| Jay T. McCamic, Esq.
McCamic & McCamic
Wheeling, West Virginia
John J. Pizzuti, Esq.
Camilletti, Sacco & Pizzuti, L.C.
Wheeling, West Virginia
Attorneys for Appellant
| Brent K. Kesner, Esq
Tanya M. Kesner, Esq.
Ellen R. Archibald, Esq.
Kesner, Kesner & Bramble
Charleston, West Virginia
Attorneys for Appellee Westfield
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is
not desirable to clarify the application of the law. Syllabus Point 3,
Aetna Casualty & Surety Company v. Federal Insurance Company of New York,
148 W. Va. 160, 133 S.E.2d 770(1963).
2. It is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured. Syllabus Point 4, National Mutual Insurance Company v. McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987).
In this case, the Circuit
Court of Ohio County granted the defendant, Westfield Insurance Company, summary
judgment in an action brought by one of its insured's, Change, Inc., growing
out of the refusal of Westfield Insurance Company to settle a claim resulting
from water damage to Change, Inc.'s, premises located in Wheeling, West Virginia.
The circuit court granted summary judgment because the court concluded that
the insurance policy issued by Westfield Insurance Company unambiguously excluded
from coverage the loss sustained by Change, Inc. On appeal, Change, Inc., argues
that the policy in question did not exclude the type of damage which it sustained
and that the circuit court erred in granting Westfield Insurance Company summary
On June 27, 1997, a water
main owned by the City of Wheeling ruptured and damaged the offices of Change,
Inc., which is a non-profit organization. At the time, the premises occupied
by Change, Inc., were covered by a commercial property insurance policy issued
by Westfield Insurance Company. The policy provided that Westfield Insurance
Company would pay for damage caused by Specified Causes of Loss.
Specified Causes of Loss were defined as Fire, lightning,
explosion . . . water damage. Water damage was defined as accidental discharge or leakage of water or steam as
the direct result of the breaking or cracking of any part of a system or appliance
containing water or steam.
Another portion of the policy
excluded certain types of water damage. Specifically, the policy stated:
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
After it suffered water damage
to its offices, Change, Inc., filed a claim with Westfield Insurance Company
under its policy. Westfield Insurance Company refused to pay the claim, because it concluded that the damage was excluded under the exclusionary
language of the policy. As a result, Change, Inc., instituted the present action
in the Circuit Court of Ohio County.See
footnote 1 1 In its action, Change, Inc., claimed that Westfield
Insurance Company had breached its contract, that it had violated the Unfair
Claims Settlement Practices Act, and that it had engaged in bad faith in considering
Following the filing of the
action, discovery was conducted, and Westfield Insurance Company moved for summary
judgment. The Circuit Court of Ohio County took the motion for summary judgment
under consideration and on October 29, 1999, found, among other things, that:
6. The policy in issue, in pertinent part, unambiguously excluded from coverage all loss or damage caused directly or indirectly by water that came from a flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not. It also excluded water that backs up from a sewer or drain as well as water under the ground surface pressing on, or flowing or seeping through foundations, walls, floors or paved surfaces, as well as basements, whether paved or not, and doors, windows or other openings.
water that damaged Plaintiff's property was outside water that came from under
the ground surface and either flowed or seeped through openings in Plaintiff's
building and then entered Plaintiff's basement office.
The court ruled that the policy provisions were not ambiguous and that they clearly excluded the water damage loss sustained by Change, Inc. The court stated that for that reason, there was no genuine issue of fact to be tried, and that Westfield Insurance Company was entitled to summary judgment. From that ruling, Change, Inc., now appeals.
In the present case, the Court
believes that the policy issued by Westfield Insurance Company is uncertain,
or that reasonable minds might disagree as to its meaning and that it is, thus,
ambiguous. At one point the policy specifically provides that it will cover
water damage resulting from the accidental discharge or leakage of water resulting
from the breaking or cracking of any part of a system containing water.
At another point, the policy specifically excludes coverage of damage from water
under the ground surface pressing on, flowing or seeping through foundations,
etc. In the Court's view, it is unclear as to whether the policy provides coverage
resulting from the breaking or cracking of a system containing water which is
wholly or partially underground. Because the policy is ambiguous, the Court believes that under Syllabus Point 4 of National Mutual Insurance Company
v. McMahon & Sons, Inc., id., the policy must be construed strictly
against the insurer.
Recently, in Murray v.
State Farm Fire and Casualty Company, 203 W. Va. 477, 509 S.E.2d 1
(1998), the Court examined the question of whether an insurance policy similar
to the one in question in the present action covered a landslide. In Murray,
the Court concluded that the policy was ambiguous and determined that the exclusion
should be construed by applying the construction principals of ejusdem generis
and noscitur a sociis. The Court stated:
Under the doctrine of ejusdem generis, [w]here general words are used in a contract after specific terms, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified. Syllabus Point 4, Jones v. Island Creek Coal Co., 79 W. Va. 532, 91 S.E. 391 (1917). The phrase noscitur a sociis literally means it is known from its associates, and the doctrine implies that the meaning of a general word is or may be known from the meaning of accompanying specific words. See Syllabus Point 4, Wolfe v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975). The doctrines are similar in nature, and their application holds that in an ambiguous phrase mixing general words with specific words, the general words are not construed broadly but are restricted to a sense analogous to the specific words.
203 W. Va. at 485, 509 S.E.2d at 9.
The exclusion involved in
the present case states that Westfield Insurance Company will not pay for loss
or damage caused by Flood, surface water, waves, tides, tidal waves, overflow
of any body of water, or their spray, all whether driven by wind or not,
and also by such things as mudslides or mudflows, and backups of water in drains.
On the other hand, it specifically indicates that if the loss is caused by such
things as sprinkler leakage, Westfield Insurance Company will pay for the resulting
The doctrine of noscitur
a sociis dictates that language should be construed in accordance with the
words which are its associates. The Court observes that the words of the exclusionary
language specifically exclude damage by flood, surface water, waves, tides,
tidal waves, etc. These words all refer to water arising from natural causes
or from natural disasters. On the other hand, the language of the exclusionary
clause includes in coverage damage by sprinkler leakage, that is, water from
a manmade system.
In light of the fact that
Syllabus Point 4 of National Mutual Insurance Company v. McMahon & Sons,
Inc., supra, indicates that ambiguous terms in an insurance policy
should be strictly construed against the insurance company, and in light of
the fact that the language of the exclusionary provisions in question exclude
coverage for water damage of natural origin, but provide coverage for water
damage from a manmade system, the Court concludes that, after applying the doctrine
of noscitur a sociis, the proper construction of the policy in the present
case is that the policy issued by Westfield Insurance Company toChange, Inc., in the present case provided coverage to Change, Inc., for the
water damage resulting from the rupture of the City of Wheeling's water main,
a manmade structure.
For the reasons stated, the
judgment of the circuit court is reversed, and this case is remanded for further
Footnote: 1 1Change, Inc., also filed claims against the City of Wheeling and the City's insurance company, St. Paul Fire and Marine Insurance Company. When they refused to pay, they were included as parties defendant in the present action. It appears that the claims against the City of Wheeling and St. Paul Fire and Marine Insurance Company were settled before the bringing of this appeal.