*1 duty of a opinion as to the an to render her 600 S.E.2d 346 warnings type of hospital to disseminate JACKSON, Plaintiff David M. ease, given and that present in the in issue Below, Appellee experience background and of her the nature testimony, does this Court her as revealed FARM AUTOMOBILE MUTUAL clearly STATE court was trial that the believe COMPANY, Defendant INSURANCE expert opinion. excluding wrong in her Below, Appellant. claims that the Finally, appellant 31372. No. admitting into evidence trial court erred Appeals of Court The “Cutter Memo.” so-called “Cutter Virginia. West Laboratories that the Cutter showed Memo” prob AIDS infection potential was aware March 2004. Submitted products in its blood lems with July 2004. Decided warning that a suggestion had been raised products might be regarding the use

appropriate. Smith Syllabus Point 9 indicated As Bankshares, Inc., supra, Community

v. First significant mak- discretion

a trial court admitting the evidentiary rulings.

ing evidence, trial court into Memo”

“Cutter was what an issue the case

recognized that between about the connection

was known time of the products and blood

AIDS Memo” case. The “Cutter

transfusion and, in this point, on this

was relevant view, this and the overall devel- given

Court’s shown it has not been

opment court abused discretion

that the trial

admitting memo.2 during made of the statements

Because judg- that the

argument, this Court believes should be circuit court reversed

ment of the for a this case should be remanded

and that trial.

new and remanded.

Reversed Justice,

MAYNARD, dissents. Chief suggested conclusion, however, injury alleged in this case. As Having reached this 2. argu- that, previously, Court believes that such point should the "Cut- out Court wishes require speculation during undue ment would again evidence admitted as ter Memo” be remand, improper part of tire and would as a basis to it cannot be used trial on Compton,supra. holding responsible in Grovesv. Bayer party suggest was the *2 Davis, J., separate opin- concurred and filed

ion. C.J.,

Maynard, part, concurred dissented opinion. part, separate and filed

McGraw, J., separate concurred and filed

opinion. *4 Cuomo, Cuomo, Esq.,

Jason A. Frank Cuomo, Esq., Wellsburg, Cuomo & West Vir- ginia, Attorneys Appellee. for Munster, D. Esq., Tiffany Catherine R. Durst, Esq., Varner, Esq., McNeer, A. James Highland, Varner, McMunn Clarksburg, & Virginia, Attorneys West Appellant. STARCHER, hill the accident occurred crest where Justice: attempted a number of times and to recreate ap- separate This addresses two However, Kays Mr. did not the accident. peals Circuit Court Brooke Coun- any take the accident measurements appeals ty, case. two from the same scene, approximate length than to other In the consolidated review. have been of skid Ms. Smoot’s vehicle. marks made Au- appellant Farm Mutual first Further, copy not Farm did obtain a Farm”) (“State Company Insurance tomobile accident, police report and did April granted appeals an order expert retain the services of examine summary judgment appellee, to the David M. or to otherwise the accident scene determine Jackson, on two issues Mr. Jackson’s of the accident. State Farm also cause statutory third-party unfair claim settlement did not statement of take recorded Farm, practices lawsuit accident, independent Mr. witness Farm’s motion for sum- that denied State Gonzales. fol- mary judgment. For the reasons which low, affirm the court’s decision investigation, Based his summary judg- deny motion for State Farm’s investigator, Kays, Mr. concluded that Mr. ment, the circuit court’s reverse decision fault, 100% at and that Jackson was *5 summary grant motion for Mr. Jackson’s insured, Smoot, Farm’s was not Ms. liable for judgment, and remand the case for further Kays the collision. Mr. determined that Mr. proceedings. stopped improperly Jackson had his vehicle public highway, stopped on a and that his case, appellant Farm In the second State to Ms. vehicle was not visible Smoot as she January a that denied appeals order approached According- hill. the crest trial, for a in Farm’s motion con- State new ly, days on May five after the Mr. Jackson’s verdict nection accident, Farm notified Mr. Jackson State Farm on the of whether against State issue denying arising that it his claims was from alleged prac- unfair State settlement the accident. general practice. a constituted business tices follow, and For the reasons we reverse 30, 1998, April On Mr. Jackson filed a for a new trial. remand the ease negligence against Ms. action Smoot. Con- temporaneously, Mr. Jackson filed lawsuit

I. Farm, against alleging that Farm State State illegally engaged had in unfair claim settle- Background Facts & practices Virgi- in ment violation the West 16, 1996, by a May driven On vehicle Act, W.Va.Code, nia Practices Unfair Trade below, appellee plaintiff and M. Jack- David 33-ll~4(9)(f), prohibits attempt- “[n]ot which son, in was struck the rear a vehicle ing good prompt, fair faith effectuate At Teri Smoot. the time of the driven equitable and of claims in settlements which accident, Mr. Jackson either had substantial- liability reasonably has become clear.” ly stopped his on road- slowed or vehicle filed, being Prior suit Farm to the State roadway, on the way, partially appellee’s had fault for calculated of a crest or road other side rise 100%, and Ms. fault collision was Smoot’s pedestrian, Joseph a a ride to order offer Subsequent filing, suit’s was 0%. injured seriously Mr. Jackson Gonzales. Farm, manager Mary claims for State Ad- collision, severely his and car was kins, that Ms. Smoot’s fault was as calculated damaged. immediately Mr. filed a Jackson high writing reflecting as A this as- 49%. liability claim with Ms. Smoot’s insurance claim sessment is contained file. below, appellant and company, the defendant State Farm. 3, 1999, August Mi'. Jackson On offered $35,000.00, Farm, through representa- a claims settle his claims for but State Then, tive, rejected Farm Kays, investigation conducted an the offer. a letter Jim During August claim. of dated Mr. the course the defense Jackson’s attorneys Kays employed by repre- Farm investigation, Mr. drove over the Smoot, 24, 2002, April sent Ms. State Farm learned that order dated the circuit court accident, portion the time of the of Mr. granted summary Mr. Jackson’s motion for Jackson’s vehicle was visible to Ms. Smoot judgment on the issues State Farm’s al- prior to her arrival the rise the road. W.Va.Code, 33-ll-4(9)(d) leged violation of contrary This assessment was to the assess- (f). concluded, and The circuit court as a Kays. Mi”. ment made law, matter of that State Farm had failed to conduct a investigation reasonable based 15, 1999, It was not until that a November information, upon all available and manager, Dooley— State Farm Don section Farm not attempt good did faith to effec- manager who was also the boss of claims fair, prompt, equitable tuate and settlement Mary Adkins —examined claim Mr. file. Dooley reasonably after became degrees assessed the of fault clear. relative parties, order, of the and handwritten notes in the the same the circuit court denied State claim file indicate that he believed that Ms. Farm’s motion summary judgment.2 60%; high fault was as Smoot’s as that the Mr. Jackson’s unfair settlement appellee’s $12,500.00 damages were between claims ultimately State Farm went to $17,500.00; and and that Farm should questions trial on the of whether State $10,500.00. high make an as offer Ms. 33-11-4(9) Farm’s violations of that, Adkins despite later testified Mr. Doo- assessment, practice3 constituted un- ley’s business she had no intentions statute, making any appellee. punitive settlement der the offers whether dam- ages should be awarded. At conclusion 30, 2001, January On Farm made trial, May which was conducted from $10,500.00 separate two offers of settlement — through May and June $15,000.00, both of Mr. which Jackson *6 6, 2002, through jury 2002 June answered rejected. result, personal injury As a questions both jury in the affirmative. The jury action was tried before between Feb- $39,000.00 damages awarded Mr. Jackson 7, ruary jury 5 and 2001. The assessed 90% $50,000.00 attorney for and costs and fees Smoot, negligence against of the Ms. and damages annoyance for and inconvenience. 10% Mr. Jackson and Mr. awarded punitive damages also assessed $73,288.36 damages. Jackson against State Farm in the amount of Subsequently, Mi’. Jackson his amended $1,250,000.00. 29, January In an order dated complaint against State Farm to include alle- 2003, the circuit court denied State Farm’s gations of additional unfair claim settlement motions for a new trial. W.Va.Code, practices in violation of 33-11- 4(9)(d) prohibits “[rjefusing which pay appeals Farm now the circuit court’s conducting claims without a reasonable inves- 24, April summary granting judg- 2002 order tigation upon all based available informa- ment on Mr. Jackson’s Farm behalf. State 1 tion.” 29, appeals January also circuit court’s discovery, denying post-trial 2003 order parties

