        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2013 Term             FILED
                                                          February 6, 2013
                                  _____________
                                                            released at 3:00 p.m.
                                                            RORY L. PERRY II, CLERK
                                   No. 11-1186            SUPREME COURT OF APPEALS
                                                              OF WEST VIRGINIA
                                  _____________


                AMERICAN STATES INSURANCE COMPANY,

                       Defendant Below, Petitioner



                                        V.


                BARBARA SURBAUGH, ADMINISTRATOR

                OF THE ESTATE OF GERALD KIRCHNER,

                        Plaintiff Below, Respondent

  ____________________________________________________________________

               Appeal from the Circuit Court of Greenbrier County

                      Honorable J.C. Pomponio, Jr., Judge

                            Civil Action No. 97-C-241


                      REVERSED AND REMANDED

  ____________________________________________________________________

                           Submitted: January 15, 2013

                             Filed: February 6, 2013


Avrum Levicoff                                Barry L. Bruce
Julie A. Brennan                              Barry L. Bruce and Associates, L.C.
Levicoff, Silko & Deemer, P.C.                Lewisburg, West Virginia
Pittsburgh, Pennsylvania                      Attorney for Respondent
Attorneys for Petitioner

JUSTICE DAVIS delivered the Opinion of the Court.

CHIEF JUSTICE BENJAMIN and JUSTICE KETCHUM concur and reserve the right
to file concurring opinions.
                              SYLLABUS BY THE COURT




              1.      “Determination of the proper coverage of an insurance contract when

the facts are not in dispute is a question of law.” Syllabus point 1, Tennant v. Smallwood,

211 W. Va. 703, 568 S.E.2d 10 (2002).



              2.      “An 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.” Syllabus point 10,

National Mutual Insurance Co. v. McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488

(1987), overruled on other grounds by, Potesta v. United States Fidelity & Guaranty Co.,

202 W. Va. 308, 504 S.E.2d 135 (1998).



              3.      As a general rule, the issue of whether an insurer has brought a policy

exclusion to the attention of an insured is to be resolved by the trial court.



              4.      “A party to a contract has a duty to read the instrument.” Syllabus point

5, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), overruled




                                               i
on other grounds by National Mutual Insurance Co. v. McMahon & Sons, Inc., 177 W. Va.


734, 356 S.E.2d 488 (1987).





                                          ii

Davis, Justice:

              American States Insurance Company (“American States”), defendant below,

appeals from an adverse jury verdict in an insurance coverage declaratory judgment action

brought by Barbara Surbaugh (“Ms. Surbaugh”),1 plaintiff below. Before this Court,

American States contends that the circuit court erred in submitting the insurance coverage

issue to a jury as a matter of law and erred in denying its motion for summary judgment.2

After a careful review of the briefs and record on appeal, and listening to the arguments of

the parties, we reverse and remand.



                                             I.


                       FACTUAL AND PROCEDURAL HISTORY


              This case began on or about June 6, 1997, when Gerald Kirchner was

accidentally shot and killed by Robbie Bragg. At the time of the shooting, Mr. Kirchner and

Mr. Bragg were both employees of Grimmett Enterprises, a sporting goods store located in

Rainelle, West Virginia. Grimmett Enterprises was owned by David Grimmett (“Mr.

Grimmett”). Mr. Kirchner was shot accidentally while Mr. Bragg was showing a customer

how to load a handgun that was for sale in the store.

              1
                  Ms. Surbaugh filed the action as Administrator of the estate of Gerald
Kirchner.
              2
               American States’ brief actually sets out six assignments of error. However,
we have reduced the issues down to two dispositive matters. In addition, Ms. Surbaugh
assigned three issues as cross-assignments of error.

                                             1

              On or about December 19, 1997, the mother of Mr. Kirchner, Ms. Surbaugh,

filed a wrongful death action against Mr. Bragg and a workers’ compensation deliberate

intent cause of action against Grimmett Enterprises. In 2002, Mr. Bragg and Grimmett

Enterprises entered into a settlement with Ms. Surbaugh. Under the terms of the settlement,

Mr. Bragg and Grimmett Enterprises agreed to a judgment against them for $1.5 million.

Ms. Surbaugh agreed to not execute the judgment against the defendants in exchange for the

defendants assigning all claims they might have against their respective insurers for refusing

to provide a defense and coverage.



              In 2005, Ms. Surbaugh filed an amended complaint to assert a declaratory

judgment action against Grimmett Enterprises’ insurer, American States.3 The amended

complaint sought a determination of whether the insurance policy issued by American States

to Grimmett Enterprises provided coverage for the claim against Grimmett Enterprises.4 By

order entered April 19, 2010, the circuit court bifurcated the declaratory judgment action

from the underlying wrongful death/deliberate intent action. Subsequently, on or about July

              3
               A prior amended complaint was filed against Mr. Bragg’s homeowners
insurer. That action was settled.
              4
                Even though an agreed judgment was entered against Grimmett Enterprises,
the circuit court held that the judgment was not binding on American States. See Syl. pt. 7,
in part, Horkulic v. Galloway, 222 W. Va. 450, 665 S.E.2d 284 (2008) (“A consent or
confessed judgment against an insured party is not binding on that party’s insurer in
subsequent litigation against the insurer where the insurer was not a party to the proceeding
in which the consent or confessed judgment was entered, unless the insurer expressly agreed
to be bound by the judgment”).

