IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA 2023 Fall Term FILED _____________________________ November 14, 2023 No. 22-ICA-173 released at 3:00 p.m. _____________________________ EDYTHE NASH GAISER, CLERK INTERMEDIATE COURT OF APPEALS MARK SCAFELLA, OF WEST VIRGINIA
Plaintiff Below, Petitioner, v. ERIE INSURANCE COMPANY and STANLEY GEHO, Defendants Below, Respondents. ________________________________________________________________________ Appeal from the Circuit Court of Marshall County Honorable Jeffrey D. Cramer, Judge Civil Action No. 19-C-116
AFFIRMED ________________________________________________________________________ Submitted: October 31, 2023 Filed: November 14, 2023
John R. Angotti, Esq. Amy Smith, Esq. Chad C. Groome, Esq. STEPTOE & JOHNSON, PLLC ANGOTTI & STRAFACE, L.C. Bridgeport, West Virginia Morgantown, West Virginia Counsel for Respondents Counsel for Petitioner
CHIEF JUDGE DANIEL W. GREEAR delivered the Opinion of the Court. GREEAR, Chief Judge:
Petitioner, Mark Scafella appeals the September 12, 2022, order of the
Circuit Court of Marshall County granting Erie Insurance Company (“Erie”) and Stanley
Geho summary judgment in the underlying declaratory judgment action. On appeal, Mr.
Scafella argues that the circuit court erred in granting summary judgment as there exists a
genuine issue of material fact as to whether Erie waived application of the business
purposes exclusion (also described as the “business pursuits” exclusion) in his Erie policy.
Further, Mr. Scafella contends that the court abused its discretion in holding that the
business pursuits exclusion contained within the Other Structures coverage of his Erie
policy precluded coverage for fire damage to a structure on his property. Lastly, Mr.
Scafella asserts that the court abused its discretion in finding that his claims were not
covered by the plain language of the “claw-back” provision of his Erie policy. Based upon
our review of the record, we find no error and affirm the circuit court’s September 22,
2022, order.
I. FACTUAL AND PROCEDURAL BACKGROUND The underlying case arises from a February 2, 2019, fire on Mr. Scafella’s
real property located in Terra Alta, West Virginia, and insurance claims he made following
that fire loss. In 2017, Mr. Scafella purchased the Terra Alta property known as “Country
Chapel Farm” (“Farm”). The farm included a residential home, a large barn with an
adjacent milk house, several sheds or smaller barns, and a small country church.
1 At all relevant times, the subject property was insured under a homeowner’s
policy of insurance issued by Erie, identified as the “ErieSecure Home Insurance Policy”
(“policy”). See A.R. at 0018. The policy included other structures coverage limits of
$101,400, and coverage for personal property of up to $380,250. See A.R. at 0100. The
PROPERTY PROTECTION-SECTION 1, OUR PROMISE- Other Structures provision of
the policy contained a standard business pursuits exclusion, which read as follows:
“We” will pay for loss to:
1. other structures at the “residence premises” separated from the dwelling, including garages, fences, shelters, tool sheds or carports.
Structures connected to the dwelling by only a fence, utility line or similar connection are considered to be other structures.
2. construction material at the “residence premises” for use in connection with “your” other structures.
“We” do not pay for loss to structures:
1. used in whole or in part for “business” purposes [except rental or holding for rental of structures used for private garage purposes); or
2. used to store “business” property. However, if the “business” property is solely owned by “anyone we protect,” “we” do provide coverage for the structure. The “business” property may not include gaseous or liquid fuel, unless the fuel is in a fuel tank that is permanently installed in a vehicle or craft which is parked or stored in the structure.
2 See A.R. at 0021 (emphasis original). “Business” was defined under the GENERAL
POLICY DEFINITONS section of the policy as “any full-time, part-time or occasional
activity engaged in as a trade, profession or occupation, including farming.” See A.R. at
0020 (emphasis original). The term structure was not defined within the policy.
