Case Name and Citation:
Hayseeds, Inc. v. State Farm Fire & Casualty Co., 177 W.Va. 323, 352 S.E.2d 73 (1986)

Syllabus Points

1. Whenever a policyholder substantially prevails in a property damage suit against its insurer, the insurer is liable for:
   (1) the insured's reasonable attorney fees in vindicating the claim;
   (2) the insured's damages for net economic loss caused by the delay in settlement; and
   (3) damages for aggravation and inconvenience.

2. An insurer cannot be held liable for punitive damages by its refusal to pay on an insured's property damage claim unless such refusal is accompanied by a malicious intention to injure or defraud.

3. In determining whether there is sufficient evidence to support a jury verdict, the court should:
   (1) consider the evidence most favorable to the prevailing party;
   (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party;
   (3) assume as proved all facts which the prevailing party's evidence tends to prove; and
   (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
   (Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983)).

4. If, when considered together, instructions state the law of the case and are not palpably inconsistent or misleading, mere inaptness of phraseology does not necessarily vitiate any one instruction.
   (Syl. Pt. 3, Karr v. Baltimore & O.R. Co., 76 W.Va. 526, 86 S.E. 43 (1915)).

Procedural Posture:
The insureds, Hayseeds, Inc., brought a suit against their insurer, State Farm Fire & Casualty Co., to recover under an insurance policy for a fire that destroyed their property. The Circuit Court of Mason County ruled in favor of the insureds, awarding damages, attorney fees, and punitive damages. State Farm appealed to the Supreme Court of Appeals of West Virginia.

Relevant Facts:

• Hayseeds, Inc. purchased a fire insurance policy from State Farm covering their restaurant property.

• A fire destroyed the insured property, which was closed at the time. The fire was determined to be arson.

• State Farm denied the claim, alleging the insureds were responsible for the arson based on circumstantial evidence, including financial struggles and the locked state of the building at the time of the fire.

• The insureds presented evidence to refute these allegations and demonstrated State Farm’s failure to conduct a thorough financial investigation.

• A jury awarded $150,000 for the policy claim, $69,000 for attorney fees and consequential damages, and $50,000 in punitive damages.

Legal Issues Presented:

1. Was there sufficient evidence to support the jury's finding that the insureds were not at fault for the arson?

2. Did the jury instructions concerning the arson defense misstate the applicable law?

3. Were punitive damages warranted based on the insurer's denial of the claim?

Holdings:

1. Yes, the jury's inference that the insureds were not at fault was supported by sufficient evidence.

2. No, the jury instructions on the arson defense were not reversible error despite imperfect phrasing.

3. No, punitive damages were not justified as the insureds failed to prove malice by State Farm.

Reasoning:

• The court upheld the jury's inference of no arson by the insureds based on the evidence and applied the principle that evidence must be viewed in favor of the prevailing party.

• The court acknowledged the imperfect language in the jury instructions but found that they adequately reflected the legal standards for proving arson in a civil insurance case.

• Punitive damages were reversed because such damages require evidence of actual malice, defined as a malicious intent to defraud or injure. State Farm's actions, though arguably negligent or poorly executed, did not meet this high threshold.

The court clarified rules regarding attorney fees and consequential damages in property damage insurance cases.  It held that prevailing policyholders are entitled to reasonable attorney fees and damages for economic losses and inconvenience caused by claim delays.

Outcome:
The Supreme Court of Appeals affirmed the award for the insurance policy, attorney fees, and consequential damages but reversed the punitive damages. The case was remanded for further proceedings consistent with the opinion.

Case Name and Citation
State ex rel. State Farm Fire & Casualty Co. v. Madden, 192 W.Va. 155, 451 S.E.2d 721 (1994).

Syllabus Points

Syl. pt. 1:  "Under Rule 18(b), WVRCP [1978], an insurer may be joined as a defendant with the insured by an injured plaintiff alleging various claims of bad faith and unfair insurance practices."

Syl. pt. 2:  "Under Rule 18(b), WVRCP [1978], as long as the claims against the insurer are bifurcated from those against the insured, and any discovery or proceedings against the insurer are stayed pending resolution of the underlying claim between the plaintiff and the insured, there is no undue prejudicial impact on a jury of joining in an original pleading or amending a pleading to assert bad faith or unfair insurance practices counts against an insurer in an original action against insured."

Syl. pt. 3:  "To the extent Jenkins v. J.C. Penney Cas. Ins. Co., 167 W.Va. 597, 280 S.E.2d 252 (1981), Davis v. Robertson, 175 W.Va. 364, 332 S.E.2d 819 (1985), Robinson v. Continental Cas. Co., 185 W.Va. 244, 406 S.E.2d 470 (1991), or Russell v. Amerisure Ins. Co., 189 W.Va. 594, 433 S.E.2d 532 (1993), imply that an action against an insurer for bad-faith and unfair settlement practices cannot be joined in the same complaint as the underlying personal injury suit against the insured, they are overruled."

Procedural Posture
Petitions for writs of prohibition were filed by State Farm Fire & Casualty Company, Nancy Barry, Mid-Ohio Restaurants, and Wendy’s International to prevent various rulings by Judge John T. Madden in a personal injury action. The West Virginia Supreme Court of Appeals addressed the issues concerning joinder, bifurcation, discovery, and evidentiary rulings.

Relevant Facts
Larry Thompson filed a personal injury lawsuit following a slip and fall incident outside a Wendy's restaurant. The amended complaint joined State Farm and its adjuster Nancy Barry as defendants, alleging bad faith and unfair insurance practices. Thompson also included claims against a private investigator, Charles A. Sysak, for unethical and illegal surveillance.

Legal Issues Presented

1. Whether State Farm could be joined as a defendant for bad faith claims in the same action as the underlying personal injury suit.

2. Whether bifurcation of the personal injury claim from the bad faith claims was required to prevent prejudice.

3. Whether the exclusion of evidence related to surveillance conducted by Sysak was proper.

4. Whether the trial court abused discretion by denying expert witness designations and further discovery requests.

Holding(s)

1. Joinder of the insurer was permissible under Rule 18(b) of the West Virginia Rules of Civil Procedure, provided claims were bifurcated.

2. Bifurcation was necessary to prevent undue prejudice to the defendants.

3. Surveillance evidence obtained through lawful means was admissible, while evidence obtained illegally or unethically could be excluded.

4. The denial of late expert witness designations and discovery requests was within the trial court’s discretion.

Reasoning

• Joinder: The Court held that Rule 18(b) allows an insurer to be joined as a defendant with its insured if claims are bifurcated and stayed pending resolution of the underlying suit. This approach minimizes prejudice while reducing litigation costs.

• Bifurcation: The trial court abused its discretion by not fully bifurcating the personal injury claim from the bad faith claims, as failing to do so risked prejudicing the jury.

• Evidentiary Exclusion: The Court clarified that while illegally obtained evidence could be excluded, lawfully obtained surveillance evidence was admissible. The exclusionary rule does not typically apply to civil cases.

• Discovery and Experts: The Court found no manifest injustice in enforcing scheduling order deadlines and limiting expert witness designations or discovery extensions.

Outcome
The writs of prohibition were granted as molded. The Court ordered bifurcation of the claims and ruled on permissible evidentiary use of surveillance while upholding the trial court’s decisions regarding discovery and expert witnesses.

Case Name and Citation
McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996)

Procedural Posture
Plaintiff Donald C. McCormick appealed a final order from the Circuit Court of Kanawha County that precluded him from pursuing claims for attorney fees and punitive damages following a jury award of $995. McCormick sought damages from Allstate Insurance Company under the principles of Hayseeds and Jenkins, alleging improper settlement practices under the West Virginia Unfair Trade Practices Act (UTPA).

