Preview:

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term

FILED June 18, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

No. 12-0036

LISBETH L. CHERRINGTON,
Plaintiff Below;
THE PINNACLE GROUP, INC.,
A WEST VIRGINIA CORPORATION; AND
ANTHONY MAMONE, JR., AN INDIVIDUAL,
Defendants and Third-Party Plaintiffs Below,
Petitioners


V.

ERIE INSURANCE PROPERTY AND CASUALTY COMPANY, Third-Party Defendant Below, Respondent

Appeal from the Circuit Court of Greenbrier County
Honorable Joseph C. Pomponio, Jr., Judge
Civil Action No. 06-C-27(P)
AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED


Submitted: March 27, 2013 Filed: June 18, 2013

Marvin W. Masters Kelly Elswick-Hall The Masters Law Firm LC

Michelle E. Piziak Steptoe & Johnson PLLC Charleston, West Virginia

Charleston, West Virginia Richard E. Ford, Jr. The Ford Law Firm Lewisburg, West Virginia Attorneys for the Petitioner, Lisbeth L. Cherrington James R. Sheatsley Gorman, Sheatsley & Company, L.C. Beckley, West Virginia Attorney for the Petitioners, The Pinnacle Group, Inc., and Anthony Mamone, Jr.

Attorney for the Respondent, Erie Insurance Property and Casualty Company

JUSTICE DAVIS delivered the Opinion of the Court.

SYLLABUS BY THE COURT


1.

"Determination of the proper coverage of an insurance contract when

the facts are not in dispute is a question of law." Syllabus point 1, Tennant v. Smallwood, 211 W. Va. 703, 568 S.E.2d 10 (2002).

2.

"The interpretation of an insurance contract, including the question of

whether the contract is ambiguous, is a legal determination that, like a lower court's grant of summary judgement [sic], shall be reviewed de novo on appeal." Syllabus point 2, Riffe v. Home Finders Associates, Inc., 205 W. Va. 216, 517 S.E.2d 313 (1999).

3.

"A circuit court's entry of summary judgment is reviewed de novo."

Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

4.

"In determining whether under a liability insurance policy an occurrence

was or was not an `accident'--or was or was not deliberate, intentional, expected, desired, or foreseen--primary consideration, relevance, and weight should ordinarily be given to the perspective or standpoint of the insured whose coverage under the policy is at issue." Syllabus, Columbia Casualty Co. v. Westfield Insurance Co., 217 W. Va. 250, 617 S.E.2d 797 (2005).

i

5.

"An insurance policy should never be interpreted so as to create an

absurd result, but instead should receive a reasonable interpretation, consistent with the intent of the parties." Syllabus point 2, D'Annunzio v. Security-Connecticut Life Insurance Co., 186 W. Va. 39, 410 S.E.2d 275 (1991).

6.

Defective workmanship causing bodily injury or property damage is an

"occurrence" under a policy of commercial general liability insurance. To the extent our prior pronouncements in Syllabus point 3 of Webster County Solid Waste Authority v. Brackenrich and Associates, Inc., 217 W. Va. 304, 617 S.E.2d 851 (2005); Syllabus point 2 of Corder v. William W. Smith Excavating Co., 210 W. Va. 110, 556 S.E.2d 77 (2001); Syllabus point 2 of Erie Insurance Property and Casualty Co. v. Pioneer Home Improvement, Inc., 206 W. Va. 506, 526 S.E.2d 28 (1999); and Syllabus point 2 of McGann v. Hobbs Lumber Co., 150 W. Va. 364, 145 S.E.2d 476 (1965), and their progeny are inconsistent with this opinion, they are expressly overruled.

7.

"Although our standard of review for summary judgment remains de

novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed." Syllabus point 3, Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232

ii

(1997).


8.

"Language in an insurance policy should be given its plain, ordinary

meaning." Syllabus point 1, Soliva v. Shand, Morahan and Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), overruled on other grounds by National Mutual Insurance Co. v. McMahon and Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. United States Fidelity and Guaranty Co., 202 W. Va. 308, 504 S.E.2d 135 (1998).

9.

