USCA4 Appeal: 22-2145 Doc: 46 Filed: 06/05/2024 Pg: 1 of 16
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-2145
KENNETH SELLMAN; NANCY SELLMAN, husband and wife,
Plaintiffs – Appellants,
v.
SAFECO INSURANCE COMPANY OF AMERICA,
Defendant – Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:21-cv-00192-JPB)
Argued: December 7, 2023 Decided: June 5, 2024
Before DIAZ, Chief Judge, NIEMEYER, Circuit Judge, and Rossie David ALSTON, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Alston wrote the opinion, in which Chief Judge Diaz and Judge Niemeyer joined.
ARGUED: James G. Bordas, III, BORDAS & BORDAS, PLLC, Wheeling, West Virginia, for Appellants. William Michael Harter, FROST BROWN TODD LLP, Columbus, Ohio, for Appellee. ON BRIEF: Richard A. Monahan, Justin J. Selep, BORDAS & BORDAS, PLLC, Wheeling, West Virginia, for Appellants. Mary Claire Davis, FROST BROWN TODD LLP, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-2145 Doc: 46 Filed: 06/05/2024 Pg: 2 of 16
ALSTON, District Judge:
This case arises from an insurance dispute for losses sustained by Kenneth and
Nancy Sellman as a result of a motor vehicle accident that damaged their home. The
district court granted Safeco Insurance Company’s (“Safeco”) motion for partial summary
judgment on Hayseeds damages. In a claim for Hayseeds damages, an insured party may
recover reasonable attorney fees, costs, and expenses incurred in connection with their
claim, where the insured has “substantially prevailed” against the insurer. Hayseeds, Inc.
v. State Farm Fire & Casualty Co., 352 S.E.2d 73, 74 (W. Va. 1986). The parties
proceeded to trial on the remaining common law and statutory bad faith claims. The jury
found in favor of Safeco, and thereafter the Sellmans moved for a new trial. The district
court denied the motion. Finding no error, we affirm.
I.
On October 19, 2020, the Sellmans’ home and personal property were damaged
after a drunk driver crashed into their home. At the time of the accident, the Sellmans’
home was insured by Safeco, and their coverage was in full force and effect. The day after
the accident, the Sellmans filed a timely claim for property damage with Safeco. After
receiving the claim, Safeco sent an engineer, Randal Exley, to review the damage. Shortly
after receipt of the claim, Safeco also sent an adjuster to further inspect the damage in the
Sellmans’ home.
Throughout November of 2020, Safeco reached out to the Sellmans to review its
findings regarding the claim. The Sellmans disagreed with Safeco’s findings, particularly
with regard to the foundational and structural damage to the house. The Sellmans then
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retained their own contractor to examine the damage. Safeco and the Sellmans’ contractor
agreed that they would not have a clear understanding of the full extent of the structural
damage until the interior fixtures were removed. Therefore, Safeco stated that the
adjustment would happen in two phases. First, Safeco would address all the known
damages. Then, it would adjust the claim for the unknown damages.
On November 17, 2020, Safeco issued the Sellmans a check for $49,500.64. In a
follow-up email, a Safeco adjuster noted that the payment reflected “only the known
damages” and that Safeco planned to adjust the rest of the damages based on Safeco’s
future findings.
From mid-January 2021 to mid-April 2021, Safeco contacted the Sellmans to
determine the status of the repairs. Safeco claims that it did not receive a response to its
initial correspondence to the Sellmans. It was not until April 21, 2021, that Safeco received
a response from the Sellmans. Between April 21, 2021 and May 17, 2021, the Sellmans
sent additional estimates. On May 25, 2021, Safeco advised the Sellmans that it would like
to reinspect the home based on the newly provided estimates. The Sellmans then retained
counsel, Mr. Selep, who sent a letter requesting payment of $251,540. The letter stated:
If Safeco is willing to do the right thing and issue Mr. and Mrs. Sellman a check for $251,540.00, they will not incur any attorney fee. However, if Safeco is not willing to do the right thing, we will have to become more involved in this matter to help the Sellman’s [sic] recover the benefits they are rightfully entitled to.
