Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Millette, JJ., and Carrico, S.J. 

SCHOOL BOARD OF THE CITY OF NEWPORT NEWS 

v. Record No. 090313 OPINION BY JUSTICE DONALD W. LEMONS 

 February 25, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

H. Vincent Conway, Jr., Judge 

 In this appeal, we consider whether the trial court erred 

in holding that an insurance policy administered by the 

Commonwealth did not cover a claim made by the School Board of 

the City of Newport News (“the School Board”). 

I. FACTS AND PROCEEDINGS BELOW 

 The Commonwealth, through its Division of Risk Management 

(“Risk Management”), established and administers an insurance 

plan known as the Virginia Local Government Risk Management 

Plan (“VaRISK 2” or “the Plan”). The School Board paid annual 

premiums in return for its coverage under the Plan. The 

underlying claim in this case concerns a judgment obtained in 

the United States District Court for the Eastern District of 

Virginia (“District Court”) by Stefan Jaynes (“Stefan”) and 

his family (collectively, “the Jaynes family”) against the 

School Board. The School Board petitioned the trial court to 

order the Commonwealth, through the Plan, to indemnify the 

School Board for the judgment obtained by the Jaynes family in 

the District Court, and to reimburse the School Board for the 
attorney’s fees incurred by the School Board in defense of the 

Jaynes family’s action. 

A. The Underlying Claim 

 The Jaynes family initiated their claim as a Special 

Education Due Process Hearing, alleging that Stefan, a student 

with a diagnosis of autism, was denied a free appropriate 

public education as required by the Individuals with 

Disabilities Education Act (“IDEA”), codified at 20 U.S.C. 

§ 1400 et seq. (1994 & Supp. IV 1998). At the conclusion of 

the Special Education Due Process Hearing, the local hearing 

officer found that the Newport News Public Schools “maintained 

a pattern and practice . . . of failing to follow the 

procedures set forth in” IDEA.1

 The local hearing officer observed that Stefan “suffered 

a loss of an educational opportunity as a result of the 

procedural violations,” and the Newport News Public Schools 

“seriously infringed upon [the Jaynes family’s] participation 

in the [individualized education program] process.” The local 

hearing officer also found that the Jaynes family “incurred 

expenses for therapy and legal services related to [Stefan’s] 

education from October 8, 1993 through August, 1998,” and as a 

result “Stefan was damaged by the acts and omissions” of the 

staff of the Newport News Public Schools. Accordingly, on 

2
June 11, 1999, the local hearing officer held that the Jaynes 

family was entitled to “reimbursement for the costs, legal and 

educational, incurred in seeking to provide an education for 

their son, in the sum of $117,979.78.” 

 The Newport News Public Schools appealed the local 

hearing officer’s decision to a State Level Administrative 

Review, and on September 14, 1999, the appeal hearing officer 

issued his opinion. Based on his review of the record, the 

appeal hearing officer upheld the award of educational costs 

to the Jaynes family, however he reduced the reimbursement sum 

to $56,090.84, finding that the statute of limitations 

operated to bar a portion of the expenses sought by the Jaynes 

family. The appeal hearing officer’s opinion provided, 

“[e]ither party is entitled to appeal this decision to either 

a state court of competent jurisdiction or a federal district 

court within one year of the date of this decision.” 

 The Jaynes family then brought an action in the District 

Court against the School Board in December of 1999. The 

School Board timely and properly notified Risk Management of 

the Jaynes family’s claim. The Jaynes family sought 

reinstatement of the local hearing officer’s decision and 

award, which included “$117,979.89, plus interest, and . . . 

court costs, witness fees, expenditures and reasonable 

 1

 Appellant School Board is responsible for the 

3
attorney’s fees, pursuant to” IDEA, 20 U.S.C. § 1415. The 

Jaynes family then filed a motion for summary judgment, which 

the trial court granted in part pending resolution of the 

issue of damages. The District Court ordered the Jaynes 

family to submit a verified claim for damages if no 

stipulation to the amount of damages could be reached by the 

parties. Unable to stipulate to the amount of damages, the 

Jaynes family filed a claim for damages in the District Court, 

in which they sought $102,929.45, plus interest, from the 

School Board. 

 On November 17, 2000, the District Court issued its 

opinion and order on the Jaynes family’s claim for damages. 

