Erie Ins. Prop. & Cas. Co. v. Stage Show Pizza
In Erie Ins. Prop. & Cas. Co. v. Stage Show Pizza, 210 W.Va. 63, 553 S.E.2d 257 (2001), the plaintiff employee was seriously injured on the job and sued his employer for, inter alia, negligence because the employer had failed to pay workers' compensation premiums and was, therefore, not immune from negligence claims under the workers' compensation laws.
At issue in that case was the commercial general liability insurance policy covering the employer. The policy included "stop gap" employer's liability coverage ("we will pay for damages because of bodily injury to your employee for which the law holds you responsible and recovery is permitted by law"), as well as a workers' compensation exclusion ("we do not cover: . . . any obligation for which you or any insurer may become liable under any workers' compensation ... law"). Id., 210 W.Va. at 66, 553 S.E.2d at 260.
In syllabus points 4 and 5 of Stage Show Pizza, the Court held:
4. An insurance policy provision excluding coverage for 'an obligation of an employer under any workers' compensation law' means that coverage will not be available for an obligation that is imposed under a workers' compensation act that allows an employee to receive fixed benefits, without regard to the fault of any party, for a work-related injury.
5. A negligence cause of action against an employer by an employee injured in the course of and as a result of his employment, that is not barred by the immunity provisions of W.Va. Code, 23-2-6 1991 because of the employer's default on its workers' compensation obligations, and against which the employer is prevented from asserting certain common-law defenses by W.Va. Code, 23-2-8 1991, is not an obligation of an employer under a workers' compensation law for purposes of interpreting an insurance policy.
Thus, insurance coverage was available to the injured employee. compensation law, the workers' compensation exclusion does not apply."
Accordingly, the circuit court committed error in granting summary judgment in favor of National Union.