DAVIS, Justice:
This case involves an appeal by West Virginia Employers' Mutual Insurance Company d/b/a BrickStreet Mutual Insurance Company (hereinafter referred to as "BrickStreet"), the petitioner herein and defendant below, from an "Agreed Judgment Order" entered by the Circuit Court of Jefferson County. The "Agreed Judgment Order" awarded to Summit Point Raceway Associates, Inc. (hereinafter referred to as "Summit Point"), the respondent herein and plaintiff below, the amount of $1,201,080.30
Summit Point is a West Virginia corporation that, in 2007, was insured under a "Workers Compensation and Employers Liability Insurance Policy" issued by BrickStreet.
Thereafter, in July 2009, Summit Point filed a complaint against BrickStreet alleging claims of breach of contract, common law bad faith, statutory violations, and unfair trade and claim practices. During discovery, Summit Point filed a motion seeking partial summary judgment based upon its assertion that BrickStreet had a statutory obligation to make a "commercially reasonable" offer of coverage for "deliberate intent" claims and actions. In addition, Summit Point asserted that language in the policy issued to it by BrickStreet that purported to exclude coverage for deliberate intent claims or actions was ambiguous. Consequently, Summit Point contended that BrickStreet was required to provide it with coverage for Mr. Gregory's deliberate intent lawsuit. By order entered May 4, 2010, the circuit court granted Summit Point's motion for partial summary judgment. By subsequent "Agreed Judgment Order" entered June 29, 2010, the circuit court awarded damages to Summit Point in the amount of $1,201,080.30, with interest accruing from May 15, 2010, until the judgment was paid in full. It is from this "Agreed Judgment Order" that BrickStreet now appeals.
In this appeal we are asked to determine whether the circuit court erred in granting partial summary judgment in favor of Summit Point. Thus, we are guided by the well-established rule 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). Furthermore, our case law has made clear
On appeal to this Court, BrickStreet argues that the circuit court erred in granting partial summary judgment to Summit Point by concluding that: (1) BrickStreet's obligations with respect to deliberate intent coverage under W. Va.Code § 23-4C-6 and Syllabus point 1 of Bias v. Nationwide Mutual Insurance Co., 179 W.Va. 125, 365 S.E.2d 789 (1987), superseded by statute as recognized in Luikart v. Valley Brook Concrete & Supply, Inc., 216 W.Va. 748, 613 S.E.2d 896 (2005) (per curiam), mandate an express offer of coverage; and (2) the policy language at issue was ambiguous.
In granting partial summary judgment, the circuit court concluded that W. Va.Code § 23-4C-6 and this Court's decision in Bias v. Nationwide Mutual Insurance Co., 179 W.Va. 125, 365 S.E.2d 789, required BrickStreet to expressly offer deliberate intent coverage in a commercially reasonable manner and to obtain a knowing and informed waiver from any insured who did not purchase the coverage. The circuit court further concluded that BrickStreet failed to make such an express offer and to obtain a knowing and informed waiver. Therefore, the circuit court concluded that the coverage was included in Summit Point's policy by operation of law.
BrickStreet argues that its obligations under W. Va.Code § 23-4C-6 were identical to the Excess Employer Liability Fund
Summit Point argues in response that the circuit court correctly found that BrickStreet's failure to make a commercially reasonable offer of deliberate intent coverage resulted in that coverage's inclusion in Summit Point's policy as a matter of law. Summit Point submits that the language of W. Va.Code § 23-4C-6, specifically the phrase "shall offer," requires BrickStreet to make a specific, commercially reasonable offer of deliberate intent coverage under this Court's holding in Syllabus point 1 of Bias.
Furthermore, Summit Point contends that BrickStreet is a private company with statutorily mandated obligations that exceed what was required of the WCC, and BrickStreet's argument to the contrary must fail because it ignores the plain language of W. Va.Code § 23-4C-6. Reasoning that BrickStreet was a newly created private entity with a near monopoly, Summit Point asserts that BrickStreet had no right to ignore the plain mandate of the Bias opinion. According to Summit Point, Bias applies to BrickStreet as it applies to every other insurer and every other statutorily mandated offer of insurance insofar as Syllabus point 1 of Bias was stated in general terms and was not limited to uninsured or underinsured motorist coverage, even though such coverage was the context in which the Bias case was decided.
