Skylar Neese's Murder: An Occurrence under Homeowner's Policies?, Lecture notes of Law

Download Skylar Neese's Murder: An Occurrence under Homeowner's Policies? and more Lecture notes Law in PDF only on Docsity! -- " Ib~ozqo Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 1 of 15 PagelD #: 525 IT~O~~~ IN THE UNITED STATES DISTRICT COIJRT liP [ MAR 232016 JiUI FOR THE NORTHERN DISTRICT OF WEST VIRGINIfU _____ i t=:,.:-r-"· L. r.... ~:::~';'~, ·=_::"i:1\ AMERICAN NATIONAL PROPERTY AND I SUPn~'~cC_= "'~:;c ;,PPEALS CASUALTY COMPANY, .___5~ __:,,_. ,,-..,,_,·,-.,A___, Plaintiff, v. 1/ CIVIL ACTION NO. 1:14CV155 LEAD CASE (Judge Keeley) TARA 'CLENDENEN, JAMES CLENDENEN, MARY A. NEESE Administratrix and Personal Representative of the Estate of Skylar Neese, Deceased, DAVID I hereby certify that the annexed instrumentNEESE, and MARY A. NEESE, i.ndivi.dually, !s a true and correct copy of the document filed In my office. . Defendants. ATTEST: Cheryl Dean Riley Clerk. U.S. District Court No rn District of West Virginia and BY·TH+-I-~~~~~~___ ERIE INSURANCE PROPERTY & CASUALTY COMPANY, Plaintiff, v. II CIVIL ACTION NO. 1:14CV172 (Judge Keeley) ,MARY A. NEESE, Individually and as Administratrix of the Estate of Skylar Neese, DAVID NEESE, TARA CLENDENEN, and PATRICIA SHOAF, Defendants. ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA The United States District Court for the Northern District of West Virginia, through the Uniform Certification of Questions of Law Act, W. Va. Code § 51~lA-l et seq., requests that the Supreme Court of Appeals of West Virginia exercise its discretion to answer Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 2 of 15 PagelD #: 526 AMERICAN NAT'L V. CLENDENEN 1: 14CV155 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA the following que,stions: 1. Applying West Virginia public policy and rules of contract construction, do the unambiguous exclusions in American National's policy for bodily injury or property damage "which is expected or intended by any insured even if the actual injury or damage is different than expected or intended," and "arising out of any criminal act committed by or at the direction of any insured," and the unambiguous exclusion in Erie's policy for "[b]odily injury, property damage, or personal injury expected or intended by 'anyone we protect' . ," preclude liability coverage for insureds who did not commit any intentional or criminal act? 2. If so, do the unambiguous severability clauses in the insurance policies, which state that the insurance applies separately to each insured, prevail over the exclusions and require the insurers to apply the exclusions separately to each insured, despite the intentional and criminal actions of co-insureds? The Court acknowledges that the Supreme Court of Appeals may reformulate these questions. W. Va. Code § 51-1A-6(a) (3); W. Va. Code § 51-1A-4. The Court perceives that the answer to the foregoing questions of West Virginia law may be determinative of the pending claims. Moreover, the decisions of the Supreme Court of Appeals provide no controlling precedent dispositive of the questions. To illustrate the nature of the controversy out of which the questions arise, the Court incorporates its Memorandum Opinion and Order of March 1, 2016, attached as Exhibit A, and sets out a factual and procedural 2 Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 5 of 15 PagelD #: 529 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA Supervision/Entrustment," they allege that Mrs. Clendenen and Mrs. Shoaf, as parents, guardians, and custodians of Eddy and Shoaf, "were negligent and careless in their supervision and guidance of their daughters." Id. at 9. At the time of Skylar's murder, American National Property and Casual ty Company ("American National")' insured Mrs. Clendenen under both a homeowner's policy and an automobile policy (Dkt. No.1 at 3).3 Following Mrs. Clendenen's demand for coverage, it has been defending her in the state court action pursuant to a reservation of rights. Id. at 4. Similarly, at the time of Skylar's death, Erie Insurance Property & Casualty ("Erie") insured Mrs. Shoaf under both its homeowner's and automobile policies (Case No. 1:14CV172, Dkt. No.1 at 2).4 Following her demand for coverage, it has been defending Mrs. Shoaf pursuant to a reservation of rights. Id. 3 Mrs. Clendenen's American National automobile policy did not cover the 2006 Toyota Camry and is not at issue in this litigation. 