National Union Fire Insurance Company of Pittsburgh, PA v. Thornsbury et al

Filing 68

MEMORANDUM OPINION AND ORDER granting in part and denying in part the 50 MOTION by National Union Fire Insurance Company of Pittsburgh, PA for Partial Summary Judgment Regarding Michael Thornsbury's Status as a "Named Insured" Under the National Union Insurance Policy No. GL 440-64-11; denying the 47 MOTION by Michael Thornsbury for Partial Summary Judgment relative to Policy No. GL 440-64-11; denying without prejudice the parties' motions for partial summary judgment that request determination of Thornsbury's status as a "Named Insured" under the second policy, No. GL 440-64-10. Signed by Judge John T. Copenhaver, Jr. on 6/28/2016. (cc: counsel of record; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30098

MICHAEL THORNSBURY,
Defendant.
MEMORANDUM OPINION AND ORDER

Pending is defendant Thornsbury’s motion for partial
summary judgment, filed January 13, 2016, and plaintiff National
Union Fire Insurance Company’s motion for partial summary
judgment, filed January 27, 2016.

Background

Plaintiff National Union Fire Insurance Company
(“National Union”) has, over the years, sold to the State of
West Virginia commercial general liability policies covering
various government activities.

National Union filed this action

requesting a declaratory judgment that it has no responsibility,
based on the insurance policy it issued to the state of West
Virginia in July of 2012, to indemnify or defend Michael

Thornsbury, a former state circuit judge, in a state-court
lawsuit brought in the Circuit Court of Kanawha County, Donald
Ray Stevens, et al. v. Michael Thornsbury, et al., Civil Action
No. 13-C-2044.

In that suit it is claimed that Thornsbury, sued

in his individual capacity,1 framed Mr. Stevens for a crime he
did not commit, and otherwise caused him to be harassed.

National Union’s complaint notes that the events
giving rise to the state-court suit transpired between July 31,
2012 and March 13, 2013.

Pl. Compl. at 1.

Because of these

dates, National Union’s complaint asserts that “only a single
policy period is implicated” by the events of the lawsuit.

1

Id.

The complaint in the Stevens case names Thornsbury in the
caption as “MICHAEL THORNSBURY, Mingo County, West Virginia,
Resident,” rather than as an official, and the allegations state
that “Mr. Thornsbury, individually and under color of law,
contrived, participated in and furthered the conspiracy to
deprive Mr. Stevens of his civil rights.” Stevens v. Thornsbury
et al Compl. at 1-2 (ECF 1-1). Unlike in its treatment of
Thornsbury, the complaint names several other defendants’ former
official titles in the caption, and states that claims are
brought against these other defendants “individually and in
their respective official capacities.” Stevens v. Thornsbury et
al Compl. at 1, 4. The complaint also does not request any
relief from Thornsbury that he would provide in his role as a
state official. The court thus concludes that the complaint
states a claim against Thornsbury only in his individual
capacity, not in his official capacity as a circuit judge.
2

The complaint enumerates the types of coverage
provided under the policy that was active during the relevant
period, which include the following:

Coverage A — Comprehensive General Liability Insurance
Coverage B — Personal Injury Liability Insurance
Coverage E — Wrongful Act Liability Insurance
Pl. Compl. ¶ 12.2

The complaint then gives reasons why National

Union believes it is not required to indemnify or defend
Thornsbury under coverages A, B, and E.

One of National Union’s contentions is that
Thornsbury, while performing the acts alleged in the state-court
suit, was neither a “Named Insured” nor an “insured” person who
was covered by the policy.
¶¶ 40-45.

See Pl. Compl. ¶¶ 13-19; ¶¶ 28-33;

If Thornsbury was neither a “Named Insured” nor an

“insured” at a particular time, then he would not be among those

2

Two other coverages are also mentioned:
Coverage C — Professional Liability Insurance
Coverage D — Stop Gap Liability Insurance

Pl. Compl. ¶ 12. National Union states, however, that “Coverage
C only deals with liability arising out of the provision of
professional services, and Coverage D only deals with liability
arising out of ‘deliberate intent’ type personal injury lawsuits
by employees against their employers.
Neither of these forms
of coverage is applicable to the allegations made against
Thornsbury in the [state-court] Lawsuit.” Id.
3

persons entitled to coverage, and National Union would have no
duty to compensate him for losses.

