Link to PDF file
No. 34620 - Robert J. Zaleski, M.D., v. West Virginia Mutual Insurance Company,
Formerly Known as West Virginia Physicians Mutual Insurance
Workman, Justice, dissenting:
I respectfully dissent from the Majority.
The underlying matter stems from an Ohio County Circuit Court action
brought by Dr. Robert J. Zaleski, [hereinafter Dr. Zaleski], an orthopedic surgeon,
following the decision of the West Virginia Mutual Insurance Company [hereinafter
the Mutual] to deny renewal of Dr. Zaleski's malpractice insurance coverage. This
marks the second time the parties have appeared in this Court on this issue. In our
June 27, 2007, decision, we affirmed that Mutual was a state actor and that,
consequently, Dr. Zaleski was entitled to a hearing to adequately protect his property
interest in his liability policy.
In our initial decision, we specifically stated:
Therefore, the case is remanded to the Circuit
Court of Ohio County with directions for that court to:
(1) remand the question of non-renewal to Mutual for
further hearing in conformity with this opinion, and (2)
conduct such further proceedings not inconsistent with
this opinion as may be required, including the resolution
of any disputes which may arise in the course of the
Mutual hearing on non-renewal.
Zaleski v. Physicians' Mutual Ins. Co., 220 W.Va. 311, 322, 647 S.E.2d 747, 758
(2007) [hereinafter Zaleski I]. In addition, we required Mutual to make available
to parties affected by its non-renewal decisions a renewal process that minimally
includes: notice of the non-renewal which conforms with the requirement of W.Va.
Code 33-20C-4(a) and which includes the reasons for non-renewal; hearing before an
unbiased hearing examiner; reasonable time in which to prepare to rebut the charges;
opportunity to have retained counsel at any hearings on the charges; opportunity to
present relevant evidence which includes calling and examining witnesses; and the
preservation of a record of the review process. Zaleski I, 220 W.Va. at 321-22, 647
After the Zaleski I remand, the parties disagreed on whether the hearing
procedures established by Mutual met the minimum criteria established by this Court
in the remand decision. Specifically, Mutual offered a hearing composed of hearing
examiners drawn from its own Board of Directors. As we noted previously, the
opinion in Zaleski I specifically required a hearing before an unbiased hearing
examiner. Mutual's Board of Directors clearly fall short of the mark. The interests
of the members of the Board of Directors lie with Mutual, and they clearly cannot be
characterized as unbiased regarding a dispute where Mutual is one of the parties. The
circuit court rightfully intervened and required that the hearing:
1. Should contain the provision that the entire
burden of proof as to the reason for the non-
renewal should be upon the Mutual;
2. A provision should be added to require Mutual to
inform an affected physician as to the scope of the
3. The composition of the tribunal shall provide for
a completely unbiased constituency which shall
not include members of Mutual's Board of
Given our previous directive that the circuit court conduct its
proceedings consistent with our opinion as may be required, the circuit court's
intervention was both prudent and within the bounds of Zaleski I's directive. How the
majority can possibly reason that the issue of the proper procedures for a hearing are
not ripe until that hearing is completed is beyond non-sensical. Not only does it not
make sense, but it fails to recognize the value of judicial economy to both the legal
system and the parties. All too often, this and other courts fail to recognize the
expense it puts all parties to when unnecessary hearings are required. This is
especially egregious when the issue is as clear as this one.
Clearly, the lower court's determination that the hearing procedures
failed to meet the minimum due process requirements required by Zaleski I was
appropriately made before the hearing was to take place, and is consistent with our
directive in Zaleski I.
The majority writes that the circuit court put the cart before the horse
by requiring unbiased hearing examiners before the hearing actually took place. A
more accurate sentiment may be that the circuit court merely ensured that the horse
and cart were properly equipped.
For the reasons outlined in this opinion, I respectfully dissent.