petition, state ex rel. state auto property ins. v. hon ...procedural mstory of pertinent underlying...

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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

0 [1 ~

STATE OF WEST VIRGINIA ex reI ~ ~AR 2 02017 ~STATE AUTO PROPERTY INSURANCE COMPANIES dba STATE AUTO PROPERTY AND CASUALTY RORY L PERRY n CLERK

INSURANCE COMPANY an Ohio company SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Petitioner

v Docket No

THE HONORABLE JAMES C STUCKY Judge of the Circuit Court ofKanawha County West Virginia and CMD PLUS INC a West Virginia Corporation

Respondents

PETITION FOR WRIT OF PROHffiITION

(Circuit Court ofKanawha County West Virginia Civil Action No ll-C-606) ~~

Counsel for Petitioner State Auto Property Insurance Companies dba State Auto Property and Casualty Insurance Company an Ohio company Petitioner

Trevor K Taylor Esq (designated counsel ofrecord) W Va State Bar LD 8862 ttaylortaylorlawofficewvcom William P Margelis WVa State Bar LD 10530 wmargelistaylorlawofficewvcom TAYLOR LAW OFFICE 34 Commerce Drive Suite 201 Morgantown WV 26501 304-225-8529

TABLE OF CONTENTS

TABLE OF AUTHORITmS bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull iii

QUESTIONS PRESENTED bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 1

STATEME-NT OF THE- CASEbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 1

PROCEDURAL mSTORY OF PERTINENT UNDERLYING ISSUES bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 2

SUMMARY OF THE- ARGUMENT bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 5

STATEME-NT REGARDING ORAL ARGUMENT AND DECISION 10

ARGUMENTbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 10

Standard of Review bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 10

A The Circuit Court committed clear error in rmding CMD presented evidence that State Auto violated its common-law duty of good faith and fair dealing bullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 11

1 The undisputed facts show that State Auto defended the claims brought the Evanses and the City of Charlestonbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 12

2 The undisputed facts show that State Auto indemnified CMD for the claims brought the Evanses and the City of Charleston 14

B The Circuit Court committed clear error in finding CMD presented evidence that it had a claim under West Virginia Unfair Trade Practices Act 16

C The Circuit Court committed clear error by concluding there was evidence that CMDS common law bad faith allegations and violations of the West Virginia Unfair Trade Practices Act were timely rued bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 16

D The Circuit Court erred in rmding that CMD presented evidence to support a claim for breach ofcontractbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 25

CONCLUSION bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 27

iii

TABLE OF AUTHORITIES

Cases

Accord Wood v Carpenter 101 US 135 (1879) 20

Benson v AJR Inc 226 WVa 165698 SE2d 638 (2010) 25

Brohawn v Transamerica Ins Co 276 Md 396 347 A2d 842 (1975) 13

Crawford v Taylor 138 W Va 207 75 SE2d 370 (1953) 10

Daugherty v Allstate Ins Co 55 P3d 224 (ColoApp2002) 11 1626

Evanston Ins Co v GAB Bus Services Inc 521 NYS2d 692 132 AD2d 180 (1987) 17 18

Evanston Ins Co v Sec Assur Co 715 F Supp 1405 (ND TIL 1989) 17

Executive Risk Indem Inc v Charleston Area Med Ctr Inc 681 F Supp 2d 694 (SD W Va 2009) 25

Frantz v Palmer 211 W Va 188564 SE2d 398 (2001) 20

Gaddy Engg Co v Bowles Rice McDavid Graffamp Love LLP 231 WVa 577 746 SE2d 568 (2013) 6 12

Graham v Beverage 211 WVa 466566 SE2d 603 (2002) 82324

Griggs v Bertram 88 NJ 347443 A2d 163 (1982) 13

Halls Park Motel Inc v Rover Construction Inc 194 WVa 309460 SE2d 444 (1995) 23 24

Highmark W Va Inc v Jamie 221 WVa 487 655 SE2d 509 (2007) 6 12

iv

Humble Oil amp Ref Co v Lane 152 W Va 578 165 SE2d 379 (1969) ~ 20

1 W Ellison Son amp Co v Flat Top Grocery Co 69W Va 380 71 SE 391 (1911) 25

Johnson v Nedeff 192 WVa 260 452 SE2d 63 (1994) 20

Kesner v Lancaster 180 W Va 607 378 SE2d 649 (1989) 25

Loudin v Natl Liab amp Fire Ins Co 228 middotWVa 34 716 SE2d 696 (2011) 11 1226

Merchants Indemnity Corp v Eggleston 37 NJ 114 179 A2d 505(1962) 13

Natl Union Fire Ins Co ofPittsburgh Pa v Contl Illinois Corp 673 F Supp 300 (ND 111 1987) 17

Noland v Virginia Ins Reciprocal 224 WVa 372 686 SE2d 23 (2009) 6 7 8 11 121621222326

Perdue v Hess 199 W Va 299 484 SE2d 182 (1997) 1920

Safeco Title Ins Co v Gannon 774 P2d 30 33 (Wash App 1989) 17

Sherwood Brands Inc v Hartford Acc and Indemnity Co 347 Md 32 698 A2d 1078 (1996) 12 13

State el rei Brison v Kaufman 213 W Va 624 584 SE2d480 (2003) 15 16

State ex rei Allstate Ins v Gaughan 203 W Va 358 508 SE2d 76 (1998) 15

State ex rei Hoover v Berger 199 WVa 12 483 SE2d 12 (1997) 10 11

State ex rei Nationwide Mutual Insurance Co v Wilson 236 WVa 228 778 SE2d 677 (2015) 10

v

State ex reI Preacher v Sencindiver 160 WVa 314 233 SE2d425 (1977) 10

State ex reI Vineyard v 0 Brien 100 WVa 163 130 SE 111 (1925) 10

State v Elder 152 WVa 571 165 SE2d 108 (1968) 18

Stevens v Sounders 159 W Va 179220 SE2d 887 (1975) 1920

Williams v Precision Coil Inc 194 WVa 52459 SE2d 329 (1995) 6

Wilt v State Auto Mut Ins Co 203 WVa 165506 SE2d 608 (1998) 721

Wittenberg v Wells Fargo Bank NA 852 F Supp 2d 731 (NDW Va 2012) 25

Wright v Myers 215 W Va 162597 SE2d 295 (2004) 20

Statutes

W Va Code sect 33-11-4(9) 78 16 17 18 1921

West Virginia Code sect 33-11-1 to 10 21

West Virginia Code sect 53-1-1 1 10

West Virginia Code sect55-2-12(c) 2021

Rules

Ru1e 18(a) of the West Virginia Rules ofAppellate Procedure 10

West Virginia Ru1e of Civil Procedure 12(b)( 6) 2

Constitutional Provisions

Article VIII sect3 of the West Virginia Constitution 1

vi

OUESTIONSPRESENTED

A Whether pursuant to West Virginia law the Circuit Court erred in finding that CMD Plus Inc presented evidence that State Auto breached a common-law duty of good faith and fair dealing

