DAVIS, Justice:
The petitioner herein and defendant below, the Travelers Indemnity Company ("Travelers"), appeals from an order entered March 5, 2014, by the Circuit Court of Morgan County. By that order, the circuit court denied Travelers' alternative post-trial motions for judgment as a matter of law or a new trial following the court's entry of a jury verdict against Travelers, and in favor of the respondent herein and plaintiff below, U.S. Silica Company ("U.S. Silica"), in the amount of $8,037,745. By its March 5, 2014, order, the circuit court also awarded U.S. Silica attorney's fees and prejudgment interest. On appeal to this Court, Travelers raises numerous assignments of error. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we reverse the decision of the Morgan County Circuit Court and remand this case for entry of an order granting Travelers' post-trial motion for judgment as a matter of law. In summary, we conclude that the circuit court erred by not finding that the late notice provided by U.S. Silica precluded coverage under the subject Travelers policies.
U.S. Silica mines and processes silica sand. During its history, U.S. Silica has been owned and operated by various entities: Pittsburgh Glass Sand Company ("PGS"), International Telephone and Telegraph Corporation ("ITT"), Pacific Coast Resources Company ("Pacific Coast"), and U.S. Borax, Incorporated ("Borax"). Its current name, U.S. Silica, was adopted in 1986.
As a producer of silica sand, U.S. Silica, as well as its predecessors, has been named as a defendant in numerous silica claims seeking damages for injuries allegedly caused by exposure to silica sand. The first silica claims were filed against U.S. Silica when it was known as PGS in 1975. Thereafter, when ITT sold the company to Pacific Coast on September 12, 1985, ITT provided an indemnity agreement to indemnify Pacific Coast for these, and other, silica claims. Under the terms of the indemnity agreement, ITT agreed to (1) reimburse 100% of the defense and settlement costs for silica claims with exposure entirely before September 12, 1985, and (2) reimburse a portion of the defense and settlement costs for silica claims with exposure both before and after September 12, 1985. For silica claims with exposure entirely after September 12, 1985, ITT provided no indemnity. On September 12, 1995, ITT's indemnity agreement was assigned to U.S. Silica. Although the original indemnity agreement expired on this date, it was extended for an additional ten years, with a new expiration date of September 12, 2005. Throughout this period, numerous silica claims were filed in which U.S. Silica, and/or its predecessors, was named as a defendant. From the record in this case, it appears that U.S. Silica incurred the majority of its unreimbursed
Upon the expiration of the ITT indemnity agreement, U.S. Silica reviewed its policies of insurance to determine whether any coverage existed to pay its unreimbursed silica claims costs. Although due diligence searches had been performed at various points during U.S. Silica's history in conjunction with its ownership changes, three policies of comprehensive general liability insurance purchased by PGS from the Travelers Insurance Company and the Travelers Indemnity Company were not discovered in U.S. Silica's insurance files until September 2005. The first policy was in effect from April 1, 1949, until April 1, 1952; the second policy period ran from April 1, 1952, until April 1, 1955; and the third policy was in effect from April 1, 1955, until April 1, 1958. Upon discovery of these policies, U.S. Silica sent Travelers a letter on September 20, 2005, informing Travelers of the silica claims and requesting coverage under these Travelers policies for out-of-pocket expenses. On November 22, 2005, U.S. Silica sent Travelers another letter; in this correspondence, U.S. Silica sought reimbursement of its pre-September 12, 2005, settlement and defense costs and requested a defense for newly-filed silica claims. Having received no response, U.S. Silica filed the instant declaratory judgment action against Travelers
As a result of similar litigation pending in New York and California, the instant proceeding was stayed. During this time, however, U.S. Silica provided Travelers with claims data regarding the silica claims for which it had requested coverage and sent Travelers copies of complaints in newly filed silica claims. Continued requests for coverage ensued, and, on September 24, 2008, U.S. Silica sent Travelers copies of the complaints filed in the hundreds of silica claims for which it seeks coverage in the case sub judice. On August 3, 2010, Travelers sent U.S. Silica a reservation of rights letter denying coverage and a defense for all of the pre-2010 silica claims citing numerous grounds, including questioning the authenticity of the insurance policies and U.S. Silica's status as a successor to PGS. In this letter, Travelers also cited U.S. Silica's failure to comply with the policies' assistance and cooperation clause and notice provision.
In April 2012, the circuit court lifted the stay, and, in August 2013, the circuit court denied both parties' motions for summary judgment. A jury trial was held in September 2013, resulting in a jury verdict in favor of U.S. Silica. As noted in the circuit court's October 15, 2013, "Order of Judgment," the jury found as follows:
Following this adverse judgment, Travelers filed a motion to alter or amend the judgment or for a new trial. By order entered March 5, 2014, the circuit court denied Travelers' post-trial motions, granted U.S. Silica's request for attorney's fees and expenses, and awarded U.S. Silica prejudgment interest on the jury's verdict and its award of attorney's
Travelers filed post-trial motions for judgment as a matter of law or, in the alternative, for a new trial, pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure.
