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No. 31033         West Virginia Insurance Guaranty Association, an unincorporated legal entity v.                               Marlyn L. Potts, Alan K. Potts, Stacey Potts, Erin Potts, Kristen Potts, Robert L.                               Cross, M.D., and Thoracic & Cardiovascular Surgery, Inc., a corporation.

McGraw, J., dissenting:

        I respectfully dissent from the majority's opinion in this case because I believe it strays significantly from our holding in West Virginia Ins. Guar. Assoc. v. Potts, 209 W.Va. 682, 550 S.E.2d 660 (2001) (“Potts I”). In Potts I, we held that Mrs. Potts, her husband and three children each had separate and compensable claims and that each claim was subject to the $300,000 statutory per claim limit. Though we recognized the medical defendants also had a legitimate compensable claim, which was entitled to payment by West Virginia Insurance Guaranty Association (“Association”), the medical defendants' claim had already been resolved and was not at issue in Potts I. Thus, when we held that “[e]ach of the five Potts claimants holds a covered claim for which he or she is entitled to payment from [the Association][,]” id., 209 W.Va. at 688, 550 S.E.2d at 666, our intention was clearly that, upon remand, the circuit court enter an order directing that Mrs. Potts receive $300,000 for her claim (having received a jury verdict in excess of $2,000,000 in compensable and punitive damages), that her husband receive $10,000, and that each of her three children receive $20,000 (the amounts awarded by the jury).

        Because, in my view, to allow the $300,000 payment already made by the Association to resolve the medical defendants' claims to apply as a “credit” against the Potts' claims against the Association is contrary to the spirit and intent of our holding in Potts I, I respectfully dissent.