Donald C. McCormick v. Allstate Insurance Company and David Dailey, No. 23261 (W. Va. July 18, 1996) (Albright, J.):
Where after a jury awarded only $1,000 in compensatory damages in an action in which plaintiff sought compensatory and punitive damages totaling $3.6 million arising from an insurer's assessment of a $595 fee for "automobile reconditioning" and failure to pay $400 for "loss of use" in a total loss claim, and the trial court refused to award attorney fees, to proceed to the punitive damages phase of the trial, or to proceed to the bad faith settlement practices phase of the trial, the Court affirmed the denial of attorney fees and punitive damages, but reversed and remanded the bad faith settlement practices claim, holding that, unlike in a Hayseeds action where an insured must "substantially prevail" in order to recover, there is no such requirement in a Jenkins action, which is statutorily premised upon violation of the Unfair Trade Practices Act, W. Va. Code §§ 33-11-4(9) as a "general business practice."
State of West Virginia ex rel. State Farm Mutual Automobile Insurance Company v. Honorable Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, and Eric L. Coleman, an infant, by his father, guardian and next friend, Terry L. Coleman, and Terry L. Coleman, individually, No. 23269 (W. Va. July 12, 1996) (Workman, J.):
Where insurer sought to appear in its own name in an uninsured case, the Court held that (1) insurers providing uninsured motorist coverage are entitled to appear and defend in their own name rather than that of the uninsured motorist even if no policy defenses are asserted and (2) insurers providing uninsured motorist coverage owe a duty of good faith and fair dealing to their insureds and may not use information obtained as a result of the insurer/insured relationship against the interests of the insured.
Gary L. Robertson and Janet S. Robertson v. Gene Fowler; Galigher Ford, Inc., a West Virginia corporation; Car Spot, Inc., a West Virginia corporation; Charles F. Runyon, Jr.,; BankOne, formerly known as the Wayne County Bank, a national banking association; and Corky Runyon and Car Spot, Inc.; Charles F. Runyon, Jr.; and Corky Runyon v. United States Fidelity & Guaranty Company, No. 22892 (W. Va. July 12, 1996) (Workman, J.):
Reversing application of the doctrine of reasonable expectations in a case in which a garage policy was found by the circuit court to cover an allegation of odometer tampering, the Court held that there must be an ambiguity in the terms of an insurance policy before the doctrine of reasonable expectations is applicable.
Stevie Ray Trent and Pamela E. Trent v. Tammy L. Cook, No. 23077 (W. Va. July 12, 1996) (Workman, J.):
Reversing a decision regarding underinsurance coverage for a deputy who was struck by another driver while outside his covered cruiser investigating another accident, the Court held that (1) because the deputy was neither "occupying" nor "using" the covered vehicle at the time of the accident, there was no coverage pursuant to policy provisions which required such occupancy or use; (2) because the deputy was eligible for workers' compensation benefits arising from the accident, there was no coverage pursuant to an workers' compensation exclusion; and (3) when a custom-designed insurance policy is issued to a governmental entity pursuant to the Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq., language may be incorporated into such policy absolutely limiting liability even if such language would otherwise violate the provisions of W. Va. Code § 33-6-1.
Lewis R. Auber and Jo-Ann Auber v. A.V. Jellen, M.D., and A.V. Jellen, M.D., P.C. and Lewis R. Auber and Jo-Ann Auber v. Insurance Corporation of America, aka ICA, a Texas Corporation, No. 22879 (W. Va. March 1, 1996) (Albright, J): ___ W. Va. ___, 469 S.E.2d 104:
Rejecting an attempt by plaintiffs in a medical malpractice case to get insurance coverage for each of a series of misdiagnoses, the Court held that (1) the policy language "injury resulting from a series of acts or omissions" rendered repeated failure to properly diagnose "one incident" under the policy; (2) where the policy was changed from "occurrence" to "claims-made" during the complained course of treatment, there was coverage under both aspects of the policy for the failure to diagnose pursuant to a continuing course of treatment; (3) where the policy's anti-stacking language was ambiguous as to the interplay between the physician's policy and his professional corporation's policy, the insured physician/professional corporation was entitled to stack coverages; (4) where the parties to a settlement have fixed the time at which money is to be paid, any right to receive interest on such money runs from the date established by the parties for payment; and (5) there is no right to recover attorney fees and costs in a third-party declaratory judgment action, undertaken pursuant to a settlement agreement, to determine the limits of liability insurance coverage.
Mark E. Morton, Executor of the Estate of Joseph R. Fitzpatrick v. Amos-Lee Securities, Inc., etc., et al., No. 22873 (W. Va. December 14, 1995) (Recht, J.): 195 W.Va. 691, 466 S.E.2d 542:
Reversing an award of summary judgment where the plaintiff's decedent, a chronic alcoholic in his late sixties, was persuaded to purchase a single-premium whole life insurance policy, the Court recognized that there is a private cause of action under the Unfair Trade Practices Act, W. Va. Code § 33-11-4(1)(a).
Glenna Griffith Cox and James F. Cox, Administrator and Personal Representative for the Estate of John Carl Cox v. Brian Keith Amick, et al., and Nationwide Insurance Company, etc., et al., No. 22799 (W. Va. December 11, 1995) (McHugh, C.J.): 195 W.Va. 608, 466 S.E.2d 459:
Where accident occurred when deceased/insured was struck by a car driven by a drunken teenager from which a drunken occupant had departed shortly prior to the accident, the Court reversed holdings that because the deceased/insured's carrier failed to show that his surviving spouse had rejected underinsurance coverage, such coverage was available under Bias, and that the drunken occupant's uninsured coverage was available, ruling that (1) a knowing and intelligent rejection of optional insurance by any named insured is binding on all persons insured under the policy and (2) when a policy provides uninsured coverage for damages suffered from the "owner or driver of an uninsured motor vehicle" if such damages have resulted from an accident arising from the ownership, maintenance, or use of the uninsured motor vehicle, damages may not be recovered from a person who was not occupying the uninsured motor vehicle involved in the accident and who was not the owner or driver of such vehicle.
Angela L. Payne and Glenville Payne v. Richard L. Weston and Allstate Insurance Company, a corporation, No. 22644 (W. Va. December 8, 1995) (Cleckley, J.): 195 W.Va. 502, 466 S.E.2d 161:
Rejecting an attempt by an insured to stack the tortfeasor's liability coverages on two owned vehicles, the Court held (1) there is no common law right to stack coverages available for multiple vehicles under the same policy or under two or more policies; (2) the right to stack coverages must arise from the insurance contract itself or from a statute; and (3) an insured is not entitled to stack coverages for every vehicle covered by his or her policy when the insured receives a multi car discount, when only one vehicle is involved in the accident, and when the policy contains language limiting the insurer's liability.
Metropolitan Property and Liability Insurance Company v. Orval Acord, Sr., No. 22851 (W. Va. December 8, 1995) (Workman, J): 195 W.Va. 444, 465 S.E.2d 901:
Affirming a ruling that rejected a claim for liability coverage where the insured's son was killed while a passenger in the insured vehicle which was being driven by the son's friend, the Court held that (1) an insurer may deny liability coverage where a policy provision states that in order for such coverage to exist, a driver, who is not otherwise insured under the policy, must have a named insured's permission to use the insured vehicle and (2) in order to be a custodian under W. Va. Code § 33-6-31(a), a person must be entrusted, either expressly or impliedly, by the named insured or the insured's spouse with the possession of the vehicle.
State of West Virginia ex rel. Hanley C. Clark, Insurance Commissioner of the State of West Virginia v. Blue Cross Blue Shield of West Virginia, Inc.; West Virginia State Medical Association, et al.; and The Logan Medical Foundation, No. 22711 (W. Va. November 17, 1995) (Workman, J.): 195 W.Va. 537, 466 S.E 2d 388:
Affirming a circuit court's unfavorable designation of a hospital's claim against a bankrupt health insurance company, the Court held (1) where a proof of claim fails to comport with the requirements of W. Va. Code § 33-24-25, and is not filed in the manner and within the time provided by statute, strict adherence to the express legislative procedures governing the liquidation of health services corporations dictates that the claim shall not be entitled to filing or allowance, and no action may be maintained with regard to the claim, and (2) where a proof of claim complies with the relevant statutory requirements, but is filed after the claims bar date provided by statute, the proof of claim is properly classified as a Class VI late-filed claim pursuant to W. Va. Code § 33-24-27(f).