We begin our analysis with a review of Syllabus point 1 of Bias. As noted by Summit Point, Syllabus point 1 of Bias is stated in general terms and does not limit its application to uninsured or underinsured motorist coverage: "[w]here an offer of optional coverage is required by statute, the insurer has the burden of proving that an effective offer was made, and that any rejection of said offer by the insured was knowing and informed." 179 W.Va. 125, 365 S.E.2d 789. Under the express terms of Syllabus point 1 of Bias, the obligations set out therein arise only "[w]here an offer of optional coverage is required by statute." Id. Thus, in order to resolve the issue raised in this appeal, we must determine whether the relevant statute, W. Va.Code § 23-4C-6, requires "an offer of optional coverage." Id.
When this Court is asked to determine the meaning of a statute, we must be mindful that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). Accordingly, we must examine W. Va.Code § 23-4C-6 to determine whether the Legislature intended to require the type of offer set out by this Court in Bias. W. Va.Code § 23-4C-6 states:
Before attempting to ascertain the legislative intent reflected in the foregoing statute, we note that "[j]udicial interpretation of a statute is warranted only if the statute is ambiguous...." Syl. pt. 1, in part, Ohio Cnty. Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). "A statute that is ambiguous must be construed before it can be
The first sentence of W. Va.Code § 23-4C-6 is straightforward in transferring the assets, obligations and liabilities resulting from article 4C to Brickstreet upon termination of the WCC. As we noted previously, article 4C of chapter 23 is entitled "Employers' Excess Liability Fund" and addresses deliberate intent benefits. See Powroznik v. C. & W. Coal Co., 191 W.Va. 293, 294, 445 S.E.2d 234, 235 (1994) (commenting that "the Employers' Excess Liability Fund (EELF) created under W. Va.Code, 23-4C-1, et seq., ... was designed to protect employers from excess damages arising out of deliberate intent cases").
Although the language of the first sentence of W. Va.Code § 23-4C-6 is plain, we find that an ambiguity arises in the second sentence, which states: "[t]hereafter, the company [BrickStreet] shall offer insurance to provide for the benefits required by this article until at least the thirtieth day of June, two thousand eight." (Emphasis added). As demonstrated by the differing interpretations given this phrase by the parties to this appeal, its intended meaning is not abundantly clear.
Notably, the phrase "shall offer" is not defined in chapter 23 of the West Virginia Code. "In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meaning." Syl. pt. 3, in part, Ohio Cellular RSA Ltd. P'ship v. Board of Pub. Works of West Virginia, 198 W.Va. 416, 481 S.E.2d 722 (1996) (internal quotations and citations omitted). Accord Coordinating Council for Indep. Living, Inc. v. Palmer, 209 W.Va. 274, 281, 546 S.E.2d 454, 461 (2001). Thus, we consider the common meaning of the terms "shall" and "offer."
The meaning of the term "shall" is settled in our law:
Syl. pt. 1, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997).
Ascertaining the Legislature's intended meaning of the term "offer" is more difficult. This is so because the dictionary definitions of the term support the interpretations tendered by both BrickStreet and Summit Point. Brickstreet contends that the term "offer" should be read to mean "make available." Brickstreet's view represents a "common, ordinary and accepted" use of the term. Syl. pt. 3, in part, Ohio Cellular RSA Ltd. P'ship v. Board of Pub. Works of West Virginia, 198 W.Va. 416, 481 S.E.2d 722. For example, one dictionary definition of the term includes "to make available: AFFORD; esp: to place (merchandise) on sale." Merriam-Webster's Collegiate Dictionary 861 (11th ed.2005). See also Random House Webster's Unabridged Dictionary 1344 (2d ed.1998) (defining "offer," in part, as "to present for sale" and "the condition of being offered; an offer for sale"); Webster's Third New International Dictionary 1566 (1970) (providing definition of "offer" that includes "to make available or accessible: SUPPLY, AFFORD ... esp: to place (merchandise) on sale"). These same dictionaries, however, provide alternative definitions that similarly support the circuit court's conclusion, with which Summit Point agrees, that BrickStreet was required to make an express offer of the kind that would trigger application of this Court's holding in Bias. See Merriam-Webster's Collegiate Dictionary 861 (11th ed.2005) (providing definition of the term "offer" that includes "to present for acceptance or rejection"); Random House Webster's Unabridged Dictionary 1344 (2d ed.1998) (including in definition of the term "offer," "to present for acceptance or rejection"); Webster's Third New International Dictionary 1566 (1970) (defining "offer," in part, as "to present for acceptance or rejection: hold out"). An examination of the common usage of the term "offer," therefore, does not clarify the type of "offer" the Legislature intended to require under W. Va.Code § 23-4C-6.
