CHARLESTON -– Parents of two young men who drowned when their vehicle dropped off the edge of a single lane bridge can't sue the state Division of Highways, the West Virginia Supreme Court of Appeals has decided.
The Justices on Nov. 2 affirmed Wyoming Circuit Judge John Hrko, who ruled that the division's insurance policy excluded the claims of the parents.
Justice Margaret Workman wrote that "the state would expose itself to enormous liability by covering losses resulting from negligence in its design, construction and maintenance of this system."
She wrote that "requiring the state to provide insurance that covers these functions would likely be unsustainable."
The accident happened on an autumn evening in 2007, on Devil's Fork Road, as Matthew Wrenn and Justin Janes headed home from a hunting trip.
Wrenn's parents, Howard Wrenn and Sandra Belcher, and Janes's mother, Angelia Harper, sued the Division of Highways last year.
The parents pointed out that a motorist had died in a similar accident at the same bridge a few months earlier.
After that crash, the parents asserted, local citizens contacted the division to request elimination of the hazards.
The parents alleged that washouts and a buildup of debris formed a deep impoundment of water about 15 feet below the bridge.
They claimed the bridge lacked shoulders, rails, fog lines, edge lines, or other markings to warn drivers of danger.
The Division of Highways moved to dismiss, and Hrko granted the motion.
He ruled that an endorsement in the division's insurance policy excluded coverage.
On appeal, the parents argued that the endorsement violated public policy.
At oral argument on Sept. 9, Mark Kelly of Charleston argued for the parents that the Legislature commanded "reasonably broad insurance" for the state.
For the Division of Highways, John MacCorkle of Charleston said insurance covers every employee working on the road every day. "Thousands of people," he said.
Ketchum said, "The state can insure what it wants to."
Workman asked if the policy excluded egregious failure. MacCorkle said yes.
Workman wrote in her opinion that the Legislature gave significant discretion to the Board of Risk and Insurance Management in supervising state insurance.
"It is the Legislature's and BRIM's function to decide whether to provide coverage for situations such as the one alleged herein," she wrote.
"This court's function is to give full effect to the plain meaning of a clear and unambiguous policy exclusion," she wrote.
She rejected the argument that the Legislature required broader coverage.
She disregarded several circuit court decisions extending coverage to incidents at which no highway employee was present.
Those decisions hold no value as precedent and aren't persuasive, she wrote.
"Despite the DOH's apparent failure to protect the public by more diligent maintenance, it is within the legislative prerogative to determine which activities must be insured," she wrote.
Chief Justice Brent Benjamin and Justices Menis Ketchum and Thomas McHugh joined Workman's opinion.
Justice Robin Davis dissented.