B Whether the Circuit Court erred in finding that CMD Plus Inc presented evidence that it had a claim under the West Virginia Unfair Trade Practices Act

C Whether pursuant to West Virginia law the Circuit Court erred in concluding that a breach of the duty to defend and a breach of the duty to indemnify constitute continuous torts

D Whether the Circuit Court erred in finding that CMD Plus Inc presented evidence to support aclaim for breach ofan insurance contract

STATEMENT OF THE CASE

This Petition arises out of a civil action now pending in the Circuit Court of Kanawha

County West Virginia before respondent The Honorable James C Stucky styled Barry G

Evans and Ann M Evans Plaintiffs v CMD Plus Inc a West Virginia Corporation C K Shah

Chandrakant N Shah and Kimberly S Shah Defendants and CMD Plus Inc a West Virginia

Corporation Third-Party Plaintiff v State Auto Property Insurance Companies dba State Auto

Property and Casualty Insurance Company an Ohio company Third Party Defendant Civil

Action No II-C-606 This Petition for Writ of Prohibition is filed pursuant to Article VIII sect3

of the West Virginia Constitution granting this Court original jurisdiction in prohibition and

West Virginia Code sect 53-1-1 This Petition for Writ of Prohibition seeks reliefftom an Order

denying State Autos Motion for Summary Judgment

I

PROCEDURAL mSTORY OF PERTINENT UNDERLYING ISSUES

This case stems from the home construction activities performed by CMD Plus Inc that

caused earth to move and damage adjacent landowners property and the City of Charlestons

sewer line This case has a long and complex procedural history having been appealed to this

Court twice already and now for a third time App at 000277-000290 Each time the issues for

this Court to consider have been unique In a Memorandum Decision filed on June 142016

this Court found that CMD Plus Incs (hereinafter sometimes referred to as CMD) could

survive a motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(6) [d

However upon return of this case to Circuit Court the parties conducted additional discovery

As discussed below the new evidence exposes CMDs common law bad faith claims statutory

bad faith claims and breach ofcontract claims as wanting ofany supporting evidence

After this case was returned to Circuit Court CK Shah President of CMD testified at a

deposition on September 212016 App at 000314-000335 Mr Shah cleared up any questions

of fact with regard to whether State Auto met its duty to defend CMD

In March 2009 CMD was alerted by the downslope homeowners Barry G and Ann M

Evans (hereinafter sometimes referred to as the Evanses) that there was damage to the

Evanses property related to the washout and slippage from the subject property so Mr Shah

(acting on behalf of CMD) contacted CMDs insurance carrier State Auto Mr Shah denied any

negligence during the construction activities on the subject property but nevertheless the

Evanses filed suit against CMD Mr Shah and Mr Shahs wife Kimberly Shah (hereinafter

sometimes referred to collectively as the Defendants) alleging nuisance trespass and

negligence Id at 000320 Mr Shah admitted that State Auto hired Attorney Dave Cook to

defend the Defendants against the claims brought by the Evanses [d at 000322 Mr Shah

2

denied any instances where Mr Cook failed to defend the lawsuit and he agreed that Mr Cook

did his job Id at 000329 Mr Shah acknowledged that in defense of the claims against the

Defendants Mr Cook answered the Complaint that was filed by the Evanses participated in

inspections defended Mr Shah at a deposition answered discovery filed by the Plaintiffs and

handled all the pre-trial filings Id at 000323-000326 Mr Shah testified that Mr Cook retained

Greg Boso as an expert to investigate the Evanses claim Id at 000326 Mr Shah admitted that

he was not required to pay anything for either Mr Cooks or Mr Bosos services Id at 000330

In fact Mr Shah admitted that he was not required to pay any costs associated with the litigation

commenced by the Evanses and that he and his company were defended professionally by Mr

Cook Id at 000331-000332

Mr Shahs testimony also resolved any genuine issues of fact regarding State Autos

duty to indemnify the Defendants for the claims brought by the Evanses Mr Shah admitted that

Mr Cook ultimately settled the Evanses claim based on the proceeds paid by State Auto Id at

000331 No judgment was ever entered against Mr Shah his wife or CMD Id Mr Shah

admitted that Mr Cook obtained a release of claims by the Evanses from all damage claims

including future claims related to the alleged slope failure and any of the incidents alleged in the

Evanses Civil Action No ll-C-606 Id at 00328

Mr Shah also cleared up any unresolved issues with regards to State Autos duty to

defend and indemnify the Defendants for the claims brought by the City of Charleston During

his deposition Mr Shah admitted that he was infonned of a potential problem at the back of his

property with the City of Charlestons sewer line by an engineer retained to investigate by State

Auto Daren Franck However he told Mr Franck that the sewer line was below the slip and

Mr Franck didnt need to worry about it App at 000318 Despite Mr Shahs assurances it

3

was subsequently discovered that there was ovulation to the sewer line ld While he did not

believe that ovulation constituted failure of the sewer line Mr Shah acknowledged that the

sewer line quickly became an issue after the initial slip He admitted to difficulty getting the

repairs completed because the City of Charleston insisted on repairs their way or the highway

ld at 000319

Ultimately the Charleston Sanitary Board asked Mr Shah to pay $44846 for damages to

the sewer line caused by the work CMD perfonned at the property located at Meadow Road ld

at 000334 Mr Shah admitted that it was his expectation that State Auto pay the full amount

and he admitted that State Auto ultimately paid approximately $5500000 to have the sewer line

relocated This amount included an additional $900000 for overrun costs ld at 000335

Regarding the claims asserted by the City of Charleston no judgment was ever entered against

Mr Shah his wife or CMD ld at 000332 Mr Shah admitted that Mr Cook prepared a

release of claims that absolved the Defendants of future liability related to damage to the sewer

line arising out of the construction activities at 6 Meadow Drive ld at 000326 As was the

case with the litigation involving the Evanses the Defendants were not required to pay any

money in conjunction with the settlement of the sewer line claim

Mr Shahs testimony resolved any outstanding issues regarding whether CMD asserted a

claim under its commercial liability policy CMD by its President Mr Shah was aware that

its policy was a liability policy only ld at 000317 In other words Mr Shah as President of

CMD understood that the policy did not cover repairs to property he owned By virtue of this

admission he acknowledged that the previously entered stipulation (Le CMD is not making an

indep~dent claim against State Auto seeking damages for any repairs alterations enhancements

4

maintenance restorations or replacements on the Shah or CMDs property) was correct insofar

as CMD had no claim for damages to its own property App at 00021 000317

Finally Mr Shahs testimony resolved any dispute of fact as to when he was aware of

State Autos alleged bad faith Even though Mr Shah admitted that State Auto provided legal

counsel and settled the claims brought by the Evanses and the City of Charleston Mr Shah still

believed that State Auto acted in bad faith regarding the handling of these claims Mr Shah

testified that he believed State Autos bad faith began September or October 2009 ld at

000333

Having resolved any genuine issues of fact regarding CMDs third party claims for

common law bad faith statutory bad faith and breach of contract (as well as the timeliness or

lack th~eof of the bad faith claims) State Auto moved for summary judgment on January 16