J.A. 415. Mr. Selep also emailed Safeco to schedule the requested reinspection.
Safeco reinspected the home with Mr. Exley and Mr. Selep on June 15, 2021. After
the inspection was completed, Safeco emailed Mr. Selep to clarify the math in Mr. Selep’s
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demand letter, and Safeco then received an updated estimate from the Sellmans’ contractor.
Two days after receiving the updated estimate, Safeco agreed to pay the Sellmans $251,540
dollars for the damage to their home and $14,263.03 for anticipated packing and moving
expenses. In August 2021, Safeco stated in the claim file that the Sellmans
retained an Attorney. . . and [a] business decision has been made and approved by Examining to settle the dwelling and other structures based on [plaintiffs’] Contractor’s estimate as a final settlement.
J.A. 356.
The Sellmans filed suit against Safeco on October 7, 2021, asserting claims for
breach of the implied covenant of good faith and fair dealing, violations of the West
Virginia Unfair Claims Settlement Practices Act, and “substantially prevailing” damages
under Hayseeds, 352 S.E.2d at 74. Each party moved for partial summary judgment on the
issue of Hayseeds damages. After full briefing, the district court granted Safeco’s motion
and denied the Sellmans’ motion regarding Hayseeds damages. Essentially, the district
court held that the Sellmans had not “substantially prevailed” on their claim and that the
Sellmans had not shown that their attorney’s services were necessary, as is required to
recover under Hayseeds. Hayseeds, 352 S.E.2d at 74. The Sellmans’ remaining claims
proceeded to jury trial.
In preparation for trial on the remaining two claims, the parties filed various motions
in limine. After full briefing, the district court held that the Sellmans’ insurance expert,
Chris A. Johnson, would be excluded because he had “not worked as a claim representative
for over 30 years, he ha[d] no apparent experience in West Virginia, and he [wa]s not a
West Virginia attorney.” Furthermore, the district court held that Safeco’s insurance
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expert, J. Rudy Martin, would be permitted to testify, mainly because the district court and
the West Virginia Supreme Court of Appeals had previously found that he was qualified
as an expert witness in other insurance claims handling for property damage cases.
During the trial, Safeco also elicited testimony from its engineer, Mr. Exley. The
Sellmans objected to Mr. Exley’s testimony and asserted that the jury should only be
permitted to consider Mr. Exley’s report and not his live testimony. The district court
overruled the Sellmans’ objection and allowed Mr. Exley to testify on three limited topics.
After the conclusion of the trial, the jury returned a verdict for Safeco. The Sellmans
then filed a motion for a new trial, which the district court denied. The Sellmans then
timely appealed.
II.
This Court reviews a district court’s grant or denial of summary judgment de novo,
“viewing the facts and inferences reasonably drawn therefrom in the light most favorable
to the nonmoving party.” Woollard v. Gallagher, 712 F.3d 865, 873 (4th Cir. 2013).
Summary judgment is only appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “If the record, so viewed, gives rise to genuine factual disputes . . . then those
questions must be resolved by a jury, not on summary judgment.” Dean v. Jones, 984 F.3d
295, 301–302 (4th Cir. 2021).
In addition, the standard of review for evidentiary rulings, including the admission
or exclusion of expert testimony, is abuse of discretion. Under the abuse of discretion
standard, evidentiary rulings are entitled to “substantial deference,” United States v.
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Russell, 971 F.2d 1098, 1104 (4th Cir. 1992), and subject to harmless error review, United
States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009). Likewise, we review a district court’s
order granting or denying a new trial for abuse of discretion, “giv[ing] the benefit of every
doubt to the judgment of a trial judge.” Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305
(4th Cir. 1998) (cleaned up); see also Stamathis v. Flying J, Inc., 389 F.3d 429, 436 (4th
Cir. 2004) (explaining that a trial judge has discretion in determining whether a new trial
is warranted).
