Harris v. Jones

for consistent tled to marital appellant’s manded reconsideration her share partnership, principles set forth herein. and is to alimony. entitled The just questions record leaves as to the value of Affirmed, reversed, part, part, and asset, that partnership alimony and based remanded. upon appellant’s Accordingly, income. remand, family on law master should STARCHER, Justice, concurring: present- endeavor reexamine the evidence 2001) (Filed ed, and make clear record how the separately emphasize point I write partnership’s impact upon debts the value of majority’s opinion. In the in- made partnership and appellant’s ease, family law stant master and circuit monthly Any income. recalculation of the monthly appellant’s in- court found that the income, appellant’s thereby and the amount $12,746.00 month, per come was and based permanent alimony, only should take into appellee’s alimony figure. partnership account the debt existed on gives findings fact deference valuation, its date was not family he or made law master because previously family accounted law directly, heard the best she evidence master. credibility positioned to consider the bias and said, I respectfully With that concur in the of the witnesses. Point See majority’s opinion. Burnside, Burnside v. appeal, appellant claims that On

$6,746.00 monthly goes of his income to re- partnership. family debt in a law

tire The heard evidence of of that master the value tag partnership, gave price $200,000.00. partnership Because the 550 S.E.2d 93 appellee property, marital was awarded HARRIS, M.D., David M. Plaintiff $100,000.00as her share of its value. Below, Appellant, looking at the this Court cannot where, whether, partner- determine ship’s figured family debt mas- into the law Hamilton JONES Mutual Insurance findings. cannot ter’s We determine wheth- Agency, Virginia corpora- a West $200,000.00 partnership er the value of the tion, Below, Appellees. Defendants debt, appel- such that accounted No. 29008. $6,746.00 putting lant a month toward wealth, increasing personal his own Supreme Appeals Court of portion expenditure whether some Virginia. appellee. should attributed We 12, 2001. Submitted June part- cannot also determine whether those nership qualified debts could be as “frivo- Decided June 2001. ie., lous,” expenses appellant incurred Dissenting Opinion of Justice solely as tool to reduce the amount he Maynard July required appellee. pay would be family findings law master’s un- are further about expenses

clear partner- were incurred after the date valuation, ship’s and therefore should not be applied appellant’s salary. to reduce the opinion

The Court’s con- not be rejection family as a law mas- strued reasoning. appellee clearly ter’s enti-

559

vor of an agency and an individual agent. physician alleged the insurance sold him a fully physician failed cover the in a medi- cal lawsuit settlement. cir- cuit court physician’s concluded that the ac- by tion was barred the statutes of limitation for both tort and contract actions. carefully After examining we questions conclude that of material fact re- main. Accordingly, below, as set forth reverse the circuit court’s judg- ment order.

I. (“Dr.Har- appellant, Dr. David Harris

ris”), physician practices is a plastic surgery Bluefield, reconstructive in both Vir- ginia, Bluefield, Virginia. West In late early 1989 or Dr. Harris was deciding whether to renew his existing malpractice policy, insurance or to a different policy from agent Hamilton Jones (“Mr.Jones”), appellees one of the in the instant case.

Mr. Jones is an appellee, (“MIA”). Mutual Agency, Insurance Inc. Mr. Jones offered Dr. Harris a medical mal- practice liability policy to be issued by Physicians Group National Risk Retention (“PNRRG”). Mr. selling point Jones’ chief Kathryn Bayless, Esq., Bayless Reed & substantially price was the lower McFadden, Princeton, Virginia, West Attor- PNRRG Mr. Jones told Dr. ney Harris Appellant. policy that the PNRRG was “sound.” Love, III, Charles M. Esq., Michael J. Halaiko, Esq., Wilson, Kimberly Esq., R. However, Harris, according to Dr. Mr. Bowles, Rice, MeDavid, Love, Graff & Jones did not him tell that PNRRG was not Charleston, Kantor, Katz, Esq., Norris Kan- up” by Virginia “backed the West Insurance Perkins, Bluefield, tor & Virginia, At- Guaranty Fund”), (“Guaranty Association torneys Appellees. statutorily-created provides fund that a de- gree backup coverage when an insurance

PER CURIAM: obligations. cannot meet its See appeal W.Va.Code, [1970], This is an from the Circuit Court of 33-26-1 to -19 Dr. Har- County by Mercer practicing physician ris further contends that the failed an granting summary order W.Va.Code, comply fa- with 33-32-9 [1987]1 NOTICE W.Va.Code, page notice: shall contain in Any 33-32-9 issued declaration ten-point type ^[1987] a risk retention provided page, on the that: following group front retention subject group. guaranty tions of to all of the insurance your Your risk retention group. funds are not available for state. State insurance is issued your group laws and risk retention insolvency your regula- not be risk