After its review of the record, the District Court found that 

the award by the local hearing officer “was adequately 

supported by the record and was not arbitrary,” and it entered 

judgment in the amount of $102,929.45, plus interest at the 

judgment rate from September 14, 1999 and taxable costs, in 

favor of the Jaynes family.2 Throughout its opinion, the 

District Court repeatedly referred to the “amount of damages” 

and the “issue of damages,” while only once referring to the 

local hearing officer’s finding that the Jaynes family was 

 

supervision of the Newport News Public Schools. 

2

 The District Court ordered that the taxable costs would 

be calculated following the Jaynes family’s “timely submission 

of a bill of costs.” Subsequently, the District Court 

determined that the bill of costs was untimely filed. 

4
entitled to “reimbursement.” The United States Court of 

Appeals for the Fourth Circuit (“Fourth Circuit”) affirmed the 

District Court’s decision in Jaynes v. Newport News Sch. Bd., 

13 Fed. Appx. 166, 173 (4th Cir. 2001). 

B. The Present Litigation 

 In December of 2002, the School Board filed a petition in 

the Circuit Court of the City of Newport News against the 

Commonwealth alleging that the Commonwealth breached its 

contractual duty under the Plan to provide coverage for 

monetary liability arising out of the underlying litigation, 

and breached its contractual duty to defend the School Board 

against claims. The School Board sought indemnification in 

settlement of the judgment paid to the Jaynes family in March 

of 2002. The School Board alleged it paid the Jaynes family 

the sum of $102,929.45, interest thereon of $10,001.65, and 

“$29,325.50 in settlement of the [Jaynes family’s] claim for 

attorney’s fees.” The School Board also sought the $49,229.07 

it expended in defense of the underlying litigation. The 

School Board sought an aggregate amount of damages of 

$191,485.67. 

 The Coverage section of the Plan states that the Plan 

will pay all sums, except as herein limited, on 

behalf of the ENROLLED COVERED PARTY which the 

Enrolled Covered Party is legally obligated to 

pay on all claims, either first made or arising 

from any act occurring during the term of the 

coverage on causes of action established by law 

5
by reason of liability arising out of acts or 

omissions of any nature while acting in an 

authorized governmental or proprietary capacity 

and in the course and scope of employment or 

authorization. 

 The Plan provided for a maximum compensation of one 

million dollars per claim, and defined a “[c]laim” as “any 

demand, suit or legal action.” This definition of “claim” 

excluded “administrative hearings or procedures . . . 

regardless of whether or not monetary relief is sought.” The 

Plan defined “[c]ompensation” to “include compensatory or 

punitive damages awarded by a court of competent 

jurisdiction.” 

 The Plan also provided that it would pay, in addition to 

compensation for liability, “[a]ll expenses incurred by the 

[Plan], including defense costs.” The Plan defined “[d]efense 

[c]osts” as, 

all fees and expenses relating to the 

adjustment, investigation, defense or 

litigation of a claim including attorney’s fees 

incurred by the [Plan], court costs applicable 

to the defense and interest on judgments 

accruing after entry of judgment. Defense 

costs shall not include the office expense of 

the Covered Party nor the salaries of employees 

of any Covered Party. 

 The Plan contained a subsection entitled “DEFENSE,” which 

read, “[o]n matters covered by this [Plan], VaRISK 2 shall have 

the right and duty to defend any suit against the Covered 

6
Party, even if any allegations are groundless, false or 

fraudulent.” 

The Plan contained 14 exclusions, two of which are at the 

center of this litigation. Plan § IV.A. states that the Plan 

does not apply to: 

1. Any obligation under workers’ 

compensation, unemployment compensation, 

disability benefits, administrative hearings or 

procedures or any similar law or proceeding. 

. . . . 

10. Claims, demands or other actions seeking 

relief or redress in any form other than 

monetary damages, including, but not limited to 

injunctive relief. For the purposes of this 

exclusion, a claim for attorney’s fees, costs 

or expenses shall not be construed as a claim 

for monetary damages. 

(Emphasis added.) 

 In May of 2008, the School Board submitted its brief in 

support of its claim for coverage under the Plan. The School 

Board argued that the amount paid to the Jaynes family is 

within the scope of the insuring agreement and is not 

otherwise excluded by the Plan. 

 The Commonwealth filed a response to the School Board’s 

brief, in which it argued that the Plan did not indemnify the 

School Board for, nor did it impose a duty upon the 

Commonwealth to defend against, the Jaynes family’s claim. 

