Submitted: January 19, 1993
Filed: February 24, 1993
Deborah L. McHenry
Daniel R. Shuda
Ranson, Ranson & McHenry Janet N. Kawash
Charleston, West Virginia Steptoe & Johnson
G. Patrick Jacobs Charleston, West Virginia
Bickley, Jacobs & Barkus George Joseph
Charleston, West Virginia Legal Division
Attorneys for the Appellant W. Va. Department of
Transportation, Division of Highways
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE MILLER delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. W. Va. Code, 29-12-5(a) (1986), provides an exception for the State's constitutional immunity found in Section 35 of Article VI of the West Virginia Constitution. It requires the State Board of Risk and Insurance Management to purchase or contract for insurance and requires that such insurance policy "shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits."
2. "Suits which seek no recovery from state funds, but
rather allege that recovery is sought under and up to the limits of
the State's liability insurance coverage, fall outside the
traditional constitutional bar to suits against the State."
Syllabus Point 2, Pittsburgh Elevator Co. v. West Virginia Board of
Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983).
3. Language contained in the West Virginia Department
of Highway's liability insurance policy procured under W. Va. Code,
29-12-5(a), which provides coverage for bodily injury arising out
of and occurring during the performance of construction on a state
highway will cover a bodily injury occurring up until the
completion of the highway construction project. Such coverage
provision does not relieve the plaintiff from proving negligence
and proximate cause in order to recover for the bodily injury.
Homer A. Eggleston, Jr., appeals from an adverse ruling
entered by the Circuit Court of Kanawha County granting summary
judgment to the West Virginia Department of Highways (WVDOH) in a
personal injury action.See footnote 1 The trial court ruled that Mr.
Eggleston's complaint was barred by the sovereign immunity from
such actions granted to the State of West Virginia pursuant to
Section 35 of Article VI of the West Virginia Constitution and
W. Va. Code, 17-4-37. The circuit court found that the sovereign
immunity defense was available because the WVDOH's liability
insurance purchased pursuant to W. Va. Code, 29-12-5 (1986), did
not apply to this accident pursuant to Shrader v. Holland, 186
W. Va. 687, 414 S.E.2d 448 (1992). We find that Mr. Eggleston's
complaint and discovery material contains sufficient facts to come
within the liability insurance policy coverage purchased by the
WVDOH, at least for purposes of a summary judgment motion. We,
therefore, reverse the order of the trial court and remand this
case to the Circuit Court of Kanawha County.
On July 10, 1990, Mr. Eggleston filed a civil action in the Circuit Court of Kanawha County alleging that he suffered injuries in a July 16, 1989, tractor-trailer accident on Interstate 64 between Beckley and Sam Black Church. Mr. Eggleston alleged that his accident was a direct and proximate result of negligence on the part of the WVDOH in designing, constructing, maintaining, and failing to properly warn him of the unsafe nature of the highway. The accident occurred on a recent addition to Interstate 64, on a portion of the highway first opened to public traffic the day before Mr. Eggleston's accident. Mr. Eggleston contends that his accident occurred on a very long, steep grade of Interstate 64 known as the "Sandstone Grade." He further contends that the highway was dangerous and incomplete because several warning signs meant to be placed prior to the "Sandstone Grade" descent had not been erected.
The plaintiff's chief complaint is that the highway
construction plans called for large warning signs describing the
length and degree of the precipitous slope of the road to be posted
above I-64 near the top of the grade.See footnote 2 These signs were not in
place because the necessary fastening devices had not been procured
before the road opened.
Before we address the issue of insurance policy coverage, it is useful to explain the underlying legal concept that enables the plaintiff to sue the WVDOH. There is no question that it is a state agency and entitled to the constitutional immunity contained in Section 35 of Article VI of the West Virginia Constitution, which states, in part: "The State . . . shall never be made a defendant in any court of law or equity[.]"See footnote 3
Furthermore, under W. Va. Code, 17-4-37, there is the
command that "[t]he State shall not be made the defendant in any
proceeding to recover damages because of the defective construction
or condition of any state road or bridge."
However, in W. Va. Code, 29-12-5(a) (1986), the State Board of Risk and Insurance Management is given the "general supervision and control over the insurance of all state property, activities and responsibilities[.]" This section contains the following proviso: "Any policy of insurance purchased or contracted for by the board shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the state of West Virginia against claims or suits[.]"
