Harry M. Rubenstein
Kay, Casto, Chaney, Love & Wise
Morgantown, West Virginia
John R. Hoblitzell
Kay, Casto, Chaney, Love & Wise
Charleston, West Virginia
Attorneys for State Bancorp, Inc., Bruceton Bank, Ronald D. Fike and Paul Thomas
James D. McQueen, Jr.
Jeffrey C. Dunham
McQueen & Brown, L.C.
Charleston, West Virginia
Attorneys for USF&G
Roslyn C. Payne
Brown & Levicoff
Beckley, West Virginia
Avrum Levicoff
Brown & Levicoff
Pittsburgh, Pennsylvania
Attorneys for Aetna Casualty & Surety Company
This Opinion was delivered PER CURIAM.
JUDGE RECHT sitting by temporary assignment.
1. "A circuit court's entry of a declaratory judgment is reviewed de novo."
Syl. pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995).
2. "'"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., 153 W. Va.
813, 172 S.E.2d 714 (1970).' Syl. pt. 1, Russell v. State Auto. Mut. Ins. Co., 188 W. Va. 81,
422 S.E.2d 803 (1992)." Syl. pt. 1, Miller v. Lemon, 194 W. Va. 129, 459 S.E.2d 406
(1995).
3. "'"Language in an insurance policy should be given its plain, ordinary
meaning." Syl. Pt. 1, Soliva v. Shand, Morahan & Co., 176 W. Va. 430, 345 S.E.2d 33
(1986).' Syl. pt. 2, Russell v. State Auto. Mut. Ins. Co., 188 W. Va. 81, 422 S.E.2d 803
(1992)." Syl. pt. 2, Miller v. Lemon, 194 W. Va. 129, 459 S.E.2d 406 (1995).
(footnote omitted). See also Silk v. Flat Top Construction, Inc., 192 W. Va. 522, 453 S.E.2d
356 (1994); Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986)
(This case originally set forth the above general principles and is a good source for case law
and treatises which more fully explain the above principles).
Additionally, "if part of the claims against an insured fall within the coverage
of a liability insurance policy and part do not, the insurer must defend all of the claims,
although it might eventually be required to pay only some of the claims." Leeber, 180 W. Va. at 378, 376 S.E.2d at 584 (citing Donnelly v. Transportation Insurance Co., 589 F.2d
761, 765 (4th Cir. 1978), as amended on denial of rehearing, Jan. 30, 1979). However, "a
liability insurer need not defend a case against the insured if the alleged conduct is entirely
foreign to the risk insured against." Id.
This Court is also mindful that "'"[w]here 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., 153 W. Va. 813, 172 S.E.2d 714 (1970).' Syl. pt. 1, Russell v. State
Auto. Mut. Ins. Co., 188 W. Va. 81, 422 S.E.2d 803 (1992)." Syl. pt. 1, Miller v. Lemon,
194 W. Va. 129, 459 S.E.2d 406 (1995). See also syl. pt. 4, Cox, supra. "'"Language in an
insurance policy should be given its plain, ordinary meaning." Syl. Pt. 1, Soliva v. Shand,
Morahan & Co., 176 W. Va. 430, 345 S.E.2d 33 (1986).' Syl. pt. 2, Russell v. State Auto.
Mut. Ins. Co., 188 W. Va. 81, 422 S.E.2d 803 (1992)." Syl. pt. 2, Miller, supra. See also
syl. pt. 5, Cox, supra.
However, if the language in an insurance policy is ambiguous, then the
doctrine of reasonable expectations applies: "With respect to insurance contracts, the
doctrine of reasonable expectations is that the objectively reasonable expectations of
applicants and intended beneficiaries regarding the terms of insurance contracts will be
honored even though painstaking study of the policy provisions would have negated those
expectations." Syl. pt. 8, National Mutual Ins. Co. v. McMahon & Sons, Inc., 177 W. Va.
734, 356 S.E.2d 488 (1987). See also Silk, 192 W. Va. at 526 n. 4, 453 S.E.2d at 360 n. 4 (The doctrine of reasonable expectations only applies in West Virginia when the policy
language in ambiguous). Lastly, "'[w]here 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 Mutual Ins. Co. v. McMahon & Sons, Inc., 177 W. Va.
734, 356 S.E.2d 488 (1987)." Syl. pt. 1, Marshall v. Fair, 187 W. Va. 109, 416 S.E.2d 67
(1992).