Relevant Facts
McCormick’s car was deemed a total loss after a collision. Allstate valued the claim at $1,429.50, which was insufficient to cover McCormick’s car loan. Dissatisfied with the offer, McCormick pursued legal action under Hayseeds, alleging breach of good faith and fair dealing, and under Jenkins, alleging violations of the UTPA. The trial was bifurcated: Phase I addressed the Hayseeds claims, and Phase II was reserved for the Jenkins claims.

The jury awarded McCormick $995 for damages, significantly less than his pre-trial demands. The court found McCormick did not “substantially prevail” on his claim and denied his pursuit of attorney fees, punitive damages, and Phase II claims under Jenkins.

Legal Issues Presented

1. Did McCormick substantially prevail under Hayseeds to recover attorney fees and punitive damages?

2. Was McCormick improperly precluded from pursuing his claims under Jenkins for UTPA violations?

Holding(s)

1. McCormick did not substantially prevail under Hayseeds and was not entitled to attorney fees or punitive damages.

2. McCormick’s Jenkins claim should have been allowed to proceed to trial.

Reasoning

1. Under Hayseeds, a plaintiff must substantially prevail to recover additional damages. The trial court found McCormick’s demands grossly disproportionate to the jury award, disqualifying him from prevailing.

2. The court clarified that Jenkins claims do not require a plaintiff to substantially prevail on the underlying contract action. The lower court erred in precluding McCormick’s Phase II trial on UTPA claims.

Outcome
The court affirmed the denial of attorney fees and punitive damages under Hayseeds. However, it reversed the dismissal of the Jenkins claims and remanded the case for further proceedings.

Syllabus Points

1. “When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.”

2. “Whenever 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.” Syllabus point 1, Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W.Va. 323, 352 S.E.2d 73 (1986).

3. “To recover attorney fees and net economic loss damages and damages for aggravation and inconvenience under syllabus point 1 of Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W.Va. 323, 352 S.E.2d 73 (1986), it is not necessary that a plaintiff show bad faith.”

4. “Damages for aggravation and inconvenience in a claim under Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W.Va. 323, 352 S.E.2d 73 (1986), are not limited to damages associated with loss of use of the personal property but relate as well to the aggravation and inconvenience shown in the entire claims collection process.”

5. “An insurer cannot be held liable for punitive damages by its refusal to pay on an insured's property damage claim unless such refusal is accompanied by a malicious intention to injure or defraud.” Syllabus point 2, Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W.Va. 323, 352 S.E.2d 73 (1986).

6. “An implied private cause of action may exist for a violation by an insurance company of the unfair settlement practice provisions of W.Va.Code, 33–11–4(9); but such implied private cause of action cannot be maintained until the underlying suit is resolved.” Syllabus point 2, Jenkins v. J.C. Penney Casualty Insurance Company, 167 W.Va. 597, 280 S.E.2d 252 (1981).

7. “More than a single isolated violation of W.Va.Code, 33–11–4(9), must be shown in order to meet the statutory requirement of an indication of ‘a general business practice,’ which requirement must be shown in order to maintain the statutory implied cause of action.” Syllabus point 3, Jenkins v. J.C. Penney Casualty Insurance Company, 167 W.Va. 597, 280 S.E.2d 252 (1981).

8. “Punitive damages for failure to settle a property dispute shall not be awarded against an insurance company unless the policyholder can establish a high threshold of actual malice in the settlement process. By ‘actual malice’ we mean that the company actually knew that the policyholder's claim was proper, but willfully, maliciously and intentionally denied the claim.”

9. “The conditions and predicate for bringing a case under Jenkins v. J.C. Penney Casualty Insurance Company, 167 W.Va. 597, 280 S.E.2d 252 (1981), are wholly different from those necessary for bringing an underlying contract action or for bringing an action under Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W.Va. 323, 352 S.E.2d 73 (1986). Whereas under Hayseeds it is necessary that a policyholder substantially prevail on an underlying contract action before he may recover enhanced damages, under Jenkins there is no requirement that one substantially prevail; it is required that liability and damages be settled previously or in the course of the Jenkins litigation. Jenkins instead predicates entitlement to relief solely upon violation of the West Virginia Unfair Trade Practices Act, W.Va.Code § 33–11–4(9), where such violation arises from a ‘general business practice’ on the part of the insurer.”

Case Name and Citation
Dodrill v. Nationwide Mutual Insurance Co., 201 W.Va. 1, 491 S.E.2d 1 (1996)

Syllabus Points

1. “The standard of review recited in Syllabus Point 1 in Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994) and in Syllabus Point 1 in Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995), and their progeny, is clarified to read as follows: In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a denial of a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of the appellate court to reverse the circuit court and to order judgment for the appellant.”

   • Syllabus Point 1, Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).

2. “In reviewing a trial court's granting of a motion for judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on the granting of a motion for judgment notwithstanding the verdict, the evidence must be view in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally sufficient to sustain the verdict, it is the obligation of the appellate court to reverse the circuit court and to order judgment for the appellant.”

   • Syllabus Point 2, Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).

3. “More than a single isolated violation of W.Va. code, 33–11–4(9), must be shown in order to meet the statutory requirement of an indication of ‘a general business practice,’ which requirement must be shown in order to maintain the statutory implied cause of action.”

   • Syllabus Point 3, Jenkins v. J.C. Penney Casualty Insurance Company, 167 W.Va. 597, 280 S.E.2d 252 (1981).

4. “To maintain a private action based upon alleged violations of W.Va. code § 33–11–4(9) in the settlement of a single insurance claim, the evidence should establish that the conduct in question constitutes more than a single violation of W.Va. code § 33–11–4(9), that the violations arise from separate, discrete acts or omissions in the claim settlement, and that they arise from a habit, custom, usage, or business policy of the insurer, so that, viewing the conduct as a whole, the finder of fact is able to conclude that the practice or practices are sufficiently pervasive or sufficiently sanctioned by the insurance company that the conduct can be considered a ‘general business practice’ and can be distinguished by fair minds from an isolated event.”

5. “Punitive damages may be awarded to an insured if the insurer actually knew that the claim was proper and the insured can prove that it was willfully, maliciously and intentionally denied. Therefore, in such a case, it is not error for a trial court to give an instruction stating that punitive damages may be awarded.”

   • Syllabus Point 5, Berry v. Nationwide Mut. Fire Ins. Co., 181 W.Va. 168, 381 S.E.2d 367 (1989).

6. “The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.”

   • Syllabus Point 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

Procedural Posture
The plaintiff, Alton E. Dodrill, filed a claim against Nationwide Mutual Insurance Company, alleging violations of West Virginia's Unfair Claim Settlement Practices Act. After a jury verdict against Nationwide, the defendant insurer filed a motion for judgment notwithstanding the verdict or, alternatively, a new trial, which the Circuit Court of Nicholas County denied. Nationwide appealed to the Supreme Court of Appeals of West Virginia.

Relevant Facts

• On October 24, 1987, Dodrill's car was rear-ended by a vehicle insured by Nationwide.

• Dodrill reported injuries and incurred medical bills and lost wages. Despite clear liability, Nationwide made settlement offers significantly below Dodrill's estimated damages.

• After retaining legal counsel, Dodrill ultimately obtained a jury award of $11,386 for the personal injury claim.

• Dodrill subsequently filed suit alleging that Nationwide's settlement practices violated W.Va. Code § 33-11-4(9).

Legal Issues Presented

1. Whether Nationwide's conduct demonstrated a failure to act in good faith to promptly settle claims when liability was clear.

2. Whether the violations amounted to a "general business practice" under the Unfair Claim Settlement Practices Act.

3. Whether damages for annoyance, inconvenience, and punitive damages were appropriate.

Holdings

1. A single, isolated violation is insufficient; proof of pervasive or recurring practices is required to establish a "general business practice."

2. Nationwide failed to effectuate prompt, equitable settlement, indicating violations with sufficient frequency to constitute a general business practice.

