Starcher, C. J., concurring:
I concur with the majority's holding, but write separately to demonstrate, in
simpler terms, how I view the holding of the case.
In this case, the plaintiff-teenager was injured in an automobile accident caused
by another teenager, the “tortfeasor.” The plaintiff-teenager did not hire a lawyer; instead,
she and her mother negotiated with the tortfeasor's insurance company, Nationwide,
themselves. To protect the plaintiff-teenager's rights, the circuit court later appointed a
lawyer to serve as guardian ad litem.
The plaintiff-teenager; her legal guardian, the plaintiff-teenager's mother; the
plaintiff-teenager's father; the guardian ad litem; and the circuit court, reviewed and
approved the settlement offer and settlement agreement proposed by Nationwide. The
settlement offer gave the plaintiff-teenager nearly $50,000.00 in cash. In return, the plaintiff-
teenager signed an agreement that gave up her rights to sue the tortfeasor and the owner of
the automobile the tortfeasor had negligently driven, and gave up any rights against
Nationwide for its conduct in the course of handling and settling the plaintiff-teenager's
claim.
When the plaintiff-teenager reached majority age, she filed suit against
Nationwide seeking damages under the Unfair Trade Practices Act, W.Va. Code, 33-11-4
[1985].
(See footnote 1)
The plaintiff-teenager alleged that Nationwide made misrepresentations during the
settlement process that improperly induced the plaintiff-teenager to agree to the settlement.
Upon motion by Nationwide, the circuit court dismissed the plaintiff-teenager's complaint
under Rule 12(b)(6) of the Rules of Civil Procedure, concluding that she had failed to state
a claim because the settlement agreement previously signed by the plaintiff-teenager
specifically released Nationwide for any misconduct during the settlement process.
Based on these facts, I support the majority opinion's decision to affirm the
circuit court's dismissal of the plaintiff-teenager's complaint against Nationwide. The
plaintiff-teenager _ with the advice and consent of her parents, guardian ad litem, and the
circuit court _ plainly released Nationwide from any and all liability under the Unfair Trade
Practice Act. The plaintiff-teenager could have insisted that the language releasing “bad
faith” claims against Nationwide be removed from the agreement, but neither she nor her
representatives did so. The briefs of the parties in this case presented no reason why that
plainly-worded release should now be set aside to allow the plaintiff-teenager a “second bite
at the apple.”
One other point should be noted about the majority's opinion: in dicta, the
majority opinion indicates that the Court found “no indication that Nationwide
misrepresented the 'insurance policy provisions relating to coverages' during the time that
the underlying release and settlement agreement was negotiated and adopted by the parties
in this case.” The majority opinion goes on to contend that guardians ad litem could face
liability for malpractice if they “fail[] to get the full policy limits for [] infant claimants” if
we were to accept the plaintiff-teenager's arguments that Nationwide engaged in unfair trade
practices. Because this case is before the Court upon the circuit court's granting of a Rule
12(b)(6) motion to dismiss for failure to state a claim, there isn't a lot of record to support
or contradict these “findings.” Such “findings” by the Court are also irrelevant, considering
the fact that the Court's decision is guided by the explicit terms of the settlement agreement
and not the parol evidence surrounding the signing of the agreement.
That said, I otherwise respectfully concur.