Under the SPECIAL LIMITS – Personal Property Coverage section of the
policy, property described as “[p]roperty on the “residence premises” used primarily for
“business” purposes conducted on the “residence premises,” including property in
storage, held as samples, or held for safe or delivery after sale” had a “total amount of
insurance in any one loss” denoted as $2,500. See A.R. at 0023 (emphasis original). Also
contained in the policy was a document titled CONTINUATION NOTICE, which included
an express statement that “no business pursuits are conducted at the premises,” except as
follows, wherein the only item listed was a McCormick CX95 tractor, with an “amount of
insurance” noted as $35,000. See A.R. at 0043.
It is undisputed that in December of 2016 and January of 2017, Mr. Scafella’s
then fiancé (Ms. Lisa Smith), obtained two insurance quotes from Erie for subject property,
one including an incidental farming endorsement and one without the endorsement. 1
1 The record reflects that the application for insurance, signed by Mr. Scafella on April 5, 2017, noted a total annual premium of $2,795.29 and did not include the incidental farming endorsement. See A.R. at 0311-14. Following the application, the first quote, which including the incidental farming endorsement (noted as “Livestock: Blanket”), had a total annual premium quote of $3,440.82. However, the second quote did not include a 3 Ultimately, Mr. Scafella chose the insurance quote that did not include the incidental
farming endorsement, a less costly option. See A.R. 0298-0310. It is further undisputed
that in completing his application for insurance with Erie for the property at issue, that Mr.
Scafella averred that there were no farm animals or pets on the premises and that he did
not conduct “any business or occupational pursuits at the premises.” See A.R. 0311-0316.
Despite indicating to the contrary in his application for insurance, Mr.
Scafella does not deny that after taking possession of the property, he began operating a
business out of the milk house. That business, Olivia’s, LLC (“Olivia’s”), was a retail store
selling meat, cheese, and sandwiches. Prior to the fire, Mr. Scafella alleges that he had
begun to renovate the large barn structure into a catering hall and restaurant (to be known
as Sophie’s Serendipity, LLC), as part of his plan to develop the farm into a destination
wedding venue.
There is no question that the February 2, 2019, fire caused significant
structural damage to the large barn and resulted in the loss of numerous items of Mr.
Scafella’s personal property, which were stored in the large barn structure. Although the
milk house, was adjacent and physically abutted the barn, Mr. Scafella claims that it was
farming endorsement and had a total annual premium quote of $3,195.48. See A.R. at 0303- 04 and 0308-09 (emphasis original).
4 not affected by the fire and that the origin of the fire had nothing to do with the business
operations therein.
Shortly after the fire loss, Mr. Scafella filed an insurance claim with Erie for
that loss. Property adjuster Stanley Geho was assigned by Erie to handle the claim. As part
of his investigation, Mr. Geho visited the fire-damaged property and drew a diagram that
depicted the milk house as an addition to the barn structure with an interior doorway
connecting the two areas. Mr. Geho’s depiction of the premises was consistent with a
statement made by Ms. Smith who, during a recorded statement taken by Mr. Geho,
described Olivia’s as being “in a different part of the [barn] building,” but “in the barn
itself.” See A.R. at 0162-69.
During its investigation, Erie initially provided coverage for 120 items
identified by Mr. Scafella as his personal property (as opposed to his business property),
which were located in the large barn structure, and paid Mr. Scafella $67,640.80. See A.R.
at 0402-0412. However, Erie denied the portion of the fire loss claim for the structure of
the large barn, under the business pursuits exclusion of the Other Structures provision of
the policy, as Mr. Scafella was operating a business (Olivia’s) out of the structure.
On May 15, 2019, Mr. Scafella filed the underlying three count complaint
against Erie and Mr. Geho. In count one of the complaint, Mr. Scafella sought a declaratory
judgment on the issue of insurance coverage for the barn structure and, if appropriate,
5 Hayseeds 2 damages. In counts two and three, respectively, Mr. Scafella alleged Erie and
Mr. Geho’s violations of the West Virginia Unfair Trade Practices Act and/or common law
bad faith in the handling of his fire loss claim and breach of contract.
