# Appendix — Allstate Insurance v. Karl > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0489%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1194 ## Text >| Supreme Court, U.S. FILED 93120 0 JAN 2 6 1998 ee oo ee ee IN THE Supreme Court of the Gnited States OCTOBER TERM, 1993 ALLSTATE INSURANCE COMPANY, AN ILLINOIS CORPORATION, Petitioner, Vv. Hon. MARK A. KARL, JUDGE OF THE CIRCUIT COURT FOR MARSHALL CouNTy, WEST VIRGINIA, Respondent. Petition For Writ Of Certiorari To The Supreme Court Of Appeals Of West Virginia APPENDIX PauL B. WEISS Counsel of Record and WALTER M. Jones, III MARTIN & SEIBERT, L.C. 119 South College Street P.O. Box 1286 Martinsburg, WV 25401 (304) 267-8985 PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 TABLE OF CONTENTS Tab "A" Opinion & Order, Supreme Court of Appeals of West Virginia, State of West Virginia ex. rel. Allstate Ins. Co. v. Karl, et al., No. 21818, October see coh eee ow 6 6 0 8 wee | Tab "B" Plaintiff's Motion For Single Answer, Carr v. Brooks, Circuit Court for Marshall County, West Virginia, No. 93-C-72-K, EE 27 Tab "C" Motion to Strike Affirmative Defenses First Through Seventh and Fourteenth And Motion for Sanctions, Carr v. Brooks, Circuit Court for Marshall County, West Virginia, No. 93- C-72-K, March 23, 1993 ........... 30 Tab "D" Motion For Allstate Insurance Company to Make an Election Pursuant to W. Va. Code § 33- 6-31(d), Carr v. Brooks, Circuit Court for Marshall County, West Virginia, No. 93- Cec ee ee eee 40 Tab "E" Motion for Protective Order, Carr v. Brooks, Circuit Court for Marshall County, West Virginia, No. 93-C-72-K, etree toe od bes 4 6 43 Tab "F" Order Granting in Part and Denying In Part the Foregoing Motions, Carr vv. Brooks, Circuit Court for Marshali County, West Virginia, No. 93- C-72-K, Jume Ge, Wee «cence ceeeeee 47 Tab "G" Petition for Writ of Prohibition, Allstate Ins. Co. v. Karl, Supreme Court of Appeals of West Virginia, No. 21818, June 29, 19S ow. cect eee ee eee 53 Tab "H" Plaintiff's Memo in Opposition to Provisional Rule, Allstate Ins. Co. v. Karl, Supreme Court of Appeals of West Virginia, No. 21818, September 7, 1993 ....... an oe Tab "I" Consolidated Opposition of Allstate Insurance Company to Plaintiff's Motion for Single Answer, Motion for Allstate Insurance Company to Make an Election Pursuant to W. Va. Code § 33-6-11, Motion for Protective Order and Motion to Stnke Various Affirmative Defenses and For Sanctions, Carr v. Brooks, Circuit Court for Marshall County, West Virginia, No. 93-C-72-K, April cM 161 APPENDIX, TAB **A”’ IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1993 Term » aye r - Bi sad seed meaty Kore No. 21818 eS Nori ey we em es STATE OF WEST VIRGINIA EX REL. Bit atte Sate 2 bce Shs cae. ALLSTATE INSURANCE COMPANY, oy Goa eee Fe Be nee A CORPORATION, { be % e . ; Shes isc 4 . . ’ - R | « @A ! as 4 7 a as ee - . : hy 7 Tete . ae . , > ‘ o< / a + > > > 4 "4 . ve Wee Ss 2 ; rs ; v 7.7, - ~~ i . , 7 . ‘ > ‘ - ‘ - - Fs ene cD Mal Se, Teas eek HONORABLE MARK A. KARL, JUDGE OF THE SG Ne CHIL, © Gy Say Ao | i Me: CIRCUIT COURT OF MARSHALL COUNTY; nor uo rat oe Me en | ja JAMIE LYNN BROOKS; JAMES E. BROOKS; Peary eae key 3 hee AND NAOMI CARR, iy sng Bie eS BARRA | a Respondents e «¥ Vad - ay ak sau aie ey. Se a ae " ™ Ag ae ee 5 of ‘ Sie oe * a A r, -F Ag? val as | ak Petition for Writ of Prohibition “aa 24 got , | Lp WRIT DENIED Submitted: September 14, 1993 Filed: October 29, 1993 Walter M. Jones, III Paul B. Weiss Martin & Seibert Martinsburg, West Virginia Attorneys for Relator Larry W. Blalock Robert P. Fitzsimmons Lucinda L. Fluharty Fitzsimmons & Associates Jackson & Kelly Wheeling, West Virginia New Martinsville, West G. Charles Hughes Virginia : Moundsville, West Attorneys for Respondents Virginia Jamie Lynn Brooks and James Attorneys for Respondent E. Brooks Naomi Carr JUSTICE MILLER delivered the opinion of the Court. Appendix Page 2 SYLLABUS BY THE COURT l. The prohibition standard set out in Syllabus Point 1 of Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), permits an original prohibition proceeding in this Court to correct substantial legal errors where the facts are undisputed and resolution of the errors is critical to the proper disposition of the case, thereby conserving costs to the parties and economizing judicial resources. 2. “W.Va. Code, 33-6-31(b), as amended, on uninsured and underinsured motorist coverage, contemplates recovery, up to coverage limits, from one’s own insurer, of full compensation for damages not compensated by . a negligent tortfeasor who at the time of the accident was an owner or operator of an uninsured or underinsured motor vehicle. Accordingly, the amount of such tortfeasor’s motor vehicle liability insurance coverage actually available to the injured person in question is to be deducted from the total amount of damages sustained by the injured person, and the insurer providing underinsured motorist coverage is liable for the remainder of the damages, but not to exceed the coverage limits." Syllabus Point 4, State Automobile Mutual Insurance Co, v. Youler, 183 W. Va. 556, 396 S.E.2d 737 (1990). 3. “W. Va. Code, 33-6-31(d) (1988), outlines certain rights given to an uninsured/underinsured insurance carrier where a tortfeasor who is uninsured or underinsured is sued by a plaintiff. It requires that a copy of the complaint be served upon Appendix Page 3 the insurance carrier. It also allows the carrier ’the right to file pleadings and to take other action allowable by law in the name of the owner, or operator, or both, of the uninsured or underinsured vehicle or in its own name.’" Syllabus Point 1, WwW , W. Va. , 432 S.E.2d 802 (1993). 4. An underinsured motorist carrier occupies the position of an excess or additional insurer in regard to the tortfeasor’s liability carrier, which is deemed to have the primary coverage. Consequently, the tortfeasor’s liability carrier, having primary coverage, should ordinarily control the litigation on behalf of the tortfeasor insured. m A primary insurance carrier has a duty to act in good faith with respect to an excess or additional insurance carrier when defending a claim on behalf of the primary insurance carrier’s insured. 6. If an underinsured motorist carrier can demonstrate that the liability insurance carrier of the tortfeasor is defending the claim in a bad faith manner, the underinsured motorist carrier may petition the court to allow it to assume primary control of the defense. Appendix Page 4 ¥ "A consent-to-settle provision of an automobile insurance policy pertaining to underinsured motorist coverage whereby an insured voids his underinsurance coverage by settling a claim with a tortfeasor without first obtaining the insurer’s written consent when such claim involves either the insured’s underinsurance coverage or potentially involves that coverage is a valid and enforceable means by which an insurer may protect its statutorily- mandated right to subrogate claims pursuant to West Virginia Code § 33-6-31(f) (1992)." Syllabus Point 3, Arndt _v. Burdette, W. Va. , 434 S.E.2d 394 (1993). 8. An underinsured motorist carrier may assume control of the litigation on behalf of the tortfeasor where the tortfeasor’s liability carrier has declined to defend. An underinsured motorist carrier is not foreclosed from filing an answer on behalf of the tortfeasor when it appears that a default judgment might be entered against the tortfeasor. 9. A liability carrier and an underinsured motorist carrier may agree to jointly defend an action by having their respeciive attorneys participate together in the defense. This does noi mean that they may file separate pleadings, indulge in separate discovery, or examine witnesses separately. 10. "’"Subrogation, being a creation of equity, will not be allowed except where the subrogee has a clear case of right and ill Appendix Page 5 no injustice will be done to another." Syllabus, Buskirk v. State-Planters’ Bank & Trust Co., 113 W. Va. 764, 169 S.E. 738 (1933).’ Syllabus point 6, Fuller v. Stonewall Cas, Co. of W. Va., 172 W. Va. 193, 304 S.E.2d 347 (1983)." Syllabus Point 2, Kittle v. Icard, 185 W. Va. 126, 405 S.E.2d 456 (1991). 11. The right of subrogation in W. Va. Code, 33-6-31(f) (1988), is not available where the policyholder has not been fully compensated for the injuries received and still has the right to recover from other sources. Subrogation is permitted only to the extent necessary to avoid a double recovery by such policyholder. 