"Where the provisions of an insurance policy contract are clear and

unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended." Syllabus, Keffer v. Prudential Insurance Co. of America, 153 W. Va. 813, 172 S.E.2d 714 (1970).

10.

"An insurance company seeking to avoid liability through the operation

of an exclusion has the burden of proving the facts necessary to the operation of that exclusion." Syllabus point 7, National Mutual Insurance Co. v. McMahon and Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. United States Fidelity and Guaranty Co., 202 W. Va. 308, 504 S.E.2d 135 (1998).

iii

11.

"Where the policy language involved is exclusionary, it will be strictly

construed against the insurer in order that the purpose of providing indemnity not be defeated." Syllabus point 5, National Mutual Insurance Co. v. McMahon and Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. United States Fidelity and Guaranty Co., 202 W. Va. 308, 504 S.E.2d 135 (1998).

12.

"The term `business pursuits,' when used in a clause of an insurance

policy excluding from personal liability coverage injuries `arising out of business pursuits of any insured,' contemplates a continuous or regular activity engaged in by the insured for the purpose of earning a profit or a livelihood." Syllabus point 1, Camden Fire Insurance Association v. Johnson, 170 W. Va. 313, 294 S.E.2d 116 (1982).

iv

Davis, Justice: The petitioners herein, Lisbeth L. Cherrington (hereinafter "Ms. Cherrington");1 The Pinnacle Group, Inc. (hereinafter "Pinnacle"); and Anthony Mamone, Jr. (hereinafter "Mr. Mamone"),2 appeal from an order entered December 6, 2011, by the Circuit Court of Greenbrier County. By that order, the circuit court awarded summary judgment to the respondent herein, Erie Insurance Property and Casualty Company (hereinafter "Erie"),3 finding that the three policies of insurance issued by Erie to Pinnacle (commercial general liability policy (hereinafter "CGL")) and Mr. Mamone (homeowners policy and personal catastrophe (hereinafter "umbrella") policy) did not provide coverage for the injuries and property damage allegedly sustained by Ms. Cherrington. Before this Court, the Petitioners4 contend that the subject policies of insurance provide coverage in this case and that none of the policies' exclusions operate to preclude coverage. Upon a review of the parties' arguments, the appendix record, and the pertinent authorities, we affirm the decision

1

Ms. Cherrington was the plaintiff in the underlying proceedings.

Pinnacle and Mr. Mamone were the defendants in the underlying proceedings. These defendants also became third-party plaintiffs when they filed third-party complaints against (1) GLW Construction, Inc. (hereinafter "GLW Construction") and (2) Navigators Insurance Company (hereinafter "Navigators") and Erie Insurance Property and Casualty Company (hereinafter "Erie").
3

2

Erie was a third-party defendant in the underlying proceedings.

For ease of reference, Ms. Cherrington, Pinnacle, and Mr. Mamone also will be referred to collectively as "the Petitioners," unless the context requires individual references.
1


4

of the Greenbrier County Circuit Court finding that neither Mr. Mamone's homeowners policy nor his umbrella policy provides coverage under the facts of this case. However, we reverse the circuit court's ruling finding no coverage to exist under Pinnacle's CGL policy and remand this case for further proceedings consistent with this opinion.

I.
FACTUAL AND PROCEDURAL HISTORY
The case sub judice originated in July 2004 when Ms. Cherrington entered into a "cost plus" contract with Pinnacle for the construction of a home in Greenbrier County, West Virginia. In addition to the completion of the home, the contract also included landscaping and interior furnishings. Mr. Mamone, who allegedly was working on his own behalf5 and also as an agent of Pinnacle, worked with Ms. Cherrington during the contract and construction processes.

