                 IN THE SUPREME COURT OF WEST VIRGINIA


                                September 2014 Term
                                                                 FILED
                                                             October 15, 2014
                                                               released at 3:00 p.m.
                                                               RORY L. PERRY II, CLERK
                                     No. 13-0692             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




              WEST VIRGINIA MUTUAL INSURANCE COMPANY,

                        Defendant Below, Petitioner


                                          v.

   BETTY J. ADKINS, RAYETTA D. BAUMGARDNER, DIANA L. BOERKE,

    LATHA A. BOLEN, CHARLOTTE L. DEAL, CONSTANCE L. DEVORE,

     TERESSA D. HAGER, LORENNA D. HANKINS, TAMMY H. CLARK,

      PAMELA K. HATFIELD, MARCIE J. HOLTON, LINDA L. JONES,

 PATTY S. LEWIS, TERESA LOVINS, MARTHA J. MARTIN, LOUELLA PERRY,

   SHERRY L. PERRY, JANICE PETIT, KIMBERLY A. ROE, JANICE ROUSH,

       REBECCA SMITH, BEULAH STEPHENS, AND DEBRA L. WISE,

                      Plaintiffs Below, Respondents



                 Appeal from the Circuit Court of Kanawha County

                       Honorable Jennifer F. Bailey, Judge

                           Civil Action No. 10-C-2282


                         REVERSED AND REMANDED



                             Submitted: September 9, 2014

                               Filed: October 15, 2014


D.C. Offutt, Jr., Esq.                              Paul T. Farrell, Jr., Esq.
Matthew Mains, Esq.                                 Greene, Ketchum, Farrell, Bailey,
Offutt Nord Burchett, PLLC                          & Tweel
Huntington, West Virginia                           Huntington, West Virginia
Attorneys for Petitioner                            J. Robert Rogers, Esq.
                                                    Charleston, West Virginia
                                                    Attorneys for Respondents
Corey L. Palumbo, Esq.

James E. Scott, Esq.

Bowles Rice LLP

Charleston, West Virginia

Attorneys for Amicus Curiae

Brickstreet Mutual Insurance

Company


Jill Cranston Rice, Esq.

Tyler Williams, Esq.

Dinsmore & Shohl, LLP

Charleston, West Virginia

Attorneys for Amicus Curiae

West Virginia Insurance

Federation




JUSTICE LOUGHRY delivered the Opinion of the Court.

CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

JUSTICE KETHCUM, deeming himself disqualified, did not participate in the decision

of this case.

JUDGE MARKS, sitting by special assignment.

                              SYLLABUS BY THE COURT




              1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syl.

Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).



              2. “The interpretation of an insurance contract, including the question of

whether the contract is ambiguous, is a legal determination that, like a lower court’s grant

of summary judgement [sic], shall be reviewed de novo on appeal.” Syl. Pt. 2, Riffe v. Home

Finders Assocs., Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999).



              3. “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.” Syllabus, Keffer v. Prudential Ins. Co., 153 W.Va.

813, 172 S.E.2d 714 (1970).
LOUGHRY, Justice:



                 The petitioner, West Virginia Mutual Insurance Company, Inc. (“WVMIC”),

appeals the circuit court’s May 30, 2013, order granting summary judgment in favor of the

respondents1 in this declaratory judgment action. Under the terms of a global settlement

agreement, WVMIC has already tendered $3 million to the respondents under an extended

reporting endorsement insuring the respondents’ surgeon against whom the respondents had

asserted medical malpractice claims.2 The global settlement agreement further provided that

the respondents and WVMIC would seek and abide by a judicial determination as to whether

additional insurance limits are available for the respondents’ vicarious liability claims against

their surgeon’s former employer, United Health Professional, Inc. (“UHP”). UHP is a

medical corporation insured under a claims-made medical malpractice insurance policy

issued by WVMIC for calendar year 2010 (“2010 Policy”).



                 The circuit court granted summary judgment in favor of the respondents

finding there was an additional $6 million in policy limits available for their claims asserted


       1
         The respondents (plaintiffs below) are Betty J. Adkins, Rayetta D. Baumgardner,
Diana L. Boerke, Latha A. Bolen, Charlotte L. Deal, Constance L. Devore, Teressa D. Hager,
Lorenna D. Hankins, Tammy H. Clark, Pamela K. Hatfield, Marcie J. Holton, Linda L. Jones,
Patty S. Lewis, Teresa Lovins, Martha J. Martin, Louella Perry, Sherry L. Perry, Janice Pettit,
Kimberly A. Roe, Janice Roush, Rebecca Smith, Beulah Stephens, and Debra L. Wise.
       2
           The surgeon’s extended reporting endorsement is more fully discussed infra.

