*1
Alton E.
Below, Appellee,
v. INSURANCE
NATIONWIDE MUTUAL
COMPANY, Below, Defendant
Appellant.
No. 23090. Appeals
Supreme Court of Virginia.
West 2,May 1996.
Submitted 15, 1996.
Decided Oct.
Dissenting Opinion of 21, 1997. July
Justice Workman
3 *3 Phares,
E. the driver of a vehicle owned Phares, with a vehicle owned Ralph collided appellee, Dodrill. operated underlying claim circumstances of that The stipulation in a of facts which were described parties the court and presented stipulation jury in read to the this case. states: 24, 1987, the Plain-
On or about October tiff, operated E. Dodrill owned and Alton Ford automobile which was struck *4 by a automo- from behind 1981 Chevrolet operated by Ralph owned Phares and bile by E. Phares. The collision oc- William Virginia also curred on West Route Road in the Town of known as Webster Summersville, County, Nicholas West Vir- ginia. E. taken to the Alton Dodrill was hospital Memorial where he Summersville was treated and released. Ruckman, Timothy Callaghan Ruck- R. & by The Phares’ automobile was insured man, Summersville, Appellee. for Company Nationwide Mutual Insurance Brown, Potter, McQueen Porter, adjuster, Marino & responsi- Maria Tim was whose L.C., Charleston, Appellant. investigating, evaluating, ble for and ad- justing personal injury claim of Alton
ALBRIGHT, Justice: 11, 1987, E. December Mr. Dodrill. On Porter, Tim of Nationwide Mutu- on behalf appeal Nationwide Mutual This is Company, al offered to settle Insurance Company from an order of the Insurance Eighteen Mr. claim for the sum of Dodrill’s County in a civil of Nicholas Circuit Court ($1800), Hundred Dollars which offer was § alleging 31- action violations of W.Va.Code rejected. March Mr. Porter On 11-4(9), relating unfair insurance claim offered, on behalf of Nationwide Mutual Na- practices. settlement The order denied Company, Insurance the sum Two judgment notwithstand- tionwide’s motion for ($2,000), plus a Thousand Dollars Sched- or, alternative, in a ing the verdict uled Release to settle the claims of trial, jury verdict was returned new after Dodrill. against appeal, in the case. On Nationwide May, 1988, Mr. Dodrill retained an Nationwide claims that the evidence adduced attorney subsequently and suit was filed verdict, was insufficient to trial, and after awarded to Mr. punitive damages sup- the award of was not Three Dodrill the sum of Eleven Thousand willful, malicious, ported by evidence of ($11,386) Eighty-Six Hundred Dollars conduct, intentional and that the award of subsequently paid Nation- which was annoyance damages for and inconvenience Company wide Insurance to Alton Mutual testimony improper in the absence of was Dodrill, E. with interest. subject appellee, Mr. from the Dodrill. also claims that the trial court 24,1991, July or about Mr. Dodrill filed On making procedural various and evi- erred complaint against action Nation- his this dentiary rulings. reviewing After the issues charging paragraph of the com- wide. record, presented and the Court does plaint stated: judgment not find reversible error. The of Nationwide Mutual Insur- The actions is, therefore, court affirmed. the circuit Company, through agents, ser- ance its employees, constituted a viola- the resolution of a vants This case arises from 33-11^4(9) § Virginia Code insured tion of West claim which Nationwide William attempt derogation in wanton and in of the defendant’s defendant did not said statutory fair and common law good faith to effectuate a duties to claim, plaintiffs plaintiff.” Nationwide filed an answer to the equitable settlement of liability reasonably complaint which though even was clear denied conduct insured; § part on the of its and failed to constituted violation of W.Va.Code 33- 11-40).1 explanation promptly provide a reasonable plaintiff for the basis of its offer of a two-day jury A trial of this action com- compromise settlement. May pre-trial menced 1994. The order complaint, sought punitive parties specified three issues
In the endorsed (1) conduct, damages upon jury: based Nationwide’s be tried before whether 4—11—4(9) “intentional, § alleged willful and had been violated which he W.Va.Code 33— 33-11-4(9) Virginia provides: physician preliminary 1. West Code of either to submit a report requiring subsequent claim then practices. per- claim settlement Unfair —No forms, proof submission of formal of loss both perform with such fre- son shall commit or substantially of which submissions contain quency prac- as to indicate information; following: same tice claims, (a) (m) Failing Misrepresenting pertinent promptly facts or insur- settle where clear, policy provisions relating coverages liability reasonably at has become ance issue; coverage portion policy one of the insurance *5 (b) Failing acknowledge por- to and act reason- order to influence settlements under other ably promptly upon policy coverage; communications with re- tions of the insurance (n) arising Failing provide spect cies; poli- promptly a to claims under insurance to reasonable explanation policy of the basis in the insurance (c) Failing applicable adopt implement law to and reason- in relation to the facts or for prompt investigation compro- able standards for the of denial of a claim or for the offer of a settlement; arising policies; claims under insurance mise (d) (o) Failing notify Refusing pay party claims without conduct- the first claimant ing investigation upon provider(s) a the of covered under reasonable based all and services information; hospital available accident and sickness insurance and (e) Failing deny coverage pol- corporation insurance affirm or of medical service proof accepted claims within a reasonable time after of icies whether the claim has been or