                                              2

20, 2010, Ms. Surbaugh filed a motion for summary judgment on the declaratory judgment

claim.5 American States filed a cross motion for summary judgment. Ms. Surbaugh argued

that an employee exclusion in the policy was ambiguous, was not conspicuous, and had not

been brought to the attention of Mr. Grimmett.6 American States argued that the policy was

unambiguous and conspicuous. The record reflects that the circuit court entered an order on

September 24, 2010, denying, in part, Ms. Surbaugh’s motion.7 The order made two

dispositive rulings. First, the circuit court held as a matter of law that the exclusionary

language contained in the policy was not ambiguous. Second, the court ruled that the issue

of whether the exclusion was disclosed to Mr. Grimmett was to be resolved by a jury.



              Ms. Surbaugh filed a renewed motion for summary judgment on May 4, 2011.

In response, American States filed a renewed cross motion for summary judgment. American

States argued that it was entitled to summary judgment because of the court’s earlier ruling




              5
               American States previously had filed a motion for summary judgment on the
declaratory judgment claim before that claim and the wrongful death/deliberate intent actions
were bifurcated. The trial court denied the motion by order entered June 14, 2007.
              6
               The policy did not provide coverage for a bodily injury to “[a]n employee of
the insured arising out of and in the course of employment by the insured.” Greater details
about the policy and its purchase are brought out in the “Discussion” section of this opinion.
See Section II, infra.
              7
              The record does not contain an order specifically addressing American States’
cross motion for summary judgment.

                                              3

that the exclusion was unambiguous. By order entered June 17, 2011, the circuit court denied

both summary judgment motions.



              On June 23, 2011, a jury trial was held to determine coverage under the policy.

The only witness called during the trial was Mr. Grimmett. At the conclusion of the

evidence, the case was submitted to the jury with a special verdict form that had only one

question: “Was the exclusionary language at issue in this case brought to the attention of the

insured, Grimmett Enterprises, Inc.”8 On June 24, 2011, the jury returned a verdict

answering the question in the negative. The circuit court thereafter, on June 30, 2011,

entered a final order concluding that, based upon the jury’s answer to the special verdict

question, the employee policy exclusion was unenforceable. This appeal followed.



                                               II.


                                  STANDARD OF REVIEW


              This is an appeal from a jury verdict in a declaratory judgment action. In

addition to appealing the jury verdict, American States also has assigned error to the trial

court’s denial of its motions for summary judgment. With respect to a jury verdict in a

declaratory judgment proceeding, we have held,




              8
                  See W. Va. R. Civ. Pro. 49(a) (special verdicts).

                                                4

                      [t]his Court reviews a circuit court’s entry of a
               declaratory judgment de novo, because the principal purpose of
               a declaratory judgment action is to resolve legal questions. . . .
               Any determinations of fact made by the circuit court or jury in
               reaching its ultimate judgment are reviewed under a clearly
               erroneous standard.

Joslin v. Mitchell, 213 W. Va. 771, 775, 584 S.E.2d 913, 917 (2003).



               This Court’s standard of review concerning summary judgment is well-settled.

Upon appeal, “[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). In conducting our de novo

review, we are mindful that “[a] motion for summary judgment should be granted only when

it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is

not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v.

Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). In other words,

“[t]he circuit court’s function at the summary judgment stage is not to weigh the evidence

and determine the truth of the matter, but is to determine whether there is a genuine issue for

trial.” Syl. pt. 3, Painter, 192 W. Va. 189, 451 S.E.2d 755.



               With these standards of review in mind, we address the dispositive issues

presented.




                                                5

                                            III.


                                      DISCUSSION


              In this case, we are presented with two dispositive issues. First, we must

determine whether the trial court was correct in finding, as a matter of law, that a jury had

to decide if an insurance policy’s exclusionary language was adequately brought to the

attention of Mr. Grimmett. Second, we must decide whether the trial court erred in denying

summary judgment in favor of American States. We will address both issues separately.



           A. Ordinarily the Trial Court Should Decide Whether a Policy’s

          Exclusionary Language Was Brought to the Attention of an Insured


              The trial court determined that it was for the jury to decide whether the

exclusionary language at issue in this case was brought to the attention of Mr. Grimmett.

American States argued below, and in this appeal, that this issue was for the trial court and

not a jury.9 We agree with American States.



              We previously have held that “when a declaratory judgment proceeding

involves the determination of an issue of fact, that issue may be tried and determined by a

judge or jury in the same manner as issues of fact are tried and determined in other civil

actions.” Erie Ins. Prop. & Cas. Co. v. Stage Show Pizza, 210 W. Va. 63, 66, 553 S.E.2d


              9
               As an alternative argument, American States also wrongly contended below,
and in this appeal, that our cases did not require proof of disclosure.

