Submitted:
March 12, 2002
Filed: June 18, 2002
Thomas E. Buck, Esq.
John
J. Polak, Esq.
James M. Hoffman, Esq.
Rose
& Atkinson
Bailey & Wyant, P.L.L.C.
Charleston,
West Virginia
Wheeling, West Virginia
John
C. Falls, Esq.
Attorneys for the Appellant
Christie,
Pabarue, Mortensen & Young
Philadelphia,
Pennsylvania
Attorneys
for the Appellees
JUSTICE STARCHER delivered the Opinion of the Court.
2. The
interpretation of an insurance contract, including the question of whether the
contract is ambiguous, is a legal determination that, like a lower court's grant
of summary judgement, shall be reviewed de novo on appeal. Syllabus
Point 2, Riffe v. Home Finders Associates, Inc., 205 W.Va. 216, 517 S.E.2d
313 (1999).
3. Determination
of the proper coverage of an insurance contract when the facts are not in dispute
is a question of law. Syllabus Point 1, Tennant v. Smallwood, ___
W.Va. ___, ___ S.E.2d ___ (No. 30036, April 5, 2002).
4. In
a policy for commercial general liability insurance and special employers liability
insurance, when a party has an 'insured contract,' that party stands in the
same shoes as the insured for coverage purposes. Syllabus Point 7, Consolidation
Coal Co. v. Boston Old Colony Ins. Co., 203 W.Va. 385, 508 S.E.2d 102 (1998).
5. The
phrase liability assumed by the insured under any contract in an
insurance policy, or words to that effect, refers to liability incurred when
an insured promises to indemnify or hold harmless another party, and thereby
agrees to assume that other party's tort liability.
6. Estoppel applies when a party is induced to act or to refrain from acting to her detriment because of her reasonable reliance on another party's misrepresentation on concealment of a material fact. Syllabus Point 2, in part, Ara v. Erie Ins. Co., 182 W.Va. 266, 387 S.E.2d 320 (1989).
7. Generally,
the principles of waiver and estoppel are inoperable to extend insurance coverage
beyond the terms of an insurance contract. Syllabus Point 5, Potesta
v. U.S.F.&G., 202 W.Va. 308, 504 S.E.2d 135 (1998).
8. Exceptions
to the general rule that the doctrine of estoppel may not be used to extend
insurance coverage beyond the terms of an insurance contract, include, but
are not necessarily limited to, instances where an insured has been prejudiced
because: (1) an insurer's, or its agent's, misrepresentation made at the policy's
inception resulted in the insured being prohibited from procuring the coverage
s/he desired; (2) an insurer has represented the insured without a reservation
of rights; and (3) the insurer has acted in bad faith. Syllabus Point
7, Potesta v. U.S.F.&G., 202 W.Va. 308, 504 S.E.2d 135 (1998).
9. A
certificate of insurance is evidence of insurance coverage, and is not a separate
and distinct contract for insurance. However, because a certificate of insurance
is an insurance company's written representation that a policyholder has certain
insurance coverage in effect at the time the certificate is issued, the insurance
company may be estopped from later denying the existence of that coverage
when the policyholder or the recipient of a certificate has reasonably relied
to their detriment upon a misrepresentation in the certificate.
In this declaratory judgment
action appealed from the Circuit Court of Wetzel County, the parties dispute
whether a property owner is an additional insured under two liability
insurance policies issued to a general contractor that was hired by the property
owner to perform construction work. The property owner seeks the coverage
in response to a lawsuit filed against the property owner by employees of
various subcontractors of the general contractor, who allege they were exposed
to asbestos during the construction work.
(See footnote 1)
The circuit court issued an order on January 5, 2001, declaring that the property owner was not entitled to coverage under the two policies. As set forth below, we reverse the circuit court's order.
