       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                           September 2017 Term
                                                            FILED
                                                        October 19, 2017
                                                            released at 3:00 p.m.
                                  No. 16-0596             RORY L. PERRY, II CLERK
                                                        SUPREME COURT OF APPEALS
                                                             OF WEST VIRGINIA




             FIRST MERCURY INSURANCE COMPANY, INC.,

                      Defendant Below, Petitioner



                                      V.


                JEFFREY RUSSELL AND ANITA RUSSELL,

                      Plaintiffs Below, Respondents,

                                    and

                          KIMES STEEL, INC.,

                      Defendant Below, Respondent




               Appeal from the Circuit Court of Mason County

                    Honorable David W. Nibert, Judge

                          Civil Action No. 14-C-18

                                AFFIRMED




                       Submitted: September 12, 2017

                          Filed: October 19, 2017


Don C. A. Parker                                Brent K. Kesner
Charity K. Lawrence                             Ernest G. Hentschel, II
Spilman Thomas & Battle, PLLC                   Kesner & Kesner, PLLC
Charleston, West Virginia                       Charleston, West Virginia
Attorneys for the Petitioner,                   Attorneys for the Respondents,
First Mercury Insurance Company                 Jeffrey and Anita Russell
                                               Kevin A. Nelson
                                               Ashley W. French
                                               Dinsmore & Shohl, LLP
                                               Charleston, West Virginia
                                               Attorneys for the Respondent,
                                               Kimes Steel, Inc.


JUSTICE DAVIS delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




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

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



              2.      “‘“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.” Syllabus Point 3, Aetna Casualty &

Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770

(1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d

247 (1992).” Syllabus point 2, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).



              3.      “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 judgment, shall be reviewed de novo on appeal.” Syllabus point 2,

Riffe v. Home Finders Associates, Inc., 205 W. Va. 216, 517 S.E.2d 313 (1999).



              4.      “Employers’ liability insurance applies to actions brought by an

employee against an employer, when the employer and the employee are not entitled to

the benefits and protections under any workers’ compensation law, or when, even though


                                               i
covered by a workers’ compensation law, the employee has a right to bring an action for

common law damages against the employer.” Syllabus point 3, Erie Insurance Property

& Casualty Co. v. Stage Show Pizza JTS, Inc., 210 W. Va. 63, 553 S.E.2d 257 (2001).



              5.     “It 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.” Syllabus point 4, National Mutual Insurance Co. v. McMahon &

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

Parsons v. Halliburton Energy Services, Inc., 237 W. Va. 138, 785 S.E.2d 844 (2016).



              6.     “Where ambiguous policy provisions would largely nullify the

purpose of indemnifying the insured, the application of those provisions will be severely

restricted.” Syllabus point 9, National Mutual Insurance Co. v. McMahon & Sons, Inc.,

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

Halliburton Energy Services, Inc., 237 W. Va. 138, 785 S.E.2d 844 (2016).



              7.     “Where the policy language involved is exclusionary, it will be

strictly construed against the insurer in order that the purpose of providing indemnity not

be defeated.” Syllabus point 5, National Mutual Insurance Co. v. McMahon & Sons, Inc.,




                                             ii
177 W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Parsons v.


Halliburton Energy Services, Inc., 237 W. Va. 138, 785 S.E.2d 844 (2016).





                                           iii

Davis, Justice:

              This appeal was brought by the Petitioner, First Mercury Insurance

Company, Inc. (“First Mercury”), defendant below, from an order of the Circuit Court of

Mason County that denied First Mercury’s motion for partial summary judgment and, in

turn, granted partial summary judgment as to coverage to Respondents Jeffrey Russell

and Anita Russell (“Mr. Russell” or “the Russells”), plaintiffs below, and Respondent

Kimes Steel, Inc. (“Kimes Steel”), defendant below. The dispositive issue herein is

whether coverage exists for a statutory deliberate intent action when the employer’s

commercial general liability policy is amended by an endorsement that includes a “Stop

Gap – Employers Liability Coverage Endorsement – West Virginia” that expressly

provides coverage for bodily injury to employees, as well as an exclusion for statutory

deliberate intent claims. After careful review of the circuit court’s order, the briefs, the

record submitted on appeal, and the oral arguments of the parties, we find the policy at

issue in this case to be internally inconsistent and therefore ambiguous. Accordingly, we

interpret the policy in favor of the insured and affirm the circuit court’s partial summary

judgment rulings.




