PUBLISHED
Filed: July 21, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COLUMBIA CASUALTY COMPANY,
Plaintiff-Appellant,
v. No. 03-1811
WESTFIELD INSURANCE COMPANY,
Defendant-Appellee.
ORDER OF CERTIFICATION
TO THE SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Columbia Casualty Company brought this action against Westfield
Insurance Company seeking a declaration that Westfield is partly lia-
ble for the settlement, costs, and fees Columbia incurred in defending
and settling lawsuits brought by the estates of two inmates who com-
mitted suicide in the Randolph County, West Virginia jail. The dis-
trict court filed its opinion in writing,1 and entered its judgment for
the defendant, Westfield, from which judgment Columbia has
appealed. Because the resolution of the issue presented on appeal
requires resolution of a question of West Virginia law that may be
determinative in the pending case, and because we are unaware of any
controlling West Virginia appellate decision, constitutional provision,
or statute, we request, pursuant to West Va. Code § 51-1A-3 (2000),
that the Supreme Court of Appeals of West Virginia decide the fol-
lowing issue.
1
Page 11 of the opinion is missing in the appendix but is in the record.
2 COLUMBIA CASUALTY v. WESTFIELD INSURANCE
I.
Question of Law to be Answered
The following question of West Virginia law may be determinative
in the pending case and is presented to the Supreme Court of Appeals
of West Virginia:
Under West Virginia law, were the suicidal deaths of Robin-
son and Everson, either or both, "occurrences" within the
meaning of the Westfield Insurance Company commercial
general liability policy at issue in this case?
II.
Statement of Facts
On September 3, 1998, Bobby J. Robinson committed suicide
while incarcerated at the Randolph County jail, and on June 11, 1999,
Michael A. Everson also committed suicide while incarcerated at the
jail. Their respective estates filed appropriate suits in state court, the
Circuit Court of Randolph County, against the County Sheriff and the
County Commission. The estates asserted claims of common law neg-
ligence and also deliberate indifference under 42 U.S.C. § 1983, con-
tending that the Sheriff and the Commission failed to provide the
decedents with medical care that could have prevented the suicides
and failed to train jail employees on the means and methods of identi-
fying and taking precautionary measures to protect inmates with sui-
cidal tendencies.
Columbia, which insured the Sheriff’s Department under a law
enforcement liability policy, defended the Sheriff in these suits. The
Columbia policy covered the Commission as an additional insured,
and Columbia assumed the defense of the Commission under a reser-
vation of rights.
The dispute in this case, however, stems from the commercial gen-
eral liability policy Westfield issued to the County Commission. The
policy promised to pay for "those sums that the insured becomes
COLUMBIA CASUALTY v. WESTFIELD INSURANCE 3
legally obligated to pay as damages because of ‘bodily injury’ or
‘property damage’ to which this insurance applies." The Westfield
policy then provided that the insurance applied only if the injury or
damage "is caused by an ‘occurrence.’" Finally, the policy defined an
"occurrence" as "an accident, including continuous or repeated expo-
sure to substantially the same general harmful conditions." Thus, only
damage caused by an "accident," a term the policy does not define,
was covered.
In each of the decedents’ suits, Westfield denied coverage and did
not participate in the defense or the settlement. Columbia settled the
Robinson action for $450,000 and the Everson action for $100,000.
It incurred additional sums of $35,233.83 and $13,112.06, respec-
tively, in costs and fees. Columbia then brought this declaratory judg-
ment action under 28 U.S.C. § 2201 (2000). It seeks a declaration that
the Westfield policy creates a duty to defend the Commission with
regard to the decedents’ suits and that Columbia is entitled to reim-
bursement for all costs, expenses, and settlement amounts it incurred
on the Commission’s behalf.
Both parties moved for summary judgment on the coverage issue.
After briefing and oral argument, the district court denied Columbia’s
motion and granted Westfield’s motion. It held that the policy did not
provide coverage because the suicides were intentional acts, not acci-
dents, and consequently were not "occurrences" requiring coverage.
As a result, Westfield had no obligation to defend the Commission or
reimburse Columbia.
III.
We acknowledge that, pursuant to West Virginia Code § 51-1A-
6(a)(3) (2000), the Supreme Court of Appeals may reformulate the
question of law presented.
The names and addresses of counsel of record are as follows:
Columbia Casualty Company:
Jeffrey M. Wakefield
Michelle Marinacci
4 COLUMBIA CASUALTY v. WESTFIELD INSURANCE
Flaherty, Sensabaugh & Bonasso, P.L.L.C.
200 Capitol Street
Post Office Box 3843
Charleston, West Virginia 25338
Westfield Insurance Company:
Brent K. Kesner
Ellen R. Archibald
Kesner, Kesner & Bramble, PLLC
Post Office Box 2587
Charleston, West Virginia 25329
Let the clerk forward a copy of this order, under the official seal
of this court, to the Supreme Court of Appeals of West Virginia and
thereafter forward to the Supreme Court of Appeals of West Virginia
such additional papers as that court may require, including, but not
exclusively, the record in this case, or any portion thereof, or copies
of the same.
With the concurrences of Judge Luttig and Judge Traxler.
/s/ H. E. Widener, Jr.
For the Court