                                               1

against UHP under the 2010 Policy, which amount was in addition to the $3 million

previously tendered for their claims asserted against their surgeon under the global settlement

agreement. For the reasons set forth below, we reverse the circuit court’s ruling and find,

instead, that UHP has a total of $3 million in separate policy limits under the 2010 Policy for

the respondents’ claims asserted against it. This $3 million will be in addition to the $3

million that WVMIC has already tendered under the global settlement agreement for the

claims asserted against the surgeon.3



                            Factual and Procedural Background

                 WVMIC is a professional medical liability insurer that insures physicians,

medical practices, and others in West Virginia. UHP,4 a West Virginia corporation engaged

in providing professional medical services, is insured by WVMIC.5 The medical malpractice

claims underlying the current dispute were asserted by the respondents; they arise out of



       3
        To summarize, under the circuit court’s ruling, the respondents would have ultimately
received a total of $9 million in insurance proceeds: the $3 million already paid on behalf of
the surgeon and an additional $6 million to be paid on behalf of UHP under the 2010 Policy.
Conversely, under our ruling herein, the respondents will ultimately receive a total of $6
million: the $3 million already paid on behalf of the surgeon and an additional $3 million to
be paid on behalf of UHP under the 2010 Policy.
       4
           UHP was dismissed from the action below and does not participate in this appeal.
       5
        The policy was first issued by WVMIC in 2005, and that policy has been renewed
annually with various modifications and amendatory endorsements. The policy periods
began on January 1 of each year, and we refer to the other policy periods by the year the
policy first became effective.

                                               2

surgeries performed on them by Mitchell E. Nutt, M.D. The surgeries, which involved the

implantation of a transvaginal mesh as treatment for pelvic organ prolapse, were performed

in years 2006 and 2007, while Dr. Nutt was an employee of UHP. The respondents (“the

Mesh Plaintiffs”) either filed suit or otherwise asserted medical malpractice claims against

Dr. Nutt in 2008, 2009, and 2010. In 2010, they asserted vicarious liability claims against

Dr. Nutt’s employer, UHP.



                In August 2011, the parties reached a global settlement agreement pursuant to

which WVMIC tendered Dr. Nutt’s $3 million in aggregate limits under his extended

reporting endorsement, which is also referred to as “tail coverage.”6 Dr. Nutt’s tail coverage

was acquired upon his departure from employment with UHP on March 14, 2008, at which

time he was terminated from the 2008 claims-made policy.               His termination was

accomplished through an amendatory endorsement to the 2008 policy, which states that “[i]n

consideration of a return premium of $82,085.00, it is agreed and understood that the Policy

Declarations has been amended to cancel Mitchell E. Nutt, M.D. effective 3/14/2008.”

Because the 2008 policy provides insureds with the right to purchase an extended reporting


       6
           West Virginia Code §33-20D-2(a) (2011) provides, as follows:

                “Tail insurance” means insurance which covers a professional
                insured once a claims made malpractice insurance policy is
                cancelled, not renewed or terminated and covers claims made
                after such cancellation or termination for acts occurring during
                the period the prior malpractice insurance was in effect.

                                               3

period if the policy were canceled, upon his cancellation from the 2008 policy, UHP

purchased the extended reporting endorsement for Dr. Nutt, which was issued by WVMIC.

The tail coverage provides Dr. Nutt with separate limits of coverage of $1 million per

covered medical incident with a $3 million annual aggregate.



                Having tendered the annual aggregate limit of Dr. Nutt’s tail coverage under

the global settlement, the parties agreed to resolve their remaining dispute—whether

additional coverage is available under the 2010 Policy for the claims asserted against

UHP—through the institution of a declaratory judgment action.7 In accordance with the

terms of the settlement agreement, WVMIC “agree[d] to pay on behalf of [UHP] the total

amount of insurance coverage the Court decides [UHP] has over and above the Three Million

Dollars ($3,000,000.00) paid on behalf of Mitchell E. Nutt, M.D. . . .”