                                              1

                                             I.


                     FACTUAL AND PROCEDURAL HISTORY


              In 2012, Kimes Steel sought to purchase various types of insurance

coverage in order to meet the insurance requirements for a potential client contract with

James River Coal. Specifically, among other things, James River Coal required

$1,000,000.00 of coverage for commercial general liability (“CGL”) (combined single

limit) and employer’s liability (per accident), and $5,000,000.00 of excess liability

coverage. Mr. Shannon Kimes, the principal of Kimes Steel, worked with an independent

insurance agent who solicited quotes for the required insurance coverage based upon a list

provided by James River Coal.1 Ultimately, First Mercury, a surplus lines carrier,2

responded to the solicitation by submitting a bid to provide the coverage required by

James River Coal.



              Thereafter, Kimes Steel purchased two insurance policies from First

Mercury. The first policy purchased from First Mercury provides primary CGL coverage.



              1
                James River Coal also required workers’ compensation coverage. Kimes Steel
previously maintained a basic workers’ compensation and employer’s liability insurance
policy with BrickStreet Mutual Insurance Company (“BrickStreet”). In order to comply with
James River Coal’s liability requirements as to workers’ compensation, Kimes Steel
increased its limits of liability with BrickStreet.
              2
               A surplus lines carrier is an insurance company that is not admitted or not
licensed to engage in insurance business in West Virginia. See W. Va. Code §§ 33-12C-3(e),
(p), and (w) (2011) (Repl. Vol. 2017).

                                             2

The second policy purchased provides excess coverage. The First Mercury CGL policy

contains a standard exclusion for employer’s liability for injuries to employees. However,

the standard exclusion is modified by an endorsement identified as “Stop Gap –

Employers Liability Coverage Endorsement – West Virginia” (“Stop Gap”).3 The First

Mercury excess policy includes a standard “follow form” provision, which incorporates

the terms of the underlying policy.



              The two First Mercury policies were in place when Mr. Russell was

involved in a workplace accident at Kimes Steel on May 3, 2013. The accident resulted

in severe injuries to Mr. Russell’s dominant hand and the amputation of a finger. On

February 4, 2014, the Russells filed their complaint alleging that Kimes Steel acted with

“deliberate intention” as defined in W. Va. Code § 23-4-2 (2005) (Repl. Vol. 2010).4 The

Russells alleged that Kimes Steel required its employee, Jeffrey Russell, to perform his

job duties without required safety equipment, instructions, and precautions for working




              3
              In fact, the Kimes Steel application for the CGL policy specifically requested
stop gap coverage.
              4
                Pursuant to W. Va. Code § 23-4-2(c) (2005) (Repl. Vol. 2010), a cause of
action may be had against an employer “[i]f injury or death result to any employee from the
deliberate intention of his or her employer to produce the injury or death. . . .” The statutory
elements required to prevail in a claim for deliberate intent are set out in W. Va. Code
§ 23-4-2(d)(2)(ii). This statute was amended effective June 12, 2015. Thus, we cite to the
statute in effect at the time of Mr. Russell’s injury in 2013.

                                               3

with table saws, and subjected him to a specific unsafe working condition that presented a

high degree of risk and strong probability of serious injury or death.



              First Mercury issued a denial of coverage letter to Kimes Steel on May 5,

2014. The letter informed Kimes Steel that First Mercury would “not provide . . . a legal

defense to the lawsuit, nor [would] it indemnify Kimes Steel as to any damages for which

Kimes Steel may be liable to Jeffrey or Anita Russell.” First Mercury also filed a

declaratory judgment action in the United States District Court for the Southern District

of West Virginia seeking a declaration that the policies provide no coverage for the

Russells’ claims. The declaratory judgment action was dismissed by the district court.

