STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Samantha Jones, Administratrix FILED 

of the Estate of Jerry Jones, June 24, 2013 

RORY L. PERRY II, CLERK Petitioner Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 12-0293 (Kanawha County 10-C-512) 

Underwriters at Lloyd’s, London and 

Commercial Insurance Services, Inc., 

Respondents Below, Respondents 

MEMORANDUM DECISION 

Petitioner Samantha Jones, by counsel J. Michael Ranson and Cynthia M. Ranson, 

appeals the Circuit Court of Kanawha County’s order, entered January 27, 2012, granting 

respondents’ motion for judgment on the pleadings. Respondent Underwriters at Lloyd’s, 

London (“Lloyd’s”) appears by counsel Harry F. Bell and Robert P. Arnold, and Respondent 

Commercial Insurance Services, Inc. (“Commercial Insurance”) appears by counsel John 

Hoblitzell. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

The tragic facts giving rise to this action are undisputed. City of Charleston Patrolman 

Jerry Jones was killed in the early morning hours of September 13, 2009, at the conclusion of a 

lengthy car chase that ended in rural Kanawha County. Patrolman Jones and his fellow officers 

had successfully barricaded an automobile driven by Brian Good with their patrol cars. Officers 

exited their cars and instructed Good to get out of his car. Instead, Good revved his engine and 

advanced his automobile, hitting police cruisers and endangering the responding police. Officers 

directed Good to stop; he did not. At least two officers then opened fire on Good. Patrolman 

Jones was struck by a police bullet, and he made his way to the front seat of his own car where 

fellow officers found him seriously wounded. Patrolman Jones, only twenty-seven years old, 

died from that gunshot soon afterward. He is survived by his wife Samantha. 

Samantha Jones sued Good’s estate for the wrongful death of her husband.1 Good’s 

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Brian Good also was fatally wounded by gunfire at the conclusion of that car chase. 

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liability insurance carrier paid its policy limits of $50,000. In the final order approving 

settlement in that liability case, Circuit Court Judge Carrie Webster wrote: 

. . . In making this factual adjudication, the court is not making a legal 

determination as to whether these adjudicated facts trigger UIM coverage under 

the policy that Jerry and Samantha Jones had with Erie Insurance at the time of 

his death. That matter is pending before the Honorable Joseph R. Goodwin in the 

United States District Court of Southern West Virginia. Nor does this Order offer 

or make any legal determination as to related coverage issues currently pending 

before Kanawha County Circuit Court Judge Louis Bloom in the case styled 

Samantha Jones, Administratrix of the Estate of Jerry Jones v. Underwriters at 

Lloyd’s, London et. al. Civil Action No. 11-C-52.2 

On the basis that Patrolman Jones was an employee of the City of Charleston, Ms. Jones 

had asserted underinsurance claims against her own carrier, Erie Insurance, and against the 

carrier for the City of Charleston, Respondent Lloyd’s, as described in the order referenced 

above. The Lloyd’s policy was issued through Respondent Commercial Insurance. It is 

undisputed, however, that the Lloyd’s policy did not contain a provision for underinsured 

motorist coverage. Nevertheless, on March 29, 2011, Ms. Jones, as administratrix of her 

husband’s estate, initiated this action by filing a petition for declaratory judgment. Ms. Jones 

asked the circuit court to declare that the Lloyd’s policy provided coverage for the death of her 

husband. 

By order entered January 27, 2012, the court granted respondents’ motion for judgment 

on the pleadings.3 On appeal, petitioner asserts three assignments of error. First, she argues that 

the lower court erred in granting judgment on the pleadings because she demonstrated her 

standing to seek declaratory judgment. Second, she asserts that the court failed to take judicial 

notice of the order approving settlement with Good’s insurance carrier “that concluded 

[Patrolman] Jones’ death was proximately caused by the actions of a [sic] uninsured motorist[.]” 

Finally, she would have us find that the lower court improperly converted respondents’ motions 

to dismiss into summary judgment motions, without affording the parties appropriate notice. We 

consider each of these assignments with the recognition that “[a]ppellate review of a circuit 

court’s order granting a motion for judgment on the pleadings is de novo.” Syl. Pt. 1, Copley v. 

Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995). Such plenary review is 

appropriate because “[a] motion for judgment on the pleadings presents a challenge to the legal 

effect of given facts rather than on proof of the facts themselves.” Syl. Pt. 2, in part, Copley. 

Thus, 

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Judge Webster’s order is not a part of the record on appeal. The language from that order 

that is quoted herein was included in the circuit court’s order for this case. 

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Respondent Commercial Insurance filed a motion to dismiss on May 2, 2011, asserting 

that the petition for declaratory judgment sought no relief from it. It does not appear the court 

ruled on that motion. On June 10, 2011, Respondent Lloyd’s filed a motion for judgment on the 

pleadings, and Respondent Commercial Insurance joined in that motion five days later. 

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[a] circuit court, viewing all the facts in a light most favorable to the nonmoving 

party, may grant a motion for judgment on the pleadings only if it appears beyond 

doubt that the nonmoving party can prove no set of facts in support of his or her 

claim or defense. 

Syl. Pt. 3, Copley. See also Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 474, 498 

S.E.2d 41, 46 (1997). 

With regard to petitioner’s first assignment of error, there is no indication in the circuit 

court order or the record on appeal that petitioner’s standing to bring this action was challenged, 

and there is certainly no suggestion that lack of standing was a factor in the circuit court’s 

decision. As a subpart to this assignment of error, petitioner argues that respondents failed to 

offer the City of Charleston underinsured motorist coverage, and further failed to obtain a 

knowing and intelligent waiver of that coverage at the time the policy was sold, thereby 

mandating the existence of underinsured motorist coverage as a matter of law. See Bias v. 

Nationwide Mut. Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987). This position is irrelevant to 

our review, inasmuch as the circuit court accepted the concession of respondents, made solely for 

purposes of the motion for judgment on the pleadings, that the Lloyd’s policy provided the City 

of Charleston underinsured motorist coverage by operation of law. 

We are similarly unconvinced by the argument that Judge Webster’s approval in a 

separate civil action of the settlement with Good’s insurance carrier imparted an obligation on 

respondents to provide coverage. This is particularly so in light of Judge Webster’s clear 

disavowal of her order as a basis for such coverage. Likewise, we cannot give ground to the 

accusation that the court below “accepted as true allegations of the movant[,]” when the circuit 

court specifically noted that it relied upon the facts presented in the petition for declaratory 

judgment, and when petitioner has failed to articulate a single fact improperly relied upon by the 

circuit court. Furthermore, we require that arguments before this Court be supported by 

“appropriate and specific citations to the record on appeal . . .” W.Va. R. App. P. 10(c)(7). We 

are not obligated to consider assignments of error lacking the necessary support. Id. 

Indeed, none of petitioner’s suggested errors addressed the key, dispositive issue on 

which the circuit based its dismissal: Good’s advancing of his vehicle on the officers was not an 

“act arising out of the ownership, maintenance, operation, or use” of that vehicle sufficient to 

bring the incident leading to the death of Patrolman Jones under the umbrella of the underinsured 

motorist coverage. The circuit court based its decision on Syllabus Point 1 of Baber v. Fortner, 

186 W.Va. 413, 412 S.E.2d 814 (1991), wherein we held that “[a]n intentional shooting which 

occurs from within the cab of a stationary pickup truck is not an act arising out of the ownership, 

maintenance, operation, or use of the vehicle.” As in Baber, we perceive no adequate “but for” 

connection between Good’s use of the vehicle and the death of Patrolman Jones. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: June 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

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