In response to the complaint, Erie argued that as Mr. Scafella was operating
a business (Olivia’s) out of the fire-damaged barn, his fire loss claim for the large barn
structure was excluded under the business pursuits exclusion of the Other Structures
coverage portion of his Erie policy. Mr. Scafella now argues that the denial of his claim in
this regard was improper, as Olivia’s operated from the milk house, which, he contends,
was a separate structure, from the large barn.
On May 19, 2020, the circuit court entered an Agreed Order Bifurcating and
Advancing Determination of Declaratory Judgment Claim, effectively staying all
proceedings, including discovery and trial, relating to the claims in counts two and three of
the complaint, until final resolution of the declaratory judgment claim in count one was
resolved. Discovery then began as to the declaratory judgment claim.
2 In Hayseeds, Inc. v. State Farm Fire & Cas., the Supreme Court of Appeals of West Virginia held that: “[w]henever a policyholder substantially prevails in a . . . suit against its insurer, the insurer is liable for: (1) the insured’s reasonable attorney’s fees in vindicating its claim; (2) the insured’s damages for net economic loss caused by the delay in settlement, and damages for aggravation and inconvenience.” Syl. Pt. 1, Hayseeds, 177 W. Va. 323, 352 S.E.2d 73 (1986). 6 On March 12, 2021, Erie and Mr. Geho filed a motion for summary judgment
as to the declaratory judgment claim, asserting that the exclusionary language of the Other
Structures coverage barred Mr. Scafella’s claim. Mr. Scafella asserted that his claim fell
within a “claw-back” provision of the exclusion, and that Erie and Mr. Geho had waived
the application of the exclusion by issuing the policy with knowledge of Mr. Scafella’s
business activities on the premises.
The circuit court found that the “milk house and the barn are one structure”
but then allowed the parties to complete additional discovery on the issue of the application
of the exception to the business pursuits exclusion and supplemental briefing. After
supplemental briefing, the court concluded that the evidence on the record does not support
Mr. Scafella’s claims. Specifically, the court determined that his claims were excluded by
the business pursuits exclusion of the Erie policy; that the “claw-back” provision of the
Erie policy does not apply; and that there was no waiver by Erie. Having made such
findings, the court awarded summary judgment to Erie and Mr. Geho and, ultimately,
entered a Rule 54(b) Order finding that the September 12, 2022, Order Granting Summary
Judgment in Favor of Defendants on Count I of Plaintiff’s Complaint should be treated as
a final appealable order. This appeal followed.
7 II. STANDARD OF REVIEW “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). In Gray v. Boyd, 233 W. Va.
243, 757 S.E.2d 773 (2014), the Court further discussed summary judgment and found that:
2. “‘“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.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 2, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
3. “The circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. Pt. 3, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
* * *
6. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing of an essential element of the case that it has the burden to prove.” Syl. Pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
Syllabus Pts. 2, 3, and 6, Gray, 233 W. Va. at 245, 757 S.E.2d at 776. With these standards
in mind, we now consider Mr. Scafella’s assignments of error.
8 III. DISCUSSION On appeal, Mr. Scafella asserts that the business pursuits exclusion within
his Erie policy did not apply and advances three assignments of error, which we will
address in turn.
A. Waiver
In his first assignment of error, Mr. Scafella argues that the circuit court erred
in granting Erie and Mr. Geho’s motion for summary judgment, as genuine unresolved
issues of material fact remain as to whether Erie waived the business pursuits exclusion
contained within the policy.
The Supreme Court of Appeals of West Virginia (“SCAWV”) has held that
“[t]o effect a waiver, there must be evidence which demonstrates that a party has
intentionally relinquished a known right.” Syl. Pt. 1, in part, Potesta v. U.S. Fid. & Guar.
