January 19, 2021

Volume XI, Number 19


January 18, 2021

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West Virginia Supreme Court of Appeals Clarifies Retroactive Application of Cherrington to Pending Cases

On May 20, 2015, the West Virginia Supreme Court of Appeals concluded in BPI, Inc. v. Nationwide Mutual Insurance Company that its prior decision in Cherrington v. Erie Insurance Property & Casualty Co. should be applied retroactively to any pending claim not rendered final prior to that decision, effectively confirming that defective workmanship causing bodily injury or property damage can properly be characterized as an “occurrence” under commercial general liability insurance policies in those pending claims.

In 2013, the West Virginia Supreme Court of Appeals addressed the issue of defective workmanship causing bodily injury or property damage and held in Cherrington that defective workmanship is properly characterized as an “occurrence” under a commercial general liability insurance policy subject to applicable policy exclusions. That decision altered the law in West Virginia with regard to that issue, and the new principle was applied to the 2004 insurance policy under review in Cherrington. In BPI, Inc., the Court addressed the factors set forth in Bradley v. Appalachian Power Co. to determine whether to extend full retroactivity. After applying the factors to the facts before it, the Court concluded that the general rule of retroactivity should be applied. Accordingly, any case that was not final at the time the Cherrington decision was rendered will have the benefit of the holding in Cherrington.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume V, Number 146



About this Author

Laurie Barbe, insurance claims lawyer, Steptoe Johnson, Morgantown law firm

Laurie Barbe represents insurance companies in response to first and third party insurance claims and defends individuals and businesses in claims involving personal injury, wrongful death, products liability and property damage. She has also been involved in appellate proceedings before the Supreme Court of Appeals of West Virginia and the United States Court of Appeals for the Fourth Circuit.

Key Experience

Provided assistance to insurance companies writing new business in West Virginia to assure their policies are in compliance with applicable laws and regulations