2017 App at 000291-347 The Court entertained arguments on this motion on February 8

2017 and the Court summarily denied State Autos motion at that time without explanation The

Court signed an Order prepared by CMDs counsel on March 2 2017 without any modifications

to counsels account of the facts law or conclusions ld at 00001-00010 It is from this Order

that State Auto seeks the instant Writ ofProhibition

Currently the Circuit Court has this case set for trial on May 1 2017 App at 000348

State Auto has filed contemporaneously with this Writ its Motion to Stay Proceedings in the

Circuit Court ofKanawha County West Virginia Pending Resolution ofWrit ofProhibition

SUMMARY OF THE ARGUMENT

The instant issue submitted by this Writ of Prohibition is whether the Circuit Court

committed clear error in finding that CMD presented sufficient facts to survive summary

judgment The Circuit Court erred because CMD has presented no evidence to satisfy this

5

heightened standard SyI Pt2 of Williams v Precision Coil Inc 194 WVa 52459 SE2d

329 (1995)

With the standard for summary judgment in mind the Circuit Court committed clear

error in holding that CMD presented evidence to support a claim for common law bad faith As

discussed below the duty to act in good faith and the contractual duties in the insurance policy

must coexist before a claim of bad faith can be maintained Since these duties must coexist

CMD must show evidence of a breach of the duty of good faith and the contractual duties See

Noland v Virginia Ins Reciprocal 224 WVa 372 686 SE2d 23 37 (2009) see also Gaddy

Engg Co v Bowles Rice McDavid Graff amp Love LLP 231 WVa 577 587 746 SE2d 568

578 (2013) see also Highmark W Va Inc v Jamie 221 WVa 487492 655 SE2d 509 514

(2007)

The insurance contract at issue established two duties 1) the duty to defend and 2) the

duty to indemnify The Circuit Court committed clear error because CMD presented no

evidence that State Auto breached either the duty to defend or the duty to indemnify CMD for

the claims brought by the Evanses and the City of Charleston There is no dispute that State

Auto hired a competent attorney to represent CMDs interests This attorney successfully

negotiated a compromise of all the claims by the Evanses and the City of Charleston This

compromise included a full release from liability by both the Evanses and the City of Charleston

for all damages including future damages CMD was required to pay nothing to these parties

and nothing for the legal services it received

The Circuit Court when faced with undisputed evidence that State Auto met both

contractual duties simply expanded these duties to include obligations far beyond what was

contractually agreed upon The Circuit Court incorrectly held that failure to propose a remedy to

6

resolve the Evanses claim failure to promptly and appropriately approve and resolve the claim

and failure to hire an independent lawyer to represent CMDs interests in the litigation filed by

the Evanses supported the conclusion that the contractual duties to defend and indemnify were

breached The Circuit Court has created new duties that were not contracted for and in effect

rewrote the insurance policy

The Circuit Court committed clear error in finding that CMD presented evidence that it

had claims pursuant to W Va Code sect33-11-4(9) The undisputed facts show Mr Shah

agreed conceded and stipulated that the policy at issue provided no coverage for CMDs claims

and the evidence clearly establishes that CMD could never assert a loss claim under its liability

policy Moreover Mr Shah agreed that the claims in this matter belonged to the Evanses and

the City ofCharleston

The undisputed facts show that neither CMDs common law claims for bad faith nor its

statutory bad faith claims were timely filed and the Circuit Court committed clear error by

finding that more than one conclusion could be reached regarding the timeliness of CMDs

claims Mr Shahs deposition testimony resolves any genuine issue of fact as to whether CMDs

claims are time barred

A one year statute of limitations applies to both CMDs common law and statutory bad

faith claims SyI Pt 5 Noland v Virginia Ins Reciprocal 224 WVa 372 686 SE2d 23

(2009) SyI Pt 1 Wilt v State Auto Mut Ins Co 203 WVa 165506 SE2d 608 (1998) Mr

Shah admitted in his deposition that he believed State Autos actions in September and October

2009 were the beginning of the so called bad faith App at 000333 Fortunately this Court

need not rely exclusively on Mr Shahs memory to confirm this timeframe because counsel for

CMD was thorough enough to memorialize this conclusion in an October 28 2009 letter to State

7

Auto This letter advised State Auto of damages resulting from State Autos alleged failure to

promptly and properly handle the claim App at 00064 Thus there was no genuine dispute of

fact that CMD was aware of its alleged bad faith claim in October 2009 This was the date from

which the one year statute of limitations began to run Yet CMD did not seek leave to file its

Third-Party Complaint until September 26 2011 nearly two years after the alleged bad faith

occurred and nearly one year after the statute oflimitations expired Even then CMDs motion

was not heard until January 2012 and the Third-Party Complaint was not filed until March 20

2012 Thus it is clear that the statute oflimitations had long expired by the time CMD filed it its

Third-Party Complaint

The Circuit Court again faced with indisputable evidence simply invented a new rule

holding that a bad faith breach of an insurance contract is a continuous tort The Circuit Court

completely dismissed this Courts holding in Noland insofar as this holding dealt with the duty to

defend In Syl Pt 5 of Noland this Court stated that in a first-party bad faith claim that is

based upon an insurers refusal to defend and is brought under W Va Code sect 33-11-4(9) (2002)

(Repl Vol 2006) andor as a common law bad faith claim the statute oflimitations begins to run

on the claim when the insured knows or reasonably should have known that the insurer refused

to defend him or her in an action Noland 686 SE2d 23 Thus any claims based on the

failure of the duty to defend (eg the alleged failure to hire an independent lawyer to represent

CMDs interests in the litigation filed by the Evans) must have been filed by late October 2010

Further while it is noted that Noland dealt exclusively with the duty to defend the statute

of limitations should apply with equal force with regard to the duty to indemnify Accordingly

the Circuit Courts reliance on Graham v Beverage 211 WVa 466 566 SE2d 603 (2002) is

misplaced It is counterintuitive that the Circuit Court would rely on Graham instead ofNoland

8

in concluding that a claim ofbad faith breach of an insurance contract constitutes a continuing or

repeated injury Contrary to the Circuit Courts finding CMDs claims that State Auto breached

its duty to indemnify do stem from a discrete occurrence in Oc~ober 2009 As discussed above

State Auto indemnified CMD but even assuming a breach of this duty could be identified by

Mr Shahs own admissions CMD knew of the alleged bad faith in October 2009 At that

moment the statute of limitations began to run

To hold that the breach of the duty to indemnify constitutes a continuous tort would cause

uncertainty for litigants and hamper judicial economy In essence the statute of limitations

would have no force of law whatsoever For example if an insurer were to decline to indemnify

an insured for claim bought against it the insured could bring a bad faith claim at any time in the

future because the continued refusal to indemnify would be considered a continuous tort The

claim could be brought two years later (as in the instant case) five years later 100 years later

etc because the statute would never run Such a result is irrational and the Circuit Court

committed clear error in its application of the statute of limitations to the facts of this specific

case

Finally the Circuit Court erred in concluding that CMD presented evidence to support its

breach of contract claims Fundamentally this claim by CMD is duplicative of its allegations of

common law bad faith As discussed above there is no policy provision that CMD can point to

that State Auto in violation of its duty to act in good faith and deal fairly with CMD breached

