*1
Ketchum, dissenting:
Justice
Chief
inmate an in- or other allowable means June Filed: per- compensated for may be work mate sold, including earnings goods formed or
from work correctional industries
indigent pay. Earning shall also include proceeds from arts and
40% of the Earnings shall include
crafts sale. further money the inmate
all sums received lawsuit; of a of a
on account settlement process, judgment; or other lawful
civil except
inheritance, funds bequest, gift, by family
provided or friends. the inmate
Earnings shall include sums deducted savings. mandatory added). Thus, Policy Di-
(Emphasis 111.06,money an inmate from sent to
rective not constitute family or friends does
his/her “earnings” not be deducted purposes for the outlined W.Va.
warden § 26-1-Sc. present Mr. Painter received deducted “from home” and the warden
$25.00 ($10.00). gift I that this of this believe
40% applied plain language
Court should that the Policy 111.06 and ruled Directive permitted to 40%
warden was not deduct “from Mr. Painter received home.”
the funds respectfully foregoing, I dis- on the
Based
sent. *3 summary judgment. .ar- 1)
gues2 that the circuit court abused discretion when denied for relief from motion 2) order and application erred of statu- tory granting substantive law (hereinafter Respondents referred collec- Plaintiffs”) tively as “the summary judgment determining that Old to a entitled set forth in West 23-2A-1 (2010).3Having parties’ reviewed the briefs arguments, appendix record and all Court, other matters before the find that *4 the circuit denying Repub- court erred in motion; however, lic’s Rule 60 we affirm the circuit summary judgment court’s favor of the Plaintiffs. As we will discuss in greater below, Republic’s detail claim for attempting fails is" because ‘to money expended it never and insured, that its Speed Mining, is not entitled to recover. Schessler, Michael Esq., Framp- J. Paul E. History I. Facts and Procedural ton, Charleston, Esq., LLP, Rice Bowles This from case arises a June Petitioner, Virginia, West Counsel for the underground accident an Eagle American Calwell, Esq., Stuart H. W. David Carri- County Virginia, Mine in Kanawha West The ger, Esq., Practice, LC, The Calwell Charles- Plaintiff, O’Neal,4 employed Jason who was ton, Virginia, Respon- for the Counsel by Speed Mining, LLC, electrician dents. (“Speed Mining1.’), working in the mine a when shuttle car and ran struck over him. Workman, Justice: catastrophic injuries The accident caused O’Neal, including leg, Mr. the loss of one This case is before the Court significant portion pelvis geni- of his his and appeal of the Petitioner Insur- talia. (hereinafter Co. ance referred to as “Old Republic”) from February 11, in the On two orders entered Plaintiffs5 filed Wyoming Circuit County, against Mining,6 Court alleging wherein lawsuit the court Republic’s denied Old pursuant intention claims deliberate (2005)7 § motion for relief from motion and 23-4-2 60(b) approximately twenty-nine 1. See W. Va. R. Civ. P. set 4. Mr. forth O’Neal' was infra opinion. years section III. A. of this old at the time. He was married and had minor three children. Republic’s assigned lengthy, two errors are 2. cumbersome, repe subparts are 5. Mr. O'Neal’s lawsuit included and contain claims loss Thus, larger assignments support titious of the on behalf of his errors. consortium wife and pur we condense the two errors for discussion children. poses. Against See In re Tax Assessments Poca 229, 234, Corp., Speed Mining" hontas Land W.Va' is not a to the instant (1974) ("The assignments appeal. 645-46 lengthy, repetitious error are numerous and are confusing appeal. assignments for each Legislature recently Virgi- 7. The amended West ”). 2015) be condensed.... (Supp. § nia Code 23-4-2 changes becoming June effective Be- (b) 3. See W. Va. Code 23-2A-1 set cause the accident occurred the. 2005 forth infra opinion. applicable section III. B. of this of the version statute to this case. help rights for us negligence. protect law The Plaintiffs also us and common those against liability claim If advance products enforce them. we recover asserted n individuals, col- companies payment policy related -or made under this four lectively anyone injury, to as the defen- referred for the amount we liable applied any pay- recover will first be dants.8 injury on this ments made us excess accident, Speed Mining of the At the time Amount(s); only of the then Deductible compen- on a insured workers’ was named any, recovery, if will the remainder policy insurance Old Re- sation issued applied to reduce the Deductible public Mangum Company.9 Coal As a re- Amount(s) paid or or reim- reimbursed accident, Mr. O’Neal filed sult (See At- by you injury. bursable compensation claim. Mr. O’Neal workers’ Endorsement). tached compensation has received workers’ Mining’s compensa- workers’ fully The Plaintiffs were of the stat- aware- he will continue receive utory right compensation subro- workers’ injuries his compensation his ivorkers’ by May gation as demonstrated open.10 claim remains Carriger, letter David H. the Plaintiffs’ Avizent, attorney, to Michele Craft of According of Old the terms Republic’s third-party In the administrator. $2,000,000 policy, there com- letter, Carriger “requests Mr. an itemization injury pensation bodily deductible amount for (or you of whatever amount lien other Mining. by Speed accident that was benefits) provider workers Beverly Sellers, manager *5 assert, intend to should Mr. O’Neal recover unit, compensation its dur- testified third-parties monies as a result ing deposition her was Patriot’s “[i]t workplace response In injuries.” to the Plain- Mining’s parent company] [Speed wish to inquiry, by tiffs’ letter dated June fund million deductible themselves ... $2 Christopher Speed Brumley, attorney for Republic Moreover, to agreed Old that.” and Mining, Republic that Old was enti- indicated paid if for Old benefits subrogation'lien $2,000,000 tled statute to a and that coverage it be reim- would date, $1,068,993.77 of that work- Mining. provid- from the Speed policy bursed The compensation ed, paid ers’ claim “you up will us had been reimburse to the Deduct- Amount(s) Speed Mining. Brumley ible in the stated Schedule all Mr. further indicated payments your “Speed Mining make on letter that self in- behalf be- bodily injury persons up cause or more million self sured insured reten- $2 any policy.” as a result of one accident....” on the Brum- According to Mr. ley, [R]epublic