WEST VIRGINIA RECORD

CHARLESTON – The widow of a Charleston policeman who was killed in the line of duty when he was struck by another policeman’s bullet at the conclusion of a car chase has failed in her attempt to have the city’s automobile underinsured motorist insurance coverage effective in regard to her wrongful death claim.

The state Supreme Court issued the memorandum opinion on June 24. Justice Robin Jean Davis cast the lone dissenting vote.

“The tragic facts giving rise to this action are undisputed,” the opinion states.

Charleston Patrolman Jerry Jones was killed at the conclusion of a lengthy car chase that ended in Kanawha County in the early morning hours of Sept. 13, 2009.

Jones and other officers had barricaded an automobile driven by Brian Good with their patrol cars and had exited their cars and instructed Good to get out of his car. Good responded by revving his engine and advancing his car into the police cruisers.

Officers opened fire on Good and Jones was struck by a bullet fired by one of his fellow officers. Patrolman Jones died from the gunshot injury. Good died from gunshot injury as well.

Samantha Jones, Patrolman Jones’ widow, sued Good’s estate for the wrongful death of her husband and Good’s liability insurance carrier paid its policy limits of $50,000.

Because Patrolman Jones was an employee of the City of Charleston, Samantha Jones asserted underinsurance claims against the city’s carrier, Lloyd’s, London. The Lloyd’s policy was issued through Commercial Insurance Services, Inc.

Although the Lloyd’s policy did not contain a provision for underinsured motorist coverage, Samantha Jones filed a petition for declaratory judgment with the circuit court to declare that the policy provided coverage for the death of her husband.

The circuit court granted the insurance company’s motion for judgment on the pleadings on Jan. 27, 2012. Samantha Jones appealed, asserting three assignments of error.

First, she argued that the lower court erred in granting judgment on the pleadings because she had demonstrated her standing to seek declaratory judgment. Second, she asserted that the court failed to take judicial notice of the order approving settlement with Good’s insurance carrier that concluded Jones’ death was proximately caused by the actions of an uninsured motorist, and third, she argued that the lower court improperly converted respondents’ motions to dismiss into summary judgment motions, without affording the parties appropriate notice.

“With regard to petitioner’s first assignment of error,” the court wrote, “there is no indication in the circuit court order or the record on appeal that petitioner’s standing to bring this action was challenged, and there is certainly no suggestion that lack of standing was a factor in the circuit court’s decision.

“We are similarly unconvinced by the argument that Judge Webster’s approval in a separate civil action of the settlement with Good’s insurance carrier imparted an obligation on respondents to provide coverage. This is particularly so in light of Judge (Carrie) Webster’s clear disavowal of her order as a basis for such coverage.”

In the circuit court's order, the judge had specifically stated that the order was not meant to make a legal determination regarding whether underinsured motorist coverage was triggered regarding both Jerry and Samantha Jones personal insurance policy with Erie Insurance and the Lloyd’s, London policy through the City.

“Indeed, none of petitioner’s suggested errors addressed the key, dispositive issue on which the circuit based its dismissal: Good’s advancing of his vehicle on the officers was not an ‘act arising out of the ownership, maintenance, operation, or use’ of that vehicle sufficient to bring the incident leading to the death of Patrolman Jones under the umbrella of the underinsured motorist coverage," the opinion says.

“The circuit court based its decision on Syllabus Point 1 of Baber v. Fortner, 186 W.Va. 413, 412 S.E.2d 814 (1991), wherein we held that ‘an intentional shooting which occurs from within the cab of a stationary pickup truck is not an act arising out of the ownership, maintenance, operation, or use of the vehicle.’ As in Baber, we perceive no adequate ‘but for’ connection between Good’s use of the vehicle and the death of Patrolman Jones. For the foregoing reasons, we affirm.”