3. Damages for annoyance and inconvenience, as well as punitive damages, were upheld.

Reasoning
The court found sufficient evidence supporting the jury's conclusion that Nationwide violated statutory settlement practices. Multiple failures to settle promptly, combined with lowball offers despite clear liability, established a pattern of conduct beyond an isolated incident. The jury instruction properly left the determination of a "general business practice" to the jury. Damages awarded were supported by evidence of annoyance, inconvenience, and intentional misconduct.

Outcome
The Supreme Court of Appeals of West Virginia affirmed the Circuit Court's denial of Nationwide’s motions and upheld the jury’s verdict, including compensatory and punitive damages.

Case Name and Citation
Elmore v. State Farm Mutual Automobile Insurance Company, 202 W. Va. 430, 504 S.E.2d 893 (1998)

Syllabus Points

1. A third party has no cause of action against an insurance carrier for common law breach of the implied covenant of good faith and fair dealing or for common law breach of fiduciary duty.

Procedural Posture
Michael R. Elmore, acting individually and in various representative capacities, sued State Farm Mutual Automobile Insurance Company, among others, alleging breaches of fiduciary duty and the implied covenant of good faith and fair dealing. The Circuit Court of Harrison County partially denied State Farm’s motion for summary judgment and certified the legal question to the Supreme Court of Appeals of West Virginia.

Relevant Facts
The case arose from a 1990 automobile collision caused by Chester Workman, resulting in fatalities and injuries to Elmore and his family. Workman was insured by State Farm, and Elmore held an underinsured motorist policy with Allstate. Elmore alleged that State Farm misled him during settlement negotiations, discouraging him from seeking legal counsel and failing to disclose the full policy limits available. Ultimately, Elmore settled with State Farm but later contested the validity of the settlement after learning of withheld funds. He brought claims against State Farm for breach of fiduciary duty and bad faith dealing as a third-party claimant.

Legal Issues Presented

1. Does a third-party claimant have a cause of action against an insurer for common law breach of fiduciary duty?

2. Can a third-party claimant sue an insurer for a common law breach of the implied covenant of good faith and fair dealing?

Holding(s)

1. No, a third-party claimant cannot sue an insurer for breach of fiduciary duty.

2. No, a third-party claimant does not have a common law cause of action for breach of the implied covenant of good faith and fair dealing.

Reasoning
The court emphasized that the duties of good faith and fiduciary obligations traditionally arise from contractual relationships, which do not exist between insurers and third-party claimants. The court highlighted the inherently adversarial nature of the insurer-claimant relationship during settlements. It noted that recognizing such claims would conflict with established principles, including the insurer’s primary obligation to its insured. Additionally, the court cited precedent affirming that third-party claimants lack standing to assert these claims absent a direct contractual relationship.

Outcome
The Supreme Court of Appeals of West Virginia reversed the lower court’s ruling on the certified question, concluding that third-party claimants cannot bring claims against insurers for common law bad faith or fiduciary duty breaches.

Case Name and Citation
State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75 (1998)

Procedural Posture
Allstate Insurance Company petitioned for a writ of prohibition to challenge two discovery orders issued by the Circuit Court of Ohio County. These orders compelled Allstate to produce nationwide records related to written complaints, advertising materials, regulatory sanctions, and specific claims files, including documents Allstate claimed were protected under attorney-client privilege and work product doctrine.

Relevant Facts
The underlying case stemmed from a personal injury lawsuit in which the plaintiff, Carol J. Thoburn, obtained a jury verdict exceeding the policy limits of the Allstate-insured defendant. Thoburn subsequently filed a bad faith action against Allstate, alleging improper claims settlement practices under W.Va. Code § 33-11-4(9). During discovery in the bad faith case, Thoburn requested expansive documentation, including Allstate's nationwide records and claim file communications.

Legal Issues Presented

1. Whether the circuit court's discovery orders were overly broad and burdensome.

2. Whether certain claim file documents were protected by quasi attorney-client privilege and work product doctrine.

3. Whether inadvertent disclosure of privileged documents constitutes a waiver of privilege.

Holding(s)

1. The circuit court’s nationwide discovery orders were excessive and not supported by specific findings required under West Virginia’s Rules of Civil Procedure.

2. Communications within claim files may be protected by a quasi attorney-client privilege or work product doctrine, but such protection requires careful judicial analysis.

3. Inadvertent disclosure of attorney-client privileged material does not automatically waive the privilege.

Reasoning
The Supreme Court of Appeals held that:

• Nationwide discovery must be justified under Rule 26(b)(1)(iii), considering factors such as relevance, necessity, and burden. The trial court failed to perform this analysis, making its orders impermissibly broad.

• Documents generated after litigation commenced may be presumptively privileged, but specific documents must be individually assessed to determine privilege applicability.

• Courts must apply a multi-factor test to determine whether inadvertent disclosure waives privilege, including considerations of reasonableness, promptness, and justice.

Outcome
The writ of prohibition was granted as moulded. The circuit court was instructed to reassess the discovery requests and privilege claims under appropriate legal standards.

Syllabus Points

1. “A writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers.” Syl. pt. 4, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991).

2. “'In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to 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 mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.' Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).” Syl. pt. 1, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

3. “A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders.” Syl. Pt. 1, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

4. “When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate.” Syl. pt. 3, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

5. “Where a claim is made that a discovery request is unduly burdensome under Rule 26(b)(1)(iii) of the West Virginia Rules of Civil Procedure, the trial court should consider several factors. First, a court should weigh the requesting party's need to obtain the information against the burden that producing the information places on the opposing party. This requires an analysis of the issues in the case, the amount in controversy, and the resources of the parties. Secondly, the opposing party has the obligation to show why the discovery is burdensome unless, in light of the issues, the discovery request is oppressive on its face. Finally, the court must consider the relevancy and materiality of the information sought.” Syl. pt. 3, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

6. “A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court's ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.”

7. “In a third-party bad faith action where an insured has signed a release of his/her claim file to a third-party litigant, an insurer may raise a quasi attorney-client privilege to communication in the insured's claim file. The quasi attorney-client privilege belongs to the insurer, not the insured, and may be waived only by the insurer.”

8. “All communications in an insured's claim file that were generated prior to the filing date of a third-party's underlying complaint against the insured are not protected by the quasi attorney-client privilege. All communications in an insured's claim file generated on and after the filing date of a third-party's complaint against an insured, are presumptively quasi attorney-client privilege communications.”

9. “Where a third-party has obtained a release from the insured giving the third-party access to all communications in the insured's claim file, in order for the third-party to seek discovery of communications in the claim file generated on or after the date the third-party filed his/her complaint against the insured, the third-party must provide some reasonable description of each communication he/she seeks that was generated on or after the date the third-party filed his/her complaint against the insured. In other words, the third-party may not merely request all communication in the claim file generated on or after the filing date of the complaint against the insured. Thereafter, if the insurer raises the quasi attorney-client privilege to such specifically requested communication, the insurer must prove the elements of the traditional common law attorney-client privilege for each communication it seeks to shield from discovery through assertion of the quasi attorney-client privilege. The trial court must then make an independent determination for each communication the insurer seeks to shield from discovery. If the trial court determines that some or all of the specifically requested communication has been shown to satisfy the elements of the traditional common law attorney-client privilege, then such communication is protected from disclosure by the quasi attorney-client privilege.”

10. “A third party may, in some instances, obtain discovery of documents found to be protected by the quasi attorney-client privilege. To obtain such documents, the burden is on the third-party to show a ‘compelling need’ for each communication that has been found to be protected from disclosure by the quasi attorney-client privilege. To satisfy the quasi attorney-client privilege compelling need test, the third-party must show that (1) the specifically requested protected communication cannot reasonably be obtained elsewhere and (2) that the specifically requested protected communication could reasonably be interpreted by the fact finder as tending to prove an element of the bad faith cause of action or (3) that the specifically requested protected communication could reasonably be used to lead to the discovery of facts that tend to prove an element of the bad faith cause of action. Any protected communication for which the third-party satisfies the quasi attorney-client privilege compelling need test must be produced to the third-party.”

