No. 13-0692 -        West Virginia Mutual Insurance Company, Inc. 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 Pettit, Kimberly A. Roe, Janice Roush, Rebecca
                     Smith, Beulah Stephens, and Debra L. Wise

                                                                             FILED
                                                                          October 23, 2014

                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA


Davis, Chief Justice, dissenting:

              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. Each of these twenty-three

women suffered catastrophic injuries caused by West Virginia Mutual Insurance Company,

Inc.’s (“West Virginia Mutual”), insureds.         Each of these women’s lives has been

dramatically and permanently changed by the horrific nature and extraordinary extent of their

injuries. And each of these women signed a global settlement agreement believing that she

would receive her proportionate share of the full policy limits of insurance coverage that had

been purchased specifically to compensate patients for the medical negligence of the

individual doctor and the medical practice responsible for their grievous harm. Despite the

fact that the respondents’ injuries were inflicted during two separate policy periods for which


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insurance coverage had been purchased, the majority of this Court, with seeming disregard

for the traumatic nature of the respondents’ injuries, has permitted recovery for only one of

these coverage periods, thereby allowing the respondents to receive only one-half of the

insurance policy proceeds that should be available to them. From this decision, I resolutely

dissent.



              For many years, United Health Professionals, Inc. (“UHP”), carried insurance

coverage with shared limits under a claims-made policy. In 2008, UHP changed its coverage

(1) to provide separate coverage limits for itself distinct from the coverage limits applicable

to its individual physicians;1 (2) to render such coverage retroactive to 2002; and (3) to

markedly alter the wording of the operative policy language providing coverage for the

respondents’ claims in the case sub judice. In light of these significant coverage changes,

it is clear that the plaintiffs were entitled to the policy limits that they were awarded by the

Circuit Court of Kanawha County.



              As the majority of the Court observed in its opinion, the operative language of

UHP’s insurance policy changed significantly in 2008. Prior to that time, the limit of

insurance portion of the policy stated that “[t]he Limit of Insurance specified in the Policy



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              The policy provision retaining shared coverage for paramedical employees
does not apply to the facts of the case sub judice.

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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.” (Emphasis in original). When the terms of UHP’s

insurance policy were altered in 2008, the pertinent limit of insurance portion of the policy

also was changed to provide that “[t]he 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.” (Bolded emphasis in original; italicized emphasis added). This marked

departure from the policy’s prior language indicates an intention to change the limits of the

coverage in the 2008 insurance policy, as well as the coverage for all subsequent years in

which this language was included in UHP’s policy of insurance. In short, while the prior

version of the subject policy language required medical incidents to have been reported

during the policy period in order to be covered thereunder, the 2010 version of the policy

provides coverage for “all covered medical incident(s) during the policy period.” (Emphasis

added). However, it is unclear from the express wording of this language whether the

referenced covered medical incidents are required to be reported during the policy period to

receive coverage. That requirement, though, is not clearly set forth in the amended language

as it was in the prior version. Alternatively, the subject language could require that the

medical incidents must have been sustained during the policy period to be covered.

Although, this, too, is an unlikely interpretation of the subject language insofar as none of


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the injuries suffered by the respondents occurred during the 2010 policy period as interpreted

by the majority’s opinion. Finally, the controverted language could be construed to provide

coverage for medical incidents sustained during a period in which coverage was provided by

the subject policy and its retroactivity provision. This was the construction the circuit court

afforded the policy language when it awarded the respondents the policy coverage limits for

both the 2006 and the 2007 policy periods commensurate with when the insureds’ medical

negligence caused the respondents’ injuries.



              Although the parties stipulated, during the circuit court proceedings, that the

terms of the subject policy of insurance are clear and unambiguous, the determination of

whether an insurance policy is ambiguous is a question of law, not of fact, that must be

decided by the presiding tribunal. “The interpretation of an insurance contract, including the

question of whether the contract is ambiguous, is a legal determination that . . . shall be

reviewed de novo on appeal.” Syl. pt. 2, in part, Riffe v. Home Finders Assocs., Inc., 205

W. Va. 216, 517 S.E.2d 313 (1999). See also Syl. pt. 1, in part, Berkeley Cnty. Pub. Serv.

Dist. v. Vitro Corp. of America, 152 W. Va. 252, 162 S.E.2d 189 (1968) (“The question as

to whether a contract is ambiguous is a question of law to be determined by the court.”). This

Court has defined “ambiguous” to mean that “[w]henever the language of an insurance policy

provision is reasonably susceptible of two different meanings or is of such doubtful meaning

that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.” Syl.


