is financially responsible and accountable
for injuries occasioned by culpable State action.”).
When interpreting an exclusion contained in a policy of insurance, such as
Endorsement Number 7 at issue herein, the language is construed strictly and against the
insurer. “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.” Syl.
pt. 5,
National Mut. Ins. Co. v. McMahon & Sons, Inc., 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). When such language is plain, the policy language is applied as
it is written. Syl. pt. 2,
Louk v. Isuzu Motors, Inc., 198 W. Va. 250, 479 S.E.2d 911 (1996)
(“'“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.” Syllabus,
Keffer v. Prudential Ins. Co.[
of America], 153 W. Va. 813,
172 S.E.2d 714 (1970).' Syllabus point 1,
Russell v. State Automobile Mutual Insurance
Company, 188 W. Va. 81, 422 S.E.2d 803 (1992).”).
Here, the decedents' Estates have made claims against the State's policy of
insurance for injuries they sustained by virtue of the DOH's failure to keep safe and to
inspect the bridge and corresponding roadway upon which the fatal accident occurred. Under
the plain language of the State's insurance policy, coverage is provided for “any actual or
alleged act,
breach of duty, neglect, . . . or omission by the 'insured(s)'[
(See footnote 5)
]
in the performance
of their dut[
ies.]” (Emphasis and footnote added). While Endorsement Number 7 details
numerous actions, or inactions, of the State that are specifically excluded from coverage, it
does not reference either the State's failure to keep safe or to inspect the State's public
highways. Absent the specific inclusion of such language in this Endorsement, the
exclusionary language does not apply, and coverage is provided for the victims' injuries.
See
State ex rel. Baker v. Bolyard, 221 W. Va. 713, 719, 656 S.E.2d 464, 470 (2007) (“'[
I]
nclusio
unius est exclusio alterius'” ('the inclusion of one is the exclusion of others')[.]” (footnote
and citation omitted)). In short, the majority's contrary interpretation and application of this
exclusion is wrong.
Therefore, in light of the blatant dereliction of the DOH's clear statutory duties
in this case; the majority's decision which not only fails to hold the DOH accountable for its
actions and inactions but effectively absolves the DOH of any responsibility for the tragic,
fatal accident that unnecessarily and untimely claimed the lives of the Estates' decedents; and
the simple fact that the subject policy of insurance clearly provides coverage for the Estates'
claims alleging that the DOH neglected to fulfill its obligations to keep safe and to inspect
the public highways of this State, I respectfully dissent.
Footnote: 1