The appellant is the Wetzel County Board of Education (Board). On August 17, 1987, the Board entered into a construction contract with a general contractor, Bill Rich Construction (doing business as American Contractors), to renovate Hundred High School. The contract required, inter alia, that Bill Rich Construction indemnify and hold harmless the Board from and against all claims arising from Bill Rich Construction's performance of
the contract. (See footnote 2) Furthermore, the contract required Bill Rich Construction to purchase and maintain a liability insurance policy, which was to include contractual liability insurance covering its indemnification obligations. (See footnote 3) The contract also required Bill Rich Construction to have the Board named as an additional insured on that liability insurance policy. (See footnote 4) Lastly, the construction contract required Bill Rich Construction to provide the Board with a certificate of insurance indicating that the Board had been added to the policy as an additional insured. Bill Rich Construction purchased
several liability insurance policies from appellee Commercial Union Insurance
Company (Commercial Union). During the 1987-1988 contract period, Commercial Union insured the contractor under a commercial
general liability policy with $500,000.00 in coverage for each occurrence,
and $500,000.00 in aggregate coverage. Commercial Union also provided Bill
Rich Construction with an umbrella policy with liability limits of $2,000,000.00
for each occurrence, and $2,000,000.00 in aggregate coverage.
Bill Rich Construction purchased
its insurance coverage through B&W Insurance Agency, a licensed and authorized
insurance agent for Commercial Union. In accordance with the requirements
in the construction contract, Bill Rich Construction arranged for the insurance
agent to issue an Acord 25 (2/84)
(See footnote 5) certificate of insurance
that described the Wetzel County Board of Education as an additionally
insured and as a certificate holder. The record contains the certificate
of insurance, which was apparently delivered to the Board.
(See footnote 6)
In the Fall of 1987, the renovations
to Hundred High School began with Bill Rich Construction as the general contractor
for the project. During the renovations, throughout 1988, workers dismantled
ceilings, walls and floors that were constructed of asbestos-containing materials.
The workers allege that they were repeatedly exposed to high levels of asbestos
dust. In 1990, many of the workers
on the project and their families filed suit against, inter alia, the
Board and Bill Rich Construction, alleging that the defendants knew or should
have known about the presence of asbestos, and that the defendants negligently
failed to warn the workers of the existence of asbestos or to protect the workers
from harmful levels of asbestos dust. The workers also alleged that the defendants
fraudulently, deceitfully and willfully, wantonly and recklessly concealed from
the workers the fact that they were being exposed to unsafe levels of asbestos.
The workers sought compensation for their fear of contracting an asbestos-related
disease in the future, and for medical costs to test for the potential future
development of an asbestos-related disease. See Marlin v. Bill Rich Construction,
Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996). Based upon the indemnification
clauses in the contract between the Board and Bill Rich Construction, and upon
the certificate of insurance listing the Board as an additional insured on both
the general liability and umbrella policies, the Board demanded
Commercial Union refused to
provide coverage, contending that it was only obliged to provide coverage
to Bill Rich Construction under the policies. Commercial Union took the position
that the indemnification provisions in the construction contract did not change
the insurance contract with Bill Rich Construction.
Furthermore, Commercial Union
asserted that its agent, B&W Insurance Agency, did not notify Commercial
Union that the Board was to be added to the insurance policies as an additional
insured. The insurance company asserted that it never received either the
certificate of insurance or any other document suggesting the insurance policies
needed to be amended. Despite the errors committed by its agent, Commercial
Union argued that the certificate of insurance was issued, by its own terms,
for information only, and could not alone modify the policies
to extend coverage. Commercial Union points to disclaimer language prominently
on the certificate of insurance which states:
This certificate is issued
as a matter of information only and confers no rights upon the certificate
holder. This certificate does not amend, extend or alter the coverage afforded
by the policies below.