W. Va. Code, 29-12-5(a) (1986), provides an exception to
the State's constitutional immunity found in Section 35 of Article
VI of the West Virginia Constitution. It requires the State Board
of Risk and Insurance Management to purchase or contract for
insurance and requires that such insurance policy "shall provide
that the insurer shall be barred and estopped from relying upon the
constitutional immunity of the State of West Virginia against
claims or suits." In Pittsburgh Elevator Co. v. West Virginia
Board of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983), we
discussed the effect of W. Va. Code, 29-12-5,See footnote 4 as it related to the
State's constitutional immunity. In Syllabus Point 2, we stated:
"Suits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State."
In other jurisdictions which have a similar type of
statutory insurance provision, courts have also reached the result
that, insofar as a plaintiff's damage claim is covered by the
state's insurance policy barring the assertion of the state's
constitutional immunity, the suit may be maintained.See footnote 5 See, e.g.,
Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957); Williams v.
New Mexico Highway Comm'n, 82 N.M. 550, 484 P.2d 770 (App. 1971);
McCloud v. City of La Follette, 38 Tenn. App. 553, 276 S.W.2d 763
(1954).See footnote 6
Our focus is, therefore, whether the insurance policy at
issue provides coverage for the type of accident that occurred in
this case. Thus, we turn to the language of the policy and our
decision in Shrader v. Holland, supra.
The State's insurance policy in this case was a custom designed policy. It was different from the usual insurance policy that is prepared and printed by an insurance company and delivered to the insured, whose only input ordinarily is not as to its language, but as to the amount and type of coverage. The policy herein was typed and regarding the exclusion in question and the exception at issue provides:
"It is agreed that the insurance afforded under this policy does not apply to the: ownership, maintenance, supervision, operation, use of [sic] control of streets, including sidewalks, highways or other public thoroughfares, bridges, tunnels, dams, culverts, storm or sanitary sewers, but this exclusion does not apply to bodily injury or property damage which arises out of and occurs during the performance or [sic] construction, street cleaning and repair operations or arises out of the maintenance or use of sidewalks which abut buildings covered by this policy." (Emphasis added).
In Shrader v. Holland, supra, we construed identical
language in the WVDOH insurance policy and found two errors. The
first error was in the fourth line where the word "of" appears and
the second error was in the fourth line from the bottom where the
word "or" appears. We identified those errors in Shrader through
the use of the term "sic." This utilization of the term "sic"See footnote 7 was
not the subject of any further comment in Shrader. The WVDOH
asserts that the clear import of the last "sic" is that the phrase
must be read "during the performance of construction." For
purposes of this case, we will assume this to be a correct reading
of the phrase.See footnote 8
The plaintiff contends that the language of the policy is
ambiguous and, therefore, should be construed strictly against the
insurer and liberally in favor of the insured. See, e.g., Shamblin
v. Nationwide Mut. Ins. Co., 175 W. Va. 337, 332 S.E.2d 639 (1985);
Mason Coal Co. v. Insurance Co. of State of Pa., 158 W. Va. 146,
210 S.E.2d 747 (1974). Whether there is an ambiguity in a contract
was discussed in Syllabus Point 1 of Berkeley County Public Service
District v. Vitro Corp. of America, 152 W. Va. 252, 162 S.E.2d 189
(1968), where we determined that it was a legal issue for court
"The mere fact that parties do not
agree to the construction of a contract does
not render it ambiguous. The question as to
whether a contract is ambiguous is a question
of law to be determined by the court."
The parties acknowledge that the controlling language in
the policy which allows coverage is "bodily injury or property
damage which arises out [of] and occurs during the performance of
construction" on a street or highway. In Shrader v. Holland,
supra, we did not find this language to be ambiguous, although we
did not discuss the policy language to any extent except to say:
"Under this policy, the third-party plaintiff cannot recover for
the general condition of the road on which the accident occurred.
However, the third-party plaintiff would be able to make a claim if
the accident arose out of repair or maintenance of the road." 186
W. Va. at 689, 414 S.E.2d at 450.
The parties' disagreement over the term "performance [of]
construction" can be briefly summarized. The WVDOH claims that it
should be construed to mean that there has to be ongoing
construction work on the highway at the time the injury occurs.
