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

> West Virginia Supreme Court · June 4, 2014 · 234 W. Va. 1

URL: https://www.frixlaw.com/law-library/cases/9799806

## Case

- **Full name:** John D. FLOWERS, Dave Flowers D/B/A Venom, Inc., Third-Party Plaintiffs Below, Petitioner v. MAX SPECIALTY INSURANCE COMPANY, a Virginia Corporation, Plaintiff Below, Respondent; Darin I. Drane, Defendant Below, Petitioner v. Max Specialty Insurance Company, a Virginia Corporation, Plaintiff Below, Respondent
- **Court:** West Virginia Supreme Court
- **Decided:** June 4, 2014
- **Citations:** 234 W. Va. 1; 761 S.E.2d 787; 2014 W. Va. LEXIS 630; 2014 WL 2562489
- **Precedential status:** Published
- **Opinion:** Concurrence by Ketchum
- **Judges:** Ketchum, Per Curiam
- **Nature of suit:** Tort, Contract, and Real Property
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9799806

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9799806. Public record. Not legal advice.