Denise Miller v. Gregory Lambert, No. 22957 (W. Va. October 26, 1995) (Miller, J.): 195 W.Va. 63, 464 S.E.2d 582:
Where uninsured carrier settled with one injured party, exhausting the limits of liability, the Court held such carrier responsible to the other injured party, an infant, for $20,000, the minimum limits of the motor vehicle responsibility statute, holding that (1) W. Va. Code § 33-6-31(b) provides minimum coverage for uninsured motorist protection equal to that contained in W. Va. Code § 17D-4-2, the motor vehicle responsibility statute; (2) W. Va. Code § 17D-4-2 requires a limit of $20,000 for the bodily injury or death of one person and $40,000 for the bodily injury or death of two or more persons; (3) the mandatory requirement of uninsured coverage under W. Va. Code § 17D-4-2 overrides any contrary language in an automobile liability insurance policy; and (4) a carrier with a single limit uninsured policy of $50,000 which it pays to one of two parties injured in the same accident is not exempt from the requirements of W. Va. Code § 33-6-31(b) and W. Va. § 17D-4-2.
Mary Jo Barth v. William D. Keffer and Allstate Insurance Company, No. 22691 (W. Va. October 26, 1995) (Miller, J.): 195 W.Va. 51, 464 S.E.2d 570:
In a case distinguishing the right of subrogation from the doctrine of contribution where the insured failed to obtain her underinsured carrier's consent to settle for less than the policy limits of the tortfeasor's policy, the Court held that (1) the statutory right of subrogation contained in W. Va. Code § 33-6-31(f) ordinarily precludes an injured party from settling for less than liability policy limits and giving a general release without the consent of the underinsured motorist carrier and (2) principles of contribution that ordinarily release a tortfeasor from further liability to the injured party upon good faith settlement do not apply to an underinsured carrier where the injured party fails to obtain its consent to settle pursuant to W. Va. Code § 33-6-31(f).
Joseph C. Jones and Debra S. Jones v. Wesbanco Bank Parkersburg v. Motorist Mutual Insurance Company, No. 22517 (W. Va. July 14, 1995) (McHugh, C.J.): 194 W.Va. 381, 460 S.E.2d 627:
Rejecting a fire casualty insurer's attempt to avoid payment to the mortgagee where mortgage payments were made even after insured property was destroyed by fire, the Court held that (1) where a lender under a deed of trust executed by a property owner to secure a debt owing on the property is named as mortgagee in a standard mortgage clause in a fire insurance contract, it has an independent and distinct contract with the insurer and is deemed to be an insured to the extent of the balance due it from the property owner and (2) the right of a lender under a deed of trust as mortgagee to insurance proceeds is determined as the time of the fire loss to the extent of the balance due it from the property owner.
Massachusetts Mutual Life Insurance Company v. Sherry Lee Thompson, No. 22519 (W. Va. July 13, 1995) (Workman, J.): 194 W.Va. 473, 460 S.E.2d 719:
Where disability insurer sought to avoid payment of benefits where carpal tunnel suffering insured had failed to disclose previous treatment for mental illness, the Court held (1) an insurer need not prove intentional misrepresentation, omission, concealment, or incorrect statement of fact in order to invalidate a disability insurance policy, but must demonstrate impairment thereby of its ability to make a reasoned decision to assume the risk of coverage and (2) an insured may prevail despite such showing by establishing that the misstatement regarded a minor ailment which is so unrelated to the allegedly disabling condition that it could not have possibly been material with respect to issuance of the policy.
Barbara S. Miller and Mark L. Miller v. Hazel V. Lemon, Executrix of the Estate of Phillip M. Lemon, Hazel Lemon and Federal Kemper Insurance Company, No. 22589 (W. Va. June 19, 1995) (McHugh, C.J.): 194 W.Va. 129, 459 S.E.2d 406:
Reversing a ruling that if a multicar discount for uninsured or underinsured coverage does not appear on the declarations page of a policy, then an antistacking provision for such coverage is unenforceable, the Court held that even if no multicar discount for uninsured or underinsured coverage is apparent on the declarations page of the policy, antistacking language is valid if the trial court determines that "such a discount was given."
Cassandra Dianne Jackson v. Harvey L. Donahue and Builders Transport, Inc., a Virginia corporation, No. 22282 (W. Va. April 14, 1995) (McHugh, J.): 193 W.Va. 587, 457 S.E.2d 524:
In an vehicular accident case involving injuries to an unauthorized passenger in a self-insured interstate truck, the Court held (1) a foreign commercial trucking corporation, which has been granted the right to self-insure by the PSC under W. Va. Code § 24A-5-5(g), must afford the same coverage, including an omnibus clause provision under W. Va. Code §§ 33-6-31(a) and 17D-4-12(b)(2), as would an insurance company, and (2) federal minimum limits of liability coverage imposed on foreign commercial trucking corporations operating in interstate commerce preempt general state minimum limits of liability coverage set forth in W. Va. Code § 17D-4-2.
Donna Davis, individually and as the Administratrix of the Estate of Arlo Davis, Jr. v. William Foley, Arthur Wilkins, James Herron, Nationwide Mutual Insurance Company, Westfield Insurance Company, and Integon Insurance, dba New South Insurance Company, No. 22361 (W. Va. April 14, 1995) (McHugh, J.): 193 W.Va. 595, 457 S.E.2d 532:
Affirming a ruling that a wrongful death did not trigger the per occurrence limits of an automobile liability policy, the Court held (1) the damages in a wrongful death action arise out of the death of the decedent, rendering the action a derivative claim; (2) insurance policy language limiting recovery of derivative claims to the per person limit are enforceable even where multiple beneficiaries are entitled to recovery under the wrongful death statute; and (3) if there is language in an automobile liability policy including damages from wrongful death as a separate bodily injury, then each person recovering for the wrongful death is entitled to a separate per person limit.
Homer Richards and Mary Richards v. Allstate Insurance Company, a corporation, No. 22170 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 244, 455 S.E.2d 803:
Where Allstate provided insurance to both vehicles in an accident and sought subrogation against its insureds whom it paid both under the medical payments provision of their policy and under the liability provisions of the tortfeasor's policy, the Court held that no right of subrogation can arise in favor of an insurer against its own insured, because subrogation arises only with respect to the rights of the insured against third persons to whom the insurer owes no duty.
Elena Hadorn v. William Shea, Leader National Insurance Company, and State Farm Insurance Company, No. 22217 (W. Va. February 16, 1995) (Neely, C.J.): 193 W.Va. 350, 456 S.E.2d 194:
Affirming a decision that an underinsured did not "substantially prevail" where insured demanded $300,000, insurer offered $22,500, and jury returned verdict of $90,000, the Court rejected a mathematical approach to determining when Marshall v. Sasseen damages are appropriate in an underinsurance case, adopting instead the test set forth for personal property claims in Jordan v. National Grange Mut. Ins. Co., 183 W. Va. 9, 393 S.E.2d 647 (1990).
Clarence Yeager and Margaret Yeager v. Farmers Mutual Insurance Co., a West Virginia corporation, and Art Meadows dba Meadows Inspection & Adjusting, No. 22159 (W. Va. December 21, 1994) (Cleckley, J.): 192 W.Va. 556, 453 S.E.2d 390:
Holding that a farmers' mutual fire insurance policy is not subject to the valued policy law under W. Va. Code § 33-17-9, the Court held (1) the legislature clearly indicated in W. Va. Code § 33-22-7(c) that farmers' mutual fire insurance companies are exempt from the valued policy law; (2) if a farmers' mutual fire insurance company and its insured cannot agree on the cash value for a total loss of the insured property, the burden of proof rests on the party seeking an amount different that the value stated in the policy; and (3) absent a statutory provision expressing a contrary intent, the burden of proof for a total loss of the insured property shall not be applied retrospectively to situations where a farmers' mutual fire insurance company and its insured have agreed on an actual cash value and the insured has signed an otherwise valid release of claims.
