John D. Flowers and Dave Flowers v. Max Specialty Insurance Company and Darin I. Drane v. Max Specialty Insurance Company ( 2014 )

Nos. 13-0262 – Flowers v. Max Specialty
13-0317 – Drane v. Max Specialty
FILED
June 4, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Justice Ketchum, concurring:
The insurance policy had a limited assault and battery endorsement providing
$25,000.00 liability coverage for assault and battery. This endorsement states that
“supplementary payments” made by the insurance company will reduce the $25,000.00
limits of liability coverage.
The term “supplementary payments” is not defined in the assault and battery
endorsement. However, it is defined in the commercial general liability coverage, which
excludes coverage for assault and battery. It defines “supplementary payments” to
include “all expenses we incur,” e.g., attorney fees and expenses defending the lawsuit.
Surprisingly, the commercial general liability coverage goes on to state that
supplementary payments “will not reduce the limits of coverage.”
Although the policy language is very contradictory, confusing and ambiguous, the
circuit judge held that “supplementary payments” do reduce the $25,000.00 policy limits
of the assault and battery coverage. This was an erroneous ruling under our law dealing
with ambiguous policy language. See, Luikart v. Valley Brook Concrete & Supply, 216
W.Va. 748, 613 S.E.2d 896 (2005).
If petitioners had appealed this ruling, I believe we would have reversed the circuit
judge and held that the $25,000.00 assault and battery limits were not reduced by
supplementary payments, i.e., expenses incurred by the insurance company including
attorney fees and litigation expenses.
Therefore, I concur.