4 In addition to insuring Mrs. Shoaf under an automobile policy, Erie provided automobile coverage to Mrs. Clendenen for her 2006 Toyota Camry (Case No.1: 14CV172, .Dkt. No. 1 at 2). The parties have agreed that the Erie automobile policies are not at issue because Skylar's death did not arise out of the operation of a motor vehicle (Dkt. No. 56 at 10). 5 Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 6 of 15 PagelD #: 530 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA II. DecJ.aratory Judgment Action Although" American National and Erie are not parties to the state court action, they have each filed suit in this Court seeking a declaration that, under their respective policies, they have no duty to defend and cover Mrs. Clendenen and Mrs. Shoaf in the Neeses' state court action. American National's complaint specifically seeks a declaratory judgment that Mrs. Clendenen is not covered under either her automobile or homeowner's policies, and that American National has no duty to defend or indemnify her in the state court action (Dkt. No.1 at 8). Similarly, Erie seeks a declaratory judgment that Eddy, Shoaf, Mrs. Clendenen, and Mrs. Shoaf are not covered under any of Erie's policies and therefore not entitled to a defense or indemnification in the state court action (Case No. 1:14CV172, Dkt. No.1 at 18). The Court has consolidated the cases, designating 1:14CV155, the American National case, as the lead case (Dkt. No. 24). Both American National and Erie have moved for summary judgment (Dkt. Nos. 40, 42), while the Neeses have filed a combined cross-motion for partial summary judgment and brief in opposition to American National and Erie's motions (Dkt. No. 45). The Clendenens have joined the Neeses' cross-motion for summary judgment (Dkt. No. 47), and Mrs. Shoaf has filed her own combined 6 Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 7 of 15 PagelD #: 531 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA cross-motion for summary judgment and brief in response (Dkt. No. 48). On March 21, 2016, pursuant to the joint motion of American National and Erie, the Court dismissed Shelia Eddy and Rachel Shoaf as defendants (Dkt. No. 65). DISCUSSION American National argues that Mrs. Clendenen is not covered under its homeowner's policy because there was no "occurrence" within the meaning of the policy. If there was an occurrence, it contends that the policy excludes coverage for intentional or criminal acts by "any insured" (Dkt. No. 40 at 3). Erie asserts that Mrs. Shoaf is not covered under its homeowner's policy because Skylar's murder was not an "occurrence." If there was an occurrence, Erie contends that its policy excludes coverage for "anyone we protect" based on Rachel Shoaf's intentional acts (Dkt. No. 42 at 2). According to the Neeses, Mrs. Clendenen and Mrs. Shoaf are entitled to coverage under their homeowner's policies. As a threshold issue, they assert that, from the viewpoint of Mrs. Clendenen and Mrs. Shoaf, Skylar's death was an accident, and therefore an "occurrence" under the policies (Dkt. No. 46 at 10­ 7 Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 10 of 15 PagelD #: 534 AMERICAN NAT' LV. CLENDENEN 1: 1.4 CVl.S 5 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA original).6 Whether coverage is available to Mrs. Clendenen and Mrs. Shoaf under the relevant homeowner's policies is dispositive of this action. It is unclear how, under its public policy and rules of contract construction, West Virginia would prioritize the exclusions and severability clauses' in the American National and Erie homeowner's policies to determine whether coverage is available to Mrs. Shoaf and Mrs. Clendenen in the state court action. In Sayre ex reI. Estate