Cannelton Industries, Inc. v. The Aetna Casualty & Surety Company of America, et al., No. 22164 (W. Va. December 16, 1994) (McHugh, J.): 194 W.Va. 186, 460 S.E.2d 1:
Rejecting an insured's claim that the state guaranty association was liable because the insured had not been notified of the insurers' insolvency, the Court held that the West Virginia Guaranty Association is not required to notify insureds of an insurer's insolvency unless directed by the Insurance Commissioner pursuant to W. Va. Code § 33-26-10(2)(a).
Teresa L. Castle and Leonard G. Castle, Jr. v. Terry Williamson and Sarah J. Williamson, and Dairyland Insurance Company v. Tracy Lynn Castle, Nos. 22157 and 22158 (W. Va. December 15, 1994) (Workman, J.): 192 W.Va. 641, 453 S.E.2d 624:
Where guest passenger settled with third-party tortfeasor for less than the limits of his liability policy, the Court found her precluded from recovering under her driver's underinsurance coverage, holding that where a guest passenger is injured by the concurrent negligence of her host driver and a third party, the guest passenger may not recover under the host driver's underinsured policy if it contains a clear and unambiguous provision which mandates the exhaustion of applicable liability coverage before underinsurance coverage is activated and the guest passenger fails to obtain the full amount of the liability limits from the third-party tortfeasor's carrier.
Joanna Porter Wheeler, individually, and as Administratrix, d.b.n. for the Estate of Paul David Porter v. Joseph Murphy, No. 22140 (W. Va. December 8, 1994) (Neely, J.): 192 W.Va. 325, 452 S.E.2d 416:
Reversing a jury verdict where the trial court refused to allow evidence of insurance to rebut testimony regarding the defendant's poverty, the Court held (1) proof of insured status offered on rebuttal as a financial asset that should be considered by the jury in awarding punitive damages does not violate R. Evid. 411; (2) where rebuttal consists of noncollateral evidence that is made material and relevant solely due to the evidence introduced by the defendant, it should be permitted as a matter of right; and (3) once a defendant offers evidence of financial status to influence the jury on punitive damages, then the plaintiff may rebut such evidence by introducing proof of insurance.
State of West Virginia ex rel. Motorists Mutual Insurance Company, a foreign corporation v. Hon. W. Craig Broadwater, Judge of the Circuit Court of Ohio County; Lin V. Humphries, Clerk of the Circuit Court of Ohio County; et al., No. 22466 (W. Va. December 8, 1994) (Workman, J.): 192 W.Va. 608, 453 S.E.2d 591:
Where underinsured carrier did not participate in the underlying trial and then sought to avoid liability for the judgment by filing a declaratory judgment action in Ohio, the Court held that provided the underinsured carrier has been properly served pursuant to W. Va. Code § 33-6-31(d), and no defenses to coverage were raised by the carrier, the absence of a judgment order directed specifically against the carrier does not preclude entry of an order against the carrier if liability of the underinsured motorist has been established.
Charles Lee Morrison, Administrator of the Estate of Paul M. Morrison v. Richard Allen Haynes, No. 22152 (W. Va. November 23, 1994) (Miller, J.): 192 W.Va. 303, 452 S.E.2d 394:
In addition to reaffirming its recent holdings in Marshall v. Sasseen, 192 W.Va. 94, 450 S.E.2d 791 (1994), regarding first-party bad faith/excess verdict claims, the Court held that (1) liability proceeds from the tortfeasor, pursuant to W. Va. Code § 33-6-31(b), are not to be offset against underinsurance coverage where the verdict exceeds both the liability proceeds and the underinsured limits and (2) an underinsured carrier who acts in bad faith is jointly liable with the original tortfeasor where an excess verdict is rendered.
Annie Charles, Administratrix of the Estate of Deborah Jewell, Deceased v. State Farm Mutual Automobile Insurance Company, James Muncy and Stanley Bowen, No. 21662 (W. Va. November 18, 1994) (Neely, J.): 192 W.Va. 293, 452 S.E.2d 384:
Reversing the award of an excess verdict in an underinsurance case where the carrier's defense to the insured's bad faith claim was based upon the noncooperation of the permissive user of the vehicle, the Court held although excess coverage in a statutory minimum case under W. Va. Code § 17D-4-7 is not subject to the provisions of such statute with respect to a bad faith claim to such excess, the trial court should have afforded the insured an evidentiary hearing to determine whether it was substantially prejudiced.
Dairyland Insurance Company v. Debra Bradley, Administratrix of the Estate of Nicole Bradley, Deceased, and Jerry Raymond Warmbein, No. 22253 (W. Va. November 18, 1994) (Neely, J.): 192 W.Va. 199, 451 S.E.2d 765:
Limiting its holding in Alexander v. State Auto Mut. Ins. Co., 187 W. Va. 72, 415 S.E.2d 618 (1992) to single-car accidents, the Court held that when the host driver's underinsured motorist policy language specifically provides coverage for guest passengers, a guest passenger who is injured by the concurrent negligence of the host driver and a third-party may recover from the driver's underinsurance coverage if the driver's and third-party's liability coverages are inadequate to compensation the passenger for his or her actual damages.
Robert Michael Marshall and Mary Lou Marshall v. Rosella S. Sasseen and Erie Insurance Company, No. 22038 (W. Va. November 2, 1994) (Miller, J.): 192 W.Va. 94, 450 S.E.2d 791:
Adopting a Hayseeds theory for bad faith settlement and a Shamblin theory for excess verdicts in first-party uninsurance and underinsurance suits, the Court held that (1) when a policyholder of uninsured or underinsured coverage "substantially prevails" in a suit under W. Va. Code § 33-6-31(d), the carrier is liable for (i) an amount not to exceed policy limits, (ii) reasonable attorney fees, and (iii) damages for aggravation and inconvenience; (2) the failure of an underinsured motorist coverage carrier to be named as a defendant in a first-party action against a settling tortfeasor does not defeat the underinsurance claim because the insured is afforded adequate notice and an opportunity to defend under the principles established in SER Allstate Insurance Co. v. Karl, 190 W. Va. 176, 437 S.E.2d 749 (1993); and (3) where an uninsured or underinsured motorist carrier fails to settle within policy limits, it may be liable in a separate suit for the excess verdict for its failure to make a good faith settlement within its policy limits under the principles set forth in Shamblin v. Nationwide Mutual Ins. Co., 183 W. Va. 585, 396 S.E.2d 766 (1990).
State of West Virginia ex rel. State Farm Fire & Casualty Company and Nancy S. Barry v. Honorable John T. Madden, Judge of the Circuit Court of Marshall County, and Larry Thompson, No. 22350 and State of West Virginia ex rel. Mid-Ohio Restaurants, Inc. d/b/a Wendy's Eastern Management Group and Wendy's International, Inc., d/b/a Wendy's Old Fashioned Hamburgers Company v. Honorable John T. Maddden, Judge of the Circuit Court of Marshall County, and Larry Thompson, No. 22351 (W. Va. October 28, 1994) (Neely, J.): 192 W.Va. 155, 451 S.E.2d 721:
Overruling a line of cases beginning with Jenkins v. J.C. Penney Cas. Ins. Co., 167 W. Va. 597, 280 S.E.2d 252 (1981), the Court held that an insurer may be joined as a bad faith settlement practices defendant in a liability action against its insured as long as the bad faith claims are bifurcated as to all proceedings, including discovery, from the underlying liability action.
Jeffrey W. Poling and Wendy Poling, his wife v. Motorists Mutual Insurance Co., No. 22135 (W. Va. October 28, 1994) (Neely, J.): 192 W.Va. 46, 450 S.E.2d 635:
Where third party sought to bring bad-faith action against tortfeasor's insurer after settlement and release of tortfeasor, the Court held (1) settlement with a tortfeasor which does not include release of the tortfeasor's insurer does not preclude a subsequent action against such insurer for bad faith settlement practices; (2) punitive damages are available against a tortfeasor's insurer for bad faith settlement practices; and (3) loss of consortium damages are available against a tortfeasor's insurer for bad faith settlement practices.