Syl. pt. 2, Fredeking, 224 W.Va. 1, 680 S.E.2d 16.
With respect to a circuit court's ruling denying a party's motion for a new trial, we have held that,
Syl. pt. 2, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Therefore,
Syl. pt. 1, Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va. 105, 736 S.E.2d 338 (2012).
Finally, with respect to rulings regarding the proper interpretation of a policy of insurance, we have held 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). See also Syl. pt. 1, Tennant v. Smallwood, 211 W.Va. 703, 568 S.E.2d 10 (2002) ("Determination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.").
Guided by these standards, we proceed to consider the errors assigned by the parties.
On appeal to this Court, Travelers argues that the circuit court committed numerous
With respect to this type of notice provision, we previously have observed, and now expressly hold, that "[t]he satisfaction of the notice provision in an insurance policy is a condition precedent to coverage for the policyholder." Colonial Ins. Co. v. Barrett, 208 W.Va. 706, 711, 542 S.E.2d 869, 874 (2000) (citations omitted). Accord Syl. pt. 1, Maynard v. National Fire Ins. Co. of Hartford, 147 W.Va. 539, 129 S.E.2d 443 (1963) ("The furnishing of a preliminary proof of loss as required by the conditions of a fire insurance policy is a condition precedent to any right of action by the insured thereon and, unless proof of loss is waived, an action on the policy does not accrue to the insured until after such proof of loss has been furnished."), overruled on other grounds by Smithson v. United States Fid. & Guar. Co., 186 W.Va. 195, 411 S.E.2d 850 (1991); Syl. pt. 5, in part, Adkins v. Globe Fire Ins. Co., 45 W.Va. 384, 32 S.E. 194 (1898) ("The furnishing of such proof [of loss] is a precedent condition to action of recovery if not waived, and the plaintiff carries the burden of showing that such proof was furnished[.]"). See also Didion v. Auto-Owners Ins. Co., 999 N.E.2d 108, 113 (Ind.Ct.App.2013) ("The duty to notify an insurance company of potential liability is a condition precedent to the company's liability to its insured." (internal quotations and citations omitted)); Vale v. Vermont Mut. Ins. Grp., 977 N.Y.S.2d 117, 119, 112 A.D.3d 1011, 1012 (2013) ("Where a policy of liability insurance requires that notice of an occurrence be given `as soon as practicable,' such notice must be accorded the carrier within a reasonable period of time. The insured's failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract." (internal quotations and citations omitted)). Given that compliance with such a notice provision is a condition precedent to the existence of coverage under the subject policy, resolution of the notice issue necessarily determines the outcome of the instant declaratory judgment proceeding. In other words, if U.S. Silica failed to comply with the subject notice provision, such lack of notice is a bar to coverage, and Travelers has no duty to provide insurance for the losses claimed by U.S. Silica. However, if U.S. Silica properly notified Travelers of its claims for which it seeks coverage, Travelers would be required to provide the requested insurance unless another policy exclusion operates to preclude coverage.
During the proceedings below, the circuit court concluded that the evidence was sufficient to allow the jury to determine whether U.S. Silica had failed to notify Travelers of its claims as required by the governing policy provisions and/or whether Travelers had breached its duty to provide coverage to U.S. Silica. Before this Court, Travelers contends that U.S. Silica's delay in providing notice of its claims was unreasonable, and, further, that Travelers was prejudiced by the late notice. U.S. Silica responds that the notice of its claims that it provided to Travelers was timely and did not prejudice Travelers.
The policies' notice provision at issue herein succinctly provides that,
Having previously considered similar policy language, we have adopted the following test to determine whether late notice of a claim forecloses insurance coverage:
Syl. pt. 2, Dairyland Ins. Co. v. Voshel, 189 W.Va. 121, 428 S.E.2d 542 (1993). Thus, it is apparent that a two-step inquiry determines whether late notice precludes coverage. First, we must consider the length of the delay and whether the delay was reasonable. If the delay was not reasonable, the inquiry ends, and coverage will be foreclosed. However, if the delay was reasonable, then the burden shifts to the insurer under the second part of the analysis. If the insurer can demonstrate prejudice from the late notice, coverage is precluded. If the insurer cannot show that it was prejudiced by the late notice of its insured's claim, though, coverage is not barred by the insured's failure to provide timely notice.
