                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Rose Marie Ayers,                                                                 FILED
Plaintiff Below, Petitioner                                                    June 12, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0843 (Raleigh County 11-C-787)                                      OF WEST VIRGINIA


Erie Insurance Company, Barbara Dean,

and Michelle Dean-Meadows,

Defendants Below, Respondents



                              MEMORANDUM DECISION
        Petitioner Rose Marie Ayers, by counsel Michael E. Froble, appeals the orders of the
Circuit Court of Raleigh County, entered on July 23 and August 4, 2014, granting summary
judgment in favor of respondents, dismissing petitioner’s civil action filed after she suffered
injuries in an physical altercation with Respondent Barbara Dean’s adult daughter, Respondent
Michelle Dean-Meadows (“Meadows”).1 Respondent Erie Insurance Company (“Erie”), by
counsel Jennifer Keadle Mason, and Respondent Barbara Dean (“Dean”), by counsel Kevin J.
Robinson, filed responses. Petitioner filed a reply to each response.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s July 23, 2014, order granting
summary judgment in favor of Dean, and its August 4, 2014, order granting summary judgment
in favor of Erie, is appropriate under Rule 21 of the Rules of Appellate Procedure.

                                              Facts

       This appeal arises from the circuit court’s orders granting summary judgment in favor of
Erie and its insured, Dean, dismissing petitioner’s negligence action against Dean and finding no
insurance coverage for petitioner’s claims. At the time of the events at issue, petitioner was
Dean’s neighbor and was injured when she was attacked by Dean’s adult daughter, Meadows.

        On June 21, 2010, Dean confronted Meadows regarding Meadows’ alcohol and drug use.
The confrontation resulted in a physical altercation between the mother and daughter that spilled
into the yard of the residence and eventually onto petitioner’s property. Meadow’s young son,
witnessing the fight, ran to petitioner’s residence. Dean asked petitioner to call 911, and


       1
           Michelle Dean-Meadows is now deceased.
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petitioner complied. At that point, Meadows pursued petitioner into her residence and struck
petitioner in the face at least once, causing injuries to petitioner.

       Meadows was arrested and charged with burglary, disorderly conduct, obstruction,
destruction of property, and battery. With the advice of counsel and as part of a plea agreement,
Meadows pled guilty to battery. The court sentenced Meadows to ninety days in jail to be
followed by six months of probation.

        Petitioner initiated the present litigation in August of 2011 and later filed an amended
complaint in February of 2013. In the amended complaint, petitioner alleged negligence against
Dean and Meadows and sought declaratory judgment against Erie seeking coverage under
Dean’s homeowner’s insurance policy. Erie denied coverage and defended petitioner’s suit on
two grounds: (1) that petitioner’s claim fell within the Intentional Act Exclusion in the policy,
and (2) that Meadows was not a resident of the Dean household. The Intentional Act Exclusion
states as follows:

       We do not cover under Bodily Injury Liability Coverage, Property Damage
       Liability Coverage, Personal Injury Liability Coverage and Medical Payments to
       Others Coverage:

              1.     Bodily injury, property damage or personal injury expected or
       intended by anyone we protect even if:

              a.     The degree, kind or quality of the injury or damage is different
       than what was expected or intended; or

               b.    A different person, entity, real or personal property sustained the
       injury or damage than was expected or intended.

        Both Erie and Dean filed motions for summary judgment. In an August 4, 2014, order
granting Erie’s motion for summary judgment, the circuit court found that, because Meadows
pled guilty to the crime of battery, she committed an intentional act that injured petitioner. The
court concluded that Meadows’ intentional act invoked the Intentional Act Exclusion in the
policy and Erie was entitled to summary judgment. The circuit court did not find it necessary to
resolve the question of Meadow’s residency at the time of the incident. According to petitioner’s
brief, Meadows passed away in October of 2014, subsequent to the issuance of the court’s order.

       With respect to Dean’s motion for summary judgment, the circuit court ruled that Dean
had no affirmative duty to protect petitioner and that it was not foreseeable that Dean’s conduct –
confronting her daughter and asking petitioner to call 911 – would result in injury to petitioner
because Meadows’ criminal acts were an intervening and superseding cause. By order entered
July 23, 2014, the court granted Dean’s motion for summary judgment. Petitioner now appeals
both orders to this Court.




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                                            Discussion

        Rule 56(c) of the West Virginia Rules of Civil Procedure allows a motion for summary
judgment to be granted in favor of respondents if the pleadings, depositions, answers to
interrogatories, and any admissions on file, together with affidavits, if any, show that there is no
genuine issue of material fact and that respondents are entitled to judgment as a matter of law.
See also Angelucci v. Fairmont General Hosp., Inc., 217 W.Va. 364, 618 S.E.2d 373 (2005).
This Court reviews the circuit court’s order granting of summary judgment de novo. Syl. Pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

        On appeal, petitioner raises three assignments of error. First, petitioner argues that the
circuit court erred by ruling that Meadows’ criminal plea to battery invoked the Intentional
Exclusion Act Exemption excluding insurance coverage without further consideration of the
intent on the part of Meadows. Petitioner contends that the Intentional Act Exclusion requires a
determination of Meadows’ subjective intent, i.e., whether Meadows intended the damage that
resulted from her conduct. Petitioner states that the circuit court relied on case law that analyzed
the exclusion and held that the intent to do harm can be inferred from the intentional act;
however, in this case, the inference should be rebuttable. Petitioner contends that Meadows
certainly did not intend to break petitioner’s nose; rather, she was trying to stop her mother and
son from calling the police and pled guilty to battery only to have the more serious charges
dropped.

