*1 reversed, Affirmed, part, part,
remanded. Battle, by His Todd MICHAEL and
Doris Friend, Michael, Doris
Next Plaintiffs, Michael,
Kitrena
v. HEATING, LLC, and
APPALACHIAN Company, Auto Insurance
State
Defendants.
No. 35127. Appeals
Supreme Court Virginia. March 2010.
Submitted
Decided June Services; support through the child enforce- a sub- Economic Tax use of State Commissioner order, filing pro- then poena, agency; Virginia juvenile rather than a court court ment (The family court those forms with the court. ceedings; counsel- mental health treatment and judge removed later had those tax documents treatment; ing; abuse and domestic substance that, record). court Mr. Allen asserts from the violence shelters. of the Rules Practice and Proce- under Rule 6 perceive how income tax records— We do not Court, party's Family income tax forms dure family parties mandated that the which the court are "confidential records.” apparent- exchange annually but which Mr. Allen 6(d) records” Rule lists various "confidential ly produce rec- refused to "confidential —are (unless by subpoena be obtained that cannot subject 6(d). par with those listed in Rule ords” on Furthermore, confidentiality in waives of the records nothing mandating party we find writing) accessible a court order: but alleged punished viola- for an counsel include, to: but are not limited Such records say We therefore cannot tion of the Rule. records; medical and educational confidential refusing family erred in to award sanc- court of the West and confidential records tions, Resources; give and decline to further consideration Department of Health and Human Services; appellant’s argument. the Office the Office of Social
I. AND PROCEDURAL FACTUAL HISTORY underlying the instant facts *3 The negligence alleged originated from (hereinafter re- Heating, LLC Appalachian Appa- Heating”). “Appalachian ferred to as by the Charles- Heating hired was lachian Authority Housing County ton-Kanawha units replace climate control repair and/or housing devel- Village, a Park South Charleston, Virginia. opment located in are Doris Mi- in this action plaintiffs The Battle; son, her chael; and minor Todd her (hereinafter Michael daughter, Kitrena adult Plaintiffs”). “the collectively to as referred American, Plaintiffs, who are African located together apartment in an resided Village. Park On November South Plaintiffs resided apartment in which the fire, on negligence caught allegedly due Ranson, Ranson, J. Michael Cynthia M. Heating, causing a Appalachian part WV, Charleston, Offices, PLLC, Ranson Law personal property of the Plaintiffs’ total loss for Plaintiffs. temporarily rendering apartment Williams, Fowler, Andrea Anna B. John R. Co. Auto Insurance uninhabitable.1 State PLLC, Charleston, Fowler, King, R. M. John Auto”), (hereinafter to as “State referred WV, Defendant, Insurance State Auto action, liability provided in this defendant Company. Heating. coverage Appalachian fire, Auto settled Following the State DAVIS, Chief Justice: to this In their brief Plaintiffs’ claims. Court, “with the submit that the Plaintiffs this Court comes before This matter $2,500.00 stipend of exception of one small of Kanawha the Circuit Court request from Michael was Doris asking paid in December of question County answer a certified put life penny her provided with Virginia Human whether seq., prohibits Mi- 5-11-1, According to Kitrena et together.” back complaint, State Auto amended chael’s by a insurer tortfeasor’s damages general “no value on the placed property damage claim. We According with the total loss.”2 Rights Act does associated conclude that by complaint filed Doris to the amended prohibit such discrimination. Heating. against Appalachian In consideration displaced allege they were 1. The Plaintiffs approximately payment, Kitrena Michael executed period of for this home for a from their immediately following Heating discharging Appalachian days. week For the release fire, stayed There- with friends. the Plaintiffs damage property claims all from another, after, apparently provided they were may now have or Michael] which [Kitrena desirable, apartment within smaller and less of or hereafter accrue on account which they Village, until where resided South Park any way from arise out of or result apart- former move back into their were able to unknown, unforeseen foreseen or known or ment. consequences thereof and the arising the fire which to or out of related contrary, contained in the an exhibit 2. To 21, 2006.... about November occurred on or DAMAGE titled "PROPERTY record RELEASE,” this case rep- Kitrena Michael was Auto asserts that State by plaintiff Ki- executed which was negotiating 30, 2007, by this settle- resented counsel August that she on states trena Michael $3,545.15 ment. of her claims received in settlement Battle, “placed Michael Todd State Auto informing [plaintiffs] that the loss a total value of Two Thousand Five Hundred personal property [their] and the ($2,500.00) Dollars on Doris Michael and commensurate damages arising there general damages Todd Battle’s associated virtually from [sic] had no value be- with the total loss outlined herein.”3 cause of [their] race and the fact that [they] resided in housing.