12. An underinsured motorist carrier does not have a due process right to assume independent control of the defense of a tortfeasor who is represented by a liability Carrier. 13. W. Va. Code, 33-6-31(d) (1988), does not give an underinsured motorist carrier the absolute right to file pleadings on behalf of a tortfeasor who has liability coverage and is being defended by a liability insurance carrier. 14. The language of W. Va. Code, 33-6-31(d) (1988), that allows an uninsured or underinsured motorist carrier to answer a complaint in its own name is primarily designed to enable the carrier to raise policy defenses it may have against the plaintiff under its uninsured or underinsured policy. iV Appendix Page 6 Miller, Justice: We granted this original proceeding in prohibition in order to resolve certain procedural issues with regard to uninsured and underinsured motorist coverage. The basic facts are not in dispute, and the case involves critical legal questions that will substantially impact the underlying civil litigation. Thus, the issues fall within the prohibition _ set out in Syllabus Point 1 of Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979),' which permits an original prohibition proceeding in this Court to correct substantial legal errors where the facts are undisputed and resolution of the errors is critical to the proper disposition of the case, thereby conserving costs to the parties and economizing judicial resources. ‘Syllabus Point 1 of Hinkle states: "In determining whether to grant a ry to onsen ibition when a court is not acting in excess of its jurisdiction, aaa the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law _— which may be resolved independently of any disputed facts and 7 2 cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.” Appendix Page 7 OO I. The relator, Allstate Insurance Company (Allstate), issued an automobile insurance policy with uninsured and underinsured motorist coverage to David A. Carr. The policy also covered Naomi J. Carr, who was his mother, as a member of his household. Ms. Carr was injured while walking across a public street in Moundsville.2. She was struck by an automobile operated by Jamie Lynn Brooks and owned by James E. Brooks, her father. The Brooks policy provided for liability coverage in the amount of $250,000 with State Automobile Mutual Insurance Company (State Auto). The claim could not be settled, and Ms. Carr filed suit against the Brookses in the Circuit Court of Marshall County in February of 1993. A copy of the suit papers was also sent to Allstate pursuant to the provisions of W. Va. Code, 33-6- 31(d) (1988). This section requires an insured who sues for damages arising from a motor vehicle accident and who desires to recover under the uninsured or underinsured provisions of their insurance policy to "cause a copy of the summons and a copy of the complaint to be served upon the insurance company . . . in the manner prescribed by law[.]” "The parties do not dispute that Ms. Carr, as a pedestrian, was covered as an additional insured as a member of the household under her son’s automobile liability policy, which contained underinsured motorist coverage. "The complete text of W. Va. Code, 33-6-31(d), states: (continued. . .) Appendix Page 8 te After receipt of the complaint, Allstate filed an answer which raised several defenses on behalf of the Brookses. It also issued interrogatories against Ms. Carr and requests for production of documents. — An answer was also filed by State Auto, the liability carrier for the Brookses. State Auto also filed interrogatories and requests for production of documents. A number of the requests by State Auto overlapped with Allstate’s requests.* Ms. Carr’s attorneys then moved to restrict the participation by both Allstate and State Auto on behalf of (. . . continued) "Any insured intending to rely on the coverage required by subsection (b) of this section [providing for uninsured and underinsured motorist coverage] shall, if any action be instituted against the owner or operator of an uninsured or underinsured motor vehicle, cause a copy of the summons and a copy of the complaint to be served upon the insurance company issuing the policy, in the manner prescribed by law, as though such insurance company were a named party defendant; such company shall thereafter have the right to file pleadings and to take other action allowable by law in the name of the owner, or operator, or both, of the uninsured or underinsured motor vehicle or in its own name. "Nothing in this subsection shall prevent such owner or operator from employing counsel of his own choice and taking any action in his own interest in connection with such proceeding.” This provision applies only where the uninsured files suit against the tortfeasor. ‘State Auto’s discovery requests covered approximately 260 items Appendix Page 9 the Brookses. The trial court, after hearing arguments and receiving briefs, by its June 11, 1993 order determined that a unified defense was warranted and required Allstate and State Auto to file a single answer on behalf of the Brookses. It required Allstate, the underinsured motorist carrier, to elect whether it would intervene in the case in its own right or merely in the name of the Brookses. The trial court also ruled that the plaintiff need not answer Allstate’s discovery requests and that State Auto’s discovery would control. It also granted Ms. Carr’s motion to strike certain defenses asserted by Allstate in its answer on behalf of the Brookses, finding those defenses to be without merit.° Following the entry of this order, Allstate filed a petition for a writ of prohibition with this Court claiming statutory and due process violations. II. Before we address the relator’s claims, it is useful to outline some of the salient features of our uninsured and underinsured insurance law. Its statutory provisions are contained in W. Va. Code, 33-6-31. We recognized in State "The defenses asserted by Allstate included a lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and insufficiency of service of process. We decline to address the validity of this ruling in light of our holding that the trial court was correct in ruling that a single answer on behalf of the Brookses was proper. 4 Appendix Page 10 , 183 W. Va. Automobile Mutual Insurance Co, v, Youler 556, 396 S.E.2d 737 (1990), that the purpose of our statutory requirement that insurers offer uninsured and underinsured protection in motor vehicle liability policies is to protect an injured insured when the defendant tortfeasor has either no liability insurance coverage (uninsured) or has inadequate liability coverage (underinsured). We summarized the statutory provisions contained in W. Va. Code, 33-6-31(b), in Syllabus Point 4 of Youler: "W. Va. Code, 33-6-31(b), as amended, on uninsured and underinsured motorist coverage, contemplates recovery, up to coverage limits, from one’s own insurer, of full compensation for damages not compensated by a negligent tortfeasor who at the time of the accident was an owner or operator of an uninsured or underinsured motor vehicle. Accordingly, the amount of such tortfeasor’s motor vehicle liability insurance coverage actually available to the injured person in question is to be deducted from the total amount of damages sustained by the injured person, and the insurer providing underinsured motorist coverage is liable for the remainder of the damages, but not to exceed the coverage limits.” See also Pristavec v. Westfield Ins. Co., 184 W. Va. 331, 400 S.E.2d 575 (1990). Recently, in Syllabus Point | of Postlethwait v. Boston Old Colony Insurance Co., Ss W. Va.____, 432 S.E.2d 802 (1993), we outlined the procedural mechanism under W. Va. Code, 33-6-31(d), that a plaintiff must follow to give an uninsured or underinsured carrier notice of the litigation: Appendix Page |1 "W. Va. Code, 33-6-31(d) (1988), outlines certain nghts given to an uninsured/underinsured insurance carner where a tortfeasor who 1s uninsured or underinsured 1s sued by a plaintiff. It requires that a copy of the complaint be served upon the insurance carrer. It also allows the carner ‘the nght to file pleadings and to take other action allowable by law in the name of the owner, or operator, or both, of the uninsured or underinsured vehicle or in its own name.’” What is at issue here is the proper relationship between the tortfeasor’s liability carner and the plaintiff's own insurance carrier, who provides the underinsured motorist coverage, when litigation arises. We are not cited nor have we found a published opinion that deals with the issues raised in this case.