With the above principles in mind, we must examine the provisions of Aetna's
and USF&G's coverages A and B of the CGL policies, Aetna's excess policy, and USF&G's
umbrella policy to determine whether any of the allegations in the Tymans' complaint are
"reasonably susceptible of an interpretation that the claim may be covered by the terms of
the insurance policy." Leeber, 180 W. Va. at 378, 376 S.E.2d at 584. At the outset, we note
that as often happens in cases that require a detailed reading of an insurance policy, the
parties are forced to articulate in an abbreviated fashion extensive policy provisions of a
lengthy insurance policy which are not easily susceptible to being explained to the reader of
a brief. In the case before us, not only are there two lengthy insurance policies which must
be discussed, but, there are also several different causes of action which must be examined
in order for this Court to determine whether the insurance policies at issue potentially
provided coverage.
Harrison Plumbing & Heating, Inc. v. New Hampshire Insurance Group, 681 P.2d 875, 878
(Wash. Ct. App. 1984) (citations omitted). See also Travelers Ins. Companies v. P.C. Quote,
Inc., 570 N.E.2d 614, 619 (Ill. Ct. App. 1991) ("An accident is defined as 'an unforeseen
occurrence of untoward or disastrous character' or 'an undesigned sudden or unexpected
event.'" (citation omitted)); Arco Industries Corp. v. American Motorists Ins. Co., 531
N.W.2d 168, 173 (Mich. 1995).
As some courts have recognized, a breach of contract which causes "bodily
injury" or "property damage" is not an event that occurs by chance or arises from unknown
causes, and, therefore, is not an "occurrence" as that word is defined in Aetna's and
USF&G's CGL policies. See Reliance Ins. Co. v. Gary C. Wyatt, Inc., 540 So.2d 688 (Ala.
1988) (The insurer had no duty to defend because the breach of contract was not an
"occurrence" resulting in bodily injury or property damage under the definitions within the
general liability insurance policy); Kema Steel, Inc. v. Home Insurance Co., 736 P.2d 798
(Ariz. Ct. App. 1986) (An employer's failure to procure medical insurance for its employee
is a breach of contract claim and is not covered by the employer's comprehensive general
liability coverage policy which provides coverage for bodily injury caused by an occurrence);
Hawaiian Holiday Macadamia Nut Co. v. Industrial Indemnity Co., 872 P.2d 230 (Hawaii
1994) (The underlying suit for breach of contract and fraud did not trigger an insurer's duty
to defend under a comprehensive general liability insurance policy which provided coverage
for property damage caused by an occurrence); Travelers Ins. Companies, supra (The breach
of contract allegations in the complaint are not "occurrences" under the general liability coverage of the policy); Pyles v. Pennsylvania Manufacturers' Association Ins. Co., 600
A.2d 1174, 1177 (Md. Ct. Spec. App. 1992), cert. denied, 607 A.2d 7 (Md.) (This case states
that a number of courts in other jurisdictions have held that "an insured who has incurred
liability in an earlier action as a result of breach of contract . . . is not covered under a
general business liability insurance policy which extends to liability for damages due to
property damage or bodily injury."); Harrison Plumbing & Heating, Inc., supra (A breach of
contract is not an occurrence; thus, the insurer had no duty to defend under the provisions
of the comprehensive general liability policy). Thus, the breach of contract allegation in the
Tymans' complaint is entirely foreign to the risk insured against in coverage A of Aetna's
and USF&G's CGL policies. See Leeber, 180 W. Va. at 378, 376 S.E.2d at 584 ("[A]
liability insurer need not defend a case against the insured if the alleged conduct is entirely
foreign to the risk insured against."). The circuit court, therefore, erred in concluding that
Aetna and USF&G had a duty to defend the appellees on the basis that the breach of contract
allegation was potentially covered under coverage A of the CGL policies.See footnote 8
Likewise, we find the remaining counts in the Tymans' complaint, the tort of
outrage, the tort of civil conspiracy, and the violation of state banking laws, to allege allegations entirely foreign to the risk insured against in coverage A of Aetna's and
USF&G's CGL policies. See Leeber, supra. The common theme of these counts is that the
appellees intentionally engaged in an outrageous conspiracy or scheme to defraud the
Tymans out of their property. As we previously explained, the Tymans' allege that the
scheme began when the appellees deliberately made a bad loan to them "contrary to accepted
credit and banking standards, . . . forcing them into bankruptcy and misleading the
bankruptcy court for the purpose of acquiring . . . [their] property[.]" The Tymans further
allege that after the appellees knowingly made bad loans to them, the appellees conspired
with their attorney, Keith Pappas, to ensure that the Tymans' property would be sold far
below the fair market value at the foreclosure sale. Moreover, the Tymans state that the
appellees then deliberately sold their property to Mr. Pappas "far below the fair market value,
and less than the . . . [appellee Bruceton Bank] paid for it at the foreclosure sale, so that . .
