Whether Cherrington v. Erie Insurance Property and Casualty Co., 231 W.Va. 470, 745 S.E.2d 508 (2013) applies retroactively?
American Towers hired petitioner, BPI, as a general contractor to oversee construction of a 300 foot cell tower and compound near Prestonsburg, Kentucky. BPI was also responsible for constructing an access road up the mountain to the tower site. The project was completed in August, 2010. In April, 2011, the road began to slip, causing debris to fall onto adjoining property owned by Rising Son Ministries.
American Towers sued BPI in federal court, seeking $800,000 in damages relating to the access road failure. Respondent, Nationwide, was joined for the purpose of litigating coverage issues. Nationwide issued a comprehensive general liability policy to BPI that was effective in April, 2011. The federal court concluded that West Virginia law, not Kentucky law, applied to the coverage dispute. The remaining question was whether Cherrington v. Erie Insurance Property and Casualty Co., 231 W.Va. 470, 745 S.E.2d 508 (2013) applied retroactively. Under Cherrington, property damages resulting from faulty workmanship were found to be an “occurrence” and, therefore, covered under a comprehensive general liability policy. If Cherrington applied retroactively, then Nationwide’s policy would cover damages resulting from the access road failure. If Cherrington did not apply retroactively, then there would be no coverage. The federal court certified this question to the West Virginia Supreme Court.
BPI makes three arguments. First, BPI suggests that retroactivity is a non issue. Even though Cherrington was decided in 2013, it unhesitatingly applied its new holding to a policy that was issued nearly 10 years earlier. Similarly, Cherrington should be applied here. Second, even if the Supreme Court applied the traditional retroactivity analysis from Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), the Bradley factors support retroactivity in this particular case. Third, even Cherrington does not apply retroactively, pre-Cherrington law would still support a finding of coverage.
Nationwide argues that the Bradley factors weigh against retroactivity. Cherrington, it says, did not merely revise the common law, but “explicitly overruled a decade’s worth of judicial precedent.” Because Cherrington substantially altered the terms of coverage and the risk Nationwide was contractually obligated to bear, applying it retroactively was unwarranted and prejudicial. Nationwide also argues that pre-Cherrington law clearly excludes coverage for property damage resulting from faulty workmanship--even property damage occurring to third parties.
This case is on the Rule 20 docket. Therefore, we can expect a new syllabus addressing the retroactivity question. This case could have broad impact. Beyond the issue raised in this particular case, we will likely see an indication of how the Supreme Court will apply retroactivity principles in future cases where insurance coverage issues are involved.