The plaintiff, on the other hand, states that, so long as there is
work to be performed on the highway construction project and the
injury results from some act or omission under the construction
work attributable to the WVDOH, the policy provides coverage.
Neither party cites any case law that defines the term
the "performance [of] construction." Both sides refer to Shrader,
supra, where the term "ongoing construction" was used in describing
a situation where a plaintiff might recover under the policy. The
difficulty is that the term "ongoing" is not contained in the
policy nor did our statement in Shrader tie "ongoing" to the policy
phrase "performance [of] construction":
"[T]he third-party plaintiff would be able to make a claim if the accident arose out of repair or maintenance of the road. The third-party plaintiffs have provided absolutely no evidence that the road was under repair. In fact, their initial complaints described general road conditions and alleged no ongoing construction or repairs. Furthermore, discovery revealed no evidence of ongoing construction or repairs. Therefore, the circuit court appropriately granted summary judgment based on sovereign immunity." 186 W. Va. at 689, 414 S.E.2d at 450. (Footnote omitted; emphasis added).
When we turn to a dictionary definition of the word
"construction," it appears to include the completion of the entire
project. In Webster's Third New International Dictionary at 489,
"construction" is defined as "the act of putting parts together to
form a complete integrated object." In II(C) The Oxford English
Dictionary at 880 (1970), "construction" is stated as "[t]he action
of framing, devising, or forming, by putting together of parts;
erection, building." Neither definition suggests that
"construction" ends before the thing constructed is complete.
Although we have not previously had the opportunity to
examine this term, other jurisdictions have done so. The Supreme
Court of Iowa in Olney v. Hutt, 251 Iowa 1379, 1387, 105 N.W.2d
515, 520 (1960), has stated:
"In Preston v. Dubuque and Pacific Railroad Co., 11 Iowa 15, this court said: '* * * it being understood by the word construction as here used, more is meant than the mere making of the road bed. The construction of the road implies its preparation and readiness for use[.]'" (Emphasis added).
See also Jenson v. Dorr, 159 Cal. 742, 745-46, 116 P. 553, 555
(1911); Gober v. Akir, 208 Iowa 1354, 227 N.W. 400 (1929); McDowell
v. Blue Ridge & A. Ry. Co., 144 N.C. 721, 57 S.E. 520 (1907). The
court in Carlson v. Kitsap County, 124 Wash. 155, 158, 213 P. 930,
931-32 (1923), stated that "in its common use 'construction' means
the creation of something new, rather than the repair or
improvement of something already existing[.]" Similarly, in
National Charity League, Inc. v. County of Los Angeles, 164 Cal.
App. 2d 241, 248, 330 P.2d 666, 670 (1958), this statement was
made: "We are satisfied . . . that the phrase 'in the course of
construction' applies to a building from the time of its
commencement to its completion." Finally, in Hollis v. Erwin, 237
Ark. 605, 613, 374 S.W.2d 828, 833 (1964), the court considered
what constituted the construction of a hospital and concluded that
it was "more than a mere building of four walls and a roof," and
that the "equipping" of the hospital was essential to its
construction. See generally 23 A.L.R.3d 1282 § 17 (1969); 8A Words
& Phrases Construct; Construction 470, et seq., and Construction
Work 499, et seq.
The term "performance" carries a similar connotation when
used, as in the policy, in combination with the word
"construction." Webster's Third New International Dictionary at
1678 defines "performance" as "the act or process of carrying out
something." Much the same terminology is found in VII(N-Poy), The
Oxford English Dictionary at 689 (1970) where "performance" is said
to be "accomplishment, execution, carrying out, working out of
anything ordered or undertaken; the doing of any action or work."
Courts have adopted these same concepts in case law where
the term "performance" is used. For example, in Tyro Industries,
Inc. v. Trevose Constr. Co., Inc., 737 F. Supp. 856 (E.D. Pa.
1990), where the term "performance" was used in a highway
construction contract, the court said it meant "carrying out or
doing the subject matter of the contract, in this case the
construction of two reinforced earth walls." 737 F. Supp. at 862.
