Nationwide Insurance Company of America v. Brittney Duty and Gregory Duty, Individually and as Administrator of the Estate of Beverly Duty, and Lula Conley, Individually and as Administratrix of the Estate of Shelvy Conley, and Paul Conley

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
Fall 2024 Term FILED
_____________________________ November 13, 2024
released at 3:00 p.m.
No. 23-ICA-491 ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
_____________________________ OF WEST VIRGINIA

NATIONWIDE INSURANCE COMPANY OF AMERICA,
Defendant Below, Petitioner
v.
BRITTNEY DUTY AND GREGORY DUTY, Individually and as Administrator
of the ESTATE OF BEVERLY DUTY,
Plaintiffs Below, Respondents, AND
LULA CONLEY, Individually and as Administratrix of the ESTATE OF
SHELVY CONLEY, AND PAUL CONLEY,
Defendants Below, Respondents.
_______________________________________________________________________
Appeal from the Circuit Court of Logan County
Honorable Kelly Gilmore Codispoti, Judge
Civil Action No. CC-23-2021-C-30
REVERSED AND REMANDED
________________________________________________________________________
Submitted: October 8, 2024
Filed: November 13, 2024

Denise D. Pentino, Esq. R. Chad Duffield, Esq.
Melanie Morgan Norris, Esq. Farmer, Cline & Campbell, PLLC
Dinsmore & Shohl, LLP Charleston, West Virginia
Wheeling, West Virginia Counsel for Respondents Brittney Duty
Counsel for Petitioner and Gregory Duty, Individually and as
Administrator of the Estate of Beverly Duty
William E. Robinson, Esq. Mark E. Hobbs, Esq.
Dinsmore & Shohl, LLP Chapmanville, West Virginia
Charleston, West Virginia Counsel for Respondents Lula
Counsel for Petitioner Conley, Individually and as
Administratrix of the Estate of Shelvy
Conley, and Paul Conley

JUDGE DANIEL W. GREEAR delivered the Opinion of the Court.
GREEAR, JUDGE:

Petitioner, Nationwide Insurance Company of America (“Nationwide”),

appeals the October 2, 2023, order of the Circuit Court of Logan County awarding

summary judgment to Respondents Brittney Duty and Gregory Duty, individually and as

administrator of the Estate of Beverly Duty (collectively referred to as the “Dutys”), in a

declaratory judgment action. Based upon our review of the record and applicable law, we

find that the circuit court erred in awarding summary judgment to the Dutys, as the

Nationwide automobile policy at issue contained a valid restrictive endorsement excluding

coverage under the subject policy for any vehicles operated by Paul A. Conley (“Paul

Conley”). Accordingly, we reverse the circuit court’s October 2, 2023, order and remand

this case to circuit court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

At all times relevant hereto, Paul A. Conley and his wife, Marie Conley,

resided with Mr. Conley’s parents, Shelvy and Lula Conley in Chapmanville, West

Virginia. It is undisputed that for some time prior to the Spring of 2016, Shelvy and Lula

Conley were insureds under an automobile insurance policy issued by Nationwide,

identified as Policy No. 9247H 035583 (“old policy”). The Your Policy Declarations page

of the old policy lists Shelvy Conley, Lula Conley, and Paul Conley as insured drivers. On

April 18, 2016, Nationwide issued a written Notice of Cancellation to Shelvy Conley

advising him that Nationwide would cancel the old policy on May 23, 2016, as a result of

1
the revocation of Paul Conley’s driver’s license, as well as invalid license information for

Marie Conley.1

In an attempt to avoid cancellation of their policy, on May 9, 2016, Shelvy

and Lula Conley both signed and dated forms titled “Authorization to Exclude a Driver

(West Virginia)” to exclude both Paul Conley and Marie Conley (one authorization form

for Paul Conley and one for Marie Conley) from coverage under the old policy when Paul

or Marie Conley were “operating any of the vehicles to which the [old] policy applies.”

These forms were also signed, respectively, by Paul Conley and Marie Conley as the

“[e]xcluded [d]river[s].” However, despite the execution of the forms, the Conleys’ old

policy was cancelled by Nationwide.