During the construction of the home, disputes arose between Ms. Cherrington and Pinnacle when Ms. Cherrington believed that the contract price included all of the landscaping charges but she was asked to provide additional funds therefor. Additionally,

It appears from the record that Mr. Mamone worked on his own behalf vis-a vis that portion of the parties' contract whereby Old White Interiors, LLC, would provide furnishings for the home upon its completion. However, the exact role of Mr. Mamone in this business is not apparent.
2


5

Ms. Cherrington felt that she had been overcharged for the interior furnishings provided under the contract.6 After the home was completed, Ms. Cherrington observed various defects in the house, including an uneven concrete floor on the ground level of the house; water infiltration through the roof and chimney joint; a sagging support beam; and numerous cracks in the drywall walls and partitions throughout the house.7

In 2006, Ms. Cherrington filed the instant lawsuit against Pinnacle and Old White Interiors, LLC, and, in 2007, Ms. Cherrington amended the complaint to add Mr. Mamone as a defendant. Both the original and first amended complaints contain

substantially the same allegations that "Pinnacle was negligent in the construction of said home in the following matters: (a) Altering the design; (b) Negligently pouring and finishing the concrete floor; (c) Finishing and painting of the house; and (d) Placing and securing the foundation." Ms. Cherrington also averred that Pinnacle had breached its fiduciary duty to her by not securing materials and furnishings for the project within the contemplated contract price. She further claimed that she had sustained damages as a result of Pinnacle's "misrepresentations . . . [and] negligent acts . . . in that her home's fair market value has been and is substantially diminished; plaintiff paid excess moneys to Pinnacle above the amount

6

See supra note 5.

Pinnacle and Mr. Mamone assert that, "other than some of the trim work and siding work," all of the work about which Ms. Cherrington complains was performed by subcontractors.
3


7

actually owed; and plaintiff has been subjected to emotional distress and has otherwise been damaged." Ms. Cherrington also claimed that she had been "wrongfully and falsely overcharged for furnishings" and that "[t]he defendants' conduct was intentional and willful misconduct" that entitles her to punitive damages.

During the period of the home's contract negotiation and construction, both Pinnacle and Mr. Mamone had in effect policies of insurance from Erie. Pinnacle had a policy of commercial general liability ("CGL") insurance, that was effective from January 1, 2004, through January 1, 2005. Mr. Mamone had a policy of homeowners insurance with Erie, effective from January 14, 2004, through January 14, 2005, and a personal catastrophe ("umbrella") policy of insurance that was effective from April 19, 2004, through April 19, 2005. Following the filing of Ms. Cherrington's lawsuit, both Pinnacle and Mr. Mamone requested Erie to provide coverage and a defense in accordance with their respective policies. Erie denied both coverage and a duty to defend under the Pinnacle and Mamone policies.

Thereafter, Pinnacle and Mr. Mamone filed a third-party complaint against Erie seeking a declaration of the coverage provided by their policies of insurance.8 Erie then filed

Pinnacle and Mr. Mamone also filed a third-party complaint against GLW Construction, Inc., the subcontractor they claim performed most of the work on Ms. Cherrington's house that she alleges is defective. GLW Construction is not a party to the instant appeal.
4


8

a motion for summary judgment contending that the subject insurance policies do not provide coverage for the claims asserted by Ms. Cherrington and that Erie is not obligated to provide a defense to either Pinnacle or Mr. Mamone.

By order entered December 6, 2011, the circuit court granted Erie's motion for summary judgment. The circuit court determined that Ms. Cherrington had failed to state a claim for damages that would be covered by any of the policies of insurance issued to Pinnacle or Mr. Mamone. In this regard, the court found that Pinnacle's CGL policy provided coverage for "bodily injury" or "property damage" but that Ms. Cherrington's allegations of emotional distress, without physical manifestation, did not constitute a "bodily injury" under the policy's definition of that term. Likewise, the circuit court concluded that Ms. Cherrington had failed to establish covered "property damage" insofar as the damages she alleged in her complaint were economic losses for diminution in the value of her home or excess charges she was required to pay under the contract. Citing Syl. pt. 3, Aluise v. Nationwide Mut. Fire Ins. Co., 218 W. Va. 498, 625 S.E.2d 260 (2005).

The circuit court also determined that Ms. Cherrington had not established that an "occurrence" or "accident" had caused the damages she allegedly had sustained because faulty workmanship, in and of itself, or absent a separate event, is not sufficient to give rise to an "occurrence." Citing Corder v. William W. Smith Excavating Co., 210 W. Va. 110, 556

5


S.E.2d 77 (2001); State Bancorp, Inc. v. United States Fid. & Guar. Ins. Co., 199 W. Va. 99, 483 S.E.2d 228 (1997). Thus, the court found that even if Ms. Cherrington had sustained covered losses, there had been no "occurrence" to trigger coverage under Pinnacle's CGL insurance policy.