Likewise, the New Jersey Supreme Court in Legion Manor, Inc. v.
Township of Wayne, 49 N.J. 420, 424, 231 A.2d 201, 203 (1967), the
court stated that "[p]erformance contemplates . . . that the work
Finally, the case of Williams v. New Mexico State Highway
Commission, supra, offers some guidance as it involved a somewhat
similar insurance policy. This policy had a basic exclusion of
coverage "arising solely from the existence of or condition of
highways[.]" The policy then exempted from this exclusion and gave
coverage for "accidents arising out of construction, maintenance or
repair operations[.]"See footnote 9
The specific fact issue on coverage was whether the
plaintiff who had been injured by striking a cow on the highway was
covered. The plaintiff's contention was that a cattle guard
located along the highway was defectively maintained. The New
Mexico court was substantially assisted by another policy exclusion
that dealt with "completed operations," a provision which is not
argued in this case. The "completed operations" definition
language was contained in several subsections, but essentially
excluded coverage when the work to be performed had been completed.
The New Mexico court concluded that because the cattle guard had
been originally installed when the highway was built, the
"completed operations" exclusion barred recovery.
In this case, while we have no "completed operations"
language, we find no particular ambiguity in the term "performance
[of] construction." The ordinary definition of this term would
cover those activities that are associated with the construction
from its inception to its end. The term cannot be limited to those
accidents that occur only while the construction has some physical
activity occurring and before the project is completed.
While it is not possible to define such a general phrase
so as to automatically fit each accident that might occur during
the "performance [of] construction," an obvious policy exclusion
would occur where the performance of the construction work is
ended, the job is completed, and construction personnel and the
related tools and equipment are removed from the highway
construction site and then the accident occurs, either through
faulty workmanship or the general road conditions.
In this case, much of the work had apparently been done
except for installation of the overhead warning sign. We cannot
say that there was complete performance of construction because
there was a portion of the work left to be done according to the
This result would be different if there were no plans to
install the warning signs. A plaintiff may not widen the
definition of project completion under the term "performance [of]
construction" by having an expert testify that additional work was
required to make the construction project safer. This would be
adding to the scope of the "performance [of] construction" by
including additional work not contemplated in the original project.
From the foregoing we conclude that the language
contained in the WVDOH's liability insurance policy procured under
W. Va. Code, 29-12-5(a), which provides coverage for bodily injury
arising out of and occurring during the performance of construction
on a state highway will cover a bodily injury occurring up until
the completion of the highway construction project.See footnote 10 Such
coverage provision does not relieve the plaintiff from proving
negligence and proximate cause in order to recover for the bodily
We, therefore, conclude that the trial court erred in
holding as a matter of law that the policy language did not apply
to the accident in question. For the foregoing reasons, the
judgment of the Circuit Court of Kanawha County is reversed and
this case is remanded for further proceedings.
Reversed and remanded.
Footnote: 1Although this case is styled Homer A. Eggleston, Jr. v. West Virginia Department of Highways and Greiner Engineering Sciences, Inc., Greiner Engineering Sciences, Inc., was voluntarily dismissed from this case by the appellee and is not involved in this proceeding.
Footnote: 2In its brief before this Court, the WVDOH admits that sometime after construction of the highway was begun, but sometime before the highway was completed, plans calling for a large warning sign overhanging the roadway warning of the steepness of the "Sandstone Grade" descent were added to the design plans. The WVDOH does not assert that this large, overhanging warning sign was erected at the time of the plaintiff's accident.
Footnote: 3Section 35 of Article VI states:
"The State of West Virginia shall
never be made defendant in any court of law
or equity, except the State of West Virginia,
including any subdivision thereof, or any
municipality therein, or any officer, agent,
or employee thereof, may be made defendant in
any garnishment or attachment proceeding, as
garnishee or suggestee."
Except for the garnishment and attachment exception, which is directed at a state employee's earnings, the chief purpose of the immunity under Section 35 of Article VI is to shield the State from a monetary judgment. See, e.g., Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 359 S.E.2d 124 (1987); Ables v. Mooney, 164 W. Va. 19, 264 S.E.2d 424 (1979). Thus, we have allowed a writ of mandamus to compel a state official to discharge a nondiscretionary duty. E.g., Walter v. Ritchie, 156 W. Va. 98, 191 S.E.2d 275 (1972). In a similar vein, we have said that a declaratory judgment suit does not violate the State's constitutional immunity where it seeks only a declaration of the rights of the parties. E.g., Farley v. Graney, 146 W. Va. 22, 119 S.E.2d 833 (1960).