III.
The Court first addresses the district court’s grant of partial summary judgment in
favor of Safeco regarding Hayseeds damages. On appeal, the Sellmans contend that the
district court erred in finding no genuine dispute as to any material fact and granting
summary judgment in favor of Safeco on the issue of whether the Sellmans substantially
prevailed and whether their attorney’s services were necessary. Specifically, the Sellmans
argue that the district court did not construe facts in the light most favorable to them and
should not have attributed any dilatory delay to the Sellmans.
Under West Virginia Law,
[w]henever a policyholder substantially prevails in a property damage suit against its insurer, the insurer is liable for: (1) the insured’s reasonable attorneys’ fees in vindicating its claim; (2) the insured’s damages for net economic loss caused by the delay in settlement, and damages for aggravation and inconvenience.
Hayseeds, 352 S.E.2d at 74. When determining whether a policyholder has substantially
prevailed, “a court should look at the negotiations as a whole from the time of the insured
event to the final payment of the insurance proceeds.” Miller v. Fluharty, 500 S.E.2d 310,
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322 (W. Va. 1997). Moreover, when a policyholder makes a demand during the
negotiations, “the insurance carrier must either meet that demand, or promptly respond to
the policyholder with a statement why such a demand is not supported by the available
information.” Id. An “insurance carrier’s failure to promptly respond is a factor for courts
to consider in deciding whether the policyholder has substantially prevailed in enforcing
the insurance contract, and therefore, whether the insurance carrier is liable for the
policyholder’s consequential damages under [Hayseeds] and its progeny.” Id.
The primary goal of Hayseeds damages is “for all policyholders to get the benefit
of their contractual bargain: they should get their policy proceeds promptly without having
to pay litigation fees to vindicate their rights.” Bailey v. Bradford, 12 F.Supp.3d 826, 836
(S.D. W.Va. 2014) (citing Miller, 500 S.E.2d at 321). Ultimately, for an insurer to meet
its contractual obligation it must perform a prompt investigation, meaning one that is
“performed readily or immediately,” or involves “responding instantly.” Miller, 500
S.E.2d at 326 n.12.
Finally, to show that a policyholder is entitled to attorney’s fees, the policyholder
“must show that but for his or her attorney’s services such settlement would not have been
reached in light of the undue delay in investigating the claim.” Jordan v. Nat’l Grange
Mut. Ins. Co., 393 S.E.2d 647, 652 (W. Va. 1990).
Based on these principles, we find that the district court did not err in determining
that the Sellmans had not substantially prevailed on their claim or that the Sellmans failed
to show that their attorney’s services were necessary.
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Indeed, there was no conflict as to which the Sellmans could substantially prevail, 1
because, as the district court found, Safeco tried multiple times to contact the Sellmans to
settle the claim and, once the Sellmans reengaged in that process, Safeco paid their demand
promptly. Specifically, after waiting months for their contractor to become available for
an inspection, the Sellmans provided Safeco with an initial estimate for the repairs in April
2021 and an updated estimate in May 2021. In response, Safeco informed the Sellmans
near the end of May that it wanted to conduct another inspection to address the differences
between the Sellmans’ estimates and Safeco’s engineer report, so that the parties could
agree on damages. After that reinspection was conducted, Safeco emailed the Sellmans
for clarification of the demand amount in Mr. Selep’s letter. Safeco then received a second
estimate from the Sellmans’ contractor bringing the total estimate to $251,540.00. Two
days after receiving the second estimate, Safeco agreed to pay the amount that the Sellmans
had demanded, in full.
While insurers may not cause undue delay, they are entitled to some time to
investigate the claim. Miller, 500 S.E.2d at 324. Ultimately, Safeco responded to the
Sellmans’ final estimates only six days after receiving them. Further, after clarifying the
math in the Sellmans’ estimates, Safeco not only agreed to the settlement amount proposed
in Mr. Selep’s letter, but also agreed to issue an additional payment for moving expenses.