Following the cancellation of the old policy, Shelvy and Lula Conley applied

to Nationwide for a new automobile insurance policy, expressly noting in their application

that Paul Conley and Marie Conley would be excluded drivers under said policy.2 Based

upon those representations, on May 27, 2016, Nationwide issued a new policy of

1
Per Nationwide, the Notice of Cancellation was issued as required by
“Nationwide’s West Virginia Insurability Guidelines, which prohibit the issuance of
insurance coverage for any driver in an insured’s household with a revoked or suspended
license.” See Nationwide’s appellate brief, at page 3.
2
As noted by the Dutys in their appellate brief, while Nationwide asserts that in
their application for coverage, Shelvy and Lula Conley specifically requested that coverage
for Paul Conley and Marie Conley be excluded from the new policy, the application form
included in the Joint Appendix (in which such request is memorialized) is not signed by
Shelvy and/or Lula Conley or their agent.
2
automobile insurance to Shelvy and Lula Conley, Policy No. 9247K 900148, covering the

period from May 25, 2016, through November 25, 2016 (“the initial new policy”).3 The

initial new policy included a restrictive endorsement, titled “Endorsement 3239A –

Voiding Automobile Insurance While a Certain Person is Operating Car (West Virginia)”

(“the endorsement” or “excluded driver endorsement”), which provided:

With this endorsement, the coverages provided in this policy
are not in effect while:

[Blank]

is/are operating any motor vehicle to which the policy applies.

The policy remains unchanged in all other respects.

This endorsement applies as stated in the policy Declarations.
Attached to and forming a part of Effective at 12:01 a.m. on policy
policy number: effective date

[Blank] or on [Blank] , whichever is
later

Issued to:

This endorsement is issued by the company shown in the
Declarations as the issuing company.

Correspondingly, the Your Policy Declarations pages (“declarations

pages”) for the initial new policy expressly stated as follows:

3
While the initial new policy has an effective date of May 25, 2016, the general
policy information section of the declarations page indicates that the policy was issued on
May 27, 2016.
3
Excluded Driver(s)

The following driver(s) are excluded from all coverages
and all vehicles on the policy:

Marie Conley Paul A. Conley

Further, the General Policy Information section of the declarations page of

the initial new policy noted that “[t]hese [d]eclarations are a part of the policy named above

and identified by the policy number above. They supersede any [d]eclarations issued

earlier. Your policy provides the coverages and limits shown in the schedule of coverages.”

Moreover, under the Policy Form and Endorsements section of the declarations page, the

application of endorsement “V-3239A Voiding Automobile Insurance While a Certain

Person is Operating Car (West Virginia)” to the initial new policy was expressly noted. Per

the language of the endorsement, it became effective on May 25, 2016, the same effective

date of the initial new policy.

On July 5, 2016, Nationwide issued another Notice of Cancellation to Shelvy

and Lula Conley explaining that the initial new policy would be cancelled, effective August

9, 2016, because Nationwide had “not receive[d] valid driver exclusions [Authorization to

Exclude a Driver (West Virginia)] for Marie [Conley] and Paul Conley.” Following

additional contact from Shelvy and Lula Conley, Nationwide agreed to reinstate the initial

new policy only if Nationwide promptly received the executed valid driver exclusion

authorizations for Marie Conley and Paul Conley. In response, Shelvy and Lula Conley

4
signed “Authorization to Exclude a Driver” forms for Paul Conley and Marie Conley and

submitted them to Nationwide on July 25, 2016. The form, as to Paul Conley, expressly

provided that:

With my authorization, [Nationwide] has agreed to issue or
continue coverage under the policy provided that coverage is
excluded while Paul Conley is operating any of the vehicles to
which the policy applies. I understand that this exclusion will
apply to any subsequent transfer, reinstatement, or renewal of
this policy. My signature below acknowledges my acceptance
of the exclusion, and authorizes Nationwide Insurance to issue
the appropriate endorsement to this policy. Policy No. 9247K
900148.