is the “Old carrier after the $2 Further, policy, terms under the Old million, subrogation frights .so any [sic] after rights subrogation, all retained statutory right amount will be Old The even as deductible amounts. [Republic.” provided: given by Brumley rights rights The information Mr. your We and the concerning Speed persons the aforementioned letter benefits entitled Mining pay- being incorrect insurance to recover all and self-insured was and advances ments, including later com- those within the Deduct- was corrected several different munications, anyone letters, ible and Amounts liable both emails between injury. everything necessary Republic, You will do Plaintiffs’ Old Avizent and the Baughan Baughan defendants included 10.The workers’ benefits that are Inc., Inc., Industries, Group, Age, subject Coal CAI were d/b/a claim Robertson, Inc,, Robertson, Gauley administrator, and d/b/a through third-party the Plaintiffs Avizent, Roger Baughan. These are not in- defendants testimony according deposition to the appeal. volved in the instant Sellers, Beverly Republic's manager of its unit. con- Magnum acquired Patriot Coal Coal and all of handling sented to of insured Avizent's claims subsidiaries, Mining, including Speed about a Speed Mining. year before the accident at issue. yet Additionally, testified not Ms. Sellers ruled on the motion to counsel. Mining deposition her was during complaint. amend the Plaintiffs’ Moreover,- con- record not self-insured. May 1, In an order entered cir- repeated from Old Re- tains notices either cuit granted Plaintiffs’ motion Speed Mining’s Avizent to public, counsel complaint declaratory amend their add a Repub- regarding the Plaintiffs’ counsel judgement against In Republic. action statutory .right prior lic’s motion, granting the circuit court found any in the settlements of subrogation “the un- 13, 2011, On October the Plaintiffs settled § der Code 23-2A-1 is W. Va. not available ’ against Speed their intention claim deliberate ..; to the insurer aforementioned it is [as] settlement, according Mining.11That to the actually that said insurer has established not language 23-2A- (or paid money or medical for the 1(e),12 subject compen- a workers’ of) Nevertheless, benefit O’Neal.” Mr. Republic is sation lien and Old Plaintiffs thereafter filed its com- amended seeking any amount as a result subro- plaint adding third-party declaratory gation Language from this settlement. con- against action agreement relating tained settlement May 21,2012. however, claim, to the deliberate intention July On the Plaintiffs important this case. resolution of Baughan defendants executed Settlement agreement, Min- Plaintiffs Agreement Release. The Plaintiffs’ counsel ing expressly Agreement declared that “this protect did not action to take Repub- agreement encompasses is the entire all lic’s claimed lien13 agreements before negotiated them in distribut- terms proceeds settlement, of this relating settlement and all claims million. At Subject amounted the time $3.6 Incident that there are not agreement writings settlement (Emphasis other add- executed and whatsoever.” ed). money Plaintiffs recovered this defendants, workers’ compensation On March the Plaintiffs moved *6 $1,846,197.13— in the amount of during circuit the court a status conference $1,738,613.31 $106,683.82 in medicals and their complaint a declarato- amend add to, indemnity—had been or for the ben- against ry judgment Republic action it Old as of, by Speed Mining efit Mr. O’Neal due statutory subrogation had asserted lien $2,000,000 Republic the deductible in the Old respect any by settlement obtained compensation policy. This is the Baughan remaining the Plaintiffs sought by amount Old defendants. Baughan with the the settlement defen- prod- Plaintiffs the The thereafter settled arising product out of the dants Plaintiffs’ liability against ucts claims de- liability claim. at a fendants mediation that occurred on 26, party Old filed its answer to April 2012. Old not third- was yet complaint mediation and not been and asserted own declara- action, tory against brought judgment into the the circuit on because action the Plaintiffs workers, Mining's including in- of its insurer for the deliberate on behalf Mr. O’Neal, Industry claim tention Commerce In- was Company. The amount surance settlement and has not in the confidential been disclosed 23-2A-l(e) § 13.See W. Code set forth Va. infra appendix record or briefs before Court. (creating duty part injured B. on section III. protect counsel to worker his 23-2A-l(e) provides, in 12. West losing right subrogation or risk attor- retain part, “[t]he relevant ney out of fees and costs amount and apply unin- does described section creating can also cause of action that insurer coverage sured and underinsured motorist bring against injured and his worker counsel coveragepurchased ... other insurance on behalf amount, subrogated attorney added). well injured as (emphasis Id. The worker." of deliberate intention claim was costs). subject to insur- fees and coverage purchased by that was Min- ance 2012, electronically monitor docket sheet for 23, Discovery both July followed summary judgment. August 2014, six motions for the next months. late parties filed 18, 2013, held Republic’s court both On December circuit counsel contacted con- hearing regarding the motions. At the attorney circuit’ court and the Plaintiffs’ re- hearing, made circuit clusion of court garding the status case and- was ad- mo- rulings summary on either no entered. On vised a final order had been tion; however, parties the court both asked 4, 2014, September Republic’s counsel 15, January submit orders proposed 24, copy January 2014, provided a was facsimile, styled final order which was granting order “proposed” Plaintiffs’ 27, January without notice On Repub- judgment. summary Counsel Republic, circuit court entered 60(b) pursuant a motion lic filed Rule The order entered proposed Plaintiffs’ order. Granting Procedure “[Proposed] Rules Civil Order styled, was September requesting the on circuit D. for Sum- Jason Motion Plaintiff O’Neal’s mary Judgment.” January “proposed” The re- Plaintiffs’ counsel court re-enter informing final call” him as the so that Old “courtesy ceived a order order proposed appeal. was By his order entered order December could entered proposed court. The Republic’s circuit order court the circuit denied only the circuit court directed entered motion. to the Plaintiffs’ as the service counsel Plain- II. of