. [appellee] Paul Thomas [the President of Bruceton Bank] could develop the property for
his own personal gain, in violation of state banking laws[.]"
As indicated above, the Tymans asserted the following three counts in their
complaint: the tort of outrage, the tort of civil conspiracy, and the violation of state banking
laws. These three counts are rooted in the Tymans' allegation throughout their complaint
that the appellees engaged in an intentional, outrageous scheme with Mr. Pappas so that the
appellee, Paul Thomas, could gain control of the Tymans' property for his own personal
gain.
As indicated above, the definition of an "occurrence" does not include actions
which are intended by the insured. See LaFever v. Whitely, 613 So.2d 1007 (La. Ct. App.
1992), writ denied by 614 So.2d 64 (La.) (Bodily injury sustained from a fight did not arise
out of an "occurrence" because the conduct in the fight was intentional); Fibreboard Corp.
v. Hartford Accident and Indemnity Co., 20 Cal. Rptr.2d 376, 387 (Cal. Ct. App. 1993)
("[T]here is a conscious, decisionmaking element that takes civil conspiracies out of the
range of behavior encompassed within the meaning of an 'occurrence.'"). Moreover,
coverage A expressly excludes intentional acts from coverage: "This insurance does not
apply to . . . '[b]odily injury' or 'property damage' expected or intended from the standpoint
of the insured."
Clearly, the facts alleged in the complaint which form the basis of the tort of
outrage, tort of civil conspiracy, and violation of state banking laws counts are intentional
acts of the insured. Thus, we conclude that the Tymans' allegation of the intentional
scheming by the appellees to gain control of the Tymans' property is not reasonably
susceptible of an interpretation that the claims are covered under the provisions of coverage
A. See Leeber, supra.See footnote 9
a. Oral or written publication of material that
slanders or libels a person or organization or
disparages a person's or organization's goods,
products or services;
b. Oral or written publication of material that
violates a person's right of privacy;
c. Misappropriation of advertising ideas or style of
doing business; or
d. Infringement of copyright, title or slogan.
The appellees do not argue nor do we find that the Tymans' complaint alleges an
"advertising injury" as it is defined in coverage B of the CGL policies.
The appellees argue that the Tymans allege that they suffered a "personal
injury"as that term is defined in the CGL policies:
'Personal injury' means injury, other than 'bodily injury',
arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. Wrongful entry into, or eviction of a person from,
a room, dwelling or premises that the person
occupies;
d. Oral or written publication of material that
slanders or libels a person or organization or
disparages a person's or organization's goods,
products or services; or
e. Oral or written publication of material that
violates a person's right of privacy[.]
The appellees maintain that the Tymans have accused them of committing the offenses
described in "c." (wrongful eviction) and "d." (publication of material that slanders).
We first address the appellees' argument that the Tymans' complaint alleges
that they suffered a "personal injury" caused by their "[w]rongful . . . eviction." We note
that even if the allegations in the Tymans' complaint could be interpreted as alleging that the Tymans suffered a "personal injury" as a result of their wrongful eviction from their property
at the conclusion of the foreclosure proceeding brought by the appellees, neither Aetna's nor
USF&G's policy was in effect when this eviction occurred. The Tymans' complaint
indicates that the trustee's sale of the Tymans' property occurred on November 5, 1990.
Aetna provided coverage from October 23, 1988 to October 23, 1989. USF&G provided
coverage from October 23, 1989 to October 23, 1990.
Coverage B of the CGL policies expressly states that "[t]his insurance applies
to 'personal injury' only if caused by an offense: . . . [c]ommited . . . during the policy
period[.]" (emphasis added). Thus, it is the date when the offense occurs that triggers the
coverage rather than the date of the injury. See General Accident Ins. Co. v. West American
Ins. Co., 49 Cal. Rptr. 2d 603, 606 (Cal. Ct. App. 1996) ("'In the world of liability insurance,
personal injury coverage applies to injury which arises out of the commission of certain
enumerated acts or offenses. . . . Coverage thus is triggered by the offense, not the injury or
damage which a plaintiff suffers.'" (citations omitted)). The alleged offense in this case
would have occurred, at the earliest, on November 5, 1990, when the trustee sale took place.
Thus, even if the allegations of the Tymans' complaint could reasonably be interpreted as
a "personal injury" caused by the appellees in wrongfully evicting the Tymans from their
property,See footnote 10 neither Aetna nor USF&G's policies were in effect when the offense occurred.
Next, we address whether the allegations in the complaint alleged that the
Tymans have suffered a "personal injury" caused by the "[o]ral or written publication of
material that slanders or libels a person or organization or disparages a person's or
organization's goods, products or services[.]" The Tymans' complaint alleges that Mr.