The Commonwealth argued that the Plan excludes “‘other than 

monetary damages’ from its coverage” and “[r]eimbursement is 

7
not damages under IDEA,” rather it is a remedy. The 

Commonwealth also argued that the action brought by the Jaynes 

family was “an administrative procedure throughout,” and 

therefore not a claim covered by the Plan. Finally, the 

Commonwealth argued that “because the [School] Board was never 

exposed to damages under IDEA, [the Commonwealth] had no duty 

to provide a defense to the” School Board. 

 In September of 2008, the School Board filed a motion to 

amend its petition to account for additional attorney’s fees 

incurred by the School Board in defense of the Jaynes family’s 

claim. The School Board’s amended petition now sought 

$53,295.54 for attorney’s fees, raising the total ad damnum 

clause to $195,552.14. On October 28, 2008, the trial court 

heard argument on the School Board’s petition, and the School 

Board’s motion to amend its petition to include the additional 

attorney’s fees. 

 On November 6, 2008, the trial court issued an order 

granting the School Board’s motion to amend the ad damnum to 

$195,552.14, and denying the School Board’s petition for the 

trial court to find coverage under the Plan. The trial court 

held that the Jaynes family’s 

action giving rise to the Board’s request for 

coverage is an administrative action for its 

entirety and, as such, was not a claim as defined 

by [the Plan]; that the underlying action was for 

“other than money damages” and, as such, fell 

8
under an exclusion of the Plan; and that the Plan 

was not ambiguous. 

 The School Board timely filed its notice of appeal and we 

granted an appeal on the following assignments of error: 

I. A. The court erred when it determined that the process in 

the United States District Court was simply an appeal of 

an administrative action rather than a civil action. 

B. The court erred in determining that the language of 

the insuring agreement was equivalent to that in a 

liability insurance policy and would not allow coverage 

for an award of damages based on reimbursement. 

II. The court erred in not ordering that the defendant had a 

duty to defend under the policy. 

II. ANALYSIS 

A. Standard of Review 

The issue in this case is whether the Jaynes family’s 

claim against the School Board is covered by the Plan. “The 

interpretation of a contract presents a question of law 

subject to de novo review.” PMA Capital Ins. Co. v. U.S. 

Airways, Inc., 271 Va. 352, 357-58, 626 S.E.2d 369, 372 

(2006). Familiar principles guide this Court’s interpretation 

of a contract. 

An insurance policy is a contract, and, as in 

the case of any other contract, the words used 

are given their ordinary and customary meaning 

when they are susceptible of such construction. 

Additionally, in the absence of an ambiguity 

. . . we must interpret the contract by 

examining the language explicitly contained 

therein. [W]here an agreement is complete on 

its face, [and] is plain and unambiguous in its 

terms, the court is not at liberty to search 

for its meaning beyond the instrument itself. 

9
Graphic Arts Mut. Ins. Co. v. C.W. Warthen Co., 240 Va. 457, 

459, 397 S.E.2d 876, 877 (1990) (internal citation and 

quotation marks omitted). 

B. The Nature of the Underlying Litigation 

 The trial court held that “the action giving rise to the 

[School] Board’s request for coverage is an administrative 

action for its entirety and, as such, was not a claim as 

defined by the Risk Management Plan.” We disagree. 

 The question whether an action filed in state or federal 

court pursuant to IDEA, following exhaustion of state 

administrative procedures, remains an administrative action is 

a question of first impression for this Court.3 However, the 

Fourth Circuit has addressed this precise issue in Kirkpatrick 

v. Lenoir County Board of Education, 216 F.3d 380, 382 (4th 

Cir. 2000), in which it held, after detailed analysis, that an 

action brought in federal district court “by a party aggrieved 

by a state administrative agency decision . . . is an original 

civil action.” 

 3

 We are aware of the decision of the Court of Appeals of 

Virginia in Beasley v. School Bd. of Campbell County, 6 Va. 

App. 206, 210, 367 S.E.2d 738, 740 (1988), rev’d on other 

grounds by School Bd. of Campbell County v. Beasley, 238 Va. 

44, 380 S.E.2d 884 (1989). To the extent Beasley suggests 

that an action brought pursuant to IDEA – or its state 

analogue, Code §§ 22.1-213 through 221 – in state or federal 

court remains an administrative action, it is expressly 

overruled. 

