STATE EX REL. STATE FARM v. Canady

475 S.E.2d 107
CourtWest Virginia Supreme Court
DecidedJuly 12, 1996
Docket23269
StatusPublished

This text of 475 S.E.2d 107 (STATE EX REL. STATE FARM v. Canady) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE EX REL. STATE FARM v. Canady, 475 S.E.2d 107 (W. Va. 1996).

Opinion

475 S.E.2d 107 (1996)
197 W.Va. 107

STATE of West Virginia ex rel. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner,
v.
Honorable Herman G. CANADY, Jr., Judge of the Circuit Court of Kanawha County, and Eric L. Coleman, an Infant, by his Father, Guardian and Next Friend, Terry L. Coleman, and Terry L. Coleman, Individually, Respondents.

No. 23269.

Supreme Court of Appeals of West Virginia.

Submitted March 5, 1996.
Decided July 12, 1996.

*109 David A. Mohler, James W. Gabehart, Campbell, Woods, Bagley, Emmerson, McNeer & Herndon, Charleston, for Petitioner.

David L. Stuart, Robert A. Taylor, Masters & Taylor, Charleston, for Respondents.

*108 WORKMAN, Justice.

State Farm Mutual Automobile Insurance Company ("State Farm") seeks to appear in its own name as the plaintiff's uninsurance carrier rather than to defend in the name of the uninsured motorist. In response to the trial court's adverse ruling on this issue, State Farm seeks a writ of prohibition against The Honorable Herman G. Canady, Judge of the Circuit Court of Kanawha County. Based on our conclusion that West Virginia Code § 33-6-31(d) (Supp.1995) permits State Farm as the uninsurance carrier to appear and defend in its own name, we grant the requested writ of prohibition.

On January 2, 1992, a hit-and-run accident occurred which resulted in injuries to Eric L. Coleman. Eric's father instituted a civil action against the driver of the vehicle on December 10, 1993, seeking damages for Eric's injuries as well as damages for negligent infliction of severe emotional distress for himself. Pursuant to West Virginia Code § 33-6-31(d), the Colemans served State Farm as their uninsured motorist carrier with a copy of the complaint. State Farm filed an answer to the complaint in the name of Claud L. Slate, the uninsured motorist, on January 6, 1994. Then, on October 18, 1994, State Farm filed a notice with the court stating that it intended to "defend[] this case in its own name rather than in the name of the uninsured."

The Colemans first took issue with State Farm's intent to defend in its own name at a hearing on March 7, 1995. The circuit court directed both State Farm and the Colemans to submit memoranda in support of their respective positions.[1] On June 12, 1995, the trial court heard oral arguments on this issue and ruled that State Farm was prohibited from appearing in its own name or directly defending its interests on behalf of the uninsured motorist. State Farm filed a writ of prohibition with this Court on June 16, 1995, which was denied without prejudice.[2]

*110 The trial court granted State Farm's motion for a continuance on June 21, 1995,[3] due to witness unavailability, and subsequently decided to submit the following certified question to this Court:

Provided State Farm is not making any policy defense in this case, may it, pursuant to West Virginia Code § 33-6-31(d) appear at trial in its own name and may State Farm's attorney identify himself as State Farm's attorney, rather than the attorney for the alleged tortfeasor, Claud L. Slate, II?

The trial court answered the certified question in the negative. The petition presenting the above certified question to this Court was denied on January 9, 1996, based on jurisdictional grounds. State Farm filed the instant writ of prohibition with this Court on January 12, 1996, seeking to be permitted to appear and defend in its own name.

At issue is the following statutory language:

Any insured intending to rely on coverage required by subsection (b) of this section [33-6-31] 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.

W. Va.Code § 33-6-31(d) (emphasis supplied). State Farm contends that the underscored statutory language clearly permits it to appear and defend in its own name without reference to whether it is raising any policy defenses. Conversely, the Colemans argue that under State ex rel. Allstate Insurance Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 (1993), cert. denied, 510 U.S. 1194, 114 S.Ct. 1302, 127 L.Ed.2d 653 (1994), the uninsured motorist carrier can only be a named participant in the underlying negligence action when the carrier raises policy defenses. In addition, the Colemans submit that State Farm waived its right to appear and defend in its own name by initially answering the complaint in the name of the uninsured motorist.

We note initially that the parties concur that under West Virginia Code § 33-6-31(d) State Farm has the right to appear and defend in its own name to assert policy defenses. The question presented through this case, however, is whether, in the absence of such policy defenses, an uninsured motorist carrier may still appear and defend in its own name.

The Colemans suggest that the following language found in syllabus point fourteen of Karl resolves the issue: "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." 190 W.Va. at 179, 437 S.E.2d at 752. That syllabus language cannot be viewed in a vacuum; it must be considered in the context of the entire opinion. Unlike this case, the tortfeasor in Karl had liability insurance and the primary carrier was actively defending the case.[4] The issue presented in Karl was whether an underinsurance carrier had a right to file pleadings and separately defend along with the alleged tortfeasor's own insurance carrier. We concluded that an underinsured motorist did not "have a due process right to assume *111 independent control of the defense of a tortfeasor who is represented by a liability carrier." Id. at 185, 437 S.E.2d at 758. We further held that the right granted pursuant to West Virginia Code § 33-6-31(d) which permits the underinsurance carrier to file an answer in its own name "was [not] intended to give the underinsured carrier the right to separately defend along with the tortfeasor's carrier." 190 W.Va. at 186, 437 S.E.2d at 759. Given the numerous factual and legal distinctions between the present case and Karl, we conclude that the Karl decision is simply not dispositive of the issue before us.

We quickly dispense with the waiver argument raised by the Colemans. Finding nothing in the language of West Virginia Code § 33-6-31(d) that would prohibit a carrier from altering its mode of appearance, we disagree with the Colemans' contention that State Farm should be precluded from appearing in its own name simply because it elected to do so after initially filing an answer on behalf of and in the name of the uninsured motorist. See Nolan v. Boulware, 21 N.C.App. 347, 204 S.E.2d 701

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Bluebook (online)
475 S.E.2d 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-farm-v-canady-wva-1996.