The certificate of insurance also contains the following disclaimer:
This is to certify that
[the] policies of insurance listed below have been issued to the insured named
above for the policy period indicated. Notwithstanding any requirement, term
or condition of any contract or other document with respect to which this
certificate may be issued or may pertain, the insurance afforded by the policies described herein is subject to all the
terms, exclusions and conditions of such policies. Commercial Union contended that there was no coverage available to the Board
under the certificate because it issued no amendments or alterations to the
actual insurance policy to extend coverage to the Board, and because the certificate,
by its own terms, could not amend or alter the policy.
The Board subsequently filed
a third-party complaint for a declaratory judgment against Commercial Union,
contending that it was an additional insured under the policies
at issue. After substantial discovery, the parties both filed motions for
summary judgment.
In an order dated January
5, 2001, the circuit court denied the Board's motion for summary judgment
and granted Commercial Union's motion. The circuit court concluded that because
of the prominent disclaimer language on the certificate of insurance, the
Board could not have reasonably expected coverage under the insurance policies
at issue. Furthermore, the circuit court concluded that there was no provision
in the insurance policies requiring Commercial Union to provide coverage to
the Board merely because of the indemnity provisions in the construction contract
with Bill Rich Construction.
The Board now appeals the
circuit court's January 5, 2001 order.
This Court reviews a circuit
court's entry of a declaratory judgment de novo, because the principal
purpose of a declaratory judgment action is to resolve legal questions. Syllabus
Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). When a declaratory
judgment proceeding involves the determination of an issue of fact, that issue
may be tried and determined by a judge or a jury, just as issues of fact are
tried and determined in other civil actions. W.Va. Code, 55-13-9 [1941].
(See footnote 7)
See also, Syllabus Point 16, Mountain Lodge Ass'n v. Crum &
Forster Indem. Co., 210 W.Va. 536, 558 S.E.2d 336 (2001) (West Virginia
Code § 55-13-9 and Rules 38, 39 and 57 of the Rules of Civil Procedure,
read and considered together, operate to guarantee that any issue triable by
a jury as a matter of right in other civil actions cognizable by the circuit
courts shall, upon timely demand in a declaratory judgment proceeding, be tried
to a jury.). Any determinations of fact made by the circuit court or jury
in reaching its ultimate judgment are reviewed under a clearly erroneous standard.
Cox, 195 W.Va. at 612, 466 S.E.2d at 463. In this case we are asked to
review the circuit court's interpretation of an insurance contract. In Syllabus
Point 2 of Riffe v. Home Finders Associates, Inc., 205 W.Va. 216, 517
S.E.2d 313 (1999), we stated that [t]he interpretation of an insurance
contract, including the question of whether the contract is ambiguous, is a
legal determination that,
The Board is asserting it
is entitled to coverage under two policies of insurance issued by Commercial
Union: a general liability policy, and an umbrella policy. The Board argues
it is entitled to coverage under the general liability policy because the
construction contract with Bill Rich Construction was a contract insured by
the policy. The Board also argues that because it relied upon the misrepresentation
in the certificate of insurance that it was an additional insured
under both policies, under the doctrine of estoppel Commercial Union cannot
now deny coverage.
We consider both of these
arguments in turn.
Our law in this area is clear.
We stated in Syllabus Point 7 of Consolidation Coal Co. v. Boston Old Colony
Ins. Co., 203 W.Va. 385, 508 S.E.2d 102 (1998) that:
In a policy for commercial
general liability insurance . . . when a party has an insured contract,
that party stands in the same shoes as the insured for coverage purposes.
The question we must resolve, therefore, is whether the construction contract
between Bill Rich Construction and the Board is an insured contract
under the Commercial Union general liability policy.
