*1 having jurisdic- on merits While Ms. Sinkewitz asserted different Secondly, the grounds tion. two suits involved the second suit for parties, specifically same Ms. unconstitutional, Sinkewitz clearly ordinance the issue City Huntington of and its of Board could been have raised in the first action. Third, Zoning Appeals. the cause of action Therefore, we find that the circuit court suit, i.e., constitutionality the second by ruling erred that the doctrine of judi- res city ordinance, zoning is the same cause cata apply did not in this case. of action that was determined in the first case. IV. reject We Ms. Sinkewitz’s contention that CONCLUSION judicata apply
the doctrine of res does not Accordingly, for the reasons forth set this case because of the existence of different above the final order the Circuit Court of regard, issues and facts. Ms. Sin- Wayne County entered on April says kewitz that causes of action in the cases reversed. were different because the first chal- suit constitutionality
lenged, the ordinance Reversed. grounds vagueness equal pro-
tection challenged whereas the second suit constitutionality ordinance due
process grounds. She also asserts that un- action, judice
like the first the ease sub
required development of evidence re-
garding whether had been abandon- nonconforming
ment of the use to 1997. Upon record, review of it is HOLLOMAN, Plaintiff, Jennifer clear that in both cases the court was re quired to v. constitutionality rule on the ordinance. The second suit was remanded for NATIONWIDE MUTUAL INSURANCE development concerning of the evidence COMPANY, Defendant. only abandonment use after circuit No. 32286. court first determined that the ordinance was process grounds. unconstitutional on due In Supreme Appeals Virginia. of West Syllabus Point v. B Slider State Farm Co., May 11, Mut. Auto. Ins. Submitted: (2001), explained S.E.2d 883 that: Filed: June adjudication by “An having juris- a court subject-matter par- diction of the and the conclusive,
ties is final only not as to actually determined,
the matters but as to
every parties might other matter litigated
have as incident com- thereto and legitimate purview within
subject-matter of the action. It is not
essential that the matter should have been suit,
formally put in issue in a former but
it is sufficient the status of the suit parties might
was such that the have had disposed
the matter of on its An merits. ruling
erroneous pre- the court will being judicata.”
vent matter from res
Syl. pt. Sayre’s Harpold, Adm’r S.E. 16 *2 Fuller, Kimberly Fitzwater,
E. Kay A. Seibert, L.C., Martin & for Amici Curiae Progressive Classic Insurance State Farm Mutual Automobile Insurance *3 Company, Auto State Mutual Insurance Company, Company Westfield Insurance Company Hartford Insurance of the Mid- west. opinion
Justice BENJAMIN delivered the of the Court.
Justice STARCHER concurs and reserves right to concurring opinion. file a BENJAMIN, Justice. pur
This matter comes before this Court questions presented by suant to certified County pursuant Circuit Court of Greenbrier (1998).1 § to W. Va.Code 58-5-2 Thé circuit questions upon court certified the the re quest after it had denied her summary partial motion for judgment. sought collaterally Plaintiffs estop motion defendant Nationwide Mutual Insurance Company contesting [“Nationwide”] that it has committed violations of the Unfair Act, 33-11-1, § Trade Practices W. Va.Code seq., et such as to [“UTPA”] practices, by indicate a vir opinion tue Court’s Dodrill Na tionwide Mutual Insurance ques The two by together tions certified the circuit with the circuit court’s answers are: Is of the doctrine of collat present eral appropriate the. upon adjudication based Dod rill v. Nationwide Mutual Company, 201 W.Va. Haviland, Turner, Pyles, D. Tur- William (1996), upholding Nation Smith, LLP, & Lewisburg, ner for Plaintiff. Company wide Mutual Insurance violated 33-11-4(9)?, § W. Va.Code Davis, C. William & Richardson Davis PLLC, Bluefield, for Defendant. No. Circuit Answer: provides: may, 1. W.Va.Code 58-5-2 die circuit court in discretion arises, law, Any it question including, certified it to the su- but not limited to, decision, questions arising upon sufficiency preme appeals of a court of its service, upon