                                              6

257, 260 (2001). Our declaratory judgment act provides that, “‘[w]hen a proceeding under

this article involves the determination of an issue of fact, such issue may be tried and

determined in the same manner as issues of fact are tried and determined in other civil

actions in the court in which the proceeding is pending.’ W. Va. Code § 55-13-9 (1941).”

Syl. pt 15, Mountain Lodge Ass’n v. Crum & Forster Indem. Co., 210 W. Va. 536, 558

S.E.2d 336 (2001). Moreover, in Syllabus point 16 of Mountain Lodge we held that

                      West Virginia Code § 55-13-9 and Rules 38, 39 and 57
              of the West Virginia Rules of Civil Procedure, read and
              considered together, operate to guarantee that any issue triable
              by a jury as a matter of right in other civil actions cognizable by
              the circuit courts shall, upon timely demand in a declaratory
              judgment proceeding, be tried to a jury. As to other issues, Rule
              39 of the Rules of Civil Procedure expressly authorizes trial by
              the court, with or without an advisory jury.

Id.

              It is clear from the above authorities that issues of fact, that are normally tried

by a jury, may be submitted to a jury in a declaratory judgment action. However, in the

context of a declaratory judgment action to determine insurance coverage, generally the

issues presented are for the trial court to decide. This Court has held that “[d]etermination

of the proper coverage of an insurance contract when the facts are not in dispute is a question

of law.” Syl. pt. 1, Tennant v. Smallwood, 211 W. Va. 703, 568 S.E.2d 10 (2002). See also

Syl. pt. 2, in part, Riffe v. Home Finders Assocs., Inc., 205 W. Va. 216, 517 S.E.2d 313

(1999) (“The interpretation of an insurance contract, including the question of whether the

contract is ambiguous, is a legal determination[.].”). In Payne v. Weston, 195 W. Va. 502,

                                               7

466 S.E.2d 161 (1995). Justice Cleckley addressed the parameters for invoking a jury trial

on an insurance coverage issue:

                    In West Virginia, insurance policies are controlled by the
              rules of construction that are applicable to contracts
              generally. . . .

                      Only if the court makes the determination that the
              contract cannot be given a certain and definite legal meaning,
              and is therefore ambiguous, can a question of fact be submitted
              to the jury as to the meaning of the contract. It 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. Where a provision of an insurance policy is
              ambiguous, it is construed against the drafter, especially when
              dealing with exceptions and words of limitation.

                     However, a court should read policy provisions to avoid
              ambiguities and not torture the language to create them. If a
              court properly determines that the contract is unambiguous on
              the dispositive issue, it may then properly interpret the contract
              as a matter of law and grant summary judgment because no
              interpretive facts are in genuine issue.

Payne, 195 W. Va. at 507, 466 S.E.2d at 166 (citations and internal quotations omitted). See

also State ex rel. Piper v. Sanders, 228 W. Va. 792, 794, 724 S.E.2d 763, 765 (2012) (“The

circuit court conducted a jury trial on the declaratory judgment action . . . , in which the jury

found that the State Farm umbrella policy provides liability coverage[.]”); Mountain Lodge

Ass’n v. Crum & Forster Indem. Co., 210 W. Va. 536, 558 S.E.2d 336 (2001) (holding that

genuine issue of material fact as to whether owner, acting as its own general contractor,

retained the right to exercise control of its construction manager precluded summary

judgment for insurer); West Virginia Ins. Co. v. Lambert, 193 W. Va. 681, 682, 458 S.E.2d

                                               8

774, 775 (1995) (“The jury also determined insurance coverage was available because Mr.

Lambert’s actions did not fall under the ‘business pursuits’ exclusion of his policy.”);

Marson Coal Co., Inc. v. Insurance Co. of State of Pennsylvania, 158 W. Va. 146, 148, 210

S.E.2d 747, 749 (1974) (“The insurance company denied coverage under the policy and the

plaintiff, thereafter, instituted a declaratory judgment action. The case was tried to the court

without a jury, and upon the trial court’s findings of fact and conclusions of law, coverage

under the policy was denied.”); Spencer v. Travelers Ins. Co., 148 W. Va. 111, 114, 133

S.E.2d 735, 738 (1963) (“All of the evidence relative to the conversations between the

[parties] relative to the coverage in the insurance policy was objected to by the defendant as

a violation of the parol evidence rule, but was admitted by the trial court for the consideration

of the jury.”); Syl. pt. 1, Runner v. Calvert Fire Ins. Co., 138 W. Va. 369, 76 S.E.2d 244

(1953) (“Where, under the facts and circumstances of a particular case, the court cannot, as

a matter of law, hold that the specific provisions of an insurance contract have been

breached, the question is one for jury determination.”).



               In the instant case, the trial court determined that, based upon the per curiam

opinion in Luikart v. Valley Brook Concrete & Supply, Inc., 216 W. Va. 748, 613 S.E.2d 896

(2005), a jury was required to determine whether the exclusionary language at issue in the

case was brought to the attention of Mr. Grimmett. Simply put, Luikart does not support the

trial court’s ruling as to the necessity of a jury trial.