Thus, in looking at the totality of the Sellmans’ negotiations with Safeco, it cannot be said
1 The parties dispute whether filing a lawsuit or property damage action is a prerequisite to obtaining Hayseeds damages. While the parties present an interesting legal question, the Court need not decide it at this juncture.
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that the Sellmans substantially prevailed as that phrase is used for purposes of Hayseeds
damages.
The record also makes clear that Safeco tried multiple times to investigate the
Sellmans’ claim with no response from the Sellmans, prior to Mr. Selep’s representation.
What’s more, as noted by the district court, it does not appear that counsel for the Sellmans
engaged in any extensive legal work that he would not have otherwise done if Safeco had
not promptly investigated the Sellmans’ claim. Most of Mr. Selep’s efforts were
administrative – not legal. For example, during counsel’s representation of the Sellmans,
Mr. Selep sent a demand letter, helped to arrange a re-inspection that Safeco had previously
tried to schedule with the Sellmans to no avail, and emailed with Safeco to clarify various
amounts and estimates. None of these tasks suggest that Mr. Selep’s work was necessary
to settle the Sellmans’ claim. 2 While Mr. Selep certainly helped to arrange the re-
inspection of the Sellmans’ home, Safeco had already attempted to get updated information
from the Sellmans to settle the claim before Mr. Selep’s engagement. Thus, it does not
appear from the record that Mr. Selep’s limited involvement was necessary to compel
Safeco to act, such that Safeco should be responsible for the Sellmans’ attorney fees. In
sum, the Sellmans have presented no evidence that “but for” their attorney’s intervention,
2 The Court recognizes that Safeco noted in its claim file that the Sellmans “retained an Attorney,” and also stated that the payment to the Sellmans was a “business decision.” However, without more, that is insufficient to establish that Mr. Selep was the “but for” cause of Safeco’s payment.
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Safeco would not have provided the benefits for the damage to their home. Jordan, 393
S.E.2d at 652.
Accordingly, the district court properly granted summary judgment in favor of
Safeco on the Sellmans’ claim for Hayseeds damages.
IV.
Next, with respect to the trial court’s disposition of their two remaining claims, the
Sellmans assert that the district court abused its discretion and substantially erred by (1)
excluding their expert witness, Chris A. Johnson, (2) allowing Safeco’s expert, Mr. Exley,
to testify, and (3) for denying their motion for a new trial. The Court will address each
argument in turn.
A.
In granting Safeco’s motion to exclude Mr. Johnson, the district court held that Mr.
Johnson’s opinions were inadmissible under Federal Rule of Evidence 702. Specifically,
the district court noted that the Sellmans’ expert had “not worked as a claim representative
for over 30 years, he has no apparent experience in West Virginia, and he is not a West
Virginia attorney.”
Under Federal Rule of Evidence 702, district courts have the “task of ensuring that
an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”
Belville v. Ford Motor Co., 919 F.3d 224, 232 (4th Cir. 2019) (citing Daubert v. Merrell
Dow Pharms, Inc., 509 U.S. 579, 597 (1993)). Testimony “is relevant if it has ‘a valid
scientific connection to the pertinent inquiry.’” Belville, 919 F.3d at 232 (internal citation
omitted). To be reliable, an expert’s testimony “must be based on scientific, technical, or
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other specialized knowledge and not on belief or speculation, and inferences must be
derived using scientific or other valid methods.” Id. (internal citations omitted).
The Sellmans fail to show that the district court made “a clearly erroneous factual
finding” or “error of law” by excluding their expert witness. The Sellmans assert, as they
did before the district court, that Mr. Johnson should have been admitted as an expert
witness because he is an attorney with an active law license in Ohio, and “his CV
establishes his extensive insurance expertise involving actual claims handling and
supervision/management of claims, including property damage claims.” Appellants’ Br.
