End of Term - Statute of Limitations

Stuyvesant v. Preston Cty Comm'n affirms the dismissal of a complaint as barred by the statute of limitations. Plaintiff's decedent hung himself in the county jail. Suit was filed over two years later, but the complaint asserted it was within two years of the family first learned that the decedent had medical treatment before his suicide. The Supreme Court found there was no allegation that a wrongful act related to the medical care caused the death:

More specifically, as per the fourth part of the Bradshaw test, the appellant failed to make even the barest of allegations in his complaint, or in any of his subsequent filings below, "that [a] wrongful act, neglect or default of that person or entity [had] a causal relation to the decedent's death." In that regard, the appellant's complaint did not allege, even upon information and belief, that the Sheriff fraudulently concealed or misrepresented material facts surrounding the death of [the decedent]. In that regard, the appellant states that the discovery of the invoice during the month after [the decedent's] death, in and of itself, caused the appellant to "doubt the Sheriff's assertion that [the decedent] committed suicide." Such a broad and disconnected allegation is woefully insufficient to allow for the statute of limitations to be tolled in this case. Had the appellant alleged any causal connection or nexus between his perception of the evasive reaction by the Sheriff in response to questions about the invoice and Mr. Daft's subsequent death by hanging, the result of this case may have been different. However, that is not the situation before this Court. Thus, the circuit court did not commit error in finding that there was no factual basis to permit application of the discovery rule.

This opinion is interesting for the Court's close focus (perhaps a la Twombly/Iqubal?) on what the pleadings state. I have argued several statute of limitations cases in our Court, and have advanced the argument that in "discovery rule" situations, plaintiffs should have to plead the facts required to excuse the late filing. This opinion comes the closest.

End of Term - Jury Selection

State v. Newcomb, a criminal case, discusses jury selection, clarifying that a clear statements of bias by a juror require disqualification; however, responses to general questions are not enough and require further inquiry.

When a prospective juror makes a clear statement of bias during voir dire, the prospective juror is automatically disqualified and must be removed from the jury panel for cause. However, when a juror makes an inconclusive or vague statement that only indicates the possibility of bias or prejudice, the prospective juror must be questioned further by the trial court and/or counsel to determine if actual bias or prejudice exists. Likewise, an initial response by a prospective juror to a broad or general question during voir dire will not, in and of itself, be sufficient to determine whether a bias or prejudice exists. In such a situation, further inquiry by the trial court is required. Nonetheless, the trial court should exercise caution that such further voir dire questions to a prospective juror should be couched in neutral language intended to elicit the prospective juror's true feelings, beliefs, and thoughts and not in language that suggests a specific response, or otherwise seeks to rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and where there is a probability of bias the prospective juror must be removed from the panel by the trial court for cause.

More End of Term

In Murphy v. Eastern Ass. Coal, the Court overrules a three year old case, Savilla v. Speedway SuperAmerica, LLC, 219 W. Va. 758, 639 S.E.2d 850 (2006). "Although this Court is loathe to overturn a decision so recently rendered, it is preferable to do so where a prior decision was not a correct statement of law."

Savilla had limited the persons who can sue employers for "deliberate intention" under West Virginia Code § 23-4-2(c) (2005), to widows and widowers, children, and dependents as set forth in the statute. Murphy rereads the statute's reference to the "employee" to mean the "estate" of the employee can bring a claim for wrongful death, thereby increasing the beneficiaries to those listed in the wrongful death statute. Justice Workman, who wrote the decision, was plaintiff's counsel in Savilla. Essentially, the Savilla dissent penned by Justice Davis' is now the majority opinion with the new court. Savilla was law for less than three years, I believe.

End of Term Report - Insurance Coverage Case

Catching up after a busy June with a couple of posts on opinions issued by the WV Supremes.

Boggs v. Camden Clark, an opinion by Justice Benjamin, answers certified questions from the United States District Court regarding insurance coverage for a verdict in a medical negligence case of $6.5 million, including $3 million in punitive damages. The defendant hospital had an insurance policy with St. Paul which provided $1M coverage for medical negligence claims, with a $2M self insured retention (SIR), and excess coverage of $15M. St. Paul had issued a reservation of rights, and contested payment of the verdict because the findings of the jury included intentional conduct not covered under the policy , as well as conduct excluded under these provisions. The hospital filed a declaratory judgment action, and the US District Court certified two questions to the Supreme Court of Appeals of West Virginia. The Court's answers are in bold, and are the two new syllabus points in the decision.

1. Under West Virginia law, when an insured is found liable for a tort, and the complaint indicates that the tort could be based on conduct that the insurance policy covers, on conduct that the insurance policy does not cover, or both, and when the jury verdict does not specify which conduct gave rise to the insured's liability, does the insured bear the burden of proving that the liability was based on covered conduct, or does the insurer bear the burden of proving that the liability was based upon non-covered conduct?

Answer: Where a policy of insurance does not impose a duty to defend upon the insurer and the insured has controlled the defense of the underlying claims, if a court determination regarding allocation of a jury verdict between the claims covered by the terms of the policy and the claims not covered by the terms of the policy is sought, the insured has the burden of proof to establish proper allocation.

2. Under West Virginia law, when a jury awards punitive damages against an insured, and the punitive damages could be based on a claim covered by the insurance policy, on a claim not covered by an insurance policy, or both, does the insured bear the burden of proving that the punitive damages were based upon a covered claim, or does the insurer bear the burden of proving that the punitive damages were based on a non-covered claim?

Answer: In order to obtain indemnification under a policy of insurance which does not exclude punitive damages and under which there is no duty to defend, an insured who has controlled the defense in a case resulting in a punitive damage award and who seeks a court determination regarding allocation of the award has the burden of proving that the claim or claims on which the punitive damage award is based is covered by the terms of the policy.

The court's also discusses the need to submit special interrogatories to the jury in the underlying tort litigation to clarify which claims are covered and which are not.

As an initial matter, we note that an insurer who undertakes the defense of a suit against its insured must meet a high standard of conduct. Duke v. Hoch, 468 F.2d 973, 978 (5th Cir.1972); Gay & Taylor, Inc. v. St. Paul Fire & Marine Ins. Co., 550 F.Supp. 710, 714-16 (W.D.Okla.1981). The right to control the litigation carries with it certain duties. Traders & Gen. Ins. Co. v. Rudco Oil & Gas Co., 129 F.2d 621, 627 (10th Cir.1942). One of these is the duty not to prejudice the insured's rights by failing to request special interrogatories or a special verdict in order to clarify coverage of damages. See Gay & Taylor, 550 F.Supp. at 716. The reason for this is that when grounds of liability are asserted, some of which are covered by insurance and some of which are not, a conflict of interest arises between the insurer and the insured. If the burden of apportioning damages between covered and non-covered were to rest on the insured, who is not in control of the defense, the insurer could obtain for itself an escape from responsibility merely by failing to request a special verdict or special interrogatories. Duke, 468 F.2d at 979. The insurer is in the best position to see to it that the damages are allocated; therefore, it should be given the incentive to do so.

The opinion makes clear that its holding is limited to cases where the insured, with a large SIR, hires counsel and controls the defense. Where the carrier has the duty to defend, retains counsel and controls the defense, the answers may well be different. The case now goes back to the District Court for the ultimate determination of coverage.