11. “In a third-party bad faith action where an insured has signed a release of his/her claim file to a third-party litigant, documents in the insured's claim file that were generated prior to the filing date of a third-party's complaint against an insured are, upon a proper showing, protected by the work product rule. An insurer may raise the work product rule with respect to any document it believes is protected from disclosure by the work product rule. The work product rule belongs to the insurer and may be waived only by the insurer.”

12. “When a trial court presiding over a third-party bad faith action makes its determination of whether a document was prepared in anticipation of litigation, the trial court should consider the nature of the requested documents, the reason the documents were prepared, the relationship between the preparer of the document and the party seeking its protection from discovery, the relationship between the litigating parties, and any other facts relevant to the issue. If the trial court determines that some or all of the requested documents have been shown to be protected from disclosure by the work product rule, then such documents are protected from disclosure by the work product rule.”

13. “A third-party may obtain documents deemed protected by the work product rule only upon showing that he/she has a substantial need of the materials in the preparation of his/her case and that he/she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. To satisfy the work product rule substantial need and undue hardship tests, the third-party must show that a witness is no longer available for questioning, or is hostile and refuses to give a statement, or a witness has faulty memory. Any protected document for which the third-party satisfies the work product rule substantial need and undue hardship tests must be produced to the third-party.”

14. “When attorney-client privileged documents are inadvertently disclosed during discovery, such disclosure does not in and of itself constitute a waiver of the privilege. In order to determine whether to apply the waiver doctrine to such disclosure trial courts must consider the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, (5) whether the overriding interest of justice would be served by relieving the party of its error and (6) any other factors found to be relevant. The party inadvertently disclosing attorney-client privileged communication bears the burden of showing by a preponderance of evidence that the communication should retain its privileged status. The trial court's determination of this issue will not be reversed absent an abuse of discretion.”

Case Name and Citation

Jordache Enterprises, Inc. v. National Union Fire Insurance Co. of Pittsburgh, PA, 204 W. Va. 465, 513 S.E.2d 692 (1998)

Procedural Posture

Jordache Enterprises, Inc., along with its officers and directors (the Nakash brothers), appealed from the denial of their Rule 60(b) motion by the Circuit Court of Kanawha County. The motion sought to set aside a summary judgment in favor of National Union Fire Insurance Company, which was based on defenses of res judicata and collateral estoppel following a New York court ruling that found no coverage under the directors and officers (D&O) liability policy. The Supreme Court of Appeals of West Virginia reviewed the case.

Relevant Facts

• Jordache purchased a D&O liability insurance policy from National Union to cover losses from wrongful acts committed by directors and officers.

• A subsidiary of Jordache, Retail Acquisition Corporation (RAC), filed for bankruptcy in 1991 and alleged that Jordache’s directors (the Nakash brothers) exploited RAC for personal financial gain to the detriment of RAC and its creditors.

• Jordache settled RAC’s claims for $5 million, seeking reimbursement from National Union. The insurer denied coverage, asserting that the alleged actions were outside the scope of the policy.

• National Union initiated a declaratory judgment action in New York, and the court ruled in favor of National Union, citing policy exclusions.

• The Circuit Court of Kanawha County applied res judicata and collateral estoppel based on the New York judgment to dismiss Jordache’s claims in West Virginia. Jordache then appealed the denial of their motion to vacate.

Legal Issues Presented

1. Did res judicata and collateral estoppel bar Jordache’s claims for coverage and bad faith?

2. Did the Circuit Court err in refusing to vacate its judgment based on a misunderstanding of the scope of the New York ruling?

3. Were the appellants entitled to proceed under the West Virginia Unfair Trade Practices Act (UTPA) despite the prior rulings?

Holding(s)

1. Res judicata and collateral estoppel precluded Jordache’s claims for coverage and common law bad faith, as the New York court’s judgment was final and binding.

2. The automatic bankruptcy stay for Joseph Nakash did not shield the appellants from the preclusive effects of the New York judgment against co-defendants.

3. The Circuit Court’s application of Rule 60(b) was proper, as no extraordinary circumstances justified vacating the judgment.

4. Claims under the West Virginia Unfair Trade Practices Act (UTPA) were not entirely barred by the doctrines of res judicata and collateral estoppel because such claims focus on an insurer’s general business practices and statutory violations, which are distinct from the underlying coverage dispute.

Reasoning

• The court affirmed the applicability of res judicata and collateral estoppel under the full faith and credit clause of the U.S. Constitution, which required the West Virginia court to honor the New York court’s final judgment. The judgment resolved the issue of policy coverage and excluded liability for the alleged wrongful acts.

• The automatic bankruptcy stay did not invalidate the New York ruling’s applicability to co-defendants, as the stay only applied to Joseph Nakash individually and not to the broader claims against Jordache and the other directors.

• On the UTPA claims, the court distinguished between contractual disputes and statutory violations under West Virginia Code § 33-11-4(9). Claims under the UTPA do not require a policyholder to prevail in the underlying contract action if the insurer’s conduct demonstrates a “general business practice” of unfair settlement practices. The court noted that such statutory claims focus on systemic insurer misconduct, not solely the specifics of a single contractual disagreement.

• However, punitive damages and enhanced damages under common law bad faith claims require the policyholder to first prevail on the underlying contract action.

Outcome

The Supreme Court of Appeals of West Virginia affirmed the Circuit Court’s dismissal of the breach of contract and common law bad faith claims. However, it reversed in part to allow Jordache to pursue claims under the West Virginia UTPA for National Union’s alleged violations of statutory unfair settlement practices.

Syllabus Points

1. “A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.” Syllabus Point 5, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974).

2. “Under Article IV, Section 1, of the Constitution of the United States, a valid judgment of a court of another state is entitled to full faith and credit in the courts of this State.” Syllabus Point 1, State ex rel. Lynn v. Eddy, 152 W. Va. 345, 163 S.E.2d 472 (1968).

3. “By virtue of the full faith and credit clause of the Constitution of the United States, a judgment of a court of another state has the same force and effect in this State as it has in the state in which it was pronounced.” Syllabus Point 3, State ex rel. Lynn v. Eddy, 152 W. Va. 345, 163 S.E.2d 472 (1968).

4. A debtor in bankruptcy who is a party to an action but whose participation in the action is automatically stayed by the provisions of 11 U.S.C. § 362 may be precluded by the principles of res judicata and collateral estoppel from relitigating the same claims or issues of which there was a final adjudication as to his co-defendants, in a subsequent action.

5. In order for a policyholder to bring a common law bad faith claim against his insurer, according to Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986) and its progeny, the policyholder must first substantially prevail against his insurer on the underlying contract action.

6. A clear predicate to recovering punitive damages in a common law bad faith claim wherein a policyholder alleges that the insurer knew the policyholder’s claim was proper, but willfully, maliciously and intentionally denied the claim, is that the policyholder substantially prevail on the underlying contract action.

7. “The conditions and predicate for bringing a case under Jenkins v. J.C. Penney Casualty Insurance Company, 167 W. Va. 597, 280 S.E.2d 252 (1981), are wholly different from those necessary for bringing an underlying contract action or for bringing an action under Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W. Va. 323, 352 S.E.2d 73 (1986). Whereas under Hayseeds it is necessary that a policyholder substantially prevail on an underlying contract action before he may recover enhanced damages, under Jenkins there is no requirement that one substantially prevail; it is required that liability and damages be settled previously or in the course of the Jenkins litigation. Jenkins instead predicates entitlement to relief solely upon violation of the West Virginia Unfair Trade Practices Act, W. Va. Code § 33-11-4(9), where such violation arises from a “general business practice” on the part of the insurer.” Syllabus Point 9, McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996).