The distinction between being the “Named Insured,” as
opposed to a mere “insured,” is subtle but significant.

The

“Named Insured” is always an “insured,” and thus is always
covered under the policy, subject to exclusions and
qualifications described elsewhere.

Other persons, who are not

the “Named Insured,” may also be “insureds” if they hold certain
positions (such as that of an official or employee) with respect
to the “Named Insured” and are “acting within the scope of
[their] duties as such.”

Both parties have moved for summary judgment as to a
single point in the interpretation of the policy – whether
Michael Thornsbury qualifies as a “Named Insured.”

National

Union contends that the term “Named Insured” refers only to the
organizations, noted below, that are covered by the policy, and
not to any of their employees or officers.

National Union’s

Mem. in Supp. of Mot. for Partial Summ. J. and in Opp. to
Thornsbury’s Mot. for Partial Summ. J. (hereinafter “Pl. Mot.
for Summ. J.”) at 9-10.

Defendant Thornsbury instead contends

that the “Named Insured” explicitly includes the “Legislative,
Judicial and Executive Branches of the State of West Virginia,”
4

and that Thornsbury, who was a circuit judge at the time of the
events in the underlying state lawsuit, should be included as a
“Named Insured” because he was part of the “Judicial . . .
Branch[].”

Mem. of Authorities in Supp. of Mot. for Partial

Summ. J. of Def. Thornsbury (hereinafter “Def. Mot. for Summ.
J.”) at 1-4.

The court emphasizes that the parties’ motions do not
request a full determination of National Union’s obligation to
defend or indemnify Thornsbury.

The question of whether

defendant Thornsbury is a “Named Insured” is not necessarily
dispositive of the case.

Even if Thornsbury counts as a “Named

Insured,” he could perhaps be barred from recovery because of
other policy exclusions.

And, if Thornsbury is not a “Named

Insured,” he may still receive coverage as an “insured.”

The Summary Judgment Standard

A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(c).

Material facts are

those necessary to establish the elements of a party’s cause of
5

action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.

Id.

The

moving party has the initial burden of showing — “that is,
pointing out to the district court – that there is an absence of
evidence to support the nonmoving party’s case.”
v. Catrett, 477 U.S. 317, 325 (1986).

Celotex Corp.

If the movant satisfies

this burden, then the non-movant must set forth specific facts
as would be admissible in evidence that demonstrate the
existence of a genuine issue of fact for trial.
56(c); id. at 322-23.

Fed. R. Civ. P.

A party is entitled to summary judgment

if the record as a whole could not lead a rational trier of fact
to find in favor of the non-movant.
F.2d 820, 823 (4th Cir. 1991).

Williams v. Griffin, 952

Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.

Anderson, 477 U.S. at 248.

6

Discussion

The parties’ motions call for summary judgment as to a
matter of contract interpretation.

“If a court properly

determines that the contract is unambiguous on the dispositive
issue, it may then properly interpret the contract as a matter
of law and grant summary judgment because no interpretive facts
are in genuine issue.”

Payne v. Weston, 195 W. Va. 502, 507

(1995)(citing Williams v. Precision Coil, Inc., 194 W. Va. 52,
66 n. 26 (1995), and Goodman v. Resolution Trust Corp., 7 F.3d
1123, 1126 (4th Cir. 1993)); see also Washington Metro. Area
Transit Auth. v. Potomac Inv. Properties, Inc., 476 F.3d 231,
235 (4th Cir. 2007)(noting, in contract case governed by
Maryland law, that “summary judgment is appropriate when the
contract in question is unambiguous or when an ambiguity can be
definitively resolved by reference to extrinsic evidence”).
Consequently, the court will grant summary judgment as to the
meaning and application of the term “Named Insured” if that term
is unambiguous.

7

A. State Insurance Policy No. GL 440-64-11

The court begins with the insurance policy mentioned
in the complaint, No. GL 440-64-11.3

To discern the meaning of

the term “Named Insured,” the court starts with the policy’s
definitions section, which states that “‘Named Insured’ means
the organization named in Item 1. of the Declarations of this
policy.”

State Insurance Policy 440-64-11 at 22.

Turning to

the section labeled “Commercial General Liability Declarations,”
the court observes that, although no entry is explicitly labeled
“Item 1,” the document lists “The State of West Virginia” under
the heading of “Named Insured & Mailing Address.”