or return of chal- proceedings stayed summons further the case until sufficiency lenge pleading of the or the such shall have been decided and die court, upon sufficiency venue of the circuit procedure certified back. The decision thereof summary judgment of motion processing questions pursuant denied, judgment or a motion for on' governed by appel- this section shall be rules of pleadings, jurisdiction upon cir- procedure promulgated supreme late matter, person subject cuit appeals. court of join indispensable party, failure to i.e., physical in- concerns, various de- Ms. Holloman sustained public policy 2. Do action(s) juries and filed a claim with Nationwide. encourage remedial sire the Nation- filed suit Ms. Holloman defendants, application of bar matter, in the Circuit Court Green- wide insured estoppel in this based of collateral Shortly County May there- brier Mutual v. Nationwide Insur- on Dodrill after, that claim settled for insured’s Company, 201 W.Va. ance $25,000policy limits. (1996)? May Answer: Yes. Hollo- Subsequently, Circuit Court Ms. in the Circuit man instituted a civil action it Circuit Court has before This Court County against Nation- Court of Greenbrier County’s July Order of Greenbrier *4 alleging violated UTPA wide Nationwide briefs, Certification, portion of parties’ of 1999 handling in and settlement her desig- as underlying court record circuit Specifically, alleged Ms. claim. Holloman parties, and the brief Amici by nated § 33- Va.Code that Nationwide violated W. Progressive Classic Insurance Com- Curiae 4(9)(f)3 by attempting not effectuate 11— Insur- pany, Farm Mutual Automobile State equitable fair prompt, and settlement Auto Company, State Mutual Insurance ance liability reasonably clear in was claim which Company and Company, Westfield Insurance has that done so with such Nationwide Company of the Mid- Hartford Insurance frequency general as to indicate a business the above list- Upon consideration of west.2 practice.4 set forth ed materials and for reasons 2004, 24, March Holloman filed a On Ms. below, concludes that Circuit Court partial summary judgment invok- correctly County an- Court of Greenbrier estoppel to es- ing the doctrine of collateral Finding question. swered first had violated tablish Nationwide disposi- to be the answer the first frequency UTPA with such as indicate tive, Court declines to address the sec- this by this general practice virtue of question. ond certified in Dodrill v. Court’s decision Nationwide 1, Company, 201 Mutual Insurance W.Va. I. (1996)which, according plain- 1 491 S.E.2d AND HISTORY FACTS PROCEDURAL tiff, conclusively determined the issue. argued response, that doctrine May Holloman Nationwide On Jennifer inapplicable to the two vehicle accident with involved reasons, County, arguing, among other instant matter Nationwide insured Greenbrier accident, procedures had handling its claim Virginia. As a result of West motion, Statutory not granted amendments made in did Amici Curiae’s The appear provisions as Curiae Order file a brief Amici affect the remain iden- February during dated in effect the time frame tical to statute litigation. at issue this Complaint actually to W. Va.Code 3. The refers However, 4(0- appears § to be a 33-11— right recognized the of a third- 4.This Court first typographical does exist error as such section herein, claimant, as to assert language of W. Va.Code cited and the v. of the UTPA Jenkins a claim violation §33-ll-4(9)(f). §33-11-4(9X0 W. Va.Code Penney Casualty Company, 167 J.C. Insurance (2002) provides:" (1981). W.Va. S.E.2d 252 In Jenkins following are defined as unfair methods The single, we stressed that more than a isolated deceptive competition and unfair or acts 33-11-4(9) § of W. Va.Code must violation practices in the business of insurance: "general in order to indicate a shown Syl. Pt. required the statute. (9) practices person settlement No claim Unfair Co., Penney Casualty Ins. v. J.C. Jenkins perform with such shall commit or (1981). 280 S.E.2d Jenkins any as to indicate a prohibited subsequently it to the extent overruled following: any bad joinder common law UTPA injury underlying personal faith claim with (0 good attempting Not faith to effectuate Syl. ex Fire & State rel. State Farm action. Pt. equitable prompt, fair and settlements Madden, 451 S.E.2d Cas. Co. become reason- in which has claims ably clear[.] Stores, Inc., years the more than nine between Mart (1996)(“[t]he appellate at issue in Dodrill and that at conduct standard review support of questions issue in the instant matter. of law answered and certified novo.”). argument, a circuit af- court is de Danny Carpenter, D. fidavit Nationwide’s III. casualty claims for