The construction contract
between the Board and Bill Rich Construction contained an indemnification
provision such that Bill Rich Construction was required to indemnify
and hold harmless the Board from and against all claims, damages,
losses and expenses including but not limited to attorneys fees, arising out
of or resulting from the performance of the Work[.] West Virginia law
allows indemnity provisions in contracts because indemnity clauses serve
our goals of encouraging compromise and settlement by reducing settlement
discussions to bilateral discussions, by encouraging adequate levels of insurance,
and by allowing the parties to a contract to allocate among themselves the
burden of defending claims. Dalton v. Childress Service Corp.,
189 W.Va. 428, 431, 432 S.E.2d 98, 101 (1993) (emphasis omitted). Indemnification
and hold harmless agreements are a means of shifting the financial consequences of a loss, and are essentially
non-insurance contractual risk transfers.
The Commercial Union general
liability policy
(See footnote 8) issued to Bill Rich Construction states
that the insurance company will cover all sums which the insured is
legally required to pay as damages because of bodily injury or property damage.
Commercial Union cites to two policy exclusions that are intended to narrow
this coverage; however, neither of these exclusions apply to eliminate coverage
for any liability assumed by the insured under contract. One exclusion
from coverage is for any bodily injury to any employee of the insured
. . . or to any obligation of the insured to indemnify another because of
such injury, but the exclusion goes on to state that it does not
apply to liability assumed by the insured under contract. The other
provision excludes coverage for any liability assumed by the insured
under any oral or written contract or agreement, but only if such
injury or damage occurred prior to the execution of such contract or agreement.
What is meant by the phrase
liability assumed by the insured under contract in insurance policies
has been the topic of litigation in other jurisdictions. An Alaska case _
Olympic, Inc. v. Providence Washington Ins. Co., 648 P.2d 1008, 1011
(Alaska 1982) _ provides the following explanation for the phrase:
Liability assumed by
the insured under any contract refers to liability incurred when one
promises to indemnify or hold harmless another, and does not refer to the liability that results from
breach of contract.
The phrase does not provide coverage for liability caused by a breach of contract;
rather, the coverage arises from a specific contract to assume liability for
another's negligence. The phrase has been interpreted to apply only
to indemnification and hold-harmless agreements, whereby the insured agrees
to 'assume' the tort liability of another. Gibbs M. Smith, Inc. v.
U.S.F.&G., 949 P.2d 337, 341 (Utah 1997).
We hold that the phrase liability
assumed by the insured under any contract in an insurance policy, or
words to that effect, refers to liability incurred when an insured promises
to indemnify or hold harmless another party, and thereby agrees to assume
that other party's tort liability.
Our examination of the language
of the construction contract and the general liability insurance policy leads
us to conclude that the construction contract between the Board and Bill Rich
Construction was an insured contract. The Commercial Union general
liability insurance policy insured any sums which Bill Rich Construction was
legally required to pay as damages because of bodily injury or property
damage, including any liability for bodily injury or property damage
assumed by Bill Rich Construction under the indemnification provisions of
the construction contract. The construction contract clearly shifted legal
responsibility for some measure of the plaintiff-workers' alleged tort liability
from the Board to Bill Rich Construction, and thereby, to Commercial Union.
In accordance with our holding in Syllabus Point 7 of Consolidation Coal
Co. v. Boston Old Colony Ins. Co.,supra, because the Board had an insured contract with
Bill Rich Construction, the Board stands in the same shoes as Bill Rich Construction
for coverage purposes.
Accordingly, we hold that
because of the language contained in the Commercial Union general liability
policy, the Board stands in the same shoes as Bill Rich Construction
and may directly seek coverage under the policy. We therefore find that the
circuit court erred in holding that Commercial Union was not obligated to
provide the Board with a legal defense and coverage under the general liability
policy at issue.
The Board argues that it
is an additional insured under both insurance policies at issue
_ the general liability policy and the umbrella policy. The Board argues that
because an agent for Commercial Union issued a certificate of insurance listing
the Board as an additional insured under both policies, the Board reasonably
relied upon that representation to its detriment and thereby allowed Bill
Rich Construction to perform the construction work without adequate insurance
coverage. Because the Board relied to its detriment on Commercial Union's
misrepresentation of coverage, the Board argues that Commercial Union is now
prevented under the doctrine of estoppel from denying the representation made
on the certificate.