Nationwide accepted the signed authorization forms and reinstated the initial

new policy effective August 8, 2016 (“reinstated new policy”). The reinstated new policy

bore the same policy number as the initial new policy (Policy No. 9247K 900148) and

contained the same endorsements (including endorsement 3239A for excluded drivers) and

identical declarations page information and language (with the exception of the change of

the issuance date of the policy). While the authorization to exclude a driver forms were

properly executed by Shelvy and Lula Conley and the identification of Marie Conley and

Paul Conley as “driver(s) [who] are excluded from all coverages and all vehicles on the

policy” was expressly noted in the declarations pages of the Conleys’ reinstated new

policy, the endorsement itself did not identify Marie Conley and Paul Conley in the “blank”

section of the form where such names of excluded drivers can be written, nor was the

Conley policy number added to the endorsement in the provided blank. Rather, the

endorsement noted that it applied “as stated in the policy [d]eclarations[.]”

5
The reinstated new policy was renewed and continued, with the same

excluded driver endorsement and declarations page information and language, over a series

of ten policy terms from November of 2016 through September of 2019.4 The declarations

pages for each of the renewals particularly listed Paul Conley and Marie Conley as

excluded drivers and noted the applicability of endorsement V-3239A (Voiding

Automobile Insurance While a Certain Person is Operating Car (West Virginia)).

On September 12, 2019, Paul Conley was operating a motor vehicle

belonging to his parents, and traveling on County Route 701/25 in Chapmanville, when

that vehicle crossed the center line of the roadway and struck, head-on, a vehicle operated

by Brittney Duty, in which Beverly Duty was a passenger. As a result of the accident, a

fire broke out entrapping those involved in the accident in their respective vehicles. Law

enforcement officers were able to extricate Paul Conley and Brittney Duty from their

vehicles, but were unable to extricate Beverly Duty, who ultimately died as a result of the

injuries she sustained in the accident.

4
The record reflects that the reinstated new policy was renewed ten times between
May of 2016 through September of 2019. Those policy terms were as follows: May 25,
2016, through November 25, 2016; November 25, 2016, through May 25, 2017; May 25,
2017, through November 25, 2017; November 25, 2017, through May 25, 2018; May 25,
2018, through November 25, 2018; July 6, 2018, through November 25, 2018 (a new
vehicle was added to the policy); September 12, 2018, through November 25, 2018 (a
lienholder was added to the policy and the value of the new vehicle was reduced);
November 25, 2018, through May 25, 2019; November 25, 2018, through May 25, 2019
(new driver, Angel Conley, was added to policy); May 25, 2019, through November 25,
2019 (new driver, Michael Conley, was added to policy).

6
It is undisputed that Paul Conley was at fault for the September 12, 2019,

accident by driving while intoxicated (“DUI”),5 failing to maintain control of his vehicle,

failing to keep in proper lane, and operating his vehicle in an “erratic, reckless, or careless

manner[.]” Following the accident, Mr. Conley was criminally charged and pled guilty to

DUI causing death (a violation of West Virginia Code §17C-5-2(b) (2019)); and DUI

causing injury to other than self (a violation of West Virginia Code § 17C-5-2(c) (2019)).6

Following the September 12, 2019, accident, the Dutys filed multiple claims

with Nationwide, as the automobile insurer of Shelvy and Lula Conley. Nationwide denied

the existence of coverage under the reinstated new policy for the Dutys’ claims arising

from the September 12, 2019, accident, as Paul Conley was an excluded driver under the

reinstated new policy. It is Nationwide’s position that Paul Conley has been an excluded

driver under the reinstated new policy since that policy was issued in August of 2016, three

years prior to the underlying accident. Conversely, the Dutys argue that the endorsement

under which Nationwide claims that Paul Conley was an excluded driver was invalid as

the endorsement was not “executed[.]” Specifically, the Dutys note that Paul Conley’s

name was not added to the blank space in the body of the endorsement form for the listing

5
Mr. Conley’s blood alcohol content (BAC) immediately following the subject
accident was three times the legal limit of 0.08%. See West Virginia Code § 17C-5-2(e)
(2019).
6
Paul Conley was sentenced to an indeterminate period of three to fifteen years of
incarceration for DUI causing death and two to ten years for DUI causing injury to other,
with the sentences to run consecutively. Mr. Conley is presently serving his sentences.

7
of such name/names and, similarly, that the policy number and effective date of said policy

were also left blank on the endorsement form.