of Culp v. State Farm Fire & Cas. Co., No. 11-0962, 2012 WL 3079148, at *1 (W. Va. May 25, 2012), an unreported memorandum decision,7 the Supreme Court of Appeals considered whether the Estate of Linda Culp was entitled to insurance proceeds from State' Farm after Linda Culp, a named insured under the State Farm homeowner's policy, was killed by Gary Culp, her husband. State Farm denied the Estate's claim for wrongful death damages based on the "family exclusion" in the Culps' homeowner's policy, which excluded liability coverage for 6 Anyone we protect is defined, in relevant part, as follows: "anyone we protect means you and the following members of your household: 1. relatives and wards; 2. other persons in the care of anyone we protect .. " (Dkt. No. 49-2 at 5). 7 Sayre thus is without precedential value. See Pugh v. Workers' Compensation Com'r, 424 S.E.2d 759, 762 (W. Va. 1992). 10 Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 11 of 15 PagelD #: 535 AMERICAN NAT'L V. CLENDENEN 1: 14CV155 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA bodily injury to "you [the named insured] or any insured." rd. Both Linda and Gary Culp were named insureds under the policy. The circuit court concluded that, pursuant to the family exclusion, the homeowner's policy did not provide liability coverage.for Gary Culp's killing of Linda Culp. rd. The Estate,of Linda Culp had contended that the severability clause in the homeowner's policy created an ambiguity that defeated the family exclusion, but the circuit court rejected that argument, stating: "[The severability] clause appears to exist to potentially confer liability coverage to one insured even when another insured may not be entitled to liability coverage, where multiple insureds are alleged to be 2iab2e for one occurrence. In this case, there are no liability claims against the Estate of Linda Culp, and further, the Estate of Linda Culp could not be liable to itself; accordingly, the severability clause has no application." rd. at *2 (emphasis in original) (quoting the order of the circuit court) .8 On appeal, the Supreme Court of Appeals agreed. rd. While suggesting in dicta that a severability clause might confer liability coverage on a co-insured where multiple insureds are alleged to be liable, it held that "Linda Culp was a named insured 8 As in Sayre, the severability provisions in the American National and Erie policies are located in the "Conditions" sections. 11 Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 12 of 15 PagelD #: 536 AMERICAN NAT' LV. CLENDENEN 1:14CV155 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA and there was no liability coverage in the homeowner's policy for bodily injury of an insured." rd. Sayre did not decide the question presented here: Whether the severability clause in an insured's homeowner's liability policy confers coverage in the face of a policy exclusion that would otherwise exclude it. Other than Sayre, the parties and the Court have been unable to identify any case in which the Supreme Court of Appeals has determined the priority of exclusionary and severability clauses in a homeowner's liability policy. NAMES AND ADDRESSES OF COUNSEL Pursuant to W. Va. Code § 51-1A-6(a) (4), the Court provides the names and addresses of counsel of record and unrepresented parties. Counsel. Address Cl.:i.ent (s) Dwayne E. Cyrus Shuman, McCuskey & American National Slicer PLLC Property and Casualty Company PO Box 3953 1411 Virginia Street East, Suite 200 Charleston, WV 25301 12 Case 1:14-cv-00155-IMK Document 66 Filed 03/22/16 Page 15 of 15 PagelD #: 539 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ORDER OF CERTIFICATION TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA insured, despite the intentional and criminal actions of co-insureds? • That the Clerk forward to the Supreme Court of Appeals, under the official seal of this Court, a copy of-this Order, a copy of the Court's Memorandum Opinion and Order of March 1, 2016, and, to the extent requested by the Supreme Court of ~ppeals, the original or a copy of the record in this Court; and, • That