UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE BURLINGTON INSURANCE
COMPANY,
Plaintiff-Appellant,

v.

MILDRED R. SHIPP, d/b/a New
Sunnyside Tavern,                                                   No. 98-2722
Defendant-Appellee,

and

ROBERT A. MORRIS; PATRICIA M.
MORRIS,
Parties in Interest.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CA-96-10-3)

Argued: January 24, 2000

Decided: May 15, 2000

Before NIEMEYER, Circuit Judge, Deborah K. CHASANOW,
United States District Judge for the District of Maryland,
sitting by designation, and Andre M. DAVIS,
United States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Niemeyer wrote
a dissenting opinion.

_________________________________________________________________
COUNSEL

ARGUED: David Francis Nelson, SCHUMACHER, FRANCIS,
STENNETT & NELSON, Charleston, West Virginia, for Appellant.
Michael Douglas Lorensen, BOWLES, RICE, MCDAVID, GRAFF
& LOVE, Martinsburg, West Virginia, for Appellee. ON BRIEF: R.
Ford Francis, SCHUMACHER, FRANCIS, STENNETT & NEL-
SON, Charleston, West Virginia, for Appellant. F. Samuel Byrer,
NICHOLS & SKINNER, L.C., Charles Town, West Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Burlington Insurance Company appeals the district court's denial
of its motion for judgment as a matter of law following a jury trial
on the issue of whether its insured, Mildred Shipp, d/b/a New Sunny-
side Tavern, had a reasonable expectation of insurance coverage
under her general liability policy for liability arising out of an assault
and battery that occurred in her tavern. For the reasons that follow,
we affirm.

I

Mildred Shipp owns the New Sunnyside Tavern (the"Tavern") in
Marlowe, West Virginia. In late April 1993, Shipp contacted insur-
ance agent Elmo Bennett about obtaining a general liability policy for
the Tavern. Bennett called an underwriter at Mountaineer Insurance
Group, a licensed insurance broker, to obtain a quotation on a policy
for Shipp. The underwriter, Lester Long, took the necessary informa-
tion from Bennett and generated a quotation for a Burlington Insur-
ance policy.

                     2
On May 7, 1993, Shipp went to Bennett's office to complete an
application for the policy. Shipp asked Bennett about the scope of her
coverage, and Bennett told Shipp she was covered for everything
except theft and liability arising out of the drunk driving of a patron.
Shipp gave Bennett a premium down payment for the policy and left
Bennett's office believing she had insurance for the Tavern. Bennett
contacted Mountaineer that same day and advised Long that he had
an application and premium down payment from Shipp. On the basis
of this information, Long told Bennett he would bind coverage for a
policy with Burlington. Mountaineer issued a policy binder on May
7, 1993, and faxed only the first page of the binder to Burlington.
Bennett and Shipp were not sent a copy of the binder. Although bro-
kers sometimes note policy exclusions on binders, Mountaineer did
not note any exclusions on Shipp's binder.

On May 14, 1993, Robert Morris was injured at the Tavern when
he was assaulted by another patron with a pool cue. Shortly after the
incident, Shipp went to Bennett's office and told him about the assault
on Morris. Shipp asked Bennett whether she would have any prob-
lems with her insurance coverage. Bennett told her the insurance was
effective as of the date she made her down payment, May 7, 1993,
and that she had nothing to worry about.

Mountaineer did not actually generate Shipp's policy until June 7,
1993. The policy prepared by Mountaineer contained the following
assault and battery exclusion:

          It is agreed and understood that this insurance does not
          apply to bodily injury or property damage arising out of
          assault and battery or any act or omission in connection with
          the prevention or suppression of such acts, whether caused
          by or at the instigation of the insured, his employees,
          patrons or any other person.

A copy of the policy was sent to Bennett on June 10, 1993. Shipp tes-
tified that she never received a copy of the policy and was not other-
wise informed of the assault and battery exclusion.