director the State of Virginia “Carpenter West affida- [hereinafter DISCUSSION listed, Carpenter The affidavit vit”]. albeit action, third-party In this plain- bad faith terms, changes somewhat several tiff, asserts a claim defendant Nation- organization enacted Nationwide’s claims alleged Virginia’s wide violations of West practices and business after this Court’s deci- recognized UTPA. This Court third-party sion Dodrill.5 Plaintiff offered no evi- implied statutory claimant’s right to assert in reply dence which would tend to contradict cause action for violations of W. the matters contained in the affi- 33-11-4(9), Va.Code prac- which lists trade davit. statutorily unfair, tices defined to be in Jen- hearing The circuit court held a on Ms. Penney kins v. Casualty J.C. May 17, Hollomon’s motion on at which Company, 167 W.Va. partial time it denied the motion for sum- *5 (1981). Therein, that plain- we concluded a mary judgment. The circuit court’s order right tiffs to maintain an action for violation concluded that a material issue of fact existed contingent of the UTPA is upon proof not as to whether the Dodrill decision conclusive- simply occurred, that a violation but that the ly presented, determined the identical issue defendant insurer committed such violations i.e., whether Nationwide violated UPTA frequency with such to general as indicate a frequency general with such as to a indicate Jenkins, practice. business 167 W.Va. practice. business sup- The circuit court 610, 280 Subsequently, S.E.2d at 260. in ported finding by noting the matters Syllabus Point 4 of Dodrill v. Nationwide in raised affidavit and the 1, Mutual 201 W.Va. forming remoteness in time between the acts (1996), held: we the basis of the Dodrill decision and those at private a To maintain action based issue in the instant her matter. After § violations of W. Va.Code 33-11- denied, partial summary judgment 4(9) in the single settlement a insurance plaintiff certify moved circuit court to claim, the evidence should establish that 28, May to issue this Court. After a 2004 the conduct more constitutes hearing question, on the motion for certified a single than violation W. Va.Code 33- the circuit court entered its Order of Certifi- 11-4(9), sepa- that the violations arise 9, July cation on 2004. The Order of Certifi- ' rate, discrete acts or in the claim omissions presented questions cation the two noted settlement, they and that arise from a above, provided stipulated a statement of habit, custom, usage, or policy business by incorporated facts and reference the cir- insurer, that, viewing so the conduct as prior cuit court’s denying order Ms. Hollo- whole, a the finder of fact is able to con- partial summary judgment. man’s motion for practices clude that or are accepted questions This Court the certified sufficiently pervasive sufficiently or sanc- 4, for review Order dated December company tioned the insurance that the conduct can be considered a busi-
II. distinguished by be ness and can STANDARD OF fair REVIEW minds from an isolated event. reviewing 4, In questions Syl. Upon a Pt. Dodrill. examination of the apply circuit de we a novo standard of trial record at issue in Dodrill and See, Syl. affording Gallapoo proper review. Pt. v. Wal- deference to the factfinder’s Further, example, Virginia 5. For the affidavit other states well. indicates since oversaw as , handling pro- a 1996 Nationwide has had full time the affidavit maintains that dedicated claims casualty Virginia. Virginia subject director of Pri- claims West cedures West are now overseeing person claims West constant internal review. 274 later, 6, Conley. a decade we
conclusions,
Syl. Pt.
Over
concluded that suffi-
this Court
sup-
requirements
on the record
cient
existed
set forth four
evidence
Nationwide, in
July’s
port
Miller,
verdict
estoppel.
v.