                The Mesh Plaintiffs instituted the underlying declaratory judgment action on

December 20, 2010. Following discovery, they filed a motion for summary judgment

seeking a declaration that there is additional insurance coverage in the amount of $6 million

for their claims against UHP. Opposing the motion and asserting a cross-motion for

summary judgment, WVMIC sought a ruling that there are no separate insurance limits

available to UHP under the 2010 Policy. In the alternative, WVMIC argued that if the circuit


       7
           See W.Va. Code §§ 55-13-1 to -16 (2008) [Uniform Declaratory Judgments Act].

                                              4

court were to find that separate insurance limits were available to UHP for the subject claims

under the 2010 Policy, then there was a mutual mistake that warranted an equitable

reformation of the 2010 Policy. In this regard, WVMIC argued that although the Policy

Declarations reflect that UHP has separate limits of coverage with a retroactive date of

January 1, 2002,8 UHP actually intended the retroactive date to be January 1, 2008, for its

separate limits and the retroactive date of January 1, 2002, to be for its shared limits, which

would apply to the Mesh Plaintiffs’ claims. Because WVMIC paid the $3 million aggregate

limit under Dr. Nutt’s tail coverage, WVMIC maintained that UHP shared in that limit and

there was no further insurance coverage available under the 2010 Policy for these claims.



              On May 30, 2013, the circuit court entered its Order Granting Plaintiffs’

Motion for Summary Judgment. Relying on the parties’ stipulation that the 2010 Policy

provisions are clear and unambiguous and upon prior precedent of this Court, the circuit

court concluded the policy terms were not subject to judicial construction, interpretation, or

reformation, and that full effect would be given to the plain meaning intended.




       8
        West Virginia Code § 29-12B-3(e) (2013) defines “retroactive date” as “the date
designated in the policy declarations, before which coverage is not applicable.” The 2010
Policy defines “retroactive date” as “that date specified as such in the policy declarations.”
The Policy Declarations reflect that the retroactive date for UHP is “01/01/2002.”

                                              5

              In applying the plain meaning of the 2010 Policy terms, the circuit court

determined that the applicable retroactive date for coverage purposes for UHP was set forth

in the Policy Declarations as January 1, 2002.9 The circuit court further found that the Mesh

Plaintffs’ claims against UHP, which resulted from medical incidents that occurred after the

retroactive date of January 1, 2002, and which were first reported during the 2010 policy

period, were covered under the 2010 Policy. Citing a change in the language of the Limit of

Insurance section of the 2010 Policy, as more fully discussed herein, the circuit court

concluded that UHP’s insurance limit is calculated based on the policy year in which the

medical incidents occurred. The circuit court reasoned that because the Mesh Plaintiffs’

medical incidents occurred during two separate policy periods (2006 and 2007), there was

a total of $6 million in coverage available for their claims asserted against UHP.



              The circuit court also addressed WVMIC’s argument that UHP did not intend

to have separate limits of coverage for medical incidents that occurred prior to 2008. In this

regard, the circuit court noted that UHP first requested the separate limits of coverage in

January 2008. To support its finding, the circuit court cited an amendatory endorsement in

the 2008 policy, which provides, in part, as follows: “In consideration of an additional

premium of $42,847.00, it is agreed and understood that the Policy Declarations has been


       9
        This retroactive date was specifically requested by UHP in its 2010 renewal
application, as more fulling discussed, infra. The application was attached as an exhibit to
WVMIC’s cross-motion for summary judgment.

                                              6

amended to change the corporate limits from Shared to Separate, effective 01/01/2008, at the

request of the Insured.” As further support for its conclusion, the circuit court observed that

this endorsement did not amend the retroactive date of January 1, 2002, as set forth in the

Policy Declarations for the 2008 policy,10 and that each successive policy period expressly

referenced UHP as having separate limits of insurance of $1 million per medical incident

with a $3 million annual aggregate and a retroactive date of January 1, 2002.



              In addressing WVMIC’s reformation argument, the circuit court found that

“[i]t is only when the document has been found to be ambiguous that the determination of

intent through extrinsic evidence become[s] a question of fact.” Blake v. State Farm Mut.