After substantial summary judgment. By filed motions for an motions. alleged 1. Mr. single Jackson also a violation of VJ.Va. 3.This Court has held that than a "[m]ore Code, 11—4(9)(g), but the circuit court dis- 33-11-4(9), isolated of violation 33— finding subpart (g) missed this claim after applies only statutory must be shown order to meet the first-party claims. requirement general of an indication of 'a busi- practice,’ requirement ness which must be 13, 2002, May petition

2. On State Farm filed a statutory implied shown in order to maintain the summary appeal judg- of the circuit court's 3, Syllabus cause of action.” Point Jenkins v. Court, stay ment order with this the and moved to Penney Casualty Company, J.C. Insurance 167 underlying proceedings pending resolution of 597, W.Va. 280 S.E.2d 252 overruled on appellate proceedings. By the May an order dated grounds other State ex rel. State Farm Fire & this Court refused the motion for a Madden, 155, stay proceedings appeal of with leave to Cas. Co. v. 192 W.Va. 451 S.E.2d order, April circuit court's 2002 incident to 721 any petition appeal judgment of a final once entered. 640 something clear,” we believe means

II. circuit court’s definition than the more Review Standard of likely than not.” The word “clear” “more circuit court “plain.” Farm asserts that the or ordinarily is as “evident” defined for sum- denying its motion Unabridged both in Dic- erred House Webster’s Random (2nd ed.1998). Mr. judgment granting According Jack- mary tionary and (5th ed.1979), summary judgment. Dictionary Our motion for son’s Black’s Law evident, Syllabus [p]lain, novo. issues is de “[o]bvious... these “clear” means review Peavy, conjecture!].]” Painter v. 192 W.Va. Consistent Point from doubt free (“A (1994) entry meaning court’s is its with this definition “clear” S.E.2d novo.”). proof de known “clear summary judgment is reviewed in our standard convincing This standard means evidence.” thing to be indicating “[e]videnee III. reasonably proved highly probable or cer- Discussion prepon- greater is a burden than tain. This A. Law Dic- Black’s evidence!].]” derance tionary 457. Summary Judgment Order “clear,” circuit court’s construction summary to the circuit court’s Critical however, accepted commonly conforms to the of Mr. Jackson was its on behalf meaning “preponderance of the evidence” of the of law as to the definition conclusion likely than not.” As indicat which is “more “reasonably in W.Va. clear” contained words above, than this is a standard “clear ed lesser 33-ll-4(9)(f), Code, which states: Berkeley convincing.” See Hovermale perform with person shall commit or No Lodge Springs Moose No. W.Va. frequency as to indicate a such (1980) n. 341 n. following ... any practice business preponderance of (stating “[p]roof good attempting in faith to effectuate Not only party requires that a satis the evidence equitable settlements of prompt, fair and jury by sufficient evidence fy court or has become rea- claims which probable of a fact is more that the existence sonably clear[J nonexistence.”). likely than its court, “[ljiability is *7 According to the circuit addition, In courts have construed other person reasonably clear when a reasonable “reasonably in an unfair clear” the words and law knowledge of facts with the relevant practice statute to demand some de- trade concluded!],] that it was more would have certainty. gree of American Universal ... was likely than not that the insured more Malpractice Ins. v. Medical Joint Under- Co. 50% at fault for the accident.” than Mass., *22 writing 1993 WL 818614 Ass’n of previously not ad (Mass.Super.1993), This Court has court reasoned: “reasonably meaning of clear” dressed the “Reasonably to call for a clear” seems 11—9(f)- Code, Concerning in Va. used W. certainty “reasonably 33— higher than level ” terms, statutory we construction of have our legislative likely would. The choice any definition of “[i]n said that the absence suggest that word “clear” seems to meaning or of words terms used the intended point where reason- matter reached enactment, will, they legislative in a honestly not Lia- minds could differ. able act, given com interpretation of the be their certain, absolutely bility not or need meaning in mon, ordinary accepted doubt, but it must be beyond reasonable Syllabus they used.” in which are connection people enough that reasonable “clear” Hix, 1, Group 123 v. Point Miners Gen. conversely, if agree about it. Put would (1941), 637, 17 overruled on 810 W.Va. objectively is room for reasonable there Rutledge, by Lee-Norse v. grounds other Co. exists, liability then debate about whether (1982). 162, 477 291 S.E.2d 170 W.Va. “reasonably clear.” it is Co., v. Farm Mut. Auto. Ins. com- In Demeo State upon our Based determination (1995), 955, N.E.2d 803 “reasonably Mass.App.Ct. 38 649 meaning of monly accepted 641 court found that “reasonably clear” Inc.,] 477 U.S. ^[242] 255, 106 S.Ct. means that a “reasonable person, with knowl- ^[2505] 2513, 91 L.Ed.2d ^[202] at 216. law, Summary would edge the relevant facts should be denied concluded, reason, good probably dispute have “even is no as to where there plaintiff.” was evidentiary that the insurer liable only facts in the case but as to the conclusions to be drawn therefrom” above, reasoning Based Co., 910, v. Pierce Ford Motor 190 F.2d clear,” liability “reasonably that now hold is (4th denied, Cir.), cert. 33-11^4(9)(f) W.Va.Code, [2002], as stated S.Ct. 96 L.Ed. 666 person, knowledge when a reasonable law, conclude, facts and would the relevant 194 W.Va. at at 336. In 459 S.E.2d reason, good that the defendant liable instant that a we believe reasonable plaintiff. jury could draw conclusions on the different issue whether lia- insured’s We have thus far determined bility reasonably was clear. wrong legal court used the standard determining liability whether reason reason, For the we find that the same W.Va.Code, ably pursuant clear 33-11- ruling circuit court as a erred matter of 4(9)(f). We also that the circuit court believe law State Farm failed to conduct a determining erred as a matter of law an pursuant investigation reasonable to W.Va. generally jury question. that is issue See Code, 33-ll-4(9)(d). Again, the reasonable Pena Prudential, payment Ins. App.1998), reasonably Precision reasonably in bad finder”); its 2000) (noting payment er question for the fact ed omitted)). 1997) (ruling denied in bad faith liability an insurer (Tex.Ct.App.1998) Co. v. 329 faith State Farm of a of a Financial Review delayed In Coil, Inc., became clear is a fact affirmed clear is a 50 S.W.3d Giles, because Syllabus claim after its claim acted because “whether “[w]hether payment of a claim 950 S.W.2d reasonably after we Lloyds, finder”); (holding question for Point Williams v. 495, 504 194 W.Va. bad it denied or 29 S.W.3d held, denied question” an Services, faith 2 980 S.W.2d liability liability Universe Life in clear is ... a insurer n. 6 insurer because part, “[wjheth the fact- (citation (Tex.Ct. delayed delayed became became Inc. v. acted (Tex. (Tex. after that act 459 it jury. 4(9)(d) Bobick tion before ness of an ferent conclusions from the evidence. See ingly, we hold that Mass.App.Ct. terminations” insurer has fused reasonable has become affirmed question ably clear under settlement offer is reasonable are factual de (Mass.2003) (determining that “[w]hether an able ^[2002] information ordinarily [2002] and v. because pay by 439 Mass. investigation denying conducted insurer’s reasonably 1, 3-4, a claim (citations omitted)). Fidelity are jurors can whether whether questions 781 N.E.2d investigation claim, an without clear, & Guar. Ins. based adequate investiga whether 790 N.E.2d 653 often draw an and whether a of fact conducting 33— insurer re is reason is a *8 11—4(9)(f) all Accord liability Co., for the 33-11- avail dif if, “[s]ummary judgment appropriate is from We further find the circuit totality presented, the the evidence the “[liability against court’s conclusion that could not of fact record lead rational trier reasonably was clear at insured nonmoving party[.]” for to find the We ex jury as of the its least the time returned in plained Williams