Review Standard proposed tiffs submitted order with applicable Because standard review attorneys’ signature. names it their addressed, for each of is different the issues Consequently, clerk did send a circuit out applicable set standard of will order, en- copy proposed which was discussion each issue. review order, as the the circuit final tered Moreover, Republic’s to Old when counsel. III. of Law Discussion court’s onto the circuit order entered 60(b) Rule A. Motion docket, entry “[Proposed] was for Order Granting D. Motion for Jason O’Neal’s Sum- Court concerns first issue before the Judgment.” mary the circuit its discre- whether court abused Republic’s tion when denied Old later, February About one month 60(b)15 motion for relief from cir- checked the counsel “[Proposed] Granting Order Ja- Plaintiff utilizing Express” cuit court’s docket “Circuit Summary Judg- son D. O’Neal’s Motion for third-party provides vendor that electronic Republic argues that ment.” Old the circuit lawyers Virgi- docket information “arbitrarily irrationally” refused to styled nia. Old counsel saw the *7 provide proper notice the failure to correct “proposed” order and view the attempted to order, thereby depriving Republic Old same, not so for but could do reasons that Republic process right appeal.' Old due to apparent Repub- in the record. are Old ’ improperly maintains that circuit court Wyoming County lic’s counsel called the then duty party an for a a created to Circuit Clerk’s office and whether affirmative asked ' disguised final had been in the monitor the docket find order entered case. The to may official in circuit that be a order after Old clerk’s order final office indicated Republic copy of “proposed” that a order had been was served with Republic’s upon entry Old counsel order Plaintiffs docketed. continued and the left however, 60(a). Republic Republic, expressly circuit filed in the does re- Old its motion Old asking judgment 60(b) and, court relief ruling below consequently, fer to Rule our 60(a) (“clerical mistakes") pursuant Rule 60(b). today upon application Rule focuses an 60(b)(1) ("mistake, surprise, Rule inadvertence behoove in the future It to be would counsel cause") or,(6) neglect, or excusable ("any unavoidable setting authority upon precise forth in relied oper- justifying other relief from the reason arguing before when this Court. judgment"). Republic appeal, of the On ation Old very application of Rule in a discusses 60(b) See W. R. Civ. Va. P. infra. fashion, generic referring expressly never Rule off Republic’s ruling said Old counsel’s name order. abused its discretion that sufficient Further, requested simply grounds Old disturbing finality circuit the Janu- judgment vacate timely were not shown a man- 27, 2014, “proposed” ary order and re-enter 4, Toler, at Syl. ner.” Pt. 157 W.Va. allow that order S.E.2d at 86. held that mo- “[a] further We Thus, vacate, appeal asserts the same. judgment pursuant made that Plaintiffs would not have suffered 60(b), Rule of Civil West Rules Pro- prejudice by undue or unfair the circuit cedure, is addressed to the sound discretion court’s manner. correction the error court, ruling on court’s such .and appeal motion will not on Conversely, that be disturbed unless the Plaintiffs contend showing Republic’s there is an counsel inves- abuse such discre- should further tigated he “proposed” 86, Syl. when discovered that a tion.” at 157 W.Va. mind, entered to see foregoing order been whether Pt. 5. With the we now Yet, despite having final order was order. undertake an examination of the issue before knowledge “proposed” order had us. been entered docket sheet party, While not either raised court, circuit no fur- undertook necessary prerequisite the ultimate resolu investigation ther ascertain what the order 60(b) tion of this whether Rule issue and, therefore, delayed for six months Rules of Procedure can be used Civil set pursuant filing Virgi- motion of a judgment aside was not noticed to a 60(b). nia Rule of Civil The Plain- Procedure 77(d) party under of the Rules of Rule Civil argue correctly tiffs the circuit court Thus, begin examining Procedure. delay determined that the result of First, two these rules. Rule of dilatory conduct Old coun- 60(b) provides, Civil Procedure in relevant sel. The further that all Plaintiffs contend part: Republic’s assignments of error related January are untimely order On motion terms such as are stricken from the record.16 should just, party the court relieve a or a that because representative circuit found party’s legal from a final counsel, using Express,” order, “Circuit judgment, or proceeding for fol- proposed knew (1) the Plaintiffs’ order had been Mistake, lowing inadvertence, reasons:
listed the docket circuit clerk on sunrise, neglect, or excusable unavoidable Republic’s] January “[Old (2) counsel cause; newly discovered evidence ... an no- admitted he received actual diligence not have due could been tice from another source that the order in time to for a discovered move new trial question Clerk was entered on the (3) 59(b); (whether fraud here- prior filing docket deadline No- extrinsic), tofore intrinsic or denominated Appeal[.]” Thus, tice the circuit court de- or misrepresentation, other misconduct it requiring that was not termined (4) party; judgment void; adverse searching for “mine the docket” notice (5) satisfied, judgment has been re- entered circuit court went on to orders.- The leased, discharged, or or prior Republic’s counsel’s “lack of characterize Old upon which based has been reversed being action” as “inconceivable” and “cavali- vacated, longer no it is otherwise er.” *8 equitable judgment should have (6) any or other prospective application; applicable of review The standard operation relief from justifying reason reviewing to this is that an “[i]n issue order judgment. of The 60(b), motion shall be made denying a motion undér Rule W.Va. (cid:127) time, R.C.P., appellate of within a for reasons function court is reasonable (3) (1), (2), deciding year not the trial more than limited whether 3, Shelton, 778, supporting Syl. See not the un 16. Pt. Toler v. 157 W.Va. itself and the substance (1974) (holding appeal 204 of the 85 that motion judgment judgment "[a]n S.E.2d derlying der,”). nor the or final 60(b) brings of a Rule denial only for of order denial consideration review 520 order, upon variety of proceeding order reasons inelud- judgment, or based
after
“[mjistake, inadvertence, surprise,
or
A motion
excus-
taken.