Co., 202 W. Va. 308, 504 S.E.2d 135 (1998). Further, the SCAWV has found, as stated in
syllabus point five of Potesta, that “[g]enerally, the principles of waiver and estoppel are
inoperable to extend insurance coverage beyond the terms of an insurance contract.” Id. at
311, 504 S.E.2d at 138. The Potesta Court additionally noted, in syllabus point seven, as
to waiver, that:
[e]xceptions to the general rule that the doctrine of estoppel may not be used to extend insurance coverage beyond the terms of an insurance contract, include, but are not necessarily limited to, instances where an insured has been prejudiced because: (1) an insurer's, or its agent's, misrepresentation made
9 at the policy's inception resulted in the insured being prohibited from procuring the coverage s/he desired; (2) an insurer has represented the insured without a reservation of rights; and (3) the insurer has acted in bad faith.
Id. at 311, 504 S.E.2d at 138.
Moreover, it is well settled under West Virginia law that, “[w]here the
soliciting agent has knowledge of past conditions or existing facts which at the time would
serve to void the policy, the company issuing the policy cannot insist upon such facts for
the purpose of avoiding its liability.” Syl., Kimball Ice Co. v. Springfield Fire & Marine
Ins. Co., 100 W. Va. 728, 132 S.E. 714 (1926). Mr. Scafella contends that, given the
SCAWV’s rulings in Potesta and Kimball, a genuine issue of fact remains as to waiver,
that the circuit court erred in awarding summary judgment to Erie and Mr. Geho. We
disagree.
The facts of Kimball are dissimilar to the facts herein. The insurance policy
in Kimball contained a stipulation that the insurer would not be “liable for loss or damages
occurring . . . if the [insured’s] manufacturing establishment . . . ceases to be operated
beyond a period of ten days.” Id. at 729, 132 S.E.2d at 715. However, the evidence
established that the Kimball insurer knew, before issuing the policy, that the insured’s
manufacturing establishment would not be operational within a period of ten days, thereby
invoking the stipulation which held the insurer not liable for loss or damages. Thus, the
Kimball Court reasoned that “[w]here the soliciting agent has knowledge of past conditions
10 or existing facts which at the time would serve to void the policy, the company issuing the
policy, with this knowledge upon the part of its agent, cannot insist upon such facts for the
purpose of avoiding its liability.” Id. at 732, 132 S.E.2d at 716-17.
Unlike Kimball, here, there is no evidentiary support for Mr. Scafella’s
contention that Erie knew or should have known that he was using his property for various
business purposes prior to issuing the policy. Further, there is no indication that, under
Potesta, either the insurer or agent made any misrepresentations at the policy’s inception
that resulted in Mr. Scafella being prohibited from procuring the coverage he desired,
defended Mr. Scafella under a reservation of right, or acted in bad faith, as to “extend
insurance coverage beyond terms of an insurance contract.” See Potesta 202 W. Va. 308,
311, 504 S.E.2d 135, 138. In fact, we, like the circuit court, find that Mr. Scafella’s
arguments are wholly rebutted by the express notation in the application for insurance
coverage he endorsed on April 5, 2017, wherein he “clearly denied (1) any animals,
including pets or farm animals, present on the insured premises, and (2) any business or
occupational pursuits on the insured premises.” See A.R. 0311-0316.
We are also unpersuaded by Mr. Scafella’s contention that his discussion
with his insurance agent about the possibility of farming and keeping livestock on the
property at some point in the future was evidence of the insurer having knowledge of his
cattle farming business. Here, the record reflects that while Mr. Scafella (through his
fiancé) may have initially requested insurance to cover his cattle business upon the subject
11 property by getting a quote that included an incidental farming agreement, it is undisputed
that a second quote was requested by Mr. Scafella (again through his fiancé), without the
incidental farming endorsement. See A.R. at 0298-316. There is no indication that Erie
prevented or prohibited Mr. Scafella from procuring an incidental farm endorsement or a
commercial general liability policy for the property at issue—in fact, just the opposite
occurred; they presented a quote to him including an incidental farm endorsement. Rather,
it can be inferred from the record that Mr. Scafella reduced the amount of insurance
coverage initially requested as a calculated decision to save money, as the quote for the
premiums for his homeowner’s insurance with the incidental farm endorsement was higher
than the quote without such coverage.