                                                 9

              The plaintiff in Luikart was the father and administrator of the estate of Paul

Travis Luikart, who was killed during the course of his employment. The plaintiff sued the

employer for wrongful death under the workers’ compensation statute. While the action was

pending, the employer’s insurer denied coverage and filed a declaratory judgment action to

obtain a judicial ruling on the issue. After the two actions were consolidated, the employer

entered into a settlement and an agreed judgment against it for $3 million. The plaintiff

agreed to not execute the judgment against the employer in exchange for the employer

assigning all claims it might have against its insurer for refusing to provide a defense and

coverage. Eventually, the insurer moved for summary judgment on the declaratory judgment

claim. The trial court granted summary judgment in favor of the insurer. The plaintiff

appealed.



              One of the issues presented in Luikart involved the application of language

found in Syllabus point 10 of National Mutual Insurance Co. v. McMahon & Sons, Inc., 177

W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. United States

Fidelity & Guaranty Co., 202 W. Va. 308, 504 S.E.2d 135 (1998). In McMahon, we held:

                     An 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, McMahon, 177 W. Va. 734, 356 S.E.2d 488 (emphasis added.)

                                             10

              After we determined in Luikart that the language of the insurance contract was

unambiguous and conspicuous, we addressed the plaintiff’s contention that the exclusionary

language was not brought to the attention of the employer. In addressing this issue, we

examined the deposition testimony of the employer’s president, who testified that he read

some of the policy but not everything. In addition to reviewing the president’s deposition,

we reviewed the policy:

                      Moreover, the policy’s coverage section clearly stated
              that it was subject to various exclusions. The portion of the
              insurance policy titled “Commercial General Liability Coverage
              Form,” which contains the relevant exclusionary language,
              cautions in its first sentence that “[v]arious provisions in this
              policy restrict coverage. Read the entire policy carefully to
              determine rights, duties and what is and is not covered.”

Luikart, 216 W. Va. at 754, 613 S.E.2d at 902. In view of this evidence, we held that the

insurer “sufficiently disclosed the exclusions to Valley Brook.” Luikart, 216 W. Va. at 754,

613 S.E.2d at 902.



              It is clear to this Court that Luikart’s application of Syllabus point 10 of

McMahon, that an insurer bring exclusionary language to the attention of an insured, did not

remotely suggest that this was a mandatory jury question. In fact, we wish to make clear, and

so hold, that, as a general rule, the issue of whether an insurer has brought a policy exclusion

to the attention of an insured is to be resolved by the trial court.




                                               11

              Our holding is consistent with the procedural way in which a federal district

court in Canal Insurance Co. v. Sherman, 430 F. Supp. 2d 478 (E.D. Pa. 2006), addressed

the issue. Sherman was a diversity jurisdiction case that applied West Virginia insurance law

to a policy coverage issue. One of the issues addressed by Sherman was the parties’ cross

motions for summary judgment on the issue of whether the insurer brought policy exclusions

to the attention of the insured. After rejecting the insurer’s evidence that the exclusions were

brought to the attention of the insured, the court held that the insurer’s “motion for summary

judgment that the exclusions bar coverage will be denied.” Sherman, 430 F. Supp. 2d at 488.

In turning to the insured’s cross motion for summary judgment, the court held that the

insured

              has shown there is no genuine issue of material fact that the
              policy was not explained to him and Canal has failed to raise
              such an issue. Under West Virginia law, failure to explain the
              exclusion to the insured prevents the application of that
              exclusion. Therefore, Sherman is entitled to judgment as a
              matter of law.

Sherman, 430 F. Supp. 2d at 489. Although we may not agree with the district court’s

substantive resolution of the disclosure issue in Sherman, we find that the district court

correctly concluded that the resolution of the issue was for the court and not a jury.



              Consequently, and in conjunction with the discussion that follows, we find that

the trial court committed error in having a jury decide whether the insurance policy’s

exclusionary language adequately was brought to the attention of Mr. Grimmett.

                                              12

                                  B. Summary Judgment

              The parties filed several summary judgment motions in this case. In our review

of the issue on appeal, we will rely on the record submitted for all of the summary judgment

motions, as well as the arguments set out in this appeal.



              With respect to general principles involved with examining provisions of an

insurance policy, this Court has indicated that “[w]hen an insurance company seeks to avoid

its duty to defend, or its duty to provide coverage, through the operation of a policy

exclusion, the insurance company bears the burden of proving the facts necessary to trigger

the operation of that exclusion.” State Auto. Mut. Ins. Co. v. Alpha Eng’g Servs., Inc., 208

W. Va. 713, 716, 542 S.E.2d 876, 879 (2000) (citation omitted). “Language 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), overruled on other grounds by National

Mut. Ins. Co. v. McMahon & Sons, 177 W. Va. 734, 356 S.E.2d 488 (1987). “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.” Syl., Keffer v. Prudential Ins. Co., 153 W. Va. 813, 172 S.E.2d 714 (1970). As

we previously indicated,

              “[a]n 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

                                             13

              policy terms, and must bring such provisions to the attention of
              the insured. Syl. pt. 10, McMahon, 177 W. Va. 734, 356 S.E.2d
              488. The dispositive summary judgment issues that were before
              the trial court involved a determination of whether the policy
              exclusion for employee injuries was (1) unambiguous, (2)
              conspicuous, and (3) disclosed to the insured. We will examine
              each issue separately.