Because State Auto both defended and indemnified CMD throughout the underlying litigation

under the COL Policy and bec~use the COL Policy provides no coverage to CMD for damages to

its own property no evidence was presented of a breach of contract Accordingly permitting

this case to go forward on this claim was clear error

9

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Pursuant to Rule 18(a) of the West Virginia Rules ofAppellate Procedure oral argument

in this case is unnecessary because the principle issues in this case have been authoritatively

decided previously and the facts and legal arguments are adequately presented in this brief and

the record on appeal If the Court determines that oral argument is necessary this case is

appropriate for a West Virginia Rule of Appellate Procedure 19 argument and disposition by

memorandum decision

ARGUMENT

Standard of Review

This Court has previously stated that [t]he writ of prohibition will issue only in clear

cases where the inferior tribunal is proceeding without or in excess ofjurisdiction SyI State

ex rei Vineyard v OBrien 100 WVa 163 130 SE 111 (1925) see also SyI Pt 1 Crawford

v Taylor 138 W Va 207 75 SE2d 370 (1953) (Prohibition lies only to restrain inferior courts

from proceeding in causes over which they have no jurisdiction or in which having jurisdiction

they are exceeding their legitimate powers and may not be used as a substitute for writ of error

appeal or certiorari) SyI Pt 2 State ex rei Preacher v Sencindiver 160 WVa 314 233

SE2d 425 (1977) (A writ of prohibition will not issue to prevent a simply abuse of discretion

by a trial court It will only issue where the trial court has no jurisdiction or having such

jurisdiction exceeds its legitimate powers WVa Code 53-1-1)

This Court has defined the standard for issuance of a writ of prohibition where it is

claimed that the lower tribunal exceeds its legitimate powers State ex rei Nationwide Mutual

Insurance Co v Wilson 236 WVa 228 778 SE2d 677 (2015) (quoting SyI Pt 4 State ex rei

10

Hoover v Berger 199 WVa 12 483 SE2d 12 (1997) This Court examines the following

factors

(1) whether the party seeking the writ has no other adequate means such as direct appeal to obtain the desired relief (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal (3) whether the lower tribunals order is clearly erroneous as a matter of law (4) whether the lower tribunals order is an oft repeated error or manifests persistent disregard for either procedural or substantive law and (5) whether the lower tribunals order raises new and important problems or issues of law of first impression

ld (quoting Syl Pt 4 State ex rei Hoover v Berger 199 WVa 12 483 SE2d 12 (1997raquo

This Court has held that [t]hese factors are general guidelines that serve as a useful starting

point for determining whether a discretionary writ of prohibition should issue Although all five

factors need not be satisfied it is clear that the third factor the existence of clear error as a

matter of law should be given substantial weight ld (quoting Syl Pt 4 Berger 483 SE2d

12)

A The Circuit Court committed clear error in rmding CMD presented evidence that State Auto violated its common-law duty of good faith and fair dealing

The Circuit Court erred in denying summary judgment with respect to CMDs common

law bad faith claims because CMD presented no evidence that State Auto breached either the

duty to defend or the duty to indemnify CMD The Circuit Court when faced with undisputed

evidence that State Auto met both duties simply expanded these duties to include requirements

far beyond what was contractually required

This Court has recognized that the duty at issue in a bad faith breach of insurance

contract claim is the insurance companys duty to act in good faith and deal fairly with its

insured See Noland v Virginia Ins Reciprocal 224 WVa 372 686 SE2d 23 37 (2009)

(quoting Daugherty v Allstate Ins Co 55 P3d 224 228 (ColoApp2002raquo see also Loudin v

11

Natl Liab amp Fire Ins Co 228 WVa 34 716 SE2d 696 th 9 (2011) (quoting Noland 686

SE2d at 37) However the insurance company is not called upon to perform this duty until

some contractual duty imposed by the insurance policy has arisen Id While the contractual

duty and the duty to act in good faith are separate and distinct duties they are related and both

must exist simultaneously to create a bad faith claim Id In other words claims for bad faith

and breach of an insurance contract are not separate and unique from one another and the

damages one can recover under each overlap See Gaddy Engg Co v Bowles Rice McDavid

Graff amp Love LLP 231 WVa 577 587 746 SE2d 568 578 (2013) (holding that this Court

has declined to recognize an independent claim for a breach of the common law duty of good

faith and has instead held that such a claim sounds in breach of contract) see also Highmark

W Va Inc v Jamie 221 WVa 487 492 655 SE2d 509 514 (2007) (holding that breaching

an implied covenant of good faith and fair dealing does not provide a cause of action apart from

a breach ofcontract claim)

Thus to maintain a cause of action for common law bad faith a breach of the insurance

contract is a condition precedent In this case the Commercial General Liability Coverage Form

establishes only two contractual obligations owed to CMD by State Auto the duty to defend and

the duty to indemnify CMD has presented no evidence that either duty was breached

1 The undisputed facts show that State Auto defended the claims brought the Evanses and the City of Charleston

Section I Coverage A Bodily Injury and Property Damage Liability the policy states

we will have the right and duty to defend the insured against any suit seeking those damages

Essentially within the context of an insurance contract the duty to defend is a covenant to

protect the insured from the expense of defending suits brought against him Sherwood

Brands Inc v Hartford Acc and Indemnity Co 347 Md 3243698 A2d 1078 (1996) (quoting

12

Brohawn v Transamerica Ins Co 276 Md 396 409-10 347 A2d 842 851 (1975) The duty

to defend is a contractual right of control Griggs v Bertram 88 NJ 347 356 443 A2d 163

167 (1982) which is vitally connected with the obligation to pay the judgment Merchants

Indemnity Corp v Eggleston 37 NJ 114 127 179 A2d 505 511 (1962) This is because the

outcome of the suit depends upon skill in investigation in negotiations for settlement and in the

conduct of the lawsuit Id

Under the terms of the Commercial General Liability Coverage Form State Auto made a

contractual promise to protect CMD from the expense of litigation and by virtue of the contract

State Auto had discretion as to how it met this duty Yet the Circuit Court redefined this duty

and essentially rewrote the insurance contract holding that

Additionally CMD has put forth evidence that State Auto failed to properly defend and indemnify CMD throughout the claim process Such evidence includes that State Auto failed to properly investigate the claim failed to propose a remedy to resolve the Evans claim failed to promptly and appropriately approve and resolve the claim and failed to hire an independent lawyer to represent CMDs interests in the litigation filed by the Evans This Court finds that the duty to defend and indemnify are not met merely by providing the insured with an attorney and ultimately obtaining a release ofthe insured

App at 00007 (emphasis supplied)

The Circuit Courts holding that the duty to defend [was not met by] merely by

providing the insured with an attorney oversimplifies what actually happened in this case