Likewise, we are not persuaded by Mr. Scafella’s argument that because Erie
insured his contracting business, which had the same mailing address as his personal
residence (both before and after his move), that Erie knew he was operating his contracting
business from his home. We find this argument to be against the clear weight of the
evidence. In the proceedings below, Mr. Scafella’s insurance agent averred, in part, that:
I also sold a 5 star CGL Policy to Mark Scafella d/b/a Marksman Contracting issued December 31, 2015. At the time the homeowner’s policy [the policy at dispute herein] was issued to Mr. Scafella, the CGL policy had an insured business location of 3001 City View Drive, Morgantown, WV. On April 25, 2017, the insured amended the mailing address for the CGL policy to 401 Aurora Ave, Terra Alta, WV 26274, but the business location remained unchanged. The CGL [p]olicy was subsequently renewed, but canceled on March 9, 2018 for non- payment.
12 Accordingly, as Mr. Scafella failed to meet his burden to establish waiver,
we find no error in the circuit court’s award of summary judgment to Erie and Mr. Geho.
B. Other Structures Provision
Next, Mr. Scafella contends that the circuit court erred when it held the
business purpose exclusion contained within the Other Structures coverage of the Erie
policy excluded fire damage to the large barn. Specifically, Mr. Scafella argues that the
court erred by determining that the milk house where Olivia’s was located was a part of
the large barn structure and was not a separate structure. Following our review of the
extensive record, we disagree and find no error.
In considering Mr. Scafella’s argument we must first determine whether the
terms contained in the policy are clear or subject to interpretation. In Motorists Mutual
Insurance Co. v. Zukoff, 244 W. Va. 33, 851 S.E.2d 112 (2020), the SCAWV, citing Payne
v. Weston, 195 W. Va. 502, 507, 466 S.E.2d 161, 166 (1995), noted:
In West Virginia, insurance policies are controlled by the rules of construction that are applicable to contracts generally. We recognize the well-settled principle of law that this Court will apply, and not interpret, the plain and ordinary meaning of an insurance contract in the absence of ambiguity or some other compelling reason. Our primary concern is to give effect to the plain meaning of the policy and, in doing so, we construe all parts of the document together. We will not rewrite the terms of the policy; instead, we enforce it as written. Syllabus Point 1 of Russell v. State Automobile Mutual Insurance Company, 188 W. Va. 81, 422 S.E.2d 803 (1992), states: “‘Where the
13 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.” Thus, we are to ascertain the meaning of the policy as manifested by its language.
The SCAWV has further defined the term ambiguity as “language
‘reasonably susceptible of two different meanings’ or language ‘of such doubtful meaning
that reasonable minds might be uncertain or disagree as to its meaning.’” Syl. Pt. 1, in part,
Shamblin v. Nationwide Mut. Ins. Co., 175 W. Va. 337, 332 S.E.2d 639 (1985). However,
“[t]he mere fact that parties do not agree to the construction of a contract does not render
it ambiguous. The question as to whether a contract is ambiguous is a question of law to
be determined by the court.” Syl. Pt. 1, Berkeley Cty Pub. Serv. Dist. V. Vitro Corp. of Am.,
152 W. Va. 252, 162 S.E.2d 189 (1968). The SCAWV has further held that
a court should read the policy provisions to avoid ambiguities and not torture the language to create them. “‘If a court properly determines that the contract is unambiguous on the dispositive issue, it may then properly interpret the contract as a matter of law and grant summary judgment because no interpretive facts are in genuine issue.’” Williams. v. Precision Coil, Inc., 194 W. Va. [52] at 66 n. 26, 459 S.E.2d [329] at 343 n. 26 [(1995)], quoting Goodman v. Resolution Trust Corp. 7 F.3d 1123 (4th Cir. 1993). Payne, 195 at 507, 466 S.E.2d at 166.