under
entered
(b)
finality
neglect,
“any
not affect the
cause” and
does
able
or unavoidable
subdivision
suspend
operation.
judgment or
justifying
opera-
of a
other
reason
relief
60(b)(1)
judgment.”
tion of
Va. R.
P.
W.
Civ.
added). Next,
Virginia
(emphasis
West
Id.
(6).
recognized
previously
77(d)
This Court has
provides,
of Civil Procedure
Rule
60(b)
construction of Rule
liberal
follows:
Immediately
entry of
upon the
an order
clerk, except
judgment
parties
as to
or
court,
given
[a]
in the exercise of discretion
appear of
to have
notice
record
had
who
60(b),
provisions
it
of Rule
the remedial
thereof,
shall
mail a
serve
notice of
W.Va.R.C.P.,
recognize that
should
entry
provided
Rule
manner
for
liberally
rule is to be
construed for
every party ajfected thereby who is
upon
5
purpose
accomplishing justice and that
appear,
not
default for failure
designed
it
the desirable
facilitate
mailing
in the
make
note
shall
legal
to be
objective
cases are
decided
for
mailing
sufficient notice
docket. Such
on the merits.
entry
for
notice of
purposes
which
all
Toler,
86,
at
at
204 S.E.2d
157 W.Va.
rules;
required
order is
these
but
of an
added);
Syl.
(emphasis
Syl. Pt.
6
accord
Pt.
may
any party
serve a notice of
in addition
Container,
Co. v.
Hamilton Watch
Atlas
entry
provided in Rule
such
the manner
Inc.,
(1972)
156
521 60(b) stated, allow Succinctly courts have Rule relief revive a federal found -to lost 60(b) appeal that of Rules of Proce only appellant Rule Civil where has exer judgment can to set aside a dure be used diligence cised due to ascertain whether the party a was noticed under Rule judgment that or -given has been entered has 77(d). Hosps., See Vencor Inc. v. Standard sufficient for the lack of reason such dili Co., 1306, and Acc. 279 F.3d 1310 Ins. gence.”); McKnight v. States United Steel Life (11th 2002) (stating “[p]rior Cir. that (7th (find 333, 1984) Corp., 726 F.2d 335 Cir. 60(b) 1991,19 judgment relief from under Rule extraordinary that provided “[t]he relief avoiding a of recognized method 60(b) may granted only upon Rule be a imposed upon parties otherwise harsh results showing circumstances.”); exceptional of failing judgment notice of receive actual 456, (9th Rodgers Watt, v. F.2d 461 722 appeal until passed. for after time Cir.1983) (finding proper relief where dili See, e.g., County, Harnmishv. Manatee Flori gence checking status shown and docket (11th Cir.1986) da, 1536, (‘By 783 F.2d 1538 erroneously sheet entries were out of se availing escape provided of itself valve quence); Hensley Chesapeake Ry. v. & Ohio 60(b) Rule Federal Rules Civil (4th Co., Cir.1981) (de 226, 651 F.2d 230-31 reentering vacating Procedure in its or termining 60(b) may rely that court rule motion, der on the Rule 59 the court avoided 77(d) supersede “unique Rule under cir injustice rigid ap manifest worked cumstances.”); Buckeye Corp. Cellulose v. 77(d) plication provisions of the of Rule Co., Braggs 1036, Elec. 569 F.2d Constr. 1038 facts.’).”) (footnote added); above-recited (8th Cir.1978) (determining inqui that three Grp., 255, v. 725 Wilson Atwood F.2d 257 ries about ease status of the and reliance on (5th 1984) “[bjecause (recognizing Cir. clerk’s that counsel office statement would be 77(d), ... the ‘draconian effect’ rule courts sufficient, relief); Expeditions notified for sought palliate by invoking have its results Enters., Aquatic Unlimited Inc. v. Smithso 60(b). rule This states that rule court 808, Inst., (D.C.Cir.1974) nian 810 F.2d 500 party judgment from a relieve a or 60(b) (holding permits district rule justifying for order relief from ‘reason judgment to vacate and reenter where nei ”). operation judgment.’ of the timely party notice winning ther received Moreover, jurisdic majority of federal party prejudiced.). was not resolving required tions issue some diligence light foregoing, as Spika In the feder special circumstances. See Ill., Lombard, adoption prior v. 763 al did of Rule Vill. F.2d courts 285 (7th 1985) 4(a) (stating Appellate “[m]ost Cir. Proce- circuits Federal Rules meaning determining scope entry tice of the Federal Rule1of‘Civil our rules.")." earlier; 77(d), Procedure whichever 217 614 8 (C)the W.Va. at 8 n. S.E.2d at n. 21 no court finds that would be Co., (quoting Keplinger Va. Elec. & Power 208 v. prejudiced. 20 n. 641 n. 13 4(a)(6). App. adoption Fed. R. Since the P. (2000)). 4(a)(6), provided opportuni- Rule limited ty for where relief in circumstances the notice of Appellate Federal Rule Procedure required entry judgment or order Rule 4(a) .(6), include amended to subsection 77(d) timely or was was not received re- provides: which now ceived, have determined most federal courts (6) Reopening Appeal.— Time to File an 4(a)(6) "provides the exclusive method for Rule may reopen The district court the time to file extending party’s appeal appeal days time failure to period after the entered, reopen judgment date when its order to receive actual or order but notice following enteredf,]” if all conditions are satis- has been and that Federal Rule of 60(b) fied: longer no Civil Procedure can used. See (A) moving party finds that the Hosps., at 1311. Vencor F.3d did not receive notice under Federal Rule of 4(a)(6) counter-part no has similar Rule 77(d) Civil Procedure therefore, and, viability of West sought judgment appealed to be order 60(b) purpose of Civil of reduc- Procedure entry; days within 21 after 77(d) ing the harshness of Rule remains intact. (B) days within 180 motion is filed after or order entered or within days moving party receives after the no- *10 Republic’s should dure, Perhaps Old counsel to the draconian seek ameliorate we order, requested copy proposed a but Proce- Virginia of Civil effects West Rule to so not establish a lack 77(d). the failure do does We, therefore, that hold West dure