Thereafter, 6, 2007, on December commenced the instant express 35. That the spirit filing separate complaints. two One com- of the West clearly Michael,4 plaint was filed Kitrena defendant, violated [State Auto,] another was filed Doris Michael and Todd agents, and its employees and alia,6 complaints Battle.5 Both alleged, inter representatives when it participated *4 that State Auto had Virgi- violated the West directly in excluding plaintiffs nia Human settling from refusing to extend to the and/or Specifically, complaints claims. both plaintiffs set out the same opportunity and nearly allegations identical as follows: consideration when evaluating the plaintiffs’ fire loss claims it extends to by
32. That through [State Auto] and its persons those not of African Ameri- agents, employees representa- and can descendent and those who do not properly, tives ... failed fairly and reside in housing. evaluate, reasonably process and ad- just plaintiff[s’] fire loss claims 36. That express purpose of the West plaintiff[s’] because of the race and Virginia clearly Act was by violated they the fact pub- resides [sic] defendant, Auto,] [State and its housing. lic agents, employees representa and Auto], tives when it previously acted as by 33. That de through [State and scribed herein and in agents, employees way such a represen- its and degrade plaintiffs, wrongfully tatives ... denied the embarrass plaintiffs plain ... to cause the fair and reasonable tiffs economic loss as compensation for set forth in 5- the loss and dam- 11-9(A) ages [sic] of the arising out of the fire loss Code.[7] [they] 21, sustained on November plaintiffs’ 2006 because of race and (Footnote added). State Auto filed a motion the fact that reside in 12(b)(6) pursuant to dismiss to Rule housing. Rules of Civil Procedure in Auto], through case, 34. That agents, [State each based State Auto’s conten- employees representatives ... tion that the Plaintiffs are barred from inferring committed the act of bringing by their Human Act case assertion, 3.Contrary styled this an exhibit Appa- contained 4. This action was Katrina Michael v. LLC, in the record in this case titled "PROPERTY Heating, lachian and State Auto Insurance RELEASE,” by DAMAGE which was executed Company, designated and was as civil action no. 2007, plaintiff 12, September Doris Michael on 07-C-2616. $19,449.56 states that she received in settlement against Appalachian Heating. of her claims styled 5. This action was Doris Michael and Todd payment, consideration for this Doris Michael Battle, Friend, Appa- His Next Doris Michael v. discharging Appalachian executed a release Heating LLC, Heating, lachian and State Auto Insurance Company, designated and was as civil action no. any property damage from and all claims 07-C-2617. may which [Doris Michael] now have or which hereafter accrue on account of or in involving way unknown, 6. No issues the Plaintiffs' arise out of or result claims from known or against Appalachian Heating foreseen or unforeseen involved in this consequences question thereof related certified action. arising to or out of the fire which occurred on 2006____ 21, or about November 7. This reference should have been to W. Va.Code State Auto repre- asserts that Doris Michael was 11—9(7)(A)(1998) (Repl.Vol.2006). 5— negotiating sented counsel in this settlement. (2006). According- Trade W.Va. Virginia Unfair provision of West legal to the (hereinafter plenary consideration ly, give to as “the referred Practices Act UTPA”) resolved to answer only method for that must be issues provides in- against an certified. question herein bringing a upon its settlement based surance l-4a 33-1 See W. Va.Code
practices. III. were The actions (Repl.Vol.2006). of the circuit order then consolidated DISCUSSION By order May 2008.8 entered on court is the substantive the circuit court Before we address December entered question, we note Af- certified to dismiss. raised Auto’s motions sues denied State denial, orally moved that a Auto State ter the pursuant court certified to this question not framed question a certified [w]hen (1998) (Repl.Vol.2005).9 § 58-5-2 fully able to address that this Court is so motion, granted the court The circuit question, involved in the the law which is 23, 2009, the April agreed order entered power to refor- Court retains the then this following question: certified the circuit court certified to it under both questions mulate ac- present a cause May plaintiff *5 Questions of of the Uniform Certification carri- insurance against a tion tortfeasor’s Va.Code, 51-1A-1, et Law Act found W. Virginia Human pursuant to the West er (1998)], Va.Code, 58-5-2 seq. [ and W. Act, 5-11-9 West Code Rights relating questions from to certified statute (7)](A), alleged that a when it is [ tortfea- this Court. of this State to a circuit court discriminated insurance carrier sors’ 3, Mangum, Syl. v. pt. Kincaid they are against the because Af- (1993). 404, 74 See also W. Va. public and reside in rican-American (“The (1996) (Repl.Vol.2008) § 51-1A-4 Code housing? Supreme Appeals of Court Circuit Court: Yes. it.”). may question a certified to reformulate 3, 2009, this By September order entered ques- clarify certified In the instant order question re- accepted the certified Court law, fully the relevant and to address tion view. authority to reformulate exercise our question as follows:
II. Rights Virginia Human Does the West OF REVIEW STANDARD discrimination a tortfea- prohibit Act of review of appellate “The standard proper- of a sor’s insurer in the settlement by a and certified questions of law answered asserted a member ty claim 1, Gallapoo Syl. pt. circuit court is de novo.” under the Act? protected a class Stores, Inc., 197 W.Va. v. Wal-Mart parties’ arguments relat- Summarizing the Syl. pt. Robin Accord S.E.2d Pack, in which we should answer ing S.E.2d 660 to the manner son v. that State question, we note (2009); Processing the certified Syl. pt. Copier Word Bank, Inc., Plaintiffs’ sole exclusive argues Auto that the Supply, Inc. v. WesBanco matter, subject person or cuit court of a under civil ac- The actions were consolidated 8. join indispensable party, upon 07-C-2616. failure to tion no. may, of the court in in the discretion circuit (1998) (Repl.Vol.2005) 9. W. Va.Code 58-5-2 arises, by it to the Su- which it be certified states: decision, preme Appeals Court of for its law, including, question not limit- Any but stayed proceedings in the case until further to, arising upon sufficiency questions ed question and the shall have been decided such service, upon a chal- return of a summons or procedure certified back. The decision thereof pleading lenge sufficiency or the questions pursuant processing certified court, upon sufficiency of the circuit venue governed by appel- rules this section shall summary judgment where such of a motion for Supreme procedure promulgated late denied, judgment on a motion for motion is Appeals. Court of jurisdiction cir- pleadings, alleged against remedy respond for the it is The Plaintiffs Virgi- conduct Rights specifically nia Human W. complaint with the Insur- Va. an administrative 5-ll-9(7)(A) (1998) (2006),13 express- Code pursuant to the UTPA.10 ance Commissioner ly prohibits based on race or discrimination that, State Auto contends fact person that a resides hous- UTPA, remedy the Plaintiffs’ is to file an sole ing. The Plaintiffs that State contend Auto complaint administrative Insurance give not did their fire loss claim the same addition, Commissioner.11 State Auto opportunity and consideration when evaluat- that there law cause of submits is no common ing persons their loss as it extends who third-party allege action for claimants who not African American and who do not by a tortfeasor’s Thus, reside in housing. the Plaintiffs company.12 argues State Auto Additionally, argue that State Auto violated the West Vir- statutory sup- the rules construction ginia and their cause of should port interpretation the relevant stat- stand. The Plaintiffs further that, nothing assert there is the UTPA opines if utes. State Auto this Court supports granting companies im- action, open the instant it will a allows flood munity from the Human Act. litigation baseless which already prohibited. According to State Finally, assert Plaintiffs do Auto, third-party simply this action is bad UTPA, remedy not seek or relief under the disguised faith claim they pled have nor law common cause of third-party claim. action as claimants. Because part specifically State third-party Auto refers of insurance carriers toward 1-4a(a) (Repl.Vol.2006), § 33-1 expand which claimants. We therefore decline to our prior states: holdings regarding common law bad parties bring faith claims to allow third bring pri- A claimant *6 against action carrier insurance of another. any against vate other cause action or any person an claims settlement for unfair 5-11-9(7) 13.W. Va.Code states: practice. third-party remedy A claimant's sole against person claims settlement unfair discriminatory prac- It shall be an unlawful practice or the bad faith settlement of a claim tice, upon occupation- unless based a bona fide filing complaint is the with administrative qualification, except upon al or where based the commissioner in accordance with subsec- applicable security regulations established (b) third-party A tion of this section. claimant the United state of States or the allegations not include of unfair claims agencies political or its or subdivisions: practices any underlying litiga- in against tion an insured. (7) any employer, employment person, For added). (Emphasis “third-party claim- The term owner, agency, organization, labor real estate individual, "any corporation, ant" is defined as broker, real estate or financial salesman insti- association, any legal entity partnership other or tution to: individual, asserting against any corpora- a claim (A) Engage any repri- in of threats or form tion, association, partnership legal entity or other sal, in, hire, engage conspire or to or or with policy insured under an insurance or insurance any others to commit acts or activities na- question." contract for the claim in W. Va.Code ture, harass, is to of which de- l-4a(j)(l). § 33-1 grade, physical embarrass harm or cause or aid, abet, incite, argues 11. State Auto also that the compel economic loss or to or prohibited expressly has unfair dis- any person engage any coerce to companies. crimination It should practices discriminatory unlawful defined in noted, however, provision upon section; relied this Auto, 33-11-4(7) (2002) (B) State W. Va.Code Willfully prevent any person or obstruct (Repl.Vol.2006), pertains primarily to the rates complying provisions from article, premiums charged coverage. resist, impede prevent, or to or inter- and, pertain practices It does not to settlement any fere with the or of its mem- commission thus, question. is irrelevant to the instant representatives performance bers or article; duty under this or support argument, of this State Auto cites (C) Engage any reprisal or other- form Elmore v. State Automobile Farm Mutual Insur- any person wise discriminate because 434, 430, 893, ance 202 504 S.E.2d W.Va. opposed any practices he or she or acts (1998), which states forbidden under this article or because he or simply nothing support complaint, there is to she has filed a testified or assisted common duty good dealing any proceeding law fair this article. faith and on the 5-11-9(7)(A), under which language that W. Va.Code any void of complaint is their claims, have asserted cause give rise to would states: is not their claim action, they contend an unlawful It shall be by the UTPA.