Thereafter, in June 2014, the Russells amended their complaint by adding a declaratory

judgment claim against First Mercury alleging that First Mercury is obligated to provide a

defense and indemnification to Kimes Steel under the subject insurance policies. In

October 2014, Kimes Steel filed a cross-claim against First Mercury asserting breach of

contract and bad faith arising from First Mercury’s denial of coverage to Kimes Steel

with respect to the Russells’ claims.



              On March 18, 2015, the circuit court entered an agreed order vacating a

previously entered scheduling order and staying discovery of the underlying Russell tort

claim allegations pending resolution of the coverage issues. Subsequently, First Mercury


                                             4

moved for partial summary judgment on the coverage issues. Kimes Steel and the

Russells responded by also filing separate motions for partial summary judgment as to the

coverage issues.



              Following briefing and arguments, the circuit court entered its May 18,

2016, “Order Denying Defendant First Mercury Insurance Company’s Motion for Partial

Summary Judgment and Granting Plaintiffs’ Cross-Motion and Defendant Kimes Steel’s

Motion for Partial Summary Judgment on Coverage Issues.” The circuit court’s order can

be summarized as finding coverage based upon its conclusion that the Stop Gap

endorsement language is ambiguous with respect to covering the Russells’ deliberate

intent action. Additionally, the circuit court concluded that Kimes Steel had a reasonable

expectation of coverage for the Russells’ claims, that the policy language rendered the

stop gap coverage illusory, that First Mercury was estopped from denying coverage, and,

further, that First Mercury owed a duty to defend Kimes Steel. It is from this order that

First Mercury now appeals.



                                             II.


                               STANDARD OF REVIEW


              First Mercury appeals the order of the circuit court granting partial

summary judgment in favor of the Russells and Kimes Steel and denying First Mercury’s


                                             5

motion for partial summary judgment. It is well settled that “[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 undertaking our de novo review, we apply the same standard

for granting summary judgment that is applied by the circuit court:

                      “‘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.’ Syllabus Point 3, Aetna
              Casualty & Surety Co. v. Federal Insurance Co. of New York,
              148 W. Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1,
              Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d
              247 (1992).

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



              Additionally, it is well recognized that “[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 judgment, 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). Mindful of the de novo standard governing our review, we proceed to

consider the substantive issues raised.




                                              6

                                             III.

                                       DISCUSSION

              First Mercury advances four assignments of error challenging the circuit

court’s conclusion that the Stop Gap endorsement and related exclusion were ambiguous.

On the other hand, the Russells and Kimes Steel assert that the circuit court properly

found First Mercury’s policy to be inherently ambiguous. Accordingly, this appeal is

resolved by considering the policy language.5



              The First Mercury CGL policy issued to Kimes Steel contains a typical

insuring agreement accompanied by an exclusion of coverage for bodily injury to an

employee.6 Neither of these provisions is disputed in this appeal. This case turns on a

              5
                First Mercury raises additional assignments challenging the circuit court’s
rulings pertaining to the doctrine of reasonable expectations, illusory coverage, estoppel, and
First Mercury’s duty to defend. Because this appeal is resolved by the policy language, it is
unnecessary to address these issues. See infra note 8.
              6
               “Section I” of the First Mercury CGL policy, under the heading “Coverage A
Bodily Injury and Property Damage Liability,” provides:

              1.	    Insuring Agreement
                     a.	   We will pay those sums that the insured becomes
                           legally obligated to pay as damages because of
                           “bodily injury” or “property damage” to which
                           this insurance applies. We will have the right and
                           duty to defend the insured against any “suit”
                           seeking those damages. However, we will have
                           no duty to defend the insured against any “suit”
                           seeking damages for “bodily injury” or “property
                                                                                (continued...)