therefor, denied, completed; and if the reasons loss statements have been denied (f) good days filing attempting the faith to effectuate within fifteen calendar from of Not Provided, prompt, proof equitable fair and settlements of of loss: That should bene- liability assigned, which has become reason- fits due the claimant be notice to the claims in ably clear; Provided, required: shall not be how- claimant ever, (g) litiga- payable Compelling be di- insureds to institute That should benefits claimant, rectly due an to the notice to the care tion to recover amounts under insur- health by offering substantially required. policy provider not If the insurer ance less than shall claim, investigate ultimately the amounts recovered in actions needs more time to insureds, brought by notify party the first claimant in writ- such when such insureds shall so days reasonably ing the date amounts within fifteen calendar from made claims for sim- recovered; every thirty ultimately calen- ilar of initial notification and amounts thereafter; (h) Attempting days, shall a a claim for less than dar but in no instance settle unpaid for more the amount to which a reasonable man would claim remain unsettled days by ninety party he reference to than calendar from the first have believed was entitled advertising filing proof printed of the of loss unless written or material accom- claimant’s is, by panying part application; com- or made of an there determined insurance missioner, (1) (i) legitimate dispute Attempting as to cover- to settle claims on the basis of (2) liability damages; application age, which was altered without no- or or if the claimant an to, insured; knowledge fraudulently has caused contributed to the tice or or consent of or Making pay (j) payments In the event that the fails to claims to insureds or loss. insurer ninety days accompanied by calendar a statement the claim in full within beneficiaries loss, setting coverage pay- filing proof which from the claimant’s of forth the above, made; being except exemptions provided for there ments are (k) Making against paid shall be assessed the insurer and known to insureds or claimants penalty policy .appealing to the insured a which will be in addi- of from arbitration awards pur- the claim and assessed as of insureds or claimants for the tion to the amount of in favor prime compelling accept rate pose interest on such at the then current them to settlements by plus percent. Any penalty paid compromises one an or less than the amount awarded arbitration; pursuant shall not be a insurer to this section (Z) filing by Delaying investigation payment rate made such consideration insured, by requiring or the insurer. claims an claimant by “failing good faith experiencing great to effec- that he pain in his equitable back, fair yet tuate a settlement neck and but that he had not seen (2) ”, ... contact, whether Mr. Dodrill sustained dam- doctor. In the course of that and, so, ages reason of such violation if Porter advised Mr. to see a doctor. (3) much, how whether arranged Mr. Dodrill was He also to mail Mr. Dodrill an punitive damages by attending physician’s entitled to reason report wage form and a such violation. verification form. trial,
In the course of the three witnesses Mr. Porter next had contact with Mr. Dod- 3,1987. were called. These three witnesses were rill on December Prior to or at that Porter, Timothy time, employee William Mr. Porter received information about Company Dodrill, and, Nationwide Mutual Insurance who medical bills from Mr. based initially claim, upon him, handled Mr. Dodrill’s Donald the evidence before Mr. Porter Bischoff, attorney Summersville, K. completed what he referred to as a “break- Virginia, down,” West and Mr. Dodrill himself. categorized expenses in- 7, 1987, curred. On December Mr. Porter extensively Mr. Porter testified regarding again Dodrill, telephoned but it procedures which he followed assess- that Mr. Dodrill was unavailable. Mr. Porter ing handling Mr. Dodrill’s claim. The completed then computer-generated follow- activity log which Mr. Porter maintained up sheet to remind himself to contact Mr. handling while the claim was also admitted Dodrill. evidence, objection. into without The evi- dence adduced showed that Mr. Porter was a On December complet- Mr. Porter adjuster Nationwide, claims known'internally who worked ed what was within Nation- Canton, Ohio, telephone from solely “sixty-day pricing.” on wide as a On December personal injury small claims received Na- again spoke Mr. Porter with Mr. property Dodrill, tionwide. damage portion experiencing who was still a lot of *6 any elsewhere, such pain. claims were handled log Mr. relating Porter’s to this con- Mr. Porter did not receive information re- versation stated that Mr. Dodrill “is stubborn garding the portion settlement of that and does not want to see a doctor.” On this Instead, date, claims he handled. 