barred
a bona fide
practice, unless based
this Court
is
before
presently
The issue
except
where
qualification,
occupational
to
requires us
impression and
one of first
security regulations
upon applicable
based
Rights Act
Virginia’s
consider West
or the
States
by the United
established
§ 5-11-
whether
to ascertain
agencies or
Virginia or its
state of West
9(7)(A)
in the settle-
prohibits
political subdivisions:
claim, and wheth-
ment of a
third-party action
precludes a
UTPA
er the
employ-
employer,
any person,
For
stat-
brought under said
against an insurer
owner,
organization,
agency,
labor
ment
ute.
broker,
real estate salesman
real estate
to:
financial institution
analysis, we
of our
At the outset
(A)
any
of threats or
Engage in
form
in con
object
primary
point
“[t]he
out that
hire,
in,
or con-
engage
reprisal, or to
give
is to ascertain
struing a statute
or activi-
to commit acts
spire with others
Syl.
Legislature.”
intent of the
effect to the
nature,
purpose of which is
ties of
Comp.
State Workmen’s
1,
Smith v.
pt.
harass,
or cause
degrade, embarrass
Comm’r,
108,
aid,
159 W.Va.
loss or
physical harm or economic
(1975). Nevertheless,
authority
this Court’s
incite,
abet,
any person to
compel or coerce
limited.
is
“When
construe a statute
discriminato-
engage
of the unlawful
section;
unambiguous and
clear and
in this
ry practices
statute is
defined
should
plain, the statute
legislative intent
is
disjunctive term
provision utilizes the
This
courts,
by the
such
interpreted
not be
“or,”
alterna
that it sets out
to demonstrate
duty
the courts not
case it
violating the Human
means of
tive
5,
Syl. pt.
statute.”
apply
construe but
Rummer, State v.
Act. Morgan Post No.
Daniel
State v.
General
(1993) (“We
have
S.E.2d
Wars,
Foreign
Veterans
disjunctive
where the
customarily stated that
137,
401
subdivisions,
agencies
political
Human
policy declaration of the
or
it is an
general
§ 5-11-2
discriminatory
Act found at W. Va.Code
practice
any
unlawful
per-
(1998)
how-
(Repl.Vol.2006).14 Importantly,
son,
employment
employer,
agency,
or-
labor
ever,
policy
observe that the
declaration
owner,
broker,
ganization,
real estate
real
specifically nullify
application
not
does
(1)
or
estate salesman
financial institution to:
therefore,
5-ll-9(7)(A);
§
it is
W. Va.Code
or;
engage
any
reprisal,
form threats or
ig-
province
of this
not within
Court
(2)
in,
hire,
engage
conspire
or
or
with others
plain language
section.
of that code
nore the
nature,
any
or
commit acts
activities of
words,
eliminate
In
“courts are not to
other
harass,
is to
degrade,
of which
em-
judicial
through
interpretation words
physical
barrass or cause
harm or economic
statute]____”
purposely included
[in
were
loss,
(3) aid, abet, incite, compel
or
or coerce
547,
Banker,
535,
Banker v.
W.Va.
engage
person
of the unlawful
(1996) (citations omitted).
S.E.2d
practices
defined
Va.W.
Syl. pt.
Div.
Consumer Advocate
See also
§
Code 5-11-9.
Comm’n,
Serv.
v. Public
(1989) (“A statute, or an adminis-
S.E.2d 650
analyze
applicability
forego-
To
rule,
not,
guise of
trative
under the
ing holding
presented
to the circumstances
revised,
modified,
‘interpretation,’ be
amend-
case,
the instant
we first consider whether
rewritten.”).
Longwell
ed or
Accord
v.
applicable
the statute
to an
is
insurance com-
Marshall,
County
Educ.
Board
pany.
paragraph
first
The
of W. Va.Code
486, 491,
5-11-9(7)
out those to
sets
whom the fol-
subsections,
(A),
lowing
including subsection
preceding
In accordance with the
apply,
“any person, employer,
which is
em-
analysis, we now hold that
5-
owner,
ployment agency,
organization,
labor
(1998)
11-9(7)(A)
(2006)
Virginia
of the West
broker,
real estate
real
estate salesman
Rights Act
distinct
establishes three
present-
financial institution.”
the context
specifically, pursuant
action. More
causes of
case,
ed in
5-11-9(7)(A),
not
based
to W. Va.Code
unless
employer,
functioning
employment
occupational qualification,
fide
bona
owner,
organization,
agency,
upon applicable
where
secu
labor
real estate
except
based
broker, real
salesman or
in-
rity regulations
established
the United
estate
financial
Thus,
applicable
States or
state of
or its
stitution.
this section
(1998)
policy”
(Repl.Vol.2006).
