WEST VIRGINIA RECORD

CHARLESTON - If ever the West Virginia Supreme Court of Appeals answered maybe instead of yes or no, they did it in the case of Wallie Blessing, who died building a bridge.

The Justices on April 25 weakly reversed Kanawha Circuit Judge Irene Berger, who immunized the state against a suit from widow Misty Blessing.

They didn't tell Berger which side to favor, and they hinted that she shouldn't have to choose. In an unusual step, they recommended settlement.

"Should the parties wish to avoid protracted litigation, settlement might be an attractive method for achieving finality as to this issue in a potentially more economical fashion," they wrote in an unsigned opinion.

Blessing worked for National Engineering and Contracting Company on the Man/Rita bridge in Logan County in 2003.

As a crew poured concrete for pillars, scaffolding collapsed and Blessing suffered fatal injuries.

In 2004, Misty Blessing sued National Engineering and Contracting, the West Virginia Department of Transportation and other contractors on the job.

All defendants settled except the state, which pleaded sovereign immunity and moved for summary judgment.

The doctrine of sovereign immunity preserves funds for legislative appropriations.

It can't apply when someone seeks recovery only from the state's insurer, so Berger had to decide whether Blessing would recover from the state or its insurer, National Union.

If project supervisor Byron Smith performed construction services, National Union would pay. If he performed inspection services, National Union would not pay.

In 2006, she ruled that his duties didn't amount to performance of construction services. She granted summary judgment in the state's favor.

The Justices didn't agree, but they didn't disagree.

"As the record is currently developed, we cannot definitively opine whether Mr. Smith was solely engaged in inspection rather than construction work," they wrote.

They held that a genuine issue of material fact existed as to insurance coverage, and they prescribed additional factual inquiry.
Then they grabbed a lever to pull for settlement.

"On remand," they wrote, "the scope of Mr. Smith's work should be more fully developed for purposes of determining whether the language of Endorsement No. 7, which undisputedly excludes coverage if Mr. Smith was engaged only in inspection related activities at the time of the accident, is applicable."

After all, they warned, Endorsement No. 7 may not exist. The document with that number does not bear a signature of any Department of Transportation official.

Blessing pointed this out to Berger in a motion but Berger did not rule on the motion.

The Justices agreed that an unsigned endorsement is not part of an insurance policy and can't operate to modify terms of coverage as the insurer intended.

"Preferring to allow the lower court to rule upon this issue as an initial matter," they wrote, "we do wish to call this matter to the trial court's attention."

They concluded, "Given both this issue of the unsigned endorsement - a matter that the Department will presumably seek to rectify in prompt fashion in both this case and others - as well as the uncertainty of how the remaining issues will be decided, the parties may wish to pursue a more expeditious means of seeking finality in this case."

Justices Larry Starcher and Brent Benjamin promised concurring opinions.