° *Allstate submits an unpublished opimon by the Intermediate Court of Appeals of Tennessee, Fyke v. Clark, 1989 WL 146736 (Tenn. App.). It would appear in Tennessee that an unpublished opinion “has no precedential value except to the parties in the case{. |" Patton v. McHone, 822 S.W.2d 608, 615 n.10 (Tenn. App. 1991). If it did have precedential value in Tennessee, we would have to determine under principles of comity whether we could give it precedential value. Even if we were to consider this opinion, it is clear that the issue raised therein was only whether the trial court erred in precluding the liability insurance carrier and the undennsured carner from conducting a joint defense when they represented "that there would be no promotion of any interest, separate or additional from the named defendant's interest, nor attempt at any separate or additional cross-examunation of witnesses, but also it was made clear that the named defendant expressly consented and agreed that counsel for the underinsured motonst carner work together with her attorney in presenting the defense on her behalf and in her name before the jury.” 1989 WL 146736 at 2. (continued. . .) Appendix Page 12 | . The parties acknowledge that each carrier has an interest in the case through its respective exposure to an adverse award of damages.’ Under our statutory scheme, the role of an underinsured carrier is analogous to that of a secondary of excess carrier." We dealt with a related issue in Allstate Insurance 178 W. Va. Co. v. State Automobile Mutual Insurance Co., 704, 364 §.E.2d 30 (1987), where State Auto insured a vehicle that the owner allowed a friend to operate. In the course of operating the *(. . . continued) For the reasons set out in Part III, infra, we have approved such an arrangement. See Syllabus Point 9, supra. "Where the tortfeasor has no liability coverage, the plaintiff's uninsured motonst carner would be the only insurance carner exposed to the plaintiff's liability claim. In most instances, the uninsured carrier would then control the defense. We recognize that W. Va. Code, 33-6- 31(d), contains this proviso: “Nothing in this subsection shall prevent such = poly ary from employing counsel of his own choice and taking action in own interest in Ag connection with such proceeding. ° See § 28.14 (1992). Certainly, if the uninsured carrier is acting in bad faith SES ES, Ce EET ORIN SY SE OO "The role of an excess carrier is summarized in Section 4682 of 7C J. Appeiman, Insurance Law and Practice (1979 & Supp. 1992): | “Excess imsurance is routinely written in the insurance industry with the expectation that the pnmary insurer will conduct all of the investigation, negotiation and defense of claims until its limits are exhausted . . . . Thus, the primary insurer acts as a sort of deductible and the excess insurer does not expect to be called upon to assist in these details.” ; Appendix Page 13 vehicle, the friend injured the plaintiff. The friend also had insurance through Allstate that provided coverage if its insured operated another vehicle. We found that both coverages applied, but concluded that the “bright-line rule of law [is] that the primary obligation to defend and indemnify follows the automobile, rather than the driver[{.]" 178 W. Va. at 707, 364 S.E.2d at 33.’ In the underinsured motorist context, our cases Suggest that the primary duty to defend rests with the tortfeasor’s liability carrier. Although we have not had occasion to express this precise point in a Syllabus, it is implicit in Youler, supra, and the cases that followed it that this principle was at the heart of the discussion. See generally Annot., 24 A.L.R.4th 13 (1983). The primary duty of the tortfeasor’s liability carrier to defend is impliedly recognized in the last sentence of subsection (b) of W. Va. Code, 33-6- 31, that states: “No sums payable as a result of underinsured motorists’ coverage shall be reduced by payments made under the insured’s policy or any other policy." This sentence was added in 1988 and precludes an underinsured carrier from setting off payments made by the liability carrier against the amounts due under the underinsurance coverage. *The Court's discussion in Allstate, supra, centered on the fact that both policies contained pro-rata and excess coverage language that could not be reconciled. We stated in Syllabus Point |: “We adopt the rule that when a pro-rata clause and an excess clause appear in the automobile lability policies of both the driver and the owner of an automobile, the insurer of the owner is primarily liable and must bear the whole loss, within the limits of the policy.” Appendix Page 14 ee ne \ We conclude that the legislature, by precluding a set-off by the underinsured carrier intended that the liability carrier’s payment serve as the initial layer of damage recovery. It follows that the underinsured carrier’s limits are then additional] coverage. We believe that the language in W. Va. Code, 33-6-31(b), forbidding a set-off, indicates a legislative intent to make the liability carrier the primary coverage carrier, and the underinsured carrier the excess or additional coverage carrier. The Louisiana Supreme Court in Bond vy. Commercial Union Assurance Co., 407 So. 2d 401, 410 (1981), explicitly recognized the relationship between the underinsured carrier and the liability carrier for the tortfeasor as an additional or excess insured when it stated: "Accordingly, the object of the uninsured motorist statute, as amended, is to promote full recovery for damages by innocent automobile accident victims by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured.” (Citations omutted). We, therefore, conclude that an underinsured motorist carrier occupies the position of an excess or additional insurer in regard to the tortfeasor’s liability carrier, which is deemed to have the primary coverage. Consequently, the tortfeasor’s liability carrier, having primary coverage, should ordinarily control the litigation on behalf of the tortfeasor insured. 9 Appendix Page 15 This does not mean that an excess carrier, such as an underinsured carrier, is without protection against either collusion between the plaintiff and the liability carrier or negligent handling of the defense. It is generally acknowledged that a primary insurance carrier has a duty to act in good faith with respect to an excess or additional insurance carrier when defending a claim on behalf of the primary insurance carrier’s insured. See, e.g., Valentine v. Aetna Ins, Co., 564 F.2d 292 (9th Cir. 1977); American 190 F.2d Fidelity & Cas. Co, v., All Am. Bus Lines, Inc., 234 (10th Cir.), cert. denied, 342 U.S. 851, 72 S. Ct. 79, 96 L. Ed. 642 (1951); Allstate Ins. Co. v. Reserve Ins, Co., 116 N.H. 806, 373 A.2d 339 (1976) ; Home Ins, Co. v. Royal Indem. Co., 68 Misc. 2d 737, 327 N.Y.S.2d 745, aff'd, 39 A.D.2d 768, 332 N.Y.S.2d 1003 (1972); Centennial Ins. Co. v. Liberty Mut. Ins. Co.., 62 Ohio St. 2d 221, 404 N.E.2d 759 (1980). We therefore apply the foregoing principle to underinsured motorist carriers to the extent that if an underinsured motorist carrier can demonstrate that the liability insurance carrier of the tortfeasor is defending the claim in a bad faith manner, the underinsured motorist carrier may petition the court to allow it to assume primary control of the defense. We recently recognized another protection afforded to an underinsured carrier in Arndt v. Burdette, W. Va. , 434 S.E.2d 394 (1993). There, we stated in Syllabus Poi Point 3 that if the underinsured carrier’s policy has a “consent-to-settle” 10 Appendix Page 16 provision, the underinsured carrier must consent to the plaintiff's settlement with the tortfeasor’s liability carrier: "A consent-to-settle provision of an automobile insurance policy pertaining to underinsured motorist coverage whereby an insured voids his underinsurance coverage by settling a claim with « tortfeasor without first obtaining the insurer’s written consent when such claim involves either the insured’s underinsurance coverage or potentially involves that coverage is a valid and enforceable means by which an insurer may protect its statutorily-mandated right to subrogate claims pursuant to West Virginia Code § 33-6-31(f) (1992).