State
claim, had
the Dodrill
the settlement of
(1995),
held:
W.Va.
occasions,
failed,
separate
number of
on a
a
if four
bar
[collateral
will
equitable
prompt, fair and
settle-
a
effectuate
(1)
previous-
conditions are met:
The issue
liability had become reasonable
ment once
ly
presented
decided identical to the one
is
had occurred
that such violations
clear and
(2)
question;
there is a
during
negotiation
with
adjudication
prior
on the merits of the
final
general
to indicate
that claim
(3)
action;
party
whom
Dodrill,
practice.
party
privi-
doctrine
invoked was a
is
Invoicing the
of collat-
at 12.
5.E.2d
(4)
action;
ty
prior
that our deci-
estoppel,
eral
party against
the doctrine is
whom
conclusively
establishes
Dodrill
sion in
opportunity to
raised had a full and fair
the UTPA which such
violates
litigate
the issue
action.
frequency as to constitute
satisfying her burden to dem-
practice,
Miller,
thus
Syl. Pt.
v.
State
practice.
onstrate a
(1995);
Syl.
see
Pt. Haba
S.E.2d
also
Inc.,
Grill,
Big Arm
v.
Bar
designed to
is
“Collateral
(1996)(same).6
129, 468
The hold
in a
relitigation of issues
second
foreclose
Miller,
may
ings Conley
appear
actually
litigated in the
have
been
suit which
blush,
may
though
inconsistent at first
are similar
earlier suit even
may
Conley.
of action between the
subsuming
in the cause
difference
Miller
be viewed as
Syl. Pt.
Miller,
second suit.”
parties of the first and
recognized
Spillers, 171 W.Va.
part, Conley
if
identical
the second
*6
(1983). Plaintiffs invocation
301
216
S.E.2d
facts,
legal
action
different
stan
involves
the
is
estoppel in
instant matter
of collateral
Miller,
procedures.
at
dards
W.Va.
estoppel
collateral
deemed to be offensive
121;
City
at
also
Hunt
S.E.2d
see
not a
Dod
the
because
was
Bacon,
457, 463, 473
ington v.
196 W.Va.
Conley,
In
we discussed the of
rill action.
(1996).
Likewise, Conley’s
estoppel doctrine
fensive use of the collateral
may be seen
special
inquiry
circumstances
as
held:
falling
full
within condition four Miller —a
stranger to
first action can
the
[w]hether
litigate
opportunity
fair
to
the issue.
estoppel
ac-
collateral
second
assert
Having
any possible
reconciled
inconsisten
general inquiries:
depends
on several
Conley
appeared
cies which
between
presented
pres-
in the
the issues
Whether
Miller,
currently
we turn now to the issue
presented
as
in the
ent case are the same
(cid:127)
this
before
Court.
case;
controlling facts
earlier
whether
to
been asked
determine
We have
have
substan-
legal principles
may
applied in
estoppel
whether collateral
be
and,
case;
tially
whether
since the earlier
satisfy plaintiffs
present
action to
burden
special
are
circumstances
would
demonstrating
the conclusion that enforcement
warrant
part
unfair.
on the
At the outset of
judgment
of Nationwide.7
would
Haba,
(1995).
ap-
Conversely,
estoppel
we
in Miller and
found
6. The use of collateral
collaterally estopped
pellants
In
contest-
properly
defensive.
were
from
is
characterized as
Haba
arising
Miller,
argument
wrongful
rejected
in their
death action
we
the defendant’s
appellants’
battery
her
should be overturned be-
from
automobile accident
conviction
primarily
collaterally estopped
liable
the acci-
from
decedent was found
State was
cause the
prior
brought
dece-
prosecuting
in a
her
The defendant
dent
for the offense.
133-34,
Haba,
at
argued
law
dent.
applicable decisional and
law
reviewed, the instruc-
type
we have here
find
which
ance or another
of business. To
given by
trial
and the evi-
tion
the
single jury
an
that a
conclusion that
insurer’s
record,
light
taken in the
most
the
dence
single
a
a
handling
general
claim indicated
below,
prevailing party
the
favorable
practice
business
of UTPA violations conclu-
Dodrill, assuming
all conflicts in
Mr.
establishes,
time,
sively
all
an element
jury
resolved
the
were
the evidence
statutory
plausible.
a
cause
action is
favor,
giving him
benefit
and after
his
statutory
a
cause of
order
establish
may
all
inferences
favorable
action, a
that the
claimant must demonstrate
from facts.
drawn
(1)
insurer
violated the UTPA
the han-
Dodrill,
at 12
at
201 W.Va.
(2)
dling
claim and
that the
claimant’s
added).