On April 1, 2021, the Dutys initiated the underlying lawsuit against Paul

Conley, Shelvy Conley,7 Lula Conley, and Nationwide, seeking, in part, a declaratory

judgment as to whether Paul Conley was an excluded driver under the reinstated new

policy.8 Such a question necessarily implicates the effect of the restrictive endorsement

upon which Nationwide bases its denial of coverage.

The Dutys and Nationwide filed competing motions for summary judgment

on the declaratory judgment/insurance coverage issue and a hearing was held on January

11, 2023. On October 2, 2023, the circuit court granted the Dutys’ motion for summary

judgment (and denied Nationwide’s motion for summary judgment), concluding that the

restrictive endorsement in the reinstated new policy was not properly executed, in that it

failed to specifically identify (on its face) Paul Conley as an excluded driver, and therefore

coverage existed under the reinstated new policy for the Dutys’ underlying claims. On

7
Shelvy Conley died on March 19, 2022, nearly a year after the Dutys’ underlying
claims were filed. By order entered November 21, 2023, the circuit court amended the style
of the case to note Lula Conley’s appointment as the Administratrix of the Estate of Shelvy
Conley.
8
In the underlying lawsuit, the Dutys also assert a claim against Shelvy and Lula
Conley for negligent entrustment and claims against Paul Conley for his negligence and
“negligent, reckless, malicious, and/or outrageous conduct” in causing the September 12,
2019, accident. Those claims remain active but were stayed by the circuit court pending
this appeal.
8
October 16, 2023, the circuit court filed a Stipulation of Final Judgment as to Count V, in

which the court noted that its October 2, 2023, order awarding summary judgment to the

Dutys and against Nationwide was a “‘final judgment’ of the coverage [issue] within the

meaning of [Rule 54 of the West Virginia Rules of Civil Procedure]” and, thus, said

coverage issue was ripe for appeal. It is from the October 2, 2023, order that Nationwide

now appeals.

II. STANDARD OF REVIEW

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt.

1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Our review of this matter is

further guided by the Supreme Court of Appeals of West Virginia’s (“SCAWV”)

recognition, in syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459

S.E.2d 415 (1995), that “[w]here the issue on appeal from the circuit court is clearly a

question of law or involving an interpretation of a statute, we apply a de novo standard of

review.” Likewise, in syllabus point one of Appalachian Power Co. v. State Tax Dep’t of

W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995), the SCAWV held “[i]nterpreting a statute

or an administrative rule or regulation presents a purely legal question subject to de novo

review.” As to contractual agreements, such as insurance policies, the SCAWV has also

determined that “[i]t is the province of the court, and not of the jury, to interpret a written

contract.” Syl. Pt. 1, Stephens v. Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937). With these

standards in mind, we now consider the issues raised on appeal.

9
III. DISCUSSION

Nationwide raises four assignments of error on appeal. First, Nationwide

argues that the circuit court erred in finding coverage under the Conleys’ reinstated new

policy for claims associated with a September 12, 2019, motor vehicle accident caused by

Paul Conley. Second, Nationwide suggests that the circuit court erred in finding that the

restrictive driver endorsement in the Nationwide policy issued to the Conleys was

ambiguous in contravention of “undisputed extrinsic evidence demonstrating the plain

intent of the parties.” In its final two assignments of error, Nationwide contends that the

circuit court erred in awarding the Dutys summary judgment and denying Nationwide

summary judgment as to the Dutys’ declaratory judgment claims. Regardless of how they

were phrased by Nationwide, these four assignments of error all hinge on one singular

determination made by the circuit court, the validity of the excluded driver restrictive

endorsement made part of the Conleys’ reinstated new policy with Nationwide and if that

endorsement was sufficient to preclude coverage for the Dutys’ underlying claims.

Accordingly, we limit our review here to the propriety of the circuit court’s decision in that

regard and find that our ruling on that issue is dispositive of all of the assignments of error

raised by Nationwide. See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va.

396, 402, 729 S.E.2d 231, 237 (2012) (allowing consolidation of related assignments of

error).

