The Supreme Court of Appeals of West Virginia sided with an insurance company last week, finding a circuit court erred in concluding the policy's "employer's liability exclusion" was inapplicable to a wrongful death action filed against Dana Mining Co. of Pennsylvania because the decedent was not an employee of the mining company. The case is Federal Ins. Co. v. Neice, 2023 W. Va. LEXIS 61 (W. Va. 2023).

In January 2016, Jeremy Neice, of West Virginia, was killed while working in an underground coal mine in southwestern Pennsylvania that was owned by Dana Mining, a wholly owned subsidiary of Mepco Holdings. Jeremy Neice was an employee of Mepco LLC, and Mepco was insured under a "Mining Industries" insurance policy issued by Federal at the time of the accident, according to the state high court's unanimous opinion filed March 3.

Jenny M. Neice, the Executrix of the Estate of Jeremy R. Neice, filed a wrongful death action in Monongalia County Circuit Court against Dana Mining as the owner/operator of the mine. Dana Mining sought defense and indemnity from Federal Insurance, which denied coverage based, in part, on the policy's employer's liability exclusion (ELE), which excluded coverage for claims or damages sustained by "any employee" arising out of his or her employment with "any insured."