WEST VIRGINIA RECORD

CHARLESTON - The West Virginia Supreme Court of Appeals last month said a lower court erred in ruling that insurance coverage claims existed for a woman whose daughter injured herself while playing near a State-owned tree nursery.

National Union Fire Insurance Company, based in Pittsburgh, appealed from a Sept. 30, 2010 order of the Kanawha County Circuit Court denying the insurer's motion for summary judgment.

The circuit court had found as a matter of law that coverage existed for the claims of the plaintiff, Jennifer Miller, and her daughter, Trais Westfall.

In September 2007, while riding on a bicycle with a friend, Westfall struck a wire strung along the property line of land owned by the West Virginia Department of Forestry called the Clements State Tree Nursery.

The nursery, and the land on which Westfall traveled abutting the nursery, is situated in West Columbia, Mason County.

As a result of contact with the wire, Westfall suffered a severe laceration to her face, which has required surgical repair and will require future medical care.

At the time of the accident, the executive branches of the State, including the Department of Forestry, were covered by wrongful act liability insurance through a policy issued by National Union.

Miller, on behalf of Westfall, asserted negligence on the part of the Department of Forestry and a declaratory judgment action against National Union seeking recognition that it must indemnify the State in the case.

National Union responded by filing a motion for summary judgment, maintaining that it is not responsible for indemnifying the State because the exclusionary language in a section of the policy excluded coverage for injury caused by "fences, or similar or related... things."

On appeal, Nation Union contends that the circuit court erred in finding that coverage exists as to Miller's and Westfall's claims, and seeks reversal of the lower court's order.

The state's high court, in its Feb. 24 per curiam opinion, agreed that the circuit court committed "reversible error" by determining that coverage existed.

At the heart of the case is the section of the National Union policy on fences.

The Court, in its 21-page ruling, said the lower court's order ignored the section's "pertinent" language.

"It is unnecessary that National Union prove that the structure causing Ms. Westfall's injury is currently a fence or was ever a fence. National Union need only show that the structure is a related or similar thing to a fence," the justices wrote.

The insurer, through two men's testimony, produced evidence that the structure that injured Westfall is, indeed, related to or similar to a fence, the Court said.

"Rule 602 is therefore satisfied, and a material question of fact exists as to whether the structure which caused the subject injuries was a 'fence' or a 'related or similar' thing," the justices wrote.

"Thus, the circuit court was in error in granting judgment as a matter of law in favor of Ms. Miller."

The lower court had ruled because the structure that caused the injury to Westfall didn't satisfy the requirements of being a "lawful fence" under West Virginia Code, the structure was not a fence within the meaning of the exclusionary language in the National Union policy.

"Upon our review of the record and the applicable law, we find that whether the structure is 'lawful fence' is of no moment. Endorsement # 7 does not explicitly require that the fence it describes be a 'lawful fence' as described in § 19-17-1," the justices wrote.

The Court noted that the policy's exclusionary language does not implicitly indicate that the section of state code applies.

The section of state code only refers to fences used to control livestock, and there is no indication in the policy that the only fences it intended to cover were those intended for livestock, the Court said.

"Although it is our determination that this section does not explicitly or implicitly apply, we do recognize that even if it did, it may support National Union's position under the 'similar to' or 'related to' language of Endorsement # 7," the justices wrote.

The Court reversed the circuit court's order and remanded the case.