(cid:127) finalized, yet PNRRG applica- dation to be had failing to on the insurance include paid any not additional monies toward the page the declaration notice

tion form and on claim, nor purchased not had settlement paid any money laws or “subject protected personally to the insurance toward Harris guaranty funds.” the settlement. purchased claims that it was in the sum- February 1990. in or around (1) that mer 1997that he first learned: receivership proceeds be would sub- and other On June inadequate respect to the mal- stantially providers performed surgery on care health settlement; practice balance blockage patient from her remove payment final owed PNRRG made its after experienced compli- esophagus. patient agreement settlement Subsequently, surgery. cations from Guaranty paid Specifically, Dr. by the Fund. and the medi- patient sued Dr. Harris other alleges that was in the summer of Harris providers cal care who were involved her began rumors from after he to hear care, claiming malpractice. medical Guaranty that the Fund did other doctors 1991, during of In the course November claims, malpractice medical not cover certain malpractice litigation, was the PNRRG attorney an told him that consulted receivership in placed into Louisiana. Dr. by that PNRRG’s was not covered the questioned Harris Mr. Jones about Guaranty Fund. receivership allegedly and was told PNRRG worry;” by In Dr. Harris instituted Mr. Jones “not to that PNRRG November plenty money;” “had of that action in Court of PNRRG’s the instant the Circuit receivership political prob- “a placed County against appellees, into was claim- Mercer lem;” just “lawyers that a case ing and it was that Mi'. Jones MIA misled Dr. him gouging pro- ... each did and sold other.” PNRRG and recommended a Harris legal from that Dr. Harris with a defense for the of insurance Mr. vide knew, known, malpractice medical case. Jones and MIA financially Harris was unsound. Dr. further allegedly also Dr. Har- Mr. Jones assured negligently that contended PNRRG, though ris that even in receiver- Dr. failed to inform ship, pay percent 90 and 95 between by Virginia’s protected would not be any malpractice judgment settlement Fund, specific Guaranty comply failed to with pending malpractice that was reached statutory requirements relating to notice that litigation. available, protection not was May relying repre- on Mr. Jones’ suffered emotional dis- that he severe sentations, Dr. Harris entered into settle- profes- tress of the failure of his as agreement malpractice ment medical liability policy to him in protect sional $100,000 plus part case for interest. As malpractice claim him. event of a settlement, pledged person- Dr. Harris and MIA motions for sum- Mr. Jones filed ally pay any deficiency agreed- between the mary judgment, asserting that Dr. Harris’ any payment settlement and to- made barred statutes of limitation. actions were ward the settlement PNRRG. granted appellees’ court October the medical circuit approximately finding payment judgment, received motions $28,000 receivership. untimely. Specifical- from PNRRG’s Harris’ action ly, pay Whether would be able more circuit court found that PNRRG $28,000 questionable. than A had informed Dr. remained former insurance regarding in 1990 risks review record indicates that at the Harris associated Furthermore, appealed, liqui- time this case the circuit PNRRG’s PNRRG. Legislature appeal. This statute was revised feet this 1992; however, changes were no made that af- nonmoving court found that Harris’s PNRRG party. be made specifically stated that Both “STATE INSUR- the court below “must any permissible ANCE GUARANTY draw INSOLVENCY from inference the un- derlying light FUNDS ARE NOT AVAILABLE FOR facts most favorable party opposing THE RISK RETENTION Last- GROUP.” the motion.” Painter v. ly, trial Peavy, court found that June at S.E.2d 1993, Dr. Harris received a certified mail assessing “In the factual letter from informing grant nonmoving must party the benefit belong guaranty did not inferences, all as ‘Credibility determina fund. tions, evidence, weighing 11, 2000, In an order dated the circuit drawing legitimate inferences granted summary court favor of functions, jury facts are those concluding, Jones MIA as a matter judgef.]’” Coil, Williams v. Precision law, that Dr. Harris’ claims barred were quoting of limitation statutes for both tort and Liberty Lobby, Anderson v. 477 U.S. appeals contract actions.2 from 242, 255, 106 S.Ct. 91 L.Ed.2d ruling. Additionally, we have con cluded that II. [t]he inferences be drawn from the un- In appeal, controlling the instant affidavits, derlying exhibits, answers to in- question granting summary is whether the terrogatories, depositions must be judgment appropriate. This Court re light in viewed most favorable to the summary judgments views a de novo under party opposing the motion. consistently standard. We have said that judgment, On a motion for summary entry summary “[a] circuit judg court’s appellate try neither a trial nor court can 1, ment is de Syllabus reviewed novo.” Point fact; only issues of can determination be 189, Peavy, Painter v. 192 451 W.Va. S.E.2d made as to whether there are issues to be (1994). 755 specific, any tried. To be if is there evi- record 3, any dence source from Syllabus Point Aetna Cas. & York, á reasonable be drawn Co. v. inference can Sur. Federal Ins. Co. New 148 of (1963), 160, nonmoving summary party, W.Va. 133 770 S.E.2d we stated judgment improper. is the basic that: Chambers, A summary motion v. judgment for should Hanlon 464 W.Va. (1995). 741, granted only be when it is clear there S.E.2d genuine is no issue of fact to be tried and summary judgment The standard for inquiry concerning the facts is not desir- high. Summary judgment be should de clarify to application able of the law. dispute nied “even where there is no as to summary judgment stage,