Because our consideration of common usage has not given direct guidance as to how the Legislature intended W. Va.Code § 23-4C-6 to be applied, i.e., whether the Legislature intended to impose a Bias-type offer, we find it useful to compare the statute at issue in Bias with W. Va.Code § 23-4C-6.
The Court in Bias examined a version of W. Va.Code § 33-6-31(b), which pertains to uninsured and underinsured motorist coverage, that was enacted in 1982. A review of this statute demonstrates that, unlike the mandate of W. Va.Code § 23-4C-6 that BrickStreet "shall offer" deliberate intent coverage, W. Va.Code § 33-6-31(b) (1982) (Repl.Vol.1988) contains a more detailed directive to insurers with regard to the coverages that they were therein being required to provide, and the manner in which their insureds were to be advised of such coverages.
W. Va.Code § 33-6-31(b). It was in the context of these fairly detailed requirements that the Bias Court rendered its holding that "[w]here an offer of optional coverage is required by statute, the insurer has the burden of proving that an effective offer was made, and that any rejection of said offer by the insured was knowing and informed." Syl. pt. 1, Bias v. Nationwide Mut. Ins. Co., 179 W.Va. 125, 365 S.E.2d 789.
What we find most enlightening, however, is the fact that, following this Court's holding in Bias, the Legislature adopted W. Va.Code § 33-6-31d (1993) (Repl.Vol.2011) and, in an apparent endorsement of the Bias opinion, provided even more detailed instructions with respect to how optional uninsured and underinsured coverages are to be offered and further provided that "a form prepared and made available by the Insurance Commissioner" be used for this purpose.
Turning to the statute presently at issue, we note that W. Va.Code § 23-4C-6 was enacted in 2005, which was several years after Bias and after the Legislature's enactment of W. Va.Code § 33-6-31d. Because the Legislature chose not to include the same detailed guidance in W. Va.Code § 23-4C-6 as it previously had included in W. Va.Code § 33-6-31d, we must assume that it did not intend to require the same type of express offer of optional coverage. Cf. Syl. pt. 5, Pullano v. City of Bluefield, 176 W.Va. 198, 342 S.E.2d 164 (1986) ("`The Legislature, when it enacts legislation, is presumed to know its prior enactments.' Syllabus Point 12, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953)."); Syl. pt. 2, Butler v. Rutledge, 174 W.Va. 752, 329 S.E.2d 118 (1985) ("`The Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, the court must presume that a change in the law was intended.' Syl. pt. 2, Hall v. Baylous, 109 W.Va. 1, 153 S.E. 293 (1930).").
Based upon the foregoing, we now hold that, in its enactment of W. Va.Code § 23-4C-6 (2005) (Repl.Vol.2010), the Legislature did not impose upon the West Virginia Employers' Mutual Insurance Company d/b/a BrickStreet Mutual Insurance Company, the duty to make to its insureds an express, commercially reasonable offer of coverage for deliberate intent actions, as set out in W. Va.Code § 23-4C-1 et seq., or to obtain a voluntary waiver of such coverage. Instead, the Legislature merely required that such coverage be made available to insureds upon their voluntary request.
Applying this holding to the instant matter, we find that BrickStreet was not required to affirmatively make a commercially reasonable offer of deliberate intent coverage to Summit Point or to obtain a waiver of the same. Instead, BrickStreet merely had to make such coverage available to its insureds. BrickStreet fulfilled this duty by sending two letters to its customers. In the first letter, dated January 2, 2006, BrickStreet explained to its customers that,
In a subsequent letter, dated April 12, 2006, BrickStreet again explained that
Based upon the foregoing, we find that BrickStreet met its obligation under W. Va. Code § 23-4C-6 to make deliberate intent coverage, otherwise identified as WV Broad Form Employers Liability coverage, available to Summit Point. Accordingly, the circuit court erred in granting partial summary judgment in favor of Summit Point on this ground.
