Tackett v. American Motorists Insurance

584 S.E.2d 158, 213 W. Va. 524
CourtWest Virginia Supreme Court
DecidedJuly 11, 2003
Docket30633
StatusPublished
Cited by40 cases

This text of 584 S.E.2d 158 (Tackett v. American Motorists Insurance) 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
Tackett v. American Motorists Insurance, 584 S.E.2d 158, 213 W. Va. 524 (W. Va. 2003).

Opinions

DAVIS, Justice:

The appellant herein and plaintiff below, Steven Tackett [hereinafter referred to as “Mi-. Tackett”], appeals from an October 30, 2001, order entered by the Circuit Court of Cabell County. In that order, the circuit court, ruling in favor of the appellee herein and defendant below, American Motorists Insurance Company [hereinafter referred to as “American Motorists”], granted summary judgment to American Motorists and denied Mr. Tackett’s claim for such relief. The court concluded that, although American Motorists had defended its insured, Mr. Tackett’s former employer, in a related lawsuit arising from Mr. Tackett’s alleged intentional sexual misconduct in his capacity as an employee, it was not similarly required to provide a defense for Mr. Tackett in said proceeding. On appeal to this Court, Mr. Tackett claims that the circuit court erred and that American Motorists was obligated to provide him legal representation in the related proceeding. Upon a review of the parties’ arguments, the record submitted on appeal, and the pertinent authorities, we conclude that American Motorists had a duty to defend Mr. Tackett in the aforementioned lawsuit. Accordingly, we reverse the circuit court’s October 30, 2001, order finding no such duty existed and remand this case for further proceedings consistent with this Opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts upon which the circuit court based its decision are as follows. In April, 1997, Mr. Tackett was employed as an assistant manager by Gadzooks, Inc., a nationwide clothing retailer with a store in the Huntington Mall. On or about April 19, 1997, K.M.L.1 [hereinafter referred to as “Miss L.”], a fifteen-year-old female, was a customer at said Gadzooks store and was assisted by Mr. Tackett. In a complaint filed September 30, 1997, by Miss L. and her parents in the Circuit Court of Cabell County against Gadzooks and Mr. Tackett, Miss L. alleged that, while she was shopping at Gadzooks, Mr. Tackett subjected her to various acts of sexual misconduct:

On or about April 19, 1997, the Plaintiff [K.M.L.], while shopping in the Defendant’s [Gadzooks’] Store, was attended to by the Defendant, Tackett. At said time and place, the Plaintiff, [K.M.L.], was fifteen (15) years of age. At said time and place, and while the Plaintiff was within the said retail Store, the Defendant, Tack-ett, while in the course and scope of his [527]*527employment, sexually harassed, molested, and violated the infant Plaintiff, by, among other things, making sexual innuendos to the Plaintiff; touching the Plaintiff on various parts of her body, including her breasts; entering the sanctity of her dressing room, when the said infant Plaintiff was disrobed while trying on clothes; reaching his hands under the blouse that the Plaintiff was trying on; and by doing all of the above in front of another individual.

K.M.L. v. Gadzooks, Inc., No. 97-C-0772, Complaint at ¶ 6 (Cm. Ct. Cabell County, W. Va. filed Sept. 30, 1997). As a result of this complaint, American Motorists, from whom the corporate offices of Gadzooks had obtained a commercial general liability insurance policy, provided counsel to represent the Huntington Gadzooks store in its defense of this lawsuit.2 American Motorists refused, however, to represent Mi-. Tackett in this matter. Consequently, Mr. Tackett was required to obtain his own defense counsel. Ultimately, the L. family reached and entered into a settlement agreement with the defendants, Gadzooks and Mr. Tackett.3

Following this settlement, Mr. Tackett filed a declaratory judgment action against American Motorists in the Circuit Court of Cabell County, on June 16, 2000, seeking to recoup the legal expenses he incurred in his defense of the L. family’s lawsuit.4 Following the parties’ motions for summary judgment, the circuit court, by order entered October 30, 2001, rejected Mr. Tackett’s motion and granted summary judgment to American Motorists finding that the insurance company was not obligated to defend Mr. Tackett in the L. family’s lawsuit. In short, the circuit court determined that American Motorists did not have a duty to defend Mi-. Tackett as to Miss L.’s sexual harassment claim because the policy contained an “intentional injury” exclusion. Similarly, the court concluded that the conduct allegedly attributed to Mr. Tackett was “entirely foreign to the risk that was insured against” and therefore not covered by the subject insurance policy or American Motorists’ duty to defend thereunder. Lastly, the court found that American Motorists’ failure to issue a reservation of rights in connection with its defense of Gadzooks was not disposi-tive of the existence of a duty to defend Mr. Tackett in the same matter. From these rulings of the circuit court, Mr. Tackett appeals to this Court.

II.

STANDARD OF REVIEW

Procedurally, the instant appeal is before this Court as a result of the circuit court's grant of summary judgment to American Motorists and its denial of summary relief to Mr. Tackett. Typically, we apply a plenary review to a circuit court’s entry of summary judgment. “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). Similarly, when review of a circuit court’s denial of summary judgment is properly before this Court, we examine anew the circuit court’s ruling. “This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).5

[528]*528Furthermore, the instant appeal requires this Court to review the terms of the insurance policy at issue herein. Generally, “[d]etermmation of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.” Syl. pt. 1, Tennant v. Smallwood, 211 W.Va. 703, 568 S.E.2d 10 (2002). As such, we will also apply a de novo standard of review to these rulings of the circuit court. “The 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 judgement, 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, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”). With these standards in mind, we proceed to consider the parties’ arguments.

III.

DISCUSSION

The assignments of error raised by Mr. Tackett in the instant proceeding may be succinctly summarized as follows: does an insurer have a duty to defend its insured’s employee in a cause of action alleging that the employee, in his/her capacity as such, intentionally caused personal injury to a third party? Before reaching the specific issues pertinent to the case sub judice,

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Cite This Page — Counsel Stack

Bluebook (online)
584 S.E.2d 158, 213 W. Va. 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tackett-v-american-motorists-insurance-wva-2003.