In its October 2, 2023, order, the circuit court determined that the excluded

driver restrictive endorsement attached to the reinstated new policy issued to the Conleys

10
by Nationwide was invalid in that the endorsement (on its face) did not “specifically

designate by name the individual or individuals to be excluded[,]” as required by the

SCAWV’s holding in Burr v. Nationwide Mut. Ins. Co., 178 W. Va. 398, 359 S.E.2d 626

(1987). Accordingly, the circuit court reasoned that allowing Nationwide to “attach a blank

restrictive endorsement form and simply list excluded drivers on a declarations page would

be in conflict with the omnibus provisions” set forth in West Virginia Code § 33-6-31(a)

(2015) and, thus, have no effect.9 See Burr, 178 W. Va. at 399, 359 S.E.2d at 627, Syl. Pt.

2 (“Any provision in an insurance policy which attempts to contravene W. Va. Code, 33-

6-31(a), is of no effect.”). Conversely, Nationwide argues that the circuit court erred in

concluding that Paul Conley was a covered driver, contrary to the plain and unambiguous

language of the reinstated new policy and in finding that the endorsement was in

contravention to West Virginia Code § 33-6-31(a).

We begin our analysis by reviewing West Virginia Code § 33-6-31(a), which

provides, in pertinent part, that

[n]o policy or contract of bodily injury liability insurance, or
of property damage liability insurance, covering liability
arising from the ownership, maintenance[,] or use of any motor
vehicle, may be issued or delivered in this state to the owner of
such vehicle, or may be issued or delivered by any insurer
licensed in this state upon any motor vehicle for which a
certificate of title has been issued . . . unless it contains a
provision insuring the named insured and any other person,
except . . . any persons specifically excluded by any restrictive
endorsement attached to the policy . . . against liability for

9
See the October 2, 2023, order on appeal at Conclusions of Law, paragraph 23.
11
death or bodily injury sustained or loss or damage occasioned
within the coverage of the policy or contract as a result of
negligence in the operation or use of such vehicle by the named
insured or by such person. . . . owner may by restrictive
endorsement specifically exclude the person who violated the
law and the restrictive endorsement shall be effective in regard
to the total liability coverage provided under the policy[.]
[emphasis added].

In Burr, the SCAWV reasoned that “[t]he purpose of an omnibus clause in

an automobile liability insurance policy being to extend coverage, in proper circumstances,

to any person using the insured vehicle, and to afford greater protection to the public

generally, such clause should be given a liberal construction so as to afford coverage

thereunder.” 178 W. Va. at 404, 359 S.E.2d at 632 (citing Syl. Pt. 1, State Farm Mut. Auto.

Ins. Co. v. Allstate Ins. Co., 154 W. Va. 448, 175 S.E.2d 478 (1970)). Further, the Burr

court reasoned that the liberal construction of the requirements imposed by West Virginia

Code § 33-6-31(a) was necessary as “the [L]egislature has demonstrated a clear intent to

afford coverage to anyone using a vehicle with the owner’s permission as a means of giving

greater protection to those who are involved in automobile accidents.” Id.

However, much time has passed since the Burr decision was issued in 1987,

including revisions to West Virginia Code § 33-6-31(a) and adoption of a new code section,

West Virginia Code § 33-6-31h (2015).10 West Virginia Code § 33-6-31h(a) provides that

10
In 2015 West Virginia Code § 33-6-31(a) was amended by substituting “may be
issued” for “shall be issued” twice in the first sentence and “may be construed” for “shall
be construed” in the second sentence.
12
“[f]or purposes of this section, the following definitions apply . . . (2) ‘Excluded driver’

means any driver specifically excluded from coverage under [West Virginia Code § 33-6-

31].” West Virginia Code § 33-6-31h(b) goes on to state that “[t]he Legislature finds that .

. . (1) The explicit, plain language of a motor vehicle liability policy between an insurer

and its insured should control its effect[.]” Lastly, West Virginia Code § 33-6-31h(c)

provides that

[w]hen any person is specifically excluded from coverage
under the provisions of a motor vehicle liability policy by any
restrictive endorsement to the policy, the insurer is not required
to provide any coverage, including both the duty to indemnify
and the duty to defend, for damages arising out of the
operation, maintenance[,] or use of any motor vehicle by the
excluded driver.