Case Name and Citation
Wilt v. State Auto Mutual Insurance Co., 203 W.Va. 165, 506 S.E.2d 608 (1998)

Procedural Posture
The United States District Court for the Northern District of West Virginia certified to the Supreme Court of Appeals of West Virginia the question of which statute of limitations applies to unfair settlement practices claims brought under the West Virginia Unfair Trade Practices Act (UTPA), W.Va. Code § 33-11-4(9). The plaintiffs, Glenn and Sandra Wilt, alleged unfair settlement practices against their automobile insurance carrier after an automobile accident.

Relevant Facts
The plaintiffs filed a personal injury lawsuit following an automobile accident and received a $1.5 million jury verdict, which was later reduced. Subsequently, the plaintiffs filed a separate lawsuit alleging unfair settlement practices against their insurer, claiming delays and bad faith in settling claims. The key legal issue was determining whether these claims were subject to the one-year statute of limitations under W.Va. Code § 55-2-12(c) or the two-year period applicable to personal injury or fraud claims.

Legal Issues Presented

1. Does the one-year statute of limitations in W.Va. Code § 55-2-12(c) apply to claims for unfair settlement practices under the UTPA?

2. Are such claims analogous to personal injury or fraud claims, warranting a longer statute of limitations?

Holding(s)
The Supreme Court of Appeals of West Virginia held that the one-year statute of limitations under W.Va. Code § 55-2-12(c) applies to unfair settlement practices claims under the UTPA.

Reasoning

1. The court emphasized that claims for unfair settlement practices are statutory and not contractual or tortious in the traditional sense of personal injury or fraud.

2. Unlike personal injury or fraud claims, unfair settlement practices often do not survive the death of the claimant under common law. The one-year limitation in W.Va. Code § 55-2-12(c) applies to actions that would not have survived at common law.

3. The court rejected the argument that unfair settlement claims should be analogized to fraud or personal injury claims, as the remedies and legal standards for these causes of action differ significantly.

Outcome
The certified question was answered, and the court applied the one-year statute of limitations to claims brought under the UTPA.

Syllabus Points

1. “Claims involving unfair settlement practices that arise under the Unfair Trade Practices Act, West Virginia Code § 33-11-1 to -10 (1996 & Supp. 1997), are governed by the one-year statute of limitations set forth in West Virginia Code § 55-2-12(c) (1994).”

2. “ ‘ “The essential elements in an action for fraud are: (1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it.” Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981).’ Syllabus Point 2, Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 (1988).” Syl. Pt. 2, Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., 188 W.Va. 468, 425 S.E.2d 144 (1992).

Case Name and Citation
Sizemore v. State Farm General Insurance Co., 202 W.Va. 591, 505 S.E.2d 654 (1998).

Procedural Posture
The plaintiffs, Randall and Teresa Sizemore, filed a breach of contract and bad faith action against their insurer, State Farm General Insurance Co., after the insurer denied coverage for a fire loss claim. The Circuit Court of Mercer County denied the defendants' motion for summary judgment, certifying four legal questions to the Supreme Court of Appeals of West Virginia.

Relevant Facts

• On April 24, 1993, a fire destroyed the plaintiffs’ mobile home, which was covered by a multiple-line manufactured home insurance policy issued by State Farm.

• State Farm denied the claim on August 24, 1993, citing provisions related to intentional acts, fraud, and non-cooperation.

• The plaintiffs filed a lawsuit on April 24, 1995, beyond the one-year limitation period stated in the policy.

Legal Issues Presented

1. Does the one-year limitation of action provision in the plaintiffs’ insurance policy bar their breach of contract claim?

2. Can the plaintiffs pursue extra-contractual damages for common law bad faith arising from the denial of their claim despite the one-year limitation period?

3. Is the claim for bad faith barred by the one-year statute of limitations for tort actions?

4. Does filing a complaint within two years but failing to serve the summons within the statutory period render the claim untimely?

Holdings

1. The one-year limitation of action provision in the insurance policy bars the plaintiffs’ breach of contract claim.

2. The plaintiffs cannot pursue extra-contractual damages for bad faith under these circumstances.

3. The bad faith claim is barred by the one-year statute of limitations.

4. Filing a complaint without serving it within the statutory period does not necessarily render the claim untimely if subsequent procedural requirements are met.

Reasoning

• The court interpreted the statutory exemption for "standard fire insurance policies" in W.Va. Code § 33–6–14 to include multiple-line policies combining fire and casualty insurance.

• The exemption validates the one-year limitation period in the plaintiffs’ policy as compliant with the statutory framework.

• Because the plaintiffs failed to file their claim within this limitation period, they could not substantially prevail on the property damage claim or pursue damages under Hayseeds, Inc. v. State Farm Fire & Cas. principles.

• The bad faith claim was integrally tied to the breach of contract claim and thus similarly time-barred.

Outcome
The court upheld the denial of coverage, concluding that the plaintiffs’ claims were barred by the one-year limitation provision in the policy.

Syllabus Points

1. The term “standard fire insurance policy” in W.Va. Code § 33–6–14 (1957) includes the fire portion of approved multiple-line insurance policies that combine casualty and fire insurance coverage, as long as the policy language is at least as favorable to the insured as applicable portions of the standard fire policy and is approved by the commissioner.

2. “Whenever 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.” Syllabus Point 1, Hayseeds, Inc. v. State Farm Fire & Cas., 177 W.Va. 323, 352 S.E.2d 73 (1986).

Case Name and Citation
Slider v. State Farm Mutual Automobile Insurance Company, 210 W.Va. 476, 557 S.E.2d 883 (2001).

Procedural Posture
The plaintiffs, Diana L. Slider and Randy Slider, appealed a summary judgment granted by the Circuit Court of Ohio County in favor of the defendants, including State Farm Mutual Automobile Insurance Company and Erie Insurance Group. The lower court held that the plaintiffs’ bad faith claims were barred by the doctrine of res judicata due to a prior judgment concerning consequential damages related to underinsured motorist (UIM) claims.

Relevant Facts
Diana Slider suffered injuries as a passenger in a vehicle struck by a logging truck. After receiving UIM coverage payouts from State Farm and Erie, the Sliders sought consequential damages, attorney fees, and other claims based on alleged bad faith and unfair settlement practices. In an earlier personal injury suit, a court had ruled against the Sliders’ claims for damages under Marshall v. Saseen, finding they did not “substantially prevail.” The Sliders later filed a separate action asserting bad faith and intentional tort claims against the insurers.

Legal Issues Presented

1. Does the prior adjudication on claims for consequential damages and attorney fees under Marshall v. Saseen preclude subsequent bad faith claims against the insurers under the doctrine of res judicata?

2. Can the current claims for bad faith be distinguished from the earlier Marshall claim based on the nature of evidence required?

Holding(s)

1. The prior judgment does not preclude the Sliders’ current claims for bad faith and intentional misconduct under the doctrine of res judicata.

2. The claims in the current action are distinct from the earlier claims in that they involve allegations of bad faith and other misconduct rather than the issue of whether the plaintiffs "substantially prevailed" in the underlying action.

Reasoning
The West Virginia Supreme Court of Appeals applied the “same-evidence” test for res judicata. It held that the earlier claims for consequential damages under Marshall required different evidence than the current bad faith claims, which focus on allegations of intentional and willful misconduct by the insurers. The Court clarified that while res judicata bars litigation of identical issues, the present claims involve distinct legal theories and factual bases.

Outcome
The judgment of the Circuit Court was reversed, and the case was remanded for further proceedings.

Syllabus Points

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action.” Syl. pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997).

3. “An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.” Syl. pt. 1, Sayre's Adm'r v. Harpold, 33 W.Va. 553, 11 S.E. 16 (1890).

4. For purposes of res judicata or claim preclusion, “a cause of action” is the fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief. The test to determine if the issue or cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues. If the two cases require substantially different evidence to sustain them, the second cannot be said to be the same cause of action and barred by res judicata.

