WEST VIRGINIA RECORD

CHARLESTON – National Union Fire Insurance of Pittsburgh must compensate four former Webster County school boys who suffered sexual assault and abuse from teacher Donald Ray Glendenning Jr., the West Virginia Supreme Court of Appeals has ruled.

National Union Fire argued that state government's liability insurance did not cover Glendenning's criminal acts, but three Justices agreed that it covered his wrongful acts.

Justice Brent Benjamin warned in dissent that while he understood the desire to compensate the victims, the decision would invite frivolous claims against government.

He wrote, "…all one needs to do is to creatively plead that the defendant for whom coverage is sought is a government employee and there is some relationship, however tenuous, between the claim and the defendant's employment."

The majority reversed Webster County Circuit Judge Jack Alsop, who had thrown out the claims of the four victims in 2004.

Alsop ruled in favor of the actual carrier of the liability policy, Continental Casualty. National Union Fire then replaced Continental by agreement between the insurers.

Glendenning taught at Diana Elementary School. A criminal investigation began when former student Jeremy Bender complained that Glendenning assaulted him in 1994-95.

Glendenning admitted that he abused Bender and former students Travis Sturm, Jason Gregory and Jason Brooks.

Glendenning pleaded guilty in 1999 to sexual assault in the third degree, for intercourse or intrusion with a person less than 16 and at least four years younger.

He also pleaded guilty under state law that sets stiffer penalties for parents, guardians and custodians who sexually abuse children.

Bender filed a civil suit in 2001, claiming damages for his injuries. Sturm, Gregory and Brooks filed a suit, and Alsop consolidated the cases.

From a prison cell Glendenning filed a petition for relief in 2004, arguing that Continental's policy indemnified him.

The policy covered the state, each county board of education, and each political subdivision.

Continental moved for summary judgment, Alsop granted it and the victims appealed.

Gregory Spoles and William McCourt Jr., of Summersville, represented the victims. Charles Bailey of Charleston represented National Union Fire.

Chief Justice Robin Davis and Justices Joseph Albright and Larry Starcher issued the majority opinion in favor of the victims May 12.

They wrote that Continental covered wrongful acts, which it defined as "actual or alleged error or misstatement or act or omission or neglect or breach of duty including malfeasance, misfeasance and non-feasance…"

They wrote, "Given the broad nature of this language, we find that coverage clearly exists under this definition of a wrongful act."

They rejected the insurer's argument that the policy excluded intentional injuries. They wrote that state law requires an exclusion to be conspicuous, plain and clear.

They quoted the exclusion: "The terms of the policy which are in conflict with the statutes of the state of West Virginia wherein certain provisions and coverages included under this policy are not permitted are hereby amended to cover only those provisions and coverages as apply and conform to such statutes."

They wrote that this did not clearly identify the precise limit of liability.

Starcher joined the majority, but with reservations that he planned to express in a concurring opinion.

Benjamin and Justice Spike Maynard dissented. As of May 30, Maynard had not filed a dissent.

Benjamin began his dissent by quoting the state constitution that, "The State of West Virginia shall never be made a defendant in any court of law or equity…"

He wrote that in 1974 the Supreme Court of Appeals held that the state's absolute immunity did not extend to municipalities.

He wrote that in 1986 the Legislature enacted the Governmental Tort Claims and Insurance Reform Act. He wrote that the law limited tort liability of subdivisions and regulated the costs and coverage of liability insurance.

He wrote that the law immunized employees from tort liability unless they acted outside the scope of their employment, or unless they acted maliciously, wantonly, recklessly or in bad faith.

He wrote that the law allowed government to purchase liability coverage for those acts that the Legislature did not immunize.

He quoted from the act that the purchase of insurance does not constitute a waiver of any immunity that government may have pursuant to the act.

He argued that this made the exclusion clause perfectly clear. He wrote that, "…the policy must be read in light of the applicable statutes, not independent of them."

He wrote that the Legislature specifically prohibited the purchase of insurance to defend and indemnify a teacher acting outside the scope of his employment with malicious or criminal intent.

He wrote, "The potential for frivolous actions seeking to use the State's insurance policy as a deep pocket for recoveries is enhanced by the majority's holding."