Commercial

General Liability Declarations at 1.4

Under the phrase “The State of West Virginia,”
however, the declarations page refers the reader to “Named

3

This policy is attached as Exhibit 2 to National Union’s motion
for partial summary judgment (ECF 50-2). Defendant Thornsbury
cites this policy as No. GL 244-94-50, but the court believes
that this is the number of the state’s previous policy, given
that the declarations page of the policy states “Renewal of No.
GL 244-94-50” and the policy’s Forms Schedule states that it is
“Policy Number GL 440-64-11.”
4 This document is the first page in the Exhibit that includes
the state insurance policy. It is attached as Exhibit 2 to
National Union’s motion for partial summary judgment (ECF 50-2).
8

Insurer Endt. #1,” or the first endorsement appended to the
policy.5

Endorsement 1 reads, in pertinent part, as follows:

NAMED INSURED
This endorsement modifies insurance provided under the
following:
WEST VIRGINIA COMPREHENSIVE LIABILITY COVERAGE FORM
Item 1 of the Declarations is completed to read as
follows:
A. The State of West Virginia;
B. West Virginia Parkways, Economic Development and
Tourism Authority,
It is agreed that the "The State of West Virginia"
means:
“The Legislative, Judicial and Executive Branches of
the State of West Virginia, including all of its
Boards, Commissions, Councils, Authorities,
Institutions, Universities, Colleges, Schools,
Departments, Divisions and Agencies; provided however,
The State of West Virginia shal1 not be considered to
include County Commissions, Municipalities, County
Boards of Education, or other Political Subdivisions
of the State regardless of any State Aid that may be
provided.”
State Insurance Policy 440-64-11 endt. 1.

5

For benefit of the uninitiated, the court notes that the term
“endorsement” in this context refers to “[a]n amendment to an
insurance policy; a rider.” Endorsement, Black’s Law Dictionary
(10th ed. 2014).
9

Taking all of these provisions together, the policy
states that the “Named Insured” is “the organization named” by
the policy, which is “The State of West Virginia,” as defined
just above.

There at first appears to be some tension between

the definitions section, which contemplates a single
organization, see State Insurance Policy 440-64-11 at 22 (“the
organization named”)(emphasis added), and Endorsement 1, which
names a group of organizations.

That can be resolved, however,

simply by acknowledging that the State of West Virginia is a
single organization that nevertheless includes a number of subunits, such as the West Virginia Parkways, Economic Development
and Tourism Authority and various boards, departments and
agencies as defined above.

Michael Thornsbury does not fit into the policy’s
definition of the “Named Insured.”
of West Virginia.

He is plainly not the State

He is also not any of the organizations

listed, given that he is an individual and not an organization.

Defendant Thornsbury contends, however, that he should
qualify as the “Named Insured” because the term “Judicial
Branch” “includes any Circuit Judge” of the State of West
Virginia.

Def. Mem. in Supp. of Summ. J. at 8.

finds no support in the language of the document.
10

This contention
While the

policy does include “The Legislative, Judicial and Executive
Branches of the State of West Virginia” as being among the
“Named Insured,” see State Insurance Policy 440-64-11 endt. 1,
it does not include members of those branches within its
definition of the state.

Indeed, the definition of “Named

Insured” refers to an “organization,” State Insurance Policy
440-64-11 at 22, and the entities of the State enumerated in
Endorsement 1 simply name organizations and not the members of
those organizations.

Moreover, the policy includes clear provisions that
deal with individuals who are members, officials, or employees
of the “Named Insured” and its sub-units, and those provisions
classify such persons as “insureds” rather than the “Named
Insured.”

Each of the coverages at issue in this lawsuit and

the parties’ motions contains a separate provision explaining
who qualifies as an “insured.”

Coverage A’s provision, for

example, reads, in pertinent part, as follows:

3. Persons Insured
Each of the following is an “insured” under this
insurance to the extent set forth below:
A. The “Named Insured”,

11

B. Any elected or appointed official, executive
officer, commissioner, director, or member of the
“Named Insured” while acting within the scope of
his duties as such . . . .
State Insurance Policy 440-64-11 at 3.

Coverages B and E

contain provisions that are very similar, with only small
deviations not relevant to this motion.
Policy 440-64-11 at 9, 16.