*"° The consent-to-settle language in an underinsured policy is common, and, as we indicated in the foregoing Syllabus, it protects the insurer’s statutory subrogation right. However, it is also designed to foreclose a collusive settlement between the plaintiff and the tortfeasor’s liability carrier. See generally 2 Widiss, Uninsured and Underinsured Motorist Coverage § 17.2 (1992). In addition to_the foregoing protections afforded an underinsured carrier, it is clear that such a carrier may assume control of the litigation on behalf of the tortfeasor where the tortfeasor’s liability carrier has declined to defend. Moreover, an underinsured motorist carrier is not foreclosed from filing an ‘However, as we recognized in note 10 of Amdt v. Burdette, W. Va. at , 434 S.E.2d at 400: “It is important to note that if an insurer acts unreasonably in refusing to give written consent to settle, that insurer may be subjecting itself to a bad faith claim pursuant to this Court’s holding in Shamblin v. Nationwide Mutual Insurance Co., 183 W. Va. 585, 396 S.E.2d 766 (1990)." ll Appendix Page 17 answer on behalf of the tortfeasor when it appears that a default judgment might be entered against the tortfeasor."! Finally, we find that a liability carrier and an underinsured motorist carrier may agree to jointly defend an action by having their respective attorneys participate together in the defense. This does not mean that they may file separate pleadings, indulge in separate discovery, or examine witnesses separately. Ina related matter, we also recognize that W. Va. Code, 33-6-31(f), gives a right of subrogation as follows: "An insurer paying a claim under the endorsement or provisions required by subsection (b) of this section shall be subrogated to the mght of the insured to whom such claim was pid against the person causing such injury, death or damage t» the extent that payment was made." While this right of subrogation can be waived by the uninsured or underinsured carrier, we do not believe such carrier can be forced to waive its subrogation rights by the threat of a tortfeasor’s liability carrier to withhold settlement of the claim. The primary liability carrier of the tortfeasor has a duty to deal in good faith both with its insured and with the underinsured carrier, and may subject itself to a bad faith suit by making such a demand and Prudence would dictate that the underinsured carrier first contact plaintiff's counsel to determine if an extension of time to answer had been granted. 12 Appendix Page 18 ~ ie) OO ee ee Bare | ae’ / : : : j ; refusing to settle if such demand is not met. See Shamblin yv. Nationwide Mut, Ins. Co., 183 W. Va. 585, 396 S.E.2d 766 (1990). We have recognized that subrogation is an equitable doctrine, stating in Syllabus Point 2 of Kittle v. Icard, 185 W. Va. 126, 405 S.E.2d 456 (1991): "**"Subrogation, being a creation of equity, will not be allowed except where the subrogee has a clear case of right and no injustice will be done to another.” Syllabus, Buskirk v. State-Planters’ Bank & Trust Co., 113 W. Va. 764, 169 S.E. 738 (1933).” Syllabus point 6, Fuller v. Stonewall Cas. Co. of W. Va., 172 W. Va. 193, 304 S.E.2d 347 (1983)." Other jurisdictions have specifically dealt with the right of subrogation in an uninsured or underinsured motorist context. In these cases, the right of subrogation existed either by virtue of ianguage in the insurance policy or by virtue of a Statute similar to W. Va. Code, 33-6-31(f). The general rule is summarized in 2 A. Widiss, Uninsured and Underinsured Motorist Insurance § 19.6 at 124: “Courts in a substantial number of states have concluded that the terms of a subrogation or trust provision are not enforceable when the insured has not been fully indemnified; consequently, an attempt by an insurance company to secure proceeds of a recovery from a third party - - such as the uninsured motorist or a party who is jointly liable--is appropriately denied when the damages sustained by an insured have not been completely compensated." 13 Appendix Page 19 See, e.g., White v. Nationwide Mut. Ins. Co,, 361 F.2d 785 (4th Cir. 1966) (Virginia law - statute); Alabama Farm Bureau Mut. Cas. Ins, Co, v. Humphrey, 54 Ala. App. 343, 308 So. 2d 255 (1975) (policy); Government Employees Ins, Co, v. Oliver, 192 Cal. App. 3d 12, 237 Cal. Rptr. 174 (1987) (statute); Central Nat'l Ins. Group v. Hotte, 312 So. 2d 235 (Fla. App. 1975) es Thatcher v, Eichelberger, 102 Ill. App. 3d 231, 57 Ill. . 816, 429 N.E.2d 1090 (1981) (statute); edith tench oy bows sige og supra (statute); Michigan Mut. Ins. Co. v. Shaheen, 101 Mich. App. 761, 300 N.W.2d 599 (1980) (policy); Milbank Mut. Ins. Co. v. Kluver, 302 Minn. 310, 225 N.W.2d 230 (1974) (statute); Dunham v. State Farm Mut. Auto. Ins. Co., 366 So. 2d 668 (Miss. 1979) (statute); McGhee v, Charley’s Other Brother, 161 N.J. Super. 551, 391 A.2d 1289 (Law Div. 1978), aff'd sub nom. Mozee v. McGhee, 171 N.J. Super. 454, 410 A.2d 46 (1979) (policy); Walls v. City of Pittsburgh, 292 Pa. Super. 18, 436 A.2d 698 (1981) (statute); Lombardi v. Merchants Mut. Ins. Co., 429 A.2d 1290 (R.I. 1981) (policy). The Supreme Court of Minnesota in Milbank Mutual Insurance Co. v. Kluver, 302 Minn. at 315-16, 225 N.W.2d at 233, after examining its uninsured motorist statute, came to this conclusion: "We are persuaded by the rationale of these cases and by our own analysis of the statute in question that the uninsured motorist coverage statute should be construed to mean that an uninsured-motonist liability carrier does not have the nght to be subrogated to 14 Appendix Page 20 =~ ee ee ee nr ee eo ee ee oie r solic r olde 08s En 7" . rr 1). a We agree with this anaiysis and conclude that the right of subrogation in W. Va. Code, 33-6-31(f), is not available where the policyholder has not been fully compensated for the injuries received and still has the right to recover from other sources. Subrogation is permitted only to the extent necessary to avoid a double recovery by such policyholder. IV. Allstate’s next claim is that if it is denied the right to participate in this litigation, its constitutional due process rights will be infringed. We are not cited nor have we found any case where an underinsured or excess carrier has raised a due process argument based on the premise of its inability to proceed to fully represent the defendant tortfeasor. In this type of litigation, the named defendant is the tortfeasor. It is this party who has due process rights. The underinsured carrier, if properly brought into a case, has a duty under its contract and the language of W. Va. Code, 33-6-31(d), to afford coverage to the plaintiff and to pay up to the policy limits on any judgment obtained against the defendant not covered by the tortfeasor’s liability carrier. The fact that the actual defense 15 Appendix Page 21 of the tortfeasor is conducted by his or her liability carrier does not mean that the underinsured carrier’s rights are sacrificed. The protections that we have afforded the underinsured carrier in Part III of this opinion will further protect that carrier’s rights. Thus, we conclude that an underinsured motorist carrier does not have a due process right to assume independent control of the defense of a tortfeasor who is represented by a liability carrier. The few cases which can be found relating to an underinsured motorist carrier’s right to intervene do not allow intervention as a matter of right nor do they express any due process considerations. In Husfeldt v. Willmsen, 434 N.W.2d 480 (Minn. App. 1989), the court affirmed the trial court’s decision denying intervention to the underinsured carrier. The argument was advanced that the underinsured carrier would be liable for any verdict in excess of the coverage afforded by the tortfeasor’s liability carrier. The court rejected this argument, Stating: "“[I]}t has not made a showing that its rights are not being adequately represented by the existing parties. It made a conclusory statement