Farmers & Mechanics Mutual Fire Insurance Company of West Virginia, et al. v. James K. Hutzler, et al., No. 22039 (W. Va. July 19, 1994) (Brotherton, C.J.): 191 W.Va. 559, 447 S.E.2d 22:
Reversing the award of summary judgment where an insurance company asserted no duty to defend, the Court held that when a complaint is filed against an insured, the insurer must look beyond the bare allegations of the pleadings and conduct a reasonable inquiry into whether the claims asserted may come within the scope of coverage.
State Farm Mutual Automobile Insurance Company, an Illinois corporation v. Betty M. Norman, Administratrix of the Personal Estate of Rhonda Kay Barnett, No. 21853 (W. Va. July 11, 1994) (Brotherton, C.J.): 191 W.Va. 498, 446 S.E.2d 720:
Rejecting an insured's argument that a tire constituted an "uninsured vehicle" for purposes of coverage, the Court held that absent specific coverage provisions to the contrary, uninsured motorist coverage is not available where an insured vehicle strikes a tire or other immobile object or debri which may be lying on a highway.
Shelby Wisman and Earlene Wisman v. William J. Rhodes and Shamblin Stone, Inc., a West Virginia corporation, et al., No. 21967 (W. Va. July 11, 1994) (Brotherton, C.J.): 191 W.Va. 542, 447 S.E.2d 5:
Where two employees collided with one another during the course of emploment while operating motor vehicles, the Court held that an employee who receives workers' compensation benefits for injuries resulting from a motor vehicle collision with a coemployee which occurs during the course of employment is not entitled to assert a claim for uninsured or underinsured motorists benefits due to the immunity and exclusivity provisions contained in W. Va. Code §§ 23-2-6 and 6a.
James B. Rich, III, as guardian of Ray A. Watson, III, ward, a minor v. Allstate Insurance Company, an Illinois corporation, and Rhea A. Watson, No. 22058 (W. Va. May 31, 1994) (McHugh, J.): 191 W.Va. 308, 445 S.E.2d 249:
Rejecting a child's attempt to recover homeowner's insurance benefits arising from a lawnmower accident, the Court held that when a homeowner's insurance policy excludes coverage to an "insured person" and defines "insured person" as a resident of the named insured's household or a dependent person in the insured's care, a child who is a resident of the insured's household or a dependent person in the insured's care, and who is injured by the named insured, is not covered under the homeowner's policy.
Nationwide Mutual Insurance Company v. Dairyland Insurance Company, a corporation; and Sentry Claims Service, a corporation, No. 22019 (W. Va. May 20, 1994) (Miller, J.): 191 W.Va. 243, 445 S.E.2d 184:
Resolving a dispute between two automobile liability insurers over the proper method of asserting a subrogation claim for medical payments coverage, the Court held (1) written notification to an insured by a med pay carrier as to its subrogation claim is legally sufficient even though it does not contain the precise amount of the subrogation claim; (2) the subrogation rights of a med pay carrier are not barred as long as the tortfeasor's carrier was notified of the subrogation claim before it settled with the insured who received the medical payments; and (3) the tortfeasor's carrier is usually primarily responsible for payment of the subrogation claim because it is made aware of the claim before obtaining the insured's release.
State Farm Mutual Automobile Insurance Company, a corporation v. George D. Agrippe and Chris Agrippe, individually, both as natural parents and next of friends of George Sean Agrippe, Denise Agrippe Boggs, Christine Agrippe Shirkey, Michael W. Lanham, and Susan Suter, No. 22018 (W. Va. May 19, 1994) (Neely, J.): 191 W.Va. 230, 445 S.E.2d 171:
Rejecting a claim for interest in excess of policy limits, the Court held that in the absence of a bad faith claim against the insurer, an automobile liability carrier has no obligation to pay prejudgment interest over and above the liability limits of its policy with a policy provision providing for the payment of such interest.
Municipal Mutual Insurance Company of West Virginia v. Denver L. Mangus, Lucille Mangus, and Rickey Lee Fields, Sr., No. 21763 (W. Va. March 24, 1994) (Neely, J.): 191 W.Va. 113, 443 S.E.2d 455:
Affirming the denial of homeowners' coverage to a policyholder who contended that he was insane at the time he shot a neighbor, the Court held that coverage under the intentional injury exclusion clause in a homeowners' policy may be denied when one who commits a criminal act has a minimal awareness of the nature of his act and the criminal standard has not applicability to the interpretation of the plain language of an insurance policy.
Stephanie Johnson and Melinda Davis, who sues by her friend, Susan Payton v. State Farm Mutual Automobile Insurance Company, No. 21659 (W. Va. December 15, 1993) (Workman, C.J.): 190 W.Va. 526, 438 S.E.2d 869:
Reversing a determination of coverage where the insured's son was the passenger in a vehicle involved in a fatal accident, the Court held that to invoke coverage under an automobile policy which extends coverage for use of a non-owned vehicle, there must be a causal connection betweeen the use of the motor vehicle and the injury.
Janet Conn; Beth McDaniel; James C. McDaniel; Joshua McDaniel, infant, and Jason McDaniel, infant, through their next friend, Beth McDaniel v. Motorist Mutual Insurance Company, No. 21584 (W. Va. November 23, 1993) (Miller, J.): 190 W.Va. 553, 439 S.E.2d 418:
Affirming a trial court decision that an insurance company had not properly canceled coverage, the Court held that W. Va. Code § 33-6A-3 provides that if an automobile liability insurance policy has been in effect sixty days or is renewed, the insurer or its agent shall in the notice of cancellation specify the reason[s] relied upon by the insurer for such cancellation.
State of West Virginia ex rel. Allstate Insurance Company, a corporation v. Honorable Mark A. Karl, Judge of the Circuit Court of Marshall County; Jamie Lynn Brooks; James E. Brooks; and Naomi Carr, No. 21818 (W. Va. October 29, 1993) (Miller, J.): 190 W.Va. 176, 437 S.E.2d 749:
In a case delineating the rights of underinsured carriers, the Court held (1) an underinsured carrier occupies the position of an excess carrier with respect to the tortfeasor's liability carrier; (2) a tortfeasor's liability carrier should ordinarily control the litigation on behalf of the insured tortfeasor; (3) a primary insurance carrier has a duty to act in good faith with respect to any excess insurance carrier when defending a claim on behalf of the primary carrier's insured; (4) when a underinsured carrier demonstrates that the liability carrier is not defending the claim in a good faith manner, the underinsured carrier may petition the court to assume primary control of the defense; (5) an underinsured carrier is not foreclosed from filing an answer on behalf of the tortfeasor when it appears that default judgment might be entered against the tortfeasor; (6) an underinsured carrier and the liability carrier may agree to jointly defendant an action against the tortfeasor, but they may not file separate pleadings, indulge in separate discovery, or examine witnesses separately; and (7) the statutory right of subrogation under W. Va. Code § 33-6-31(f) is not available where the policyholder has not been fully compensated for the injuries received and has the right to recover from other sources.
Willard Plumley v. Willis Ray May, No. 21614 (W. Va. July 22, 1993) (Workman, J.): 189 W.Va. 734, 434 S.E.2d 406:
In another case involving the proper procedure to pursue underinsurance claims, the Court held that (1) an action to recover uninsured/underinsured motorist benefits does not require prior suit against a tortfeasor with whom the insured has settled with the consent and waiver of subrogation rights by the uninsured/underinsured carrier, and (2) an action against an uninsured/underinsured carrier is governed by the contract statute of limitations.
Frances Arndt and David Arndt v. Bobby L. Burdette, II, Westfield Insurance Company, No. 21457 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 722, 434 S.E.2d 394:
Affirming the award of summary judgment to an underinsurance carrier whose consent was not obtained prior to its insureds' settlement of their claims against the tortfeasor, the Court held that an automobile insurance policy provision that voids underinsurance coverage for an insured who settles a claim against a tortfeasor without the written consent of the insurer is a valid means by which the insurer can protect its statutory subrogation rights pursuant to W. Va. Code § 33-6-31(f).