Ins. Co., 224 W.Va. 317, 323, 685 S.E.2d 895, 901 (2009) (quoting Payne v. Weston, 195

W.Va. 502, 507, 466 S.E.2d 161, 166 (1995)). Based on the parties’ stipulation that the

provisions of the 2010 Policy are clear and unambiguous, the lower court concluded that

WVMIC could not seek reformation of the policy through the introduction of extrinsic

evidence of intent. Disagreeing with the rulings of the circuit court in its summary judgment

order, WVMIC appeals.




       10
         This endorsement sets forth an “EFFECTIVE DATE” of “01/01/08” and a “DATE
ENDORSEMENT ISSUED” of “01/30/2008[.]” There is no “retroactive date” on the face
of this endorsement.

                                              7

                                   II. Standard of Review

              Our review of the circuit court’s summary judgment ruling in this declaratory

judgment action is plenary. Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755

(1994) (“A circuit court’s entry of summary judgment is reviewed de novo.”). Similarly,

where “[t]he interpretation of an insurance contract, including the question of whether the

contract is ambiguous, is a legal determination that, like a lower court’s grant of summary

judgement [sic], shall be reviewed de novo on appeal.” Syl. Pt. 2, Riffe v. Home Finders

Assocs., Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999). Against this standard, the parties’

arguments will be considered.



                                       III. Discussion

                                A. Nature of the 2010 Policy

              The 2010 Policy is a claims-made medical malpractice policy, which has been

legislatively defined as “a policy which covers claims which are reported during the policy

period, meet the provisions specified by the policy, and are for an incident which occurred

during the policy period, or occurred prior to the policy period, as is specified by the policy.”

W.Va. Code § 33-20D-2(b) (2011). Malpractice coverage can also be provided through an

“occurrence” policy. In distinguishing these two types of polices, we have recognized that

an “occurrence” policy “protects [] [the] policyholder from liability for any act done while

the policy is in effect, whereas a ‘claims-made’ policy protects the holder only against claims


                                               8

made during the life of the policy.” Auber v. Jellen, 196 W.Va. 168, 174, 469 S.E.2d 104,

110 (1996).    Bearing these distinctions in mind, we turn to the claims-made policy at

issue—the 2010 Policy.



                                  B. 2010 Policy Limits

              The issue before us is whether separate policy insurance limits are available

under the 2010 Policy for the Mesh Plaintiffs’ claims asserted against UHP. Specifically, the

coverage at issue would be in addition to $3 million in proceeds that have previously been

paid under Dr. Nutt’s tail coverage for the Mesh Plaintiffs’ claims asserted against him, as

part of the parties’ global settlement. As we undertake this task, we are mindful, as was the

circuit court, of our long-standing precedent that “[w]here 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.” Syllabus, Keffer

v. Prudential Ins. Co. of Am., 153 W.Va. 813, 172 S.E.2d 714 (1970).11




       11
          See also, Syl. Pt. 2, Shamblin v. Nationwide Mut. Ins. Co., 175 W.Va. 337, 332
S.E.2d 639 (1985) (“Where provisions in an insurance policy are plain and unambiguous .
. . the provisions will be applied and not construed.”); Syl. Pt. 1, Soliva v. Shand, Morahan
& Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986), overruled, in part, on other grounds by
Nat’l Mut. Ins. Co. v. McMahon & Sons, 177 W.Va. 734, 356 S.E.2d 488 (1987) (“Language
in an insurance policy should be given its plain, ordinary meaning.”).

                                              9

              WVMIC asks this Court to reverse the circuit court’s ruling that coverage

existed under multiple policy periods. In reaching its conclusion, the circuit court relied upon

the Limit of Insurance section of the 2005, 2006, and 2007 policies, which provides, in part,

as follows:

              The Limit of Insurance specified in the Policy Declarations for
              each insured as the “annual aggregate” is the total limit of our
              liability for damages for that insured resulting from any and all
              medical incident(s) which are first reported during the policy
              period. (Underscoring added).

The circuit court further observed that the underscored language was removed from the Limit

of Insurance section of the 2008, 2009, and 2010 policies, which provide:

              The limit of insurance specified in the policy declarations for
              each insured as the “annual aggregate” is the total limit of the
              Company’s liability for damages for that insured resulting
              from all covered medical incident(s) during the policy period.
              (Underscoring added).