See State Insurance

It is plain from the quoted text

that “[a]ny elected or appointed official . . . or member of the
‘Named Insured,’” or one of its employees, is an “insured”
“while acting within the scope of his duties.”6

This language

provides an avenue for individuals such as Thornsbury, who
likely qualifies as a member, official, or employee of the
“Named Insured,” to receive coverage under the policy as
“insureds.”

Moreover, the contract’s explicit inclusion of

government officials and members as “insureds,” and its lack of
explicit suggestion that they are “Named Insureds,” lends heavy
support to the view that persons such as Thornsbury are not
captured by the term “Named Insured.”

6

The court does not decide today whether Thornsbury is best
understood as a “member,” “official,” or “employee” of the
Judicial Branch, given that the parties have not requested such
a determination.
Nevertheless, it seems clear that at least
one of these terms applies to his former position as a circuit
judge.
12

Thornsbury’s argument, in short, ignores the
distinction between being an individual who works within the
Judicial Branch, and being the Judicial Branch itself.

Circuit

Court Judges would receive coverage, if any, as “member[s],”
“officials,” or “employees” of the “Judicial Branch” under the
above-cited provisions of the policy.

If someone were to sue

the Judicial Branch itself – i.e., a state court – then that
institution would receive coverage as the “Named Insured” under
the policy.

This conclusion is all the more reasonable given

that a lawsuit against the state courts composing the “Judicial
Branch” would, at least in some circumstances, be interpreted as
a suit against the State of West Virginia.

See, e.g., Grace v.

Sparks, No. 2:15-00281, 2015 WL 7313420, at *6 (S.D.W. Va. Nov.
19, 2015) (“The Supreme Court of Appeals is inarguably a state
entity.”).

Given that the State, in designing and purchasing

the policy, clearly wished for itself to receive broad coverage
as the “Named Insured,” it stands to reason that the State would
seek that level of coverage regardless of the name under which
it is sued.

The court notes that state judges may sometimes count
as the “Named Insured” when they are sued in their official,
rather than individual, capacities.

“[C]ircuit court judges are

subject to the control of the state itself,” and so official13

capacity suits against them will sometimes be construed as suits
against the State of West Virginia.

Ellis v. Thornsbury, No.

2:14-cv-24641, 2016 WL 3039961, at *12 (S.D.W. Va. May 27,
2016).

An official-capacity suit against a state judge, if

understood as a claim against the State, could give rise to
coverage for the State as the policy’s “Named Insured.”7

But

that coverage would be afforded to the State, not to the
individual official, and the present lawsuit is brought only to

7

The court notes that not all official-capacity suits are
construed as suits against the State under West Virginia law.
See Gribben v. Kirk, 195 W. Va. 488, 493 (1995)(“[C]ourts will
entertain actions against State officials through the common law
writs of mandamus, prohibition, and habeas corpus or through the
courts’ equitable powers to issue injunctions. In such cases,
the ‘State’ is not a defendant; rather, a State official is sued
(usually in his or her official capacity) to require performance
of a nondiscretionary duty of constitutional or statutory origin
or to cease engaging in a course of conduct that violates some
constitutional or statutory duty.”)(citing cases including
Harshbarger v. Gainer, 184 W. Va. 656 (1991)).
The court need not consider whether an officialcapacity suit in which an officer, rather than the State, is
considered the “real” defendant would trigger coverage for the
officer as an “insured” or a “Named Insured.” This is because
the relief which the plaintiffs sought in the Stevens lawsuit is
far from that sought in the narrow types of official-capacity
actions in which the officer is recognized as the “real”
defendant. As explained in Gribben, such suits typically seek
“performance of a nondiscretionary duty of constitutional or
statutory origin,” or for the official “to cease engaging in a
course of conduct that violates some constitutional or statutory
duty.” The Stevens lawsuit is a claim for money damages based
on Thornsbury’s alleged past misconduct, largely on the basis of
tort law, and it does not involve the types of remedies outlined
in Gribben.
14

consider National Union’s duty to defend or indemnify Thornsbury
himself.

See Pl. Compl. at 1 (“The central question in this

declaratory judgment action is whether the insurance policy at
issue provides a duty to defend and/or a duty to indemnify
Thornsbury . . . .”)(emphasis added).