              1. The exclusion was unambiguous. The policy involved in this case is a

standard commercial liability policy. The policy contained an exclusion purporting to deny

coverage to an employee injured during the course of his or her employment. The circuit

court found that the exclusion was not ambiguous.            This Court has explained 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. pt. 1, Prete v. Merchants Prop. Ins. Co.,

159 W. Va. 508, 223 S.E.2d 441 (1976). However, “[t]he mere fact that parties do not agree

to the construction of a contract does not render it ambiguous. The question as to whether

a contract is ambiguous is a question of law to be determined by the court.” Syl. pt. 1,

Berkeley Cnty. Pub. Serv. Dist. v. Vitro Corp. of America, 152 W. Va. 252, 162 S.E.2d 189

(1968). In the instant case the language of the policy exclusion was set out as follows:


              B. EXCLUSIONS

              1.	 Applicable to Business Liability Coverage –

                     This Insurance does not apply to:


                                              14

                     ....

                     e. “Bodily injury” to:

                     (1) An employee of the insured arising out of and in the
              course of employment by the insured; or

                    (2) The spouse, child, parent, brother or sister of that
              employee as a consequence of (1) above.

                     This exclusion applies:

                     (a) Whether the insured may be liable as an employer or
              in any other capacity; and

                   (b) To any obligation to share damages with or repay
              someone else who must pay damages because of the injury.



              In Ms. Surbaugh’s motion for summary judgment on July 20, 2010, she argued

that this exclusion was ambiguous. Ms. Surbaugh contended that the exclusion could be read

to mean that the employer had to cause the injury. To support this assertion, Ms. Surbaugh

submitted an affidavit by Mr. Grimmett, in which he stated that when he read the exclusion

after the accident, he thought that it meant that he, as the employer, had to cause the injury.

Ms. Surbaugh also presented deposition testimony of a linguistics expert, who opined that

the exclusion was ambiguous.



              The circuit court rejected Ms. Surbaugh’s argument that the exclusion was

ambiguous. The circuit court’s order addressed the issue as follows:


                                               15

              This Court rules as a matter of law that the policy language is
              not ambiguous. In fact, the exact same language was used in
              insurance policies in question[s] in at least two West Virginia
              cases: Spencer v. Travelers Ins. Co., 148 W. Va. 111, 115, 133
              S.E.2d 735, 738 (1963) and Smith v. Animal Urgent Care, Inc.,
              208 W. Va. 664, 666, 542 S.E.2d 827, 829 (2000). The
              language in the current case and the two cases just cited are
              exactly similar and state that excluded from coverage is bodily
              injury to “[a]n employee of the insured arising out of and in the
              course of employment by the insured.” Because the language in
              the current case and in Spencer and Smith are exactly the same,
              and the West Virginia Supreme Court of Appeals never
              indicated that the language in either Spencer or Smith was at all
              ambiguous, this Court rules that as a matter of law the language
              in the current case is similarly not ambiguous.



              We agree with the circuit court that the language of the exclusion in this case

is not new to this Court. See Luikart, 216 W. Va. at 751, 613 S.E.2d at 899 (similar

exclusion); Trent v. Cook, 198 W. Va. 601, 608 n.13, 482 S.E.2d 218, 225 n.13 (1996),

overruled on other grounds by Gibson v. Northfield Ins. Co., 219 W. Va. 40, 631 S.E.2d 598

(2005) (similar exclusion). Moreover, this same policy language has been found to be

unambiguous by other courts. See Aetna Cas. & Sur. Co. v. Beautiful Signs, Inc., 496 N.E.2d

1229, 1230 (Ill. App. Ct. 1986) (“The exclusion in question states that coverage will not

apply ‘to bodily injury to any employee of the insured arising out of and in the course of his

employment by the insured. . .’. . The exclusion in question was designed to preclude

coverage in those areas normally covered by Worker’s Compensation insurance.”); Franklin

v. J. A. Jones Constr. Co., 391 So. 2d 1321, 1323 (La. Ct. App. 1980) (“[W]e hold that the


                                             16

terms of the policy are clear and unambiguous.”); United States Fid, &Guar. Co. v. Rosso,

521 A.2d 301, 304 (Me. 1987) (“We find the language of the exclusion clause in Rosso’s

insurance policy to be unambiguous. It clearly applies to ‘any employee of the insured

arising out of and in the course of employment by the insured.’ Therefore, we construe this

language according to its plain meaning.”); State v. Schenectady Hardware & Elec. Co., Inc.,

636 N.Y.S.2d 861, 863 (N.Y. App. Div. 1996) (“The exclusionary language in the CGL

policy is clear and unambiguous and renders the coverage inapplicable to ‘bodily injury to

any employee of the insured arising out of and in the course of his employment by the

insured[.]’”); Fieldcrest Cannon, Inc. v. Fireman’s Fund Ins. Co., 477 S.E.2d 59, 67

(N.C. App. 1996) (“This coverage was explicitly stated to be inapplicable ‘to bodily injury

to any employee of the insured arising out of and in the course of employment by the

insured. . . .’”). Consequently we conclude that the language of the exclusion is not

ambiguous as a matter of law. Under the policy, an injury to an employee arising out of and

in the course of employment is excluded from coverage.