14. The "Declaration of
contained
W.
5-11-2
Va.Code
Declaration cites
to unlawful discrimi-
states:
(1)
(2)
employment,
places
nation in
accommodations,
public policy
of West
It is
of the state
sale, purchase,
provide
equal
all of its citizens
lease,
financing
housing
rental and
accommo-
opportunity
employment, equal
access to
However,
property.
dations
real
accommodations,
places
equal
out causes of action
5-11-9 sets
other
sale,
lease,
purchase,
opportunity in the
rental
expressly
entities that are
stated in the Decla-
*8
financing
housing
or
of
accommodations
5-11-9(2), specific
§
W.
ration.
Va.Code
Under
property. Equal opportunity
the areas
real
in
types
prohibited
of unlawful discrimination are
employment and
of
accommodations is
agencies
by employment
tions;
organiza-
and labor
hereby
right
declared to be a human
or civil
5-11-9(3)
§
prohibits specific
W. Va.Code
race,
right
persons
regard
of all
to
without
types
by
of unlawful discrimination
a labor or-
color,
sex,
religion,
origin, ancestry,
national
5-11-9(4)
ganization;
§
prohibits
W. Va.Code
age,
disability. Equal opportunity
blindness or
specific types
of unlawful
a
discrimination
housing
property
in
accommodations or real
is
employment
organization,
agency
labor
or
hereby
right or
declared to be a human
civil
committee;
labor-management
joint
W. Va.Code
race,
right
persons
regard
of all
to
without
5-11-9(5) prohibits specific types
§
of unlawful
sex,
color,
ancestry,
religion,
origin,
national
employment agency.
an
discrimination
Thus
blindness, disability
in,
or familial status.
§
it is clear that
addition to W. Va.Code 5-
rights
quali-
properly
denial
The
of these
to
9(7)(A),
legislature
provisions
set out
11—
race,
color,
persons
religion,
fied
reason of
expand
applica-
in several other statutes that
sex,
blindness,
origin, ancestry,
age,
Rights
national
disability
tion of the Human
Act to entities not
contrary
or
to the
familial status is
analysis,
listed in the Declaration.
In the final
opportu-
principles
equality
simply
policy
of freedom and
the
ment,
is
a broad
Declaration
state-
nity
is destructive
to a free and democratic
not a limitation on the entities that
Rights
society.
subject
Act.
to the Human
prohibited by
the conduct
We next look to
if the insurance
an insurance
5-11-9(7)(A).16
meaning
§
of the term
As indicated
within
W. Va.Code
company falls
broadly
“person”
above,
de
“person.”
term
is
specific
The
causes
action set
one of
5-ll-9(7)(A)
Rights Act as “one or
prohibits
Human
§
fined in the
in
a
out W. Va.Code
associations,
individuals, partnerships,
more
“person”
engaging in “acts or activities
from
organiza
corporations,
labor
organizations,
nature,
purpose of which is to
tions,
legal
representatives,
cooperatives,
harass,
physical
or cause
degrade, embarrass
trustees,
bankruptcy,
in
receivers
trustees
or
a member of a
[to]”
harm
economic loss
groups
persons.”
W.
organized
and other
class, subject
exceptions
certain
protected
to
5-11-3(a)
(1998) (Repl.Vol.2006).
§
Va.Code
purposes
For
of the
not relevant here.17
clearly in
worded definition
plainly
This
case,
language
in
facts
this
unam
instant
“organi
company, as an
an insurance
cludes
biguously
specified acts of dis
proscribes
meaning
“corporation,” within the
zation” or
by any “person,” criminatory conduct
Accordingly, we
“person.”15
of the term
economic
to
purpose of
is to cause
loss
which
that,
by the
defined
“person”
the term
hold
Hence,
class.
protected
a member of a
an
Act,
§
5—11—
Rights
W. Va.Code
Human
settling
insurer
claim
3(a) (1998) (Repl.Vol.2006),
“one or more
as
protected
with a
in a
member
class
associations,
individuals,
organ
partnerships,
that causes
manner
economic
izations,
co
corporations,
organizations,
labor
loss
the act.18
violates
trustees,
legal
representatives,
operatives,
analysis,
foregoing
Based
now
upon the
bankruptcy,
receivers and other
trustees
5-11-9(7)(A) (1998)
§
hold that
Therefore,
W. Va.Code
groups
persons.”
organized
Rights
the West
company is included within the
Act, prohibits
unlawful discrimination
“person”
meaning of the term
as used W.
5-11-9(7) (1998) (2006).