any request for all or part of the record be fulfilled by the Clerk simply upon notification from the Clerk of the Supreme Court of Appeals. The Court further DIRECTS the Clerk to transmit copies of this Order of Certification to counsel of record. DATED: March 22, 2016. Is! Irene M. Keeley IRENE M. KEELEY UNITED STATES DISTRICT JUDGE 15 Case 1:14-cv-00155-IMK Document 56 Filed 03/01/16 Page 1 of 24 PagelD #: 465 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Plaintiff, v. II CIVIL ACTION NO. 1:14CV155 LEAD CASE (Judge Keel.ey) TARA CLENDENEN, JAMES CLENDENEN, MARY A. NEESE Administratrix and Personal. Representative of the Estate of Skyl.ar Neese, Deceased, DAVID NEESE, and MARY A. NEESE, indi.vidual.l.y, !hereby certify that the annexed fMtrUMtftt !s a true and correct Cfl)py of the dOWffltmt fi'e~ In my Office. . Defendants. ATIeST: Cheryl Dean Riley' Clerk. U.S. DistriCt Court..· . . No ern District of West YJrglnlaand By: u.o-. '.: rT~~~~~~~~ ERIE INSURANCE PROPERTY & CASUALTY COMPANY, Pl.aintiff, v. II CIVIL ACTION NO. 1:14CV172 (Judge Keel.ey) MARY A. NEESE, Indi.viduall.y and as Administratrix of the Estate of Skyl.ar Neese, DAVID NEESE, SHELIA EDDY, RACHEL SHOAF, TARA CLENDENEN, and PATRICIA SHOAF, Defendants. MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE Pending before the Court in this declaratory judgment action are several cross-motions for summary judgment. The plaintiffs, American National Property and Casualty Company ("American National") and Erie Insurance Property & Casualty ("Erie"), seek a Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 2 of 24 PagelD #: 466 AMERICAN NAT'L V. CLENDENEN 1: 14CV155 ERIE V. NEESE 1: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE declaration that defendants Tara Clendenen (QMrs. Clendenen") and Patricia Shoaf (QMrs. Shoaf") are not insureds under their respective homeowner's policies, or that coverage is excluded. For their part, the defendants seek a declaration that Mrs. Clendenen and Mrs. Shoaf are entitled to a defense and indemnity under the homeowner's policies in an underlying state court action. During a status conference held on February 23, 2016, the Court ruled in favor of the defendants on the insurability question. This Memorandum Opinion and Order addresses the following issues: (1) Whether Skylar Neese's death was an "occurrence" from the perspective of Mrs. Clendenen and Mrs. Shoaf; (2) whether Mrs. Shoaf and Rachel Shoaf are entitled to coverage under the personal injury portion of the Erie homeowner's policy; and, (3) whether either the severability clauses or the exclusions in the homeowner's policies are ambiguous. The Court intends to certify the exclusion and severability questions to the Supreme Court of Appeals of West Virginia ("the Supreme Court of Appeals") by separate order. 2 Case 1:14-cv-00155-IMK Document 56 Filed 03/01/16 Page 5 of 24 PagelD #: 469 AMERICAN NAT' LV. CLENDENEN 1.:1.4CV155 ERIE V. NEESE 1.: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE No. 1 at 3}. 3 The American National automobile policy did not cover Eddy's 2006 Toyota Camry, which she drove on the night of the murder. Based on the homeowner's policy, American National is currently defending Mrs. Clendenen in the state court case under a reservation of rights. Id. at 4. Similarly, Erie insured Mrs. Shoaf under an automobile policy and a homeowner's policy at the time of Skylar's murder (Case No. 1:14CV172, Dkt. No.1 at 2). It also provided an automobile policy to Mrs. Clendenen that covered the 2006 Toyota Camry. Id. at 2, 13. Erie denied a defense and indemnification to Shoaf, Eddy, Mrs. Clendenen, and Mrs. Shoaf under the automobile policies, but is currently defending Mrs. Shoaf under a reservation of rights pursuant to the homeowner's policy. Id. at 4. PROCEDURAL HISTORY On September 12, 2014, American National filed suit in this Court, seeking a declaratory judgment that Mrs. Clendenen is not covered by the insurance policies, thereby obviating its duty to defend or indemnify (Dkt. No.1 at 8). On October 16, 2014, Erie filed suit, seeking a declaratory judgment that Shoaf, Eddy, Mrs. 3 Under the American National policies, James Clendenen, who is Mrs. Clendenen's husband and Eddy's step-father, was the named insured (Dkt. No. 1 at 3). The parties do not dispute that Mrs. Clendenen and Eddy were also insured under the policy. 