Ayersman v. West Virginia Division of Environmental Protection

542 S.E.2d 58, 208 W. Va. 544, 2000 W. Va. LEXIS 131
CourtWest Virginia Supreme Court
DecidedNovember 22, 2000
DocketNo. 27472
StatusPublished
Cited by12 cases

This text of 542 S.E.2d 58 (Ayersman v. West Virginia Division of Environmental Protection) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ayersman v. West Virginia Division of Environmental Protection, 542 S.E.2d 58, 208 W. Va. 544, 2000 W. Va. LEXIS 131 (W. Va. 2000).

Opinions

PER CURIAM.

Appellant and plaintiff below, John Michael Ayersman, appeals a grant of summary judgment awarded in favor of appellee and defendant below, the West Virginia Department of Environmental Protection (the “DEP”). Mr. Ayersman argues that the lower court erred when it found that the DEP’s insurance policy did not cover the activity alleged to have damaged appellant’s property. We find the lower court’s summary judgment order insufficient to permit meaningful appellate review and reverse on that basis.

I.

BACKGROUND

Appellant Ayersman is a resident of Fay-ette County, West Virginia. In 1992, Mr. Ayersman built a two-bay garage in which he established a small auto-repair business. The garage is located on Summerlee Road in rural Fayette County, along which flows a stream known as Wolf Creek. From the record it appears that the creek flows along the road, but as both approach Mr. Ayers-man’s property, the creek flows away from the road and passes behind Mr. Ayersman’s garage. Although the creek was there before the construction of the garage, Mr. Ay-ersman claims that he experienced no flooding on his land before 1995.

In the spring of 1995, appellee and defendant below, the West Virginia Department of Environmental Protection, commenced reclamation work at a large coal refuse pile some distance upstream from Mr. Ayersman’s garage. Like many sites in West Virginia, this abandoned mine site produced water quality problems and safety concerns for area residents. Specifically, the site contained several settlement ponds containing water and coal waste, and part of the site had caught fire and burned continuously. Water passing through the waste pile and its ponds eventually migrated to Wolf Creek, producing silting problems and a possible increase in the level of iron in the stream.

Under the Abandoned Mine Lands and Reclamation Act, W. Va.Code § 22-2-1, et seq., DEP is charged with the .duty of reclaiming abandoned mine sites in West Virginia. DEP contracted with G.A.I. Consultants to design a project whereby workers would grade and revegetate the site, remove the existing settling ponds, and divert water around, rather than through, the refuse pile. DEP chose Perland Construction to do the earth-moving work.

After a rain on June 14, 1995, the creek next to Mr. Ayersman’s property flooded extensively, overflowing its banks and inundating the garage. Since that time, the creek has flooded repeatedly. Despite Mr. Ayers-man’s efforts to divert some of the water with culverts or berms, the water has flooded the shop on several subsequent occasions. This flooding has caused Mr. Ayersman considerable damage in destroyed property and lost business. As a result, Mr. Ayersman sued the DEP, the design consultant and the engineering firm on January 17,1997.

DEP argued that, because its insurance policy contained an exclusion for “pollution clean up”1 work, that there was no coverage for the damages to Mr. Ayersman. DEP claims that, because our law allows a suit against a state entity like DEP only if insurance coverage exists, DEP was, therefore, immune from suit. The lower court agreed [546]*546with this argument and granted summary judgment against Mr. Ayersman and in favor of DEP. Mr. Ayersman now appeals.

II.

STANDARD OF REVIEW

At issue in this case is the validity of the lower court’s grant of summary judgment. Our touchstone for reviewing a grant of summary judgment is set out in Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963), wherein we held: “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.” Accord, Williams v. Precision Coil, Inc., 194 W.Va. 62, 459 S.E.2d 329 (1995); Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755(1994).

III.

DISCUSSION

The parties devote much of their briefs to arguing the niceties of the insurance policy, and whether or not DEP’s conduct arose from “pollution related” activities, as defined in the policy. The language at issue reads:

This insurance does not apply:

2) To any loss, cost or expense arising out of any governmental direction or request that the “Named Insured” test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkal-is, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

DEP claims, because it was “clean[ing] up” what were “pollutants” at the mine site, that even if this activity caused the flooding, DEP is immune from suit because no insurance policy covered its actions. Mr. Ayersman argues that DEP, as a government entity, was not acting under “governmental direction or request,” and that the coal refuse and settlement ponds were not “pollution” in the usual sense of the word.2 Because we find that the lower court’s order failed to meet the test we have established for summary judgment orders, we need not wrestle with any policy definitions to decide this matter.

We have held that a summary judgment order must set forth findings substantial enough to allow this Court to make an informed judgment on the propriety of the lower court’s actions. “[0]n summary judgment, a circuit court must make factual findings sufficient to permit meaningful appellate review.” Gentry v. Mangum, 195 W.Va. 512, 521, 466 S.E.2d 171, 180 (1995). We have explained that a conclusory order simply stating that “no issue of material fact is in dispute” will not suffice. “For meaningful appellate review, more must be included in an order granting summary judgment. This Court’s function, as a reviewing court is to determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record.” Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 353, 484 S.E.2d 232, 236 (1997).

We went on to establish a new syllabus point in Lilly describing what is required in an order granting summary judgment:

[547]*547Although our standard of review for summary judgment remains de novo, a circuit court’s order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.

Syl. pt. 3, Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997).

In the case sub judice, the lower court discussed the DEP’s alleged immunity, but did not provide the factual basis for its decision:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roger D. Campbell v. CSX Transportation, Inc.
West Virginia Supreme Court, 2019
Allstate Property & Casualty Insurance v. Cogar
945 F. Supp. 2d 681 (N.D. West Virginia, 2013)
Rebuild America, Inc. v. Davis
726 S.E.2d 396 (West Virginia Supreme Court, 2012)
Thompson v. Hatfield
693 S.E.2d 479 (West Virginia Supreme Court, 2010)
Wrenn v. West Virginia Department of Transportation
686 S.E.2d 75 (West Virginia Supreme Court, 2009)
Blessing v. National Engineering & Contracting Co.
664 S.E.2d 152 (West Virginia Supreme Court, 2008)
Hively v. Merrifield
575 S.E.2d 414 (West Virginia Supreme Court, 2002)
Russell v. Bush & Burchett, Inc.
559 S.E.2d 36 (West Virginia Supreme Court, 2001)
State ex rel. McLaughlin v. West Virginia Court of Claims
549 S.E.2d 286 (West Virginia Supreme Court, 2001)
Ayersman v. DIV. OF ENVIRON. PROTECTION
542 S.E.2d 58 (West Virginia Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
542 S.E.2d 58, 208 W. Va. 544, 2000 W. Va. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayersman-v-west-virginia-division-of-environmental-protection-wva-2000.