E. Scott Stanton
Breckinridge, David, Sproles
Summersville, West Virginia
Counsel for Appellant
Elliot G. Hicks
Kay, Casto, Chaney. Love & Wise
Charleston, West Virginia
Counsel for Appellees
This Opinion was delivered PER CURIAM.
1. "'A valid written instrument which expresses the intent of
the parties in plain and unambiguous language is not subject to
judicial construction or interpretation but will be applied and
enforced according to such intent.' Syllabus point 1, Cotiga
Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d
626 (1962)." Syl. Pt. 1, Cabot Oil & Gas Corp. v. Pocahontas Land
Corp., 180 W. Va. 200, 376 S.E.2d 94 (1988).
2. "'"Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Point 5, syllabus, Overton v. Fields, 145 W. Va. 797[,] [117 S.E.2d 598 (1960)].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W. Va. 582, 203 S.E.2d 145 (1974)." Syl. Pt. 12, Board of Educ. v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990).
This is an appeal by Michael Alan Billiter from a November 29,
1990, order of the Circuit Court of Nicholas County reflecting a
jury verdict adjudging the appellant forty percent negligent in
causing an accident which formed the basis for this action. The
appellant also appeals the lower court's March 12, 1991, denial of
his motion for a new trial and motion for judgment notwithstanding
the verdict. The appellant contends that the lower court committed
various errors which justify a reversal. We disagree and affirm
the decision of the circuit court.
On the evening of October 6, 1987, the appellant, an independent truck driver contracting with Cooper Motor Lines of South Carolina, was operating his vehicle in a southbound direction on U.S. Route 19 in Nicholas County, West Virginia. As the appellant was travelling down Powell's Mountain, he noticed another truck attempting to enter the main roadway from a side road, old Route 19. The appellant's testimony indicated that although he saw the truck when he was nearly one hundred yards from the intersection and began to brake immediately, he was unable to stop his vehicle in time to avoid the collision with the trailer of the other vehicle. The driver of that other vehicle was appellee Horace Ulyesses Keene. Deputies Ron Clutter and James Evans of the
Nicholas County Sheriff's Department investigated the accident and
determined that Mr. Keene was at fault.
The appellant's injuries prevented him from driving for
approximately two to three weeks, and he experienced back pain and
stiffness which made driving impracticable for several weeks
thereafter. The appellant negotiated with Mr. Keene's trucking
company, Melton Truck Lines, for the damages to his truck. Upon
the appellee's inability to obtain any payment through Melton Truck
Lines, he contacted Illinois Insurance Exchange, the insurer for
Cooper Motor Lines. On January 11, 1988, the appellant signed a
sworn "Sworn Statement in Proof of Loss," agreeing to accept
$13,679.85 as payment from Illinois Insurance Exchange for the
damages to his vehicle. The appellant also signed a "Statement of
Loss" and "Release and Authorization to Pay" in which he agreed to
accept the $13,679.85 and to release Illinois Insurance Exchange
from any further liability to him. The release also contained a
section entitled "Loan Receipt" which obligated the appellant to
pledge to the Illinois Insurance Exchange any recovery from "any
person or persons, corporation or corporations, or other parties on
account of loss by collision to my/our property on the 6th day of
October 1987."See footnote 1
In January 1989, Illinois Insurance Exchange released
appellees Melton Truck Lines and Horace Keene from all liability
resulting from the accident for the amount of $10,259.89. The
appellant was not a party to this release and had no personal
knowledge of the signing of the release. During this same period,
the appellant and his attorney were negotiating with Melton Truck
Lines in an attempt to settle the appellant's claim for damages.
On November 7, 1990, the parties agreed that the issue of the
effect of Illinois Insurance Exchange's release of Melton Truck
Lines needed to be briefed and argued before the court. After
hearing the arguments of counsel, the lower court ruled that the
appellant had been compensated for the damages to his truck by
Illinois Insurance Exchange and that the release between Illinois
Insurance Exchange and Melton Truck Lines served as a valid release
of Melton Truck Lines from any and all liability to the appellant
for damages to the appellant's truck.