5 Case 1:14-cv-00155-IMK Document 56 Filed 03101116 Page 6 of 24 PagelD #: 470 AMERICAN NAT'L V. CLENDENEN 1: 14CV155 ERIE V. NEESE 1: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE Clendenen, and Mrs. Shoaf are not covered by the insurance policies, and therefore not entitled to a defense or indemnification (Case No. 1:14CV172, Dkt. No.1 at 18). On December 3, 2014, the Court consolidated the two cases and designated 1:14CV155 as the lead case (Dkt. No. 24). On March 9, 2015, American National moved for summary judgment, arguing that its automobile policy did not cover the vehicle used on the night of Skylar's murder (Dkt. No. 40 at 2-3). As to its homeowner's policy, it contends no coverage exists because there was no "occurrence" within the meaning of the policy and, even if there was an occurrence, the policy exclusions for intentional or criminal acts preclude coverage. rd. at 3. Erie moved for summary judgment on March 9, 2015, arguing that Mrs. Shoaf is not covered under its homeowner's policy because Skylar's murder was not an "occurrence" (Dkt. No. 42 at 2). As does American National, Erie contends that, even if coverage exists, the claims in the state court case fall within the policy's criminal or intentional act exclusions. rd. As to the automobile policies, Erie alleges that no coverage exi~ts because Skylar's murder did not arise out of the ownership, operation, maintenance, use, loading, or unloading of a covered vehicle. rd. 6 Case 1:14-cv-00155-IMK Document 56 Filed 03/01/16 Page 7 of 24 PagelD #: 471 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ERIE V. NEESE 1: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE On April 8, 2015, the Neeses filed a combined cross-motion for partial summary judgment and opposition to American National and Erie's motions (Dkt. No. 45).4 They concede that Eddy and Shoaf are not entitled to insurance coverage under any policy, and that the automobile policies are inapplicable because Skylar's murder did not arise out of the use of a motor vehicle (Dkt. No. 46 at 3­ 4) . The Neeses, however, contend that Mrs. Clendenen and Mrs. Shoaf are entitled to coverage under the homeowner's policies for the following reasons: (1) Skylar's death was an accident, and thus, an occurrence, from the viewpoint of Mrs. Clendenen and Mrs. Shoaf; and, (2) the criminal or intentional act exclusions in the homeowner's policies conflict with the severability clauses, thereby creating an ambiguity that must be resolved in favor of the defendants. rd. at 8-10. Mrs. Shoaf filed a combined cross-motion for summary judgment and response on April 13, 2015 (Dkt. No. 48).5 She admits that Erie owes her no coverage under her automobile policy, but contends that coverage exists under her homeowner's policy (Dkt. No. 49 at 4 On April 13" 2015, the Clendenens joined the Neeses' cross­ motion for summary judgment (Dkt. No. 47). 5 Rachel Shoaf adopted Mrs. Shoaf's cross-motion and response (Dkt. Nos. 50, 53). 7 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 10 of 24 PagelD #: 474 AMERICAN NAT' LV. CLENDENEN 1:14CV155 ERIE V. NEESE 1:14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE ANALYSIS As previously discussed, the parties have agreed that no coverage exists under the three automobile policies. Additionally, the Neeses and Clendenens concede that no coverage exists for either Eddy or Shoaf. 