11, 1987, when advised of initially December Mr. Porter personal injury claim, he contacted the offered to settle Mr. Dodrill’s claim for by phone sought $1,800.00. claimants information Mr. accept Dodrill refused to this from them alleged personal inju- about their settlement amount and give also refused to ries. Based on that information figure Mr. Porter a for which he would settle. file, claim, received with the he evaluated the Mr. Porter advised Mr. Dodrill to think attempted by telephone, to settle it and inter- about how much give he wanted and to him nally established a reserve for its settlement call in regard. this In the course of the in accord with prog- conversation, his evaluation and the Mr. Porter advised Mr. Dodrill negotiations. ress of those If the claimant prudent that it would be him for to see a attorney, retained an he made an initial con- doctor if he experiencing pain. was still attorney. tact with the Mr. Porter was not explained Mr. Porter that he arrived at the negotiate authorized to settlements with at- $1,800.00settlement offer made on December torneys required, but was when the claimant 11, 1987, wage based on the medical and loss attorney, retained an to turn the file over to information then available to him. He said adjuster another specifically who was autho- he then had available three medical bills rized attorneys. to deal with claimants’ by incurred Mr. immediately Dodrill after conformity with this $217.00, usual course of totaling the accident including an x- action, spoke bill, Mr. Porter ray bill, first to Mr. Dodrill emergency ambulance and an injuries about his in the Phares collision on room bill. He also had a statement which 3, 1987, days November ten after the colli- indicated that Mr. Dodrill wages had lost occasion, sion. that On Mr. Porter took in- Mr. Dodrill had $791.00. returned to work formation from Mr. Dodrill which indicated regular and had worked on a and continuous that Mr. Dodrill 26, 1987, had missed some work and days basis since October two after offer, Mr. attorney accident. At the time of the represent retained an him. On physi- following day, telephoned attending Porter also had available an Mr. Porter attorney report was unable him. completed Stephen cian’s Dr. but to reach The W. attorney Craft, May returned Mr. call Porter’s on which-diagnosed having Mr. Dodrill as and, during contusions, his conversation with injury a whiplash-type with Porter, previous Mr. to Mr. offers Dodrill permanent injury expected. report no The attorney were discussed. The advised Mr. x-ray taken Mr. Dodrill the date likely Porter that he would most refer Mr. injury, of the accident showed no evidence of specialist specialist Dodrill ato so that the trial, changes. but noted arthritic At Mr. injury. could evaluate Mr. Dodrill’s dispute Porter testified that there was no telephone attorney conversation with the was regarding the fact Nationwide was liable Mr. Porter’s last contact with Dodrill (within damages to Mr. Dodrill for his claim, since, poli- accord with Nationwide limits); policy only question Phares was cy, negotia- he was not authorized to handle damages how much those were. Mr. Porter attorneys required tions and was to turn policy also testified that Nationwide had a adjuster the Dodrill file over to an authorized against bills, pre-payment of medical in ad- with attorneys. settle claims vance of an overall settlement of such Accordingly, pre- witness, Dodrill, claim. he made no offer to The second Mr. testified pay the bills Mr. Dodrill had submitted. as giving to how collision rise to his claim objection Nationwide, occurred. Over the again spoke On March Mr. Porter photographs vehicle, two of Mr. Dodrill’s During conversation, to Mr. Dodrill. this Porter Mr. had not seen when evaluat- again experienc- said he was claim, ing the Dodrill were also admitted into ing pain might and indicated that he need to photo- evidence. Dodrill identified the specialist, consult a but he could not find graphs showing the damage sustained to time to do so. At time of conversa- in the the vehicle Phares He collision. indi- tion, Mr. increased Porter Nationwide’s set- cated that after the was accident he taken $2,000.00 plus tlement offer to a scheduled Hospital, ambulance Summersville where release money pay that would set aside x-rayed he was two was told doctors Mr. Dodrill’s future medical bills. Mr. Dod- given that his neck strained. He was rill accept refused to this settlement and prescription pain medication and released indicated that had not thought he about a go Thereafter, despite being home. case, settlement At amount. the trial of this *7 pain, delayed going he testified that he to a that, explained Mr. Porter based on his just doctor he felt that because doctors were $2,000 offer, he established a reserve of taking x-rays helping and not him. At one $3,000.00 claim, making for this allowance for point go he also testified that did not he to a payable the future medical bills money doctor he because did not have to proposed “scheduled release” that his although go, on cross-examination he also authority settling maximum for Mr. Dodrill’s testified he that had health insurance that $2,500. claim at that time was He testified paid might for Mr. doctor visits. Dod- $2,000.00 that accepted had Mr. Dodrill rill could not remember when he was first offer, Mr. Porter would have retained author- by Porter, Mr. did contacted but acknowl- ity pay to up additional medical bills edge that when he was contacted Mr. $500.00, required but that it would have Porter, attempting Mr. Porter was obtain approval manager pay his more since information from him and wanted know $2,000.00 plus settlement of $500.00 badly how hurt he Mr. Dodrill was. testified additional medical bills would have exhausted pretty that he indicated that “hurt he was authority. his current He also that testified bad but know how Mr. Dodrill didn’t bad.” he had settled claims excess of his first $1,800.00settlement recalled Mr. Porter’s of- authority, required but such settlements fer and recalled another offer between also approval manager. of his $2,000.00 $2,200.00, did not but know By May letter dated Mr. Porter when that offer was made. Dodrill char- Mr. received very notification that Mr. had acterized Mr. Porter as courteous and case, During the trial of this Mr. Porter that Mr. Porter listened