At evidentiary only facts in but the case as given the benefit of doubt is to to be to the conclusions to be drawn therefrom.” nonmoving party. Co., All drawn inferences are Pierce v. Ford Motor F.2d 2. The statute of limitation for tort Code, be for tion is otherwise bring the right after the damage ries; case a accrued if (a) Every personal action for which no limita- 55-2-12 Within any bring to party right same it be other matter of (c) property; two [1959], the same shall have accrued if within die, shall to years prescribed bring damages states that: it could not have been have (b) one next after within two the same such nature year accrued, shall next after the actions, personal inju- be if shall years brought: it be for right that, have next to contract states, years[.] brought that is contract, within the founded sonal Similarly, Every right representative. pertinent actions, W.Va.Code, at common upon ... the statute of or following express say: bring recognizance, to part, ... the same any recover number law if that: it be contract implied, limitation shall have or money, shall against 55-2-6 years other than a within five for any next after which is accrued, brought his implied ^[1923] other per- (4th Cir.), denied, 72 S.Ct. ... under the rule the statute 342 U.S. cert. (1951). plaintiff begins limitation to run when the 178, 96 L.Ed. 666 knows, the exercise of reasonable Peavy, held that Painter (1) plaintiff diligence, should know that the function at the circuit court’s “[t]he (2) injured, identity of the has been weigh not to the evidence judgment stage is entity duty to act who owed the matter, but the truth and determine care, engaged with due and who genuine is a there to determine (3) duty, in conduct that breached that Painter v. for trial.” Point issue entity of that has a causal that the conduct supra. Peavy, injury. relation is that principal contention part, Syllabus Point Gaither. untimely be- claims not be barred as Comí; actions, regard to contract With periods of limitation did applicable stated statute of limitations has that “the begin until the summer of 1997 to run con begins run when the breach of the came understand when breaching occurs the act tract or when nor the neither PNRRG known.” McKenzie contract becomes malpractice settle- would cover the medical Co., Cherry River & Coke 195 W.Va. Coal Alternatively, Dr. Harris contends ment.3 (per filing in his was a untimeliness curiam). Gateway See also Communica conduct, thereby appellees’ es- tions, Hess, Inc., Inc. v. R. John asserting topping appellees from alleged Hams’ untimeliness as defense. analysis equitable principles of the Gaither in both tort and Dr. Harris’ claims sound are, therefore, applicable plaintiffs contract. tort and contract claims instant case. Ordinarily, the statute of appealed grant has begins to run the actionable limitation ing summary judgment him and tolling The of the statute of conduct occurs. Jones, of the appellees, ‘discovery rule’ is “[t]he limitations under agency appears MIA. It and insurance torts, to all unless generally applicable there persons that reach Court reasonable could statutory prohibition applica of its a clear different conclusions on the of the time issue Marcum, tion.” Point Cart v. appel Dr. liness of Harris’ suit We have fact that lees. While a finder could conclude ‘discovery further that “under the stated prior to of Dr. Harris had notice the summer rule,’ until of limitation is tolled a statute protect that the was not diligence claimant knows reasonable Fund, Guaranty might ed fact finder City claim.” his should know of Gaither Harris, conclude that Dr. of the also because Hospital, 199 W.Va. 487 appellees’ continued assurances of PNRRG’s citing Syllabus Point soundness, appreciate did not have reason to Marcum, supra Cart significance Guaranty lack of Fund Or, coverage until summer of 1997.4 “discovery purpose of rule” The fact finder conclude that Dr. Harris could recognition is the inherent unfairness “slept rights” that his had indeed on his barring party’s cause of of a claim when a untimely. action recognized been until action could not have ordinarily applicable period jury of limi It is for to decide after the recognized, through diligence Accordingly, reasonable tation. peri- argues past implicate so limita- that as to the statute of 3. Harris also begun to run tion issue. od of limitation still has not be- yet Harris has not suffered dam- merely parties agree applicable periods ages; The that the of his lawsuit was therefore that are, "prophylactic” filing. argument the least was not limitation for Dr. Harris' claims at timely years, filing purposes his raised For of which would make before the circuit court. decision, began period running in the this will if the of limitation we assume that sufficiently causes of at a time in summer of 1997. accrued time, appellees that cause Dr. Harris was at this appreciated, sued inadequate policy. obviously sold him an he had became aware soon thereafter cases, great majority the issue of “In malpractice of the financial condition of his a claim barred the statute Again, presuming allega- insurer. his that jury.” question limitations is a of fact for the true, tions are Harris knew he was Gaither, 714-15, 487 S.E.2d at fact harmed that his in- 909-910. financially incapable surer was of satisfying a him, judgment against that this was