Pappas, Bruceton Bank's attorney, deliberately wrote a letter to the bankruptcy court in order
to maliciously and falsely discredit the Tymans with the bankruptcy court. While this
allegation may be interpreted as Mr. Pappas writing material that libels the Tymans, coverage
B expressly excludes "personal injury" "[a]rising out of oral or written publication of
material, if done by or at the direction of the insured with knowledge of its falsity[.]"
Therefore, we conclude that any "personal injury" inflicted by the appellees by the
submission of the above letter was intentional and, is therefore, expressly excluded from
coverage.
Accordingly, we conclude that the allegations in the Tymans' complaint are
not reasonably susceptible to an interpretation that the complaint is covered within the terms
of coverage B of Aetna's or USF&G's CGL policies. See Leeber, 180 W. Va. at 397, 376
S.E.2d at 584.
We conclude, as we did in our discussion of Aetna's excess policy, that because the language
above is clear and because there is no potential coverage under the underlying CGL policy,
there is no potential coverage for the appellees under USF&G's excess coverage provision.
b. With respect to 'bodily injury' to your employees
arising out of and in the cause of their
employment by you, the accident or disease
which causes the 'bodily injury'; and
c. With respect to offenses committed by the insured
resulting in 'personal injury' or 'advertising
injury,' all such 'injury' sustained by any one
person or organization.
(emphasis added).
The ordinary meaning of the word "accident" as it is used in "a." and "b."
above, is that it is "an event occurring by chance or arising from unknown causes[.]"
Webster's New Collegiate Dictionary 7 (1981). As we concluded when discussing whether
the Tymans' complaint alleged an "occurrence" which was defined as an "accident" in
coverage A of the CGL policies, the Tymans' complaint does not allege any injuries caused
by an "accident." Therefore, none of the injuries alleged in the Tymans' complaint were
caused by an incident as it is defined in a. and b. above.
Furthermore, "incident" is defined in "c." as "personal injury" caused by an
"offense." The "offenses" enumerated under the definitions of "personal injury" and
"advertising injury" in USF&G's umbrella coverage are the same as those enumerated in
coverage B of the CGL policies which we have previously discussed. See pp. 17-20, infra.
Therefore, for the same reasons given in our discussion of coverage B of the CGL policies,
we find that the Tymans' complaint does not allege an "incident," as it is defined in "c.," which is potentially covered under USF&G's umbrella coverage. Accordingly, we conclude
that USF&G's umbrella coverage does not potentially cover the allegations in the Tymans'
complaint.
The appellees assert that neither Aetna nor USF&G may argue that coverage
should have been provided by Progressive because neither sought to join Progressive in the
declaratory judgment action nor did they offer Progressive's policy into evidence in the court
below. USF&G, however, asserts that it offered the Progressive Policy to the trial judge;
however, the trial judge declined the offer. In any event, this Court need not address whether
the Progressive policy provides coverage, or whether it should be considered, given our
ultimate resolution of the issues raised in this appeal.
However, in the case before us, we need not delve into the type of intent that is necessary for the "intentional injury" exclusion to apply, because under any of the above tests, the "intentional injury" exclusion in the policies at issue in this case apply. It is clear that the Tymans' complaint alleges that the appellees specifically intended for their acts to injure the Tymans in the manner in which the Tymans were injured.
We will have the right and duty to defend any 'suit' for damages
which are payable under Coverages A or B (including damages
wholly or partly within the 'retained limit') but which are not
payable by a policy of 'underlying insurance', or any other
available insurance, because:
(1) Such damages are not covered; or
(2) The 'underlying insurance' has been exhausted by
the payment of the claims.
(emphasis added). However, we find the above language inapplicable to the case before us because, as we have previously explained, we do not find that the Tymans' complaint alleges damages which are potentially payable under coverages A or B of Aetna's CGL policy.
When a complaint is filed against an insured, an insurer
must look beyond the bare allegations contained in the third
party's pleadings and conduct a reasonable inquiry into the facts
in order to ascertain whether the claims asserted may come
within the scope of the coverage that the insurer is obligated to
provide.
Syllabus, F & M Mut. Fire Ins. Co. of W. Va. v. Hutzler, 191 W. Va. 559, 447 S.E.2d 22 (1994). However, in the case before us, we could not find nor did the parties point to the existence of any facts outside of the complaint which could have been discovered had Aetna and USF&G conducted a reasonable inquiry as required by Hutzler. Thus, even if Aetna and USF&G did not conduct a reasonable inquiry as required by Hutzler, our holding on whether Aetna and USF&G had a duty to defend based on the facts before us would not be affected.