Lewis A. Harman v. State Farm Mutual Automobile Insurance Company, No. 21598 (W. Va. July 16, 1993) (Brotherton, J.): 189 W.Va. 719, 434 S.E.2d 391:
Where injured party failed to file suit for over three years, during which the party was negotiating with his insurance company, the Court held that uninsured motorist coverage is not available as an alternative to the tortfeasor's liability coverage when the injured party fails to file suit agains the tortfeasor until after expiration of the statute of limitations.
Marjorie Postelthwait and Dale Postelthwait v. Boston Old Colony Insurance Company, a wholly owned subsidiary of Continental Insurance Company, and James W. Nowlan, No. 21347 (W. Va. June 28, 1993) (Miller, J.): 189 W.Va. 532, 432 S.E.2d 802:
Affirming the right of an injured party who has settled with the tortfeasor's insurance company with the knowledge and consent of the party's underinsurance carrier to bring an action against the underinsurance carrier, the Court held (1) W. Va. Code § 33-6-31(d) requires service on the underinsurance carrier of a copy of any complaint filed against the tortfeasor; (2) W. Va. Code § 33-6-31(d) permits the underinsurance carrier to participate in the action against the tortfeasor "in the name of the owner, or operator, or both, of the uninsured or underinsured vehicle or in its own name;" (3) W. Va. Code § 33-6-31(f) authorizes a right of subrogation by an uninsured or underinsured carrier for the amount paid by the tortfeasor; and (4) an injured party is not precluded from suing an uninsured/underinsured carrier when the party settles with the tortfeasor's liability carrier for the full amount of the policy and obtained a waiver of subrogations rights by the uninsured/underinsured carrier.
Pamela Carney v. Erie Insurance Company, Inc., dba Erie Insurance Group, a foreign corporation, and Smallwood-Small Insurance, Inc., a West Virginia corporation, No. 21570 (W. Va. June 28, 1993) (Miller, J.): 189 W.Va. 702, 434 S.E.2d 374:
Affirming an exclusion for a salesperson who was injured in an accident while returning a car to the dealership, the Court held that where an employee of an automotive dealership is returning a vehicle to the dealership and is involved in an accident, the medical payment provisions under the employee's personal automobile liability policy will not afford coverage where there is an exclusion for anyone while working in a business that sells, repairs, services or parks autos, unless the business is the insured's.
Marshall Higginbotham v. Hanley Clark, Insurance Commissioner of the State of West Virginia, No. 21417 (W. Va. June 24, 1993) (Brotherton, J.): 189 W.Va. 504, 432 S.E.2d 774:
Interpreting certain statutory obligations of the insurance commissioner in mine subsidence claims, the Court held that denial of coverage for one of the reasons set forth in W. Va. Code § 33-30-7, such as an exclusion for pre-existing conditions, constitutes refusal to provide coverage, rendering such decision subject to review by the insurance commissioner under the hearing and appeal provisions of W. Va. Code § 33-2-1, et seq.
Eric J. Keiper v. State Farm Mutual Automobile Insurance Company and State Farm Insurance Companies, No. 21239 (W. Va. March 25, 1993) (Neely, J.): 189 W.Va. 179, 429 S.E.2d 66:
Rejecting an attempt to stack "med-pay" benefits of an automobile insurance policy, the Court held that there exists no statutory or other public policy requirement that would justify invalidation of anti-stacking language for medical benefits in an automobile insurance policy.
Dairyland Insurance Company, a corporation v. Leanne Brookover Voshel v. Roger L. Wingrove, No. 21279 (W. Va. March 12, 1993) (Brotherton, J.): 189 W.Va. 121, 428 S.E.2d 542:
Affirming a decision that an insurer had no duty to defend where it was not timely informed of a claim, the Court held that the following factors should be considered in determining whether a delay in notifying an insurer of a claim will bar coverage: (1) the length of the delay; (2) the reason for the delay; (3) the prejudice to the insurer in its investigation of the claim; and (4) the prejudice to the insurer in the defense of the claim.
Federal Kemper Insurance Company v. Herbert J. Karlet, Luanna Sue Karlet, Kelli Michelle Karlet, Charlotte Ball as Administratrix of the Estate of Louia H. Martin, and Charles Daniel Ball, No. 21312 (W. Va. February 25, 1993) (McHugh, J.): 189 W.Va. 79, 428 S.E.2d 60:
The Court rejected an attempt to recover the per occurrence limits of an automobile insurance policy due to a claim of parental consortium, holding that (1) the claim of a bodily-injured person and a separate claim for loss of consortium are both covered within the per person limits of an automobile insurance policy and (2) only where an automobile insurance policy includes loss of consortium as a separate bodily injury do the per occurrence limits apply.
D & M Logging Company v. Roy C. Huffman and Liberty Mutual Insurance Company, No. 21355 (W. Va. February 11, 1993) (Neely, J.): 189 W.Va. 9, 427 S.E.2d 244:
Where suit arose from an accident in which a truck loaded with logs by the insured vehicle struck another vehicle, the Court held that there was no coverage because the West Virginia Automobile Insurance Plan, the assigned risk insurance plan, does not require insurance companies to insure activities involving specialized equipment, such as the crane used to load the logs, attached to a covered vehicle in circumstances where those activities are not those of an ordinary passenger vehicle.
Jina L. Ward, individually and as next friend of Michael Chase Ward, an infant; and Gary E. Ward v. Alice J. Baker; Boyce E. Baker; Richard Baker; Erie Insurance Group, a corporation; State Farm Mutual Automobile Insurance Company, a corporation; and Aetna Casualty and Surety Company, a corporation, No. 21222 (W. Va. December 18, 1992) (Workman, J.): 188 W.Va. 569, 425 S.E.2d 245:
Where plaintiff was injured in an accident with a vehicle operated by the owner's brother, who was excluded by name from the owner's policy, but who was instructed to operate the vehicle by his father, who also had a policy which contained a provision specifically excluding liability coverage for vehicles owned by resident relatives, the Court held (1) where a third-party personal injury claim arises against an insured under the family purpose doctrine where the named excluded driver was operating the vehicle without the insured's consent, the named driver exclusion is valid except as to the minimum mandatory liability coverage under the Motor Vehicle Responsibility Law, W. Va. Code §§ 17D-1-1, et seq., and (2) where an automobile insurance policy clearly excludes from coverage vehicles owned by resident relatives of the insured, such provision is valid and enforceable.
Dairyland Insurance Company v. Judy A. East, aka Judith Ann East, No. 21171 (W. Va. December 18, 1992) (Workman, J.): 188 W.Va. 581, 425 S.E.2D 257:
Where wife sought liability coverage under her own policy following her injury in a single vehicle accident in which she was a passenger with her husband, who was the subject of a named insured exclusion, but who was operating his wife's vehicle, the Court held that a named driver exclusion endorsement is valid, even as to a spouse or other member of the household of the policyholder, except as to the minimum coverage amounts required by the Motor Vehicle Responsibility Law, W. Va. Code §§ 17D-1-1, et seq.
Deborah Thomas v. Nationwide Mutual Insurance Company, No. 20927 (W. Va. December 16, 1992) (McHugh, C.J.): 188 W.Va. 640, 425 S.E.2d 595:
Where guest passenger wife sought underinsurance coverage in addition to liability coverage following a single-vehicle accident in which her husband was the driver, the Court upheld the validity of a "family use exclusion" for underinsurance coverage, which excludes from the definition of "underinsured motor vehicle" any automobile owned by or furnished for the regular use of the insured or a relative, thereby excluding underinsurance coverage in addition to liability coverage.