that: February 2001” was verdict error. The record, assessing jury must that a an insured In the factual we fact finds liable after liability simply grant nonmoving party the the benefit of the insurer is not contested inferences, determinations, dispositive “[c]redibility question liability whether the evidence, weighing reasonably agree the was clear. We with the the drawing reasoning appellate legitimate inferences from of the Massachusetts the functions, in jury are not those of a court Bolden v. Worces facts O’Connor Café of ter, Inc., judge[.]” Liberty Lobby, Mass.App.Ct. N.E.2d 726 [v. Anderson claim, faith, Bolden, including of bad will plaintiff in a dram- the issue the In depend jury upon a factual determination of in her shop obtained verdict case knowledge and intent. Ac- [insurer’s] the settled with the defendant favor. then She will not cordingly, need [insurer] the shop assignment of the and received dram dramshop collaterally liability attack the liability insurer. claim defendant’s prove in in [unfair order the sought to plaintiff and defendant then The [defendant- practices] ease settlement appeal in dram defendant’s the dismiss the actually was not liable and there- insured] verdict, but the liabili- shop trial defendant’s also not fore that is liable for [insurer] the prosecute ty sought to intervene to insurer Rather, practices. unfair the settlement in arguing separate unfair appeal, only [de- demonstrate that [insurer] need suit, it would be unable practices claims liability was not fendant-insured’s] “rea- reopen issue of the defendant-insured’s [insured], sonably not to the clear” appellate liability. court affirmed The jury dramshop liability heard motion to judge’s of the insurer’s trial denial case. intervene. notwithstanding put, Otherwise what the first appellate court characterized the The liability jury dramshop concluded about argument as follows: insurer’s liability, what mat- [defendant-insured’s] appeal able to success- [insurer] Were the practices] ters in settlement [unfair goes, fully, argument the result reasonably case [insured] is whether the liable, longer no was then [insured] liability [defendant-insured’s] believed that ... [insurer] would home free clear, was not or was unreasonable in hold- prac- unfair it faces for lawsuit settlement ing long as the that belief. “So insurer explains it thus: it [insurer] The tices. faith, good acts is the insurer not held to could not be faulted settle- [unfair perfection; standards of omniscience having practices] case for not made ment use, leeway consistently and should [insured’s] fair the tort ease once offers employ, judgment.” its honest business liability reasonably became clear because Co., Ins. Peckham v. Continental Cas. at all and its never liable [insured] Cir.1990). (1st F.2d [de- Because liability, accordingly, could never have actual will not fendant-insured’s] reasonably clear. been prac- [unfair be “retried” in the settlement at 732 Mass.App.Ct. 734 N.E.2d suit, tices] conclude that the [insurer] we (footnote omitted). rejecting and citation impair- will be to defend itself without able explained: court argument, ment issues in [unfair on the relevant [un- The issues be determined practices] suit. settlement practices] claim do not fair settlement 66-67, 734 Mass.App.Ct. N.E.2d at 734- actual [defendant-insured’s] fact concern omitted). (footnotes and citations liability. prac- [insurer’s] settlement Accordingly, hold that trial ver entirely could be without fault and tices dict in is found which a defendant liable to a accordingly immune [insurer] injuries plaintiff personal property practices] liability, yet settlement [unfair damage plaintiff not dis- suffered dramshop could still found have positive issues raised an unfair dramshop [defendant-insureds] liable brought by claim settlement liability. show at [insurer] need not *9 plaintiff liability against the defendant’s in practices] that settlement trial [unfair the 33-11-4(9) W.Va.Code, pursuant surer was fault. without [defendant-insured] [2002], plaintiff alleges in the that the which must do there [insurer] What the instead liability unreasonably defendant’s insurer in that its settlement offers is show plaintiffs to claims failed settle the dramshop case were reasonable and made the defendant. faith, given knowledge at good in own case, sum, facts and law in the instant the circuit time of the relevant legal wrong court standard and concerning [plaintiffs’] claim. The res- used the matter of practices] improperly as a law that [unfair olution of the settlement decided Act, reasonably liability was when this was the Unfair Claim clear Settlement Practices jury. general practice an for the circuit court also what constitutes a issue business Act, improperly matter of law decided as a under the and actual malice. As a result areas, qualification to his of whether State Farm failed con- of in the latter issue three Finally, Diaz investigation. permitted testify duct a reasonable Mr. was to that State multiple court too placing erred in much Farm committed violations jury on weight maliciously. Mr. Jackson’s verdict Act and that it did so To this underlying negli- objects. against Ms. Smoot Farm gence determining liability that action agree Farm We with that the circuit Therefore, reasonably find was clear. we in permitting court abused its Mr. discretion granting circuit court sum- erred testify expert application Diaz as an on the mary judgment on Mr. Jackson his of the Unfair Claim Settlement Practices 11—4(9)(d) claims and 33— Act, general what a constitutes business (f), portion and we reverse and remand Act, practice and under the actual malice. 24, April of circuit court’s order. rule, general expert may As a an witness However, we find that the circuit court give opinion not question [or his on a her] properly denied State Farm’s motion for opposed of foreign domestic law [as law] summary judgment. Again, the facts of this or on questions which of matters involve susceptible ease indicate that it is not to a law, expert and an witness cannot instruct summary judgment party on behalf either respect applicable court law on issues of Farm whether con- infringe judge’s on the role investigation a reasonable and ducted wheth- jury instruct on the law. So an Instead, reasonably er clear. expert may testify questions not as to such which these are issues must be decided of law as interpretation of a ... statute jury specific under the facts this ease. meaning ... ease law or the terms Accordingly, affirm we circuit court’s legality ... statute or the of conduct. 24, April 2002 order to the extent that (1996) § 32 C.J.S. at 503-04 Evidence summary denied State Farm’s motion (footnotes omitted). W.Strong, also John See judgment. Evidence, § p. McCormick On Vol. 1 B. Trial Issues (1999) (stating “[r]egardless of the rule concerning admissibility opinion upon alleged Farm ulti- raises several errors facts, law[,] mate not common courts do the unfair settlement trial which law, opinion remand, question allow unless the may again become and issues on (Footnotes foreign issue concerns law.” necessary alleged find it these address omitted.)). errors. However, in 32 the statement C.J.S. Evi- First, alleges Farm error con § provides dence that the rule testimony cerning the of Mr. Jackson’s ex expert permitted an is witness witness, Initially, pert Roger Diaz. we note conclusion, legal it is state modified some- admissibility testimony by an “[t]he way legal if is what issue raised such a expert witness is a sound matter within the necessary operative toas become a fact. See court, and of the circuit the circuit discretion Reinecker, Terrell v. N.W.2d court’s decision will not reversed unless it be (1992). Furthermore, an expert witness clearly wrong.” Syllabus Point Helmick “may properly on an state issue Co., Edison W.Va. Potomac fact, to aid the called S.E.2d 700 understanding facts in evidence even Mr. Diaz qualified circuit court as an though reference to those facts is couched in handling, expert in the areas of claims ad- legal § terms.” C.J.S. Evidence justment, management, and State Farm 506. objection qualifications. has no to these