More importantly the Circuit Court erred because citing no authority it created a broader duty

to defend that what was contractually required The reason for the lack of authority cited is

simple there is no authority that requires State Auto to act as the Circuit Court outlined State

Auto had a contractual right of control over the defense of this claim and this is logical because

ultimately it was State Auto which was required to pay to settle the claims with the Evanses and

13

the City ~f Charleston Thus the manner in which it chose to defend this claim does not

demonstrate failure to satisfy the duty to defend because neither CMD nor Mr Shah was

required to pay anything to settle this claim

Further contrary to the Circuit Courts holding State Auto did not merely provide an

attorney At all times during the pendency of the underlying litigation by the Evanses State

Auto defended CMD State Auto also defended CMD against the claims brought by the City of

Charleston In his deposition Mr Shah admitted that State Auto retained Dave Cook to defend

CMD in the law suit brought by the Evanses App at 000329 Mr Shah admitted that Dave

Cook did his job ld Neither CMD nor Mr Shah were required to pay anything to Mr Cook

and they were not required to pay expenses associated with Mr Cooks defense of the litigation

instituted against CMD ld at 000331-000332 Likewise CMD and Mr Shah were not

required to pay for any ofthe legal services Mr Cook perfonned in defending CMD against the

claims brought by the City of Charleston ld at 000326

To extend State Autos duty to defend in the manner defined by the Circuit Court would p

in effect be to rewrite the Policy CMD has presented no evidence that State Auto failed to

provide a defense or failed to pay for said defense Thus the Court erred in finding that State

Auto breached its common-law duty to defend the claims brought by the Evanses and the City of

Charleston

2 The undisputed facts show that State Auto indemnified CMD for the claims brought the Evanses and the City of Charleston

Like the duty to defend the Circuit Court has created an obligation to indemnify that

exceeds the contractual requirements by finding this duty is not met by ultimately obtaining a

release of the insured App at 00008 Again the Court cites no authority for this conclusion

and this is because there is no authority for this conclusion This duty is unambiguously defined

14

in the contract Under Section I - Coverage A Bodily Injury and Property Damage Liability the

insuring agreement obligates State Auto to pay those sums that the insured becomes legally

obligated to pay as damages because ofbodily injury or property damage to which this insurance

applies There is no dispute that Slate Auto paid those sums CMD became legally obligated to

pay as damages because ofproperty damage

Litigation in the underlying matter was resolved by settlement Pursuant to the terms of

that settlement State Auto paid to resolve all claims asserted by the Evanses against CMD while

securing a complete release of CMD from all liability relating to the allegations contained in the

Evanses Complaint During his deposition Mr Shah admitted that no judgment was entered

against CMD and no settlement was negotiated wherein payment was demanded of CMD

Likewise the underlying matter with the City of Charleston was resolved with State Auto paying

$5500000 to relocate the sewer line that was damaged during the slippage event Again Mr

Shah admitted that no judgment was entered against CMD and no settlement was negotiated

wherein payment was demanded ofCMD Dave Cook assisted in securing a complete release of

CMD from all liability relating to the damages to the sewer line

Since CMD did not have to pay money out of pocket to resolve either the matter with the

Evanses or the City of Charleston CMD cannot as a matter of law show that State Auto

breached its duty to indemnify it for sums it was legally obligated to pay Therefore the Court

erred in finding that CMD presented evidence that this duty was breached

The Circuit Court found that an excess judgment against the insured is not required to

maintain a bad faith action by an insured against its own insurer for failing to use good faith in

settling a claim brought against the insured App at 00007 see also State ex rei Allstate Ins v

Gaughan 203 W Va 358 508 SE2d 76 86 (1998) but see State el rei Brison v Kaufman

15

213 W Va 624 584 SE2d 480490 (2003) (noting that a first-party bad faith action may arise

as a result of the insurers failure to use good faith in settling a lawsuit by a third-party the

insured hanned resulting in an excess judgment against the insured) Even though an

excess judgment is not required to show common law bad faith it is clear that the liability policy

does not provide for the recovery of first party losses As discussed above this Court has held

that [w ]hile the contractual duty and the duty to act in good faith are separate and distinct

duties they are related and both must exist simultaneously to create a bad faith claim See

Noland v Virginia Ins Reciprocal 224 WVa 372 686 SE2d 23 37 (2009) (quoting

Daugherty v Allstate Ins Co 55 P3d 224 228 (ColoApp2002) Here there was no

contractual obligation to indemnify CMD beyond the duty to pay those sums that CMD became

legally obligated to pay as damages because of property damage Since the contractual duty and

the duty to act in good faith both must exist simultaneously to maintain a cause of action they

must likewise both be breached to maintain the same As discussed above State Auto paid all of

the sums CMD was legally required to pay under the contract Accordingly the Court

committed clear error because there is no dispute of fact that the contractual duty to indemnify

was satisfied

B The Circuit Court committed clear error in fmding CMD presented evidence that it had a claim under West Virginia Unfair Trade Practices Act

The Circuit Court committed clear error in finding that CMD is a first-party claimant and

has a cause of action for State Autos alleged violations of sect33-11-4(9) in settling claims that

CMD became legally obligated to pay App at 00008 State Aut9 acknowledges that this

Court has held that CMD could state a claim for violations of the West Virginia UTPA

Inasmuch as a private cause of action exists for violations of W Va Code sect 33-11-4(9) and CMD alleged in its third-party complaint violations of W Va Code sect 33-11-4(9) we find that

16

CMD set forth sufficient infonnation to outline the elements of a statutory bad faith claim

Id Under this Courts holding CMD could assert a claim if it presented facts that it had a

claim However the undisputed facts show that CMD could not assert a claim in the context of

the cited provisions of the West Virginia UTPA 111 denying State Autos Motion for Summary

Judgment the Circuit Court ignored the plain language of the statute with respect to the specific

facts of this case Quite simply even if CMD can be a first party claimant under the West

Virginia UTPA the cited provisions are not applicable to CMDs claims

The undisputed facts show Mr Shah agreed and conceded that the policy at issue

provided no coverage for CMDs claims and the evidence clearly establishes that this could

never be a loss claim Moreover he agreed that the claims in this matter belonged to the

Evanses and the City of Charleston The Subsections of WVa Code sect 33-11-4(9) relied upon

by CMD are subsection (9)(b) and subsection (9)(t) In the context of a liability insurance

policy subsections (9)(b) and (9)(t) are designed to protect plaintiffs who seek liability-related

damages from an insured and not designed to protect the insured

Subsection (9)(b) pertains to communications with respect to claims and subsection

(9)(t) pertains to settlements of claims in which liability has become reasonably clear In the

context of a liability insurance policy the tenn claim is used in its common (and common

sense) usage an effort by a third party to recover money from the insured See Evanston Ins