Judith Starr v. State Farm Fire and Casualty Company, a corporation, No. 21170 (W. Va. November 13, 1992) (Miller, J.): 188 W.Va. 313, 423 S.E.2d 922:
Rejecting an attempt by a guest passenger to stack her driver's underinsurance policy on another vehicle, the Court held (1) UM and UIM provisions which differentiate between members and non-members of the policyholder's household create two classes of covered individuals; (2) class one includes only members of the policyholder's household; (3) class two includes permissive users or occupants of the insured vehicle; (4) under policies which link the right to recover to a class two insured's occupancy of the vehicle, a class two insured may not recover UM or UIM benefits from any vehicle other than the vehicle occupied; and, (5) pursuant to W. Va. Code § 33-6-31(c), a person who is entitled to UM or UIM benefits solely by virtue of occupancy of the policyholder's vehicle may not stack the policyholder's UM or UIM coverage on another vehicle not involved in the accident.
William Robert Bowyer, by his next friend, Ida Bowyer; and Ida Bowyer v. David Thomas; McDonough Caperton Shepherd Group, Inc.; and the Aetna Casualty & Surety Company, No. 20730 (W. Va. November 13, 1992) (Miller, J.): 188 W.Va. 297, 423 S.E.2d 906:
In a case clarifying an insurer's obligation to secure the cooperation of its insured in an action for which there would be coverage, the Court held (1) before an insurance policy will be voided because of the insured's failure to cooperate, this failure must be substantial and of such nature as to prejudice the insurer's rights; (2) in addition to prejudice, the insurer must demonstrate that its insured wilfully and intentionally violated the cooperation clause of the policy before it can deny coverage; (3) the insurer must exercise reasonable diligence to obtain the insured's cooperation, including attendance at trial, before a policy may be voided for noncooperation; and, finally, (4) the insurer has the burden of proof on its claim that its insured has violated the cooperation clause of its policy.
Roger Nadler, Executor of the Estate of James A. Schoettkner and Administrator of the Estate of Sara R. Schoettkner, etc., et al. v. Liberty Mutual Fire Insurance Company, No. 21004 (W. Va. November 13, 1992) (Miller, J.): 188 W.Va. 305, 424 S.E.2d 256:
Reaffirming its holding in Lee v. Saliga, 179 W. Va. 762, 373 S.E.2d 345 (1988), and refusing to apply West Virginia underinsurance law to an Ohio policy, the Court held (1) the fact that the substantive law of another jurisdiction differs from or is less favorable than the law of the forum state does not, by itself, demonstrate that application of the foreign law under recognized conflict of law principles is contrary to the public policy of the forum state and (2) where a choice of law question arises with regarding to interpretation of the coverage provisions of an insurance policy executed in another state, the public policy considerations are to be addressed by application of the "more significant relationship" test of Lee v. Saliga, supra.
Joy Technologies, Inc. v. Liberty Mutual Insurance Company, et al., No. 20153 (W. Va. July 21, 1992) (Brotherton, J.) (as modified): 187 W.Va. 742, 421 S.E.2d 493:
Where insurance industry had represented to insurance commissioner that proposed policy language was to be given a particular interpretation, the Court noted that the insurance industry was estopped from affording a different interpretation, holding that corporations which seek to do business in West Virginia must act in a manner consistent with their studied, unambiguous, official, affirmative representations to the state, its subdivisions, or its regulatory bodies.
Jack L. Ball, et al. v. Life Planning Services, Inc., No. 20531 (W. Va. July 15, 1992) (Brotherton, J.): 187 W.Va. 682, 421 S.E.2d 223:
Reversing a finding of ERISA preemption for a cause of action against an insurance agent who sold health insurance to West Virginia residents for a Massachusetts insurance company not licensed to do business in West Virginia, the Court held that because the effect on employee benefit plans of W. Va. Code § 33-12-21, which imposes personal liability on any agent who sells insurance for a company not licensed to do business in West Virginia, would be, at best, remote, an action pursuant to such statute is not preempted under ERISA.
Mary Louise Russell, individually and as Administratrix of the Estate of Tina Louise Russell v. State Automobile Mutual Insurance Company, et al., No. 20491 (W. Va. June 29, 1992) (Workman, J.): 188 W.Va. 81, 422 S.E.2d 803:
Limiting its holding in State Automobile Insurance Co. v. Youler, 183 W. Va. 556, 396 S.E.2d 737 (1990) to stacking underinsurance coverages on multiple policies, the Court upheld the validity of anti-stacking provisions where a single policy is issued by a single insurer containing a single underinsured endorsement though more than one vehicle is covered.
Charles J. Marshall and Carolyn Marshall, his wife v. Ed Fair, d/b/a Fetsko Forestry, Bill C. Moore, individually, and John D. Thorne and Lynn Beth Thorne, his wife v. Allstate Insurance Company, No. 20474 (W. Va. March 24, 1992) (McHugh, C.J.): 187 W.Va. 109, 416 S.E.2d 67:
Holding that a renter's liability policy provided coverage where policyholders were sued for the wrongful removal of timber by the owners of property which adjoined property owned by the policyholders, but which was unrelated to the property insured under the rental policy, the Court noted that property damage "arising out of" uninsured premises, as defined in the uninsured premises exclusion provision of the policy in question, referred to the "condition" of the uninsured premises, and does not exclude coverage for allegedly tortious acts of the insured committed on uninsured premises.
Lena Alexander v. State Automobile Mutual Insurance Company, an Ohio corporation, and State Farm Mutual Automobile Insurance Company, an Illinois corporation, No. 20630 (W. Va. March 20, 1992) (Brotherton, J.): 187 W.Va. 72, 415 S.E.2d 618:
Rejecting an attempt by a guest passenger to recover both the driver's liability and underinsurance coverages, the Court upheld the validity of insurance policy provisions which specifically exclude any motor vehicle owned by the policyholder from the definition of "underinsured vehicle," holding that the driver's liability insurance, not the driver's underinsurance, is intended to compensate an injured guest passenger for any negligence on the part of the driver.
Sharron D. Brown, as Administratrix of the Estate of Sidney D. Brown, etc., et al. v. Community Moving & Storage, Inc., a West Virginia corporation; Roy W. McNemar; and Home Insurance Company, a foreign corporation, No. 20271 (W. Va. February 6, 1992) (Neely, J.): 186 W.Va. 691, 414 S.E.2d 452:
Where tortfeasor obtained automobile insurance coverage on the afternoon after the accident, the Court reversed a circuit court's decision that an innocent third-party beneficiary could recover thereunder, holding that an insurance policy obtained fraudulently after the occurrence of an "insured event" is void ab initio.
FirstBank Shinnston, a West Virginia banking corporation v. West Virginia Insurance Company, a corporation; and Frank W. Maley, Jr., No. 19760 (W. Va. July 25, 1991) (McHugh, J.): 185 W.Va. 754, 408 S.E.2d 777:
Where the trial court granted summary judgment in favor of a lender whose interest as a named mortgagee on a fire insurance policy was deleted by the insurer after an envelope was returned from the lender to the insurer marked "no record," the Court affirmed, holding that if a fire insurance contract includes a standard mortgage clause naming as mortgagee the lender under a deed of trust executed by the property owner to secure a debt owing on the property, the mortgagee has an independent contract with the insurer, as if the lender had taken out a separate policy, and is deemed to be an insured to the extent of the balance due it from the property owner.
Universal Underwriters Insurance Company, a corporation and insurer of Harry Green Chevrolet, Inc., a West Virginia corporation v. Carl Taylor and Robert J. Beafore, as Adminstrator of the Estate of Robert F. Beafore, and Robert J. Beafore, in his individual capacity, No. 19842 (W. Va. July 29, 1991) (Workman, J.): 185 W.Va. 606, 408 S.E.2d 358:
Where a car dealership allowed a person who represented himself as a prospective buyer to leave the dealership with a vehicle, but reported the vehicle stolen when the person did not return, the Court reversed the trial court's decision that the dealership was not liable when the thief was involved in fatal collision sixteen days later, overruling its decision in Collins v. New York Casualty Co., 140 W. Va. 1, 82 S.E.2d 288 (1954), and holding that insurance coverage is not affected by the fact that the driver's use of a vehicle may have exceeded or differed from the owner's instructions or expectations.