However, Also, qualified by according Mr. Diaz to Rule 704 of the also was the Evidence, application Virginia testify to of “[t]estimo- circuit court on the West Rules Indeed, it is it is black-letter law that ny opinion an form of inference the judge not but for to objectionable for witnesses the is not otherwise admissible jury applicable principles to instruct as the it an ultimate issue solely embraces because legal system, legal purely In our law. fact.” This to the trier of be decided questions jury and instructions on the applica is “[t]his rule Court stated applied to the the law to be resolution lay expert Based ble both to witnesses. exclusively dispute them is the the before rule, import of this a motion on the clear judge. danger domain of The is that the testimony solely on the basis such made jury may “expert” think that the in the the is In ultimate issue meritless. involves the particular law branch the knows more stead, point to focus on is an the whether ’ judge surely impermissible than an the opinion is ‘otherwise admissible.” Jones — system of law. in our inference Garnes, 183 W.Va. jury does not such (1990). Because the decide Testimony concerning appli the law, testimony pure questions of such is law would not be otherwise admissible cable jury not and so not fall helpful to the does permits 702 which ex W.Va.R.Evid. within literal terms Rule 702[.] the pert testimony that “will assist the trier of fact to the evidence or to deter understand Cleckley, 2 Franklin D. Handbook On Evi- fact in issue.” This is testi mine a because 7-4(B), Lawyers § Virginia dence For West applicable mony on the law does not assist pp. 7-78—7-79 jury determining a nor the issue fact Accordingly, now hold that as jury understanding does it assist the the rule, expert may not witness evidence. give interpretation his or her the of the law as set forth 33-11- Finally, expert testimony concern 4(9)(a) (o) [2002],which defines unfair claim — ing is not applicable law otherwise admis legal practices; meaning settlement superfluous. gen is “It sible because it is section; terms within that code or whether a duty jury that it is eral rule of law party an unfair claim committed settlement apply law from the court and to take the practice in that as defined Code section. it finds that law to the facts as them from the Rather, judge it is role of the trial [jury] instructions are the law evidence. jury on law. this instruct the Based on Flaccus, Nesbitt v. the case.” W.Va. rule, clearly wrong that it was we believe (1964) (citation 138 S.E.2d testify permit court to Mr. Diaz to omitted). Farm’s actions violated Unfair judge trial is the source of the “sole Act Claim Practices or that its Settlement law,” should not and witnesses be allowed “general prac actions constituted business law, just testify on the status of may tice” Act. While Mr. Diaz under the ju- argue forbidden to law to counsel are adjust testify ordinary practices of claims Hearing rors. statements of “the law” ment within insurance and settlement helpful sources would not from several be industry, and whether State Farm’s conduct jurors. conformed ordi the instant case to those

nary practices, testify not as to he legal consequences of that conduct. testimony proper expert’s ... un- [A]n expert improper and 704 if der Rules 702 does We also find testify attempt legal parameters for Mr. Diaz to conduct of not to define the employees agents within which the must exercise State Farm’s indicated However, Again, of actual malice. fact-finding function. when the existence necessarily testimony jury’s testimony is to is not inadmissible un purpose of direct the testimony understanding legal permits der 704 which on an standards Rule based, jury. must to be decided which their verdict be ultimate issue However, testimony is un testimony not be A wit- inadmissible should allowed. ness, non-expert, simply der because it does not expert should Rule assist of fact to the law the case. the trier understand allowed define *11 testimony evidence or to determine a fact in issue. from Mr. Diaz that he did not jurors industry After the are informed of many know how claims State Farm handles practices adjustment of claims and settle- year office, in a in Wheeling its Maryland ment, the nature of State Farm’s conduct in office, in Virginia, in West the Eastern Sea- case, applicable the instant and the law con- region, board and in the entire United malice, cerning they capable are as as Mr. States. State Farm’s counsel also elicited Diaz to determine whether State Farm’s con- testimony from Mr. Diaz that he had not duct indicates the existence of malice. analysis conducted statistical to determine Therefore, opinion Mr. Diaz’s on this issue many how “number of claims it would to take does not assist but merely rather is be measured number violations Further, cumulative. Mr. because Diaz has of an act it statistically before becomes val- recognized expert, been as an there is a id.” jurors danger may that consider him more This qualified Court has not to indicated a statisti determine the issue of malice they analysis necessary than cal prove general are. practice business under 33-11- by The second issue raised Farm is 4(9). In Dodrill v. Nationwide Mutual Ins. refusing the circuit court erred Co., 1, (1996), 201 W.Va. 491 S.E.2d 1 we allow State Farm’s counsel to make full in- necessary discussed the evidence to show a quiry regarding of Mr. Diaz his lack of statis- general practice business as follows: tical support data to his that State Farm violated the Unfair Claim Settlement perceive We the discussion of a Act general practice. Practices as a business “general practice” past business in our alleged We find no to this merit error. generally question eases addressed the numbers, in terms of e.g.,

A of this rule Court is that the number of “[t]he practice extent the cross-examination of a claims which witness the same has been used, is a matter within the sound discretion number violations of W.Va. court; Code, 4(9) and in the exercise of such evidence, shown 33-11— discretion, excluding permitting ques or and the number of scenarios.... [T]hose cross-examination, tions on its action is not employment cases make clear of a except in reviewable case of manifest abuse single, particular practice in forbidden injustice.” Syllabus or Point v. State Car handling of several claims can define (1956). duff, 142 W.Va. 93 S.E.2d 502 general practice!.] business Moreover, right of “[t]he cross-examination 201 W.Va. at S.E.2d 13. addi- subject is not an unlimited one and it is tion, Co., v. Penney Jenkins J.C. Cas. Ins. discretionary power of a circuit court to 167 W.Va. 280 S.E.2d 252 or restrict limit such cross-examination “proof indicated that of several breaches justified.” Syllabus where it is Point company W.Va.Code, an insurance 33-11- Hankish, 147 W.Va. S.E.2d 4(9), would ... be sufficient to establish (1962). In its decision restrict or limit general practice!,]” business and we further cross-examination, the circuit court con that, suggested such importance sider factors as “the [party’s] evidence to the [its] relevance Proof of other violations in- same confusion, danger prejudice, ... and the company frequen- surance to establish the delay sought raised the evidence to be cy can issue be obtained from other claim- Bradshaw, adduced.” State v. 193 W.Va. attorneys ants and who have dealt with 457 company such agents, and its claims any person who is familiar with

During the direct examination of Mr. Diaz, company’s general practice in business specific he testified of several re- cases gard alleged show that Farm’s to claim unfair settlement. Such informa- settle is, course, subject discovery, ment in Mr. Jackson’s claim tion consti practice. appears tuted a Legislature business On cross- intended examination, W.Va.Code, 33-11-4(10), counsel elicited require *12 (d) subsections violations under maintain have been companies to records