                                              7

stop gap endorsement appended to the CGL policy and titled “Stop Gap – Employers

Liability Coverage Endorsement – West Virginia.” The Stop Gap endorsement modifies

the exclusion of bodily injury coverage to an employee that is contained in the First

Mercury CGL policy. The Stop Gap endorsement provides, in relevant part:

              A.	      The following is added to Section I – Coverages:

                       COVERAGE – STOP GAP – EMPLOYERS
                       LIABILITY

                       1.	    Insuring Agreement

                              a.	    We will pay those sums that the insured
                                     becomes legally obligated by West
                                     Virginia Law to pay as damages because
                                     of “bodily injury by accident” or “bodily
                                     injury by disease” to your “employee” to
                                     which this insurance applies. . . .



              6
                  (...continued)
                                damage” to which this insurance does not
                                apply. . . .

The policy goes on to set out the following exclusion:

              2.	      Exclusions
                       This insurance does not apply to:
                       ....
                       e.     Employer’s Liability
                              “Bodily injury” to:
                              (1)   An “employee” of the insured
                                    arising out of and in the course of:
                                    (a)     Employment by the insured; or
                                    (b)     Performing duties related to the
                                            conduct of the insured’s business[.]

                                               8

              To put into perspective the Stop Gap endorsement set out above, it is

important to first understand the meaning this Court has ascribed to the term “stop gap”

coverage. This Court addressed that term in Erie Insurance Property & Casualty Co. v.

Stage Show Pizza, JTS, Inc., 210 W. Va. 63, 553 S.E.2d 257 (2001), wherein the Court

observed that, “[i]n many states, insurance companies offer businesses three types of

insurance coverage: commercial general liability coverage; workers’ compensation

coverage; and ‘stop gap’ employers’ liability coverage.” Id. at 67, 553 S.E.2d at 261. In

explaining the three coverage types, the Court noted that a CGL policy protects a business

against a variety of liability claims but typically does not provide coverage for employee

bodily injury arising out of employment. Id. As to workers’ compensation coverage, the

Court observed that “[w]orkers’ compensation coverage is designed to release both an

employer and its employees from common-law rules of liability and damage, protect an

employer from expensive and unpredictable litigation, and provide compensation for

injuries to employees without the burdensome requirements of proving common-law

negligence.” Id. at 68, 553 S.E.2d at 262 (citing Jones v. Laird Found., Inc., 156 W. Va.

479, 489, 195 S.E.2d 821, 827 (1973) (Sprouse, J., concurring)). Finally, the Court in

Stage Show Pizza recognized that “[b]etween these two types of protection lies a ‘gap’ in

coverage. In this gap are claims made against a business by injured employees whose

claims are not generally compensable under the workers’ compensation system.” 210

W. Va. at 68, 553 S.E.2d at 262. Significantly, the Court described employers’ liability


                                             9

stop gap coverage as the gap filler intended for the purpose of providing coverage for

employers when employees are able to bring an action for injury despite workers’

compensation immunity. Id. Pertinent to the instant case, the Court expressly held:

                    Employers’ liability insurance applies to actions
             brought by an employee against an employer, when the
             employer and the employee are not entitled to the benefits and
             protections under any workers’ compensation law, or when,
             even though covered by a workers’ compensation law, the
             employee has a right to bring an action for common law
             damages against the employer.

Syl. pt. 3, Stage Show Pizza, 210 W. Va. 63, 553 S.E.2d 257. See also Luikart v. Valley

Brook Concrete & Supply, Inc., 216 W. Va. 748, 754, 613 S.E.2d 896, 902 (2005) (per

curiam) (recognizing “stop gap employers’ liability policy exists to cover ‘claims made

against a business by injured employees whose claims are not generally compensable

under the workers’ compensation system’” (quoting Stage Show Pizza, 210 W. Va. at 68,

553 S.E.2d at 262)).



             With this understanding of the meaning of stop gap coverage, we consider

the language of the First Mercury Stop Gap endorsement. We first note that the coverage

endorsement, which undisputedly modifies the insuring agreement in the First Mercury

CGL policy, expressly utilizes the term “Stop Gap” in its heading: “Coverage – Stop Gap

– Employers Liability.” Pursuant to West Virginia law as described above, the utilization

of the term “Stop Gap” in this heading plainly indicates that the policy provides Kimes


                                            10

Steel with coverage for a deliberate intent action brought by an employee. However, the

language that follows attempts to limit coverage to “‘bodily injury by accident’ or ‘bodily

injury by disease’ to your ‘employee’ to which this insurance applies. . . .” (Emphasis

added). Thus, the more prominently displayed heading to this provision conveys a clear,

yet different, message than the policy language that follows.