that its rights will be jeopardized, but gave no specific facts or reasons why." 434 N.W.2d at 482- 83. , The Kansas Supreme Court in Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985), determined that an underinsured motorist carrier had the option to intervene, but did not discuss what role 16 Appendix Page 22 ay 2 es the carrier would play with regard to handling the litigation with the tortfeasor’s liability carrier. See also Ramsey v. Chism, 249 Kan. 299, 817 P.2d 198 (1991). The Haas court relied on Tidmore v. Fullman, 646 P.2d 1278 (Okla. 1982), which accorded the underinsured carrier the right to intervene, but did not discuss the underinsured carrier’s role in the case vis-a-vis the tortfeasor’s liability carrier. We do not find these cases to be helpful since they do not analyze the issue before us, i.e., the role to be played by the underinsured carrier once litigation is commenced. Nor do we find that the procedural language in W. Va. Code, 33-6-31(d),"* allowing an uninsured/ underinsured carrier to file pleadings in its own name or on behalf of the tortfeasor, see Postlethwait v. Boston Old Colony Ins. Co., supra, enables the carrier to control the defense on behalf of the tortfeasor or to conduct a separate defense. It must be remembered that under W. Va. Code, 33- 6-31(d), a plaintiff files suit against a tortfeasor. If the plaintiff desires to bring his or her uninsured or underinsured coverage into play, a copy of the complaint must be "The applicable portion of W. Va Code 33-6-31(d), is: “[S]uch company shall thereafter have the right to file pleadings and to take other action allowable by law in the name of the owner, or operator, or both, of the uninsured or underinsured motor vehicle or in its own name." 17 Appendix Page 23 served on that carrier.'"? However, the uninsured or underinsured carrier is not a named party in the complaint. It must be remembered also that W. Va. Code, 33-6-31, now addresses both uninsured and underinsured motorist coverages. Originally, W. Va. Code, 33-6-31(b) and -31(d), addressed only uninsured motorist coverage. It was not until 1982 that underinsured motorist coverage was added to the purview of W. Va. Code, 33-6-31(b).'* Even though the right to obtain underinsured motorist coverage was added to subsection (b), the procedure outlined in W. Va. Code, 33- 6-31(d), still only included uninsured motorists and did not refer to underinsured motorists. This oversight was not corrected until 1988 when the term "underinsured" was placed in W. Va. Code, 33-6-31(d).' It is apparent from the foregoing legislative history that the original purpose of W. Va. Code, 33-6-31(d), was to protect the uninsured motorist carrier where the tortfeasor had no liability coverage: In this situation, the uninsured motorist carrier would be the only insurance carrier liable. In the absence of more specific language, W. Va. Code, 33-6-31(d), does not give an underinsured motorist carrier the absolute right to file "For the complete text of W. Va. Code, 33-6-31(d), see note 3, supra. “See 1982 W. Va. Acts ch. 106. 'SSee 1988 W. Va. Acts ch. 75. 18 Appendix Page 24 pleadings on behalf of a tortfeasor who has liability coverage and is being defended by the liability insurance carrier. Moreover, the language of W. Va. Code, 33-6- 31(d), that allows an uninsured or underinsured carrier to answer a complaint in its own name is primarily designed to enable the carrier to raise policy defenses it may have against the plaintiff under its uninsured or underinsured policy. We recognized a similar right on behalf of a plaintiff who sues a tortfeasor and discovers that the tortfeasor’s carrier has denied coverage in Christian v. Sizemore, 181 W. Va. 628, 383 ~ §.E.2d 810 (1989). There, we held that a declaratory judgment cause of action could be placed in the complaint for personal injuries and that such an issue should be resolved prior to submitting the liability issue to the jury." However, we do not find that this right of the underinsured carrier to file an answer in its own name was intended to give the underinsured carrier the right to separately defend along with the tortfeasor’s own carrier.'’ ‘Syllabus Point 3 of Christian v. Sizemore, supra, states: “An injured plaintiff may bring a declaratory judgment action against the defendant's insurance carrier to determine if there is policy coverage for obtaining a judgment against the defendant in the personal injury action where the defendant's insurer has denied coverage. © "It is difficult to conceive of any other reason why an uninsured or underinsured carrier would answer for the tortfeasor by filing the answer in the insurance carrier's own name. If the carrier answered in its own name, it could well waive its mght not to have insurance mentioned in the tortfeasor’s liability case. See Davis v. Robertson, 175 W. Va. 364, 332 S.E.2d 819 (1985); Coffindaffer v. Coffindaffer, 161 W. Va. 557, 244 $.E.2d (continued...) 19 Appendix Page 25 As an ancillary claim, Allstate asserts that the trial court erred when it required Allstate to elect whether to file an answer in its own name or to allow the tortfeasor’s liability carrier to defend. However, we do not agree. The apparent purpose of that requirement was to determine whether Allstate intended to assert some policy defense in order to avoid coverage under its underinsured policy. Having determined that the Circuit Court of Marshall County was correct in its ruling, we decline to issue the writ of prohibition. Writ denied. (. . . continued) 338 (1978). APPENDIX, TAB ‘‘B”’ aes Be a a a OT sali Mo) oR a ene IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA NORMA J. CARR, Plaintiff, CIVIL ACTION NO. 93-C-72 K vs. JAMIE LYNN BROOKS and JAMES E. BROOKS ll i i i Defendants. Now comes your plaintiff, Norma J. Carr, who hereby moves for an order requiring the parties responding by and/or on behalf of the defendants, Jamie Lynn Brooks and James E. . bast Brooks, not be permitted to file an additional answer. As | grounds for this motion, your plaintiff states and alleges as ? follows: (1) This action involves personal injuries received by + 4 Norma J. Carr when she was struck by an automobile driven | | by Jamie Lynn Brooks on October 17, 1991. Allstate : Insurance Company was served with a copy of the Complaint pursuant to the underinsurance statute in West Virginia, namely, W. Va. Code § 33-6-31. , | | | ) (2) On March 10, 1993, Walter M. Jones III. counsel for Allstate Insurance Company, filed an Answer to the Ppt 4 Complaint. Appendix Page 27 (3) On March 19, 1993, Jamie Lynn Brooks and James E. Brooks appeared by their counsel, Don M. Kresen, of the law firm of Jackson & Kelly, and a stipulated order was entered permitting Jamie Lynn Brooks and James E. Brooks an additional thirty (30) days to answer or otherwise respond to the Complaint. (4) On the basis that a Complaint has now been filed on behalf of the interests of the defendants, Jamie Lynn Brooks and James E. Brooks, it would be improper for an additional answer to be filed on their behalf alleging different responses, answers and/or defenses. Wherefore, your plaintiff prays that an order be entered prohibiting any further answers to be filed on behalf of the defendants, Jamie Lynn Brooks and James E. Brooks, other than that which has been previously filed. NOTICE OF HEARING You will please take notice that a hearing will be held on the foregoing MOTION FOR SINGLE ANSWER before the Honorable Mark A. Karl, Judge of the Circuit Court of Marshall County, West Virginia, in his chambers located in the Marshall County Courthouse, Moundsville, West Virginia, on Friday, the 7th day -2. Appendix Page 28 of May, 1993,at 11:30 o’clock a.m., or as soon thereafter as the matter may be heard. NORMA J. CARR by:_/s/ Robert P. Fitzsimmons Robert P. Fitzsimmons Fitzsimmons & Parson, L.C. 2003 Warwood Avenue Wheeling, West Virginia 26003 (304) 277-1400 G. Charles Hughes G. Charles Hughes, L.C. Post Office Box 871 Moundsville, West Virginia 26041 (304) 845-2300 APPENDIX, TAB ‘*‘*C”’ -v, “A IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA NORMA J. CARR, Plaintiff, vs. CIVIL ACTION NO. 93-C-72 K JAMIE LYNN BROOKS and JAMES E. BROOKS, ee eee eee ee ee Defendants. MOTION TO STRIKE AFFIRMATIVE DEFENSES FIRST THROUGH SEVENTH AND FOURTEENTH AND MOTION FOR SANCTIONS Now