insurance (f). and against it. complaints filed on Diaz shows that Mr. tes The record (footnote at 260 280 S.E.2d 167 W.Va. involving Virginia in to four eases West tified omitted).4 which, opinion, same Farm in in his State Therefore, applicable law on in of our view We do type unfair conduct was involved. of prac- general of a business the establishment court abused its that the circuit not believe 33-11-4(9), not we do tice under this to be permitting in evidence discretion its dis- circuit court abused that the believe above, in As Jenkins admitted. mentioned Farm’s cross-exami- limiting State cretion plaintiff may show that a this Court indicated analysis. of statistical nation on the issue by practice presenting general a business cross- also State We believe insur proof of violations the same other sufficient to of Mr. Diaz was examination company claimants obtained other ance support his factual challenge Mr. Diaz’s through discovery from the attorneys or and engaged in a Farm had assertion State company. appears This insurance defendant of unfair settlement general practice business what Mr. did this case be Jackson practices.5 practice. prove general a business order to “[r]ulings on the We have held circuit that the Farm next contends State largely a admissibility within of evidence are permitting Mr. Diaz to offer court erred should court’s sound discretion and testimony of actions filed other disturbed unless there been Farm, admis- According to State Farm. Syllabus Point abuse of discretion.” pun- this invited the sion of evidence 317, 315 Peyatt, 173 W.Va. on the conduct de- ish Farm based addition, in violation of the other scribed cases Amend- process of the Fourteenth due clause of [although Rules 401 and 402 ment, strongly value of this evidence Virginia and the Rules Evidence West outweighed by danger of substantially much encourage admission of as evi- and prejudice, confusion of the issues possible, unfair Rule 403 of the West dence as- misleading jury. Farm also this Virginia of Evidence restricts Rules progeny, by requiring balancing its a policy that under serts Jenkins liberal logically Settle- whether only of the Unfair Claim interests determine subsections Spe- legally Act which Jackson relevant is relevant evidence. Practices ment although cifically, provides that Rule 403 permitted to introduce evi- should have been relevant, be ex- practice evidence nevertheless relating general a business dence preju- danger of unfair would when the handling of other insureds cluded claims distinguished practice” fair plaintiff and can be made clear that a can 4. We also have by showing minds from an isolated event. practice prove general business practices in the same several unfair settlement complains that the circuit 5. State Farm also Syllabus Point 4 of Dodrill We held in claim. expert, prohibiting court erred in State Farm's that: Kelley, testifying as to whether State Don private maintain a action based To Settlement Prac- Farm violated the Unfair Claim W.Va.Code,33-11-4(9) in alleged violations practice. Act as a business tices claim, single of a insurance the settlement ruling, pre-trial in a the circuit record shows that that the conduct evidence should establish permit- Kelley would not be court said that Mr. single than a viola- question constitutes more testify agents and em- ted to that State Farm’s W.Va.Code,33-11-4(9), that the viola- tion ployees with malice because State did not act separate, or discrete acts tions arise from through bring Farm could in such evidence settlement, claim and that testimony employees. in the agents omissions cir- habit, custom, usage, they or arise from this indicated that it would revisit cuit court that, insurer, However, viewing policy of the so business Mr. Diaz testified. issue after whole, Kelley proffer the finder of fact is Mr. as a witness at the conduct as a Farm did not expert practice light above that that the or trial. In of our decision able to conclude testimony sufficiently the ab- sufficiently pervasive not offer sanc- witnesses should are malice, presence we do not find it company that the con- sence or necessary the insurance tioned alleged "general error. to address business duct can be considered dice, confusion, delay dispro- attorney represent undue defense an insured portionate matter, the value the evidence. attorney’s obli ethical gations Derr, are owed the insured and not to Syllabus Point State v. 192 W.Va. *13 165, company pays insurance that for the 451 S.E.2d 731 In instant attorney’s 7, Syllabus carefully the circuit court services.” Point Bare instructed the jury Inc., relating Companies, that to v. evidence other cases DPIC 215 W.Va. field 544, (No. Farm 31226, 25, State was offered for the sole S.E.2d June purpose proving general 2004). of Therefore, business generally lawyer for practice of State Farm and should not be subject is not insured to the Unfair to considered determine whether State Farm Act, Trades Practices of which the Unfair committed unfair settlement part, Claim Settlement Act is a Practices Therefore, against Mr. Jackson. we do not agent he or she is not an of the insurer so that believe the circuit court its abused dis may imputed his or her conduct to in cretion its admission of four in other eases Syllabus the insurer. We made in clear Virginia involving West Farm.6 Point 10 of Barefield: Next, Farm avers that company An insurance cannot be held court in admitting erred of evidence conduct liable Virginia the West Unfair by the insured’s in defense counsel the un- Act, W.Va.Code, Trade Practices 33-11-1 derlying support argument tort in ease 10, attorney the actions of a defense agent defense counsel was of insured, retained to defend an when the purpose imputing Farm for the of bad faith attorney’s strategy defense and tactics are conduct State Farm. Mr. Jackson denies attorney’s a result of independent, pro- litigation conduct was admitted at trial fessional regard rep- discretion with to the of evidence State Farm’s bad faith. Rath- client-insured, resentation of the and are er, Jackson, says Mr. all such evidence was not otherwise relied or ratified purpose allowing for the sole of him to con- company in contrary insurance a manner vey jury how State Farm’s denial Act. his claims resulting litigation and the caused annoyance, inconvenience, distress, anguish, However, we also held that “[t]he conduct of worry. company an person insurance in other having Without to decide whether or during pendency business of insurance litigation attorney not conduct an may support lawsuit cause action un- below, improperly admitted note re Virginia der the West Unfair Trade Practices very cent of this decisions Court address this Act, W.Va.Code, Syllabus 33-11-1 to -10.” principles issue and applied their should be Further, Point in we stated Barefield. in a retrial. the recent ease Rose St. Rose, supra, Syllabus Point that: Co., Paul Fire and Marine Ins. 215 W.Va. A claimant can establish a violation of (No. June Virginia the West Unfair Trade Practices 2004), Syllabus we held in Point 5 “[a] Act, W.Va.Code, -10, by 33-11-1 to show- attorney employed by defense who is an in ing company, through that an its insurance company represent surance insured actions, own breached duties under the engaged is not matter the busi by knowingly encouraging, directing, Act attorney ness of insurance. The defense in, participating relying upon, ratifying subject directly provi not therefore Virginia wrongful litigation sions of the West Unfair Trade conduct of a defense Act, W.Va.Code, attorney Practices 33-11-1 to—10.” company hired the insurance Also, company represent “[w]hen an insurance hires an insured. However, alleges general practice.

6. Farm also error the admission business the circuit Campbell subsequently jury of evidence of the Utah case of v. State court instructed the that the Fann, (2001), agreed P.3d reversedand remand- United States to re- Court had ed 538 U.S. 123 S.Ct. 155 L.Ed.2d view that case and because its was not final, which was introduced Mr. lack- should not consider that case on during practice. son trial as evidence of State Farm’s the issue of a business Farm’s motion for a new that denied State adequately address- that this law believe We which trial. any litigation conduct issue of es in a retrial.

arise proceedings this remand matter We Finally, alleges several errors opinion. Farm with this inconsistent award Mr. Jackson in connection reversed, Affirmed, part, No. 31372— damages. to address We decline punitive part, and remanded. remand, However, on alleged errors. these and remanded. No. 31643—-Reversed again punitive damages should the issue DAVIS, concurring: Justice any puni assess circuit court should arise the majority opinion has proceeding In this damage light Court’s award tive *14 trial, granted Farm a reversed the State new Corp. Alli holdings in Production v. TXO ruling on summary judgment circuit court’s 457, 419 Corp., 187 W.Va. ance Resources Jackson, and af- in favor of Mr. an issue 443, (1992), 113 aff'd, 509 870 S.E.2d summary of circuit court’s denial firmed the (1993) 366, 2711, and 125 L.Ed.2d S.Ct. I Farm. concur the State 656, Fleming Landfill, 186 v. W.Va. Garnes I have of each of these issues. resolution (1991), holdings and 413 897 the separately to address two chosen to write in BMW Supreme Court United States of I to be useful to the issues which believe America, Gore, 559, Inc. v. 517 U.S. North of this case. resolution (1996) 1589, and 134 L.Ed.2d 116 S.Ct. Camp Using Farm Mutual Auto. Ins. Co. v. Evidence of an Insurer’s State A. 408, 1513, bell, 538 U.S. S.Ct. in a Out-of-State Conduct (which (2003) L.Ed.2d 585 was decided since Action Bad Faith below).7 unfair trial the settlement proceeding Mr. Jackson introduced this by Farm of bad faith conduct State evidence