The circuit court concluded that the language “covered medical incident(s) during the policy

period” requires application of the aggregate limits of insurance for the “policy period” when

the “incidents” occurred–2006 and 2007–giving UHP a total of $6 million in policy limits

for the Mesh Plaintiffs’ claims. We disagree with this conclusion.



              The circuit court has erroneously attributed an intent to this change in policy

language that is inconsistent with what constitutes a “covered” medical incident under the

policy. Contrary to the circuit court’s reasoning, the words “policy period” are not a


                                              10

reference to the prior 2006 and 2007 claims-made policies, which had expired by their own

terms;12 rather, “policy period” is expressly defined in the 2010 Policy as “the period

specified as such in the policy declarations.” The Policy Declarations clearly state that the

“Policy Period” is “from 01-01-2010 12:01 AM Standard Time to 01-01-2011 12:01 AM

Standard Time.”        Further, the General Conditions section of the 2010 Policy states in

subsection E. that WVMIC is “providing insurance under this policy . . . beginning at 12:01

A.M. and ending at 12:01 A.M. during the policy period stated in the policy

declarations[][.]” In short, there is nothing in the 2010 Policy that would support the circuit

court’s conclusion that “policy period” refers to anything other than the 2010 policy period.



                 Under West Virginia Code § 33-6-30(a) (2011), “[e]very insurance contract

shall be construed according to the entirety of its terms and conditions as set forth in the

policy and as amplified, extended or modified by any rider, endorsement or application

attached to and made a part of the policy[.]” Here, the declarations page of the 2010 Policy

states, as follows:

                 THE MEDICAL PROFESSIONAL LIABILITY COVERAGE
                 CONTAINED IN THIS POLICY IS “CLAIMS MADE”
                 COVERAGE. This policy applies only to claim(s) that arise out
                 of a medical incident which occurs on or after the retroactive
                 date stated in the policy declarations and schedule of insureds,
                 and that are first made against an insured and reported to the
                 Company [WVMIC] by the insured during the policy period,


       12
            The claims-made policies expired at 12:01 a.m. on January 1 of each calendar year.

                                               11

              unless coverage is excluded by a provision in the coverage form.
              (Underscoring added.).

The Insuring Agreement in the 2010 Policy similarly provides, as follows:

              The Company [WVMIC] will pay those sums that the insured
              [UHP] becomes legally obligated to pay as damages because of
              a claim that is a result of a medical incident which occurs on or
              after the retroactive date applicable to such insured and which
              is first reported by the insured during the policy period. . . . the
              maximum amount the Company will pay to settle any claim, or
              suit, or verdict, or judgment, is limited as stated in Section IV;
              Limit of Insurance and in the policy declarations[.]
              (Underscoring added.).

Likewise, the General Conditions section of the 2010 Policy provides,

              [t]his is a claims-made and reported policy. This policy applies
              only to claim(s) that arise of out of a medical incident which
              occurs on or after the retroactive date stated in the policy
              declarations and schedule of insureds that are first made
              against an insured and reported to the Company by the insured
              during the policy period. (Underscoring added.).



              Considering the 2010 Policy, as a whole, it is abundantly clear that in order to

constitute a “covered medical incident(s) during the policy period,” as provided for in the

Limit of Insurance section of the policy, two things must be satisfied. First, the “medical

incident”13 must occur on or after the retroactive date of January 1, 2002. Second, the claim

must be reported during the “Policy Period.” The Mesh Plaintiffs’ claims clearly meet both



       13
        No one challenges that the Mesh Plaintiffs’ claims arise out of medical incidents as
defined in the 2010 Policy.

                                              12

of these requirements: the surgeries giving rise to their medical malpractice claims were

performed by Dr. Nutt in 2006 and 2007, well after the January 1, 2002, retroactive date, and

their claims against UHP were first reported during the 2010 policy period. Because these

claims were reported during the 2010 policy period, only the 2010 Policy applies. There is

simply no language in the 2010 Policy that would allow the circuit court to resurrect prior

policy periods, which had long-ago expired by their very terms.14



                    Having determined that the Mesh Plaintiffs’ claims against UHP are “covered

medical incidents” under the terms of the 2010 Policy, we look to the UHP’s policy limits

as set forth in the Policy Declarations for the 2010 Policy. In doing so, we observe that UHP

has separate limits of insurance with a $3 million annual aggregate for medical incidents

occurring after a retroactive date of January 1, 2002. The 2010 Policy expressly provides,

as follows:

                                             SCHEDULE OF INSUREDS

Insured                                             Limit of Insurance                               Retroactive Date
United Health Professionals, Inc.   $1,000,000 Each Medical Incident / $3,000,000 Annual Aggregate      01/01/2002




Again, because the Mesh Plaintiffs’ are unquestioningly “covered medical claims,” as they

clearly fall after the January 1, 2002, retroactive date and were asserted during the 2010




          14
               See supra note 12.

                                                            13

policy period, the 2010 Policy reflects that UHP has its own $3 million annual aggregate

limit for these claims.