It is thus irrelevant

whether an official-capacity suit against an officer could allow
the State to receive “Named Insured” coverage.

Moreover, as

stated above in note 1, Thornsbury was sued only in his
individual capacity in the Stevens case.

The observations

regarding official-capacity suits thus do not affect the present
case at all.

Defendant Thornsbury makes several additional
arguments regarding this policy that merit attention.

First,

Thornsbury denies the applicability of the policy provisions,
including the above-discussed provision on page 3 of the policy,
explaining that “officials” or “members” of the “Named Insured”
are “insureds” rather than “Named Insureds.”
Summ. J. at 11.

Def. Mot. for

Thornsbury contends that this “definition . . .

is not controlling because the policy then refers to Endorsement
1 for further definition.”

But Endorsement 1 only modifies the

identity of the policy’s “Named Insured” to include various
organizational sub-entities of the State of West Virginia.
does not alter the definitions given on page 3 and elsewhere
15

It

that explain the coverage afforded to individuals as “insureds.”8
See State Insurance Policy 440-64-11 at 3 (noting, in pertinent
part, that an “official . . . or member of the ‘Named Insured’

8

The court notes that Thornsbury mistakenly reproduces a portion
of the policy as though it stated that officials and members of
the “Named Insured” shall themselves be considered “Named
Insureds” as well. Def. Mot. for Summ. J. at 11. In
particular, Thornsbury underquotes and misquotes the following
passage:
3A-The Named Insured:
(B) Any elected official or appointed official or
appointed official [sic], executive officer,
commissioner, director, or member of the “Named
Insured” while acting within the “scope of his duties
as such.”
Def. Mot. for Summ. J. at 11 (emphasis added). Although
Thornsbury does not say from what page this quotation comes, it
is not a correct reproduction of any part of the policy. As
noted above, the policy’s clauses that are similar to the text
that Thornsbury included read as follows:
3. Persons Insured
Each of the following is an “insured” under this
insurance to the extent set forth below:
A. The “Named Insured”,
B. Any elected or appointed official, executive
officer, commissioner, director, or member of the
“Named Insured” while acting within the scope of
his duties as such . . . .
State Insurance Policy 440-64-11 at 3 (emphasis added); see also
id. at 9, 11 (similar clauses defining the “Named Insured” and
“insureds”). Consequently, officials and members of the “Named
Insured” are listed as “insureds,” not “Named Insureds.”
16

while acting within the scope of his duties as such” “is an
‘insured’”).

Second, Thornsbury argues extensively that circuit
judges must be included within the Judicial Branch because
“otherwise they would be constitutionally incapable of
exercising the judicial power of the sovereign and [would]
occupy a position akin to an administrative law judge.”
Mot. for Summ. J. at 3-4.

Def.

Thornsbury cites the West Virginia

Constitution, which states:

The judicial power of the state shall be vested solely
in the supreme court of appeals and in the circuit
courts . . . and in the justices, judges and
magistrates of such courts.
W. Va. Const. art. VIII, § 1.

Thornsbury also cites various

state rules and court decisions noting that circuit judges
exercise the state’s judicial power.

See Def. Mot. for Summ. J.

at 1-2 (citing State ex rel. Farley v. Spaulding, 203 W. Va.
275, 280 (1998); State ex rel. Frazier v. Meadows, 193 W. Va.
20, 26 (1994); State ex rel. Bagley v. Blankenship, 161 W. Va.
630, 634 (1978); State ex rel. Lambert v. Stephens, 200 W. Va.
802 (1997)).

Thornsbury is plainly correct that circuit judges
exercise the state’s judicial power.
17

He is also plainly correct

that the circuit courts, as organizations, are part of the
“Judicial Branch” as that term is used in the insurance policy.
But none of the authority cited by Thornsbury creates any
quandary with describing a circuit judge as a “member,”
“official,” or “employee” of the Judicial Branch, which is how
such persons are captured by the insurance policy.

There is no

difficulty, for example, in saying that a judge, as a member of
the Judicial Branch, may exercise the state’s judicial power.
Indeed, Thornsbury himself describes judges in precisely this
way.

Def. Mot. for Summ. J. at 9-10 (“The Constitution makes no

distinction between a supreme court justice and a circuit judge
as members of the Judicial Branch.”)(emphasis added).