comes your plaintiff, Norma J. Carr, who hereby moves for an order striking the affirmative defenses listed as First through Seventh and Fourteenth on the basis that said defenses are clearly without merit and constitute frivolous pleadings and a violation of Rule 11 of the West Virginia Rules of Civil Procedure. Plaintiff will address each of the frivolous affirmative defenses raised by counsel for Allstate Insurance Company separately. First Affirmative Defense Counsel for Allstate Insurance Company alleges in the First Defense that: "Plaintiff's Complaint fails to state a cause of action against the defendants, Jamie Lynn Brooks and James E. Brooks, upon which relief can be granted." The Complaint in this action alleges that the cause of action is one of negligence. (See Paragraph 4 of plaintiff's Complaint.) Rule 9(b) of the West Virginia Rules of Civil Procedure states that: "NEGLIGENCE MAY ALSO BE AVERRED GENERALLY." [Emphasis added. ] The law in West Virginia is clear that cases in West Virginia should be decided upon their merits, and if the complaint states a claim upon which relief can be granted under any legal theory, a motion to dismiss or a defense for failure to state a claim upon which relief can be granted is unjustified and must be denied. John W. Lodge Distributing Company v. Texaco, Inc., 245 S.E.2d 157 (W. Va., 1978). It has further been held that any language in a complaint which will apprise the opposing party of the cause of action is sufficient. Warner v. Kittle, 280 S.E. 2d 276 (W. Va., 1981). Paragraph 3 of the Complaint joins Defendant James E. Brooks under the theory of family-purpose doctrine which is clearly a recognizable cause of action in West Virginia. (See Paragraph 3 of Plaintiff's Complaint.) Counsel for Allstate Insurance Company has failed to set 2 Appendix Page 31 forth any grounds for the First Affirmative Defense which based upon the Complaint itself is Clearly without any merit, and this is particularly so in actions of negligence which can be averred generally. Second Affirmative Defense Counsel for Allstate Insurance Company alleges: “Plaintiff's Complaint fails to state a cause of action against Allstate Insurance Company upon which relief can be granted." Allstate Insurance Company is not a named defendant or party in this lawsuit and was served pursuant to W. Va. Code §33-6-31. The affirmative defense raised by counsel for Allstate Insurance Company does not in any way address any of the averments set forth in the Complaint and is frivolous. Third Affirmative Defense Counsel for Allstate Insurance Company alleges in his Third Defense that: ". . . the affirmative defense of lack of junsdiction over the subject matter." Article 8, Section 6, of the Constitution of West Virginia provides in pertinent part that: 2 Appendix Page 32 “Circuit court shall have original and general junsdiction of all civil cases at law where the value or amount in controversy, exclusive of interest and costs, exceeds one hundred dollars unless such value or amount is increased by the legislature; . . .* Chapter 51, Article 2, Section 2, of the West Virginia Code provides that in circuit courts jurisdiction is over all matters at law where the amount in controversy, exclusive of interest, exceeds three hundred dollars. The Complaint alleges negligence which is a matter at law, and the ad damnum clause states, “the minimum jurisdictional amount for filing this action is met." Clearly, this affirmative defense is totally without merit. Fourth Affirmative Defense Counsel for Allstate Insurance Company alleges in his Fourth Defense: . . . the affirmative defense of lack of junsdiction over the person of the Defendants, Jamie Lynn Brooks and James E. Brooks.” Paragraph 1 of the Complaint alleges that the defendants, Jamie Lynn Brooks and James E. Brooks, are residents of Marshall County, West Virginia. Service upon the defendants was also had in Marshall County, West Virginia, by serving them with a copy +4- Appendix Page 33 of the Summons and Complaint at their residence and by depositing a copy of the Summons and Complaint with a member of their household on February 23, 1993, as is evidenced by Exhibit | attached hereto. This affirmative defense is totally without merit. Fifth Affirmative Defense Counsel for Allstate Insurance Company alleges in the Fifth Defense: ". . . the affirmative defense of improper venue.” Paragraph | of the Complaint alleges that the defendants are residents of Marshall County. Paragraph 2 of the Complaint alleges that the plaintiff is a resident of Marshall County. Paragraph 4 of the Complaint alleges that the cause of action occurred in Marshall County. Chapter 56, Article 1, Section 1, of the West Virginia Code states in pertinent part as follows: "(a) Any civil action or other proceeding, except where it is otherwise specifically provised, may hereafter be brought in the circuit court of any county: “(1) WHEREIN ANY OF THE DEFENDANTS MAY RESIDE OR THE CAUSE OF ACTION AROSE, . . .” Allstate Insurance Company’s Fifth Affirmative Defense is totally without merit. Sixth Affirmative Defense Counsel for Allstate Insurance Company asserts in his Sixth Defense and Seventh Defense "insufficiency of process” and “insufficiency of service of process.” Rule 4(d)(1) provides that process may be had: ". . . by delivering a copy of the summons and of the complaint at his dwelling house or usual place of abode to a member of his family above the age of sixteen years. . .” Exhibit | attached hereto evidences that the Summons and Complaint in this matter were served upon both defendants by serving Jamie Lynn Brooks’ mother and James E. Brooks’ wife through the Marshall County Sheriff's Department. These two affirmative defenses are without ny merit whatsoever. Fourteenth Affirmative Defense Counsel for Allstate Insurance Company asserts in his Fourteenth Defense: ". . . all policy defenses applicable to the underinsured motorist claim. . .” The Complaint is a complaint sounding in tort, and no 4- averments have been made concerning underinsurance coverage or any other type of contractual insurance coverage. This defense has absolutely no relevance to the pending action and is without merit. SUMMARY Rule 11 provides that every pleading must be signed by at least one attorney of record. The rule further states in pertinent part that: "The signature of an attorney or party CONSTITUTES A CERTIFICATE by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief FORMED AFTER REASONABLE LITIGATION." [Emphasis added. | If counsel for Allstate Insurance Company would have checked the courthouse records, he would have determined that process was proper and that service of process of proper. Allstate Insurance Company’s counsel could have easily determined that jurisdiction over the subject matter and persons were proper by reviewing the Complaint, and in particular the ad damnum clause, and by checking the courthouse records to determine service had been obtained upon the defendants. Venue Appendix Page 36 could have easily been determined to have been proper by merely looking at the Complaint. It is clear that counsel for Allstate Insurance Company has taken a cavalier attitude or is intentionally attempting to interpose delay or harass plaintiff or cause additional expenses in this litigation by filing clearly frivolous and unwarranted affirmative defenses. Plaintiff's counsel is very interested in hearing the "reasonable inquiries” made by counsel for Allstate Insurance Company, together with his statement that such affirmative defenses were “well grounded in fact" in a hearing on this motion. Plaintiff's counsel requests that the defenses labeled as First through Seventh and Fourteenth be stricken. Counsel further requests that the Court enter an order finding that Allstate Insurance Company's counsel has violated Rule 11 of the West Virginia Rules of Civil Procedure and enter sanctions, including reasonable attorney fees incurred in the prosecution of this motion. NOTICE OF HEARING You will please take notice that hearing will be held on the foregoing MOTION TO STRIKE AFFIRMATIVE DEFENSES FIRST THROUGH SEVENTH AND FOURTEENTH AND MOTION FOR SANCTIONS before Appendix Page 37 the Honorable Mark A. Karl, Judge of the Circuit Court of Marshall County, West Virginia, in his chambers located in the Marshall County