Willetta Dawn Christian v. Rodney Lee Sizemore, Hester Sizemore, Federal Kemper Insurance Company, and John Doe, No. 19897 (W. Va. July 11, 1991) (Workman, J.): 185 W.Va. 409, 407 S.E.2d 715:
Reversing a trial court decision that procurement of a default judgment by an insurance company against its insured on the issue of coverage precluded a declaratory judgment action by a third-party allegedly injured by the insured's negligence, the Court held that because a default judgment obtained by an insurer against its insured on the issue of coverage is not a judgment on the merits, an injured plaintiff is not precluded from relitigating the issue of coverage in a declaratory judgment action against the insurer.
Mark A. Robinson, individually, and Julie A. Robinson, individually and as parent and legal guardian of Mark W. Robinson, II, an infant v. Continental Casualty Company, an Illinois insurance company doing business in the State of West Virginia, and Kevin Cushing, No. 19995 (W. Va. June 27, 1991) (Neely, J.): 185 W.Va. 244, 406 S.E.2d 470:
In a certified question proceeding, the Court held that a bad faith action under W.Va. Code § 33-11-1, et seq., and the commencement of formal discovery in such bad faith action, are premature until the appellate process has been completed in the underlying action which forms the basis for the bad faith action.
Ernest G. Keller, Administrator with Will Annexed of the Estate of Georgia Keller, and Ernest E. Keller v. First National Bank, and Integon Life Insurance, No. 19691 (W. Va. March 14, 1991) (Neely, J.): 184 W.Va. 681, 403 S.E.2d 424:
Where bank and insurance company asserted that renewal of credit life policy on anniversary of loan was a mistake that was corrected prior to the death of borrower, whom the bank contended it knew was in poor health, the Court held that once an insurer creates a reasonable expectation of coverage and accepts a premium, the insurer must, in order to avoid liability, give the insured prompt notice of the denial of coverage, as well as a refund of the premium. In order for to meet the promptness requirement of this formula, the Court further held that the denial notice must be given no more than 30 days after creation of the reasonable expectation of coverage.
Casey Jordan v. Allstate Insurance Co., et al., No. 19669 (W. Va. March 14, 1991) (Neely, J.): 184 W.Va. 678, 403 S.E.2d 421:
Where summary proceedings were not conducted in connection with the settlement of a wrongful death action arising from the death of a minor sibling's brother, the Court held that when the administrator of a wrongful death victim's estate settles a claim with the tortfeasor's insurance carrier, but fails to secure court approval of the a minor's wrongful death claim, the minor's primary cause of action is against the administrator, and not the insurance carrier. Only if the administrator is insolvent, the Court held, would the insurance carrier be secondarily liable.
Phyllis Baber, Administratrix of the Estate of Richard Marshall Walker and Raymond Walker v. Nicholas Fortner, by Thomas Poe, Guardian ad Litem v. State Farm Mutual Automobile Insurance Company, No. 20138 (W. Va. December 19, 1991) (Brotherton, J.): 186 W.Va. 642, 412 S.E.2d 814:
Answering an automobile policy coverage question, the Court held that an intentional shooting which occurs from within a vehicle is not an act "arising out of the ownership, maintenance, operation, or use of the vehicle."
Buckhannon-Upshur County Airport Authority v . R & R Coal Contracting, Inc., etc., Continental Casualty Company, etc., et al., No. 20211 (W. Va. December 17, 1991) (Workman, J.): 186 W.Va. 583, 413 S.E.2d 404:
Rejecting a claim against an insurance company for prejudgment interest in excess of the stated policy limits, the Court held that absent a bad faith claim or policy language to the contrary, prejudgment interest may not be awarded in excess of stated policy limits.
Debra Pritchard, Individually, and Joyce Ann Pritchard, an Infant under the age of eighteen years, by Debra Pritchard, her mother and next friend v. Manuel Arvon, Superintendent of Schools for the Boone County Board of Education, and the Board of Education of the County of Boone, No. 20202 (W. Va. December 12, 1991) (McHugh, J.): 186 W.Va. 445, 413 S.E.2d 100:
Rejecting a constitutional challenge to the Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq., the Court held that the provisions of the Act directing that the purchase of liability insurance by political subdivisions does not constitute a waiver of immunity are not violative of equal protection principles.
Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (W. Va. November 22, 1991) (Miller, C.J.): 186 W.Va. 195, 411 S.E.2d 850;
Rejecting an insurance company's argument that a bad faith action is barred when settlement is achieved through arbitration, the Court held that a first-party suit under Hayseeds will not be barred by the settlement of the loss in an appraisal proceeding if the insured substantially prevailed in the appraisal proceeding. On another issue, the Court affirmed a trial court ruling that an independent agent who sold the fire policy in question was an agent of the defendant under W. Va. Code § 33-12-23. Finally, with respect to the mitigation of damages where the insurance company's inaction delayed final resolution, the Court held that where a defendant has refused to perform and had the same opportunity to mitigate damages as the plaintiff by taking some action, the defendant is foreclosed from asserting that the plaintiff failed to mitigate damages.
Edward Thompson v. West Virginia Essential Property Insurance Association, an unauthorized insurance association (aka "The West Virginia FAIR PLAN"), No. 20200 (W. Va. November 4, 1991) (Miller, C.J.): 186 W.Va. 84, 411 S.E.2d 27:
Where insurance company had refused payment under a fire policy on the grounds the insured had refused to submit to oral examination under oath, the Court held that (1) once proof of loss has been filed and the insurer has denied coverage or failed to affirm or deny coverage within a reasonable time, an insured may bring an action to recover on the policy; (2) although a policy requirement for the insured's submission to an examination under oath is not a condition precedent to filing suit, an insured's refusal to comply may effect his or her right to recover; and, (3) in determining whether an insurance company has suffered substantial prejudice by the insured's refusal to submit to an examination under oath, the insurer's ability to secure information through other forms of discovery should be considered.
Jason C. Riffle, Dottie J. Riffle, and Everett W. Riffle v. State Farm Mutual Automobile Insurance Co., No. 20114 (W. Va. October 16, 1991) (Neely, J.): 186 W.Va. 54, 410 S.E.2d 413:
Where jury determined under Bias v. Nationwide Mutual Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987), that plaintiffs had not made a knowing and intelligent rejection of an offer of $100,000/$300,000 underinsurance coverage on four policies, the Court held that the plaintiffs were entitled to the statutory minimum $25,000/$50,000 underinsurance coverage, not the $100,000/ $300,000 the plaintiffs had elected on a fifth policy.
Lucille J. D'Annunzio v. Security-Connecticut Life Ins. Co., a Connecticut Corporation, No. 19942 (W. Va. October 16, 1991) (Neely, J.): 186 W.Va. 39, 410 S.E.2d 275:
Where life insurance company had rejected claim based upon the policyholder's suicide within two years of the "issue date," but more than two years after "effective date" of the policy, the Court reversed, holding (1) when reasonable people can differ about the meaning of an insurance contract, all ambiguities which be construed in favor of the insured, and (2) an insurance policy should never be interpreted to create an absurd resulp alig consistent with the intent of the parties.
Joyce A. Pristavec v. Westfield Insurance Company, No. 19688 (W. Va. December 14, 1990) (McHugh, J.): 184 W.Va. 331, 400 S.E.2d 575:
Where negligent driver had $100,000 in liability coverage and innocent driver had $100,000 in underinsurance coverage, the Court held that, even though policy limits were identical, the innocent driver's vehicle was "underinsured" within the meaning of W. Va. Code § 33-6-31(b), in light of the statute's public policy, which is to provide additional compensation, not exceeding coverage limits, to injured persons not fully compensated by a negligent tortfeasor.
