Flaherty Secures Insurance Coverage Victory for Berkley National Insurance Company in Mingo County
Flaherty attorney, Erica Baumgras, recently secured a significant insurance coverage victory for Berkley National Insurance Company in the Circuit Court of Mingo County, West Virginia.
The matter arose from claims asserted by Cost Control Consulting, Inc. against Kinzer Business Realty, Ltd., including ejectment, trespass, conversion, and tortious interference. Cost Control alleged that Kinzer had no legal right or interest in the surface property that would permit Kinzer to construct, operate, and maintain a gas pipeline transporting gas from other properties.
Berkley National Insurance Company denied coverage for the claims asserted against Kinzer under the applicable policy and was subsequently brought into the litigation through a third-party complaint seeking declaratory judgment and alleging breach of contract.
On behalf of Berkley, Flaherty successfully obtained judgment on the pleadings before Judge Deskins, resulting in dismissal of the claims against Berkley without the need for trial. Applying West Virginia’s conflict-of-law analysis, the Court determined that Kentucky law governed the insurance coverage dispute and found there was no coverage under the Berkley policy on four independent grounds.
First, the Court held that the claims against Kinzer did not constitute an “occurrence” or “accident” within the meaning of the policy. Second, the Court found that the claims fell within the policy exclusion for bodily injury or property damage expected or intended from the insured's standpoint. Third, the Court concluded that the exclusion for property damage to property the insured “owns, rents, or occupies” applied. Finally, the Court determined that coverage was barred by the exclusion applicable to property damage arising out of operations being performed on the subject real property.
Kinzer did not appeal the Circuit Court’s ruling.
The result provided Berkley with a complete dispositive victory at the pleadings stage, avoiding the substantial time and expense associated with prolonged litigation and trial proceedings.
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