rv. litigated in a ease the state that was filed Although permitted trial court the Utah. Conclusion evidence, jury that it instructed the the the reasons, foregoing we affirm the For the being by case was reviewed the United Utah April 2002 order of the Circuit Court Here, Farm Supreme State States Court. County to that it denied Brooke the extent assigned admission of this evi- error the summary judgment Farm’s motion for State majority opinion glossed The over dence. violation of issues of State resolving in a without the issue footnote 33-ll-4(9)(d) (f) W.Va.Code, puni- and and important believe this is an feder- matter. I However, cir- damages. we reverse the tive issue, Farm al constitutional because State grant- that it cuit court’s order the extent Campbell, 538 Mutual Insurance v. summary judgment to David M. Jackson ed (2003) L.Ed.2d 585 S.Ct. Farm’s violation of on the issues Supreme all Court instructed United States (f). 33-ll^(9)(d) they nation on how are to treat courts evidence, Likewise, lawful out-of- January 2003 such when it involves reverse the we by County an insurer.1 state conduct of the Circuit Court of Brooke order give by errors in the circuit court’s refusal to Farm are that the several 7. Other issues raised pro- refusing by jury proposed to strike a circuit court erred numerous instructions light spective juror for cause in of his comments alleged are raised absent Farm. These errors Jackson; potential in favor of Mr. bias arguments supporting and case law and will not denying mo- erred in State Farm’s circuit court be addressed the Court. prohib- where State Farm was tion for a mistrial dire; meaningful conducting a voir ited from binds us not 1. The Court’s decision grant refusing erred in a the circuit court supremacy only a matter of under the as federal use of based on Mr. Jackson’s counsel's mistrial Constitution, Aaron, Cooper see United States closing argu- "golden argument rule" in his 3 L.Ed.2d 358 U.S. S.Ct. Finally, urges application of State Farm ment. a matter of State Constitutional but as we re- cumulative error doctrine. Because I, (.. § 1 .’’The law well. W. Va. Const. Art. grounds and the trial verdict on other verse is, remain, Virginia trial, of West and shall one unnecessary find remand for a new it Finally, alleges of America. The Constitu- Farm of the United States issues. address these Campbell. background regarding 1. Factual rule the introduction of Campbell first-party bad faith action was a “lawful” out-of-state conduct evidence against that was filed defendant.3 held: insurer Utah. The plaintiff previously had been sued as a may pro- Lawful conduct be out-of-state result of an accident. The ver- automobile bative when it demonstrates deliber- liability policy coverage. dict exceeded his culpability of ateness and the defendant’s judg- pay The insurer refused to the excess tortious, action in it is but State where plaintiff thereafter ment. The instituted that conduct must a nexus to have During bad faith claim his insurer. specific plaintiff. harm A suffered trial, plaintiff Campbell the course of instructed, furthermore, jury must be sought prove that the insurer had a na- use evidence out-of-state policy engaging in bad faith tionwide con- punish conduct to for action defendant contention, prove plaintiff duct. To jurisdiction that was lawful in where it was of “all allowed introduce evidence occurred. types” of lawful conduct that out-of-state committed the insurer. eventu- punished A defendant should ally plain- in favor of returned verdict *15 plaintiff, conduct that not harmed the for plaintiff tiff. The million in was awarded $1 being unsavory an individual business. compensatory damages and million in $145 courts, process in permit Due does not the punitive damages. supreme the Utah After damages, adjudi- punitive calculation of judgment, court affirmed the the United parties’ hypotheti- cate the merits of other Supreme granted States Court certiorari. cal claims a defendant the by Supreme ofOne the issues addressed the guise reprehensibility analysis.... of the Court involved the use of insurer’s lawful Punishment on bases creates these the out-of-state conduct. possibility punitive multiple damages using 2. Guidelines for evidence of an conduct; awards for the for in same the insurer’s conduct. out-of-state Justice nonparties usual not bound case are the Kennedy, writing majority Camp- for the in plaintiff obtains. some other bell,2 general rule, plain- a indicated as a 422-423, Campbell, 538 U.S. at S.Ct. at tiff cannot of lawful or introduce evidence (citations 1522-1523, 155 L.Ed.2d at 604 defendant, unlawful a out-of-state conduct omitted). essence, Kennedy In Justice con- purpose punishing the sole the defen- nexus cluded there was no between the dant. The court stated: lawful out-of-state conduct insurer and punish A cannot a defendant complained plaintiff. conduct the the conduct that lawful have been where Campbell, at S.Ct. at Nor, rule, it occurred. as a a does 155 L.Ed.2d at 605.4 legitimate impos- in State have concern court, plaintiffs Before the Utah the were ing punitive punish damages defen- pertaining permitted to introduce evidence dant for unlawful acts committed outside of planning performance, Farm’s re- jurisdiction. the State’s policy PP PP policy. view or & R The & R Campbell, 588 123 S.Ct. at practices business pertained State Farm’s omitted). (citations 155 L.Ed.2d at 603 twenty years for over in numerous states.

Later, fact, however, Campbell opinion, in no relation to a In these bore claim, exception third-party out an insurance the Court carved automobile 4.Although opinion explicit, ap- America ... tion of the United Shall be was States land.”) supreme pears law of the that the find reversible error Court did not improper in the admission of the evidence be- justices 2. Three in the case. dissented cause other admissible evidence was sufficient to punishment. warrant only Campbell involved 3. Since the facts in law- conduct, out-of-state did not ex- ful applied pressly exception state that its to unlaw- out-of-state conduct. ful light principles in set the issue underlying Campbell’s com- addressed type of claim Campbell. determining, Supreme Court company. In out plaint against the inadmissible, evidence indicated, Campbell previously As I Campbell held: court dollars plaintiff one-million awarded the scant Campbells identified evi- have damages and one hundred compensatory sort repeated misconduct dence damages. punitive forty million dollars five injured Nor our review of them. does Supreme appeal In its to the United States us that convince court’s decisions the Utah Court, argued that amount of the insurer only punished for its ac- Farm was process. damages due punitive violated Although Campbells. evi- toward the tions Supreme agreed with the insurer. Court not be identical of other acts need dence so, following: doing opinion indicated the puni- calculation of have relevance impose bright-line again to We decline court erred here damages, the Utah tive punitive damages award can- ratio which a pertaining to claims that because evidence jurisprudence not exceed. Our third-party law- nothing to do with a had demon- principles it has now established length. Other evi- introduced suit was however, that, strate, practice, few concerning reprehensibility was dence exceeding single-digit ratio be- awards tangential. example, the For more even compensatory dam- punitive and tween criticized Court Utah satisfy degree, ages, significant to a will personal investigation into the life Farm’s process.... ratios are not due While these and, employees in a broader of its of one They they binding, are instructive. dem- approach, manner which State Single- what should be obvious: onstrate employees. policies corrected comport multipliers likely to digit are more *16 1523, 423-424, 123 at 538 408 at S.Ct. U.S. process, achieving the with while still due at 605. 155 L.Ed.2d retribution, goals of and deterrence State’s concluding held: In the Court [greater] ratios.... than awards with case, Campbells the have In this because 1524, 425, at Campbell 538 at 123 S.Ct. Farm similar to conduct shown no (citations and 155 L.Ed.2d at 605-606 inter- them, conduct that harmed the that which omitted). quotation nal marks only conduct is the relevant harmed them damages Campbell punitive the reversed analysis. reprehensibility to the . award and the case to the Utah remanded 1524, 424, 123 155 408 at S.Ct. 538 U.S. of the supreme court for reconsideration at 605. L.Ed.2d remand, supreme award. the Utah On Campbell summary, ruling in on the In the damages punitive award court reduced the is lawful out-of-state of a defendant’s use conduct war and held that the “insurer’s Virginia. courts of West binding on the $9,018,780.75, damages punitive of ranted require- ruling on the Campbell based special compensatory and nine times the of the Due Process Clause ments the Camp damages distress[.”] for emotional Camp- Insofar as Amendment.5 Fourteenth Co., Ins. 2004 bell v. Farm Mut. Auto. based, constitutionally I be- ruling is bell’s (Utah 2004). 23, Apr. Bar 869188 See WL ad- majority opinion should have lieve the Oates, Cal.App.4th 14 Cal. dis v. this matter. dressed 89, (2004), Cal.App.4th Rptr.3d Assessing Whether B. The Standard (2004) (“[I]n light of re Cal.Rptr.3d Damages Are Excessive Punitive laid down process constraints cent due Supreme States Court Farm also as- the United instant In the Campbell, we amount of Farm Mutual Insurance signed on the issue the error modify punitive damages award jury. shall the damages punitive awarded million, and affirm million to $1.5 the is- from majority opinion $7 declined to address modified.”). But see Reat being granted. trial was a new sue because Resources, Kraft, 2004 Inc. v. WL majority opinion should have ta I believe the See supra 5. fh. 1. Mar.9, 2004) (“Reatta liability plain (Tex.App.-Dallas people, *2 is so that reasonable knowledge apparent not shown error the face of the relevant facts and law, merely by pointing honestly to a 33 to 1 could not differ on