An alternate ground relied upon by the circuit court to grant partial summary judgment in favor of Summit Point was that, due to an ambiguity in the policy issued to Summit Point, deliberate intent coverage was included in the policy under the doctrine of reasonable expectations.
BrickStreet argues that the plain meaning of the insurance policy demonstrates that coverage does not apply to any deliberate intent claims or actions. Furthermore, BrickStreet notes that the West Virginia Intentional Injury Exclusion Endorsement included with the policy plainly excluded deliberate intent coverage.
Summit Point argues in reply that the circuit court correctly found that deliberate intent coverage was included in Summit Point's policy as a result of ambiguities in the policy, because ambiguities are always construed against the insurer. Furthermore, the ambiguity permitted Summit Point to reasonably expect deliberate intent coverage. Summit Point additionally argues that the policy exclusion merely referred to W. Va. Code § 23-4-2 without identifying the specific subsection. Because the exclusion did not include the five elements of W. Va.Code § 23-4-2(d)(2)(ii), Summit Point argues that it was insufficient, ambiguous, and, because the language referred to "willful," "intentional," "malicious," and "deliberate" acts, it allowed an employer to believe that it excluded coverage only for causes of action arising under W. Va.Code § 23-4-2(d)(2)(i).
It is well established that "`[w]here 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.' Syllabus, Keffer v. Prudential Ins. Co., 153 W.Va. 813, 172 S.E.2d 714 (1970)." Syl. pt. 2, West Virginia Fire & Cas. Co. v. Stanley, 216 W.Va. 40, 602 S.E.2d 483 (2004). In other words, "[l]anguage in an insurance policy should be given its plain, ordinary meaning." Horace Mann Ins. Co. v. Adkins, 215 W.Va. 297, 301, 599 S.E.2d 720, 724 (2004) (internal quotations and citation omitted).
We have reviewed the policy at issue and conclude that, pursuant to the language contained therein, there is plainly no coverage for deliberate intent actions. First, we note that "Part One" of the policy, which provides workers' compensation insurance, is clear that it does not provide coverage for deliberate intent actions by stating:
In addition, part two of the policy expressly states that "[t]his employers liability insurance applies to bodily injury by accident," and specifies that:
(Emphasis added). Nothing in the plain language quoted above leads to a reasonable conclusion that deliberate intent coverage is included in this policy. Finally, we note that the policy includes a "West Virginia Intentional Injury Exclusion Endorsement" that states, in relevant part:
Syl. pt. 6, Webster Cnty. Solid Waste Auth. v. Brackenrich & Assoc., Inc., 217 W.Va. 304, 306, 617 S.E.2d 851, 853 (2005). The above-quoted 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 arising from either W. Va.Code § 23-4-2(d)(2)(i)
For the foregoing reasons, we conclude that the circuit court erred in concluding that the policy at issue was ambiguous and therefore resulted in deliberate intent coverage being included in the policy under the doctrine of reasonable expectations. Because the policy language is plain, and the plainly worded exclusion of deliberate intent coverage was conspicuous, plain, clear, and obvious, the policy simply did not provide coverage for deliberate intent liability, and the circuit court's grant of partial summary judgment on this ground was in error.
For the reasons stated in the body of this opinion, we reverse the order of the Circuit
Reversed.
Nevertheless, Summit Point observes that this Court has stated that the "[u]se of Rule 54(b), ... should not be routine and should be reserved only for the `"infrequent harsh case[.]"' Province [v. Province], 196 W.Va. [473] 479, 473 S.E.2d [894] 900 [(1996)] (quoting Fed.R.Civ.P. 54 advisory committee's note.)." Hubbard v. State Farm Indem. Co., 213 W.Va. 542, 550 n. 16, 584 S.E.2d 176, 184 n. 16 (2003). Given that the circuit court entered a judgment order awarding damages to Summit Point with respect to the claims for which it was granted partial summary judgment, the order is final as to those issues. Consequently, we find that this appeal meets the criteria set out in W. Va. R. Civ. P. 54(b) and Syllabus point 2 of Durm v. Heck's Inc.
W. Va.Code § 23-4C-2(a) (emphasis added). Similarly, W. Va.Code § 23-4C-4 (2003) (Repl. Vol.2010) states, in relevant part:
(Emphasis added).
(Emphasis added).
Syl. pt. 8, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), abrogated on other grounds by Potesta v. United States Fid. & Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998).