§
tortfeasor’s
insurer
settlement of
Va.Code
from,
Rights
attempt
fail or
previously rejected
Act
"to exclude
or
refuse to
This Court has
15.
to,
application
"person”
opportunities
person equal
to limit the
term
extend
because
race,
5-11-9(7).
color,
origin,
§
religion,
ancestry,
In Holstein v.
used in
national
Norandex, Inc.,
sex,
blindness,
age,
disability
403 damage exclusivity provision claim when the discrimina- barred property of the color, race, Act, upon religion, na- Compensation is based Workers’ tion reasoned blindness, sex, origin, ancestry, age, tional
disability or familial status.19 [sjinee remedy Acts seek sepa- two harms, physical injury rate and discrimina- Finally, reject argu State Auto’s tion, no conflict exists that, between the two precludes ment because UTPA insurer, Acts and it would be inconsistent with the against third-party purposes remedy Plaintiffs’ sole is to file an adminis Rights § complaint with the Insurance Com W. Va.Code 5-11-1 seq.,
trative
et
pursuant
applicability
to the UTPA. See W.
to limit its
physical-injury
missioner
11—4(a)(eliminating private
§
Va.Code
injury
disabilities unrelated to work. The
33—
claimants).20
by third-party
of action
cause
seeks to
Messer
redress under the
declared
of the UTPA is to
The
the indignity
WVHRA is
of the alleged
against
discrimination
her because of her
regulate
practices
trade
in
the business
disability.
in accordance
intent of
Congress
expressed
of Con
the act
Likewise,
Id.
the UTPA and the Human
ninth,
gress of March
one
nine
thousand
harms,
Rights
remedy
Act seek
different
(Public
fifteen,
forty-five
hundred
Law
and no conflict exists between them. There
Seventy-ninth
defining,
Congress), by
or
fore,
prohibition
we hold that the
of a third-
of,
providing for the
all such
determination
party
against
law
suit
insurer under W.
practices
this State which constitute un
33-11-4a(a)
(2005)
(Repl.Vol.
unfair
competition
fair methods of
or
or
2006),
preclude
does not
cause
deceptive
practices
prohibit
acts or
against
of action
an insurer under W. Va.
practices
ing the trade
so defined or deter
5-11-9(7)(A) (1998) (2006)
Code
of the
mined.
Rights
Act.
(1974)
(Repl.Vol.
33-11-1
complaints,
por-
Plaintiffs’
relevant
2006).
regulates
Insofar as the
trade
UTPA
insurance,
quoted
tions which have been
above in
practices
the business of
opinion,
fact
clearly
section of
demon-
remedy
the Human
Act seeks to
dis
crimination,
asserting
strate that
are not
“rights
their
and remedies of the
By repeatedly
claims under the UTPA.
considerably
al-
Acts are
different and serve
that,
race,
leging
because
their
purposes.”
fulfill different
v. Hunt
State Auto
Messer
4,
Inc.,
differently
ington
Group,
treated them
than other claimants
Anesthesia
20,
144,
fairly investigate
The Messer
and failed to
and settle
claims,
property
Court addressed whether a Human
the Plaintiffs’
involving
injury
squarely
Act claim
a work-related
within
claims fall
the Human
noted,
6, 2001)
passing,
“standing
April
(finding plaintiff
should be
we are
It
Ct.
had
court to
the first
hold that an insurance
compa
[insurance
to maintain her claim
liable
commit
actions
ny]
right
for violation
her
under G.L.c.
See,
ted in
settlement of an insurance claim.
§ 102 to enforce contracts to the same extent
Schmidt,
95-4845,
e.g., Broomes v.
No. CIV. A.
citizens.”).
enjoyed by
Additionally,
white male
(E.D.Pa.
3, 1996) (mem.)
May
WL
California, by regula
we note that the State of
finding
(applying 42 U.S.C.
racial
tion,
prohibited
expressly
discrimination
settle
formation of insurance
settling
companies in
claims. See Cal.
scope);
ment contract fell within its
Harris v.
2695.7(a) (2006) (“No
Admin. Code tit.
(M.D.Fla.
Corp.,
F.Supp.
McDonald's
insurer
in its claims
shall discriminate
(same);
1995)
Singh v.
Auto
State Farm Mutual
race,
practices
upon
age,
based
claimant's
Co.,
(Alaska
mobile Insurance
from explain. Let me reformulated, respond we as follows: Virginia Human Does West hand, firmly believe that On the one I by tortfea- a prohibit Act every resident of is entitled fair this State proper- in the insurer settlement sor’s by company. an An treatment insurance by a member of ty claim asserted company never settle a should protected class under the Act? a using any of the. “terrible ten” fac- claim Answer: Yes race, disabilities, religion, and so on— tors — guide. compa- Act as a An insurance in the foregoing Having answered the certified religion ny rely chooses to on race or reformulated, remand question, as this in the wrongful grounds of the other of Kanawha matter to the Circuit Court acting in guide settlement decisions is County proceedings further consistent for manner, arbitrary capricious and is a red opinion. with this company to flag begging the insurance Question Certified Answered. callousness, way or punished for its one an- other. Justice BENJAMIN and Justice disqualified.
