Opinion

John D. Flowers and Dave Flowers v. Max Specialty Insurance Company and Darin I. Drane v. Max Specialty Insurance Company

  • 234 W. Va. 1
  • 761 S.E.2d 787
  • 2014 W. Va. LEXIS 630
  • 2014 WL 2562489
Court
West Virginia Supreme Court
Filed
Jun 4, 2014
Status
Published
Author
Ketchum
On the bench
Ketchum, Per Curiam
Nature of suit
Tort, Contract, and Real Property
Cited by
10 cases
Authority
More cited than 11.4%

finding that available coverage was limited to $25,000 under an endorsement to the CGL policy, rather than the $1 million limit that was otherwise available under the CGL coverage part

How later courts described this case

  • finding that available coverage was limited to $25,000 under an endorsement to the CGL policy, rather than the $1 million limit that was otherwise available under the CGL coverage part
  • recognizing that “assault and battery are intentional torts”
  • “The interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination.” (quoting Syl. Pt. 2, Riffe v. Home Finders Assoc., Inc., 517 S.E.2d 313 (W. Va. 1999))

Written by the judges who cited it.

The opinion

Justice KETCHUM,

concurring.

The insurance policy had a limited assault and battery endorsement providing $25,000.00 liability coverage for assault and battery. This endorsement states that “supplementary payments” made by the insurance company will reduce the $25,000.00 limits of liability coverage.

The term “supplementary payments” is not defined in the assault and battery endorsement. However, it is defined in the *14 commercial general liability coverage, which excludes coverage for assault and battery. It defines “supplementary payments” to include “all expenses we incur,” e.g., attorney fees and expenses defending the lawsuit. Surprisingly, the commercial general liability coverage goes on to state that supplementary payments “will not reduce the limits of coverage.”

Although the policy language is very contradictory, confusing and ambiguous, the circuit judge held that “supplementary payments” do reduce the $25,000.00 policy limits of the assault and battery coverage. This was an erroneous ruling under our law dealing with ambiguous policy language. See, Luikart v. Valley Brook Concrete & Supply, 216 W.Va. 748 , 613 S.E.2d 896 (2005).

If petitioners had appealed this ruling, I believe we would have reversed the circuit judge and held that the $25,000.00 assault and battery limits were not reduced by supplementary payments, i.e., expenses incurred by the insurance company including attorney fees and litigation expenses.

Therefore, I concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.