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pt. 1, Prete v. Merchants Prop. Ins. Co. of Indiana, 159 W. Va. 508, 223 S.E.2d 441 (1976).

Accord Syl. pt. 1, Shamblin v. Nationwide Mut. Ins. Co., 175 W. Va. 337, 332 S.E.2d 639

(1985). Given that the subject policy provision is capable of multiple, discordant meanings,

the majority should have determined that it was ambiguous and construed it accordingly.



              In this vein, the Court previously has held that “[i]t 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.” Syl. pt. 4, National Mut. Ins. Co. v.

McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds

by Potesta v. United States Fid. & Guar. Co., 202 W. Va. 308, 504 S.E.2d 135 (1998). In

other words, “[w]here a provision of an insurance policy is ambiguous, it is construed against

the drafter, especially when dealing with exceptions and words of limitation.” Payne v.

Weston, 195 W. Va. 502, 507, 466 S.E.2d 161, 166 (1995) (citing Syl. pt. 1, West Virginia

Ins. Co. v. Lambert, 193 W. Va. 681, 458 S.E.2d 774 (1995)).                  Moreover, while

“‘[a]mbiguous . . . provisions of an insurance policy should be construed strictly against the

insurer and liberally in favor of the insured, . . . such construction should not be unreasonably

applied to contravene the object and plain intent of the parties.’ Syllabus Point 2[, in part],

Marson Coal Co.[, Inc.] v. Insurance Co. of State of Pennsylvania, 158 W. Va. 146, 210

S.E.2d 747 (1974).” Syl. pt. 6, Hamric v. Doe, 201 W. Va. 615, 499 S.E.2d 619 (1997).




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               In this case, the majority should have appreciated the inherent ambiguity in the

language resulting from the 2008 policy amendments and included within the subject 2010

policy. Given that ambiguous policy provisions are to be construed against the insurance

company drafting such language, the majority correspondingly should have adopted the

construction most favorable to the insured, which is the interpretation adopted by the circuit

court to find coverage is available to compensate the respondents under both the 2006 and

2007 policies insofar as their injuries were sustained in 2006 and 2007. To interpret the

subject policy language in the manner advocated by the majority does nothing to clarify this

controverted language and fails to hold West Virginia Mutual accountable for the ambiguity

it created in UHP’s insurance policy.



               Relieving the insurer in this case of its duty to provide coverage for the injuries

of the respondents, particularly when such a result is compelled by the ambiguous policy

provision that it drafted and incorporated into a policy of insurance that it sold, produces a

“result [that] is not fair, and it is not the right thing to do.” Manville Pers. Injury Settlement

Trust v. Blankenship, 231 W. Va. 637, 650, 749 S.E.2d 329, 642 (2013) (Davis, J.,

dissenting). The twenty-three women seeking a recovery in this case are not acting out of

greed or avarice, and they did not cause the injuries for which they seek to be compensated.

These ladies are simply trying to gain some measure of recompense for the tragically

disfiguring and humiliating injuries they sustained when they sought treatment for a serious


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medical condition and became the unfortunate victims of severe medical negligence.

Accordingly, 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 deserve to receive the full

amount of insurance policy limits that provide coverage for their injuries. UHP purchased

insurance specifically to compensate victims of medical negligence caused by its physicians,

and West Virginia Mutual wrote UHP’s policy for this express purpose. Because the

respondents’ injuries span two different policy periods, i.e., 2006 and 2007, and because the

policy’s revisions provide retroactive coverage therefor, the respondents should have been

permitted to recover the full amount of available coverage limits. From the majority’s

contrary conclusion, I respectfully dissent.




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