the record the con- punitive compensatory damages ratio of clusion that is the defendant-insured liable Therefore, damages. plaintiff. are unable to con- punitive the ratio alone clude I believe this definition accords with the excessive.”). damage award is contrast, meaning In usual of “clear.” there majority is little no between the difference I foregoing, In view of concur. opinion’s “reasonably definition of clear” and “preponderance the common definition of Justice, MAYNARD, concurring, in Chief the evidence” which circuit court used dissenting, part: and part, improperly granting partial summary judg- disposition I concur in the ultimate light majori- ment to Mr. Jackson. In of the combined cases. I also concur with these definition, opinion’s likely ty it is majority law articulated in new judge why court will below wonder his However, Syllabus 5. I Points and dis- summary judgment is order reversed. law on is sent when “reason- addition, disagree In I strongly with the ably Syllabus clear” as forth in set Point treatment, cursory majority opinion’s strongly I majority opin- dissent to punitive damages Although issue. we re- punitive damages ion’s treatment is- grounds, verse remand on other sue. punitive damages propriety of the award be- First, agree majority I do not with the argued low was briefed and before “reasonably opinion’s definition of As clear.” addition, parties In of both Court. the briefs majority opinion, noted the usual defi- cite the United States Court ease of “plain.” nition of clear is “evident” Farm Mutual Automobile Ins. Co. v. addition, have other courts construed the Campbell, S.Ct. “reasonably signifi- demand a words clear” to L.Ed.2d 585 which was decided since degree certainty. quoted, As cant but highly trial Campbell below. relevant subsequently majority ignored, by opin- type both which of evidence ion, American Ins. Co. v. Medical Universal prove appropriateness pu- admitted *17 Malpractice Underwriting Joint Ass’n of damages punitive nitive whether a well as Mass., *22 (Mass.Super.), 1993 WL 818614 excessive, damages award is both of which provides: Nevertheless, are issues this ease. “Reasonably seems also to call clear” majority opinion merely refers this landmark certainty higher a than for level of “rea- to com- ease court without further sonably legislative likely” The would. giving him a ment and without clear road- sug- to choice the word “clear” seems map. point that a gest the matter has reached Campbell, brought In insureds an ac- honestly could not where reasonable minds insurer, Farm, tion their to Liability absolutely differ. be need to recover for bad-faith failure settle within certain, doubt, beyond but it reasonable policy damages limits and for fraud and enough must that be “clear” reasonable A intentional infliction of emotional distress. it. people agree would about Put con- million in awarded the insureds $2.6 objectively versely, if for there is room compensatory damages million in $145 liability reasonable debate about whether damages, trial punitive which the court re- exists, “reasonably then it is not clear.” respec- million $25 duced million and $1 During in- this Court’s consideration Supreme tively. appeal, On the Utah Court cases, syllabus proposed point I new stant punitive damages million reinstated the $145 “reasonably clear” as definition of Supreme award. The United States Court follows: subsequently punitive damages reversed it to “Reasonably as stated in award because it found be “neither clear” W.Va. 33-ll-4(9)(f) proportionate wrong § nor Code means that reasonable jurisdiction.” apply laws of their relevant arbitrary committed,” irrational and “an (citation 421-22,123 at 1522 at S.Ct. property of the defendant” of the deprivation omitted). Amendment. Fourteenth violation at Campbell, 538 U.S. Farm v. improper that evi- conclusion The Court’s conclusion, reaching this 1526. at S.Ct. Campbell specifically was admitted dence type of Supreme discussed Court that, finding was based on proving may be admitted evidence punitive damages to courts awarded The damages. punitive appropriateness no conduct that bore punish and deter sought show Campbell insureds A harm. defen- [insureds’] to the' relation Farm reprehensible conduct of State acts, independent dant’s dissimilar Farm’s busi- introducing of State evidence premised, which the acts years numerous practices for over ness punitive may as the basis not serve found evidence be The Court states. punished damages. A should be defendant First, that “[a] said improper. the Court plaintiff, conduct that harmed punish a for conduct cannot defendant unsavory being an individual not for it oc- may lawful where have been business. at 1522 123 S.Ct. 538 U.S. at curred.” 422-23, 1523. The 123 S.Ct. at at omitted). (citations explained, The Court explained: Court further however, that may proba- conduct out-of-state scant evi- Lawful have identified [insureds] it demonstrates the deliberate- sort repeated tive when misconduct of the dence ac- culpability of the defendant’s ness and injured Nor does our review them. tortious, but it is tion in the State where convince us that courts’ decisions the Utah a nexus to the conduct must have only punished for its ac- Farm was A plaintiff. specific harm suffered Although evi- [insureds]. tions toward the furthermore, instructed, jury must be acts need not be identical dence of other out-of-state it not use evidence puni- in the calculation have relevance for action punish defendant conduct damages, court erred here tive the Utah jurisdiction where that was lawful pertaining to claims that evidence because occurred. third-party nothing law- to do with had (citation length. Other evi- 422, 123 was introduced suit at 1522-23 538 U.S. S.Ct. reprehensibility was omitted). that, concerning Second, dence expounded the Court example, the rule, tangential. For legitimate no even more as a criticized State damages Court punitive Utah imposing “in concern personal life investigation into the acts commit for unlawful punish a defendant and, employees in a broader jurisdiction. Any of its one of the State’s ted outside *18 in which approach, manner State the adjudication of conduct that occurred proper corrupted employees. policies require persons would to other outside Utah justify attempt to the inclusion, and, parties, [insureds’] the The to those their case, upon this unrelated testi- courts, to court’s reliance would need in the usual Utah $185,849. first, insurer, Farm refused to cover against At State action their 1. The insureds' $135,849 liability. .Farm, counsel re- in excess Its bad the an excess verdict was what we call insureds, may put "You want to marked to the that the driver in- claim. The facts were faith your property get things signs to on by attempted pass vans for sale six sured State Farm Moreover, post moving.” Farm refused to highway traveling when his vehicle on a two-lane supersedeas driver to bond to allow insured in which a in a three-vehicle accident was involved result, against judgment As a appeal him. killed other vehicles was driver of one of the his own counsel to remaining the insured driver obtained vehicle was driver of the and the pend- appeal appeal While was ensuing wrongful the verdict. permanently In the disabled. agreement action, ing, reached an insured driver insisted the insured driver and tort death whereby agreed plaintiffs plaintiffs with the Farm contested was not at fault. State that he against the their claims poli- not to seek satisfaction of for the offers to settle and declined claimant). exchange, agreed $50,000 ($25,000 the insureds per A insureds. cy limit of Farm and pursue a bad faith action driver was 100 jury that the insured determined attorneys. plaintiffs’ fault, represented returned for to be percent and a at ages mony theory dollar of at each recovered.” S.Ct. profit by underpaying third-party a 1524. made claimant is the same as a dollar made analysis Based on Court’s first-party a For

underpaying one. the Campbell, syllabus I proposed three new stated, already argument reasons is points, all of which are taken verbatim reprehensibility guide- unconvincing. The Campbell. proposed syllabus points, These post permit expand does not courts to rejected by majority, which were are scope may so that a the case defendant follows: malfeasance, punished any which in be (cid:127) In prac- a claim for unfair settlement 20-year period. this case for a extended 33-11-4(9) § tices under W.Va.Code In this because [insureds] have punish a cannot a defendant shown conduct similar to no State Farm may for conduct that have unlawful been them, that which harmed conduct that Nor, rule, where it as a occurred. only harmed is the conduct them relevant legitimate does a have a concern reprehensibility analysis. imposing punitive damages punish a de- fendant for unlawful acts committed out- 423-24, 538 U.S. at at 1523-24 S.Ct. jurisdiction. side of the State’s (citation omitted) (footnote added). (cid:127) In a claim unfair settlement Campbell further Court discussed 33-11-4(9) (2002), § under W.Va.Code law- constitutional limits on ratio between the may probative ful conduct out-of-state be damages compensatory amount of the award it when demonstrates the deliberateness punitive damages and the award. While the culpability of the defendant’s action in impose bright-line Court a declined ratio tortious, it is but that State where punitive damages which a cannot award ex- specific conduct must have a nexus to the ceed, opined practice, it that “in few awards plaintiff. harm A suffered exceeding single-digit puni- ratio between instructed, furthermore, must compensatory damages, signifi- tive and to a may not use evidence out-of-state con- degree, satisfy process.” cant will due punish duct to a defendant for action that 123 S.Ct. at 1524. The Court jurisdiction was lawful in the where it oc- explained multipliers “[s]ingle-digit are curred. likely comport process, more with due (cid:127) constitutionality In assessing the of a achieving goals still