The 2015 (post Burr) revisions to West Virginia Code § 33-6-31(a) and the

adoption of West Virginia Code § 33-6-31h evidence an intent by the Legislature to honor

the agreements made between insurers and their insured, even if said agreements limit the

coverages available to injured parties. In providing its reasoning for the advent of the new

statutory provision, the Legislature expressly acknowledged, in West Virginia Code § 33-

6-31h(b)(2), that “[w]here insurers are required by the common law to provide minimum

financial responsibility limits coverage for excluded drivers, consumers not excluded by

restrictive endorsement are negatively impacted.” This is a large step back from the

reasoning adopted by the SCAWV in Burr and cases like Jones v. Motorists Mut. Ins. Co.,

13
177 W. Va. 763, 356 S.E.2d 634 (1987),11 wherein the Court, prior to the passage of West

Virginia Code § 33-6-31h, held that “a ‘named driver exclusion’ endorsement in a motor

vehicle liability insurance policy . . . is of no force or effect up to the limits of financial

responsibility required by West Virginia Code § 17D-4-2[.]”

As to construction of statutory provisions in West Virginia, it is the “cardinal

rule of statutory interpretation . . . to first identify the legislative intent expressed in the

promulgation at issue. To this end, [the SCAWV has] recognized that ‘[t]he primary object

in construing a statute is to ascertain and give effect to the intent of the Legislature.’” In re

Clifford K., 217 W. Va. 625, 633, 619 S.E.2d 138, 146 (2005) (quoting Syl. Pt. 1, Smith v.

State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975)). As referenced

in In re Clifford K., the next step in statutory construction is to “scrutinize the specific

language employed in the enactment.” Id. Along that vein, the SCAWV has long held that

“[a] statutory provision which is clear and unambiguous and
plainly expresses the legislative intent will not be interpreted
by the courts but will be given full force and effect.” Syllabus
point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488
(1951)[; a]ccord DeVane v. Kennedy, 205 W. Va. 519, 529, 519
S.E.2d 622, 632 (1999)(“Where the language of a statutory
provision is plain, its terms should be applied as written and
not construed.” (citations omitted)).

11
Accord Ward v. Baker, 188 W. Va. 569, 425 S.E.2d 245 (1992), and Dairyland
Ins. Co. v. East, 188 W. Va. 581, 425 S.E.2d 257 (1992).
14
Id. at 633, 619 S.E.2d at 146. The Court has further noted that in interpreting statutory law,

“[i]t is not for this Court arbitrarily to read into a statute that which it does not say. Just as

courts are not to eliminate through judicial interpretation words that were purposely

included, we are obliged not to add to statutes something the Legislature purposely

omitted.” Syl. Pt. 11, Brooke B. v. Ray C., II, 230 W. Va. 355, 738 S.E.2d 21 (2013). Thus,

here, we will analyze the propriety of the circuit court’s decision below by the Legislature’s

directly noted intent that the “explicit, plain language of a motor vehicle liability policy

between an insurer and its insured should control its effect[,]” despite the SCAWV’s

previous adherence to the liberal construction of the provisions of West Virginia Code §

33-6-31(a). See West Virginia Code § 33-6-31h(b).

As to the interpretation of insurance policies, it is the rule in West Virginia

jurisprudence that “‘[l]anguage in an insurance policy should be given its plain, ordinary

meaning.” Syl. Pt. 1, Soliva v. Shand, Morahan & Co., 176 W. Va. 430, 345 S.E.2d 33

(1986) (overruled on other grounds by National Mutual Insurance Co. v. McMahon & Sons,

177 W. Va. 734, 356 S.E.2d 488 (1987)); accord Syl. Pt. 2, Russell v. State Automobile

Mutual Insurance Co., 188 W. Va. 81, 422 S.E.2d 803 (1992). In American States Ins. Co.,

v. Surbaugh, 231 W. Va. 288, 292, 745 S.E.2d 179, 183 (2013), the SCAWV, citing Payne

v. Weston, 195 W.Va. 502, 466 S.E.2d 161 (1995), reasoned that “[i]n West Virginia,

insurance policies are controlled by the rules of construction that are applicable to contracts

generally . . . [A] court should read policy provisions to avoid ambiguities and not torture

the language to create them.”