              2. The exclusion was conspicuous. The circuit court determined that the

exclusion was conspicuous, plain, and clear.10 We already have pointed out that an insurance



              10
                 American States refers this Court to two summary judgment orders as
indicating the trial court found the exclusion was conspicuous. No language in those orders
makes such a ruling. However, it is clear from the trial transcript that the trial court made
a pretrial ruling that the exclusion was conspicuous.

                                             17

policy “must make exclusionary clauses conspicuous, plain, and clear[.]” West Virginia

Employers’ Mut. Ins. Co. v. Summit Point Raceway Assocs., Inc., 228 W. Va. 360, 373, 719

S.E.2d 830, 843 (2011) (internal quotations and citations omitted). Furthermore, this Court

has emphasized that “any type of exclusion . . . 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.” Bender v. Glendenning, 219 W. Va. 174, 181, 632 S.E.2d 330, 337 (2006) (per

curiam).



              Ms. Surbaugh contended below that the exclusion was not conspicuous because

the policy did not contain a table of contents.11 We find no merit to this argument. In no

decision of this Court have we ever held that insurance policies must have a table of contents

for exclusions to be found to be conspicuous. While it is true that a few of the insurance

policy cases presented to this Court have had a table of contents, we have not made this an

absolute requirement. See Luikart, 216 W. Va. at 753, 613 S.E.2d at 901 (policy had table

of contents); Farm Family Mut. Ins. Co. v. Bobo, 199 W. Va. 598, 603, 486 S.E.2d 582, 587

(1997) (same). Obviously, a table of contents would be helpful in understanding any

insurance policy, but such helpfulness has not been mandated by this Court, nor has Ms.

Surbaugh pointed to any statute or regulation requiring the same.


              11
                It was also argued that “the exclusionary language was not plain and clear in
describing what it was excluding.” We have already rejected this argument in determining
that the exclusion was not ambiguous.

                                             18

               The exclusion in the policy is found in the “Businessowners Liability Coverage

Form.” The relevant exclusion in this case is found on page two of this policy Form. The

policy sets out the exclusion section in bold, capital letters that use a larger font size than the

substantive material. The employee exclusion is the fifth exclusion on the page. As we

observed in Luikart, “[i]n the present case, the exclusionary language was set apart from the

other language by an emboldened subheading entitled ‘Exclusions.’ Therefore, the only

conclusion that can be reached by the use of the boldface language is that it was, indeed,

conspicuous.” Luikart, 216 W. Va. at 753, 613 S.E.2d at 901. In sum, we find the exclusion

in this case was conspicuous.



               3. The exclusion was disclosed to the insured. American States argued

below that, once the policy was found to be unambiguous and conspicuous, the analysis

ended, and the exclusion had to be enforced. Alternatively, American States argued that if

there was an additional requirement of showing that the exclusion was disclosed to the

insured, the evidence supported that such disclosure had been made. The circuit court found

that the issue of disclosure was an element set out in McMahon and applied to this case, that

material issues of fact existed as to whether the exclusion had been disclosed to Mr.

Grimmett.




                                                19

              We already have made clear that, under Syllabus point 10 of McMahon, an

insurer seeking to invoke exclusions “must bring such provisions to the attention of the

insured.” Webster Cnty. Solid Waste Auth. v. Brackenrich & Assocs., Inc., 217 W. Va. 304,

312, 617 S.E.2d 851, 859 (2005) (internal quotations and citations omitted). Although the

issue of disclosure is part of the analysis in determining whether to enforce an exclusion, it

is an element that is rarely invoked. In the vast majority of cases brought to this Court

involving enforcement of exclusions under Syllabus point 10 of McMahon, the issue of

disclosure was not raised by the insured. See West Virginia Emp’rs’ Mut. Ins. Co. v. Summit

Point Raceway Assocs., Inc., 228 W. Va. 360, 719 S.E.2d 830 (2011) (resolving issues under

Syllabus point 10 of McMahon but no direct issue raised concerning disclosure of

exclusion); Bender v. Glendenning, 219 W. Va. 174, 632 S.E.2d 330 (2006) (per curiam)

(same); Webster Cnty. Solid Waste Auth. v. Brackenrich & Assocs., Inc., 217 W. Va. 304, 617

S.E.2d 851 (2005) (same); Satterfield v. Erie Ins. Prop. & Cas., 217 W. Va. 474, 618 S.E.2d

483 (2005) (same); Wehner v. Weinstein, 216 W. Va. 309, 607 S.E.2d 415 (2004) (same);

Russell v. Bush & Burchett, Inc., 210 W. Va. 699, 559 S.E.2d 36 (2001) (same); Marcum

Trucking Co., Inc. v. United States Fid. & Guar. Co., 190 W. Va. 267, 438 S.E.2d 59 (1993)

(same). But see New Hampshire Ins. Co. v. RRK, Inc., ___ W. Va. ___, ___ S.E.2d ___, No.

