JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
The appellants (See footnote 1) herein and plaintiffs below, Jeremy Bender, Travis Sturm, Jason Gregory, and Jason Brooks [hereinafter collectively referred to as Mr. Bender], appeal from an order entered December 9, 2004, by the Circuit Court of Webster County. By the terms of that order, the circuit court awarded summary judgment to Continental Casualty Company [hereinafter referred to as Continental], (See footnote 2) finding that the policy of insurance issued by Continental to the Webster County Board of Education [hereinafter referred to as the Board] did not provide coverage for the acts of sexual misconduct which the various appellants allege that the Board's former (See footnote 3) employee, Donald Ray Glendenning, Jr. [hereinafter referred to as Mr. Glendenning], committed against them. On appeal to this Court, the appellants argue that the circuit court erred by granting summary judgment in favor of Continental and by concluding that the subject policy of insurance did not provide coverage for Mr. Glendenning. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we agree with the appellants and find that the Continental insurance policy did, in fact, provide coverage for the acts of sexual misconduct that the appellants have alleged against Mr. Glendenning. Accordingly, we reverse the December 9, 2004, order of the Circuit Court of Webster County and remand this case for further proceedings consistent with this opinion.
to the West Virginia Penitentiary for a term of not less than Five (5) nor more than Fifteen (15) years for the felonious crime of sexual abuse by a parent, guardian, or custodian and not less than One (1) nor more than Five (5) years for the felonious crime of sexual assault in the 3rd degree with sentences to run consecutively,
which sentences he currently is serving.
Thereafter, on about July 6, 2001, Mr. Bender, Mr. Sturm, Mr. Gregory, and Mr. Brooks filed civil actions against Mr. Glendenning claiming that they had all been victims of Mr. Glendenning's sexual abuse and/or assault and for which injuries they now sought damages. (See footnote 6) During the course of this litigation, on April 13, 2004, Mr. Glendenning filed a petition for declaratory relief asking the circuit court to ascertain whether the Board's policy of insurance with Continental provided coverage to him for the
aforementioned claims. Specifically, Mr. Glendenning argued that because he was an insured under the terms of the Board's policy of insurance with Continental, (See footnote 7) Continental should provide both indemnity and a defense for the claims made against him.
Continental then filed a motion for summary judgment on about September 14, 2004, contending that the policy did not provide coverage for Mr. Glendenning's wrongful acts of sexual misconduct and, thus, that it was entitled to judgment as a matter of law. Following a hearing on the matter, the circuit court, by order entered December 9, 2004, granted summary judgment to Continental, finding that Continental had no duty to defend Mr. Glendenning and further concluding that Mr. Glendenning's criminal
actions were outside the scope of his employment duties with the Board and, likewise, outside the scope of the wrongful act coverage provided by the Continental policy. From this adverse ruling, Mr. Bender appeals to this Court.
If a policy or contract of liability insurance covering a political subdivision or its employees is applicable, the terms of the policy govern the rights and obligations of the political subdivision and the insurer with respect to the investigation, settlement, payment and defense of suits against the political subdivision, or its employees, covered by the policy. The insurer may not enter into a settlement for an amount which exceeds the insurance coverage.
W. Va. Code § 29-12A-9(a) (1986) (Repl. Vol. 2004). But see W. Va.
Code § 29-12A- 16(d) (1986) (Repl. Vol. 2001) (indicating that political
subdivision's purchase of an insurance policy does not automatically waive
immunity provided by the Act). (See
footnote 9) In other
words, the existence of an insurance policy does not per se eliminate the grants of immunity provided by the Act unless the policy fails to include appropriate language and/or exclusions which specifically preserve the Act's immunity provisions. The broad policy of insurance issued by Continental to the Board in the case sub judice does not contain any such limiting language and/or exclusions and, thus, its terms define the scope and extent of the Board's liability as well as that of its employee, Mr. Glendenning.
Turning now to the applicable Continental insurance policy in question, we first must ascertain whether Mr. Glendenning was, in fact, an insured under the Board's policy and then, if he was, whether the policy provided coverage for the acts with which he has been charged. We previously have held that [l]anguage in an insurance policy should be given its plain, ordinary meaning. Syl. pt. 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), abrogated on other grounds by National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987). Thus, [w]here provisions in an insurance policy are plain and unambiguous and where such provisions are not contrary to a statute, regulation, or public policy, the provisions will be applied and not construed. Syl. pt. 2, Shamblin v. Nationwide Mut. Ins. Co., 175 W. Va. 337, 332 S.E.2d 639 (1985). Accord Syl., 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.).
With specific regard to the parties involved in the instant appeal, i.e., a political subdivision and its employee who are both protected by the terms of the West Virginia Governmental Tort Claims Act, we have observed that [t]he general rule of construction in governmental tort legislation cases favors liability, not immunity. Unless the legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages . . . must prevail. Syl. pt. 2, in part, Marlin v. Bill Rich Constr., Inc., 198 W. Va. 635, 482 S.E.2d 620 (1996). Therefore,
[i]f the terms of the applicable insurance coverage and contractual exceptions thereto acquired under W. Va. Code § 29-12-5 expressly grant the State greater or lesser immunities or defenses than those found in the case law, the insurance contract should be applied according to its terms and the parties to any suit should have the benefit of the terms of the insurance contract.