Morris later sued Shipp in the Circuit Court of Berkeley County,
West Virginia, for the injuries he sustained in the assault at the Tav-

                     3
ern. After she was served with the complaint, Shipp attempted to con-
tact Bennett to notify him of the suit. Bennett, however, had suffered
a severely disabling stroke in the meantime, and his office had closed.
Through Bennett's wife, Shipp was able to identify Mountaineer, who
directed Shipp to Burlington. Relying on the assault and battery
exclusion in Shipp's policy, Burlington refused to indemnify or
defend Shipp against Morris' claim. Burlington then filed a declara-
tory judgment action in the United States District Court for the North-
ern District of West Virginia seeking a determination that it had no
duty to indemnify or defend Shipp.

Both Burlington and Shipp filed motions for summary judgment in
the district court. At the pre-trial conference held six days before trial,
the district court ruled as follows on the parties' motions: (1) the
assault and battery exclusion in the insurance policy was clear and
unambiguous as a matter of law; (2) the case would proceed to trial
on the sole issue of whether Shipp had a reasonable expectation of
coverage for assault and battery claims based on her contact with
Bennett; and (3) Bennett would be considered Burlington's agent for
purposes of the litigation. After the court denied Burlington's motion
in limine to preclude Shipp from testifying about statements Bennett
made to her regarding policy coverage and exclusions, Burlington
sought leave to amend the trial witness list to include Bennett. Fol-
lowing argument by counsel, the court denied Burlington's request.

The case was tried before a jury on February 10-11, 1998. Burling-
ton moved for judgment as a matter of law following the presentation
of Shipp's case and at the conclusion of its evidence. The court
denied the motions. The jury returned a verdict finding that Shipp had
a reasonable expectation of insurance coverage for liability arising out
of the assault and battery that occurred in the Tavern. Burlington filed
a timely motion pursuant to Federal Rule of Civil Procedure 50(b) for
judgment as a matter of law or, in the alternative, for a new trial,
which the court denied. Burlington's Rule 50(b) motion raised the fol-
lowing arguments, which are now before this court on appeal: (1) the
district court erred in permitting Shipp to rely on the doctrine of rea-
sonable expectations to establish coverage when the insurance policy
clearly and unambiguously excluded coverage for the type of loss
claimed by Shipp; (2) the district court abused its discretion in deny-
ing Burlington's request to call Bennett as a witness; and (3) the dis-

                     4
trict court erred in ruling that Bennett was Burlington's agent as a
matter of law.

II

We first address Burlington's argument that the district court erred
in allowing the jury to find a reasonable expectation of insurance cov-
erage when the court had already ruled that the policy exclusion for
assault and battery claims was clear and unambiguous. Burlington
contends that the doctrine of reasonable expectations is a principle of
construction that applies only when the insurance contract is ambigu-
ous. We review the district court's denial of Burlington's Rule 50(b)
motion for judgment as a matter of law de novo, viewing the evidence
in the light most favorable to the prevailing party and drawing all rea-
sonable inferences in her favor. Konkel v. Bob Evans Farms, Inc., 165
F.3d 275, 279 (4th Cir.), cert. denied, 120 S. Ct. 184 (1999).

In West Virginia, "the doctrine of reasonable expectations is that
the objectively reasonable expectations of applicants and intended
beneficiaries regarding the terms of insurance contracts will be hon-
ored even though painstaking study of the policy provisions would
have negated those expectations." National Mut. Ins. Co. v. McMahon
& Sons, Inc., 356 S.E.2d 488, 495 (W. Va. 1987). The doctrine of rea-
sonable expectations places the burden on the insurer to communicate
coverage and exclusions of a policy to the insured accurately and
clearly. See id. at 496 ("An insurer wishing to avoid liability on a pol-
icy 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."
(citations omitted)). Generally, an insured cannot have an objectively
reasonable expectation of coverage when his policy clearly and unam-
biguously excludes coverage. See Soliva v. Shand, Morahan & Co.,
345 S.E.2d 33, 36 (W. Va. 1986). The doctrine of reasonable expecta-
tions, therefore, is ordinarily limited to those instances in which the
policy language is ambiguous. McMahon, 356 S.E.2d at 496. The
West Virginia Supreme Court of Appeals, however, has extended the
doctrine beyond circumstances involving ambiguous policy language.