Zukoff at 39, 851 S.E.2d at 118.
In the case sub judice, Mr. Scafella argues that the failure of Erie to define
the term “structure” in the policy renders the policy ambiguous in its application. However,
14 the circuit court found no ambiguity within the Erie policy and determined that Mr.
Scafella’s argument that the milk house and large barn were two structures was
unsupported by the record. The court noted that photographs of the barn and milk house
show a “single integrated structure” and that they are not only directly “adjacent to each
other, but physically attached together with adjacent common walls.” In fact, the court
referenced that there is “an entry way or door leading from the milkhouse directly into the
main barn area,” such that you do not have to exit the structure to go from milkhouse
directly to the large barn. We agree with the circuit court’s reasoning and conclusion and
find that the Other Structures exclusion within the Other Structures provision stating that
Erie will not pay for loss to structures “used in whole or in part for business purposes,” is
clear and unambiguous and should be given its ordinary meaning. See Id. See also, Murray
v. State Farm Fire and Casualty Company, 203 W. Va. 477, 490, 509 S.E.2d 1, 14 (1998)
(SCAWV reasoned that policy language at issue did not define the term “external,” thus
the Court found that it must “give the word its ‘plain, ordinary meaning.’”). Merriam-
Webster defines the term structure as:
(1) the action of building: construction; (2)(a) something (such as a building) that is constructed, (b) something arranged in a definite pattern of organization; (3) a manner of construction; (4) (a) the arrangement of particles or parts in a substance or body, (b) organization of parts as dominated by the general character of the whole, (c) coherent form or organization; and (5) the aggregate of elements of an entity in their relationships with each other.
“Structure,” Merriam-Webster.com https://www.merriam-webster.com/dictionary/structure
(last visited Nov. 13, 2023).
15 Our interpretation is supported by cases from Missouri and Louisiana. In
Winston v. Hartford Fire Ins. Co., 317 S.W.2d 23 (Mo. Ct. App. 1958), the Springfield
Court of Appeals, Missouri, determined that a later added shed addition attached to a barn
was a single structure for purposes of insurance coverage. The Winston Court determined
whether the two are one depends on a number of things, including whether the addition
was erected in such close proximity to the other structure as to be physically joined thereto.
Similarly in McMahon v. People’s Nat. Fire Ins. Co., 14 Teiss. 269 (La. Ct. App. 1917),
the Court of Appeal of Louisiana considered the question of additions and determined that
any additions to a building included only such structures that are attached to or structurally
connected with the main building. While neither of these cases are determinative, both are
persuasive to the notion that when considering if an addition is part of the main structure,
factors such as close proximity and physically joined are key considerations.
Based upon our review of the record and the arguments of counsel, we find
that the large barn area where the fire occurred and the milk house (where Mr. Scafella
operated Olivia’s) are one in the same structure. Photographs show that the large barn and
milk house are not only adjacent but have abutting walls and share an interior entryway.
Likewise, there is no separation between the wall of the barn and the wall of the milk house,
suggesting that the milk house is simply a joined addition and part of the large barn. In fact,
when providing a recorded statement to Erie after the fire loss, Ms. Smith identified the
barn and the milk house as being part of one building. Accordingly, we find that the circuit
16 court did not err in determining that the large barn and milk house are the same structure.
As we have determined that the policy is unambiguous on the dispositive issue, per the
SCAWV’s reasoning in Williams, we find that the circuit court did not err in interpreting
the contract as a matter of law and awarding summary judgment to Erie and Mr. Geho.
Williams at 194 at 66 n. 26, 459 S.E.2d at 343 n. 26.
C. Claw-Back Provision
In his final assignment of error, Mr. Scafella contends that the plain terms of
the “claw-back” provision contained within the Other Structures coverage under the Erie
policy extends to provide coverage for his business property and that the circuit court erred
in finding otherwise.