5. Where an insured has previously brought a claim for consequential damages under Marshall v. Saseen, 192 W.Va. 94, 450 S.E.2d 791 (1994), and a final judgment has been entered with respect to such claim, the insured is not thereby precluded under principles of res judicata or claim preclusion from bringing a subsequent action asserting causes of action predicated upon a defendant insurer's alleged bad faith or other intentional misconduct in the course of settling the insured's policy claim.

Case Name and Citation
State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 583 S.E.2d 80 (2003)

Procedural Posture
The petitioner, Medical Assurance of West Virginia, Inc., sought a writ of prohibition from the Supreme Court of Appeals of West Virginia to prevent enforcement of a Circuit Court order compelling the production of its investigative and claims files. The lower court had granted this discovery motion as part of a "bad faith" claim against the insurer following a medical malpractice case.

Relevant Facts
The case arose from the death of Marjorie Verba, who passed away shortly after being discharged from the hospital following anti-reflux surgery. Her estate sued the attending physician for medical malpractice and won a jury verdict. The judgment was reduced due to statutory caps on non-economic damages. Subsequently, the estate amended its complaint to include allegations of unfair claims settlement practices against the doctor’s insurer, Medical Assurance.

Legal Issues Presented

1. Whether attorney-client privilege and work product doctrine protected certain documents from discovery.

2. Whether the lower court erred in its application of legal standards governing privileged materials in discovery.

Holding(s)
The Supreme Court of Appeals granted the writ of prohibition, holding that the discovery order improperly required disclosure of privileged and work product materials.

Reasoning
The court emphasized that:

1. Communications protected by attorney-client privilege remain privileged even when shared with the insurer under specific circumstances.

2. The work product doctrine shields materials prepared in anticipation of litigation unless the requesting party demonstrates substantial need and an inability to obtain the equivalent without undue hardship.

3. The lower court applied incorrect legal standards, failing to properly assess the scope of privilege and work product protections.

Outcome
The writ of prohibition was granted, preventing the enforcement of the discovery order. The court instructed the circuit court to reconsider the motion to compel under the correct standards.

Syllabus Points

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. “A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders.” Syllabus Point 1, State Farm v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

3. “When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate.” Syllabus Point 3, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

4. “Unless obviously correct or unreviewably discretionary, rulings requiring attorneys to turn over documents that are presumably prepared for their clients' information and future action are presumptively erroneous.” Syllabus Point 6, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

5. A circuit court's ruling on discovery requests is reviewed for an abuse of discretion standard; but, where a circuit court's ruling turns on a misinterpretation of the West Virginia Rules of Civil Procedure, our review is plenary. The discretion that is normally given to a trial court's procedural decisions does not apply where the trial court makes no findings or applies the wrong legal standard.

6. “The burden of establishing the attorney-client privilege or the work product exception, in all their elements, always rests upon the person asserting it.” Syllabus Point 4, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

7. “In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from the attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be intended to be confidential.” Syllabus Point 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).

8. “The limitation in Rule 26(b)(3) of the West Virginia Rules of Civil Procedure is against obtaining documents and other tangible things used in trial preparation.” Syllabus Point 8, in part, In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984).

9. “To determine whether a document was prepared in anticipation of litigation and, is therefore, protected from disclosure under the work product doctrine, the primary motivating purpose behind the creation of the document must have been to assist in pending or probable future litigation.” Syllabus Point 7, State ex rel. United Hosp. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997).

10. “Rule 26(b)(3) of the West Virginia Rules of Civil Procedure makes a distinction between factual and opinion work product with regard to the level of necessity that has to be shown to obtain their discovery.” Syllabus Point 7, In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984).

11. “The purpose of Rule 26(b)(3) [of the West Virginia Rules of Civil Procedure] is to narrow the ability to obtain trial preparation material by expanding the coverage of the work product rule to include persons other than an attorney.” Syllabus Point 6, in part, In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984).

12. In clear language, Rule 26 of the West Virginia Rules of Civil Procedure provides that privileged matters, although relevant, are not discoverable. As a result of this rule, many documents that could very substantially aid a litigant in a lawsuit are neither discoverable nor admissible as evidence. In determining what privileges or protections are applicable, we are obligated to look both at the rules themselves and to our statutory and common law.

13. “[N]ew points of law ... will be articulated through syllabus points as required by our state constitution.” Syllabus Point 2, in part, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001).

Case Name and Citation
State of West Virginia ex rel. Allstate Insurance Company v. Madden, 215 W. Va. 705, 601 S.E.2d 25 (2004).

Procedural Posture
Allstate Insurance Company petitioned for a writ of prohibition to prevent Judge John T. Madden of the Circuit Court of Marshall County from enforcing orders requiring the insurer to produce allegedly privileged documents and allow depositions in a bad faith action brought by Cindy Jo Falls.

Relevant Facts
Cindy Jo Falls, an insured under a policy issued by Allstate, brought a bad faith action against the insurer following disputes regarding underinsured motorist coverage. Falls sought discovery of documents and deposition testimony from Allstate’s attorneys, which Allstate argued were protected by attorney-client privilege and the work product doctrine. The circuit court ordered Allstate to disclose the documents and permit depositions, leading to this petition for writ of prohibition.

Legal Issues Presented

1. Whether the filing of a first-party bad faith action by an insured automatically waives an insurer’s attorney-client privilege and work product doctrine protections.

2. Whether the circuit court erred in failing to conduct an in camera review to determine the applicability of the asserted privileges.

Holding(s)

1. The insured’s first-party bad faith action does not automatically waive the insurer’s attorney-client privilege.

2. An in camera review is necessary to evaluate claims of privilege or protection under the work product doctrine.

Reasoning
The Supreme Court of Appeals clarified that Rule 26 of the West Virginia Rules of Civil Procedure protects privileged materials, even if they are relevant. The court emphasized that the filing of a bad faith action does not inherently waive the insurer's privileges and that privilege claims must be evaluated individually through in camera proceedings. The circuit court erred by failing to conduct such an analysis.

Outcome
The writ of prohibition was granted as molded. The case was remanded for an in camera review to determine whether the asserted privileges applied.

Syllabus Points

1. “When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate.” Syllabus point 3, State ex rel. United States Fidelity & Guaranty Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

2. “In clear language, Rule 26 of the West Virginia Rules of Civil Procedure provides that privileged matters, although relevant, are not discoverable. As a result of this rule, many documents that could very substantially aid a litigant in a lawsuit are neither discoverable nor admissible as evidence. In determining what privileges or protections are applicable, we are obligated to look both at the rules themselves and to our statutory and common law.” Syllabus point 12, State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 583 S.E.2d 80 (2003).

3. “ ‘In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser; (3) the communication between the attorney and client must be identified to be confidential.’ Syllabus Point 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).” Syllabus point 7, State ex rel. United States Fidelity & Guaranty Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

4. “Where the interests of an insured and his or her insurance company are in conflict with regard to a claim for underinsured motorist coverage and the insurance company is represented by counsel, the bringing of a related first-party bad faith action by the insured does not automatically result in a waiver of the insurance company's attorney-client privilege concerning the underinsurance claim.” Syllabus point 7, State ex rel. Brison v. Kaufman, 213 W.Va. 624, 584 S.E.2d 480 (2003).

5. “ ‘To determine whether a document was prepared in anticipation of litigation and, is therefore, protected from disclosure under the work product doctrine, the primary motivating purpose behind the creation of the document must have been to assist in pending or probable future litigation.’ Syllabus Point 7, State ex rel. United Hosp. [Ctr., Inc.] v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997).” Syllabus point 9, State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 583 S.E.2d 80 (2003).

6. Where the interests of an insured and his or her insurance company are in conflict with regard to a claim for underinsured motorist coverage and the insurance company is represented by counsel, the bringing of a related first-party bad faith action by the insured does not automatically preclude the insurance company from raising the work product doctrine as a defense to discovery concerning the underinsurance claim.