33.
As the district court explained, however, the Supreme Court of Appeals of West
Virginia and the District Court of the Northern District of West Virginia have made clear
that an expert is not qualified to offer an expert opinion on West Virginia insurance claims
where the expert “has not adjusted an insurance claim in over twenty years, has not done
so in West Virginia, and is not a West Virginia attorney.” Giles v. Liberty Mut. Fire Ins.
Co., No. 5:17-CV-141, 2018 WL 10339631, at *3 (N.D.W. Va. Dec. 7, 2018). This is also
consistent with this Court’s application of Rule 702. See Mod. Auto. Network, LLC v. E.
All. Ins. Co., 842 F. App’x 847 (4th Cir. 2021) (affirming the exclusion of an insurance
expert who had no experience with the matters relevant to the dispute).
Here, the Sellmans’ expert, Mr. Johnson, has not worked as a claims representative
for many years and was not admitted to practice law in West Virginia. The Sellmans
respond that Mr. Johnson worked for national insurance companies. Indeed, the district
court acknowledged the same. However, the district court did not err in excluding Mr.
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Johnson because the court was not presented with any proof that Mr. Johnson handled any
claims in West Virginia. Thus, the district court did not abuse its discretion or substantially
err in excluding Mr. Johnson.
Additionally, the district court correctly noted that Mr. Johnson’s proposed
testimony was inadmissible under Jackson v. State Farm Mut. Auto. Ins. Co., 600 S.E.2d
346 (W. Va. 2004). In Jackson, the West Virginia Court of Appeals held that an expert is
not permitted to testify regarding legal conclusions or questions of law. Id. at 356. The
Sellmans argue that Mr. Johnson should have been permitted to testify to “the ordinary
practices of claims handling/ adjustment and settlement within the industry” as was stated
in their Expert Witness Disclosures statement. Appellants’ Br. 16. However, Mr.
Johnson’s expert report indicated that he was to testify to the applicable law concerning
Safeco’s conduct and opine on legal conclusions, which is precisely the kind of testimony
that is impermissible under Jackson and its progeny and our own case law. See United
States v. Melvin, 508 F. App’x 209, 211 (4th Cir. 2013) (“[A]n expert generally is not
permitted to apply law to facts to reach a legal conclusion, as such testimony is not
considered helpful to the jury.”). Thus, the district court also did not abuse its discretion
or err in excluding Mr. Johnson based on his proposed expert testimony. 3
3 The Sellmans also argue that, at a minimum, the trial court erred in not allowing them to call Mr. Johnson as a rebuttal witness. In support of their argument, the Sellmans note that their Expert Disclosure Report stated that Mr. Johnson may offer opinions relative to those provided by Safeco’s experts at trial. J.A. 42 (emphasis added). However, at no point during the trial did the Sellmans attempt to call Mr. Johnson as a rebuttal witness. Further, the Sellmans cite no case law establishing that a trial court abuses its discretion in (Continued) 12 USCA4 Appeal: 22-2145 Doc: 46 Filed: 06/05/2024 Pg: 13 of 16
B.
Further, the district court did not abuse its discretion or substantially err when it
permitted Safeco’s expert, J. Rudy Martin, to testify. The Sellmans argue that the district
court committed substantial error in permitting Safeco’s insurance expert, Mr. Martin, to
testify because Mr. Martin is less qualified as an expert than Mr. Johnson, has no practical
experience handling the day-to-day responsibilities of a claim adjuster, and has not handled
property damage claims. However, Mr. Martin has over 30 years of experience practicing
law in West Virginia and handling property damage and bad faith claims. Moreover, both
the West Virginia Supreme Court of Appeals and the U.S. District Court for the Northern
District of West Virginia have already recognized that Mr. Martin is qualified to testify as
an expert on insurance claims handling and property damage suits in West Virginia. See,
e.g., Moore v. Allstate Ins. Co., 2013 WL 3185085, at *4 (W. Va. July 24, 2013) (holding
that “Mr. Martin is an attorney who has extensive experience in the insurance industry with
substantial knowledge of claims handling practices”); Giles v. Liberty Mut. Fire Ins. Co.,
Civ. Act. No. 5:17-CV-141, Dkt. 63 at 2, (N.D. W.Va. Dec. 7, 2018). Thus, the district
court properly exercised its discretion in allowing Mr. Martin to testify and did not commit
substantial error.
