ERIE INSURANCE PROPERTY and CASUALTY COMPANY, a corporation, and STEPHEN MYERS, Defendants Below, Petitioners
DIMITRI CHABER and MARY CHABER, Plaintiffs Below, Respondents
Submitted: April 19, 2017
from the Circuit Court of Kanawha County Honorable James C.
Stucky, Judge Civil Action No. 14-C-1088
Smith, Esq., Steptoe & Johnson PLLC, Bridgeport, West
Virginia, Michelle Gaston, Esq., Katrina N. Bowers, Esq.,
Steptoe & Johnson PLLC Charleston, West Virginia Counsel
Clayton G. Anderson, Esq., The Masters Law Firm, LC,
Charleston, West Virginia, Counsel for Respondents.
"A circuit court's entry of a declaratory judgment
is reviewed de novo." Syl. Pt. 3, Cox v.
Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).
"In reviewing challenges to the findings and conclusions
of the circuit court made after a bench trial, a two-pronged
deferential standard of review is applied. The final order
and the ultimate disposition are reviewed under an abuse of
discretion standard, and the circuit court's underlying
factual findings are reviewed under a clearly erroneous
standard. Questions of law are subject to a de novo
review." Syl. Pt. 1, Pub. Citizen, Inc. v. First
Nat'l Bank, 198 W.Va. 329, 480 S.E.2d 538 (1996).
"'"Whenever the language of an insurance policy
provision 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, it is
ambiguous."' Syl. pt. 1, Surbaugh v. Stonewall
Casualty Co., 171 W.Va. 390, 283 S.E.2d 859 (1981),
quoting syl. pt. 1, Prete v. Merchants Property Insurance
Co., 159 W.Va. 508, 223 S.E.2d 441 (1976)." Syl.
Pt. 1, Shamblin v. Nationwide Mut. Ins. Co., 175
W.Va. 337, 332 S.E.2d 639 (1985).
provision in an insurance policy that excludes a loss
regardless of whether such loss is "caused by an act of
nature or is otherwise caused" is not ambiguous and
excludes coverage for the loss whether it is caused by a
man-made or a naturally-occurring event.
unambiguous ensuing or resulting loss clause of an exclusion
contained in an insurance policy provides a narrow exception
to the exclusion but does not revive or reinstate coverage
for losses otherwise unambiguously excluded by the policy.
Where an uncovered event occurs, an ensuing or resulting loss
that is otherwise covered by the policy will remain covered,
but the uncovered event itself is not covered.
an appeal by Erie Insurance Property and Casualty Company and
Stephen Myers (hereinafter jointly referenced as the
"Petitioners" or separatelyas "Erie" and
"Mr. Myers"). The Petitioners contend the circuit
court erred by granting declaratory judgment in favor of Mr.
and Mrs. Dimitri Chaber (hereinafter the
"Respondents") on an insurance policy claim. Upon
thorough evaluation of the arguments of the parties, the
record designated for this Court's review, and applicable
precedent, we reverse the circuit court's decision and
remand this matter with instructions to enter declaratory
judgment for the Petitioners on the declaratory judgment
portion of the complaint.
Factual and Procedural History
Respondents own property in St. Albans, West Virginia. One of
five commercial rental units on that property was leased by
the Respondents to a motorcycle shop. On February 19, 2014,
soil and rock slid down a hill located to the rear of the
Respondents' property and damaged the motorcycle shop.
The Respondents subsequently submitted a claim for property
damage to their insurance carrier, Erie. Mr. Myers, an
adjuster for Erie, examined the damage and observed that a
mass of rock and soil had fallen down the steep slope behind
the Respondents' property. Mr. Myers met with Mr. Chaber
and discussed the insurance policy's exclusion of
coverage for damage caused by a landslide. The policy
contains the following exclusionary language:
SECTION III - EXCLUSIONS
A. Coverages 1, 2, 3, 4, and 5
We do not cover under Building(s) - Coverage 1; Business
Personal Property and Personal Property of Others - Coverage
2; Additional Income Protection - Coverage 3; Glass and
Lettering - Coverage 4; and Signs, Lights, and Clocks
-Coverage 5 "loss" or damage caused directly or
indirectly by any of the following. Such "loss" or
damage is excluded regardless of any cause or event that
contributes concurrently or in any sequence to the
5. Earth Movement
a. Earthquake, including tremors and aftershocks, and any
earth sinking, rising, or shifting related to such event;
b. Landslide, including any earth sinking, rising, or
shifting related to such event;
c. Mine subsidence, meaning subsidence of a manmade mine.
whether or not mining activity has ceased; or
d. Earth sinking (other than sinkhole collapse), rising, or
shifting including soil conditions which cause settling,
cracking or other disarrangement of foundations, or other
parts of realty. Soil conditions include contraction,
expansion, freezing, thawing, erosion, improperly compacted
soil, and the action of water under the ground surface.
This exclusion applies regardless of whether any of the
above, in Paragraphs 5.a. through 5.d., is caused by an act
of nature or is otherwise caused.
But if Earth Movement, as described in 5.a. through 5.d.
above, results in fire, explosion, sprinkler leakage,
volcanic action, or building glass breakage, we will pay for