10
In Kirkpatrick, the Fourth Circuit looked first to the 

language of the statute. Id. at 383-84. 20 U.S.C. 

§ 1415(i)(2)(A) states that any party aggrieved by the 

findings and decision of the local or state administrative 

agency “shall have the right to bring a civil action with 

respect to the complaint presented . . . which action may be 

brought in any State court of competent jurisdiction or in a 

district court of the United States.” Kirkpatrick, 216 F.3d 

at 384. The Fourth Circuit concluded that while “the statute 

explicitly affords an aggrieved party a right to appeal from 

the local educational agency to a state review officer . . . 

it explicitly gives an aggrieved party who has exhausted his 

administrative remedies the right to bring a civil action in 

federal or state court.” Id. (citation and quotation marks 

omitted). 

 In Kirkpatrick, the Fourth Circuit also noted that 20 

U.S.C. § 1415(i)(2)(B)(ii)4 provides that the state or district 

court reviewing an action “shall hear additional evidence at 

the request of a party.” Id. This procedure stands in 

contrast to a true appellate court, which is limited by the 

record developed below. Likewise, reviewing courts under IDEA 

“are not limited to the parameters of the remedies issued by 

the state administrative agency below.” Id. Therefore, 

11
rather than simply affirming, reversing, or vacating a 

decision of a state administrative agency, the reviewing court 

“offers its own independent de novo review and conclusion.” 

Id. While the Fourth Circuit acknowledged that deference is 

given to the state administrative officer’s findings of fact, 

that deference “is merely a recognition that state educational 

administrative agencies possess a level of expertise and 

familiarity with educational standards.” Id. at 385. 

Finally, the Fourth Circuit relied on principles of 

federalism in reaching its conclusion that a proceeding in 

state or federal court is not an administrative proceeding. 

In Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923), the 

United States Supreme Court established that “[l]ower federal 

courts lack jurisdiction to entertain appeals from state court 

judgments because that power is reserved exclusively to the 

United States Supreme Court.” Kirkpatrick, 216 F.3d at 386. 

 Based on this analysis, we adopt the conclusion reached 

in Kirkpatrick. The plain language of IDEA labels the review 

of the administrative process a “civil action” and the 

substantive commands of IDEA further support that conclusion. 

As the court in Kirkpatrick concluded, 

while a federal district court may review a 

state review officer’s decision and even defer 

to that decision, the federal district court 

 4

 This provision is currently set out in 20 U.S.C. 

§ 1415(i)(2)(C)(ii)(2006 & Supp. II 2008). 

12
does not sit as an appellate court. Federal 

district courts are courts of limited, original 

jurisdiction with no power to sit as appellate 

tribunals over state court or administrative 

proceedings. Federal district courts cannot 

directly supervise and supplant state 

administrative action by affirming, reversing, 

or modifying administrative decisions. 

Id. at 387. Commencement of an action in a state court rather 

than in a federal district court does not change the nature of 

the process employed. In both state and federal court, an 

action filed pursuant to IDEA is an independent civil action, 

and not an administrative action. 

 Turning to the facts of this case, the Plan contains very 

broad coverage language that includes within its ambit “causes 

of action established by law by reason of liability arising 

out of acts or omissions of any nature.” (Emphasis added.) 

The local hearing officer determined that “Stefan was damaged 

by the acts and omissions” of the staff of the Newport News 

Public Schools. The action brought by the Jaynes family in 

District Court was a “claim” as contemplated by the Plan 

because it was a “demand, suit or legal action” and, as 

discussed above, it was not an “administrative hearing[] or 

procedure[].” Therefore, under the plain language of the 

Plan, the action brought by the Jaynes family in District 

Court was a “claim” and not excluded on the grounds that it 

was an administrative action. 

13
C. The Plan’s Exclusion of Non-Monetary Damages 

 The trial court held that the Jaynes family’s claim was 

excluded by the Plan because “there’s a difference between a 

monetary claim and reimbursement under IDEA” and under the 

Plan, reimbursement expenses are not covered. The trial court 

noted that the City’s failure to provide a free appropriate 

public education to Stefan Jaynes “should have been 

anticipated and should have been taken care of so that no 

administrative proceeding was necessary.” However correct 

that sentiment may be, our review is confined to the language 

of the Plan, and we hold that the trial court erred when it 

ruled that the relief sought by the Jaynes family was in a 

form “other than monetary damages” and therefore excluded by 

the Plan. 