Co v Sec Assur Co 715 F Supp 1405 1412 (ND m 1989) (quoting Natl Union Fire Ins

Co ofPittsburgh Pa v Contl Rlinois Corp 673 F Supp 300 307 n17 (ND lll 1987) A

[c]laim ordinarily means a demand on the insured for damages resulting from the insureds

alleged negligent act or omission Safeco Title Ins Co v Gannon 774 P2d 30 33 (Wash

App 1989) A claim must relate to an assertion of legally cognizable damage and must be a

17

type ofdemand that can be defended settled and paid by the insurer Evanston Ins Co v GAB

Bus Services Inc 521 NYS2d 692 695 132 AD2d 180 (1987)

In the context of the commercial genera1liability insurance policy issued by State Auto to

CMD the claims at issue in subsections (9)(b) and (9)(f) are the demands upon CMD by Mr

and Mrs Evans and by the Charleston Sanitary Board for compensation for the damages

resulting from CMDs alleged negligent act or 9mission Hence to the extent State Auto failed

to act reasonably promptly upon communications with respect to claims or failed to

effectuate prompt fair and equitable settlements of claims in this case the UTP A protects

only the efforts by Mr and Mrs Evans and the Charleston Sanitary Board to recover legally

cognizable damages from CMD by way of State Autos liability policy As the insured protected

by the liability policy CMD could make no type of demand that could be defended settled and

paid by State Auto Moreover CMD stipulated in the pleadings in this case that CMD was not

even making an independent claim Accordingly CMDs claims for violations of subsection

(9)(b) or subsection (9)(f) of WVa Code sect 33-11-4 cannot be supported under the law and the

undisputed facts of this case

The third subsection of WVa Code sect 33-11-4 relied upon by CMD is subsection (9)(g)

That subsection prohibits an insurer from [ c ]ompelling insureds to institute litigation to recover

amounts due under an insurance policy by offering substantially less than the amounts ultimately

recovered in actions brought by the insureds when the insureds have made claims for amounts

reasonably similar to the amounts ultimately recovered WVa Code sect 33-11-4(9)(g) This

section has no application to a liability insurance policy In West Virginia where the language

of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting

to the rules of interpretation Syl Pt 2 State v Elder 152 WVa 571 165 SE2d 108 (1968)

18

Under the commercial general liability policy issued by State Auto CMD was entitled to

two things a defense against a liability claim from a third party and indemnification of any

damages (within policy limits) due to the third party as a result of CMDs alleged negligent act or

omission WVa Code sect 33-11-4(9)(g) only applies to claims for amounts and there is no

authority suggesting CMD had a right to recover amounts due under the State Auto policy

Consequently the Circuit Court erred in denying summary judgment on CMDs claims under

WVa Code sect 33-11-4(9)(g)

The Circuit Court committed clear error because the undisputed facts show that CMD did

not have a claim under its insurance policy and thus the cited provisions of the West Virginia

Unfair Trade Practices Act are inapplicable

C The Circuit Court committed clear error by concluding there was evidence that CMDS common law bad faith allegations and violations of the West Virgihia Unfair Trade Practices Act were timely rIled


statutory bad faith claims were timely filed and the Circuit Court committed clear error in

reaching its conclusion regarding the timeliness of CMD s claims

This Court has addressed in depth the issues underling the statute of limitations and how

strictly this rule is to be applied Statutes of limitations impose very strict temporal requirements

within which a cause ofaction must be initiated See eg Syl pt 2 Perdue v Hess 199 W Va

299 484 SE2d 182 (1997) (The ultimate purpose of statutes of limitations is to require the

institution of a cause of action within a reasonable time) Syl pt 1 in part Stevens v

Sounders 159 W Va 179220 SE2d 887 (1975) (Statutes oflimitation are statutes of repose

and the legislative purpose is to compel the exercise of a right of action within a reasonable

time[]) superseded by statute on other grounds as stated in Frantz v Palmer 211 W Va 188

19

564 SE2d 398 (2001) Failure to file a lawsuit within such time periods usually results in the

dismissal of the action as having been untimely filed Wright v Myers 215 W Va 162 597

SE2d 295 (2004)

Statutes of limitations provide certainty for litigants and promote judicial economy See

eg SyI pt 2 Perdue 199 W Va 299 (The ultimate purpose of statutes of limitations is to

require the institution of a cause of action within a reasonable time) SyI pt 4 Humble Oil amp

Ref Co v Lane 152 W Va 578 165 SE2d 379 (1969) (Statutes of limitation are statutes of

repose the object of which is to compel the exercise of a right of action within a reasonable

time) In other words [s ]tatutes of limitation are statutes of repose and the legislative purpose

is to compel the exercise of a right of action within a reasonable time such statutes represent a

statement of public policy with regard to the privilege to litigate and are a valid and

constitutional exercise of the legislative power SyI pt 1 Stevens 159 W Va 179 (superseded

by statute on other grounds as stated in Frantz 211 W Va 188) Accord Woody Carpenter 101

US 135 139 (1879) (Statutes of limitation are vital to the welfare of society and are favored in

the law They are found and approved in all systems of enlightened jurisprudence They promote

repose by giving security and stability to human affairs An important public policy lies at their

foundation They stimulate to activity and punish negligence)

It is for these reasons that this Court has strictly enforced the temporal requirements for

filing causes of action in the courts of this State By strictly enforcing statutes of limitations

we are both recognizing and adhering to the legislative intent underlying such provisions

Johnson v Nedeff 192 WVa 260 265 452 SE2d 63 (1994)

Regarding the specific statute of limitations in this case allegationS for common law bad

faith are governed by a one year statute of limitations In Noland this Court held that the one

20

year statute of limitations contained in W Va Code sect 55-2-12(c) (1959) (Repl Vol 2008)

applies to a common law bad faith claim Syl Pt 5 Noland v Virginia Ins Reciprocal 224

WVa 372 686 SE2d 23 (2009) In Syl Pt 5 ofNoland this Court stated that in a first-party

bad faith claim that is based upon an insurers refusal to defend and is brought under W Va

Code sect 33-11-4(9) (2002) (Repl Vol 2006) andor as a common law bad faith claim the statute

of limitations begins to run on the claim when the insured knows or reasonably should have

known that the insurer refused to defend him or her in an action Id This Court has held that a

one year statute of limitations also applies to a statutory bad faith claim See Syl Pt 1 Wilt v

State Auto Mut Ins Co 203 WVa 165 506 SE2d 608 (1998) (Claims involving unfair

settlement practices that arise under the Unfair Trade Practices Act West Virginia Code sect 33-11shy

1 to 10 (1996 amp Supp1997) are governed by the one-year statute oflimitations set forth in West

Virginia Code sect55-2-12(c) (1994)) CMDs allegations of the West Virginia Unfair Trade

Practices Act are supported by the same factual contentions upon which it based its common law

bad faith claims and thus a one year statute of limitations applies to both CMDs common law

and statutory bad faith claims

Mr Shahs deposition testimony resolves any genuine issue of fact as to whether CMDs

claims are time barred Mr Shah believed State Autos actions in September and October 2009

were the beginning ofthe so called bad faith

Q By September of 2009 October 2009 you felt that - -that there was something going on with State Auto that was - -what