                              B. Shared or Separate Limits

              WVMIC argues that notwithstanding the 2010 Policy’s plain and unambiguous

terms, UHP only intended to have separate policy limits for medical incidents occurring after

January 1, 2008, and shared limits for medical incidents occurring before January 1, 2008,

but after January 1, 2002. Because WVMIC has tendered the limits of Dr. Nutt’s tail

coverage for these medical incidents that occurred during 2006 and 2007, WVMIC argues

that UHP shares in Dr. Nutt’s limits and further coverage is not available. Again, we

disagree.



              We first observe that UHP obtained the limits of insurance that it expressly

requested through the 2010 Policy. In its application for the 2010 Policy, UHP requested

“separate” policy limits in the amount of “$1,000,000 / $3,000,000” with a “retroactive date”

of “01/01/02.” The 2010 Policy expressly states that WVMIC relied upon the statements

made in the application in issuing the policy, which provides UHP with the limits it expressly

requested. While WVMIC points to what occurred in 2008 to support its argument that it

intended to be a sharing insured for medical incidents occurring prior to January 1, 2008, as

discussed previously, the amendatory endorsement to the 2008 policy that first provided UHP


                                             14

with separate policy limits did not alter the policy’s retroactive date, which is used to

determine whether a medical incident would be covered under the policy. Moreover, the fact

remains that the policy before us is the 2010 Policy, whereas the 2008 policy expired by its

own terms at the end of 2008.15



                 Second, there is nothing in Dr. Nutt’s tail coverage to indicate that UHP would

share in his separate limits of coverage. As the Legislature has explained, “‘[t]ail coverage’

or ‘extended reporting coverage’ is coverage that protects the health care provider [Dr. Nutt]

against all claims arising from professional services performed while the claims-made policy

was in effect and included in the policy but reported after the termination of the policy.”

W.Va. Code § 29-12B-3(f) (2013).          See also, 7 Couch on Ins. § 102:28. (“[E]xtended

reporting period or ‘tail’ coverage . . . is purchased from the first insurer and covers future

claims made for incidents occurring during the time of the claims-made coverage.”). Dr.

Nutt’s extended reporting endorsement provides that he will be covered for “any medical

incident which occurred on or after the retroactive date” and during his employment with

UHP, but which is first reported after his March 14, 2008, “termination date.” The extended

reporting endorsement further reflects that Dr. Nutt is the sole insured thereunder, providing

as follows:




       15
            Technically, it expired at 12:01 a.m. on January 1, 2009.

                                                15

                         INSURED HEALTHCARE PROVIDER

                                 Limits of Liability


Name                         Retroactive Date       Each Medical         Aggregate
                                                    Incident
Mitchell E. Nutt, MD         10/28/2002             $1,000,000           $3,000,000



              Indisputably, no other insured is listed on this extended reporting endorsement

as sharing in Dr. Nutt’s limits, or otherwise. Conversely, the policies issued for years 2007

forward each specifically set forth in the policy declarations the express identity of which

insureds have separate limits of coverage and which insureds share in those limits. Critically,

there is no such sharing designation in Dr. Nutt’s tail coverage and no sharing designation

for UHP in the 2010 Policy.16



              Other provisions of the 2010 Policy further support the conclusion that UHP

does not share in Dr. Nutt’s aggregate limits under his tail coverage. Section IV., C. states,

as follows:

              Except as may otherwise be provided by endorsement to this
              policy, each insured for which no other separate limit of
              insurance is stated in the policy declarations, shall share the


       16
         Further, WVMIC has not argued that the premium charged for Dr. Nutt’s tail
coverage was consistent with providing both him and UHP with coverage. See Malempati
v. Independent Inpatient Physicians, Inc., No. 12AP-565, 2013WL4245852 *9 (Ohio App.
10 Dist.) (Aug. 15, 2013) (“[Physician] testified that her insurance agent advised her that
cheaper [tail] coverage might have been available if appellee purchased coverage only for
herself and not also [for her former employer].”).