An insured may have a reasonable expectation of insurance cover-
age when the policy provision on which a denial of coverage is based,

                     5
although clear and unambiguous, was never communicated to the
insured. The West Virginia Supreme Court of Appeals refused to
apply an uncommunicated policy exclusion in Romano v. New
England Mutual Life Insurance Co., 362 S.E.2d 334 (W. Va. 1987).
In Romano, Mr. Romano enrolled in a group life insurance plan
through a local insurance agent. The promotional materials provided
to Mr. Romano stated that "[a]ll employees who work 30 hours or
more a week are covered under the program" and that the policy was
effective as of July 1, 1978. Id. at 336. There was no mention of pol-
icy conditions or additional requirements for eligibility.

Mr. Romano was hospitalized for a myocardial infarction on June
26, 1978, and died on July 2, 1978, one day after the master policy
became effective. Mr. Romano was not provided with a copy of the
master policy or a certificate of insurance prior to his death. The
insurer told Mr. Romano's son that coverage was unavailable for Mr.
Romano under the group life policy because he was not "actively at
work" on July 1, 1978, a condition precedent to coverage under the
policy. Mr. Romano's son later discovered that the"actively at work"
condition was not included in the materials given to his father when
he purchased the policy, and sued for coverage. The court held that
the "actively at work" condition stated in the master policy would not
bar coverage. The court stated:

          The only eligibility requirement to which Mr. Romano was
          specifically alerted by the materials was full-time employ-
          ment status. We believe the materials issued by New
          England were such as to lead Mr. Romano to a reasonable
          and honest belief that he was covered under the policy. It
          would, we believe, be inequitable to permit New England to
          enforce the more onerous policy condition where previous
          communications with the insured suggested its nonexis-
          tence.

Id. at 340.

The court reached a similar conclusion in Keller v. First National
Bank, 403 S.E.2d 424 (W. Va. 1991). In Keller, Mrs. Keller pur-
chased credit life insurance in connection with a loan she obtained
from First National Bank. The note for the loan and the credit life

                    6
insurance were subsequently renewed by the bank. Mrs. Keller ini-
tialed the renewal note to accept the insurance coverage. The note
contained a $150 charge for the insurance. Mrs. Keller's health had
deteriorated since the initial policy period, however, and the credit life
insurance was renewed in error. Although the bank then canceled the
charge for the insurance, the bank did not notify the Kellers in writing
that the life insurance would not be issued or that the insurance charge
had been deducted from the principal financed. The monthly pay-
ments required by the renewal note remained the same, and the Kel-
lers were not given a new renewal note.

Mrs. Keller died during the term of the renewal note. The insurer
refused to pay any insurance benefits, claiming that no insurance was
in effect when Mrs. Keller died. The court disagreed, holding that:

          Most people expect insurance once they pay the premium,
          but in the present case, even though the premium was paid,
          insurance was denied. In order to eliminate an insured's
          doubt about coverage, we find that once an insurer creates
          a reasonable expectation of insurance coverage, the insurer
          must give the coverage or promptly notify the insured of the
          denial. . . . Under this rule, once an insurer creates a reason-
          able expectation of insurance coverage, the insured is
          assured of coverage or a prompt notice of denial, which
          would give the insured the opportunity to seek other ways
          of limiting the risk.

Id. at 427.1

In this case, Shipp inquired as to the scope of her coverage when
she applied for the Burlington policy. Bennett told her she was cov-
ered for everything except theft and drunk driving. After the incident
in which Morris was injured, Shipp went to Bennett to make sure she
was covered, and Bennett told her not to worry because the incident
was covered by her policy. Shipp's policy containing the assault and
battery exclusion was generated more than three weeks after Morris
_________________________________________________________________
1 Burlington's reliance on Robertson v. Fowler, 475 S.E.2d 116 (W.
Va. 1996), is misplaced. Robertson did not involve an uncommunicated
exclusion or condition of coverage and is therefore inapposite.