        Petitioner argues further that there has been no judicial rejection of Meadows’ claim of
self-defense, and likewise, no judicial rejection of her claim of voluntary intoxication that
negated her intent. Petitioner argues that Erie was permitted to escape paying on its policy
because Meadows pled guilty simply to avoid more serious charges, not because she admitted to
intentionally harming petitioner.

        Upon our review of the record and the applicable case law, we must reject petitioner’s
argument. In W.Va. Fire and Cas. v. Stanley, 216 W.Va. 40, 602 S.E.2d 483 (2004), a sexual
abuse case, we considered the same policy language that Erie relied upon in the present case and
held that the intent to cause injury was inferred as a matter of law. Similarly, in Horace Mann
Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988), we held that when there is an
intentional wrongful act, intent to do harm can be inferred.

        Additionally, under facts somewhat more analogous to those in the present case, we held
that where a policyholder is criminally convicted of an intentional act, he is estopped in a
collateral civil action from denying that the act was anything other than intentional. Baber v.
Fortner, 186 W.Va. 413, 412 S.E.2d 814 (1991). In Baber, a policyholder shot and killed his
wife’s boyfriend and was convicted by a jury of voluntary manslaughter despite his self-defense
claim. In the subsequent wrongful death action, the policyholder’s insurance carrier denied
coverage in part due to the intentional acts exclusion. Similar to petitioner’s argument in the
present case with respect to Meadows, the policyholder in Baber argued that his criminal
conviction was not a conclusive determination of his intent to harm the victim. We rejected that
argument in Baber and we reject it in the present case as well. As we held in Baber, Meadows’s
conviction in the present case serves to estop the argument that her actions were anything other

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than intentional. Accordingly, the circuit court did not err in finding that Erie properly denied
coverage under the Intentional Acts Exclusion and that Erie was entitled to summary judgment in
its favor.

        Petitioner’s second and third assignments of error challenge the dismissal of her
negligence claim against Dean, and we address them together. Petitioner argues that the circuit
court erred by finding that (1) Meadows’s guilty plea was an intervening superseding act
relieving Dean from any liability, and (2) Dean was not responsible for the actions of her adult
daughter for her drug and alcohol-induced acts and consequences regardless of Dean’s
participation or contribution to such acts and consequences. The crux of petitioner’s argument is
that Dean initiated an argument with her daughter knowing of her daughter’s violent tendencies
and that it was foreseeable that Dean’s request for petitioner to contact 911 would lead to an
assault on petitioner.

        In order to establish a negligence claim in West Virginia, “[a] plaintiff must prove by a
preponderance of the evidence that the defendant owed a legal duty to the plaintiff and that by
breaching that duty the defendant proximately caused the injuries of the plaintiff.” Neely v. Belk,
Inc., 222 W.Va. 560, 668 S.E.2d 189, 197 (2008). “It is axiomatic that in order to establish a
prima facie case of negligence in West Virginia, it must be shown that the defendant has been
guilty of some act or omission in violation of a duty owed to the plaintiff. No action for
negligence will lie without a duty broken.” Parsley v. General Motors Acceptance Corp., 167
W.Va. 866, 869, 280 S.E.2d 703, 706 (1981) (citations omitted).

        In the present case, we agree with the circuit court’s conclusions that, under the record
developed below, Dean had no duty to protect petitioner from Meadows and that it was not
foreseeable that Dean’s conduct would cause injury to petitioner. The record is devoid of any
evidence of a propensity for Meadows to attack her neighbors. Petitioner seeks to blame Dean
for the actions of her adult daughter, but Dean’s request for petitioner to call 911 is not conduct
giving rise to a negligence action. Dean did not permit or encourage Meadows to assault
petitioner.

        In addition to there being no duty owed to petitioner, petitioner’s injury was not
foreseeable, which is a prerequisite for establishing causation. See Syl. Pt. 6, Haddox v.
Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986) (“Foreseeable injury is a requisite
of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable
negligence is a requisite for recovery in an action for personal injury for negligently inflicted.”)
(citations omitted). We do not believe that Dean’s confrontation with her daughter regarding her
substance abuse would lead Dean to conclude that petitioner -- the next-door neighbor -- would
be injured. Even if we were to assume for the sake of argument that Dean was negligent,
Meadows’ conduct was a superseding and intervening cause. In Yourtree v. Hubbard, 196 W.Va.
683, 690, 474 S.E.2d 613, 620 (1996), we held that “[g]enerally, a willful, malicious, or criminal
act breaks the chain of causation.” Accordingly, we agree with the circuit court that Dean was
also entitled to summary judgment under the facts and circumstances presented in this case.

      For the foregoing reasons, we affirm the circuit court’s orders granting summary
judgment in favor of Erie and Dean.

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                                         Affirmed.

ISSUED: June 12, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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