Insurer isn't responsible for Hayhurst in wrongful death suit, Justices rule

By Steve Korris | Apr 15, 2010


CHARLESTON – Cincinnati Insurance Company won't have to cover lawyer Richard Hayhurst for any damage he caused in the course of a wrongful death suit, the West Virginia Supreme Court of Appeals ruled on April 1.

The Justices left Hayhurst standing alone in defending a malicious prosecution claim before Special Judge Thomas Evans in Wood County.

He sought coverage under an umbrella policy with Cincinnati after his malpractice insurer, Liberty Mutual, denied coverage.

That bothered the Justices.

"It is disingenuous for Mr. Hayhurst to assert that he reasonably believed that he had professional liability coverage under the CIC policy when he specifically purchased such coverage from Liberty Insurance," Justice Robin Davis wrote.

Hayhurst represented Camden-Clark Memorial Hospital in a wrongful death suit that Bernard Boggs filed in 2003.

The hospital filed two counterclaims against Boggs, and neither succeeded.

Boggs filed another suit against the hospital in 2005, alleging malicious prosecution.

In 2006, he won a jury verdict on the wrongful death suit.

Then he sued Hayhurst for malicious prosecution.

Hayhurst notified Liberty Insurance, but Liberty wouldn't cover him.

He and his adversary then formed a strategic partnership.

Boggs added Cincinnati as defendant, and Hayhurst cross claimed Cincinnati.

All three moved for summary judgment. Evans denied it to Boggs and Hayhurst, and granted it to Cincinnati.

Evans harbored doubts, so he certified four questions to the Supreme Court.

Davis boiled his questions down to one: "Does the commercial general liability policy or the personal umbrella liability policy issued by CIC to Mr. Hayhurst cover the claims for malicious prosecution asserted by Mr. Boggs against Mr. Hayhurst?"

No, she answered, writing that "unambiguous policy language excludes coverage for the professional services rendered herein."

She wrote that the policy allowed him to pay an additional premium for professional liability coverage, but he didn't buy it.

The Justices sent the case back to Evans for proceedings consistent with the opinion.

Adam Barnes of Pittsburgh represented Cincinnati.

Ancil Ramey, of Steptoe and Johnson in Charleston, represented Hayhurst.

Christopher Regan, of Bordas and Bordas in Wheeling, represented Boggs.

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