 Under the Plan, “[c]ompensation shall include 

compensatory . . . damages awarded by a court of competent 

jurisdiction.” “Compensatory damages are those allowed as a 

recompense for loss or injury.” Virginia Highlands Airport 

Auth. v. Singleton Auto Parts, Inc., 277 Va. 158, 169, 670 

S.E.2d 734, 740 (2009). As a noun, “recompense” is defined as 

“an equivalent or a return for something done, suffered, or 

given: a repayment made <as by way of satisfaction, 

restitution, retribution>: compensation <offered in 

14
[recompense] for his injuries>.” Webster’s Third New 

International Dictionary 1897 (1993). 

 The District Court, in its “Opinion and Order on 

Plaintiffs’ Claim for Damages,” held that the Jaynes family 

“may only receive indemnification for educational expenses 

incurred after June 30, 1995,” and granted judgment in their 

favor. Based on the District Court’s finding, the School 

Board violated IDEA by failing to provide a free appropriate 

public education to Stefan, and the Jaynes family sought 

“recompense for [the] loss or injury” Stefan suffered by the 

acts and omissions of the staff of the Newport News Public 

Schools. See 277 Va. at 169, 670 S.E.2d at 740. 

The Commonwealth argues that the “reimbursement the 

[School Board] was ordered to pay is ‘other than monetary 

damages,’” and therefore the School Board’s claim is excluded 

by the policy. In support of its position, the Commonwealth 

cites the United States Supreme Court’s decision in School 

Committee of Burlington v. Department of Education, 471 U.S. 

359 (1985); the relevant passage relied upon reads, “the Town 

repeatedly characterizes reimbursement as ‘damages,’ but that 

simply is not the case. Reimbursement merely requires the 

Town to belatedly pay expenses that it should have paid all 

along and would have borne in the first instance had it 

15
developed a proper” individualized education program. Id. at 

370-71. 

IDEA, in 20 U.S.C. § 1415(i)(2)(C)(iii), states that the 

reviewing court “shall grant such relief as the court 

determines is appropriate.” In Burlington, the United States 

Supreme Court granted certiorari to answer two questions 

related to what constitutes “appropriate relief” under IDEA: 

(i) “whether the potential relief available under [IDEA] 

includes reimbursement to parents for private school tuition 

and related expenses;” and (ii) “whether [IDEA] bars such 

reimbursement to parents who reject a proposed [individualized 

education program] and place a child in private school without 

the consent of local school authorities.” Id. at 367. 

The United States Supreme Court stated in Burlington, “we 

are confident that by empowering the court to grant 

‘appropriate’ relief Congress meant to include retroactive 

reimbursement to parents as an available remedy in a proper 

case.” Id. at 370. The Court also noted that the “ordinary 

meaning of these words confers broad discretion on the court. 

The type of relief is not further specified, except that it 

must be ‘appropriate.’ Absent other reference, the only 

possible interpretation is that the relief is to be 

‘appropriate’ in light of the purpose of the Act.” Id. at 

369. Burlington did not hold, as a matter of law, that a 

16
school board’s payment of the educational expenses incurred by 

a family is the equitable remedy of reimbursement. Rather, it 

held that a trial court deciding a claim under IDEA is left 

with “broad discretion” in fashioning relief. Therefore, the 

dictum relied upon by the Commonwealth does not control 

contract interpretation under Virginia law. 

 In light of this analysis, we turn to the District 

Court’s Opinion and Order. In its opinion, the District Court 

employed the word “reimbursement” only once to refer to the 

Jaynes family’s claim for relief, instead choosing to refer to 

that claim as the “amount of damages” and the “issue of 

damages.” For the purposes of interpreting this Virginia 

insurance contract according to its “ordinary and customary 

meaning,” Graphic Arts Mut. Ins. Co., 240 Va. at 459, 397 

S.E.2d at 876, we hold that the District Court’s award of 

damages to the Jaynes family was an award of compensatory 

damages as defined by the Plan, and not an award in some “form 

other than monetary damages.” Accordingly, the Jaynes 

family’s claim was not excluded by the Plan. 