(emphasis
As
above discussion
committed violations of the UTPA
insurer
demonstrates,
in Dodrill
focus
general
frequency as to indicate
with such
handling
in the
conduct
whether the insurer’s
Jenkins,
practice.
at
business
claim,
claim,
single
Dodrill
suffi-
Dodrill,
260;
at
280 S.E.2d at
general
practice
business
cient to indicate
Thus,
9-10, 491 S.E.2d at
establish-
9-10.
violations.
UTPA
statutory
ment of a
cause of action necessari-
legal
Both the
issues
practice
ly
general
requires that
business
controlling
facts must be identical
be in
at the time the claim at issue
existence
require
satisfy
action to
the first Miller
each
controlling
support-
was handled. The
facts
estoppel.
application of collateral
ment for
practice finding
general
will
business
(violation of the UTPA
legal
While the
issue
if
is
not be identical
credible evidence
may
general
practice)
be identi
as a
business
prac-
its
that the insurer
business
action,
cal in both Dodrill and
instant
tices
the insurer handled
between
time
controlling
simply are not. The above
facts
underlying general
prac-
the claim
business
Dodrill demonstrates
discussion of
finding
tice
and the time
claim claims
upon the limited informa
was based
subsequent
litigation
were
jury
provided
regarding
to the
Nation
Accordingly,
hold that col-
handled.
we now
handling
the Dodrill claim.
wide’s conduct
statutory
apply in a
lateral
will not
oc
conduct
issue Dodrill
Nationwide’s
Va.Code
cause of action
violation W.
years prior
than
curred more
nine
33-11-4(9)
“gener-
to establish
insurer’s
plaintiffs claim.
find
supporting
conduct
We
there is credible
al business
plaintiffs argument
passage
that the
of time
record in the action at bar
evidence
application of
is not a bar- to the
insurer altered its
unpersuasive.10
company’s
A
estoppel to be
practice
the time the
han-
between
insurer
often a
fluid
underlying
prior general
dled the
process reacting
changes
legal
practice finding
the time the
This is true wheth-
economic environments.
*8
rejected.
upon
was
cases
after an identical effort
In both
10. The three
relied
argument
seeldng
support
Duquesne Slag,
controlling
are not actions
the
Montana
statutory
impose
vio-
to
lations,
civil
the two
facts had not
between
actions.
challenge,
involve constitutional
an
but
a
City
Finally, Riddick v. School Board
the
segregation
equity
racial
action
and a claim of
Cir.1986),
(4th
Norfolk,
IV.
CONCLUSION conclusion, find that Circuit County correctly
Court of Greenbrier an- question. ap-
swered first The
plication of the doctrine of collateral appropriate present
is not action based adjudication in Dodrill v. Nation- wide Mutual S.E.2d 824 (1996), upholding a In re MARK LEE ELIGI- McMILLIAN’S finding that Nationwide Mutual Insurance BILITY FOR CONDITIONAL ADMIS- 33-11-4(9). Company violated W. Va.Code SION TO THE PRACTICE OF LAW. We decline to address the second certified question as our answer the first certified No. 32267. dispositive presented. of the issue Supreme Virginia. Appeals Court of of West QUESTIONS CERTIFIED ANSWERED April Submitted: STARCHER, J., concurring. Filed: June estoppel—
Under the doctrine of collateral *9 preclusion— also called actually necessarily
“once an issue is jurisdic- of competent
determined
tion, that determination is conclusive in sub-
sequent suits based cause of different involving litiga- agree Carpenter conclusory.
11. Plaintiff affidavit that it It forth sets changes "conclusory.” subsequent should not be considered as it is enacted affidavit, examining After dowe Dodrill and is on the uncontradicted record.