                                              16

              limit of insurance stated in the policy declarations; except that
              no insured may share in more than one limit of insurance under
              this policy. (Underscoring added.).

Accordingly, inasmuch as both UHP and Dr. Nutt have separate limits of insurance, under

the terms of the 2010 Policy, we find that UHP does not share in Dr. Nutt’s separate limits

under his tail coverage.



                                   C. Policy reformation

              WVMIC argues that the 2010 Policy should be reformed because UHP

intended to have shared policy limits for medical incidents occurring prior to January 1,

2008, whereas the 2010 policy, as written, only provides UHP with separate policy limits for

those medical incidents. In support of its argument, WVMIC directs this Court to the

amendatory endorsement to the 2008 policy, which expressly states that UHP’s corporate

limits were changed from shared to separate “effective 01/01/2008.” (emphasis added.).



              WVMIC argues that the “effective” date on UHP’s separate policy limits

endorsement was actually the “retroactive” date, i.e., that the separate limits were applicable

only to medical incidents which occurred after that date. There is nothing in the 2008 policy,

however, including the amendatory endorsement, to indicate any change to the policy’s

“retroactive” date. This is not unlike when WVMIC first issued this claims-made policy in

2005. The policy’s coverage went into effect on January 1, 2005, but its retroactive date was


                                              17

January 1, 2002, thereby sweeping into the policy any medical incidents that might have

occurred from January 1, 2002, forward. WVMIC did precisely the same thing in 2008,

when it changed UHP’s limits from shared to separate by an amendatory endorsement

effective January 1, 2008, with a retroactive date of January 1, 2002, thereby bringing within

those coverage limits any medical incident occurring after January 1, 2002.



                    Notwithstanding the fact that there was no change in the policy’s “retroactive”

date, either in 2008 or, for that matter, in its application for the 2010 Policy,17 WVMIC wants

this Court to rely upon the “effective” date on the amendatory endorsement to the 2008

policy as a “retroactive date,” and then to use that as a springboard to rewrite the 2010 Policy

to list UHP as a sharing insured for medical incidents that occurred between the policy’s

January 1, 2002, retroactive date and December 31, 2007. First, regardless of the coverage

that may or may not have been negotiated for purposes of the 2008 policy, that policy has

expired and is not applicable—the only policy under our consideration is the 2010 Policy.

Second, it is clear that “retroactive date” is a term of art, which has been legislatively defined

as “the date designated in the policy declarations, before which coverage is not applicable.”18

Third, as demonstrated in the quoted policy language above, the 2010 Policy is replete with


          17
        As indicated previously, the 2010 Policy states that WVMIC relied upon the
statements made in the application in issuing the policy.
          18
               See W.Va. Code § 29-12B-3(e) (defining term “retroactive date”); see also supra
note 8.

                                                   18

references to the policy’s “retroactive” date; the policy defines “retroactive date as that date

specified in the policy declarations;” and the schedule of insureds in the policy declarations

lists the “retroactive date” for each named insured. Similar language is found in the 2008

policy. Consequently, we cannot conclude the terms “effective” and “retroactive” may be

used interchangeably in this instance.19




       19
         We note that the record contains portions of a deposition transcript of a WVMIC
senior claims consultant who explained that the “retroactive” date applies to the date of the
medical incident under a claims-made policy, whereas the “effective” date on a policy
endorsement means that a claim has to be made after that “effective” date in order for the
endorsement to apply:

              Q. [A]nd if there would be . . . endorsements issued during the
              policy period, those would become part of the policy?
              A. Right.
              Q. And those endorsements, when they’re issued, they have
              effective dates as to when they take effect?
              A. Right.
              Q. And then the claim would have to have been made after the
              effective date of that endorsement for that endorsement to apply,
              correct?
              A. Yes.

              . . . .

              Q. [T]he retroactive date applies to the date the medical incident
              occurs, right? That’s the date you use - - the medical incident
              had to have occurred after the retroactive date?
              A. Yes.

