Fred VanKirk, West Virginia Commissioner of Highways v. Green Construction Company, an Iowa corporation, and the American Insurance Company, a Nebraska corporation, No. 22791 (W. Va. December 8, 1995) (Miller, J.): 195 W.Va. 714, 466 S.E.2d 782:
Affirming the application of the doctrine of collateral estoppel where the State sought contractual indemnification against a subcontractor after the Court of Claims entered a $1.2 million judgment against the State in favor of the general contractor in an action in which the subcontractor chose not to appear and defend, the Court held (1) a liquidated damages clause for delay in completing contract work does not preclude an injured party from recovering compensatory damages under the contract unless the liquidated damages clause expressly limits the right to other damages; (2) the ordinary rules of construction apply to express indemnification contracts; (3) when an indemnitor is given reasonable notice by the indemnitee of a claim that is covered by the indemnity agreement and fails to take advantage of an opportunity to appear and defend the claim, the indemnitor is bound by the judgment against the indemnitee if it was rendered without collusion on the part of the indemnitee; and (4) when the State is sued in the Court of Claims and the State has an indemnity agreement with a third party indemnitor, upon reasonable notice by the State to defend under the agreement, the indemnitor must either defend the suit or intervene under R. Civ. P. 24(a)(2) and assert any defenses it claims would enable it to avoid the duty to defend under the indemnity agreement; and the failure to take either step forecloses the indemnitor from contesting the validity of the judgment rendered against the indemnity on any ground except collusion.
Jessica Dunn and Jason Dunn, et al. v. Kanawha County Board of Education, et al., No. 22550 (W. Va. May 19, 1995) (Fox, J.): 194 W.Va. 40, 459 S.E.2d 151:
Where manufacturer in product liability case entered into good faith settlement with the plaintiffs, the Court held that in a multiparty product liability case, a good faith settlement between the plaintiff(s) and the manufacturer does not extinguish the right of the nonsettling defendant(s) to seek implied indemnity when the liability of the nonsettling defendant(s) is predicated solely on a theory of strict liability.
Diana L. Dalton, Administrratrix of the Estate of Thurman R. Dalton, Deceased v. Childress Service Corp., a West Virginia corporation, and Lo-Ming Coal Corporation, No. 21452 (W. Va. June 11, 1993) (Neely, J.): 189 W.Va. 428, 432 S.E.2d 98:
Affirming the validity of an indemnity provision which indemnified a lessee against "any and all liabilities . . . arising out of or attributed directly to [the sublessee's] performance under this agreement," the Court held that (1) an indemnity provision of a contruction, mining, or similar contract indemnifying a party for its "sole negligence" does not violate W. Va. Code § 55-8-14 unless (a) the indemnitee is found to be solely negligent and (b) it cannot be inferred from the contract that there was an agreement for the purchase of insurance, and (2) an indemnity contract which indemnifies against "any and all" attorney fees includes those paid in attempting to enforce the ultimately upheld indemnity agreement.
United States Fidelity and Guaranty Company, a corporation v. Orion M. Hathaway and Vivian M. Hathaway, No. 17900 (W. Va. June 22, 1990) (Miller, J.): 183 W.Va. 165, 394 S.E.2d 764:
Where initial suretyship/indemnification agreement was executed by husband/wife proprietorship which was later incorporated, but was never amended to reflect the change in legal status, the Court held that if there is a material change by the indemnitee in the undertaking indemnified without the consent of the indemnitor, in the present case, the issuance of surety bonds to the corporation, that increases the risk to or prejudices the indemnitor, who, in the present case, had agreed only to act as indemnitor for the proprietorship, then the indemnitor may be discharged from liability.