while the State’s of de- punitive damages, award due retribution, terrence and than awards with clause, process single-digit multipliers are However, ... range ratios in 145 to 1.” Id. comport process, likely more with due greater than previ- ratios those have goal achieving while still the State’s ously upheld comport pro- with due retribution, awards deterrence and than particularly egregious cess “a act where However, greater greater ratios. ra- only amount resulted small may comport process tios with due where a damages.” [BMW economic North particularly only egregious act results America, Gore, Inc. 517 U.S. damages. small amount of converse is L.Ed.2d S.Ct. compensatory damages also true. When (1996)]_The true, how- converse also substantial, ratio, perhaps are lesser compensatory damages ever. When are equal only compensatory damages, may *19 substantial, ratio, perhaps then a lesser pro- limit reach the of the due outermost only equal compensatory damages, can to guarantee. cess pro- limit of the reach the outermost due remand, upon On if called to assess the guarantee. cess damages punitive of a appropriateness award, at 1524. the trial court is bound to follow the S.Ct. The straight that must rules which are Court concluded “courts ensure above taken punishment Campbell. Significantly, Campbell that of is both is based the measure rea- proportionate the amount of of Federal sonable and to on the Due Process Clause the plaintiff applies harm and to and to all of the states. the dam- Constitution the America, Inc. v. do for conduct.” BMW North Unfortunately, although I not know of 559, 575,116 Gore, certain, majority 517 U.S. S.Ct. I that the of this Court fear (1996). that syllabus 134 L.Ed.2d With rejected proposed points be- these mind, fervently thought in a of Farm’s Campbell. I review State it does not like cause reprehensibility Camp punitive damages breathtaking in the a hope that the next time words, Court, worthy majority bell In the by this case is note. award is reviewed the majority in justice opinion, that by Supreme the six the abide the United States will huge victory to Farm: Campbell, granted if it end a State decision in even does Court’s Campbell’s holdings. agree with not like acknowledge that Farm’s [W]e must State ordinary that citi- rule of law demands Camp- handling of the claims the they which do not follow laws with zens praise. no trial bells court merits Likewise, by judges agree. we as are bound employees found that State Farm’s altered controlling precedent. Campbell is the legal Campbell company’s records to make the land, every- applied it must be law the and culpable. Farm appear less State disre- States, including in in where the United garded overwhelming lia- likelihood Virginia. West that, bility probability near-certain and the trial, concur, by judgment in above, taking the case a forth I For the reasons set policy dissent, of the limits would be award- excess part, part. and in amplified Farm harm ed. State concurs, part, MAYNARD assuring Campbells Chief Justice first their assets dissents, right part, and and reserves and any safe from verdict would be separate opinion. them, to file a postjudgment, put telling a later sign on for-sale their house. and concurs reserves the Justice DAVIS 408, 419, Campbell, v. 538 U.S. State Farm opinion. right separate to file L.Ed.2d S.Ct. concurs and Justice McGRAW reserves description given is And this opinion. right separate file majority us the Court McGRAW, Justice, concurring: to State Farm. favorable along I would separately Ginsburg, I write to note that Justice who dissented court, Thomas, lower but have voted to affirm the and in the Justices Scalia filled de- case, lacking company upon embark plaintiffs’ sufficient tails of which was based course, necessary to I it concur with upon alleged find nationwide State Morever, majority. “Performance, I Planning the decision of the scheme called the & majority parties Ginsburg As program. write because the Review” Justice ex- Supreme plains, Campbells proved of the have made mention to the satisfac- Campbell,1 Farm tion Farm Court’s of the Utah Court that State had: as a case that lower court should consider program PP R demonstrated & case, in that remand. The defendant adversely regularly and affected Utah resi- Farm, instant like the defendant Summers, Ray ac(juster who dents. Farm,2 was accused of what we Campbell who handled the case and was a call “bad faith.” In order view deci- employee Farm Utah almost context, may proper in its informa- sion twenty years, described several methods underlying for all tive to be aware deny Farm to claimants fair used conduct that case. benefits, example, falsifying or with- holding A of evidence in claim files. com-

The U.S. Court stated tactic, recounted, was most indicium of reason- mon Summers “to important “the character, damages unjustly reputation punitive attae[k] award ableness credibility reprehensibility of the claimant and degree mak[e] defendant’s *20 408, 1513, separate 2. is made 123 S.Ct. L.Ed.2d 585 No assertion in this 1. 538 155 necessarily defendants the same (2003). that the two entity. are

655 magnitude notations to that effect in the claim to discourage file could prejudice create in claim the event the activity. Farm from its unlawful jury.” ever came before a State Farm It is in the context of this heinous conduct Noxon, manager testified, Bob Summers pass one should on the size of to a resorted tactic of this in order punitive Unfortunately, award. ma- Campbell ease “instruct[ed] when he Sum- jority justices of the nine did not focus on Ospital mers to write in the file Todd degree reprehensibility “the of the defen- (who accident) was in speed- killed was conduct,” Gore, supra, dant’s but instead ing way because he on his to see a chose to jury’s judgment substitute the “[tjhere truth, pregnant girlfriend.” 431, Campbell, their own. 538 U.S. at 123 pregnant girlfriend.” was no (2003) S.Ct. at 155 L.Ed.2d at 610 Campbell, 538 123 S.Ct. at J., Nonetheless, (Ginsburg, dissenting). it is (2003) J., 155 L.Ed.2d at 610 (Ginsburg, dis- noting worth these facts because the truth is (some senting) quotations internal and cita- too in often lost the excitement that sur- omitted). tions if besmirching reputa- As large rounds a quick award. The media is to tion of a dead man before the were not report award, a multi-million dollar but often enough, plan also destroying key involved report slow to giving the conduct to that rise documents, files, padding and “has func- award, Opinion if pages quick at all. are to tioned, function, to continues as an un- parrot lawyer’s the defense comment that the lawful deny scheme ... to benefits owed “excessive,” “outrageous” verdict is but by paying consumers out than less fair value usually silent explaining when comes to in preset, arbitrary payout order meet facts behind the headline.3 targets designed corporate prof- enhance (internal quotations its.” Id. and citations judge It is not high ours to whether the omitted). Finally, damning, and most Jus- right thing reducing Court did the the 145 Ginsburg tice remarked: million Campbell, dollar award in but it is The trial court further determined that the vital that we not be blinded the sheer size jury could policy find State Farm’s “delib- of an award considering validity. when erately prey crafted” on consumers who my As noted dissent Kocher v. Oxford unlikely would be to defend themselves. — -, Company, Insurance W.Va. Life regard, In this trial court noted the (No. 31539, 17, 2004), 602 S.E.2d 499 June testimony of several former Farm shy away large courts should not from a employees affirming they were punishment, if the all defendant received target trained “the weakest procedural protections just requires, our law elderly, poor, herd” —the and other because the concep number hard for us to knowledgeable consumers who are least very wealthy tualize. Sometimes defendants rights about them and thus most vulnera- subject very must large damage deceit, trickery ble or who have little awards, if that is what it will take to deter money and hence have no real alternative Simple future antisocial conduct. ratios are accept inadequate but to offer to settle unlikely produce justice complex, real a claim at much less than fair value. world cases. Campbell, 538 U.S. at S.Ct. 1528- (2003) J., majority’s I echo 155 L.Ed.2d at (Ginsburg, recommendation (internal dissenting) quotations the retrial this case be citations and conducted accord omitted). Furthermore, longstanding damages with our Campbells jurispru in- Fleming Landfill, troduced local dence found Garnes v. evidence State Farm Inc., managers (1991), instructions were under to not re- W.Va. S.E.2d 897 port any judgment against Corp. them less than TXO Production v. Alliance Resources dollars, only Corp., million and that an award 187 W.Va. See, Miltenberg, Chemerinsky, Aug 3. Ned Erwin Trial 18 Pu- Smith, Romo, Campbell, Damages nitive After

affd, 509 U.S. 113 S.Ct. (1993), progeny.4 and their

L.Ed.2d Haslip, S.Ct. decisions States Court’s 4. The United (1991) extent are also relevant to the Corp. L.Ed.2d 1 Alliance Resources in TXO Production by Camp they expressly overruled have not been Corp., 125 L.Ed.2d 113 S.Ct. Iris. Co. v. bell. Mut. Pacific Life