excluding a rebuttal witness, where the plaintiffs did not attempt to call the proposed expert as a rebuttal witness during trial. Thus, this Court is not persuaded.
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C.
The Sellmans further argue that the district court abused its discretion and erred in
permitting Safeco’s engineer, Mr. Randal Exley, to testify. Specifically, the Sellmans
contend that Mr. Exley’s opinions were irrelevant and that “the probative value of any
claimed expert opinion and evidence by Mr. Exley, if any, regarding any engineering issue
or actual physical damage to Plaintiffs’ home, which has already been resolved, was
substantially outweighed by the damage of confusing the issues, misleading the jury,
prejudicing the Plaintiffs’ claims, causing undue delay, and wasting time.” The Court finds
these arguments unpersuasive.
Whether evidence is relevant is a determination that rests largely within the
discretion of the trial court. Beaty Shopping Ctr., Inc. v. Monarch Ins. Co. of Ohio, 315
F.2d 467, 471 (4th Cir. 1963). As such, a trial court’s balancing of the evidence’s probative
versus prejudicial value “will not be overturned except under the most ‘extraordinary’ of
circumstances.” United States v. Heyward, 729 F.2d 297, 301 n.2 (4th Cir. 1984) (internal
citation omitted).
Here, the record provides ample support for the district court’s decision to permit
Mr. Exley’s testimony. First, the district court limited Mr. Exley’s testimony to three
topics: (1) “why the finishes needed to be removed,” (2) “as to the movement of the house
on the sill plate,” and (3) “whether the house was structurally sound.” Each category was
directly related to issues raised by the Sellmans during the trial. For example, regarding
the finishes being removed, the Sellmans argued that Safeco’s two-tiered decision to
readjust the claim after removing the interior finishes was unnecessary. Mr. Sellman also
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testified that the home’s sill plate was in the proper position prior to the accident and was
only moved after the fact. Finally, Mr. Sellman testified as to whether the house was
structurally sound. Therefore, the district court did not abuse its discretion or err in
permitting Mr. Exley’s testimony as he only testified to issues that were related to issues
that the Sellmans raised during trial.
The final issue on appeal is whether the district court erred in denying the Sellmans’
motion for a new trial under Federal Rule of Civil Procedure 59.
Whether a new trial is warranted is within the discretion of the trial court. Nichols
v. Ashland Hosp. Corp., 251 F.3d 496, 500 (4th Cir. 2001). A district court can grant a
motion for a new trial if it finds that “the verdict is against the clear weight of the evidence,
is based on false evidence or will result in a miscarriage of justice.” King v. McMillan, 594
F.3d 301, 314 (4th Cir. 2010).
The gravamen of the Sellmans’ motion for a new trial is that the district court erred
in its evidentiary decisions regarding the expert testimony of Mr. Johnson, Mr. Martin, and
Mr. Exley. However, as this Court has already found that the district court did not abuse
its discretion in making the above evidentiary rulings, the district court likewise did not err
in denying the Sellmans’ motion for a new trial based on those same grounds.
VI.
In sum, we affirm the district court’s grant of summary judgment for Safeco on the
claim for Hayseeds damages and affirm the district court’s denial of summary judgment to
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the Sellmans on the same. Additionally, we find that the district court did not abuse its
discretion in its evidentiary rulings or in denying the Sellmans’ motion for a new trial.
AFFIRMED