A West Virginia appeals court has shown insurers how much a single phrase can cost when deciding which policy pays.
In a decision dated June 11, 2026, the Intermediate Court of Appeals of West Virginia affirmed that J.F. Allen Company, Inc. was covered under one auto policy and not blocked by another, in a coverage fight that followed a deadly crash.
On April 20, 2022, a dump truck driven by Richard Marple and owned by Nu Creek, LLC struck and killed Larry R. Green on Route 20 in Buckhannon. Nu Creek hauled cargo for Allen under an independent contractor agreement. Green's estate sued, and in Count IV alleged Allen failed to properly vet Nu Creek and Marple before hiring them - a negligent hiring and retention claim. The estate alleged Nu Creek "was an illegal chameleon carrier" and that Marple "was unfit to safely operate a commercial motor vehicle."
The claims settled at a second mediation on March 4, 2024. Zurich tendered its CGL limits and Axis tendered its excess limits, but because Homesite and Zurich disputed the auto coverage, Allen "had to commit to paying its own funds" on top to close the case. Homesite then sought a court ruling that it owed nothing.
Zurich's Auto Policy covered sums an insured must pay "because of 'bodily injury' . . . caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.'" Zurich argued a negligent-hiring claim wasn't about auto use. The court disagreed: the policy focused on bodily injury from an accident, not the insured's conduct, and Allen's liability traced to a death caused by an auto accident.
Homesite's excess policy followed the Axis terms, which excluded claims "arising out of the ownership, maintenance, operation, use, entrustment to others or loading or unloading of any auto." The court found the negligent-hiring claim was "premised upon acts independent of" the crash, so the exclusion did not apply.
The court also rejected both insurers' attempts to import "cause of injury" and "theory of liability" tests from other states, saying West Virginia reads the actual policy language. It called the lower court's ambiguity finding harmless error and affirmed.
The lesson for carriers: an auto exclusion built around the nature of the claim may not catch a negligent-hiring theory, while an auto policy keyed to bodily injury may reach it. The wording decides.