polite and indicated of the Nation- Porter indicated that he was aware also indicated Mr. to him. He $5,500.00 offer and that that offer was “this the bottom wide terms like never used it,” it,” developed on information after Mr. dollar,” “take it or leave “I’ll based “this is more,” any other Porter ceased his connection with the claim. pay you penny or not information, appar- which was Mr. Dodrill also indi- The additional statement. “hard-sell” ently ready in Nationwide’s hands when both 1990 not to settle on cated he was made, contained, 11,1987, money among offers were other or even talk December about things, wage additional and medical informa- progressing. he was until he knew how report specialist tion and the whom witness, expert called as an The third attorney Mr. Mr. Dodrill’s informed Porter Bisehoff, Dodrill, K. an at- Mr. was Donald would examine the claimant. Summersville, torney Virginia. West from detailing attorney A letter fees and ex- that, review of the He testified based on his penses incurred in the trial of the earlier case, in the the value of Dod- documents against action Mr. Phares and Nationwide $5,000.00 and case between rill’s was was also introduced into evidence $9,000.00 $2,000.00 was a rea- and that compensatory of Mr. Dodrill’s claim for dam- also indicated that it was sonable offer. He ages in action. The letter disclosed not to have at- reasonable for Mr. Porter $5,074.12 had been deducted from Mr. Dod- negotiations tempted with Mr. to continue recovery pur- in that for those rill’s action Dodrill indicated that he Dodrill when Mr. poses paid only and that he had been ready until he knew how he was not to settle judgment. remaining balance of the progressing physically. Mr. Bisehoff did court denied Nationwide’s motion to ad- trial particularly not find that it was unusual for mit into evidence two related to documents elapse eight an additional months to between injury an of Mr. Dodrill which occurred attorney the time Mr. Dodrill retained an shortly after the Phares collision. occurred, actually and when settlement eight gather that it took months to additional trial, At the conclusion of the medical information was obtained $5,074.12 attorney’s awarded Mr. Dodrill sending to a Mr. Dodrill doctor for evalua- costs, $2,000.00 annoyance fees and court that, tion. He also while insurance testified inconvenience, punitive damages in right companies had no whatsoever to re- $5,000.00. the amount of The total award claimant, Dodrill, quire such as $12,074.12. amounted to litiga- undergo a medical examination before Nationwide had moved for a directed ver- initiated, experienced he tion was had 50(a) pursuant Virgi- dict to Rule of the West compa- of instances when an insurance knew Procedure, upon nia Rules of Civil based ny requested part such examination as claim that the evidence was insufficient to investigation of their of a claim in which no right recovery prima establish a facie litigation had been initiated. 33-11^4(9)(f). That under W.Va.Code mo- *8 During subsequent judgment the trial other evidence was also tion and a motion for or, objection, notwithstanding received. Mr. Dodrill’s let- the verdict in the alter- Over trial, attorneys ters from Nationwide’s to another native for a new were denied. As noted, adjuster, January previously appeal dated this is taken from 1990, 21, into evi- that action of the trial court. In the' latter and March were admitted motions, again in trial of the failure dence this ease. The letters Nationwide raised 1990, January, prior that in to the the court to a verdict in its favor. disclosed of direct Here, underlying damage assignment principal trial of the claim in which Nationwide’s of $11,386.00 judgment a claim that the evi- Mr. Dodrill won of error centers around its Nationwide, $4,000.00 against during it offered dence trial was insufficient to had adduced $7,500.00 prima support had demanded a case and a Dodrill establish facie trial, later, jury § the earlier when verdict under W.Va.Code 33-11-4- still before $5,500.00, (9)(f). First, its offer to we the standard for re- Nationwide raised state $6,500.00. had lowered his demand to view.
9
In Alkire v. First National Bank
reverse the circuit
judg-
court and to order
of
Parsons,
122,
197 W.Va.
475
122
S.E.2d
appellant.
ment for the
(1996), this Court discussed the circum
Essentially,
apply
same rules
where
stances under which evidence adduced dur
motions for a
implicated.
directed verdict are
ing jury
a
trial would
a
verdict
Powell v. Time Insurance Company, 181
judgment
in
notwithstanding
a verdict situ
289,
(1989);
W.Va.
Nursing
193 W.Va.
457 S.E.2d
33-11-4(9)
portions
§
erenced
of W.Va.Code
(1995),
152
progeny,
and their
is clarified
provide:
reviewing
read as follows: In
a trial
(9)
court’s denial of a
judgment
practices.—
motion for
claim settlement
Unfair
verdict,
notwithstanding
person
it is
No
perform
not the
shall commit or
with
appellate
task of
reviewing
court
frequency
facts
such
general
as to
indicate
to determine how it would have ruled on
practice any
following:
business
of the
presented.
the evidence
Its task is to
(cid:127)í'
determine whether the evidence was such
(f)
attempting
Not
in good faith to effec-
that a
might
reasonable trier of fact
tuate
equitable
fair and
settle-
Thus,
reached the decision below.
in rul-
liability
ments of
claims which
has be-
ing on a
judgment
denial of a motion for
reasonably clear;
come
verdict,
notwithstanding the
the evidence
light
must be viewed in the
most favorable
#
nonmoving party.
review,
to the
If on
(n) Failing
promptly provide
a rea-
legally
evidence is shown to be
insufficient
explanation
sonable
basis
verdict,
to sustain the
obligation
is the
policy
insurance
in relation to the facts or
appellate
court to reverse the circuit
applicable law for denial of a claim or for
court
judgment
and to order
appel-
for the
compromise settlement;
offer of
lant.