7. To establish the application of the crime-fraud exception, a party must demonstrate an adequate factual basis exists to support a reasonable person's good faith belief that an in camera review of the privileged materials would produce evidence to render the exception applicable. In making this prima facie showing, the party must rely on nonprivileged evidence, unless the court has not previously made a preliminary determination on the matter of privilege, in which case the allegedly privileged materials may also be considered. Discretion as to whether to conduct an in camera review of the privileged materials rests with the court. If, however, the prima facie evidence is sufficient to establish the existence of a crime or fraud so as to render the exception operable, the court need not conduct an in camera review of the otherwise privileged materials before finding the exception to apply and requiring disclosure of the previously protected materials. The crime-fraud exception operates to compel disclosure of otherwise privileged materials only when the evidence establishes that the client intended to perpetrate a crime or fraud and that the confidential communications between the attorney and client were made in furtherance of such crime or fraud.

8. To the extent the attorney-client privilege and the work product doctrine operate to protect communications between a client and his or her counsel in a first-party bad faith action, the crime-fraud exception also operates to require disclosure of such communications made in furtherance of a crime or fraud.

9. “The burden of establishing the attorney-client privilege or the work product exception, in all their elements, always rests upon the person asserting it.” Syllabus point 4, State ex rel. United States Fidelity & Guaranty Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

10. “In an action for bad faith against an insurer, the general procedure involved with discovery of documents contained in an insurer's litigation or claim file is as follows: (1) The party seeking the documents must do so in accordance with the reasonable particularity requirement of Rule 34(b) of the West Virginia Rules of Civil Procedure; (2) If the responding party asserts a privilege to any of the specific documents requested, the responding party shall file a privilege log that identifies the document for which a privilege is claimed by name, date, custodian, source and the basis for the claim of privilege; (3) The privilege log should be provided to the requesting party and the trial court; and (4) If the party seeking documents for which a privilege is claimed files a motion to compel, or the responding party files a motion for a protective order, the trial court must hold an in camera proceeding and make an independent determination of the status of each communication the responding party seeks to shield from discovery.” Syllabus point 2, State ex rel. Westfield Insurance Co. v. Madden, 216 W. Va. 16, 602 S.E.2d 459 (No. 31579, Feb. 27, 2004).

11. In an action for bad faith against an insurer, the general procedure to be followed to depose attorneys employed by the insurer is as follows: (1) The party desiring to take the deposition(s) must do so in accordance with the mandates of Rule 30 of the West Virginia Rules of Civil Procedure; (2) If the responding party asserts a privilege to any of the questions posed, the responding party must object to such questioning in accordance with the directives of Rule 30(d)(1); and (3) If the party seeking testimony for which a privilege is claimed files a motion to compel, or the responding party files a motion for a protective order, the trial court must hold an in camera proceeding and make an independent determination of the status of each communication the responding party seeks to shield from discovery.

Case Name and Citation
Jackson v. State Farm Mut. Auto. Ins. Co., 215 W.Va. 634, 600 S.E.2d 346 (2004).

Procedural Posture
David M. Jackson filed a lawsuit against State Farm Mutual Automobile Insurance Company, alleging violations of the West Virginia Unfair Trade Practices Act (UTPA) for unfair settlement practices. The Circuit Court of Brooke County granted summary judgment in part for Jackson, ruling that State Farm had violated the UTPA, and a jury subsequently found that the violations constituted a general business practice. State Farm appealed both the summary judgment and the denial of its post-trial motions.

Relevant Facts

• Jackson was seriously injured in a collision caused by another driver insured by State Farm.

• State Farm initially concluded that Jackson was entirely at fault and denied his claims without thorough investigation.

• Later, internal reviews at State Farm indicated that the insured driver might have been significantly at fault, yet the company delayed offering a settlement.

• After litigation, a jury found the insured driver 90% at fault, awarding Jackson substantial damages. Jackson then amended his claims against State Farm, alleging systemic unfair claim settlement practices.

• The jury awarded Jackson damages for attorney fees, annoyance, inconvenience, and punitive damages totaling $1.34 million.

Legal Issues Presented

1. Whether liability under the UTPA was “reasonably clear,” justifying summary judgment in favor of Jackson.

2. Whether State Farm conducted a reasonable investigation of Jackson's claims.

3. The scope of expert testimony permitted at trial regarding unfair settlement practices.

Holding(s)

1. The court reversed summary judgment, finding that whether liability was “reasonably clear” and whether State Farm conducted a reasonable investigation were factual issues for a jury.

2. The court addressed and clarified the permissible scope of expert testimony regarding unfair claim settlement practices.

Reasoning

• The court determined that the circuit court erred by concluding that liability was “reasonably clear” as a matter of law because such determinations are typically jury questions.

• Similarly, the adequacy of an insurer’s investigation is a factual issue for a jury, requiring a review of the evidence.

• The court clarified that expert testimony should not extend to ultimate legal conclusions but may address industry standards and practices.

Outcome
The Supreme Court of Appeals of West Virginia reversed the circuit court’s partial summary judgment in favor of Jackson and remanded for further proceedings. The jury verdict was also reversed, necessitating a new trial on several issues.

Syllabus Points

1. “In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” (Syllabus Point 1, Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941)).

2. “Liability is ‘reasonably clear,’ as stated in W.Va. Code, 33–11–4(9)(f) [2002], when a reasonable person, with knowledge of the relevant facts and law, would conclude, for good reason, that the defendant is liable to the plaintiff.”

3. “Whether an insurer refused to pay a claim without conducting a reasonable investigation based on all available information under W.Va.Code, 33–11–4(9)(d) [2002], and whether liability is reasonably clear under W.Va.Code, 33–11–4(9)(f) [2002], ordinarily are questions of fact for the jury.”

4. “A trial verdict in which a defendant is found liable to a plaintiff for personal injuries or property damage suffered by the plaintiff is not dispositive of the issues raised in an unfair settlement practices claim brought by the plaintiff against the defendant's liability insurer pursuant to W.Va.Code, 33–11–4(9) [2002], in which the plaintiff alleges that the defendant's liability insurer unreasonably failed to settle the plaintiff's claims against the defendant.”

5. “As a general rule, an expert witness may not give his or her opinion on the interpretation of the law as set forth in W.Va.Code, 33–11–4(9)(a)—(o) (2002), which defines unfair claim settlement practices; the legal meaning of terms within that code section; or whether a party committed an unfair claim settlement practice as defined in that code section. Rather, it is the role of the trial judge to instruct the jury on the law.”

6. “The extent of the cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in case of manifest abuse or injustice.” (Syllabus Point 4, State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956)).

7. “The right of cross-examination is not an unlimited one and it is subject to the discretionary power of the trial court to restrict or limit such cross-examination where it is justified.” (Syllabus Point 5, State v. Hankish, 147 W.Va. 123, 126 S.E.2d 42 (1962)).

8. “Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.” (Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983)).

Case Name and Citation
Barefield v. DPIC Companies, Inc., 215 W.Va. 544, 600 S.E.2d 256 (2004).

Procedural Posture
Plaintiff Hubert J. Barefield brought a lawsuit against DPIC Companies, Inc., alleging violations of the West Virginia Unfair Trade Practices Act (UTPA) in the defense and settlement of a legal malpractice claim. The United States District Court for the Northern District of West Virginia certified questions to the Supreme Court of Appeals of West Virginia regarding the applicability of the UTPA to the conduct of defense attorneys and insurance companies during litigation.

Relevant Facts
Mr. Barefield pursued a legal malpractice claim against his former attorney after the attorney failed to file a timely medical malpractice lawsuit. DPIC, the attorney's malpractice insurer, retained defense counsel for the case. Barefield alleged that DPIC delayed and improperly handled settlement negotiations, leveraging his poor health and financial distress to secure a low settlement in violation of the UTPA.