                     7
was injured in the Tavern, and the policy was never sent to Shipp.
Bennett's representations to Shipp were sufficient to create a reason-
able expectation of coverage. Romano and Keller make clear that
Shipp's reasonable expectation of coverage could not be negated as
a matter of law by a clear and unambiguous policy exclusion that was
never communicated to her.2 Thus, we find that the district court did
not err in permitting Shipp to rely on the doctrine of reasonable
expectations to establish coverage for Morris' claim against her.
_________________________________________________________________

2 The dissent's conclusion that Shipp could not, as a matter of law,
have a reasonable expectation of coverage is based on the premise that
the assault and battery exclusion is a so-called"standard" policy exclu-
sion. The evidence before the jury, however, was conflicting on precisely
that point. Prior to trial, the court denied Shipp's motion in limine to pre-
vent Burlington from introducing testimony about the exclusion. Joint
App. at 135, 432. The colloquy indicated that both parties, and the court,
were treating the matter as one of evidence for the jury to consider in
resolving the reasonable expectations issue. At trial, the testimony of wit-
nesses for both sides touched on the issue, with it being uncontradicted
that Shipp's immediately preceding standard line policy from American
States did not exclude assault and battery coverage. Joint App. at 310-17.
Thus, while it might be Burlington's "standard" exclusion, and indeed
standard in many excess line policies, it was possible for the jury to have
found that the exclusion was not "standard" in Shipp's experience or in
the insurance industry as a whole.

The dissent also suggests that affirmance in this case is "judicially irre-
sponsible" because we are creating insurance coverage based on general
assurances that were contrary to the terms of the written policy. It must
be remembered, however, that we are only upholding the jury's determi-
nation that Shipp had a reasonable expectation of coverage, and not
deciding as a matter of law that there will always be coverage under the
circumstances presented here. Based on all of the evidence before it, the
jury concluded, as a matter of fact, that Shipp had a reasonable expecta-
tion of coverage for the incident at the Tavern despite the assault and bat-
tery exclusion in the undelivered policy. Neither the trial jury, nor this
court, had before it any issue with regard to other"standard" exclusions
for nuclear disaster or pollution damage. Under the circumstances of this
case, it was for the jury and not the court to decide whether Shipp was
entitled to coverage.

                     8
III

Burlington next argues that the district court erred in barring Bur-
lington from calling Bennett as a trial witness. Burlington did not list
Bennett in the joint pre-trial order, but sought to add him as a witness
six days before trial after the court ruled that Shipp could testify about
statements Bennett made to her regarding policy coverage and exclu-
sions.

Federal Rule of Civil Procedure 26(a)(3)(A) requires that a party
disclose to other parties the name, address and telephone number of
each witness it (1) expects to call at trial and (2) may call if the need
arises. Unless otherwise directed by the court, this disclosure must be
made at least thirty days before trial. Id. A party who without substan-
tial justification fails to disclose information in compliance with Rule
26(a) "shall not, unless such failure is harmless, be permitted to use
as evidence at a trial, at a hearing, or on a motion any witness or
information not so disclosed." Fed. R. Civ. P. 37(c)(1). "The determi-
nation of whether a Rule 26(a) violation is [substantially] justified or
harmless is entrusted to the broad discretion of the district court."
Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353,
1363 (7th Cir. 1996); see Adalman v. Baker, Watts & Co., 807 F.2d
359, 369 (4th Cir. 1986). In exercising that discretion, a district court
is guided by the following factors: (1) the surprise to the party against
whom the witness was to have testified; (2) the ability of the party to
cure that surprise; (3) the extent to which allowing the testimony
would disrupt the trial; (4) the explanation for the party's failure to
name the witness before trial; and (5) the importance of the testimony.
Adalman, 807 F.2d at 369; see also Woodworker's Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (list-
ing similar factors to be considered by trial court under Rule
37(c)(1)); United States v. $9,041,598.68, 163 F.3d 238, 252 (5th Cir.
1998) (same).