A trial on this matter was conducted on November 13 and 14, 1990. By ruling dated November 7, 1990, the lower court determined that no evidence would be permitted regarding damages to the truck since the appellees had been released from liability for such damages. At trial of the personal injury claims, the jury determined that the appellant was forty percent negligent in
causing the accident and rendered a verdict in the amount of
$11,828.See footnote 2
The appellant assigns the following errors: 1) the lower court erred in its pretrial ruling that the release between Illinois Insurance Exchange and Melton Truck Lines effectively released the appellees from any responsibility to the appellant for damages to his truck; 2) the lower court erred by failing to instruct the jury to disregard statements made by counsel for the appellees in closing argument concerning the distance between the two vehicles before the accident and in failing to review the record pursuant to the appellant's objection and request; 3) the lower court erred in instructing the jury regarding negligence on the part of the appellant when no such evidence was presented by competent testimony; 4) the lower court erred by permitting the appellees to argue and present evidence concerning the appellant's income tax return as representative of his income; 5) the lower court erred in failing to permit the appellant's witness, the police officer who investigated the accident, to testify as to his opinion regarding the individual who had caused the accident; 6) the lower court erred by limiting testimony of the appellant's
witnesses concerning annoyance and aggravation suffered by the
The appellant contends that he did not intend to assign to
Illinois Insurance Exchange the sole authority to negotiate with
Melton Truck Lines and that Illinois Insurance Exchange's release
of Melton Truck Lines was therefore invalid. Further, the
appellant contends that the lower court failed to consider that
Melton Truck Lines had full knowledge, at the time of its release
by Illinois Insurance Exchange, that the appellant was making
claims against it. The appellant also contends that he did not
understand the documents he signed to constitute an assignment of
rights regarding all damages to the truck. The appellant argues
that the exclusion of the evidence regarding damages to his truck,
based upon the release of Melton Truck Lines, prejudiced him.
The loan receipt signed by the appellant provided, in its
entirety, as follows:
RECEIVED FROM______________________ [Illinois Insurance Exchange] hereinafter referred to as insurers and/or Underwriters, the sum of Thirteen Thousand Six Hundred Seventy-Nine and 85/100 Dollars, as a Loan, without interest, under Policy No. DOL-100605, repayable only in the event and to the extent that any net recovery is made by me/us from any person or persons, corporation or corporations, or other parties on account of loss by collision to my/our property on the 6th day of October 1987. As security for such
repayment as we hereby pledge to said insurers
and/or Underwriters whatever recovery I/we
make, and deliver to it herewith all documents
necessary to show my/our interest in said
property and I/we hereby agree promptly to
present claim and, if necessary, to commence,
enter into and prosecute suit against such
person or persons, corporation or corporations
through whose negligence the aforesaid loss
was caused or may otherwise be responsible
therefore, with all due diligence in my/our
own name but at the expense and under the
exclusive direction and control of the said
insurers and or Underwriters. It is further
agreed that the insurers and/or Underwriters
herein named or their authorized agent,
representative or attorney shall have the
authority to endorse and/or sign releases and
drafts and receipts for all monies in any
manner accruing to the benefit of the
undersigned from or out of any subrogation
actions arising under the above numbered
policy. The undersigned and/or assured does
hereby warrant that no releases will be given
or settlement or compromise made or agreed
upon with any third party who may be liable to
the undersigned with respect to any claims
made under the above numbered policy. This
agreement is irrevocable.
The appellant contends that the lower court erred by
concluding that the release by Illinois Insurance Exchange of the
appellees was valid and served to release the appellees from all
liability for damages to the appellant's truck. The appellant
emphasizes that he was not a party to the release and that he was
not involved in negotiations between the appellees and Illinois
The documents signed by the appellant do not appear to be ambiguous in any regard. They simply evidenced the agreement that
Illinois Insurance Exchange would give the appellant $13,679.85
with the understanding that repayment would be made to the extent
that the appellant recovered against any negligent parties through
a civil action "at the expense and under the exclusive direction
and control" of Illinois Insurance Exchange. That provision served
to inform the appellant that any civil action to be maintained,
while styled in his name, would be orchestrated by Illinois
Insurance Exchange. Moreover, the nature of the authorization of
Illinois Insurance Exchange to negotiate any additional recovery is
further enunciated in the following sentence which provides that
Illinois Insurance Exchange "shall have the authority to endorse
and/or sign releases and drafts and receipts for all monies in any
manner accruing to the benefit of . . . [the appellant] from or out
of any subrogation actions arising under the above numbered
policy." Further, the appellant agreed that he would not release,
settle, or compromise "with any third party who may be liable
to . . . [the appellant]. . . ."