Additionally, the circuit court found that, assuming arguendo, Pinnacle's CGL policy provided coverage for Ms. Cherrington's claims, coverage nevertheless would be barred by the operation of the policy's exclusions. Although the parties addressed exclusions L ("Damage to your Work"), M ("Damage to Impaired Property or Property Not Physically Injured"), and N ("Recall of Products, Work or Impaired Property"), the court concluded that exclusion M would operate to preclude coverage because it applies "irrespective of the existence of subcontractors." Citing North American Precast, Inc. v. General Cas. Co. of Wisconsin, 413 Fed. Appx. 574 (4th Cir. 2011) (per curiam); Groves v. Doe, 333 F. Supp. 2d 568 (N.D. W. Va. 2004).

The circuit court further found that, for the same reasons, coverage was not provided by Mr. Mamone's personal policies of insurance because Ms. Cherrington had not sustained a "bodily injury" or "property damage" and because no "occurrence" had caused her loss. Additionally, the circuit court determined that even if Mr. Mamone's homeowners or umbrella policies provided coverage, such coverage would be barred by the operation of

6


the policies' business pursuits exclusion because "the subject litigation arose out of Mr. Mamone's continuous or regular activity for the purpose of gaining a profit or livelihood." Citing Huggins v. Tri-County Bonding Co., 175 W. Va. 643, 337 S.E.2d 12 (1985); Syl. pt. 1, Camden Fire Ins. Ass'n v. Johnson, 170 W. Va. 313, 294 S.E.2d 116 (1982).

Finally, the circuit court ruled that Erie did not have a duty to provide either Pinnacle or Mr. Mamone a defense to Ms. Cherrington's lawsuit. From these adverse rulings, Pinnacle and Mr. Mamone, joined by Ms. Cherrington, appeal to this Court.

II.
STANDARD OF REVIEW
On appeal to this Court, the Petitioners challenge the circuit court's interpretation of the applicable policies of insurance and the resulting award of summary judgment to Erie based upon this interpretation. When asked to review a circuit court's construction of a policy of insurance, we previously have held that "[d]etermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law." Syl. pt. 1, Tennant v. Smallwood, 211 W. Va. 703, 568 S.E.2d 10 (2002). Moreover, "[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination that, like a lower court's grant of summary judgement [sic], shall be reviewed de novo on appeal." Syl. pt. 2, Riffe v. Home Finders Assocs., Inc.,

7


205 W. Va. 216, 517 S.E.2d 313 (1999).

In rendering its ruling regarding the scope of the policies' coverage in this case, the circuit court awarded summary judgment to Erie. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). As we also observed in Syllabus point 2 of Riffe, 205 W. Va. 216, 517 S.E.2d 313, "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

Our review of the parties' arguments will be guided by these standards.

III.
DISCUSSION
Before this Court, the Petitioners assign as error the circuit court's rulings that (1) there was no property damage caused by an occurrence under Pinnacle's CGL policy; (2) the CGL policy's exclusions for "your work" and "impaired property or property not physically injured" precluded coverage; and (3) Mr. Mamone's homeowners and umbrella insurance policies, which cover acts of the insured as a salesman, did not provide coverage.

8


Furthermore, the Petitioners argue that the circuit court refused to interpret the policies consistently with the reasonable expectations of Pinnacle and Mr. Mamone.9 We will consider these assigned errors in turn.

A. Coverage under Pinnacle's Commercial General Liability ("CGL") Policy The first policy of insurance at issue in these proceedings is the policy of CGL insurance that Erie issued to Pinnacle. In the proceedings below, the circuit concluded that the CGL policy did not provide coverage for Ms. Cherrington's claims because (1) the alleged injuries and damages were not caused by an "occurrence" so as to trigger coverage under the CGL policy, and (2) even if the CGL policy provided coverage for Ms. Cherrington's claims, such coverage is precluded by the operation of three of the CGL policy's exclusions. We will consider each of these issues separately.