misleading caption 60(b) diligence given on the Virginia Rule of CM Procedure the order and evidence offered a means to as a seek relief used refuted, Republic, indicating was not to that a judgment or order noticed was Republic’s to that Old counsel continued Rule Virginia in accordance six prior the docket sheet for months monitor 77(d) showing Procedure Rule Civil inquiring circuit finally to court and exceptional diligence circumstances counsel status of the Plaintiffs’ about diligence party. aggrieved requisite The Plaintiffs, order. final While the well' as necessary for exceptional circumstances court, place quick to the circuit are affir- 60(b) relief under these circumstances Rule duty upon Republic to confirm mative case-by-case analysis. require will appeared of an the content order that on the ease, the of notice of the In the instant lack “proposed” order, circuit court’s docket as granting sum- final that order entered equally quick to overlook them they are own mary judgment the result Plaintiffs is negligence. part of error on the circuit court.20 unique Consequently, under the facts in motion Plaintiffs set the events led case, we the circuit this find that court failing Republic by the lack of notice Old failing in abused discretion afford Old Republic’s coun- the names Old include Republic relief under West Rule proposed sel on their order submitted 60(b) vacating Civil Procedure Janu- This initial circuit consideration. court 27, 2014, proposed re-entering ary order and compounded by court failure was the circuit allow same final order change style when it failed opportunity appeal.21 to file an final, “proposed” Plaintiffs’ order presented The circumstances to the circuit to enter order as when it chose the Plaintiffs’ undeniably court in this case were extraordi- resolving the matter. More- final order part nary Culpability involved on the over, why unexplained the record involved, including all the circuit court. In gave the counsel' a circuit court Plaintiffs’ issue; light of our reversal rather pro- “courtesy” informing him that the call remanding formality case than posed going to be order was entered re-entry granting of a final order the Plain- “courtesy” no when commensurate summary judgment, in the tiffs interest of especially Republic. This is to Old extended judicial economy, proceed with we consider- significant light of the circuit court’s find- of merits as the ation of the case substan- “[tjhere question no [wa]s fully argued by issue was tive briefed order, appeal intended parties. favor.” should the Court rale Mr. O’Neal’s Right Subrogation B. Further, undisputed circuit it is Repub- give clerk failed notice Old The substantive issue before the Thus, Republic’s lic’s counsel. when Old Court is whether circuit erred proposed order had been summary judgment, counsel granting saw the Plaintiffs determining circuit clerk’s office by docketed called that Old was not it, provisions correctly circuit clerk informed about entitled counsel that no final order This par 23-2A-1. entered, only argument proposed had order. ticular can not be been viewed with clerk entered 20. The circuit court the circuit order was and seven months after the counsel, prior in- filing orders to Old Appeal.” sent Notice missed deadline cluding regarding Rather, the order motion to amend appendix supports record that Old complaint. eight filed its 60 motion within days becoming Januaty aware that the ruling, light of our find that also 2014, "proposed” order was indeed intended erroneously that "Old circuit court Republic determined order in be the final the case. the circuit [referring the Rule filed its Motion nearly eight original 60 motion] months after the *11 vision, upon foeusing solely Conversely, argue the rele- tunnel the Plaintiffs that Old Rather, explore right of subrogation the Court must did not have a vant statute. § Virginia 23-2A-1, under West Code recovery sought of be- each of the three avenues Coal, cause of Speed Patriot behalf Min- by complaint. The the Plaintiffs their first ing, paid compensation the worker’s benefits right to receive workers’ is Mr. O’Neal’s Plaintiff Mr. and both O’Neal Patriot compensation Mining’s Speed under Speed any Mining waived claims re- Old insurance issued cover those the terms of the benefits Republic.- recovery this comes the stat- With underlying into settlement entered between utory right subrogation in of of favor Old ’ Speed Mining conjunc- and the Plaintiffs in Republic, right of well as contractual tion with the Plaintiffs’ deliberate intention Speed Mining. reimbursement See favor claim. óf recovery id. The stems second avenue intention claim Plaintiffs’ deliberate entry “A circuit court’s of sum against Speed particular This claim Mining. mary judgment de Syl. novo.” reviewed Pt. subject is not any claim 1, 189, Peavy, Painter v. 192 W.Va. 451 Republic. recovery The received (1994).22Further, S.E.2d 755 Mining Speed Plaintiffs from as a result summary judgment “‘[a] motion for claim, however, this involves a settlement granted only should be when is clear agreement into between these two entered genuine is no issue of fact there to be parties, impacts the resolution of concerning inquiry tried and the facts is of recovery case. The final avenue arises clarify not desirable application from products liability the Plaintiffs’ claim 3, Syllabus Casualty law.’ Aetna Point against Baughan The Plain- defendants. Surety & Co. v. Federal Insurance Co. of tiffs’ settlement claim of this falls within the York, New 148 133 W.Va. S.E.2d 770 purview of Republic’s statutory (1963).” Syllabus Point Andrick v. Town Thus, subrogation claim. Buckhannon, 187 421 S.E.2d W.Va. interplay undertake an examination (1992). 247 recovery. each of these avenues Painter, 451 at S.E.2d Syl. Pt. 2.