We do not believe that the agreement between the appellant and Illinois Insurance Exchange presents any basis upon which the appellant can now premise his contentions. The appellant appears to ignore the operative language regarding Illinois Insurance Exchange's "authority to endorse and/or sign releases and drafts and receipts for all monies in any manner accruing to the benefit of . . . [the appellant]" and argues that despite the grant of authority to Illinois Insurance Exchange, the settlement between
Illinois Insurance Exchange and the appellees is invalid. Very
simply, the appellant, as the insured, granted authority to
Illinois Insurance Exchange to sign releases in exchange for the
$13,679.85 payment for damages to his truck.
We believe that Illinois Insurance Exchange and the appellees
executed a valid release whereby, for the sum of $10,259.89, the
appellees would be relieved of all liability for damages to the
appellant's truck. The personal injury claim was not settled in
that release, and it was later tried by the lower court.
The appellant relied upon our decision in Cox v. Turner, 157
W. Va. 802, 807, 207 S.E.2d 152, 155 (1974), for the proposition
that the payment by the injured party's insurer and a release from
the insured party to his insurer does not relieve the tortfeasor
from his obligations in the event of a subrogation suit by the
insurer against the tortfeasor. While that proposition is
accurate, the Cox decision does not imply that the insurer is
prohibited from proceeding against the tortfeasor and giving an
effective release of the insured's claims, where, as in the present
case, the insured has been given the right and authority to sign
releases for all monies which might accrue.
This is not a scenario in which ambiguity of a contractual agreement is encountered. We find no need to deviate from the precise language employed in the contract and believe the
appellant's arguments of invalidity to be untenable. We have
previously stated that "'[a] valid written instrument which
expresses the intent of the parties in plain and unambiguous
language is not subject to judicial construction or interpretation
but will be applied and enforced according to such intent.'
Syllabus point 1, Cotiga Development Co. v. United Fuel Gas Co.,
147 W. Va. 484, 128 S.E.2d 626 (1962)." Syl. Pt. 1, Cabot Oil &
Gas Corp. v. Pocahontas Land Corp., 180 W. Va. 200, 376 S.E.2d 94
(1988); accord Syl. Pt. 1, Melbourne Bros. Constr. Co. v. Pioneer
Co., 181 W. Va. 816, 384 S.E.2d 857 (1989). As explained above, we
find no ambiguity in the contract in question, and we find the
agreement complete on its face and plain and unambiguous in its
terms. We therefore adhere to its plain meaning and hold that all
documents executed between the appellant and Illinois Insurance
Exchange were valid, that they authorized Illinois Insurance
Exchange to enter into the release with the appellees, and that
such release acted to relieve the appellees from all liability for
damage to the appellant's truck.
The appellant also contends that the officer whom the appellant sought to qualify as an expert should have been permitted to testify regarding his opinion as to the cause of the accident. One of the two officers who investigated the accident, Deputy Ron Clutter, is now deceased. The appellant called Deputy James D.
Evans to testify regarding the investigation of the accident. In
direct examination, Deputy Evans testified that he had specialized
training in accident investigation. Upon appellant's counsel's
subsequent inquiry regarding the cause of the accident, the
appellees' counsel objected based upon the appellant's failure to
lay a proper foundation for qualification as an expert. The
appellees further objected on the basis that the officer could not
testify regarding his opinion on the ultimate issue of which party
was at fault. The lower court, apparently not satisfied that the
witness demonstrated sufficient knowledge of accident investigation
or evaluation of this particular accident to qualify as an expert,
stated that the witness had not been properly qualified.See footnote 3
Appellant's counsel did not elicit additional testimony
demonstrating that the witness had a sufficient base of knowledge
to render an opinion.