15
The SCAWV has further held that “[w]here the provisions of an insurance

policy contract are clear and unambiguous they are not subject to judicial construction or

interpretation, but full effect will be given to the plain meaning intended.” Syl. Pt. 1,

Christopher v. United States Life Ins., 145 W. Va. 707, 116 S.E.2d 864 (1960). This

principle is further endorsed by the Legislature through West Virginia Code § 33-6-30

(2002), which speaks to the construction of insurance policies and expressly requires, in

subsection (a), that “[e]very insurance contract shall be construed according to the entirety

of its terms and conditions as set forth in the policy and as amplified, extended or modified

by any rider, endorsement or application attached to and made a part of the policy[.]”

Here, the only part of the reinstated new policy at issue was the excluded

driver restrictive endorsement. Below, and before this Court, the Dutys and Conleys argue

that Burr requires a finding that the underlying endorsement is invalid in that it does not

specifically name an excluded driver on the face of the endorsement but refers to the

declarations page of the policy. We disagree and find that, pursuant to the intent of the

Legislature, as expressed in West Virginia Code § 33-6-31h, the unambiguous nature of the

parties’ contract, and case law regarding statutory and contract interpretation in West

Virginia, the endorsement at issue is valid and precludes coverage to Paul Conley.

The endorsement here expressly notes on its face that it “applies as stated in

the policy [d]eclarations.” There is no dispute that the policy declarations for every one of

16
the Conleys’ policies with Nationwide, referenced supra in n.4., clearly noted under the

heading “[e]xcluded [d]river(s)” that “[t]he following driver(s) are excluded from all

coverages and all vehicles on the policy:” whereafter the names of Marie Conley and Paul

Conley are particularly noted. While the endorsement admittedly does not specifically

name a person, we find that the endorsement is sufficient in that it identifies that it applies

as stated in the policy declarations, which specifically name “persons” Marie Conley and

Paul Conley.

Moreover, we find that the instant case is readily distinguishable from Burr,

in that Marie Conley and Paul Conley, the individuals who are the excluded drivers the

endorsement concerns, are identified specifically by reference to the declarations page.12

In Burr, the offending endorsement referred to a class of people, those using “dealer

plates[,]” and did not name any persons specifically – even through reference to the

declarations page. Conversely, here, it was readily apparent to those who read the policy at

issue, together with the restrictive endorsement, as required by West Virginia Code § 33-6-

30, that Marie Conley and Paul Conley were excluded drivers under the Nationwide policy

at issue.

12
We note that in Dairyland Ins. Co. v. East, 188 W. Va. 581, 425 S.E.2d 257 (1992),
the SCAWV, when addressing a certified question relating to a named insured exclusion
in a Dairyland policy of motor vehicle insurance, found no error with or inapplicability of
an endorsement when that endorsement did not name a particular person on the face of the
endorsement, but simply referenced that the “liability insurance provided by this policy
doesn’t apply to those persons named on the declarations page.” Id. at 584, 425 S.E.2d at
260.
17
What Burr requires is that “to be effective under W. Va. Code, 33-6-31(a),

an exclusion must specifically designate by name the individual or individuals to be

excluded.” 178 W. Va. at 404-05, 359 S.E.2d at 633. We do not read Burr or West Virginia

Code § 33-6-31(a) to require that this “specific designation” be done in a particular manner,

only that the individual to be excluded be specifically noted, which Nationwide did in this

case. We find that here, as the endorsement specifically refers to the declarations page,

which clearly designates Marie Conley and Paul Conley as excluded drivers, the

endorsement is sufficient. While it certainly would have been clearer for Nationwide to

have included the names of Marie Conley and Paul Conley on the face of the endorsement

itself, and we encourage them to do so in the future to avoid potential disputes, we find that

the endorsement at issue is valid and precludes a finding of coverage under the reinstated

new policy for Paul Conley. Accordingly, we reverse the circuit court’s October 2, 2023,

order and remand the case to circuit court for further proceedings consistent with this

opinion.

IV. CONCLUSION

Wherefore, based on the foregoing, we reverse the October 2, 2023, order of

the Circuit Court of Logan County, and remand this matter to the Circuit Court of Logan

County for further proceedings consistent with this opinion.

Reversed and Remanded.

18