Courthouse, Moundsville, West Virginia, on Friday, the 7th day of May, 1993, at 11:30 o’clock a.m., or as soon thereafter as the matter may be heard. NORMA J. CARR By: _/s/ Robert P. Fitzsimmons _ Of Counsel Robert P. Fitzsimmons Fitzsimmons & Parsons, L.C. 2003 Warwood Avenue Wheeling, West Virginia 26003 (304) 277-1400 G. Charles Hughes G. Charles Hughes, L.C. Post Office Box 871 Moundsville, West Virginia 2604] (304) 845-2300 Appendix Page 38 —L a ee —_ - CERTIFICATE OF SERVICE Service of the foregoing MOTION TO STRIKE AFFIRMATIVE DEFENSES FIRST THROUGH SEVENTH AND FOURTEENTH AND MOTION FOR SANCTIONS and NOTICE OF HEARING was made upon the parties to this action by mailing a true copy thereof by United States mail, postage prepaid, to , their respective attorneys on the 23 day of March, 1993, as follows: JAMIE LYNN BROOKS and JAMES E. BROOKS c/o Donaid M. Kresen, Esq. Jackson & Kelly Post Office Drawer 68 New Martinsville, West Virginia 26155 ALLSTATE INSURANCE COMPANY c/o Walter M. Jones, III, Esq. Martin & Seibert, L.C. Post Office Box 1286 Martinsburg, West Virginia 25401 /s/ Robert P. Fitzsimmons _ Of Counsel for Plaintiff -10- Appendix Page 39 APPENDIX, TAB ‘‘D’’ el cel le ls ek a Le ake IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA NORMA J. CARR, Plaintiff, CIVIL ACTION NO. 93-C-72 K Vs. JAMIE LYNN BROOKS and JAMES E. BROOKS ll i i i i Defendants. MOTION FOR ALLSTATE INSURANCE COMPANY TO MAKE ELECTION PURSUANT TO W. Va. CODE 33-6-31(d) Now comes your plaintiff, Norma J. Carr, who hereby moves that Allstate Insurance Company be required to make an election to appear on behalf of the defendants or in its own name. As grounds for this motion, your plaintiff states and alleges as follows: (1) This is a negligence action alleging that the defendants were negligent and caused injury to the plaintiff, Norma J. Carr, when the automobile driven by Defendant Jamie Lynn Brooks struck Norma J. Carr, who was then a pedestrian. (2) Allstate Insurance Company was served pursuant to the underinsurance motorists statute, W. Va. Code § 33-6-31. Appendix Page 40 (3) It is unclear from reading the Answer filed by Allstate Insurance Company whether it is appearing in its own name or in the name of the defendants. (4) If Allstate Insurance Company is appearing in its own name, then plaintiff is of the opinion that such election once made and which cannot be changed would entitle Allstate Insurance Company to conduct discovery and to be required to participate in discovery provided that once said election has been made and the rights attendant therewith have been exercised that such election cannot be changed. Wherefore, your plaintiff prays that this Court order that Allstate Insurance Company now make its election pursuant to W. Va. Code § 33-6-31(d). NOTICE OF HEARING You will please take notice that a hearing will be held on the foregoing MOTION FOR ALLSTATE INSURANCE COMPANY TO MAKE ELECTION PURSUANT TO W. Va. CODE § 33-6-31(d) before the honorable Mark A. Karl, Judge of the Circuit Court of Marshall County, West Virginia, in his chambers located in the Marshall County Courthouse, Moundsville, West Virginia, on Friday, the 7th day of May, 1993,at 11:30 o’clock a.m., or as soon thereafter as the matter may be heard. a. Appendix Page 41 NORMA J. CARR By: Of Counsel Robert P. Fitzsimmons Fitzsimmons & Parsons, L.C. 2003 Warwood Avenue Wheeling, West Virginia 26003 (304) 277-1400 G. Charles Hughes G. Charles Hughes, L.C. Post Office Box 871 Moundsville, West Virginia 26041 (304) 845-2300 Appendix Page 42 APPENDIX, TAB “E” aan ea ie oe he a) a & ee 4 IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA NORMA J. CARR, Plaintiff, CIVIL ACTION NO. 93-C-72 K vs. JAMIE LYNN BROOKS and JA) [ES E. BROOKS Defendants. MOTION FOR PROTECTIVE ORDER Now comes your plaintiff, Norma J. Carr, who hereby moves for a protective order pursuant to Rule 26(c) of the West Virginia Rules of Civil Procedure. As grounds for this motion, your plaintiff states and alleges as follows: i i i ee (1) This is an action for personal injuries resulting from the alleged negligence of Defendant Jamie Lynn Brooks when her automobile struck the plaintiff, Norma J. Carr, who was a pedestrian, on October 17, 1991. (See Paragraph 4 of plaintiff's Complaint.) (2) Defendant James E. Brooks is a party to the lawsuit on the basis of the family-purpose doctrine. (See Paragraph 3 of plaintiff's Complaint.) Appendix Page 43 (3) Allstate Insurance Company was served in this case pursuant to W. Va. Code § 33-6-31 and is not a named party nor is any cause of action stated against Allstate Insurance Company. (4) Attorney Donald M. Kresen, of the law firm of Jackson & Kelly, has entered an appearance on behalf of the defendants, Jamie Lynn Brooks and James E. Brooks, and obtained an order granting him an extension to file an answer or otherwise respond to the Complaint by April 14, 1993. (5) Allstate Insurance Company states in its Answer (first paragraph) that it is appearing "on behalf of the interest of the defendants, Jamie Lynn Brooks and James E. Brooks." The Answer is then signed on behalf of the insurance company. (6) Allstate Insurance Company served "First Interrogatories" and “First Request for Production of Documents" on March 10, 1993. (7) Allstate Insurance Company’s Answer to the Complaint and interrogatories make it unclear whether Allstate Insurance Company is electing to appear on behalf of the insurance company or on behalf of the named defendants. (8) Allstate Insurance Company is attempting to conduct discovery which most assuredly will duplicate the discovery 4. Appendix Page 44 conducted on behalf of defendants’ counsel in this proceeding, and, furthermore, Allstate Insurance Company will not be able to reciprocate by providing any meaningful type of discovery, such as answering the outstanding Interrogatories and Request for Production of Documents served upon the defendants with the Complaint. (9) W. Va. Code § 33-6-31(d) permits an insurance company who has underinsurance to be served as if it were a named party defendant and permits the company to file pleadings and take other action allowable by law in the name of the owner or operator or both or in its own name. In this case, the Answer of Allstate Insurance Company and discovery materials are not clear as to the Capacity in which Allstate Insurance Company is attempting to appear. (10) By permitting Allstate Insurance Company to conduct discovery in this case merely serves to duplicate the entire discovery process and to cause an unneeded burden upon the plaintiffs. (11) If Allstate Insurance Company is appearing on behalf of the interests of the defendants, plaintiff requests that this Court order that their discovery be conducted by one Party so as not to duplicate the discovery. & Appendix Page 45 Wherefore, plaintiff prays that a protective order for good cause shown be granted ordering that counsel for the defendants unify their discovery and be permitted to conduct discovery through single counsel. NOTICE OF HEARING You will please take notice that a hearing will be held on the foregoing MOTION FOR PROTECTIVE ORDER before the Honorable Mark A. Karl, Judge of the Circuit Court of Marshall County, West Virginia, in his chambers located in the Marshall County Courthouse, Moundsville, West Virginia, on Friday, the 7th day of May, 1993, at 11:30 o'clock a.m., or as soon thereafter as the matter may be heard. NORMA J. CARR By:/s/ Robert P. Fitzsimmons Of Counsel Robert P. Fitzsimmons Fitzsimmons & Parsons, L.C. 2003 Warwood Avenue West Virginia 26003 (304) 277-1400 G. Charles Hughes G. Charles Hughes, L.C. Post Office Box 871 Moundsville, West Virginia 26041 (304) 845-2300 -4- Appendix Page 46 o Rian ed APPENDIX, TAB ‘‘F”’ BRR es De cet 5 a ee IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA NORMA J. CARR, Plaintiff, v. CIVIL ACTION NO. 93-C-72 K JAMIE LYNN BROOKS and JAMES E. BROOKS Defendants. ORDER The 11th day of June, 1993, came the plaintiff, Norma J. Carr, by G. Charles Hughes, of G. Charles Hughes, L.C.., of her counsel, and as well came the defendants, Jamie Lynn Brooks and James E. Brooks, by V. Tad Greene, of Jackson & Kelly, their counsel, and by Walter M. Jones, III, of Martin & Seibert, L.C. (counsel for Allstate Insurance Company, the “notice-defendant" and the plaintiff's underinsurance