In
Penney Casualty
Jenkins v. J.C.
syllabus
case,
point 2 of the same
Company,
Insurance
W.Va.
Court went on to state:
(1981),
S.E.2d 252
this Court discussed
reviewing
granting
a trial court’s
of a
depth
some
the elements which must be
judgment
motion for
notwithstanding the
proved
private
recover
action under
verdict, it
appellate
is not the task of the
33-ll-4(9).2
§
Among
W.Va.Code
other
reviewing
court
facts to determine how it
points,
plaintiff
the Court stressed that a
would have ruled
present-
on the evidence
must
single
show more than a
violation
ed.
Its task is to determine whether the
33-11-4(9);
required
W.Va.Code
the Court
evidence was such that a reasonable trier
that such violations of the act had to occur
might
of fact
have reached the decision
frequency
with such
as to indicate that the
Thus,
ruling
below.
granting
on the
practice
conduct was a
judgment
a motion for
notwithstanding the
company
dealings
the insurance
in its
verdict, the evidence must be view in the
Specifically,
claimants.
the Court stated:
light most
nonmoving par-
favorable to the
*9
review,
ty.
If
agree
point
on
the
We
with
evidence is shown to
the
raised
the
verdict,
legally
be
company
sufficient to sustain the
appears
insurance
that there
to
obligation
it is the
appellate
qualification
court to
a
right
be
to the
to
in
recover
Casualty
2.
underlying personal inju-
State ex rel. State Farm Fire &
Co.
of bad faith actions and
Madden,
155,
ry
They
v.
192 W.Va.
H liability ments of claims in has be- crete alternate and that instruction the in- pre-trial come clear. struction is consonant the with or- stating der the issues to tried. be you If find that Nationwide In- Mutual Company surance a committed violation of the examining When record for the Act, the Unfair Claim Settlement Practices sufficiency verdict, of evidence to the you if must then determine the violation is light view the we evidence in the most favor general of practice business Nationwide prevailing party. able to the We are not Company. Mutual Insurance might concerned with how we decide the general A practice cannot [sic] be estab- jury’s stead, facts the nor our does review single lished violation. isolated Sev- conflicts, favor the inferences and the evi eral breaches or violations of the Act must helpful losing party. dence to the Under proved general prac- to show a business rules, those the evidence shows that Mr. tice, they though even occurred in the Dodrill was involved in the Phares collision same claim. 24, 1987, that liability on October and the of deliberations, your you must evaluate pay disput Nationwide to the claim was not upon Nationwide’s conduct based the infor- collision, Following ap ed. the Mr. Dodrill available, cooperation mation the and parently negotiations participated in with lack cooperation the Plaintiff up to Nationwide two for the next and one-half 1988, May the date of when the Plaintiff 31, 1990, years, until at least March without words, retained counsel. In other was it being able to obtain a settlement from Na fair, prompt, equitable and at the time? period, tionwide. he Over this or his counsel Therefore, you if find that Alton E. engaged in many representa contacts with proved, by preponderance Dodrill has Nationwide, including from tives Mr. Porter evidence, the that Nationwide Mutual In- and individuals connected Nationwide’s Company good surance failed faith to legal department or trial counsel. The rec fair, prompt, equitable effectuate a ord shows that Mr. Dodrill was contact liability settlement of his claim when has 3, with Nationwide at on least November reasonably become clear and that such an 1987, 3, 1987, 11, 1987, December December general practice act was a business of Na- 12, 1988, May January 3, March Company, tionwide Mutual Insurance then and March The 1990. record dis you Plaintiff, should find for the Alton E. closes that made offers of Dodrill. $1,800.00 $2,000.00 plus scheduled re hand, you Also, if On the find jury other that the lease for future medical bills. the (1) Plaintiff prove $2,000.00 failed to either that Na- was told that not a was reasonable Company tionwide Mutual jury Insurance failed The offer. learned Nationwide had in good fair, $4,000.00 $5,500.00 faith to effectuate a made later offers of equitable settlement his claim the Porter on claim after Mr. turned the when (2) liability reasonably, adjuster. became clear or matter over to It another further general that it practice negotiations was a business that during par settlement, Company, very Nationwide Mutual Insurance ties were close to Na but you Defendant, claim, then should for the find tionwide refused to settle the even $1,000.00 Company. parties only Nationwide Mutual Insurance apart. when were jury learned that Mr. Dodrill subse view, In our placed this instruction quently than two recovered more times Na practice squarely issue of Specifically, jury tionwide’s last offer. jury within province allowed stipulation, disclosing had before it the jury to draw from the evidence such $11,386.00 Mr. Dodrill un recovered they ap- inferences on the issue deemed claim, fixed, derlying stipula an amount propriate. We note that Nationwide made says, by jury. tion another objection no to this other than instruction here, addition, they that which now assert learned that the un- derlying placed evidence was We note insufficient. also that Phares claim first with a adjuster investigation, Nationwide offered no curative or more con- Nationwide whose *11 below, inferred, telephone applicable trial on was limited to did the court the could be statutory information law have the claimant and decisional and which we contact with phone reviewed, generated