Commercial Union does not
dispute that its agent issued a certificate of insurance listing the Board
as an additional insured. Instead, Commercial Union argues that it had no
knowledge of the certificate's existence, and therefore could not modify the
actual policy to include coverage for the Board. For example, Commercial Union
points out that neither the Board nor Bill Rich Construction paid additional
premiums for the alleged additional coverage. Commercial Union asserts that
disclaimer language on the face of the certificate of insurance should have
made clear to any reader _ including the Board _ that no right to coverage
was created by the certificate. In other words, Commercial Union contends
that because no firm representation of the existence of coverage was ever
made, and the Board could not have reasonably relied on the certificate as
evidence of coverage, the doctrine of estoppel does not apply.
(See footnote 9)
We begin our analysis by considering
the purpose of certificates of insurance. As previously mentioned, parties
to a contract may contractually shift a risk of loss through an indemnity
provision in the contract. The indemnitee in the contract can
also require the indemnitor to provide some insurance protection
for the indemnitee. However, while [i]ndemnitees can make very
specific and comprehensive contractual requirements concerning the protection
to be afforded, . . . they have very few alternatives for verifying that indemnitors
have complied with them. . . .
The certificate of insurance
is the primary vehicle for verification that insurance requirements have been
met. Donald S. Malecki, et al., The Additional Insured Book 341 (4th
Ed., 2000).
A certificate of insurance is
a form that is completed by an insurance broker at the request of an insurance
policyholder, and is a document evidencing the fact that an insurance policy
has been written and includes a statement of the coverage of the policy in general
terms. Black's Law Dictionary (5th Ed. 1979). A certificate
of insurance serves merely as evidence of the insurance and is not a part
of the insurance contract. Richard H. Glucksman, et al., Additional
Insured Endorsements: Their Vital Importance in Construction Defect Litigation,
21 Construction Lawyer 30, 33 (Winter 2001). [C]ertificates provide
evidence that certain general types of policies are in place on the date the
certificate is issued and that these policies have the limits and policy periods
shown. Malecki, supra at 341.
A problem with certificates
of insurance, which appears to be common in indemnification contracts such as
that in the instant case,
(See footnote 10) is that insurance agents often
issue certificates of insurance detailing a particular form of coverage, but then
fail to notify the insurance company of the need to alter or amend the coverage
to match the certificate. The result is that the insurance company _ like
in the instant case _ refuses to provide coverage. As one commentator notes,
Although a broker for the
subcontractor [policyholder] may have prepared the certificate of insurance,
in many cases he or she did not follow through and actually obtain the necessary
endorsement. . . . As a result, although a developer may hold a certificate
that states it is named as an additional insured on the subcontractor's policy
of insurance, the subcontractor's carrier will deny the tender of defense
and contend that the agent did not have express authority to bind the carrier.
Glucksman, at 33.
(See footnote 11)
A treatise on additional
insureds suggests that the fact pattern in the instant case is the
most common area of conflict involving certificates of insurance. As the
treatise states: Probably the most common area
in which certificates of insurance and insurance policies conflict is with respect
to additional insured status. Certificate holders are often listed as additional
insureds on certificates without the policy actually being endorsed to reflect
that intent. An extreme case of this that often occurs is for a copy of an additional
insured endorsement to be attached to the certificate but not the policy. This
practice may not provide additional insured status and, thus, is sometimes called
the fictitious insured syndrome.
Sometimes this problem stems
from a lack of communication. The insurance agent, for example, may have the
authority to add another party to a policy as an additional insured and may
issue a certificate indicating that this has been done while forgetting to ask
the insurer to issue the endorsement. When the insured later
This, of course, is really
a matter of principal-agency liability and should not detrimentally affect
the certificate holder. However, concise wording in the certificate's preamble
indicating that the certificate is for information only fosters
an insurance company's opportunity to deny any protection. . . .