Pinnacle and Mr. Mamone did not assign error to the circuit court's conclusion that Erie had no duty to defend them with respect to the claims Ms. Cherrington has asserted against them. While the Petitioners' brief succinctly quotes the case of Aetna Casualty and Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986), wherein this Court addressed an insurer's duty to defend, an isolated case reference, without supporting argument, is not sufficient to preserve this issue for appellate consideration. See generally State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) ("Although we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing . . ., are not considered on appeal."); State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) ("[C]asual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal." (internal quotations and citation omitted)). Accord Covington v. Smith, 213 W. Va. 309, 317 n.8, 582 S.E.2d 756, 764 n.8 (2003).
9


9

1. Coverage under CGL policy. The Petitioners first assign error to the circuit court's ruling that Pinnacle's CGL policy does not provide coverage for Ms. Cherrington's claims because defective workmanship does not constitute an "occurrence" so as to trigger coverage thereunder. In rendering its ruling, the circuit court relied upon this Court's prior decision holding that CGL insurance does not provide coverage for defective workmanship. See Corder v. William W. Smith Excavating Co., 210 W. Va. 110, 556 S.E.2d 77 (2001). Before this Court, the Petitioners urge that the subject CGL policy should be read to provide coverage for Ms. Cherrington's claims. Erie rejects the Petitioners' contentions and maintains that the circuit court correctly found that Pinnacle's CGL policy does not provide coverage for allegedly defective workmanship.

The CGL policy that Erie issued to Pinnacle defines the scope of the policy's coverage in pertinent part as follows: We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury"[10] or "property damage"[11] to which this insurance applies.
10

The subject CGL policy defines "bodily injury" as follows:

"Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
11

"Property damage" is defined in the subject CGL policy, in pertinent part, as

follows: (continued...)
10


This insurance applies to "bodily injury" and "property damage" only if: 1) The "bodily injury"[12] or "property damage"[13] is caused by an "occurrence"[.][14] (Footnotes added). The policy then defines the term "occurrence," referenced in its insuring clause, as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. Noticeably absent from the policy's definitional section, however, is the term "accident," which is used in the policy's definition of "occurrence" but which is not defined by the subject policy.

11

(...continued)
"Property damage" means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.

12

See supra note 10. See note 11, supra.

13

The policy further requires that the referenced bodily injury or property damage occur within the policy's "coverage territory" and "during the policy period." The parties do not dispute that these criteria have been satisfied in the case sub judice.
11


14

We previously have addressed the same issue that has been presented for the Court's resolution in the case sub judice: is defective workmanship a covered "occurrence" under the provisions of a policy of CGL insurance? Our decision in Erie Insurance Property and Casualty Co. v. Pioneer Home Improvement, Inc., 206 W. Va. 506, 526 S.E.2d 28 (1999), began this Court's trilogy of seminal cases on this issue by concluding that a claim for faulty workmanship is not covered by a CGL policy: A lawsuit commenced by a building owner against a building contractor alleging damages caused by faulty workmanship is not within the coverage provided by the contractor's general liability policy of insurance unless such coverage is specifically included in the insurance policy. A commercial general liability policy insurer has no duty to defend a contractor in a lawsuit nor to indemnify a contractor for sums paid to settle the lawsuit or to satisfy a judgment unless the insurance policy specifically requires the insurer to do so. Syl. pt. 2, id. Thereafter, we again considered this issue in Corder v. William W. Smith Excavating Co., 210 W. Va. 110, 556 S.E.2d 77 (2001), wherein we reiterated and clarified our prior holding as follows: Commercial general liability policies are not designed to cover poor workmanship. Poor workmanship, standing alone, does not constitute an "occurrence" under the standard policy definition of this term as an "accident including continuous or repeated exposure to substantially the same general harmful conditions." Syl. pt. 2, id. Finally, in Webster County Solid Waste Authority v. Brackenrich and Associates, Inc., 217 W. Va. 304, 617 S.E.2d 851 (2005), we further expanded our prior holdings that defective workmanship is not a covered occurrence by explaining our view of
12


the scope of a CGL policy's coverage: Rather than providing coverage for a product or work performance that fails to meet contractual requirements, the commercial general liability policy is specifically designed to insure against the risk of tort liability for physical injury to persons or property sustained by third parties as a result of the product or work performed or damages sustained by others from the completed product or finished work. Because faulty workmanship claims are essentially contractual in nature, they are outside the risks assumed by a traditional commercial general liability policy. Syl. pt. 3, id. See also Syl. pt. 2, McGann v. Hobbs Lumber Co., 150 W. Va. 364, 145 S.E.2d 476 (1965) ("A liability insurance policy, unlike a builder's risk policy, is designed to indemnify the insured against damage to other persons or property caused by his work or property and is not intended to cover damage to the insured's property or work completed by him.").