Looking
Republic’s statutory
first at Old
begin
right
as set forth in
We
with an examination
statu-
tory right
23-2A-1,
that is
§
relied
Code
ar-
Republic.
gues
23-
appli-
the circuit court erred
provides:
2A-1
law,
cation of
and contract when it
statute
extinguished
statutory
(b)
subro-
provisions
Notwithstanding the
gation rights.
(a)
argues
section,
injured
further
subsection
of this
anif
ivorker,
in determining
the circuit court
dependents
erred
his
or his or her
or her
“Speed Mining
personal
representative
self-in-
de-facto
makes
claim
against
statute,”
employer
party23
any
sured
third
recovers
that Old
right
any
sum the claim:
waived
seek
subrogation,
Republic’s subrogation
that Old
(1)
respect
arising
With
claim
rights
equitable
were based on common law
that arose or ac-
action
statutory right
principles,
crued,
on,
could
part,
whole or
after
modified,
policy proceeds
January
private
because
carrier or
provided by
Mining through
were
employer,
appli-
whichever is
self-insured
deductible,
cable,
not from Old
own
subroga-
shall be allowed
indemnity
regard
and medi-
funds.
statute,
Similarly,
party
In the
third
circuit court’s
of a
context of the
“[a]
de
employment
refers
relationship.
claratory
3,
Syl.
to a
that is outside
de
is reviewed
novo."
Pt.
Thus,
Amick,
in instant
Cox v.
195 W.Va.
parties against
defendants are the
whom
third
(1995).
liability
products
the Plaintiffs
claim.
asserted a
Mining.
provided
coverage
sation
paid as
cal
date of
benefits
policy provides:
recovery.
We,
rights of
your lights
of this
persons
entitled
(d)
injured worker,
that an
In the event
pay-
all
insurance
advances
personal repre-
dependents
or her
his
ments, including those
within
Deduct-
against
third
claim
sentative makes a
inju-
for the
ible
liable
Amounts
*12
be,
hereby
there
there
and
party,
shall
necessary
everything
ry. .You will do
created,
upon
statutory subrogation
a
lien
help
for
protect
rights
and to
us
those
us
moneys
shall exist in
received which
any
If
advance
them. we recover
enforce
Commissioner, pri-
of the Insurance
favor
policy from
payment
or
made under this
employer,
carrier or self-insured
vate
anyone
injury,
the amount we
liable
applicable.
whichever
any pay-
applied
first be
will
worker,
(e)
injured
duty
It is the
of
by
injury
in excess
made
this
ments
us
personal
his or her
dependents,
or her
his
Amount(s); only
of
then
the Deductible
attorney
representative
his or her
or
recovery,
any,
of
will the remainder
give
notice to
Insurance
reasonable
applied
reduce the Deductible
be
Commissioner,
carrier or self-in-
private
Amount(s) paid or
or reim-
reimbursed
employer
a claim is
sured
you
injury.
this
by
filed
after
bursable
prior
party
to the
against
third
of
and the
From an examination
the record
recovery.
any third-party
disbursement of
law,
applicable
find
circuit court erred
we
subrogation
described
in its
the provisions
determination
apply to uninsured and
section does not
23-2A-l(b)
Virginia Code
did
coverage
or
underinsured motorist
Mining
apply
“Speed
case because
coverage purchased by the
other insurance
employer
a
de-facto self-insured
injured
injured
on behalf of
or
worker
statute,
injured
given
the fact that
its
injured worker
obtains
worker.
If
employee’s
compensation benefits
party
recovery
the in-
a third
from
actually paid
parent corporation,
were
worker,
jured,
personal representative
Coal,
Patriot
who was self-insured.” Other
attorney
pro-
injured
worker’s
fails
communications,
couple,
early
one
than a
statutory right
cre-
tect the
Mining’s
Speed
attorney,
herein,
worker,
injured
personal
ated
Avizent, referring
$2,000,000
deduct
injured
representative and the
worker’s
Mining’s
Speed
ible as
reten
“self-insured
right to
at-
attorney shall lose the
retain
tion” the record is devoid of
evidence
subroga-
torney
out
and costs
fees
supports
circuit
court’s determina
addition, such
cre-
tion amount. In
failure
Mining’s
being
a “de-
Speed
status as
ates
cause
action
Insurance
finding
facto
The circuit court’s
self-insured.”
Commissioner, private carrier or self-in-
finding
is in
conflict with another
also
direct
employer,
applicable,
sured
whichever
of Mr.
made
the court
on the date
worker, personal rep-
against the injured
accident,
Speed
employer,
“his
Min
O’Neal’s
injured
resentative and the
worker’s attor-
ing,
on a
named
insured.
ney
amount
full
compensation
previously been
policy that had
reasonable
and costs
amount and the
fees
Magnum
Company
Coal
Third
issuefd]
any such cause
associated with
action.
Republic
Old
Insurance
Defendant
added). Further,
(emphasis
policy with
Company.
footnote
The aforementioned
Id.
Republic
following
included
million deduct
also relies
$2
Republic provided
work
language
forth
ible.”
contractual
set
insur-
Because
coverage to
concerning
compen-
ers’
its workers’
insurance
ance
finding
24. The circuit
of "de-facto self-
dence in the record that establishes that
court's
Mining complied
procedure
unsupported
with the
established
insured” is also
law. See W.