Third, Thornsbury notes that National Union refers, in
its complaint and elsewhere, to the Supreme Court of Appeals as
the “Named Insured” covered under this policy, and he objects to
this designation.
Summ. J. at 1.

Def. Thornsbury’s Resp. to Pl. Mot. for Part.

It is not clear why this point matters to

Thornsbury’s argument.

It seems likely that the Supreme Court

of Appeals receives coverage as a “Named Insured” simply because
it is part of the entity of the Judicial Branch.

Thornsbury,

however, is not the Supreme Court of Appeals, and, unlike the
Supreme Court of Appeals, he is not an organization.

He is,

once again, an individual person who works within the court
18

system.

But, even if National Union’s complaint and other

materials are mistaken, and the Supreme Court of Appeals does
not receive “Named Insured” coverage, its lack of such status
would not endow Thornsbury with “Named Insured” status.9

Fourth, defendant Thornsbury raises a series of
objections as to why circuit judges should not be viewed as mere
employees of the Judicial Branch, particularly suggesting that
the state would gain great control over judges if they were so

9

The court also notes that the record includes a certificate of
insurance issued to the Supreme Court of Appeals, identifying it
as an “Additional Insured” under the policy. See Certificate of
Liability Insurance (the certificate is attached to the
complaint as Exhibit C (ECF 1-3)). But the inclusion of the
Supreme Court of Appeals as an “Additional Insured” does not
have any impact in determining whether Thornsbury is a “Named
Insured,” or seemingly even on whether the Supreme Court of
Appeals is a “Named Insured.”
The court observes, first, that the policy appears to
suggest that persons to whom certificates of insurance are
issued are to be considered “insureds” rather than “Named
Insureds.” Endorsement 2 of the policy states, “the provisions
of the certificate of liability insurance issued by the State of
West Virginia Board of Risk and Insurance Management to insureds
covered under this policy are incorporated into this policy.”
State Insurance Policy 440-64-11 endt. 2 (emphasis added).
Also, the policy is clear that either a person or an
organization can be an “insured,” see State Insurance Policy
440-64-11 at 21 (“‘Insured’ means any person or organization
qualifying as an insured in the ‘persons insured’ provision of
the applicable insurance coverage.”), and that the “Named
Insured” is an “insured,” id. at 3. And, as explained above,
Thornsbury’s position would not be bolstered even if the Supreme
Court of Appeals were a Named Insured or part of a Named
Insured.
19

viewed.

Def. Mot. for Summ. J. at 12-14 (“As employees, Circuit

Judges could have their terms of office and salaries reduced,
they could be fired at will; they could be made to decide each
case as directed by their employer with no exercise of
discretion; they could be told how and when to manage their
docket . . . .”).

Thornsbury notes, also, that such control is

inconsistent with state practices, including that judges must be
impeached and cannot simply be fired at will.

None of these objections need be addressed given that
Thornsbury could qualify as a “member” or “official” of the
Judicial Branch rather than as an “employee” of it, although, as
noted above, the court need not decide today which of these
labels is most appropriate.

The court observes, however, that

the label “employee” need not suggest that a worker has no power
or rights against an employer.

Tenured university professors,

for example, are typically considered to be employees, but they
often hold protections against many of the negative
possibilities that worry Thornsbury, such as at-will firings,
salary reductions, and micro-management.

See, e.g., Perry v.

Sindermann, 408 U.S. 593 (1972).

It is also noteworthy that the “Named Insured,” in
addition to receiving coverage without a general requirement of
20

engagement in official duties, receives different obligations
and protections than does a mere “insured.”

For example, the

policy’s conditions state that “[t]he ‘Named Insured’ shall
maintain records of such information as is necessary for premium
computation, and shall send copies of such records to the
Company at the end of the policy period as the Company may
direct,” but no such action is required of a mere “insured.”
Policy No. GL 440-64-11 at 23.

Similarly, Coverage A does not

allow recovery for “any loss, cost or expense arising out of any
governmental direction or request that the ‘Named Insured’ test
for, monitor, clean up, remove, contain, treat, detoxify or
neutralize pollutants,” but it places no such explicit condition
on its coverage of a mere “insured.”

Id. at 2.

In sum, the

policy includes various provisions differentiating between the
“Named Insured” and other “insureds,” and the duties and
coverage limitations imposed upon the “Named Insured” appear far
more likely to apply to an institution such as the State of West
Virginia than to an individual such as Thornsbury.