11-1099 Nov. 2012) (per curiam) (raising disclosure issue); Luikart v. Valley Brook Concrete

& Supply, Inc., 216 W. Va. 748, 613 S.E.2d 896 (2005) (same). The reason for the rarity of

this issue is probably because it is an element that is difficult to sustain. The arguments made


                                              20

by Ms. Surbaugh illustrate the difficulty in establishing disclosure as a genuine issue in

dispute.



              The evidence shows that, at some point in 1995, Mr. Grimmett opened a

sporting goods store. The owner of the building where the store was going to be located

informed Mr. Grimmett that he would have to obtain insurance. Mr. Grimmett contacted a

New York agent of American States and made arrangements by phone to purchase a policy.

Mr. Grimmett received the first policy in October 1995. The policy subsequently was

renewed for the period October 1996 to October 1997. The shooting accident occurred

during the second year of the policy.



              Ms. Surbaugh raised the issue of failure to disclose by arguing below that Mr.

Grimmett was never verbally told about the exclusions, that the initial application for

insurance did not contain any exclusions, and that the initial quote for coverage did not

disclose any exclusions. In light of this evidence, Ms. Surbaugh contends American States

failed to bring the exclusions to the attention of Mr. Grimmett.



              American States argues that the cover letter of the first policy informed Mr.

Grimmett of the following:

                    Please read your policy carefully. In the event of a loss
              your insurance coverage will be controlled by the terms,

                                            21

              conditions and exclusions of your policy. After your review,
              please call us should you find you require further explanation
              regarding any part of your policy or if you wish to make any
              changes or corrections.

In addition, American States points out that at the top of the policy the following appears:

                      Various provisions in this policy restrict coverage. Read
              the entire policy carefully to determine rights, duties and what
              is and is not covered.

Finally, American States notes that Mr. Grimmett admitted to reading the cover letter, but

not the policy. In the affidavit submitted by Mr. Grimmett, as an exhibit along with Ms.

Surbaugh’s first motion for summary judgment on the policy, he stated the following:

                     10. After the accident on June 6, 1997, I reviewed my
              insurance policy and for the first time read the exclusions on
              employee bodily injury, Section 2.e. After reading the
              exclusion, I read it to mean that bodily injury to an employee
              was not covered if I injured the employee. I believed that I had
              coverage for this accident because I did not cause the injury to
              the employee.



              Ms. Surbaugh contends that the fact that Mr. Grimmett did not read the policy

until after the accident is not dispositive. Ms. Surbaugh argues that our decision in Mitchell

v. Broadnax, 208 W. Va. 36, 49, 537 S.E.2d 882, 895 (2000), superseded by statute as

recognized by Findley v. State Farm Mutual Automobile Insurance Co., 213 W. Va. 80, 576

S.E.2d 807 (2002), outlines the requirements for bringing an exclusion to the attention of a

policyholder. This Court noted in footnote 24 of Mitchell the following:



                                             22

                     Methods by which insurers may effectively communicate
              an exclusion to an insured to secure his/her awareness thereof
              may include, but are not necessarily limited to, reference to the
              exclusion and corresponding premium adjustment on the
              policy’s declarations page or procurement of the insured’s
              signature on a separate waiver signifying that he/she has read
              and understood the coverage limitation.

Mitchell, 208 W. Va. at 49 n.24, 537 S.E.2d at 895 n.24. The dicta in footnote 24 of Mitchell

by its express terms did not provide exhaustive examples of how an insurer may bring policy

exclusions to the attention of an insured.12 Moreover, the true intent of the limited examples

provided in the footnote can be found in the body of the opinion. After resolving the

dispositive policy issues in Mitchell, the opinion continued in dicta as follows:

                      Before concluding our discussion herein, we would like
              to take this opportunity to speak on a matter that has troubled us
              during our decision of this case. . . .

                     ....

              . . . [T]he Legislature has vested the Commissioner with
              sufficient authority to reject policy provisions which do not
              clearly and accurately inform the insured as to the coverage
              provided by such policy.

                    Despite the Commissioner’s regulatory powers, we are
              mindful, from the policy language at issue in this case, that two
              marginally viable practices continue to accompany the
              incorporation of insurance policy exclusions. First, we observe


              12
               We have pointed out that “language in a footnote generally should be
considered obiter dicta which, by definition, is language unnecessary to the decision in the
case and therefore not precedential.” State ex rel. Medical Assurance of West Virginia, Inc.
v. Recht, 213 W. Va. 457, 471, 583 S.E.2d 80, 94 (2003) (internal quotations and citation
omitted).

                                             23

              that the “owned but not insured” exclusion in this case, though
              it was clearly designated as a limitation of the available UM
              coverage, most likely would not have been apparent to the
              majority of insurance consumers given its less-than-prominent
              placement in the appropriate policy endorsement. . . . Therefore,
              we urge the Commissioner to review proffered policies of
              insurance to ensure that coverage exclusions are not so incognito
              as to be deceptive or misleading as to the true scope of coverage
              available to the insured.

Mitchell, 208 W. Va. at 48-49, 537 S.E.2d at 894-95. In the final analysis, the dicta of

footnote 24 in Mitchell was merely pointing out examples of how “deceptive or misleading”

exclusions could be brought to the attention of policyholders.