Under the specific facts of the case sub judice, it is impossible to calculate the precise length of U.S. Silica's delay in notifying Travelers of the claims for which it seeks coverage. It is undisputed that U.S. Silica first requested coverage from Travelers on September 20, 2005, for silica claims that it previously had defended and settled before
Nevertheless, our prior cases also have concluded that such a determination of reasonableness is a question of fact for the jury. See, e.g., Colonial Ins. Co. v. Barrett, 208 W.Va. at 712, 542 S.E.2d at 875 ("The question of whether an insurance company was notified within a reasonable time period is, generally, a question for the finder of fact." (citations omitted)); State Auto. Mut. Ins. Co. v. Youler, 183 W.Va. 556, 561, 396 S.E.2d 737, 742 (1990) ("Generally, whether notice has been given to an automobile insurer within a reasonable period of time is an issue to be resolved by the fact finder." (citations omitted)). Although the issue of reasonableness is typically a jury question, where, as here, the length of the delay is substantial or the proffered reason for the delayed notice is simply untenable, reasonableness "may be determined as a matter of law where the evidence, construing all inferences in favor of the insured, establishes that the [delay] was unreasonable or in bad faith." Vale v. Vermont Mut. Ins. Grp., 977 N.Y.S.2d 117, 120, 112 A.D.3d 1011, 1013 (2013) (internal quotations and citations omitted). Accord Syl. pt. 2, Milam v. The Equitable Life Assurance Soc'y of the United States, 117 W.Va. 77, 183 S.E. 865 (1936) ("What is a reasonable time for presenting proof of claim is a question of law when the facts are undisputed and the inferences certain."). See also Didion v. Auto-Owners Ins. Co., 999 N.E.2d 108, 113 (Ind.Ct.App. 2013) ("When the facts of the case are not in dispute, what constitutes reasonable notice is a question of law for the court to decide." (internal quotations and citations omitted)). While we do not intend to change the customary determination of reasonableness by the fact finder, it is appropriate, given the undisputed and egregious facts giving rise to the subject claims and the sophisticated nature of the parties involved in this proceeding, for this Court to consider whether the condition precedent to coverage, i.e., notice, has been satisfied in order to ascertain the extent of coverage provided by the subject Travelers policies. See Syl. pt. 1, Tennant, 211 W.Va. 703, 568 S.E.2d 10 ("Determination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.").
Throughout these proceedings, U.S. Silica repeatedly has explained that it failed to provide timely notice to Travelers
Olin Corp. v. Insurance Co. of N. Am., 966 F.2d 718, 724-25 (2d Cir.1992) (emphasis added). Accord Syl. pt. 6, Munson v. German-Ins. Co., 55 W.Va. 423, 47 S.E. 160 (1904) ("Loss of a policy of fire insurance will not excuse compliance with the imperative requirements of the policy as to notice and proof of loss."). See also Aetna Cas. & Sur. Co. v. Lumbermens Mut. Cas. Co., 598 N.Y.S.2d 924, 926, 157 Misc.2d 886, 888 (Sup. Ct.1993) ("In the matter at bar it is no excuse that [the insured] belatedly discovered it had a policy covering the loss issued by Lumbermens, especially when the discovery took place two and one half years after the event. The court cannot accept the excuse that an insured, who claims the benefits of an insurance policy, did not know for more than two and one half years that such a policy existed. The insurance company is severely prejudiced by this delay. It would be difficult, at this stage, to make the kind of investigation that it could have made ... when the loss occurred. Without such timely notice, Lumbermens has been deprived of the opportunity to investigate the claim[.]"); Melnick v. American Cas. Co. of Reading, 192 Pa.Super. 116, 116, 159 A.2d 744, 746 (1960) ("The averment that the policy was lost or misplaced and its existence unknown to the plaintiff does not operate to relieve the plaintiff of his obligations under the policy[.]" (citations omitted)). Thus, an insured's loss of its own insurance policy, or its failure to thoroughly search its own files to ascertain whether it might have a policy of insurance that provides coverage for a particular loss, does not excuse the insured of its duty to notify its insurer of claims for which it seeks coverage, particularly when such notice is a condition precedent to coverage.
In the case sub judice, we conclude that U.S. Silica has failed to demonstrate that its explanation for its significant delay in notifying Travelers of the silica claims was reasonable — both because the delay was substantial and because its proffered reason to excuse its delay, i.e., that it was unaware of the subject policies, is not reasonable. Absent a demonstration of reasonableness, the burden does not shift to the insurer to prove that it was prejudiced by the delayed notice, and the inquiry necessarily ends with a finding that coverage is precluded by the insured's failure to comply with the policy's notice provision.
For the foregoing reasons, we hereby reverse the March 5, 2014, order of the Circuit Court of Morgan County and remand this case for entry of an order granting Travelers' post-trial motion for judgment as a matter of law.
Reversed and Remanded.