The insurance company maintains
that it does not matter what the certificate says, it is what the policy states
that counts. . . .
Malecki, supra at 345-46. The insurance company in this case makes
the same argument: it does not matter that the certificate of insurance says
that the Board is an additional insured, it is what the policy states _ or,
more particularly, does not state _ that counts.
The Board argues that it reasonably
relied to its detriment upon representations of coverage made by Commercial
Union in its certificate of insurance, and therefore Commercial Union should
be estopped from denying coverage.
The doctrine of estoppel applies
when a party is induced to act or to refrain from acting to [his/]her detriment
because of [his/]her reasonable reliance on another party's misrepresentation
or concealment of a material fact. Syllabus Point 2, in part, Ara
v. Erie Ins. Co., 182 W.Va. 266, 387 S.E.2d 320 (1989). Estoppel is properly
invoked to prevent a litigant from asserting a claim or a defense against
a party who has detrimentally changed its position in reliance upon the litigant's
misrepresentation or failure to disclose a material fact. Ara, 182
W.Va. at 270, 387 S.E.2d at 324. The doctrine is designed to prevent
a party's disavowal of previous conduct if such repudiation would not be responsive
to the demands of justice and good conscience. White v. Austin, 172 N.J.Super.
451, 454, 412 A.2d 829, 830 (1980).
In Potesta v. U.S.F.&G.,
202 W.Va. 308, 504 S.E.2d 135 (1998), we suggested that the doctrine of estoppel
may not be used to create insurance coverage, or increase coverage beyond
that provided by the policy. We stated, at Syllabus Point 5, that:
Generally, the principles
of waiver and estoppel are inoperable to extend insurance coverage beyond
the terms of an insurance contract.
The rationale for this rule is that an insurance company should not be made
to pay for a loss for which it has not charged a premium. See Doctrine
of Estoppel or Waiver as Available to Bring Within Coverage of Insurance Policy
Risks Not Covered by its Terms or Expressly Excluded Therefrom, 1 A.L.R.3d
1139, 1144 (1965).
There are, however, numerous
recognized exceptions to this rule. We held in Potesta at Syllabus
Point 7 that the some of the exceptions include, but are not necessarily
limited to the following:
Exceptions to the general
rule that the doctrine of estoppel may not be used to extend insurance coverage
beyond the terms of an insurance contract, include, but are not necessarily
limited to, instances where an insured has been prejudiced because: (1) an
insurer's, or its agent's, misrepresentation made at the policy's inception
resulted in the insured being prohibited from procuring the coverage s/he
desired; (2) an insurer has represented the insured without a reservation
of rights; and (3) the insurer has acted in bad faith.
These exceptions have been used to create insurance coverage where to
refuse to do so would sanction fraud or other injustice. Crown Life
Ins. Co. v. McBride, 517 So.2d 660, 662 (Fla. 1987).
In the instant case we focus
our analysis on the first exception, whether the insurer or its agent made a
misrepresentation by issuing a certificate of insurance at the inception of
coverage which resulted in the Board not having the coverage it desired. Our
research indicates that [i]t is well settled that an
insurer may be equitably estopped from denying coverage where the party for
whose benefit the insurance was procured reasonably relied upon the provisions
of an insurance certificate to that party's detriment.
Lenox v. Excelsior Ins. Co., 255 A.D.2d 644, 645, 679 N.Y.S.2d 749, 750
(1998) (citations omitted). See also, Zurich Ins. Co. v. White,
221 A.D.2d 700, 633 N.Y.S.2d 415 (1995) (insurer was estopped from asserting
deductibles to liability coverage when certificate of insurance represented
there were no deductibles); Criterion Leasing Group v. Gulf Coast Plastering
& Drywall, 582 So.2d 799 (Fla.App. 1991) (under doctrine of promissory
estoppel, insurer was prevented from denying workers' compensation coverage
to subcontractor's employee when subcontractor was named as a coinsured
on certificate of insurance); Bucon, Inc. v. Pennsylvania Mfg. Assoc. Ins.