Despite this Court's express holdings that a CGL policy does not provide coverage for defective workmanship, we are acutely aware that, after we rendered these rulings, many other courts also considered this issue and rendered their own rulings.15 Some of those jurisdictions have reached conclusions similar to those expressed in our prior

See generally Christopher C. French, Construction Defects: Are They "Occurrences"?, 47 Gonz. L. Rev. 1 (2012) (compiling cases considering whether defective workmanship constitutes an "occurrence" under provisions of CGL insurance policy).
13


15

opinions.16 However, a majority of other states have reached the opposite conclusion, announcing their contrary view either in judicial decisions17 or through legislative amendments to their states' insurance statutes.18 While we appreciate this Court's duty to follow our prior precedents, we also are cognizant that stare decisis does not require this Court's continued allegiance to cases whose decisions were based upon reasoning which has become outdated or fallen into disfavor. "Although we fully understand that the doctrine of stare decisis is a guide for maintaining stability in the law, we will part ways with precedent that is not legally sound." State v. Sutherland, ___ W. Va. ___, ___, ___ S.E.2d ___, ___, slip op. at 15 (No. 11-0799 June 5, 2013). Thus, "when it clearly is apparent that an error has been made or that the application of an outmoded rule, due to changing conditions, results in injustice, deviation from that policy is warranted." Woodrum v. Johnson, 210 W. Va. 762, 766 n.8, 559 S.E.2d 908, 912 n.8 (2001) (internal quotations and citations omitted). See also Syl. pt. 2, in part, Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974) ("An appellate court should not overrule a previous decision . . . without evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the law."). We recognize that a definite trend in the law has emerged since we

16

See infra note 21.
See note 19, infra.
See infra note 20.

14


17

18

rendered our determinative decision in Corder sufficient to warrant this Court's reconsideration of the issues decided therein and that, if warranted, a departure from this Court's prior opinions would be consistent with this Court's steadfast resolve to follow the law to achieve just, fair, and equitable results. See, e.g., State v. Sutherland, ___ W. Va. ___, ___ S.E.2d ___ (No. 11-0799 June 5, 2013) (overruling Court's prior precedent to adopt view in line with majority of jurisdictions addressing issue); State of West Virginia ex rel. Discover Fin. Servs., Inc. v. Nibert, ___ W. Va. ___, ___ S.E.2d ___ (Nos. 13-0086 & 13-0102 June 4, 2013) (overruling Court's prior precedent to correct "serious judicial error" therein (internal quotations and citation omitted)).

As we have noted, many cases have emerged since this Court's 2001 definitive holding in Corder considering whether defective workmanship is an "occurrence" under a policy of CGL insurance. To summarize these rulings, the courts adopting the majority view have concluded that the subject CGL policy provided coverage for the defective work.19

See Lennar Corp. v. Auto-Owners Ins. Co., 214 Ariz. 255, 262-64, 151 P.3d 538 (Ct. App. 2007) (finding that damages resulting from defective workmanship constitute an "occurrence" under CGL policy); Century Indem. Co. v. Hearrean, 120 Cal. Rptr. 2d 66, 98 Cal. App. 4th 734 (2002) (concluding that defective construction triggered coverage as an "occurrence" under CGL policy); Capstone Bldg. Corp. v. American Motorists Ins. Co., No. 18886, 2013 WL 2396276, at *6 (Conn. June 11, 2013) ("[W]e conclude that defective workmanship can give rise to an "occurrence"[.]"); United States Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 888 (Fla. 2007) ("We hold that faulty workmanship that is neither intended nor expected from the standpoint of the contractor can constitute an `accident' and, thus, an `occurrence' under a post

Download 12-0036.pdf

West Virginia Law