internally given by and from those the here the instruction by gathered court, record, The information conversations. the evidence in the trial and employee who settled pre- the other Nationwide light in the the taken most favorable to damage portion the claim property of below, the Dodrill, assuming vailing party Port Porter. Mr. was not shared re- that all conflicts in the evidence were authority rather limited and could er’s was favor, by jury the in his solved after permitted he was be inferred that not giving him of all infer- the benefit favorable $4,000.00, $5,500.00 or handle a claim worth may the facts. ences which be drawn from $11,000.00 a over or settle claim of size concluded, Having the cannot find so Court Moreover, approaching a its worth. for sum failing the trial to direct a court erred that Mr. Porter was not it could be inferred failing grant or in verdict for Nationwide enough permitted important claims to handle judgment a notwith- Nationwide’s motion for compa legal representation of his to involve standing the verdict. job, testified, ny or the His as he claimant. us, considering case we have the before to find what the claimant wanted and was out do also concluded that Jenkins and Russell authority try to the case within the settle fully parameters not articulate within which Nationwide, given present him the case may company the conduct of an insurance jury an amount which another had found to evaluated, adequately in the context of the be less than of the true worth of one-fourth claim, handling single of a determine Moreover, the the claim. evidence disclosed demonstrate that violations of W.Va.Code policy against pre company that the had 33-11-4(9) “general § do or do not entail a clearly ascer paying medical bills other practice.” have business We searched jury The tained amounts. also heard that jurisdictions guidance from cases other request not a medical exami Nationwide did only question the a few on located expense at the company nation when extent However, point. bearing cases even on injuries medical has of not been otherwise the cases do not assist in the matter found us documented, although in satisfactorily other under discussion. do, occasion, companies request surance hpre-litigation suc medical examinations perceive “gen- We discussion of eral, injuries when the extent of medical is not practice” past business in our cases has known. question in generally addressed the terms of numbers, e.g., of the number claims in which foregoing ex- intended to state used, practice number the same has been haustively may the factors which have been 33-11-4(9) § of violations of W.Va.Code should consid- considered or which have been evidence, shown the number range of ered or the full inferences While those cases make clear that scenarios. might properly have drawn from facts employment single, particular of a forbid- However, it. from before our review the handling practice in claims den several record, entire we do believe that the evidence general practice, can define a business there that, during support would a conclusion fully guidance presently is no articulated above, negotiation process Nation- outlined prac- general a claim “a 31-11-4(9) where business § wide violated W.Va.Code alleged handling tice” is to have arisen in the faith, numerous, failing good sepa- and on single Russell of a claim. As we indicated in occasions, rate fair to effectuate a supra, an Company, v. Amerisure Insurance claim, equitable settlement of the Dodrill isolated scenario is not sufficient. On reasonably liability had on which become hand, applying the rational of other basic clear. We also believe that the evidence omissions, Jenkins, separate, discrete acts or would the conclusion that such viola- each of which constitute violations of differ- frequency during tions with such occurred sub-paragraphs of 33-1- negotiation process in ent W.Va.Code the Dodrill claim 14(9), may “general practice that a indicat- indeed demonstrate business conclusion, rely, practice” single reaching handling in the ed. we *12 claim, the focus of which would tend practice” to show distinguished ness and can be by frequent general disregard and rather fair minds from an isolated event. proscriptions separately the several set out We have reviewed the evidence the case Or, may in the relevant statute. in- be light before us in of the standards we an- ferred from the evidence found in the record today. that, nounce We conclude us, may before separate there be a series standards, evidence, those the taken in the omissions, and discrete acts or indicative of light most favorable to prevailing party, the habit, custom, usage, the policy or business is sufficient jury’s the verdict. policies regarding or handling partic- the of a claim, which, type ular or size of if found to In assignment error, another Na violate one or sub-paragraphs more of the argues damages tionwide that should not statute, subject the would tend to show fre- annoyance been awarded for and incon quent disregard of the statute. From this testimony venience because no on that issue analysis, it also that in cases involv- was elicited from Mr. During Dodrill. the ing claim, handling single of a the evi- present ease, trial of the Mr. Dodrill did offer necessary distinguish dence showing that, evidence spite repeated practice frequently business violative of the Nationwide, contacts with he was unable to wholly statute from proper investigation satisfactory reach a settlement over an al process requires settlement a somewhat three-year period. most He also testified on qualitative inquiry more required than is several being occasions that he was treated practice where the same