(2010) (setting
qualify
§ 23-2-9
forth condi-
in this
so as to
as a self-insüred
Va. Code
statute
employer
em-
employer
must
order for an
even a "de-facto self-insured”
tions that
be met in
self-insured).
ployer.
There is no evi-
considered
employer
right of
as
Speed Mining as evinced
“the terms of the
being
on the
expressly preserve
insured
did not
named
settlement
qualified
“private
policy,
as a
Mining’s right
to be reimbursed for workers
provisions
Vir
insurer”25 under
paid to
benefits
Mr. O’Neal
23-2A-l(b). Thus,
ginia
third-parties,”
should he recover monies from
purview
provid
fell within the
statute
such
It
as
defendants.
is the lan-
right
subrogation.
an insurer
guage
contained within this
settlement
regard
indemnity
medical
agreement
that is the Achilles’ heal of Old
recovery
result
the date
Republic’s argument
it is
entitled
injured
against
worker’s claim
third
subrogation.
n
party. See id
Speed Mining
When
settled
Plaintiffs’
Despite
ruling by
the erroneous
action,
intention
deliberate
the settlement
issue,
foregoing
the circuit
on the
agreement,
2011, provided:
dated October
ruling
it made the'
determine
*13
“It
is FURTHER SPECIFICALLY UN-
case,
upon
this
but
incorrect reason
based
DERSTOOD, ACKNOWLEDGED AND
ing.
explained,
As
this
is not
we have
Court
by
parties.
that
Agree-
AGREED
by
upon
reasoning
bound
the incorrect
relied
agreement
encompass-
ment is the entire
by a lower court:
agreements negotiated
es all
by
terms
consistently
We have
“[t]his
held that
any
them in settlement
and all claims
may,
appeal,
judgment
Court
affirm the
relating
Subject
Incident and that
that
appears
the lower court when it
(Em-
writings
other
there
no
is
whatsoever.”
legal
any
such
correct
added).
phasis
record,
ground
by
regardless
disclosed
assigned
ground,
theory
of the
reason
foregoing settlement,
At
time of
by
for its
court as the basis
lower
Speed Mining,
right,
in its
a con-
own
had
3,
judgment.” Syl.
Wolfolk,
Pt. Barnett v.
tractual claim reimbursement under Old
(1965);
246,
149
tiffs entered
we held:
subro-
products liability claim,
depends upon the facts
regarding
gation
and circum
dants
particular
Huggins
of each
v.
Republic sought subrogation of the
stances
Fitzpatrick, 102
135 S.E.
$1,845,197.13,26
amount
W.Va.
which was the
Donohew,
(1926).’
Ray
Syl. pt. 3,
20
v.
Mining,27
177
money
been
that had
(1986).”Bush,
W.Va.
S.E.2d
subject
Republic, under
not Old
491, Syl.
at
Pt.
majority
subrogation
ples
law
is the fact
of common
reasoning
provisions
fallacious
1(b)(1)
right
section
frames
statu-
(2010)
23-2A-l(b)(l)
§
Code
“indemnity
subrogation
tory
based
upon its determi-
applicable
based
were
paid as
date
medical benefits
Mining
was a “de facto self
nation
23-2A-l(b)(l);
§
recovery.”
Re-
W.Va. Code
employer
the statute.”2 After
insured
under
Hibdon,
Ins.
v.
333 S.W.3d
liance
Co.
dismantling
in-
correctly
“self
that erroneous
2011)
(Tex.
(“Statutory
App.
characterization,
majority fell into
sured”
governed by
is
the terms
statute
arguments
advanced
trap misdirected
claimed.”).
1(d),
it is
As in
which
section
By
plaintiffs’
plaintiffs.
adopting the
no
key
payment
but there is
is the fact
operat-
theory that
deductible
the insurance
regard to
the insur-
restriction with
whether
statutory
a bar to Old
ed as
policy pursuant
er
who issued
subrogation,
majority
contra-
receiving
injured
is
com-
worker
unambiguous legislative in-
clear and
vened
pensation
benefits
those benefits direct-
tent,
give
but
failed
effect to
insur-
ly
moneys
indirectly
event the
were
expressly
include the
ance
terms
subject to
deductible.
reason
rights
of sub-
deductible within
insurer’s
purpose
is ‘to
obvious. “The
Adding
majori-
rogation.
injury,
insult to
payment
of a
compel
ultimate
debt
ty
wholly im-
approved
attempted
who,
con-
justice, equity,
good
Republic’s rights
proper “waiver” Old
”
Richardson,
science,
pay
Bush
should
it.’
v.
Mining.3
subrogation by Speed
Decidedly in-
484 S.E.2d
firm,
reasoning
majority’s
crumbles
(internal
omitted).