carrier), pursuant to the "Plaintiff's Combined Motions" and the defendants’ bifurcation motion, to-wit: Appendix Page 47 (1) the plaintiff's MOTION FOR A SINGLE ANSWER; (2) the plaintiff's MOTION FOR ALLSTATE INSURANCE COMPANY TO MAKE’ ELECTION PURSUANT TO W.VA. CODE 33-6-31(d); (3) the plaintiff's MOTION FOR PROTECTIVE ORDER; (4) the plaintiff's MOTION TO STRIKE AFFIRMATIVE DEFENSES FIRST THROUGH SEVENTH AND FOURTEENTH AND MOTION FOR SANCTIONS; (5) the defendants’ MOTION TO BIFURCATE ISSUES OF LIABILITY AND DAMAGES; Appendix Page 48 previously filed, served, argued, briefed and submitted for — following the consolidated hearing thereon of 7 May ‘Whereupon, for the reasons spread upon the record, the rulings of the Court upon the foregoing motions - in the same order of arrangement - were as follows: (1) = granted (a unified defense on the merits being contemplated); (2) granted; said election to be made by Allstate Insurance Company on or before 11 July 1993; (3) granted; said discovery not to be duplicative; (4) granted, in part; the "Third Affirmative Defense" (re lack of subject matter jurisdiction), the Appendix Page 49 "Fourth Affirmative Defense” (re lack of personal jurisdiction), the “Fifth Affirmative Defense” (re improper venue), and the "Sixth Affirmative Defense” (re insufficiency of process and service of process), being without merit and somewhat frivolous, are hereby stricken; the plaintiff's motion for sanctions being hereby denied; (5) denied; and it is so ADJUDGED and ORDERED. Whereupon, in response to the representation of counsel for Allstate Insurance Company that issues similar to those addressed by motions (1), (2), (3) and (4), supra, and the rulings thereon, were currently pending before the Supreme Court of Appeals of West Virginia - upon a provisional writ issued in the case of State Auto Appendix Page 50 Mutual Insurance Company v. Steptoe, Judge, et al - the Court indicated that in the event the Supreme Court resolved one or more of said issues in a manner contrary to the foregoing rulings, the same could be rescheduled for hearing, and it is so ADJUDGED and ORDERED. . Whereupon, this came on for the status conference previously noticed, the results of which are set forth in a separate order. To all of which action of the Court, the plaintiff, defendants and Allstate Insurance Company - as their interests may be adversely affected - object and except. Dated the 28th day of June, 1993. —/s/ Mark A. Karl _ Judge Appendix Page 51 APPROVED FOR ENTRY: / h h For the Plaintiff /s/_ Donald M. Kresen For the Defendants /s/_ Walter M. Jones, III For Allstate Insurance Company Appendix Page 52 APPENDIX, TAB ‘‘G”’ Oe ns “hea oo be aa, No. 833.0 —ooooeoOOO IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA At Charleston 8S 970——ooo oO ALLSTATE INSURANCE COMPANY, A Corporation, Petitioner, Vv. MARK A. KARL, Judge, Circuit Court of Marshall County, West Virginia, Respondent. From Proceedings In The Circuit Court Of Marshall County, West Virginia Civil Action No. 93-C-72-K PETITION FOR Writ OF PROHIBITION MARTIN & SEIBERT, L.C. /s/ Walter M. Jones, III Walter M. Jones, III Paul B. Weiss Post Office Box 1286 119 South College Street Martinsburg, WV 25401 (304) 267-8985 Counsel For Petitioner SS ?73>——=@PokoO Oo Appendix Page 53 Statement Of Facts And Proceedings Below Assignments Of Error Points & Authorities I. Il. Ill. IV. TABLE OF CONTENTS es a eee ee PROHIBITION IS AN APPROPRIATE REMEDY IN THIS INSTANCE ..... THE PETITIONER’S RIGHTS TO PROCEDURAL DUE PROCESS WILL BE VIOLATED IF COMPELLED TO PROCEED WITH THE PENDING ACTION AS POSTURED IN LIGHT OF THE RESPONDENT’S ORDER FORCING THE PETITIONER TO MAKE AN IRREVOCABLE ELECTION AS TO WHETHER IT APPEARS IN THE PENDING ACTION IN ITS OWN NAME OR IN THE NAME OF THE DEEEEUEED ces cvesecesecse THE PETITIONER’S RIGHTS TO PROCEDURAL DUE PROCESS WILL BE VIOLATED IF IT IS COMPELLED TO PROCEED WITH THE PENDING ACTION AS POSTURED IN LIGHT OF THE RESPONDENT’S ORDER Appendix Page 54 = i a i a > 2s & @ @ 62 6.6 6 8 2 2 ee 2 2 9 ee 2 < . ; | VI. PERMITTING THE PETITIONER DISCOVERY PURSUANT TO THE RULES OF CIVIL PROCEDURE ONLY IF IT ELECTS TO APPEAR IN THE PENDING ACTION IN ITS OWN NAME OR, IF NOT APPEARING IN ITS OWN NAME, CONDUCTS DISCOVERY ONLY IN CONJUNCTION WITH THE OS eee THE PETITIONER’S RIGHTS TO PROCEDURAL DUE PROCESS WILL BE FURTHER VIOLATED IF COMPELLED TO PROCEED WITH THE PENDING ACTION AS POSTURED IN LIGHT OF THE RESPONDENT’S ORDER SUBJECTING THE PETITIONER TO A “UNIFIED DEFENSE ON THE MERITS" OF THE PENDING ACTION IN CONJUNCTION WITH THE DEFENDANTS ............ THE PETITIONER’S RIGHTS TO PROCEDURAL DUE PROCESS WILL ALSO BE VIOLATED IF COMPELLED TO PROCEED WITH THE PENDING ACTION AS POSTURED IN LIGHT OF THE RESPONDENT’S ORDER STRIKING AFFIRMATIVE DEFENSES RESERVED BY THE PETITIONER .. Appendix Page 55 21 VII. Conclusion Certificate of Servic .. 1. cc eet cece eee 27 THE PETITIONER’S RIGHT TO PROCEDURAL DUE PROCESS WILL : BE VIOLATED IF COMPELLED TO ; PROCEED WITH THE PENDING ACTION AS POSTURED IN LIGHT OF THE CUMULATIVE EFFECTS OF ALL OR SOME COMBINATION OF THE FOREGOING ORDERS .... 23 25 So en ed | | Appendix Page 56 TABLE OF AUTHORITIES CASES Alsbach v. Bader, 616 S.W.2d 147 (Mo. App. 1981) .. 6 American R. Express Co. v. Kentucky, a 10 American Sur. Co. v. Baldwin, Ss ED cg ccc cc ics ecccesen 20, 23 Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, Ge I POE ow cc cece ccc ete sceeeces 6 Briggs v. American Family Mut. Ins. Co.., co aw fe 7 Davis v. Robertson, 175 W. Va. 364, 332 $.B.26 $19 (1966) ........00. 13, 15, 18, 24 Felhaber v. Felhaber, 681 F.2d 1015 (Sth Cir. 1982), cert. denied, lee ewecees 24 Fyke v. Clark, No. 89-98-II (Tenn. Ct. App. Dec. 6, 1989) See ae ES ww ccc ccc ccc seees 15 Handley v. Cook, 162 W. Va. 629, rt bcecececces 9 Hannah v. Larche, 363 U.S. 420 (1960) .......... 24 Appendix Page 57 Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979) .... cece cere cv evees ll In re Ralph Marcantoni & Sons, Inc., 62 B.R. 245 (D. Md. 1986) .......2eeeeeees 11 Lindsey v. Normet, 405 U.S. 56 (1972) ........ 20, 23 Lyons v. Steele, 113 W. Va. 652, 10 $.B. 461 (1933) .. ee cesscetn ue ll Martino v. American Airlines, Inc., 404 F. Supp. 1202 (S.D.N.Y. 1975), aff'd, 573 F.2d 1292 (2d Cir. 1977), cert. denied, 439 U.S. 869 (1978) ..........45. ll Nevels v. Hanlon, 656 F.2d 372 (8th Cir. 1972) ..... 10 Osaka Shosen Kaisha Line v. United States, 300 U.S. 96 (19ST) wwe ee ee i4 Perkins v. Doe, 177 W. Va. 84, 350 §.E.2d 711 (1906)... cee v ese seseenwee 9 Appendix Page 58 ee) ee Plumley v. Allstate Ins. Co.., 772 F. Supp. 922 (S.D.W.V. 1991) ... 13, 15, 18, 24 Powell v. Alabama, 287 U.S. 45 (1932) .......... 10 Scarnati v. Washington, 599 F. Supp. 1554 (M.D. Pa.), aff'd, 772 F.2d 896 (3d Cir. 1985), cert. denied, EEE EEE 10 Stypmann vy. City & County of San Francisco, a 24 Terzian v. California Cas. Indem. Exch.., 42 Cal. App.3d 942, 117 Cal. Rptr. 284 (1974) ..... 7 Travelers Ins. Co. v. Lobello, 212 Va. 534, Te ee woe pc te 16 United States v. American Trucking Ass'ns., EES 14 United States v. Kirby Lumber Co. , EE Ee 14 Vernon Fire & Cas. Ins. Co. v. Matney, 170 Ind. App. 45, 351 N.E.2d 60 (1976) ....... 6, 7 Waters \ United States Fidelity & Guar. Co.., 328 Md. 700, 616 A.2d 884 (1992) ........... 7 Webster v. Harris, 727 S.W.2d 248 PEC EE Den ccecsccesceccec 15 Zurenda v. Holloman, 616 F. Supp. 212 ~~ E eS cc ccescesccccccecs 16 Appendix Page 59 STATUTES & RULES Ga. Cope Ant. 6 53-F-11 0 ww cece ccc eee 8 KAN. STAT. ANN. § 40-284(e) ... 2... 22 ee ee eee 8 Miss. CODE ANN. § $3 11-105 .........-55445- 8 N.C. GEN STAT. § 20-279.21(b)(3) ........ aeeen 8 S.C. Comps Ant. 6 SE-7T7-1SD www eee cee 8 TENN. CODE ANN. § 56-7-1206 ...........4.. 8, 15 Va. CODE ANN. § 38.2-2206 ..... 2... 2. ee eee 8, 16 iv Appendix Page 60 eg W. VA. CODE ANN. § 33-6-31(d) ...... 8, 9, 12-15, 17, 19, 21, 25 Fed. R. Civ. P. 24 .. ey scarves 7 Th «hs 6 enewe 688 0 0h eo hhsewaenen 8 R.C.P., Rule | . 17 PGE cc ccecueecuweeteisiwee 22 PEE 6 6 Fé be eeeavecteuniciseu 7 EE nb oso ben beeee niscceees 16, 17 Dies ccc cheonsveckacessueaeuun 17 ee ee Se eee eee se 17 ih +70 soa + ib Oe oaks eo Wade awe 17 Paks ehéis ee Ce bes.ceducekaewe 17 NG Sit & to acs rs en ace ce ek ie ae 17 RO PPE Pee Te TT eee ee 17 Ps + ib dese eed eeeee es caneune 17 Ds 4 des ene ae eee boeues eeexks 17 Dis +