              The heading indicates that the policy provides stop gap coverage, which,

under West Virginia law, plainly means coverage for “claims made against a business by

injured employees whose claims are not generally compensable under the workers’

compensation system.” Stage Show Pizza, 210 W. Va. at 68, 553 S.E.2d at 262.

Nevertheless, the policy language purports to limit employee claims to only those arising

“by accident” or “disease.” Under these circumstances, we find this portion of the Stop

Gap endorsement to be ambiguous. Accordingly, this provision must be interpreted in

favor of Kimes Steel, and we find that it provides coverage for the Russells’ deliberate

intent claims. “It 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 Parsons v. Halliburton Energy

Servs., Inc., 237 W. Va. 138, 785 S.E.2d 844 (2016). Accord Riffe v. Home Finders




                                            11

Assocs., Inc., 205 W. Va. 216, 221, 517 S.E.2d 313, 318 (1999). However, our analysis

does not end here.



              The Stop Gap endorsement in the First Mercury policy also contains its own

exclusionary language providing, in relevant part in Exclusion l, as follows:

              2.	    Exclusions

                     This insurance does not apply to:

                     ....

                     l.	    West Virginia Workers Compensation Law,
                            Sect. 23-4-2

                            “Bodily injury by accident” or “bodily injury by
                            disease” caused by any action determined to be
                            of deliberate intention as specified under West
                            Virginia Workers Compensation Law, Sect. 23­
                            4-2.



              As First Mercury correctly notes, the case of West Virginia Employers’

Mutual Insurance Co. v. Summit Point Raceway Associates, Inc., 228 W. Va. 360, 719

S.E.2d 830 (2011), is directly on point with a similar exclusion and unquestionably

controls our analysis of this language. In Summit Point, this Court considered the

following exclusionary language:

              C. Exclusions


              This insurance does not cover


                                            12

                     5.     Bodily injury caused by your intentional,
                     malicious or deliberate act, whether or not the act was
                     intended to cause injury to the employee injured, or
                     whether or not you had actual knowledge that an injury
                     was certain to occur, or any bodily injury for which
                     you are liable arising out of West Virginia Annotated
                     Code § 23-4-2.

Id., 228 W. Va. at 372, 719 S.E.2d at 842. The Summit Point Court first acknowledged

West Virginia law pertaining to exclusionary clauses. In this regard, it has been

established that

                     [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 policy terms, and must bring such
              provisions to the attention of the insured.

Syl. pt. 6, id. (internal quotations and citations omitted). With respect to the exclusionary

language at issue therein, the Court in Summit Point then concluded that the

              exclusion was conspicuous, plain, clear, and obvious in
              excluding coverage for deliberate intent actions. By stating
              that the insurance did not cover “any bodily injury for which
              you are liable arising out of West Virginia Annotated Code §
              23-4-2,” it is clear that there was no coverage for deliberate
              intent liability. . . .

228 W. Va. at 373, 719 S.E.2d at 843. Our examination of the similarly worded language

used in First Mercury’s exclusion compels the same conclusion. The language used in

First Mercury’s Exclusion l, which expressly excludes coverage for “any action

determined to be of deliberate intention as specified under West Virginia Workers


                                             13

Compensation Law, Sect. 23-4-2,” is “plain, clear, and obvious in excluding coverage for

deliberate intent actions.” Summit Point, 228 W. Va. at 373, 719 S.E.2d at 843.



              Thus, our analysis of the First Mercury policy issued to Kimes Steel reveals

that it contains a Stop Gap endorsement that provides coverage for deliberate intent

actions, and an accompanying plain and clear exclusion denying the very same coverage.

The inclusion of both the Stop Gap endorsement and Exclusion l in the First Mercury

policy creates an additional ambiguity.7 As noted above, “ambiguous terms in insurance

contracts are to be strictly construed against the insurance company and in favor of the

insured.” Syl. pt. 4, in part, McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488.

