Catherine D. Munster, Esq.
Ancil G. Ramey, Esq.
James N. Riley, Esq. Steptoe & Johnson
Tiffany R. Durst, Esq. Charleston, West Virginia
McNeer, Highland, McMunn & Varner, L.C. Attorney for Appellant
Clarksburg, West Virginia Mossy Eagle Limited Liability Co.
Attorneys for Appellee
Robert P. Martin, Esq.
Bastien & Martin
Charleston, West Virginia
Attorney for Alpha
Engineering Services, Inc.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE McGRAW dissents and reserves the right to file a dissenting opinion.
This is an appeal from a declaratory judgment order of the Circuit Court of
Raleigh County entered on November 19, 1999. In the order, the circuit court concluded that
a professional services exclusion in an insurance policy excluded coverage for allegedly
negligent surveying, mapping and engineering services provided by one mining company
As set forth below, we affirm the circuit court's order.
At the time of the incidents, Mossy Eagle was insured under a liability
insurance policy issued by the plaintiff below and appellee, State Automobile Mutual
Insurance Company (State Auto).See footnote 1
After Mossy Eagle demanded a defense and
indemnification from State Auto for Brock Mining's claims, State Auto filed the instant
declaratory judgment action. State Auto asked the circuit court to declare that coverage did
not exist under the policy for various reasons, including the application of a professional
services exclusion contained in the policy. The exclusion states:
This insurance does not apply to: . . .
j. Bodily injury, property damage, personal injury or advertising injury due to rendering or failure to render any professional service. This includes but is not limited to: . . .
(2) Preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications;
(3) Supervisory, inspection or engineering services; . . .
State Auto subsequently filed a motion for summary judgment arguing that there was no coverage under the policy because Mossy Eagle and Alpha were rendering professional services to Brock Mining in the form of maps, surveys, inspections and mining engineering services.
In an order dated November 19, 1999, the circuit court entered an order granting State Auto's motion for summary judgment, declaring that the professional services exclusion applied to the claims filed by Brock Mining. The circuit court ruled that State Auto had neither a duty to defend nor a duty to provide coverage to Mossy Eagle under the policy.
This appeal by Mossy Eagle followed.
As a general rule, an insurer's duty to defend is tested by whether the
allegations in the plaintiff's complaint are reasonably susceptible of an interpretation that the
claim may be covered by the terms of the insurance policy. Aetna Cas. & Sur. Co. v.
Pitrolo, 176 W.Va. 190, 194, 342 S.E.2d 156, 160 (1986). As we stated in the sole syllabus
point of Farmers & Mechanics Mut. Fire Ins. Co. of West Virginia v. Hutzler, 191 W.Va.
559, 447 S.E.2d 22 (1994):
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.
In other words, an insurer has a duty to defend an action against its insured only if the claim stated in the underlying complaint could, without amendment, impose liability for risks the policy covers. See also, Butts v. Royal Vendors, Inc., 202 W.Va. 448, 504 S.E.2d 911 (1998); Bruceton Bank v. United States Fidelity & Guaranty Ins. Co., 199 W.Va. 548, 486 S.E.2d 19 (1997); Silk v. Flat Top Construction, Inc., 192 W.Va. 522, 525, 453 S.E.2d 356, 359 (1994). If the causes of action alleged in the plaintiff's complaint are entirely foreign to the risks covered by the insurance policy, then the insurance company is relieved of its duties under the policy. Silk, 192 W.Va. at 525, 453 S.E.2d at 359; Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988).
When an insurance company seeks to avoid its duty to defend, or its duty to provide coverage, through the operation of a policy exclusion, the insurance company bears the burden of proving the facts necessary to trigger the operation of that exclusion. Syllabus Point 7, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987).
It is a fundamental principle of insurance law that if the terms of an exclusion are plain and not ambiguous, then no interpretation of the language is necessary, and a court need only apply the exclusion to the facts presented by the parties. As we held in the Syllabus of Keffer v. Prudential Ins. Co. of America, 153 W.Va. 813, 172 S.E.2d 714 (1970):
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.
The parties in this action dispute the application of the professional services exclusion contained in State Auto's liability policy. Mossy Eagle argues that while it was contractually obligated to provide the surveys, maps, and engineering services under dispute in Brock Mining's complaint, it did not in fact render these professional services. Instead, Mossy Eagle insists that Alpha provided the services, that Mossy Eagle's only potentially negligent act was its hiring of Alpha as its agent, and that the professional services exclusion therefore operates only against Alpha. We disagree.
The exclusion at issue in this case plainly excludes any coverage for [p]reparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications and [s]upervisory, inspection or engineering services. The complaint filed by Brock Mining alleges that Mossy Eagle was
obligated to provide these professional services, and that its agent, Alpha, was negligent in
providing these professional services. In sum, Mossy Eagle provided the contracted-for
professional services to Brock Mining through the use of an agent. The language of the
exclusion appears to be unambiguous, and in accordance with our prior holdings, must be
applied and not construed.
We therefore find that the circuit court did not err in declaring that the professional services exclusion applied to the actions alleged in Brock Mining's complaint. The circuit court correctly applied the exclusion to the actions alleged in Brock Mining's complaint, and properly concluded that State Auto had no duty to defend or provide coverage under its liability policy for Mossy Eagle's and Alpha Engineering's negligent provision of surveys, maps and engineering services to Brock Mining.