6 The Court therefore will address the following issues: (1) Was Skylar's death an "occurrence" from the p·erspective of Mrs. Clendenen and Mrs. Shoaf? (2) Are Mrs. Shoaf and Rachel Shoaf entitled to coverage under the personal injury portion of the Erie homeowner's policy? and, (3) Are either the severability clauses or the exclusions in the homeowner's policies ambiguous? I. Insurability American National and Erie contend that the state court complaint does not allege an "occurrence" that would trigger a duty to defend and indemnify Mrs. Clendenen or Mrs. Shoaf because Skylar's death was not an accident (Dkt. No. 41 at 21-22; Dkt. No. 43 at 15). The Neeses argue that the determination of whether an incident is an accident, and therefore an occurrence, must be made 6 At the status conference, counsel for Mrs. Shoaf clarified that the Shoafs believe coverage exists for Mrs. Shoaf and Rachel Shoaf. 10 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 11 of 24 PagelD #: 475 AMERICAN NAT'L V. CLENDENEN 1:14CV155 ERIE V. NEESE 1:14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE from the viewpoint of the insureds, Mrs. Clendenen and Mrs. Shoaf I (Dkt. No. 46 at 16). Mrs. Clendenen's American National homeowner's policy provides that an "occurrence" is defined as "an accident, including exposure to conditions," which results in either bodily injury or property damage during the policy period (Dkt. No. 1-3 at 8). "Repeated or continuous exposure to substantially the same general 'conditions is considered to be one occurrence." Id. Similarly, Mrs. Shoaf's Erie homeowner's policy defines an occurrence as "an accident, including continuous or repeated exposure to the same general harmful conditions" (Dkt. No. 49-2 at 6). The term "accident" is not defined in either policy. 7 See Columbia Cas. Co. v. Westfield Ins. Co., 617 S.E.2d 797, 799 (W. Va. 2005) (giving the undefined .term "accident" its normal meaning in light of all the relevant circumstances). When not defined in the policy, an accident generally means "an unusual, unexpected and unforeseen event," a "chance event or event arising from unknown causes." West Virginia Fire & Cas. Co. v. Stanley, 602 S".E. 2d 7 In this diversity action, state law controls the Court's construction of the insurance policy. See In re Nantahala Vill., Inc., 976 F.2d 876, 880-81 (W. Va. 1992). 11 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 12 of 24 PagelD #: 476 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ERIE V. NEESE 1: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE 483, 492 (W. Va. 2004) (internal citations and quotation marks omitted) . Importantly, when determining whether an occurrence was an accident, the Court must give "primary consideration, relevance, and weight" to the perspective or standpoint "of the insured whose coverage under the policy is at issue." Columbia Cas., 617 S.E.2d at 800-801. In Columbia Casualty, the Supreme Court of Appeals analyzed whether a county commission was entitled to coverage under its liability insurance policy after two inmates committed suicide. Id. at 798. The insurer declined to defend the commission, arguing that the inmates' deaths were not accidental, and therefore not occurrences as defined by the policy. Id. The Supreme Court of Appeals held that the inmates' suicides were accidental from the perspective of the insured commission, thereby making them "occurrences" within the meaning of the policy. Id. at 801. Here, after examining the coverage question from the perspective of Mrs. Clendenen and Mrs. Shoaf, the Court concludes that Skylar's death was an occurrence within the meaning of the American National and Erie policies. Skylar's death indisputably was intended by Eddy and Shoaf. Yet, when taken from the Mrs. Clendenen and Mrs. Shoaf's perspectives, the facts in the state 12 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 15 of 24 PagelD #: 479 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ERIE V. NEESE 1: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS ~ONFERENCE 45 at 3; Dkt. No. 47 at 2).9 Mrs. Shoaf, however, vigorously argues that coverage for herself and her daughter should exist for the "specific intentional acts" pleaded in the state court complaint under the personal injury liability coverage portion of the Erie homeowner's policy (Dkt. No. 49 at 18). Shoaf has adopted that argument by reference (Dkt. No. 50 at 2). According to Mrs. Shoaf, certain allegations in Count II of the state court complaint - which only names Eddy and Shoaf - "can be read" to