WORKMAN hand, my years But on the other law, practicing I had a client who felt never and Senior Judge RONALD E. WILSON company discrimi- hadn’t CANADY, Judge HERMAN G. Status against way, shape nated them in some by sitting temporary assignment. settling notion form in claim. This was their KETCHUM dissents and reserves Justice claimants, regardless of held all file a right dissenting opinion. creed, race, origin Every person or status. making against claim compa- a an insurance part, MeHUGH Justice concurs ny got the short wrongfully thinks end right part, dissents in to file reserves that, I think of the stick. Because of opinion. separate a majority opinion ripe a situation has created lawyers. KETCHUM, J., litigation for abuse handful of dissenting: Expansion Judicial Our Law Unfounded Trade The West Unfair Practices Va.Code, -10, previously salutary The Human Act has the 33-11-1 to stamping pernicious to file goal out numerous allowed claimants suit appropriately forms of It de- a tortfeasor’s insurance discrimination. race, specific types of
clares that discrimination based “unfair discrimination” color, ancestry, sex, It religion, origin, practices.”1 “unfair claim national blindness, age, disability good heightened familial law that status abili- freedom, ty principles negotiate are corrosive to the with a behemoth insurance company bureaucracy. and destructive to and democratic a free answering Penney By question Syllabus 1. See Point Jenkins v. J.C. Cas. certified manner, we find a cause of action Ins. ("An discrimination damage settlement of may implied private of action cause exist claim We make be asserted. no company of for a violation an insurance regarding determination the merits of under- practice provisions of W. unfair settlement Va. lying case or the the releases executed effect of Code, 4(9)[.]") 33—11 — supra Doris and Kitrena notes 2 Michael. of, recognition and 3 for a brief of the existence from, quotations releases.
4Q5 Unfortunately, past, in the a handful of Rights Human says Commission the Com- overly-aggressive lawyei’s routinely capital only mission “investigates and litigates acts being ized their clients’ senses of dis illegal the areas of: Em- against, routinely criminated alleged ployment, Housing places of Public Ac- practice frivolous unfair settlement claims commodations.” every damage lawsuit filed. Some law foresee, future, IWhat in the is that the yers spent most of their time “setting up” Rights Human subjected Act will be to the companies insurance for unfair settlement maligned same abuse that the Unfair Trade practice focusing fairly suits rather than on Practices Act. A handful of litigators will developing quickly resolving their unleash a flood of alleging lawsuits discrimi- injury practices client’s claims. These by a nation in the settlement of a third-party lawyers provided few the ammunition for the property damage claims compa- insurance Legislature third-party to eliminate unfair cases, nies—and in most of those the evi- practice claim settlement lawsuits in 2005. dence of “discrimination” will entirely spu- Act, Va.Code, The Unfair Trade Practices majority opinion rious. The stresses that [2005], explicitly 33-11-4a now states: there must be a causal connection between third-party A bring claimant a (i.e., claimant’s “terrible race, ten” status private cause of action or other action color, etc.) religion, national origin, and the against any person for an unfair claims actions of the insurance company in order to practice. settlement assert a claim under the Rights Act. suits, In place of these “bad faith” my years But of practicing law taught has Legislature (but, provided a new all re- me allegation that a mere of unlawful dis- ports, wholly unsatisfactory) remedy for dis- powerful crimination can be a weapon for criminatory and unfair practices. negotiation spurious of a claim. Jurors do Now, statutory remedy for third-party not like companies. practices unfair claims and unfair settlement discrimination is to file what so far appears Again, that, I am also among concerned largely to be a ineffective administrative activities listed the Hu complaint virtually toothless insur- Act, Rights man discriminatory insurance Va.Code, ance commissioner. See W. 33-11- settlements are not listed as an evil that the 4a. Act seeks to Cleckley eradicate. Justice teaches that when way, interpret Put Legislature another the Human has al- Act, Rights ready provided we should remedy albeit, look to Section 2 weak — Act to determine purposes goals. one—for unfair discrimination in the course resolving Rights third-party Com’n insurance claim. v. Gar retson, 118, 123-127, Because the explicitly creat- remedy ed a in the 738-742 Unfair Trade Section 2 Practices of the Act Act, I am troubled that the opinion provide declares that it was intended to three judicially chose to infer things: “equal opportunity the existence of employment, similar, separate remedy equal in the Human places access to accommoda Rights tions, Act. sale, The Human equal opportunity contains pur language no purporting regulate chase, lease, financing rental and housing settlements. It is reasonable to assume that property.” accommodations or real W. Va. Code, there would have been at specific least some 5-11-2 majority opinion [1998]. The reference to insurance specify settlements either does not which catego of these three language of the Human ries a insurance settlement fits Commission, fact, the rules of the Human parties into —in never raised this legislative or in the history of the Act. issue or argument quest made on this fact, There is none. the website for the ion.3 http://www.wvf.state.wv.us/wvhrc/
2. See
I
majority opinion
3.