(1997)
citation
What
analysis.
designed
has
Legislature
compel
con-
a third
who
mechanism
Beginning
language
with
statute
injury
tributed
caused worker’s
dispute,
analyt-
center of this
first
company or
reimburse the insurance
self-
majority’s reasoning appears
ical hole
employer for the
state
insured
statutory right
recognition
that the
injured
employer
requires the
to remit to an
expressly
moneys
linked
worker.
injured
paid out to an
under the
worker
scheme. See W.Va.
in its
the circuit court erred
reason-
Where
23-2A-l(d) (2010) (establishing
man-
majority
adopting
ing, and the
statutory subrogation
datory
reasoning,
lien
favor
was to view the
skewed
*16
Commissioner, private
flowing
carrier or
“a
right
subrogation
par-
Insurance
from
moneys
employer “upon
ty’s
injured
payment
re-
to the
work-
self-insured
benefits
worker,
injured
statutory subrogation
By construing
his or her
ceived” when
de-
er.”
fashion,
representative
imposed a non-
pendents,
personal
or
makes
this
the circuit court
qualification
right
against
party). Noticeably
subroga-
to the
claim
third
absent
existent
statutory
however,
Legislature
solely in
right,
is
tion that
established
employ-
an
language
company,
to
an
of an insurance
that seeks
limit
insurer’s sub-
favor
By
any policy
er
rogation lien
amount of
instance
self-insurance.
en-
statutory
trig-
grafting
exception
clear
an
insurer’s subro-
deductible.
paid
gation
to
lien
fell
ger because the benefits
entitlement
deductible,
23-2A-l(d)
injured
§
policy
within the insurance
Code
Mining's
Speed Mining
"expressly preserve Speed
2. The
makes clear that
failure
record
compensation
compensation
on
right
insured
a workers'
he
a named
reimbursed for workers
Republic.
issued
he
to Mr. O'Neal
recover
should
third-parties.”
from
monies
waiver,
outright
an
trial
Rather than
court
implicit
Speed Mining's
one
on
found an
based
impermissibly
circuit court
altered the statu-
this result seems
be patently
While
tory
Previously,
this
unfair and to
simple logic,
scheme.
Court
contravene
statutory
quick
recognize
that the
prescribed by
nature
outcome is
indeed
compensation system
Legislature; Though
our
equity
workers’
re-
dictates an
judicial
injured employee
permitted
quires both deference and
restraint.
should
Co.,
59,
Cart
obtain
varying
See
v. Gen. Electric
203 W.Va.
recoveries
sources
(1998). In
to limit a
refusing
That
circuit
relinquished
erred in
to seek
reim
*17
subrogation
moneys expended in
any
pay
common
notions of
is demon-
for
law
bursement
recognition in
strated
this Court’s
Bush ment of the
amount of
deductible
Mr.
claim,
legislature expressly
that “the
the O’Neal’s
the
modified
usual,
subrogation
Speed
ordinary meaning
majority faeilely
of
as it
Min
concludes
ing effectively
any
§
in
right—including
that Code
Code
[W.Va.
23-2A-1]
used
waived
by making
inap-
Republic—to
rule
that of
section
made-whole
recover the work
Pt, 4,
375,
plicable.” Syl.
part,
in
199
at
out to
paid
ers’
Mr.
W.Va.
addressing
of
530 paid as of the date of lien to law, only had the the benefits By waive. recovery recovery limit to statutory subrogation. to further right to See and seek from, W.Va, (b)(1); Argo percent § see fifty 23-2A-1 also of the amount Code received 526, Baker, 532 party. Co. v. 87 S.W.3d id. our workers’ com- naut Ins. See Under third 2002) (Tex. (Hankinson, J., dissenting) schema, pensation are no there additional (recognizing employer “does placed subrogation lien. limits express any- subrogation interest under statutory Legislature our That views Code”). Thus, place .of the Labor terms right deserving of subrogation of enforce- language of any analytical credence subrogation in is clear. Included ment call agreement, and to the settlement penalty failing steep pro- statute argument” is Republic’s of Old “Achilles’heal right: statutoiy tect the short-sighted. It is axiomatic that woefully injured recovery If the worker obtains a give up does not party cannot that which worker, injured painty from a third and light statutory of belong him. Because the injured or representative personal Mining, subrogation belong did attorney protect fails statu- worker’s agreement, to Re settlement created'herein, right tory subrogation party, relied public not a cannot be was worker, injured personal representa- right deny Republic a as a basis injured attorney and the worker’s tive subrogation.4 statutory seek right attorney lose to retain fees shall language preserving Old subrogation costs out of the amount. and right pay- all advancements addition, In such failure creates cause deductible, ments, clearly including the was Commissioner, for the Insurance action placed in the contract to reinforce insurance or private carrier employer, self-insured subrogation. By right its includ- applicable, against injured whichever , lien for insurers self- worker, personal representative and the sought Legislature employers, insured injured attorney for worker’s the amount preclude control and to losses and costs subrogation amount of the full situation, recovery” type as a “double means fees and costs associated with reasonable sustainable, establishing com- such cause action. system. pensation Davis & See Robin Jean 23-2A-l(e). Given tactics W.Va. Jr., Palmer, Compensation Louis J. Workers’ by plaintiffs’ counsel to obtain the employed Assessing Virginia: Litigation in West ruling before Old circuit court’s Liberality and Impact position,5 this present its case could even Reform, L. Need Fiscal 107 Rev. W.Va. subterfuge suggests that the smacks (2004). 43, providing right for that 78-79 objective underlying obliterate Old was intentionally subrogation, Legislature statutorily-created subro- right exception omitted for amounts with- affirming gation. In the circuit court’s erro- in The ma- the insurance deductible. neous decision on issue sub- judicial jority’s decision to sanction a altera- majority arguably rogation, the aided what impose tion of the statute certainly like an looks run around end these exception misguided. As this such an penalty provisions. recognized Bush, right “the Court sub- rogation, form it take are concur, ... what respectfully will Accordingly, part, I properly legislature left for the dissent, matters part. 199 484 at determine.” 'S.E.2d W.Va. Legislature
492. The form which our set
up statutory right subrogation, as we
explained Bush, subroga- to limit the majority up 4. The set existence of a deductible. See Ins. its own house cards 15-0012, O'Neal, that, recognizing but Co. v. No. release of insured’s 55 n. WL 3248099 reimbursement n. 2016). claim, (W.Va. typi- *18 contract June terms the insurance cally permit control and an insurer to could lien, supra notwithstanding See note enforce