A This is when I filed theres beginning ofbad - bad faith

A That was the beginning ofthe bad faith

21

App at 000333 Because of this supposed bad faith counsel for CMD drafted a correspondence

to State Auto on October 282009 advising State Auto of damages resulting from State Autos

alleged failure to promptly and properly handle the claim App at 00064 Thus there was no

genuine dispute of fact that CMD was aware of its alleged bad faith claim in October 2009 Yet

CMD did not seek leave to file its Third-Party Complaint until September 262011 nearly two

years after the alleged bad faith occurred Even then CMDs motiop was not heard until

January 2012 and the Third-Party Complaint was not filed until March 20 2012 Thus it is

clear that the statute of limitations had long expired by the time CMD filed it its Third-Party

Complaint

Faced with this clear evidence that the s~tute of limitations the Circuit Court simply

chose to ignore the law

18 The Court further finds that neither CMDs allegations of common law bad faith or violations of the UTP A are timeshybarred

19 Where a tort involves a continuing or repeated injury the cause of action accrues at and the statute of limitations begins to run from the date of the last injury or when the tortious overt acts or omissions cease Graham v Beverage 211 WVa 466 566 SE2d 603 (2002)

20 In this case CMD has put forth evidence which shows that State Autos improper claim handling was continual and repeated through the filing of the Third-Party Complaint Notably CMD has introduced testimony of CK Shah which tends to show that State Autos bad faith conduct was ongoing and was not limited to when the claim was first submitted in 2009

App at 00009 The Circuit Court flatly ignored this Courts holding in Noland in so far as the

duty to defend is concerned 686 SE2d 23 ( statute oflimitations begins to run on the claim

when the insured knows or reasonably should have known that the insurer refused to defend him

22

or her in an action) As discussed above the Circuit Court found that CMD presented evidence

that State Auto breached both the duty to defend and the duty to indemnify but the well settled

law and undisputed facts show that any allegations based on the breach of the duty to defend are

clearly time barred This is clear error

In Noland this Court specifically stated that its holding was only applicable to the duty to

defend However the statute of limitations should apply with equal force with regard to the duty

to indemnify To hold otherwise would in effect make the statute of limitations illusory The

Circuit Courts reliance on Graham v Beverage 211 WVa 466 566 SE2d 603 (2002) is

misplaced That case dealt with property owners who suffered continuous physical damages due

to the construction of the infiltration system and the continuing wrongful conduct of the

defendants in negligently failing to take action with regard to correcting the alleged inadequacies

of that system This led to continuous injuries to the property because the property continued to

suffer damage long after the construction of the infiltration system was completed Graham 211

WVa 466

In contrast where there is one discernable injurious event the statute of limitations

begins to toll at that the time of the discovery of that injury This Court explained this distinction

by contrasting the facts of the Graham case with Halls Park Motel Inc v Rover Construction

Inc 194 WVa 309 460 SE2d 444 (1995) In that case the plaintiff complained about the

negligent construction of a lift station which caused damage to the plaintiffs real property This

Court determined in Halls Park Motel that although the construction caused continuous

increased injuries to the plaintiffs property the cause of the injuries was a discrete and

completed act of negligent commission not [ ] a continuing negligent act of omission

23

Graham 211 WVa at 466566 SE2d at 603 (quoting Halls Park Motel 194 WVa at 313

460 SE2d at 448)

It is counterintuitive that the Circuit Court would rely on Graham instead of Noland or

Halls Park Motel in concluding that a claim of bad faith breach of an insurance contract

constitutes a continuing or repeated injury Contrary to the Circuit Courts finding CMDs

claims that State Auto breached its duty to indemnify do stem from a so-called discrete

occurrence in SeptemberOctober 2009 Mr Shah made it clear during his deposition that this

was when he discovered the supposed bad faith As discussed above State Auto indemnified

CMD but even assuming a breach of this duty could be identified by Mr Shahs own

admissions CMD knew of the alleged bad faith in SeptemberOctober 2009 Thus his claim

must have been filed within one year of this discovery

To hold that the breach of the duty to indemnify in regards to a bad faith claim constitutes

a continuous tort would cause uncertainty for litigants and hamper judicial economy In essence

the statute of limitations would have no force of law whatsoever For example if an insurer

were to decline to an indemnify an insured for claim bought against it the insured could bring a

bad faith claim at any time in the future because the continued refusal to indemnify would be

considered a continuous tort The claim could be brought two years later (as in the instant case)

five years later 100 years later etc because the statute would never run Such a result is

irrational and the Circuit Court committed clear error in its application of the statute of

limitations

24

D The Circuit Court erred in fmding that CMD presented evidence to support a claim for breach of contract

The Court erred in concluding that

CMD has put forth evidence that State Auto failed to properly defend and indemnify CMD under the Insurance Policy The Court also finds that CMD has put forth evidence to show that State Auto violated the implied covenant of good faith and fair dealing and breached its insurance contract with CMD

App at 00009-00010

To establish a breach of contract a party must establish four elements (1) that a valid

enforceable contract exists (2) that the plaintiff has performed under the contract (3) that the

defendant has breached or violated its duties or obligations under the contract and (4) that the

plaintiff has been injured as a result of a breach See Executive Risk Indem Inc v Charleston

Area Med Ctr Inc 681 F Supp 2d 694 714 (SD W Va 2009) (stating the four elements to

establish a breach of contract) see also Wittenberg v Wells Fargo Bank NA 852 F Supp 2d

731 749 (NDW Va 2012) (In West Virginia the elements of breach of contract are (1) a

contract exists between the parties (2) a defendant failed to comply with a term in the contract

and (3) damage arose from the breach) The breach or violation of the contract must be

material or in other words the alleged breaching party must fail to do something which he is

bound to do according to the contract that is so important and central to the ~ntract that it

defeats the very purpose of the contract J W Ellison Son amp Co v Flat Top Grocery Co 69 W

Va 380 71 SE 391 (WVa 1911) Kesner v Lancaster 180 W Va 607 378 SE2d 649

(WVa 1989) see also See Benson v AJR Inc 226 WVa 165 698 SE2d 638 650 31 IER

Cases 684 (2010) CMD cannot establish a material breach of the contract under the facts ofthis

case

25

Fundamentally this claim by CMD is duplicative of its allegations of common law bad

faith As explained previously the duty at issue in a bad faith breach of insurance contract

claim is the insurance companys duty to act in good faith and deal fairly with its insured See

Noland v Virginia Ins Reciprocal 686 SE2d 23 37 (W Va 2009) (quoting Daugherty v

Allstate Ins Co SS P3d 224 228 (ColoApp2002raquo see also Loudin v Nat I Liab amp Fire Ins

Co 716 SE2d 696 fn 9 (W Va 2011) (quoting Noland 686 SE2d at 37) While the

contractual duty and the duty to act in good faith are separate and distinct duties they are related

and both must exist simultaneously to create a bad faith claim Id As discussed in detail

above CMD can point to no provision in the COL Policy that has been materially breached by