Burlington knew as early as September 1996 that Shipp was rely-
ing on Bennett's representations about policy exclusions to establish
her right to coverage for Morris' claim, and thus knew of Bennett's
importance as a witness. Burlington claims that at the time the joint
pre-trial order was submitted to the court, it had information that Ben-
nett was incompetent or that taking his deposition would pose a health

                     9
risk. Through additional investigation conducted after the joint pre-
trial order was filed, Burlington learned that Bennett was able to
understand and answer "yes or no" questions, and remembered issu-
ing a policy to Shipp and explaining the policy exclusions to her. Bur-
lington then sought to add Bennett as a witness when the court denied
Burlington's motion in limine and ruled that Shipp could testify about
statements Bennett made to her regarding policy exclusions. Burling-
ton does not explain, however, why it could not have listed Bennett
as a witness when the pre-trial order was filed and simply not called
him as a witness if he was later determined to be incompetent. Fur-
thermore, hoping that Bennett's testimony would not be needed
because the court would grant Burlington's motion in limine to pre-
clude testimony about statements Bennett made to Shipp is not a suf-
ficient explanation for failing to name a witness before trial. Thus,
there was not substantial justification for Burlington's failure to list
Bennett as a witness, and Burlington could call Bennett only if the
district court found that the failure to disclose was harmless.

At the pre-trial conference, the district judge discussed the potential
impact of adding Bennett as a witness less than a week before trial:

          The case now becomes almost a trial within a trial about his
          competency, taking the deposition, perhaps even throwing it
          back to the Shipp side of the case to run and scramble and
          get somebody to say whether or not he was medically able
          to give opinions and just all of the other things I know about
          a stroke victim. That is the big problem here. And then how
          do you weigh the type of testimony that would have to be
          drawn from him by giving him these, we are going to have
          to admit, fairly technical and perhaps even legal type ques-
          tions and having him answer in the yes or no.

Thus, the district court found that permitting Bennett to testify would
have unduly disrupted the trial, as well as Shipp's pre-trial prepara-
tion, while yielding testimony that would be marginally useful to the
finder of fact. Based on these findings, we conclude that the district
court did not abuse its discretion in refusing to allow Burlington to
add Bennett as a witness six days before trial. 3
_________________________________________________________________
3 We note that the district court also had the discretion to deny Burling-
ton's request to add Bennett as a witness because of the threat to his

                     10
IV

Burlington's final argument is that the district court erred in ruling
that Bennett was Burlington's agent as a matter of law. The district
court's ruling was based on West Virginia Code § 33-12-23, which
provides:

          Any person who shall solicit within this State an application
          for insurance shall, in any controversy between the insured
          or his beneficiary and the insurer issuing any policy upon
          such application, be regarded as the agent of the insurer and
          not the agent of the insured.

W. VA. CODE § 33-12-23 (1996). Burlington does not dispute that
Bennett solicited an application for insurance from Shipp. Burlington
contends, however, that § 33-12-23 was not intended to apply to Ben-
nett and Burlington in this case.

Burlington argues that to understand the intended scope of § 33-12-
23, it must be read in conjunction with accompanying code sections
relating to insurance agents, brokers, solicitors and excess line carri-
ers. Relying on other code sections, Burlington argues that an insur-
ance agent must be appointed as an agent by an insurer to be
"regarded as the agent of the insurer" under§ 33-12-23.4 Because
_________________________________________________________________
health. The court referred to information provided by Bennett's doctor
that Bennett had "apparently significant loss of speech [and] right side
loss of motor functions," and that interviewing him or taking his deposi-
tion "would cause an emotional state that would probably put him at risk
of medical problems."
4 Burlington relies principally on West Virginia Code § 33-12-19,
which provides, in pertinent part:

          (a) An agent may not accept any risk, place any insurance or
          issue any policy except with an insurer licensed in this state and
          for which insurer such agent has been appointed and licensed.

          (b) An agent may not accept any contract of insurance from any
          broker not licensed in this state.

          (c) An agent may not employ or accept services of any solicitor
          not duly appointed and licensed as solicitor for such agent.

                     11
Bennett was never appointed as Burlington's agent, Burlington claims
that Bennett cannot be considered Burlington's agent under § 33-12-
23.