forbidden is found unfairly. example, For during cross-exami in several claims. We are mindful that the testified, nation he was asked: “You I believe alleged single employee misdeeds of a or direct, you that felt that Mr. Porter was a adjuster not, single in a standing claim would little bit unfair ... ?” responded: Mr. Dodrill alone, define practices the business of the unfair, ‘Very thought.” I perceive insurer. We that the evidence ad- single case, duced in a claim such as is before record, reviewing After this Court be- us, fact, should be such that the finder of lieves that a reasonable inference to be viewing whole, the conduct as a is able to long drawn from sequence of events lead- that practices conclude constitute multi- ing up against to Mr. Dodrill’s initial law suit ple violations of the statute and are suffi- Nationwide that is he did suffer inconve- ciently pervasive sufficiently or sanctioned nience as a result of the failure of Nationwide company the insurance that the conduct can claim, clearly to settle expressed his and he “general practice” be considered a being his sense that unfairly. he was treated distinguished by and can be fair minds from The annoyance Court believes that often ac- an isolated event. companies being the sense that one is treated unfairly jury, that in a Accordingly, we hold that to maintain position to observe Mr. Dodrill’s demeanor private upon alleged action based violations during testimony, and tone of voice his could 33-11-4(9) § of W.Va.Code in the settlement reasonably have inferred that he suffered claim, single of a insurance the evidence annoyance as the result of what occurred. should question establish that the conduct in summary, and in view of the evidence and single constitutes than more violation of it, the inferences to be drawn from the Court 33-11-4(9), W.Va.Code that the violations assign- cannot conclude that Nationwide’s separate, arise from discrete acts or omis relating damages annoy- ment of error settlement, they sions the claim and that ance and inconvenience is meritorious or that habit, custom, usage, arise from a or business upholding jury’s the trial court erred insurer, that, policy viewing of the so annoyance verdict on and inconvenience. whole, conduct aas the finder of fact is able practice that practices conclude or are complains Nationwide also that the award sufficiently pervasive sufficiently punitive damages sanc improper because company willful, malicious, tioned the insurance that there is no evidence of conduct can “general be considered a busi- intentional conduct Nationwide. damages are recov- punitive Penney Casualty Insur- hold [W]e v. J.C. Jenkins despite in insurance bad faith cases indicated erable supra, the Court Company,
ance case, may that, punitive that there have been settle- appropriate the fact in an note underlying action. With in a tort recovered Jenkins- ment damages could be not, however, said, in this case must plaintiff did type action. The Court damages appro- shown to are precisely punitive what had indicate still show *13 is, in the That the recovery. particular The trial court in case. priate this merit such case, guidance further from knew plaintiff without must show that Motorists present cases, jury: and willful- Poling’s proper the claim was our instructed intentionally delayed ly, maliciously, and in a damages appropriate are
Punitive
attempt
to obtain a
payment in order to
commits acts of
a defendant
case where
just
Berry v. Na-
than
settlement.
wanton,
less
fraud, malice, oppression or
gross
Co., 181 W.Va.
tionwide Mut. Fire Ins.
conduct; or criminal
reckless
willful or
(1989).
168,
Next, argues damages the trial in incurred the collision were allowing court erred not simply proper to introduce not a factor in the case tried into evidence its Exhibits Nos. and 6. Ex- surely 5 below and such instruction would outpatient report jury. hibit No. 5 was an from consequence, have confused the As a Hospital Summersville and Exhibit No. 6 was the Court believes that the instruction was radiology report supported by po dated October the evidence and was relating injuries tentially each case to Mr. Dodrill confusing. somewhat We do not allegedly litigated refusing suffered after the collision find that the trial court erred in view, give in the Phares action. In this Court’s it. It is error a trial reversible court legitimate give there was doubt as to their rele- an instruction which tends mislead vancy action, and, jury. syllabus this claims settlement and confuse a As stated in circumstances, 82, under the point Rodgers Rodgers, this Court cannot 19 of v. 184 W.Va.
17
“
(1990):
suggested by
for that
Na-
er
own verdict form
‘It is reversible
court’s covered firmed. being relating the tried. cable law to issues clear that it is not error We have often made Affirmed. a trial court to refuse an instruction instruction,
adequately by covered another RECHT, by temporary Judge, sitting that Nationwide’s as and the Court believes assignment. signment relating to these instructions is WORKMAN, J., dissents and files McCauley, v. 188
without merit. See Lenox
dissenting opinion.
203,
(1992); Dowey v.
606
W.Va.
423 S.E.2d
Bonnell,
101,
181 W.Va.
Lastly,
claims that
the
that such violative
Nationwide
presented
factual evidence
practice,”
ness
the
failing
give
in
to
the
an
trial court erred
'faith2
by
falls far short of bad
interrogatory
Na
this case
verdict form submitted
statute,
meaning of the
within the
its
conduct
tionwide. The court below substituted
statutory
Virginia
is in the nature of
2. "Bad faith” herein
specific subsection of West
Code
1. The
33-11-4(9)
practices,
opposed
brought
to
unfair claim settlement
which Mr.