state claims for libel, slander, defamation of character, invasion of privacy, and wrongful detention (Dkt. No. 49 at 19-21). She contends that Count III, which alleges she negligently allowed her daughter to commit tortious acts, permits the Neeses to seek damages against her for the same intentional torts alleged against her daughter. Id. at 21. The Erie homeowner's policy provides coverage for personal injuries (Dkt. No. 49-2 at 15). It defines "personal injury" as injury arising out of "libel, slander or defamation of character; false arrest, wrongful detention or imprisonment, malicious prosecution, racial or religious discrimination, wrongful entry or 9 The Clendenens adopted by reference the Neeses' cross-motion and memorandum of law (Dkt. No. 47 at 2). Eddy did not file a response or cross-motion. 15 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 16 of 24 PagelD #: 480 AMERICAN NAT' LV. CLENDENEN 1: 14CV155 ERIE V. NEESE 1: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE eviction, invasion of privacy, or humiliation caused by any of these." Id. at 6. In Count II of the state court complaint, which is labeled "Negligence/Reckless Concealment," the Neeses allege that Eddy and Shoaf "negligently and recklessly failed to disclose [Skylar's] whereabouts and provided false and misleading information regarding [Skylar's] disappearance ... " (Dkt. No. 1-5 at 8) . According to Mrs. Shoaf, the allegation that Eddy and Shoaf provided false and misleading information "presumably relate[s] to numerous false reports . provided to investigators " (Dkt. No. 49 at 19). Those reports "presumably" include "suggestions . relating to Skylar Neese's character," which "would be consistent with libel, slander, or defamation of character, all of which are covered under the [Erie policy] . " Id. at 20. Similarly, Mrs. Shoaf contends the factual allegation that Eddy and Shoaf "provided false and misleading information" about Skylar's disappearance "can fairly be read to be providing publicity that 'unreasonably places another in a false light before the public,' in other words an invasion of privacy." Id. Finally, Mrs. Shoaf alleges that the contentions in the complaint regarding a plan to take Skylar to Pennsylvania for a purpose other than what 16 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 17 of 24 PagelD #: 481 AMERICAN NAT' LV. CLENDENEN 1:14CV155 ERIE V. NEESE 1:14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE she intended raise a claim of wrongful detention or false imprisonment. Id. at 21. Unsurprisingly, Erie argues that Mrs. Shoaf's attempt to find coverage under the personal injury liability portion of the homeowner's policy is "misguided" (Dkt. No. 52 at 20). It does not contest that the enumerated intentional torts are included within its policy's definition of personal injury. Id. Rather, Erie contends that "[eJ ven a liberal reading of the complaint in the underlying action" compels the conclusion that Count II is a concealment claim, and not any of the torts mentioned by Mrs. Shoaf. Id. The Court agrees. " [AJ n insurer's duty to defend is tested by whether the allegations in the plaintiff's complaint are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policy." Aetna Cas. & Sur. Co. v. Pitrolo, 342 S.E.2d 156, 160 (W. Va. 1986). The Court need not adjudicate the underlying facts to make this determination. See Stanley, 602 S.E.2d at 490. The insurer has a duty to defend the insured "only if the claim stated in the underlying complaint could, without amendment, impose liability for risks the policy covers." State Auto. Mut. Ins. Co. v. Alpha Ena'a Servo Inc., 342 S.E.2d 876, 879 (W. Va. 2000). Although West Virginia is a notice pleading state 17 Case 1:14-cv-00155-IMK Document 56 Filed 03/01/16 Page 20 of 24 PagelD #: 484 AMERICAN NAT'L V. CLENDENEN 1: 14CV155 ERIE V. NEESE 1:14CV172 :MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE Similarly, Erie's policy excludes from coverage "[b] odily injury, property damage, or personal injury expected or intended by anyone we.protect .... " (emphasis in original) (Dkt. No. 