Therefore, remaining there is- because are misrepresented determined, because the defendants fact to sues material financial grant- that trial court condition the insurer at the conclude erred time ing summary judgment appellees. Therefore, for the began

statute limitations to run on this III. tort cause of action 1993 so the 1998 untimely summary judgment lawsuit was July The of the Circuit order County granting summary proper. of Mercer for the is reversed and concludes, however, majority that a proceedings this case is remanded further rational fact trier of could that Dr. Har- find opinion. accordance with appreciate ris “did not have reason to Reversed and Remanded. significance of the lack of coverage” until the summer of 1997. It is Justice, MAYNARD, dissenting: simply a person of Dr. incredible Har- (Filed 2001) ris’s intelligence pur- knew when he I I dissent do not because believe chased 1990 that it was not operates to toll the statute of guaranteed, “appreciate did come to governs limitations which Dr. Harris’s tort significance” years this fact until seven causes action. true, certainly later. If in fact this is I that Dr. evidence indicates Harris’s by my not want Dr. Harris to To doctor. clearly provides that “State contrary, shows that Dr. the evidence Insolvency Guaranty Insurance Funds Are knowingly bought a deficient insurance For Not Available The Risk Retention money, bargain order to and when his save Group.” Presuming misrepresentations legal system appealed went sour true, alleged by Dr. Harris are he knew Nevertheless, help. simply is not the role when he received the that he had capable perfectly people courts to save unwittingly purchased which was not bargains. from bad guaranteed, that Hamilton and Mr. Jones Especially troubling majority’s is the con employer parties were the who sold Jones’ expansion discovery tinued rule policy, him the failure to in- their disregard order to statutes of limi form caused him to times, Therefore, many syllabus tations. As I have said statutes point of Gaither under Inc., City Hosp., important functions in W.Va. limitations serve (1997), legal system. purpose that when the tort statute of our “The basic years began to run. limitations of two Be- to encourage statutes limitations did not actions; file his until instituting sup promptness in to untimely, circuit action was claims; press or fraudulent stale demands properly granted court and to avoid inconvenience him. delay asserting rights claims when practicable Morgan it is assert them.” alleges Dr. Harris also was misled Hospital, Grace by being sold a of a known to omitted). (citations 156, 161 purchase. unsound at the It time Marcum, Cart v. facts that appears from the PNRRG was (1992), receivei’ship explained: placed 1992 or 1993. Be- S.E.2d significance” of the “discovery “appreciate of a came declaring existence result, can about plaintiff the statute know not eviscerate tort. As we do rule” “appreciate of limitations will statute a tort in but come limitations: discovery handicaps to tort until 1997. Such apply significance” unless the great and injury are are of limitations. reasoning time of statutes eviscerates con- product of the largely doing step from this case to It is a small defendant’s concealing the tort or the either duet altogether, away with statutes of limitations identity. wrongdoer’s which, believe, I is what some members rule, desire. discovery purpose of the original plaintiffs from innocent protect which was properly applied circuit court Because the defendants, concealment wrongful acts of Gaither, rule, as stated case, abandoned Gaither. tort actions were un- that Dr. Harris’s the defendant concealed inquiry of whether law, affirm the timely I would as matter identity wrongdoer’s shifted or the the tort Har- summary judgment against Dr. grant of plaintiff what the knew question of I Accordingly, dissent. ris. result, knew As he or she it. beyond recogni- was distorted discovery rule protect dilatory, apathetic, in order

tion plaintiffs. willfully ignorant majority distorts of the Court Now the dispositive issue is Apparently, the Gaither. and when plaintiff what the knew longer no but, rather, when the he knew

Case Details

Case Name: Harris v. Jones

Court Name: West Virginia Supreme Court

Date Published: Jul 2, 2001

Citation: 550 S.E.2d 93

Docket Number: 29008

Court Abbreviation: W. Va.