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

• Court: West Virginia Supreme Court
• Decided: June 4, 2014
• Docket: 13-0262 & 13-0317
• Status: Separate

Opinion

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.