By May 1, 2019 Read More →

Supreme Court of Appeals of West Virginia issues two opinions

CHARLESTON, W.Va. — The Supreme Court of Appeals of West Virginia issued the following two opinions.

The Supreme Court of Appeals for West Virginia: from left, first row, Justice Margaret L. Workman, Chief Justice Elizabeth D. Walker, Justice Tim Armstead; second row, Justice Evan H. Jenkins and Justice John A. Hutchison

The opinions were filed by Edythe Nash Gaiser, clerk of the Supreme Court of Appeals of West Virginia. There is a link to each opinion on the opinion page of the West Virginia Judiciary website.

http://www.courtswv.gov/supreme-court/opinions.html.

Opinion 1:

Quenton Burner et al. vs. Martinsburg Police Civil Service Commission

No. 17-0971, Chief Justice Walker, Concurring

FILED May 1, 2019

“I concur with the majority; this Court should affirm the circuit court’s order denying Erin Gibbons and Quenton Burner’s appeal and affirming the final order of the Martinsburg Police Civil Service Commission. I write separately to clarify my analysis.

Promotions within the City of Martinsburg Police Department are competitive, with candidates scored on a one-hundred point scale. Under Martinsburg Police Civil Service Commission Rule VII, Section 2 (Rule VII), a candidate may earn up to fifty points based upon their performance on a standard, written examination; forty points based upon a review of their personnel file; and ten points for their years of service in the department. Rule VII further subdivides the scoring of a candidate’s personnel file. Relevant to Petitioners’ appeal, post-secondary education accounts for up to ten points of the possible forty points awarded based on the contents of a candidate’s personnel file.

When City of Martinsburg police officers Quenton Burner and Erin Gibbons sought promotion in late 2016, they were passed over in favor of other candidates with more post-secondary education. But for the education points awarded to the successful candidates, Burner and Gibbons would have earned scores high enough for promotion to sergeant and corporal, respectively.

The pair grieved the promotional decisions to the Martinsburg Police Civil Service Commission, challenging the Commission’s consideration of post-secondary  education at promotion. In February 2017, the Commission affirmed its rule and denied Petitioners’ grievance.  …

Read more at Quenton Burner et al. vs. Martinsburg Police Civil Service Commission

 

Opinion 2:

 J.A. Street & Assoc., Inc. v. BITCO General Ins. Co., et al.

J.A. STREET & ASSOCIATES, INC.,
Defendant and Third-Party Plaintiff Below, Petitioner,

vs) No. 17-0079 (Cabell County 08-C-623)
BITCO GENERAL INSURANCE CORPORATION,

Plaintiff Below, Respondent and Cross-Petitioner, and

LIBERTY MUTUAL AGENCY MARKETS (NOW
THE OHIO CASUALTY INSURANCE COMPANY),
ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS, SCOTTSDALE INSURANCE COMPANY, and
THE CINCINNATI INSURANCE COMPANY,
Third-Party Defendants below, Respondents and Cross-Petitioners,

 

THE PRINCETON EXCESS AND SURPLUS LINES INSURANCE COMPANY, Third-Party Defendant below, Respondent.

MEMORANDUM DECISION

The petitioner, J.A. Street & Associates, Inc. (“Street”), appeals from six separate summary judgment orders entered by the Circuit Court of Cabell County on December 30, 2016, in a declaratory judgment action regarding insurance coverage.1 Concluding that there was no duty to defend or indemnify Street, the circuit court granted summary judgment to each of the six respondent insurance companies: Bitco General Insurance Corporation (formerly Bituminous Casualty Corporation, referred to herein as “Bitco”); The Ohio Casualty Insurance Company (formerly Liberty Mutual Agency, referred to herein as “Ohio Casualty”); Zurich AmericanInsurance Company of Illinois (“Zurich”); Scottsdale Insurance Company (“Scottsdale”); The Princeton Excess and Surplus Lines Insurance Company (“Princeton”); and The Cincinnati

1 Street is represented by lawyers S. Douglas Adkins, Donald Capparella, and Elizabeth Sitgreaves.

Insurance Company (“Cincinnati”).2     The respondents argue in support of the circuit court’s orders. Furthermore, respondents Bitco, Ohio Casualty, Zurich, Scottsdale, and Cincinnati assert cross- assignments of error contending there are additional grounds, not relied upon by the circuit court, that also support summary judgment in their favor.3

The parties’ assignments of error pertain to whether policies of commercial general liability  (“CGL”) insurance, as well as policies that were written as umbrella and excess coverage to theCGL insurance, apply to breach of contract claims brought by a commercial property developer against its general contractor. Having considered the parties’ written and oral arguments, we conclude that under the applicable and existing Tennessee law, the respondent insurance companies are entitled to summary judgment. Accordingly, we affirm. Furthermore, we find that this matter is appropriate for disposition in a memorandum decision pursuant to Rule 21 of the Rules of Appellate Procedure.

I. Facts and Procedural Background

Petitioner Street is a construction company headquartered in Tennessee that served as the general contractor on a seventy-eight acre commercial shopping center development in Cabell County, West Virginia, named Merritt Creek Farm. Street and its subcontractors performed work at Merritt Creek Farm pursuant to written construction contracts that Street entered into with the property’s developer, Thundering Herd Development, L.L.C. (“Thundering Herd”). Thundering Herd has sued Street asserting that it breached the construction contracts, and Street seeks a defense and coverage from the respondent insurance companies pursuant to insurance policies that Street purchased in Tennessee. The instant appeal concerns whether the insurance policies provide coverage. However, to understand the coverage dispute, it is necessary to first examine the underlying breach of contract lawsuit.

A. Lawsuit over Merritt Creek Farm …

Read more at J.A. Street & Assoc., Inc. v. BITCO General Ins. Co., et al.

 

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