Based on the foregoing, the court concludes that State
Insurance Policy No. GL 440-64-11 is unambiguous as to
Thornsbury’s lack of status as a “Named Insured.”

21

B. State Insurance Policy No. GL 440-64-10

Although the complaint in this action included as an
attachment only Policy No. GL 440-64-11, National Union’s motion
also seeks a declaration as to Thornsbury’s status as a “Named
Insured” under Policy No. GL 440-64-10.

The latter policy, GL

440-64-10, appears to include the same coverages as the policy
discussed in the complaint, but provides coverage for “Each West
Virginia County Board of Education” and “Each West Virginia
Political Subdivision, charitable or public service organization
or emergency services agency covered by Certificates of
Liability Insurance on file with the Company.”

State Insurance

Policy 440-64-10, Endorsement 1.10

The court is reluctant to determine Thornsbury’s
status under this second policy, No. GL 440-64-10, at this
juncture.

The policy is not mentioned in the complaint, nor in

defendant Thornsbury’s briefing on the motions for summary
judgment.11

10

Moreover, the definition of a “Named Insured” in the

Policy 440-64-10, as well as the Certificate of Insurance
issued to the Mingo County Commission, are attached as Exhibit 3
to National Union’s Motion for Partial Summary Judgment (ECF 503).
11 Although defendant Thornsbury mentions “National Union Policy
Number GL 440-64- 10” in the briefing, the language and exhibits
in the brief’s discussion of that policy clarify that defendant
Thornsbury is actually discussing the other policy, No. GL 44022

second policy includes institutions “covered by Certificates of
Liability Insurance.”

State Insurance Policy 440-64-10 endt. 1.

Because it is not clear what entities or persons hold
certificates of insurance, it is also not clear who is a “Named
Insured” under the policy, or even how that term is defined.
National Union has supplied a Certificate of Liability Insurance
issued to the Mingo County Commission, but it is presumably not
the only such certificate that was issued.

The parties have not

discussed this issue in their briefing, and so the court has
little basis to declare, as a matter of law, that some person
(such as Thornsbury) is or is not covered by the policy.

Accordingly, both parties’ motions for partial summary
judgment as to defendant Thornsbury’s status as a “Named
Insured” under State Insurance Policy No. GL 440-64-10 will be
denied.

Conclusion

Given that Policy No. GL 440-64-11 defines the state
and its organs – which are “Named Insureds” – as entities rather
than persons, and that it supplies coverage for “members,”

64-11.
3 n.1.

See Def. Thornsbury’s Resp. to Pl. Mot. for Summ. J. at
23

“officials,” and “employees” of those entities separately from
the coverage for the entities themselves, Thornsbury cannot
successfully maintain that the policy views him as the “Judicial
Branch” or the “State of West Virginia” that fell in the
category of “Named Insured.”

He was instead a member, official,

or employee of those institutions.

As the court explained

above, he would likely trigger “Named Insured” coverage only
when sued in his official capacity, as the claim might be
construed as one against the state.

But that coverage, if it

existed, would be owed to the State of West Virginia, which is
the “Named Insured,” and not to Thornsbury.

The court accordingly ORDERS that plaintiff National
Union’s motion for partial summary judgment that Thornsbury is
not a “Named Insured” under Policy No. GL 440-64-11 be, and it
hereby is, granted; and further ORDERS that defendant
Thornsbury’s motion for partial summary judgment on that same
subject relative to Policy No. GL 440-64-11 be, and it hereby
is, denied.

To the extent that the parties’ motions request
determination of Thornsbury’s status as a “Named Insured” under
the second policy, No. GL 440-64-10, the court ORDERS that their

24

02/15/2016

Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.

02/22/2016

Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
motions for partial summary judgment be, and they hereby are,
directed to appear.

denied without Entry of scheduling order.
prejudice.
02/29/2016
03/08/2016

Last day to serve F.R. Civ. P 26(a)(1) disclosures.

The Clerk is directed to transmit copies of this order
The Clerk is requested to transmit this Order and
to all counsel counsel of and any and to any unrepresented
Notice to all of record record unrepresented parties.
parties.
DATED:
ENTER:

January 28, 2016
June 5, 2016

John T. Copenhaver, Jr.
United States District Judge

25