Co., 151 A.D.2d 207, 547 N.Y.S.2d 925 (1989) (insurer estopped from denying
the existence of plaintiff's coverage after issuing certificate of insurance
identifying the plaintiff as an additional insured). A Certificate
of Insurance is an insurance company's written statement to its customer that
he has insurance coverage, and the insurance company is estopped from denying coverage that the Certificate
of Insurance states is in effect. Blackburn, Nickels & Smith,
Inc. v. National Farmers Union Property and Cas. Co., 482 N.W.2d 600,
603 (N.D. 1992).
We therefore hold that a certificate
of insurance is evidence of insurance coverage, and is not a separate and
distinct contract for insurance. However, because a certificate of insurance
is an insurance company's written representation that a policyholder has certain
insurance coverage in effect at the time the certificate is issued, the insurance
company may be estopped from later denying the existence of that coverage
when the policyholder or the recipient of a certificate has reasonably relied
to their detriment upon a misrepresentation in the certificate.
Examining the record, we believe
that the elements of estoppel against Commercial Union's denial of coverage
have been established by the Board. At the inception of coverage
for the Board, on September 14, 1987, an agent for Commercial Union prepared
a certificate of insurance naming the Board as an additional insured. The
insurance company's bare, conclusory averment that the certificate naming
plaintiff [the Board] as an additional insured was the result of 'clerical
error' was insufficient to overcome the estoppel effect of its misrepresentation,
since even an innocent misleading of another party may bar one from claiming
the benefits of his deception. Bucon, Inc., v. Pennsylvania Mfg.
Assoc. Ins. Co., 151 A.D.2d 207, 211, 547 N.Y.S.2d 925, 927 (1989). See
also, Potesta v. U.S.F.&G., 202 W.Va. at 321, 504 S.E.2d at
148, citing Harr v. Allstate Ins. Co., 54 N.J. 287,255 A.2d 208 (1969) (finding equitable estoppel is available to broaden
coverage when there is a misrepresentation before or at the inception of the
insurance contract, even where the misrepresentation is innocent).
The circuit court therefore
erred in holding that the certificate of insurance did not create an obligation
for Commercial Union to provide the Board with a legal defense and coverage
under both the general liability and umbrella policies at issue.
Certificate Holder.
of insurance listing contractor as an additional insured on subcontractor's policy, but failed to notify insurance company to change policy coverage; insurance company argued that inclusion of contractor on certificate of insurance was a clerical error).
invalid unless they are communicated to the certificate holder in writing);
J.M. Corbett Co. v. Ins. Co. of North America, 43 Ill.App.3d 624, 357 N.E.2d
125 (1976) (holding that because exclusion was not provided to certificate
holder, terms of the certificate controlled).
A similar situation occurs in the context of medical,
disability or other types of group insurance, where insureds are often given
a certificate as evidence of coverage but are never given a copy of the master
policy. The majority rule is that the coverage provisions stated in a certificate
of coverage furnished to an insured by the insurance company takes precedence
over conflicting terms in the master policy. See Group Insurance: Binding
Effects of Limitations on or Exclusions of Coverage Contained in Master Group
Policy But Not in Literature Given Individual Insureds, 6 A.L.R.4th
835 (1981). Cf., Syllabus Point 3, Romano v. New England Mut. Life Ins. Co.,
178 W.Va. 523, 362 S.E.2d 334 (1987) (Where an insurer provides sales
or promotional materials to an insured under a group insurance policy, which
the insurer knows or should know will be relied upon by the insured, any conflict
between such materials and the master policy will be resolved in favor of
the insured.)