Dodrill
failing
(f),
type
to settle
the
of bad faith claim for
which
"Not at-
suit was subsection
states:
in
policy
this Court
good
within
limits articulated
tempting
to effectuate
fair
in
faith
Co.,
Insurance
v.
Mutual
Shamblin Nationwide
equitable settlements of claims in
585,
(1990).
reasonably
to settle. only upon majority The evidence which the overwhelmingly rely
The
this case
fail
facts of
its conclusion that
part
practice
to demonstrate bad faith3 acts on the
existed sufficient
accident,
days
statutory
practices
Nationwide. Within
to constitute
bad faith
adjuster
practice
Dodrill to
prepaying
contacted Mr.
Nationwide’s
of not
medi-
costs,
injuries. Mr.
discuss the nature of his
Dod-
cal bills and other
fixed
failure to
rill said
he had
work and
missed some
reach
settlement between when the acci-
experiencing great pain
verdict,
resulting jury
was
neck and
dent
his
occurred
pain
back but
not seen a
ap-
had
doctor for
and Nationwide’s use of a two-tiered
any
proach
regard
handling pre-
as he did
believe that it would do
adjuster’s
good. Upon
receipt
post-litigation
Regarding
lapse
Mr.
claims.
time,
wage
attending
presume
Dodrill’s
verification
it is fair
that the two-
physician’s report,
again
and-a-half-year period
he
initiated contact
between the date of
phone
via a
call to Mr. Dodrill on December
the accident
the trial date is attributable
11,1987. During
conversation,
variety
factors,
this
including
typical
Dod-
to a
pain
rill
experiencing
delay experienced
said he was still
but
litigation.
What
majority totally
that he didn’t want to see a
The
doctor.
overlooks is the role Mr.
adjuster
if
played
delaying
advised
Dodrill that
he was Dodrill himself
settlement.
experiencing pain
still
prudent
repeatedly delayed
it would
to Mr. Dodrill
in seeking
help. During
seek out
medical
same medical treatment and
he failed make
conversation,
adjuster
Mr. Dod-
offered
demand
settlement
counteroffers of
until
represented
rill
attorney.
to settle the case. The offer was
he
$1800
on the
medical
formulated based
submitted
majority appears
to fault Nationwide
wages
bills of
and lost
At the
$217
$791.
using adjusters
minor
to settle
claims
*17
extended,
time
was
the offer
Mr. Dodrill had
litigation.
clearly
before
This is
a business
regular
days
worked
two
on
basis since
in,
practice
they
engage
to
are entitled
after the accident and the submitted medical
provided they
good
do so
faith. Mr. Port-
permanent
information indicated that no
in-
er,
adjuster, appears
the Nationwide
to have
expected.
rejected
was
Mr. Dodrill
performed
job
diligent
his
in a
fashion. The
offer
not make a
and did
counteroffer.
majority
say
him
worst that
can
of
is that
adjuster
spoke
The Nationwide
next
to Mr.
he
perhaps
suggest
didn’t
that Mr. Dodrill
Dodrill
during
very
on March
at
time Mr.
telephone
see a doctor
first
might
Dodrill indicated that he
to see a
need
conversation that ensued between Mr. Dod-
specialist,
that he
but
couldn’t
the time
rill Mr.
find
Porter. But the record indicates
adjuster
Porter,
to do
The
during
so.
tendered
second
that Mr.
the second or third
conversation,
offer
telephone
actively
of settlement
the amount of
encouraged
$2000
plus a scheduled release that
set aside Mr. Dodrill to seek
treatment. Fur-
would
medical
money
thermore,
for future medical bills.
he initiated contact with Mr. Dod-
rejected
seeking
negotiate
this offer and indicated that he was
rill
to
on several occasions
going
get
attorney.
reality,
to
an
majority
settlement.
what the
guidance
(9)(f).
statutory
provided regarding
Similarly,
guidance
3. No
is
no case law
has been
what acts constitute bad faith
to
regarding
statutory
sufficient
assert
provided
concept.
Virginia
a claim
West
Code
33-11-4-
approach
is the two-tiered
to dislike
ease have been settled March of 1988. majority
While the seems believe $11,386, jury’s
first award of amount twice offered, proof
what Nationwide last settlement,
unfair I cannot reach the same factors, including Mr.
conclusion. Various apparent sophistication
Dodrill’s lack matters, age, occupation, his jury’s likely
are to have influenced the Thus, look at the
award. award itself
prima faith facie evidence of bad is fallacious.
Furthermore, the nature of the claim was the
alleged attempt good failure to faith to equitable
effectuate fair and settle- liability
ments of claims which has become
reasonably clear. are typical
The facts of this case attempting one side is
situation which *18 potential its settlement and the oth-
increase keep trying
er settlement to a side Quite figure legitimate
lower in a manner.
simply, present does not one Mr. Dodrill
scintilla of evidence sufficient demonstrate
either Nationwide had a busi- faith, they practices
ness of bad or that way acted in bad faith the facts of
this case.