              In the instant proceeding, there is nothing “deceptive or misleading” in the

plain and unambiguous exclusions in the policy. Consequently, there is no basis to suggest

that American States had to do more than demonstrate that it communicated in writing to Mr.

Grimmett that he should read the policy and its exclusions and contact American States if he

had concerns.13 Had Mr. Grimmett read the policy, as he was told to do in a letter and on the

policy itself, he would have learned of the exclusions and could have contacted American



              13
                 We would note that our recent decision in New Hampshire Ins. Co. v. RRK,
Inc., ___ W. Va. ___, ___ S.E.2d ___, No. 11-1099 Nov. 9. 2012) is distinguishable from the
facts of the instant case. In RRK the insured was sent a 17-page fax of the policy coverage
forms. The coverage form included exclusions, but did not include the exclusion at issue in
the case. The insured read the coverage forms. However, the insured did not read the actual
policy when it was sent, allegedly because he believed it was consistent with the policy
coverage forms. The instant case does not involve a conflict between a draft of the policy
coverage forms and the policy itself.

                                             24

States with any questions he had regarding said exclusions. In other words, American States

fulfilled its obligation to bring the exclusion to the attention of Mr. Grimmett, but Mr.

Grimmett failed to carry out his duty to read the policy. The law of this State is clear in

holding that “[a] party to a contract has a duty to read the instrument.” Syl. pt. 5, Soliva v.

Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), overruled on other

grounds by National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d

488 (1987).14 As pointed out by a California appellate court:

                      Failing to read a policy . . . is not sufficient reason to hold
              a clear and conspicuous policy provision unenforceable. To
              hold otherwise would turn both contract and insurance law on its
              head. Insurers are not required to sit beside a policy holder and
              force them to read (and ask if they understand) every provision
              in an insurance policy.

Mission Viejo Emergency Med. Assocs. v. Beta Healthcare Grp., 128 Cal. Rptr. 3d 330, 338

(2011). See also Blankenship v. City of Charleston, 223 W. Va. 822, 827, 679 S.E.2d 654,

659 (2009) (“[A]n equally important provision of the general policy is the cautionary

introductory statement that ‘[v]arious provisions in this policy restrict coverage [and one has

to] [r]ead the entire policy carefully to determine rights, duties and what is not covered.’”);



              14
                 Although dicta appears in footnote 6 of McMahon that might suggest an
insured does not have a duty to read a policy, the opinion does not stand for such an
abhorrent proposition. As indicated in Luikart, the dicta in McMahon merely relaxed the
duty to read in the limited context of an ambiguous contract and the application of the
doctrine of reasonable expectations. See Luikart, 216 W. Va. at 755, 613 S.E.2d at 903
(“The application of the doctrine of reasonable expectations has resulted in a relaxation of
our earlier-stated rule that a party to a contract has a duty to read the instrument.”).

                                                25

Luikart, 216 W. Va. at 754, 613 S.E.2d at 902 (“The portion of the insurance policy titled

‘Commercial General Liability Coverage Form,’ which contains the relevant exclusionary

language, cautions in its first sentence that ‘[v]arious provisions in this policy restrict

coverage. Read the entire policy carefully to determine rights, duties and what is and is not

covered.’ Accordingly, we conclude that Motorists sufficiently disclosed the exclusions to

Valley Brook.”); Moore v. United Benefit Life Ins. Co., 145 W. Va. 549, 564, 115 S.E.2d

311, 319 (1960) (“[T]he insured cannot escape the effect of the conditions of a policy on the

ground of ignorance, due to failure to read his policy, it being his duty to examine it[.]”).15



              In sum, American States established at the summary judgment stage that no

material issue of fact was in dispute as to the exclusion being unambiguous, conspicuous, and

disclosed to Mr. Grimmett. Consequently, the circuit court should have entered summary

judgment in favor of American States and declared the exclusion enforceable.




              15
                We summarily reject Ms. Surbaugh’s three cross-assignments of error. Ms.
Surbaugh contends that the exclusions should not be enforced because the policy was not
signed by a West Virginia resident agent for American States, as was once required by
W. Va. Code § 33-12-11 (the requirement was repealed in 2004). See W. Va. Code § 33-12­
11 (2004) (Repl. Vol. 2011). The circuit court rejected this argument, and so do we.
Assuming that we would find the former version of W. Va. Code § 33-12-11 constitutionally
valid, the appropriate remedy would be to invalidate the policy and not, as Ms. Surbaugh
contends, invalidate only the exclusions. Ms. Surbaugh’s other cross-assignments of error,
whether the policy was for $1 million or $2 million and the trial court’s refusal to give a
reasonable expectation of coverage instruction, are rendered moot by our decision.

                                              26

                                           IV.


                                    CONCLUSION


              In view of the foregoing, the circuit court’s order of June 30, 2011, which

entered judgment in favor of Ms. Surbaugh based upon a jury verdict, is reversed. This case

is remanded with instructions that the circuit court enter summary judgment in favor of

American States in the bifurcated declaratory judgment part of the action.



                                                                 Reversed and Remanded.




                                            27