Indeed, in McMahon & Sons, we concluded that “[w]here ambiguous policy provisions



              7
                Thus, this case differs substantially from Summit Point to the extent that there
was no ambiguity in the Summit Point policy. See West Virginia Emp’rs’ Mut. Ins. Co. v.
Summit Point Raceway Assocs., Inc., 228 W. Va. 360, 372, 719 S.E.2d 830, 842 (2011)
(“Nothing in the plain language quoted above leads to a reasonable conclusion that deliberate
intent coverage is included in this policy.”). Furthermore, the language of the policy in
Summit Point did not include any reference to stop gap coverage. It was made clear that the
employer in Summit Point did not pay a premium to obtain deliberate intent coverage and,
therefore, did not have such coverage. Id. at 371 n.14, 719 S.E.2d at 841 n.14 (stating “[i]t
is undisputed that Summit Point did not have [deliberate intent] coverage, and Summit Point
never paid any premiums to obtain such coverage” (emphasis added)).

              Here, Kimes Steel sought coverage through an agent; First Mercury made an
offer of CGL coverage with a Stop Gap endorsement; an application specifying stop gap
coverage was completed; Kimes Steel paid the premium; and First Mercury accepted the
premium. Thus, it is clear from the parties’ own actions that the terms of the policy were
conflicting and ambiguous.

                                              14

would largely nullify the purpose of indemnifying the insured, the application of those

provisions will be severely restricted.” Syl. pt. 9, id. Moreover, this Court specifically

held that “[w]here the policy language involved is exclusionary, it will be strictly

construed against the insurer in order that the purpose of providing indemnity not be

defeated.” Syl. pt. 5, id. This circumstance compels the conclusion that the exclusionary

language is inherently inconsistent with the Stop Gap endorsement providing coverage

such that it nullifies the purpose of the policy endorsement and operates so as to defeat

indemnification. See, e.g., Cramer v. National Cas. Co., 690 F. App’x 135, 138 (4th Cir.

2017) (“[A]mbiguous or conflicting terms in an insurance policy must be construed

liberally in favor of the insured and strictly against the insurer.” (internal quotations and

citation omitted)); Diamond State Ins. Co. v. Homestead Indus., Inc., 318 S.C. 231, 236,

456 S.E.2d 912, 915 (1995) (same).



              By purporting to exclude deliberate intent actions from the Stop Gap

endorsement, the First Mercury policy largely nullifies the purpose of the coverage, which

is to fill the gap in the CGL policy and provide protection for employees’ bodily injury

claims. Such ambiguous policy language must be construed against the insurance

company and in favor of the insured so as to support the purpose of indemnity. Syl. pts. 4

& 9, McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488. Thus, we find that the

First Mercury explicitly titled Stop Gap endorsement operates to provide coverage for the


                                              15

deliberate intent claims of the Russells against Kimes Steel, and the conflicting exclusion

may not be enforced.8



                                             IV.


                                      CONCLUSION


              For the reasons stated, we affirm the circuit court’s “Order Denying

Defendant First Mercury Insurance Company’s Motion for Partial Summary Judgment

and Granting Plaintiffs’ Cross-Motion and Defendant Kimes Steel’s Motion for Partial

Summary Judgment on Coverage Issues.”



                                                                                    Affirmed.




              8
                Because our analysis of the policy language compels us to affirm the circuit
court’s finding of coverage, it is unnecessary for us to address First Mercury’s challenges to
the circuit court’s findings as to Kimes Steel’s reasonable expectations of coverage, illusory
coverage, or estoppel. Additionally, because we have found the subject policy provides
coverage, there necessarily is a duty to defend on the part of First Mercury. See State ex rel.
Nationwide Mut. Ins. Co. v. Wilson, 236 W. Va. 228, 234, 778 S.E.2d 677, 683 (2015) (“[A]n
insurer’s duty to indemnify its insured under a CGL policy is narrower than its duty to
provide a defense.”).

                                              16