What Mr. Scafella describes as the “claw-back” provision of the Erie policy
at issue clearly states that Erie does “not pay for losses to structures” “used to store business
property,” unless that “business property is solely owned by ‘anyone’” Erie protects. In
such situations, the claw-back provision provides that Erie does provide coverage for the
structure. Mr. Scafella now argues that as the contents stored in the large barn were his
business property, which he solely owned, that the “claw-back” provision of the policy
triggers and extends coverage to the milk house structure. We disagree and find that the
“claw-back” provision is not triggered as the large barn was not used to store Mr. Scafella’s
business property, but his personal property.
17 There is no dispute that following the fire loss, that as part of his associated
insurance claims, that Mr. Scafella identified 120 items stored in the large barn area which
he classified as his “personal property,” and under the personal property coverage in the
Erie policy, Erie issued payment to Mr. Scafella in the amount of $67, 640.80. As Erie and
Mr. Geho note, had the contents identified by Mr. Scafella as personal property been
deemed “business personal property,” the personal property coverage limits would not
have been available to him under the policy. See A.R. at 0296.
The record supports that the property contained within the barn was
categorized by Mr. Scafella as his “personal property.” The record reflects that in his
response to Erie’s First Set of Requests for Admission, Interrogatories, and Request for
Production of Documents to Plaintiff, that Mr. Scafella replied to Request for Admission
No. 3 as follows:
[Erie’s] Request No. 3: Admit that as of February 2, 2019, the [large barn] located on the subject property was a multi-use barn that included a smaller area for a butcher shop and store, known as “Olivia’s,” and a larger area for a restaurant and wine and cheese shop, known as “Sophie’s Serendipity.”
[Mr. Scafella’s Response to ]Request No. 3: Deny. The barn was not a multi-use barn. The barn was used to store the personal property of Mark Scafella, for farming activities, and was being renovated with . . . .”
18 Further, a review of the Erie claim file notes that on March 15, 2019, Mr.
Geho noted that he was advised by Mr. Scafella that the listing of property items he
submitted to Erie “were for personal use and not business related.” See A.R. at 0415. Mr.
Scafella now attempts to place these items in the category of “personal business property”
in an attempt to trigger the “claw-back” provision to obtain coverage for the barn structure.
In a June 14, 2022, Affidavit, Mr. Scafella averred that the large barn was used to store his
“personal business property” belonging solely to him. Further, he averred that “[t]he items
of personal business property . . . for which [he] was compensated by Erie following the
fire loss were substantially, if not all, personal business property items stored in the fire-
damaged barn.”
This attempted “reclassification” of the property from personal property to
“personal business property” violates the tenets of equitable estoppel. Generally, estoppel
applies when a party is induced to act or to refrain from acting to his/her detriment because
of his/her reasonable reliance on another party's misrepresentation or concealment of a
material fact. See Hunter v. Christian, 191 W. Va. 390, 446 S.E.2d 177 (1994).
Here, Mr. Scafella represented that the property within the large barn was his
personal property to collect $67,640.80 under the personal property coverage in his Erie
policy, possibly to avoid the $2,500.00 limit to “business” personal property under the
SPECIAL LIMITS – Personal Property Coverage section of policy. To permit Mr. Scafella
19 to change his classification of the property at issue to recover under corresponding portions
of the policy is impermissible and would permit him a windfall and coverage for which he
did not pay. Such prohibition is in line with the SCAWV’s ruling in Potesta, wherein the
Court held that “[g]enerally, the principles of waiver and estoppel are inoperable to extend
insurance coverage beyond the terms of an insurance contract.” Id. at 311, 504 S.E.2d at
138. Accordingly, we find no error in the circuit court’s determination that the “claw-back”
provision of the policy is not triggered and does not extend to provide additional coverage
to Mr. Scafella.
IV. CONCLUSION For the foregoing reasons, the September 12, 2022, order of the Circuit Court
of Marshall County is affirmed.
Affirmed.