Burlington's argument is based on the principle of statutory con-
struction under which "statutes [that] relate to the same subject matter
should be read and applied together, i.e., in pari materia, so that the
Legislature's intention can be gathered from the whole of the enact-
ments." Smith v. State Workmen's Compensation Comm'r, 219 S.E.2d
361, 365 (W. Va. 1975). The rule of in pari materia, however, is
applied only to resolve an ambiguity in a statute. Kimes v. Bechtold,
342 S.E.2d 147, 150 (W. Va. 1986) ("This in pari materia rule of stat-
utory construction applies, of course, only when the particular statute
is ambiguous."). Section 33-12-23 is clear and unambiguous, Knapp
v. Independence Life & Acc. Ins. Co., 118 S.E.2d 631, 635 (W. Va.
1961), and provides that "any person who shall solicit . . . an applica-
tion for insurance shall . . . be regarded as the agent of the insurer,"
W. Va. Code § 33-12-23 (emphasis added). It is undisputed that Ben-
nett solicited an application from Shipp for a Burlington insurance
policy. Nothing more is required to bring Bennett and Burlington
within the operation of § 33-12-23. See Knapp, 118 S.E.2d at 635 ("It
is obvious from the clear and unambiguous language of the statute
that the solicitor of the application for insurance should be regarded
for all purposes as the agent of the insurer in any controversy between
it and the beneficiary."); see also Smithson v. United States Fidelity
& Guar. Co., 411 S.E.2d 850, 858-59 (W. Va. 1991). Thus, we find
no error in the district court's application of the statute in this case.
_________________________________________________________________

         (d) An agent may not solicit, market, sell or transact any busi-
         ness of any kind on behalf of any insurer until after the agent has
         been appointed as agent for that insurer pursuant to the provi-
         sions of this article and such appointment has been approved by
         the commissioner of insurance.

         ...

Burlington also cites sections 33-12-10 and 33-12-13, which relate to
excess line insurance and the licensing of excess line brokers.

                    12
V

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

NIEMEYER, Circuit Judge, dissenting:

The majority as well as the parties agree in this case that Mildred
Shipp's insurance policy contained a provision that excluded cover-
age for her liability arising from assaults among patrons of her tavern.
This was a standard assault-and-battery exclusion included in the
form of the policy. Yet the majority affirms coverage based on the
general statements made to Shipp by her insurance agent that her pol-
icy from Burlington Insurance Company covered everything except
theft and liability arising out of the drunk driving of a patron. The
majority thus would leave standing a finding that impermissibly con-
strues the agent's statement that everything was covered to provide
Shipp with coverage for assaults -- and presumably anything else --
notwithstanding the policy's language, because Shipp could have a
reasonable expectation of coverage for "everything."

Burlington's policy has, in addition to the standard exclusion for
assault and battery, other exclusions such as those for nuclear disaster,
for liability assumed by contract, for worker's compensation risks, for
pollution damage, and others. If the agent's representation that every-
thing was covered includes all conceivable risks, the premiums would
have to exceed the value of Shipp's business itself.

To avoid the absurdity of such a position, Shipp argues in her brief
that she and the insurance agent understood coverage to be that of "a
general liability policy." Appellee's brief at 2. But this argument fails
to provide the basis for distinguishing nuclear-disaster and pollution-
damage exclusions -- exclusions which Shipp's counsel agreed, at
oral argument, would apply -- from the assault-and-battery exclusion.
Each was a standard exclusion to "a general liability policy."

It is, I respectfully suggest, judicially irresponsible to leave stand-
ing a finding of insurance coverage on so generalized an assurance as

                     13
that which was provided here. It is even more remarkable when one
recognizes that the insurance agent who made the general statements
about coverage was an independent agent and not an employee of
Burlington Insurance Company. I would conclude that we must con-
strue the policy's coverage in accordance with its written terms and
that general and unspecified assurances by an independent agent can-
not, as a matter of law, modify those specific written terms, even
under a liberal application of West Virginia's doctrine of reasonable
expectations. Therefore, I would reverse.

                    14