While we do not rely on this deposition testimony in reaching our decision, we do observe
that it is consistent with the legislative definition of “retroactive,” as distinguished from the
term “effective.”

                                               19

               WVMIC essentially asks this Court to accept that it made what would be a

glaring error in policy limits for a claims-made policy, and that it made that error not once,

not twice, not three times, but four times. The policies for years 2008 through 2011 each

provide UHP with separate limits of coverage with no restriction that such separate limits

were applicable only to medical incidents occurring after January 1, 2008. Even the policy

declarations for the 2011 policy, which issued after this declaratory judgment action was

instituted and after the parties had already debated this coverage issue in the context of their

settlement negotiations, reflects that UHP has separate limits with a retroactive date of

January 1, 2002. If, in fact, these policies did not accurately reflect either the coverage UHP

intended to acquire or the coverage WVMIC intended to provide, then logic compels the

conclusion that WVMIC would have issued a policy in 2011 that accomplished the desired

result.



               As demonstrated above, WVMIC relied upon UHP’s application for the 2010

Policy in which it expressly requested separate limits of coverage with a retroactive date of

January 1, 2002—that is precisely the policy that WVMIC issued to UHP in 2010.20 While

WVMIC seeks a reformation that would effectively result in no further insurance coverage



          20
        Similarly, in Ohio Farmers Insurance Company v. Video Bank, Inc., 200 W.Va. 39,
44, 488 S.E.2d 39, 44 (1997), a case relied upon by WVMIC, we reversed a circuit court’s
order that reformed an insurance policy stating that “the written policy actually issued by
Ohio Farmers Insurance Company conformed to Ms. McCourt’s request[.]”

                                              20

being available under the 2010 Policy for the Mesh Plaintiffs’ claims,21 during oral argument

before this Court, counsel indicated that UHP wanted to change to separate limits beginning

in 2008 in anticipation that these claims would be made against Dr. Nutt. Such argument

certainly signals that UHP’s objective was to obtain more, rather than less, coverage for itself

through separate policy limits.



              It bears repeating that “[i]t is only when the document has been found to be

ambiguous that the determination of intent through extrinsic evidence become [sic] a

question of fact[,]” Payne v. Weston,, 195 W.Va. 502, 507, 466 S.E.2d 161, 166 (1995), and

that “[w]e will not rewrite the terms of the policy; instead, we enforce it as written.” Id., at

507, 466 S.E.2d at 166. Under the facts and circumstances presented in this case, and

considering that there were sophisticated parties22 on both sides of the policy in question, we

cannot find that a policy reformation is warranted.




       21
        Were this Court to begin rewriting insurance policies with the goal of excluding
previously asserted claims that would otherwise be covered under a policy’s plain and
unambiguous terms, we would be sanctioning a course of particular peril. While we
recognize that there may be a case where policy reformation is appropriate, such a result
would be especially imprudent in a case, such as this, where the insured has already been
released and can support its insurer’s quest for reformation without personal risk.
       22
           The Mesh Plaintiffs advise this Court that WVMIC’s 2012 Annual Report reflects
that it is the largest medical liability insurer in West Virginia, owning fifty-five percent of
the medical malpractice market in this state. As such, WVMIC clearly understands both the
manner in which claims-made polices operate and how policy language is to be written.

                                              21

                 Based upon our discussion above, and consistent with our prior law, we apply

the plain and unambiguous terms of the 2010 Policy to hold that UHP is a named insured

with a separate annual aggregate limit of $3 million for the claims asserted by the Mesh

Plaintiffs. Syllabus, Keffer 153 W.Va. 813, 172 S.E.2d 714; see also, Syl. Pt. 2, Shamblin,

175 W.Va. 337, 332 S.E.2d 639. This $3 million is in addition to the $3 million previously

tendered to the respondents under Dr. Nutt’s tail coverage. To be clear, and contrary to the

circuit court’s ruling, there are no insurance limits available under prior policy periods for

the subject claims. The only additional insurance limit to be paid by WVMIC is UHP’s

separate annual aggregate of $3 million under the 2010 Policy.23



                                        IV. Conclusion

                 Based upon the foregoing, the decision of the Circuit Court of Kanawha

County, West Virginia, is reversed and this case is remanded for entry of an order consistent

with this opinion.

                                                                    Reversed and remanded.




       23
            Any remaining issues are disposed of by our ruling herein.

                                               22