State Automobile Mutual Insurance Company v. Anthony B. Youler and Mildred S. Youler, No. 19373 (W. Va. July 20, 1990) (McHugh, J.): 183 W.Va. 556, 396 S.E.2d 737:
Interpreting statutory provisions governing underinsurance [UIM] and uninsurance [UM] motorist coverage, the Court held: (1) the insured's obligation to notify his or her insurer of a UIM or UM claim arises when the insured, through reasonable diligence, ascertains that the tortfeasor is underinsured or uninsured; (2) prejudice to the investigative interests of the insurer is a factor to be considered by the jury in making a factual determination regarding whether the reason asserted for delay in providing notice of a UIM or UM claim is reasonable; (3) policy language is void which purports to prevent an insured covered simultaneously under more than one UIM or UM policy endorsements from recovering all of such endorsements up to the aggregated or stacked limits of the same or up to the amount of the judgment obtained against the underinsured or uninsured motorist, whichever is less; (4) an insured may recover, up to coverage limits, from his or her UIM or UM policies, full compensation for damages not compensated by a tortfeasor who was underinsured or uninsured; and (5) the amount of a tortfeasor's liability coverage "actually available to the injured person" is to be deducted from the total amount of damages sustained by the injured person, with the UIM insurer liable for the remainder of the damages, not to exceed the coverage items.
Clarence Shamblin, etc. v. Nationwide Mutual Insurance Company, No. 19035 (W. Va. July 27, 1990) (Workman, J.): 183 W.Va. 585, 396 S.E.2d 160:
In affirming an award of $1.33 million in compensatory damages and attorney fees, but reversing an award of $1.5 million in punitive damages, against an insurance company for refusal to settle a liability claim against its insured within policy limits, the Court held: (1) punitive damages to an insured may only be awarded when the insurer acted willfully, maliciously, and intentionally in failing to settle the claim on behalf of the insured; (2) where granted an opportunity to settle, an insurer's failure to settle within policy limits in order to release the insured from personal liability constitutes bad faith; (3) in order to meet its burden of proving good faith, the insurer must demonstrate by clear and convincing evidence that its failure to settle was based on reasonable grounds and that it accorded the interests of its insured at least as great a respect as its own; and, (4) the factors for determining whether an insurer acted in good faith include whether there was appropriate investigation and evaluation of the claim based upon objective and cogent evidence, whether the insurer had a reasonable basis for concluding that there was a genuine issue as to liability, and whether there was a potential for substantial recovery of an excess verdict against the insured.
Earl F. Shrewsbery v. National Grange Mutual Insurance Company, No. 19191 (W. Va. June 7, 1990) (Neely, C.J.): 183 W.Va. 322, 395 S.E.2d 745:
Where an agent whose contract was terminated by his principal on the basis of the loss record of his policies brought an action for damages, the Court held that an agent is not a party to an insurance contract, but only an incidental beneficiary whose right to commissions is solely a matter of contract between such agent and the insurance company. Additionally, the Court rejected the agent's assertion that "expirations," or the information about each policy issued to an agent's clients, are the equivalent of "commissions," such that the agent was entitled to future commissions from the use of expirations.
Federal Kemper Insurance Company v. Carol R. Arnold, Administratrix of the Estate of William E. Arnold, Deceased, No. 19250 (W. Va. May 17, 1990) (Neely, C.J.): 183 W.Va. 31, 393 S.E.2d 669:
Where automobile insurance company sought to enforce subrogation provisions of policy with respect to medical payments later recovered in a wrongful death action against tortfeasor, the Court held that although such subrogation provisions are valid, even against covered persons other than the named insured, the reimbursement to the insurance company must be reduced by the insurer's pro rata share of the cost to the covered person of obtaining recovery against the tortfeasor. Accordingly, the Court reduced from $5,000 to $3,333 the amount recoverable by the insurance company, reflecting the 1/3 contingency fee agreement between the covered person and her attorney.
John E. Jordan and Lucille Jordan v. National Grange Mutual Insurance Company, No. 19153 (W. Va. April 2, 1990) (McHugh, J.): 183 W.Va. 9, 393 S.E.2d 647:
In extending its holding in Hayseeds, Inc. v. State Farm Fire & Cas., 177 W.Va. 323, 352 S.E.2d 73 (1986) to impose attorney fee liability on insurers who, following rejection of coverage compelling institution of litigation, eventually settle insureds' claims under their policies, the Court held that an insured "substantially prevails" in a property damage action against his or her insurer when the action is settled for an amount equal to or approximating the amount claimed by the insured immediately prior to commencement of the litigation, entitling such insured to reasonable attorney fees, to be calculated by application of the factors set forth in Syl. pt. 4 of Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 342 S.E.2d 156 (1986), for services necessary to obtain payment of the insurance proceeds.
Joseph Dotts v. Taressa J.A., et al., Fairmont Marion County Transit Authority, a public corporation, and Buckeye Union Insurance Company, No. 19124 (W. Va. February 23, 1990) (Miller, J.): 182 W.Va. 586, 390 S.E.2d 568:
Where a transit authority driver sexually assaulted a passenger who was riding on his bus, the Court held that although language in its motor vehicle liability policy defining "accident" to include "bodily injury and property damage the insured neither expected or intended" excluded coverage for the intentional tort of sexual assault, such exclusion was effective only for damages returned in excess of the amount of minimum insurance coverage required under the Motor Vehicle Safety Responsibility Act, W. Va. Code § 17D-2A-1, et seq., and that because of the elevated duty of care imposed upon common carriers, assaults by employees upon passengers of common carriers arise out of the use or operation of the vehicle within the meaning of the motor vehicle liability policy.
Darlene Mazon v. Camden Fire Insurance Association, No. 18957 (W. Va. February 9, 1990) (Workman, J.): 182 W.Va. 532, 389 S.E.2d 743:
In reversing a judgment ordering an insurer to pay to the insured's ex-wife her share of the proceeds of a policy on a jointly-owned house after the insurer had paid all of the proceeds to the ex-husband, who was its sole insured, the Court held that, upon payment of insurance proceeds to the name insured, W. Va. Code § 33-17-2 fully discharges the insurer from all claims under a fire insurance policy.
Katherine L. Cross, Executrix of the Estate of Miriam Tate, Deceased v. State Farm Mutual Automobile Insurance Company, No. CC995 (W. Va. December 6, 1989) (McHugh, J.): 182 W.Va. 320, 387 S.E.2d 556:
In a certified question proceeding from the Fourth Circuit involving the testimony of insurance agents regarding conversations with deceased insureds, the Court held that where the only assertion is that agents are incompetent by virtue of their interests as agents, the "Dead Man's" statute, W. Va. Code § 57-3-1, does not bar testimony that an insurance agent orally informed the decedent of the costs of various levels of uninsured motorist coverage. As a more general proposition, the Court further held that a witness' status as an agent of a party does not alone render such witness a "person interested" under the "Dead Man's" statute.
Drema Carole Ara v. Erie Insurance Company and Guy Amato Insurance Agency, Inc. and Drema C. Ara v. Ronald N. Rose and Robert L. Rose, No. 18485 (W. Va. November 29, 1989) (Workman, J.): 182 W.Va. 266, 387 S.E.2d 320:
Where an insured filed suit against her insurance company after obtaining a default judgment against an uninsured motorist after her agent informed her that her policy had been cancelled, the Court held that an insurance carrier which declares that a policy has lapsed for nonpayment of premium is equitably estopped from asserting its insured's failure to comply with the notice provision of the uninsured motorist statute when it is later determined that the policy was negligently cancelled.
Wilbur B. Ostrosky v. Arkwright-Boston Manufacturers Mutual Insurance Company, et al., No. CC996 (W. Va. November 15, 1989) (Workman, J.): 182 W.Va. 187, 386 S.E.2d 844:
Under W. Va. Code § 33-12-24, an insurance company that contracts with a resident agent to countersign policies in exchange for a fixed annual fee that is not dependent on the number or gross amount of policies countersigned is not paying a "commission" that would entitle such agent to the statutory minimum commission.
Thomas E. Smith v. James D. Buege, Jackie V. Buege, Terrie W. Buege, Chong H. Buege, and The Prudential Insurance Company, No. 18606 (W. Va. November 3, 1989) (McHugh, J.): 182 W.Va. 204, 387 S.E.2d 109:
Where assignment of the proceeds of a fire policy occurred after the loss, the Court held that the nonassignment clause was invalid.