Footnote: 4Pittsburgh Elevator cited the previous version of W. Va. Code, 29-12-5, enacted in 1957. The language of that section relevant to this case was unchanged by the 1986 version of the statute.
Footnote: 5Legislatures in other jurisdictions extend sovereign immunity to all cases except those specifically described by statute. There, the state's coverage and its insurance carrier's liability are set by statute. Coverage is not controlled, as here, by the type of language that the state's insurance board may settle upon with its insurance carrier. See, e.g., Barad v. Jefferson County, 178 N.W.2d 376 (Iowa 1970); Pensacola Jr. College v. Montgomery, 539 So. 2d 1153, 1155 n.1 (Fla. App. 1989); Tripus v. Peterson, 11 N.J. Super. 282, 78 A.2d 149 (Law Div. 1950); 11 Couch on Insurance 2d § 44:11 (1982); Annot., 68 A.L.R.2d 1437 (1959).
Footnote: 6It appears to be a general rule that a state is immune from liability or suit "for all accidents upon highways resulting from defects, obstructions or nuisances therein, in the absence of a statutory provision to the contrary[.]" 39 Am. Jur. 2d Highways, Streets & Bridges § 353 (1968). See also Pittsburgh Elevator v. West Virginia Bd. of Regents, 172 W. Va. at 748-49 n.6, 310 S.E.2d at 680-81 n.6; Annot., 45 A.L.R.3d 875 (1972). For a discussion of varying authority "on the effect of a legislative enactment authorizing a governmental unit to purchase liability insurance," see Longpre v. Joint School Dist. No. 2, 151 Mont. 345, 348, 443 P.2d 1, 3 (1968). (Emphasis in original).
Footnote: 7The term "sic" is defined in Webster's Third New International Dictionary at 2110 (1970), as "intentionally so written -- used after a printed word or passage to indicate that it is intended exactly as printed or by an editor to indicate that it exactly reproduces an original."
Footnote: 8In this case, the matter might have been clarified by obtaining someone from the Board of Risk and Insurance Management or the insurance carrier personnel who prepared the policy to state that there was a clerical error. This was not done.
We have corrected clerical errors in a statute when we conclude from the true intent of the legislature that the error is manifest. See Syllabus Point 2, McClanahan v. Putnam County Comm'n, 174 W. Va. 478, 327 S.E.2d 458 (1985).
Footnote: 9The text of the applicable exclusion and its exception in the Williams policy was:
"It is agreed that the policy does not and
shall not be construed to cover any liability
arising solely from the existence of or
condition of highways, streets, roads or
other dedicated ways, including bridges,
culverts and similar structures appurtenant
"This exclusion does not apply to accidents
arising out of construction, maintenance or
repair operations undertaken by or on behalf
of the named insured." 82 N.M. at 552, 484
P.2d at 772.
Footnote: 10We believe this holding is consistent with the legislative intent as set out in W. Va. Code, 29-12-1, which guides the State Board of Risk and Insurance Management:
"Recognition is given to the fact that the state of West Virginia owns extensive properties of varied types and descriptions representing the investment of vast sums of money; that the state and its officials, agents and employees engage in many governmental activities and services and incur and undertake numerous governmental responsibilities and obligations; that such properties are subject to losses, damage, destruction, risks and hazards and such activities and responsibilities are subject to liabilities which can and should be covered by a sound and adequate insurance program; and that good business and insurance practices and principles necessitate the centralization of responsibility for the purchase, control and supervision of insurance coverage on all state properties, activities and responsibilities and the cooperation and coordination of all state officials, departments and employees in the development and success of such a centralized state insurance program. Wherefore, in order
to accomplish these desired ends and objectives, the provisions of this article are hereby enacted into law in response to manifest needs and requirements therefor and in the interest of the establishment and development of an adequate, economical and sound state insurance and bonding service on all state property, activities and responsibilities." (Emphasis added).