No. 28482 - Erie Insurance Property and Casualty Company v. Stage Show
Pizza, JTS, Inc., John Paul Harvey
Maynard, Justice, concurring in part and dissenting in part:
I concur with the majority's determination that the circuit court erred in finding
there was no insurance coverage for the appellant's common law negligence cause of action.
As noted by the majority, the record indicates that Stage Show Pizza was in default on its
obligations to the workers' compensation fund for failure to pay premiums on the date the
appellant was injured. As a result, Stage Show Pizza lost its immunity under W.Va. Code
§ 23-2-6 (1991) and was subject to a suit for common law damages. Accordingly, Erie has
an obligation under its policy to provide coverage to Stage Show Pizza for the appellant's
common law action.
I dissent, however, to the
majority's holding that Erie must provide coverage for the appellant's deliberate
intention cause of action. Erie's policy clearly provides that it does not cover
any obligation for which you or any insurer may become liable under any
workers' compensation . . . law. As acknowledged by the majority, this
Court ruled in Bell v. Vecellio & Grogan, Inc., 197 W.Va. 138, 475
S.E.2d 138 (1996) that a deliberate intention cause of action is a right held
by each employee subject to the West Virginia Workers' Compensation Act. We
made clear in Bell that a statutory deliberate intention cause of action
supersedes a common law cause of action and is woven within the workers'
compensation fabric in this State[.] Bell, 197 W.Va. at 139, 475
S.E.2d at 139. Because a deliberate intention cause of action exists under a
workers' compensation law, the Erie policy, by its plain terms, excludes coverage
for such a cause of action.
For the reasons stated above, I concur in part and dissent in part.