State Auto that has resulted in damage to CMD

There is no policy provision that CMD can point to that State Auto in violation of its

duty to act in good faith and deal fairly with CMD breached Because State Auto both defended

and indemnified CMD throughout the underlying litigation under the COL Policy and because

the COL Policy provides no coverage to CMD for damages to its own property no evidence was

presented of a breach of contract and permitting this case to go forward on this claim was clear

error

26

III f

CONCLUSION

For the foregoing reasons Petitioner State Auto Property Insurance Companies dba

State Auto Property and Casualty Insurance Company respectfully requests that this Honorable

Court issue a show cause why the Court should not grant this Petition for Writ of Prohibition

and reverse the Circuit Courts Order Denying State Auto Property amp Casualty Insurance

Companys Motion for Summary Judgment

Signed_--=-~----~~~___-__

Trevor K Taylor Esq W Va State Bar LD 8862 William P Margelis Esq WVa State Bar LD 10530 TAYLOR LAW OFFICE 34 Commerce Drive Suite 201 Morgantown WV 26501

27

VERIFICATON

STATE OF WEST VIRGINIA

COUNTY OF MONONGALIA to wit

The undersigned deposes and says that the contents of the foregoing PETITION FOR

WRIT OF PROHmITION are true to the best ofhis infonnation and belief and to the extent they

are based upon infonnation and belief he believes them to be true

--V$---Trevor K Taylor Esq W Va State Bar LD 8862 William P Margelis Esq WVa State BarLD 10530 TAYLOR LAW OFFICE 34 Commerce Drive Suite 201 Morgantown WV 26501



Subscribed and sworn to before me by William P Margelis on this the ~ay of

March 2017

OffiCIAL SEAL Carrie S Rose

Notary PubliC State of West Virginia

My Commission Expires April 13 2021 18 lossie lone Notary Public

Mor antown WV ~6508

My commission expires atJaayof tlpoi Zamp~

-----


STATE OF WEST VIRGINIA ex reI STATE AUTO PROPERTY INSURANCE COMPANIES dba STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY an Ohio company

Petitioner

v Docket No


Respondents

APPENDIX TO PETITION FOR WRIT OF PROHmITION

(Circuit Court ofKanawha County West Virginia

Civil Action No l1-C-606)


Trevor K Taylor Esq W Va State Bar LD 8862 ttaylortaylorlawofficewvcom William P Margelis Esq W Va State Bar LD 10530 wmargelistaylorlawofficewvcom TAYLOR LAW OFFICE 34 Commerce Drive Suite 201 Morgantown WV 26501 304-225-8529

1

j

PETITIONERS CERTIFICATION OF APPENDIX

Petitioner State Auto Property Insurance Companies dba State Auto Property and

Casualty Insurance Company through its undersigned counsel hereby certifies that the contents

in the appendix are true and accurate copies of items contained in the record of the lower

tribunal Further Petitioner certifies that the appendix as a whole is sufficient to permit the

Court to fairly consider the questions presented in the petition



APPENDIX OF EXlJlBITS

TABLE OF CONTENTS


Casualty Insurance Company pursuant to Rule 7(c)(3) of the West Virginia Rules of Appellate

Procedure with respect to that certain Writ of Prohibition filed contemporaneously herewith

does hereby state that the following portions of the record have been determined by the

Petitioner to be necessary as to a determination of the issues raised in the Notice ofAppeal

1 Order Denying State Auto Property amp Casualty Insurance Companys Motion for Summary Judgment 00001

2 Petition for Writ ofProhibition (December 22015) 00011

3 Appendix to Petition for Writ ofProhibition00046

4 Petitioner State Auto Property Insurance Companies DBA State Auto Property and Casualty Insurance Companys Motion to Stay Proceedings in the Circuit Court of Kanawha County West Virginia Pending Resolution ofProhibition000245

5 CMDs Plus Incs Response in Objection to Petitioner State Auto Property and Casualty Companys Motion to Stay Proceedings 000252

6 Response in Opposition to Petition for Writ ofProhibition000258

7 State of West Virginia Supreme Court of Appeals Memorandum Decision No 15shy1178 (filed June 14 2016)000277

8 Third Party Defendants Motion for Summary Judgment and Memorandum of Law in Support ofThird Party Defendants Motion for Summary Judgment 000291

9 Scheduling Order CiviL 000348

10 Certified Copy ofDocket Sheet 000349

t

Respectfully submitted this 16th day ofMarch 2017


Trevor K Taylor Esq w Va State Bar LD 8862 ttaylortaylorlawofficewvcom William P Margelis Esq w Va State Bar LD 10530 wmargelistaylorlawofficewvcom TAYLOR LAW OFFICE 34 Commerce Drive Suite 201 Morgantown WV 26501 304-225-8529

CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of March 2017 true and accurate copies of the

foregoing Petition for Writ of Prohibition and Appendix were served via United States

Mail in a postage-paid envelope addressed to the following

The Honorable James C Stucky Kanawha County Judicial Building Po Box 2351 111 Court Street Charleston WV 25301 304-357-0364

Charles M Johnstone II Esq Sarah A Stewart Esq David Dobson Esq JOHNSTONE amp GABHART LLP 1125 Virginia St E PO Box 313 Charleston WV 25301

Charles T Miller Esq Kanawha County Prosecuting Attorney 301 Virginia St East Charleston WV 25301

~~Signed ~~-------Trevor K Taylor Esq W Va State Bar LD 8862 ttaylortaylorlawofficewvcom William P Margelis Esq W Va State Bar LD 10530 wmargelistaylorlawofficewvcom TAYLOR LAW OFFICE 34 Commerce Drive Suite 201 Morgantown WV 26501 304-225-8529

TABLE OF CONTENTS

TABLE OF AUTHORITmS bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull iii

QUESTIONS PRESENTED bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 1

STATEME-NT OF THE- CASEbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 1

PROCEDURAL mSTORY OF PERTINENT UNDERLYING ISSUES bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 2

SUMMARY OF THE- ARGUMENT bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 5

STATEME-NT REGARDING ORAL ARGUMENT AND DECISION 10

ARGUMENTbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 10

Standard of Review bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 10

A The Circuit Court committed clear error in rmding CMD presented evidence that State Auto violated its common-law duty of good faith and fair dealing bullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 11

1 The undisputed facts show that State Auto defended the claims brought the Evanses and the City of Charlestonbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 12

2 The undisputed facts show that State Auto indemnified CMD for the claims brought the Evanses and the City of Charleston 14

B The Circuit Court committed clear error in finding CMD presented evidence that it had a claim under West Virginia Unfair Trade Practices Act 16

C The Circuit Court committed clear error by concluding there was evidence that CMDS common law bad faith allegations and violations of the West Virginia Unfair Trade Practices Act were timely rued bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 16

D The Circuit Court erred in rmding that CMD presented evidence to support a claim for breach ofcontractbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 25

CONCLUSION bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 27

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Mor antown WV ~6508


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petition, state ex rel. state auto property ins. v. hon ...procedural mstory of pertinent underlying...

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