We have consistently held the following: "'"Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Point 5, syllabus, Overton v. Fields, 145 W. Va. 797[,] [117 S.E.2d 598 (1960)].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W. Va. 582, 203 S.E.2d 145 (1974)." Syl.
Pt. 12, Board of Educ. v. Zando, Martin & Milstead, Inc., 182 W.
Va. 597, 390 S.E.2d 796 (1990). We believe that the record
supports the lower court's ruling that a proper foundation had not
been presented for the qualification of Deputy Evans as an expert.
The denial of qualification was based not only upon Deputy Evans'
lack of sufficient testimony regarding his training of accident
reconstruction in general, but also upon counsel's failure to
elicit testimony indicating that he had investigated this
particular accident to a sufficient extent to offer an opinion
We have also considered the appellant's additional assignments of error and have found them to be unmeritorious. The appellant has contended that the lower court erred in failing to instruct the jury to disregard certain statements made by counsel for the appellees in closing argument concerning the distance between the two vehicles before the accident and in failing to review the record pursuant to the appellant's objection and requests. This contention is based upon counsel for the appellees' statement in closing argument that the appellant testified that he first saw the appellees' truck "at about one hundred feet away." Appellees' counsel then proceeded to calculate reaction time based upon a forty-five mile per hour speed and the appellant's recognition of the vehicle from one hundred feet away. In actuality, the appellant had testified that he saw the appellee from a distance of one hundred yards. Appellant's counsel objected, and after a brief
discussion, the lower court determined that it would leave the
proper recollection of the testimony to the jury. Counsel for the
appellees thereafter apologized for any misstatement he may have
made and further supplied a recalculation of reaction time based on
the one hundred yard figure. We find that the misstatement of that
testimony by appellees' counsel was harmless, and we are not
persuaded by the appellant's contentions to the contrary.
The appellant also alleges that there was no evidence to
support instructions to the jury concerning the appellant's own
negligence. The appellees, however, presented ample evidence that
the conditions existing at the time of the accident required
special care by any individual driving a vehicle on that evening.
Evidence was presented indicating that weather conditions included
rain, fog, and reduced visibility. Based upon the evidence
presented, we find no error in the court's instructions indicating
that the law requires a driver of an automobile to keep a
reasonable lookout for other automobiles, forbids a person from
driving a vehicle on a highway at a speed greater than is
reasonable under the circumstances existing, and requires the
driver of a vehicle approaching an intersection where a special
hazard exists to reduce his speed appropriately.
Finally, the appellant also alleges that the court erred in permitting the appellee to argue and present evidence concerning the appellant's income tax return as representative of his income,
"when such returns did not reflect income but reflected deductions
and depreciation permitted by self-employed individuals." We find
no error in the introduction of such income tax statements, and
conclude that any irregularities in the amounts indicated on the
returns or special circumstances existing by virtue of the
appellant's self-employment could adequately have been presented by
the appellant. The introduction of the returns themselves, as a
portion of the calculation of economic damages, was not in error.
Based upon the foregoing, we conclude that the Circuit Court
of Nicholas County committed no errors justifying reversal, and we
hereby affirm its judgment.
Footnote: 1The loan receipt portion of the document is reproduced in its entirety in a subsequent portion of this opinion. See infra at pp. 5-6.
Footnote: 2The jury found the appellant 40 percent negligent and Horace Keene and Melton Truck Lines 60 percent negligent. The jury also calculated the $11,828 award as follows: $528 agreed medical and pharmaceutical expenses, $9,500 lost earnings, $0 pain and suffering, $O annoyance and aggravation, and $1,800 miscellaneous. The appellant contends that the jury should also have been permitted to address the issue of damages to his truck.
Footnote: 3Appellant's counsel inquired of Deputy Evans regarding any measurements, drawings, or diagrams of the positions of the vehicles. Deputy Evans indicated that one of the vehicles had been moved prior to his arrival and that he did not have any drawings or diagrams of the original accident positions.