D. The Commonwealth’s Duty to Defend 

The School Board assigns error to the trial court’s 

failure to hold that under the Plan the Commonwealth had a 

duty to defend the School Board. The “obligation to defend is 

broader than [the] obligation to pay, and arises whenever the 

17
complaint alleges facts and circumstances, some of which 

would, if proved, fall within the risk covered by the policy.” 

Virginia Elec. & Power Co. v. Northbrook Prop. & Cas. Ins. 

Co., 252 Va. 265, 268, 475 S.E.2d 264, 265 (1966). 

[I]f it is doubtful whether the case alleged is 

covered by the policy, the refusal of the 

insurer to defend is at its own risk. And, if 

it be shown subsequently upon development of 

the facts that the claim is covered by the 

policy, the insurer necessarily is liable for 

breach of its covenant to defend. 

Brenner v. Lawyers Title Ins. Corp., 240 Va. 185, 189, 397 

S.E.2d 100, 102 (1990) (citations omitted). 

In its amended petition, the School Board asserted that 

“the Commonwealth . . . agrees to defend suits against the” 

School Board. The School Board further alleged that because 

of the Commonwealth’s failure to “provide for the defense” of 

the Jaynes family’s claim, “the School Board was forced to 

undertake a defense of the . . . litigation at its own 

expense,” thereby incurring litigation costs of $53,295.54. 

 The trial court held that there was no coverage under the 

Plan; consequently, in its order on the School Board’s 

petition, the trial court did not reach the question whether 

the Commonwealth breached its duty to defend. The School 

Board objected to the trial court’s “overall finding that 

there was no breach of the policy contract pursuant to the 

Plan which would give rise to damages for the School Board['s] 

18
attorneys fees incurred in defense of the underlying suit.” 

On brief to this Court, the School Board argued that “the duty 

to defend and the damages sought would be subject to review at 

retrial after remand.” 

 On brief, the Commonwealth argues that it had “no duty 

under the Plan to provide a defense to the [School] Board or 

to reimburse it for defense costs” because the Jaynes family’s 

claim “was clearly not covered by the Plan.” The Commonwealth 

does not argue that defense costs are excluded pursuant to the 

Plan; rather, in support of its conclusion, the Commonwealth 

relies on its earlier arguments that the underlying litigation 

is excluded from coverage under the Plan. However, we hold 

that the Plan covers the Jaynes family’s claim. Because “the 

claim is covered by the policy, the insurer necessarily is 

liable for breach of its covenant to defend.” Brenner, 240 

Va. at 189, 397 S.E.2d at 102. 

The Plan contained the following provision: “On matters 

covered by this [Plan], VaRISK 2 shall have the right and duty 

to defend any suit against the Covered Party, even if any 

allegations are groundless, false or fraudulent.” In addition 

to providing compensation for liability, the Plan covered 

“[a]ll expenses incurred by the [Plan], including defense 

costs.” The Plan defined “[d]efense [c]osts” as “all fees and 

expenses relating to the adjustment, investigation, defense or 

19
litigation of a claim including attorney’s fees incurred by 

the [Plan], court costs applicable to the defense and interest 

on judgments accruing after entry of judgment.” 

Given the plain meaning of these contract provisions, the 

Commonwealth had the duty to defend the School Board, and bear 

the costs associated with that defense. Due to its failure to 

comply with the terms of the Plan, the Commonwealth is liable 

for the defense costs incurred by the School Board in defense 

of the Jaynes family’s claim in District Court and on appeal 

to the Fourth Circuit, as well as the costs associated with 

this contract coverage litigation. Accordingly, the trial 

court erred in failing to hold that the Commonwealth breached 

its duty to defend, and in denying the School Board’s claim 

for attorney’s fees related to the defense of the lawsuit and 

the prosecution of this action to recover its damages. 

III. CONCLUSION 

 We hold that the trial court erred when it held that the 

Plan did not cover the claim submitted by the School Board. 

We further hold that the Commonwealth breached its contractual 

duty to defend under the Plan and is therefore liable for the 

litigation costs associated with the defense of the Jaynes 

family’s claim in federal court, as well as the costs of 

prosecuting the contract claim in the Circuit Court of the 

City of Newport News, this present appeal, and on remand. 

20
Accordingly, we will reverse the judgment of the trial court 

and remand with directions to enter judgment in favor of the 

School Board consistent with this opinion, and including the 

costs associated with the Commonwealth’s breach of its duty to 

defend. 

Reversed and remanded.

21