Legal Issues Presented

1. Can an insurer be held liable under the UTPA for the conduct of a defense attorney it hires to represent an insured?

2. Does the UTPA apply to insurer conduct occurring after litigation has commenced?

Holding(s)

1. No, an insurer is not liable under the UTPA for the independent conduct of a defense attorney hired to represent an insured.

2. Yes, the UTPA applies to insurer conduct occurring after litigation has begun.

Reasoning
The court distinguished between the roles and duties of defense attorneys and insurance companies. Defense attorneys are not engaged in the business of insurance and owe their ethical duties to the insured. The insurer cannot be held vicariously liable for the attorney’s independent conduct. However, the court held that the UTPA imposes ongoing duties on insurers to act fairly and promptly, regardless of whether a claim is in litigation. The court rejected the argument that litigation inherently precludes UTPA applicability, affirming that unfair practices during litigation remain actionable if they constitute general business practices.

Concurring and Dissenting Opinions
Justice Davis concurred and filed a separate opinion emphasizing the importance of maintaining clear distinctions between an attorney’s ethical obligations to the insured and an insurer’s business practices. Justice Maynard concurred in part and dissented in part, expressing concerns that the majority’s ruling might overextend the applicability of the UTPA to litigation conduct, potentially chilling legitimate defenses by insurers. Justice Albright also concurred separately, focusing on the need for courts to carefully scrutinize whether insurer actions during litigation constitute general business practices under the UTPA.

Outcome
The court answered the certified questions by clarifying the boundaries of UTPA applicability and insurer liability.

Syllabus Points

1. “A de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.” (Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998))

2. “The Unfair Trade Practices Act, W.Va.Code §§ 33–11–1 to 10, and the tort of bad faith apply only to those persons or entities and their agents who are engaged in the business of insurance.” (Hawkins v. Ford Motor Co., 211 W.Va. 487, 566 S.E.2d 624 (2002))

3. “A defense attorney who is employed by an insurance company to represent an insured in a liability matter is not engaged in the business of insurance.” (Rose v. St. Paul Fire & Marine Ins. Co., 215 W.Va. 250, 599 S.E.2d 673 (2004))

4. “A claimant can establish a violation of the UTPA by showing that an insurer knowingly encouraged or ratified wrongful litigation conduct of a defense attorney hired to represent an insured.” (Rose)

5. “To maintain a private action under the UTPA, evidence must demonstrate a general business practice of violations, not isolated incidents.” (Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 491 S.E.2d 1 (1996))

6. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” (State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968))

Case Name and Citation
Loudin v. National Liability & Fire Insurance Co., 228 W.Va. 34, 716 S.E.2d 696 (2011).

Procedural Posture
Thomas and Alice Loudin, the plaintiffs below, appealed the Circuit Court of Upshur County's grant of summary judgment in favor of National Liability & Fire Insurance Co. and other defendants. The trial court ruled the Loudins were third-party claimants and dismissed their claims for bad faith, breach of contract, and other related causes of action. The plaintiffs appealed, asserting procedural and substantive errors in the trial court's judgment.

Relevant Facts
Thomas Loudin was injured while his brother, William Loudin, negligently operated a truck insured under a policy issued to Thomas by National Liability & Fire Insurance Co. Thomas filed claims under both the medical payments and liability coverage provisions of the policy. While the insurer paid $5,000 under the medical payments provision, it denied liability coverage. Following litigation and a $150,000 settlement with William, the Loudins amended their complaint to include claims against the insurer for bad faith and other causes of action. The trial court dismissed these claims on summary judgment.

Legal Issues Presented

1. Whether the Loudins were first-party or third-party claimants under the insurance policy.

2. Whether the trial court erred in sua sponte granting summary judgment on the outrage claim without prior notice.

Holdings

1. The Loudins were first-party claimants for purposes of the bad faith action against their insurer.

2. The trial court erred in granting summary judgment on the outrage claim without providing the Loudins notice and an opportunity to address the issue.

Reasoning
The court held that the Loudins, as named policyholders filing claims under their own policy, were first-party claimants, notwithstanding the insurer's assertion that William's operation of the truck created a third-party claim dynamic. The court emphasized the contractual obligations and heightened duty of good faith owed by insurers to their insureds. Regarding the outrage claim, the court ruled that summary judgment on grounds not raised by the parties requires notice to the non-moving party, which was not provided here.

Outcome
The Supreme Court of Appeals reversed the circuit court’s grant of summary judgment and remanded the case for further proceedings.

Syllabus Points

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. A first-party bad faith action is one wherein the insured sues his/her own insurer for failing to use good faith in settling a claim filed by the insured.

3. When a named policyholder files a claim with his/her insurer, alleging that a nonnamed insured under the same policy caused him/her injury, the policyholder is a first-party claimant in any subsequent bad faith action against the insurer arising from the handling of the policyholder's claim.

4. As a general rule, a trial court may not grant summary judgment sua sponte on grounds not requested by the moving party. An exception to this general rule exists when a trial court provides the adverse party reasonable notice and an opportunity to address the grounds for which the court is sua sponte considering granting summary judgment.

Case Name and Citation
State ex rel. West Virginia Mutual Insurance Company v. Salango, 246 W.Va. 9, 866 S.E.2d 74 (2021)

Procedural Posture
The insured, Dr. Michael Covelli, brought claims of common-law bad faith and violations of the West Virginia Unfair Trade Practices Act (UTPA) against his insurer, West Virginia Mutual Insurance Company, for settling two malpractice cases within policy limits. The Circuit Court of Kanawha County denied the insurer’s motion for summary judgment. The insurer petitioned the Supreme Court of Appeals of West Virginia for a writ of prohibition.

Relevant Facts
Dr. Covelli faced two malpractice lawsuits. In the first, a jury awarded $5.8 million, but the insurer settled for $950,000 before judgment was entered. Publicity around this case led to a second malpractice suit, settled for $300,000. Dr. Covelli claimed that the settlements damaged his professional reputation and caused economic losses. He asserted that the insurer’s delayed settlements violated common-law obligations under Shamblin v. Nationwide Mutual Insurance and certain provisions of the UTPA.

Legal Issues Presented

1. Can an insured maintain a bad faith claim under Shamblin without personal liability for an excess judgment?

2. Does the insured have standing to assert claims under the UTPA for unfair settlement practices?

Holding(s)

1. The insured must face actual personal liability in excess of policy limits to sustain a Shamblin claim.

2. Insureds lack standing to bring UTPA claims under §§ 33-11-4(9)(b), (c), (d), and (f).

Reasoning

1. The court found that no excess judgment existed as the settlements were within policy limits, negating the fundamental element of personal liability required under Shamblin.

2. The court held that UTPA provisions cited by Dr. Covelli protect third-party claimants, not insureds. This was consistent with precedent established in State ex rel. State Auto Property Insurance Companies v. Stucky.

Outcome
The Supreme Court of Appeals granted the writ of prohibition, directing the lower court to grant summary judgment in favor of the insurer on both counts.

Syllabus Points

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors...Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” (Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996))

2. “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” (Syllabus Point 3, Aetna v. Fed. Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963))

3. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” (Syllabus Point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994))

4. “In order for an insured or an assignee of an insured to recover the amount in excess of policy limits from an insurer pursuant to this Court’s decision in Shamblin v. Nationwide Mutual Insurance Co., 183 W.Va. 585, 396 S.E.2d 766 (1990), the insured must be actually exposed to personal liability in excess of policy limits at the time the excess verdict is rendered.” (Syllabus Point 9, Strahin v. Sullivan, 220 W.Va. 329, 647 S.E.2d 765 (2007))

5. “In a proceeding governed by the Rules of Civil Procedure, a judgment rendered in such proceeding is not final and effective until entered by the clerk in the civil docket as provided in Rule 58 and Rule 79(a) of the Rules of Civil Procedure.” (Syllabus Point 4, State v. Mason, 157 W.Va. 923, 205 S.E.2d 819 (1974))