49-2 at 16) .11 It also excludes "[p]ersonal injury arising out of willful violation of a law or ordinance by anyone we protect." (emphasis in original) (Dkt. No. 49-2 at 17). The severability of insurance clause provides that" [t] his insurance applies separately to anyone we protect." (emph~.sis in original) (Dkt. No. 49-2 at 18). When interpreting an insurance policy, the Court must give the policy language its plain, ordinary meaning. Stanley, 602 S.E.2d at 489 (quoting Syl. Pt. 1, Soliva v. Shand, Morahan & Co., Inc., 345 S.E.2d 33 (1986) (internal quotation marks omitted». When the policy language is clear and unambiguous, it is "not subj ect to judicial construction or interpretation." Id. (quoting Syl., Keffer v. Prudential Ins. Co., 172 S.E.2d 714 (1970) (internal quotation marks omitted) ). Rather, the Court will give full effect to the plain meaning intended. A policy provision is ambiguous if the language "is reasonably susceptible of two 11 AIiyone we protect is defined, in relevant part, as follows: "anyone we protect means you and the following members of your household: 1. relatives and wards; 2. other persons in the care of anyone we protect ... " (Dkt. No. 49-2 at 5). 20 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 21 of 24 PagelD #: 485 AMERICAN NAT' LV. CLENDENEN 1:1.4CV155 ERIE V. NEESE 1: 14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning." Id. (quoting Syl. Pt. 1, Prete v. Merch. Prop. Ins. Co., 223 S.E.2d 441 (1976) (internal quotation marks omitted)). In West Virginia, ambiguous terms in insurance contracts are to be strictly construed against the insurer and in favor of the insured. Id. at 490 (quoting Syl. Pt. 4, Nat'l Mut. Ins. Co. v. McMahon & Sons, 356 S.E.2d 488 (1987), overruled on other grounds ~ Potesta v. U.S. Fid. & Guar. Co., 504 S.E.2d 135 (1998) (internal quotation marks omitted)). ~The mere fact that parties do not agree to the construction of a contract does not render it ambiguous. The question as to whether a contract is ambiguous is a question of law to be determined by the court." Am. States Ins. Co. v. Surbaugh, 745 S.E.2d 179, 186 (W. Va. 2013). The Court, like the majority of courts to have considered this issue, finds that the exclusions in both homeowner's policies are unarr~iguous. See Chacon v. Am. Family Mut. Ins. Co., 788 P.2d 748, 751 (Colo. 1990) (finding the exclusion for intentional acts unambiguous). Similarly, the severability clauses are unambiguous. See EMCASCO Ins. Co. v. Diedrich, 394 F.3d 1091, 1097 (8th Cir. 2005) (~[T]he definition of an 'insured' and the intentional acts exclusion in the [homeowner's policy] is unambiguous. The 21 Case 1:14-cv-00155-IMK Document 56 Filed 03/01116 Page 22 of 24 PagelD #: 486 AMERICAN NAT'L V. CLENDENEN 1:14CV155 ERIE V. NEESE 1:14CV172 MEMORANDUM OPINION AND ORDER FOLLOWING STATUS CONFERENCE severability clause does not create any ambiguity"). Indeed, the parties do not contend that the exclusions and severability clauses are ambiguous when taken by themselves. Rather, they argue that ambiguity results when one applies the severability clause to the exclusions. When the Court considers the language of both the exclusions and the severability clauses, it cannot fairly say that the result "is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning." Stanley, 602 S.E.2d at 489 (quoting Syl. Pt. 1, Prete, 223 S.E.2d at 441); see also Minkler v. Safeco Ins. Co. of Am., 232 P.3d 612, 625 (Cal. 2010) (recognizing the majority rule that a severability clause does not alter the "collective application of an exclusion"). That the parties disagree as to which of the two clauses should prevail does not render the policy ambiguous. See Surbaugh, 745 S.E.2d at 186. Rather, the case-dispositive issue is which clause in the insurance policies should prevail over the other. See Keffer v. Prudential Ins. Co. of Am., 172 S.E.2d 714, 716 (W. Va. 1970) (explaining the general rule that the Court should not construe an unambiguous insurance policy). This question of public policy should not be decided in the first instance by this Court sitting 22