can
assume that the
jurisdiction.htm,
April
presumed that
accessed
discrimination in the
course
third-party claim settlement was the denial
aof
*12
sum,
Legislature
did
that
the
has authorized third
Legislature
the
not consider
In
parties
alleged-
action for
claims
to assert
cause of
complexity of
settlement
the
insurance
ly discriminatory
settlements
Rights
For
insurance
Human
Act.
when it drafted the
by
protections
instance,
based on the
extended
the Act
interpret-
has
majority opinion
the
third-party
This
untenable.
is because
preventing
Act as
in-
Rights
the Human
ed
discrimination
relief
for
insurance-related
age;
on the basis of
surance discrimination
impliedly
expressly,
has never been
or even
yet
explicitly
Practices Act
the Unfair Trade
Act,
any
legisla-
in
other
authorized
or
companies to
deci-
insurance
make
allows
result,
tive
As a
enactment
that matter.2
on
in the sale of life insurance
the basis
sions
majority
clearly
the
both the
exceeded
age.4 Under
Unfair Trade Practices
the
scope
Act and
intended
the
reach
Act,
companies
charge
have to
cus-
insurance
protections.
the Act’s
expected
with the
life duration
tomers
same
if the
are
premium;
customers
the same
deciding
that
the
has au-
younger,
and therefore have a differ-
older
cause of action for
thorized
life,
the
expectation of
then
ent
discriminatory insurance settlements under
premiums.
can
I
charge different
Act,
overlooks numerous
majority opinion
can and will
believe
impediments,
legal
logical.
both
and
First
lawyers
say
pre-
be misconstrued
foremost,
and
is the fact that
the Act was
allowed
mium decisions which are
under the
never intended to and does not address the
Trade
Act will
ille-
Unfair
Practices
now be
subject of insurance.3
in the Act
Nowhere
gal
Rights
under the Human
Act.
language
any
pertains
there
to the issue
in
proscribing discriminatory
acts
connec-
Legislature in-
I do not believe that
procurement
tion with
it the
insurance —be
Rights
for the
Act to extend
tended
Human
policy
of a
or the
of a claim. A
beyond employment, housing and access to
Act,
policy
review of the
both its
statement
nebulous, high-
public accommodations to the
and
provisions,
Leg-
makes clear that the
ly-regulated
there-
realm of insurance law. I
islature intended to limit the reach of the
respectfully
fore
dissent.
discriminatory
prohibited
conduct
the Act
(1)
(2)
McHUGH, Justice, concurring,
part,
employment;
in
and
matters that involve
accommodation;
dissenting,
part:
in
places
public
access
(3)
procuring housing
accommodations
wholeheartedly agree
majority’s
I
obtaining
financing.
real
related
in-
endeavor to eliminate acts of racial or
(setting
See
forth legis-
W. Va.Code 5-11-2
in
come-based discrimination
connection with
Act).
purpose
Human
lative
W.Va.
question,
insurance settlements. Without
By
presuming
residency
aim of the
the Plaintiffs’
(“Act”)1
public housing
in
prevent
brought
Act
con-
them within the
Act,4
laudatory
as
in
majority misappre-
duct remains
ambit of the
legislation
initially
adopted
protections
when the
in
hends
extended
Act.
However,
majority’s
“place
public
conclusion The definition of
accommoda-
Va.Code,
See,
public
setting);
"placet] of
accommodation.”
W.
insurance rate
33-11-
[1998],
1-3(j)
4(9) (proscribing specified
claim
5-1
"unfair
settle-
practices”).
ment
Va.Code,
4. The Unfair
Practices
Trade
33-11-4(7)(a) [2002], states:
Syl.
Comp.
3. See
Pt.
Smith v. State Workmen's
person
permit any
No
shall make or
unfair
Comm'r,
state cause of
third-party relief under a state human
rights subject legislation act when provision expressly prohibits
lacks a ing 14. While the could have included a intended to address claim for relief U.S.C. issue of insurance-related discrimination outside complaint, they not. chapter did thirty-three of the Code demonstrates majority engaged interpre- has indeed tation to reach its desired result. Safety Mass.App.Ct. 15. See Ins. Ellis v. (1996) (applying N.E.2d state first-party rights law to allow civil claim to sur- regard majority’s 18.With to the statement disallowing summary judgment vive but third- syllabus point three five that distinct causes of party on lack of claim based contractual relation- created in West Code 5-11- insurer). ship parties between third 9(7)(A), recognize explicitly the Act does not pro- establishment of a cause of action for the majority prohib- Instead, cites While the California as scribed conduct. the Act settlements, iting contemplates filing complaint before the provide that codification does not for a third- Commission. See party Regs. cause of action. Cal.Code Ad- filing § 5-11-10. As an alternative to such 10, 2695.7(a) (2006). ministrative Law complaint, recognized this Court that relief sought Syl. a circuit Pt. from court. See Auth., County applying v. 17. While the claims to be Price Boone Ambul. presum- absence defensible basis S.E.2d 913