Syl. pt. 5, Parkulo v. West Virginia Bd. of Probation & Parole,
199 W. Va. 161, 483 S.E.2d 507 (1996) (emphasis in original).
Considering the precise language employed in the subject contract of insurance, we find that the policy language clearly includes Mr. Glendenning as a named insured. In this regard, the named insured endorsement plainly includes within its ambit
each West Virginia County Board of Education[.] (See
footnote 10) Thereafter, the policy language specifically defines
an insured to include the 'named insured' and those persons
who were[,] are now[,] or shall be . . . employees of the 'named insured.' (See
footnote 11) Insofar as the parties do not dispute that Mr. Glendenning
was an employee of the Board at all times relevant to Mr. Bender's claims against
him, we conclude that Mr. Glendenning was, in fact, a named insured under the
Board's Continental policy.
Next, we must determine whether the terms of the Board's policy provide coverage to Mr. Glendenning for the various acts of sexual misconduct with which he has been charged. The parties do not dispute that the relevant policy language is the insurance contract's definition of and statement of coverage for a wrongful act. In this regard, a
[w]rongful act shall mean any actual or alleged error or misstatement or act or omission or neglect or breach of duty including malfeasance[,] misfeasance, and non-feasance by the insureds in the discharge of their duties with the named insured, individually or collectively, or any other matter claimed against them solely by reason of their being or having been insureds.
(Emphasis added). Given the broad nature of this language, we find that coverage
clearly exists under this definition of a wrongful act. Mr. Bender has alleged
that, while he was a student at an elementary school operated by the Webster
County Board of Education,
his teacher, Mr. Glendenning, who was employed by that same Board, committed various acts of sexual misconduct against him. In short, Mr. Bender has made his claims against his teacher, Mr. Glendenning, solely by reason of [Mr. Glendenning's] being or having been [an] insured, which basis for recovery is plainly within the policy's definition of a wrongful act for which coverage is provided.
Alternatively, coverage for Mr. Glendenning's acts of sexual misconduct is provided by that part of the wrongful act's definition that indemnifies its insureds against claims of malfeasance. Insofar as the policy, itself, does not explain the meaning of the term malfeasance, we must resort to the word's plain, ordinary meaning. Syl. pt. 1, in part, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33. Malfeasance is defined as [a] wrongful or unlawful act[.] Black's Law Dictionary 968 (7th ed. 1999). Accord II Abbott's Law Dictionary 71 (1879) (explaining malfeasance as [t]he commission of some act which is positively unlawful); Ballentine's Law Dictionary 767 (3d ed. 1969) (defining malfeasance as [t]he doing of an act which is positively unlawful or wrong (citation omitted)). Cf. 2 Bouvier's Law Dictionary Unabridged 2067 (8th ed. 1984) (construing malfeasance as [t]he unjust performance of some act which the party had no right, or which he had contracted not, to do). Thus, given that the acts of sexual misconduct levied against Mr. Glendenning were criminal in nature, it goes without saying that they constituted wrongful or unlawful act[s], which satisfy the definition of malfeasance for which coverage is provided by the Board's Continental policy. Accordingly, the Board's insurance contract not only identifies Mr. Glendenning as an insured but also specifically provides coverage for the claims Mr. Bender has asserted against him, both by virtue of Mr. Glendenning's status as an employee of the Board and by reason of the criminal nature of his misconduct against Mr. Bender.
Finally, where, as here, a policy of insurance clearly provides coverage for a claim of loss, liability nevertheless may be avoided where there exists an exclusion to limit the scope or extent of such coverage. With specific regard to claims alleging sexual misconduct, we have held that
[t]here is neither a duty to defend an insured in an action for, nor a duty to pay for, damages allegedly caused by the sexual misconduct of an insured, when the liability insurance policy contains a so-called intentional injury exclusion. In such a case the intent of an insured to cause some injury will be inferred as a matter of law.
Syl., Horace Mann Ins. Co. v. Leeber, 180 W. Va. 375, 376 S.E.2d 581 (1988). However, any type of exclusion, whether it limits coverage for intentional injuries, criminal acts, or other types of misconduct, must be stated with such clarity and specificity so as to place an insured on notice as to its existence in the subject policy of insurance. In other words,
insurer wishing to avoid liability on a policy purporting to give general or
comprehensive coverage must make exclusionary clauses conspicuous, plain, and
clear, placing them in such a fashion as to make obvious their relationship to
other policy terms, and must bring such provisions to the attention of the insured.Syl.
pt. 10, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va.
734, 356 S.E.2d 488 (1987), abrogated on other grounds by Potesta v. United
States Fid. & Guar. Co., 202 W. Va. 308, 504 S.E.2d 135 (1998).
Reviewing the Continental policy at issue in this case, we are able to identify only one provision that attempts to exclude coverage in the case sub judice. Endorsement Number 6 of the policy states,
It is agreed that:
A. The terms of the policy which are in conflict with the statutes of the state of West Virginia wherein certain provisions and coverages included under this policy are not permitted are hereby amended to cover only those provisions and coverages as apply and conform to such statutes.
While this clause purportedly seeks to preserve the immunities granted to political
subdivisions and its employees by the West Virginia Governmental Tort Claims,
we do not find that it is sufficiently conspicuous, plain, and clear so
as to clearly identify the precise limitation of liability it is intended to
impart. Syl. pt. 10, in part, National Mut. Ins. Co. v. McMahon & Sons,
Inc., 177 W. Va. 734, 356 S.E.2d 488. See also Syl. pt. 5, id. (Where
the policy language involved is exclusionary, it will be strictly construed
against the insurer in order that the purpose of providing indemnity not be
defeated.). Because there are no other provisions in the Continental
policy which seek to exclude from coverage an insured's criminal or intentional
acts, we find that coverage existed under the
subject policy for Mr. Bender's claims against Mr. Glendenning. Accordingly,
we reverse the circuit court's ruling finding that the Board's policy did not
provide such coverage to Mr. Glendenning and the court's corresponding award
of awarding summary judgment to Continental. We further remand this matter
for further proceedings consistent with this opinion.