James G. Bordas, Jr.
James B. Stoneking
Wheeling, West Virginia
Counsel for the Appellant
Daniel A. Ruley, Jr.
Parkersburg, West Virginia
Counsel for the Appellee
This Opinion was delivered Per Curiam.
1. "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." Syl. Pt. 2, Jenkins v. J. C. Penney Cas. Ins. Co., 167
W. Va. 597, 280 S.E.2d 252 (1981).
2. "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." Syl. Pt. 3, Jenkins v. J. C. Penney Cas.
Ins. Co., 167 W. Va. 597, 280 S.E.2d 252 (1981).
Appellant Diane Russell appeals from the April 22, 1992, order
of the Circuit Court of Marshall County granting Appellee Amerisure
Insurance Company's ("Amerisure") motion to dismiss. Appellant's
cause of action against Amerisure was predicated on allegations of
unfair claim settlement practices pursuant to West Virginia Code §
33-11-4(9) (1992).See footnote 1 As grounds for its ruling, the circuit court
found that Appellant's failure to first resolve the underlying tort
claim against Amerisure's insured as well as her failure to aver
that the alleged unfair claim settlement practice constituted a
general business practice were fatal with respect to her cause of
action under West Virginia Code § 33-11-4(9). Finding no error in
the dismissal of Appellant's complaint, we affirm the decision of
the circuit court.
Appellant alleges that while driving her automobile in
Wheeling, West Virginia, on March 18, 1988, she was negligently
rear-ended by Amerisure's insured, Sanford Alan Miezlish.
Appellant personally notified Amerisure of a possible claim arising
from the March 18, 1988, incident and dealt directly with Amerisure
in an effort to reach a settlement as she was unrepresented by an
attorney. During oral argument of this case, Amerisure stated
that the only expense-related evidence submitted by Appellant was
documentation reflecting an expenditure of $176 for an emergency
room visit. Appellant represented during oral argument that she
had received and returned uncashed a settlement check from
Amerisure for the amount of $700. Appellant never instituted a
civil action against the alleged tortfeasor in this case, Mr.
On February 11, 1992, Appellant filed a complaint against
Amerisure, alleging unfair claim settlement practices pursuant to
West Virginia Code § 33-11-4(9). In response to the complaint,
Amerisure filed an answer and a motion to dismiss on March 12,
1992. In its motion to dismiss, Amerisure argued that "a private
cause of action for violation of West Virginia Code § 33-11-4(9)
may not be maintained until after the underlying civil action
against the insured is concluded." By memorandum order entered on
April 22, 1992, the circuit court granted Amerisure's motion to
dismiss, finding that
After careful consideration of the pleadings, argument of counsel, and their respective memorandum [sic], the Court is of the opinion that Jenkins v. J. C. Penney Casualty, Co., 280 S.E.2nd [sic] 252 (1981) is dispositive of the matter sub judice. Plaintiff failed to resolve her underlying tort claim against defendants' [sic] insured and the complaint failed to allege that the practice in question was a general business practice that would give rise to the statutory remedy of a direct action.
It is from this order that Appellant brings this appeal.
This Court ruled in Jenkins v. J. C. Penney Casualty Insurance
Co., 167 W. Va. 597, 280 S.E.2d 252 (1981), that West Virginia Code
§ 33-11-4(9), which pertains to unfair insurance claims settlement
practices, gives rise to a direct cause of action against an
insurance company by a third-party claimant. That ruling was
expressly limited, however, by the requirement that such a direct
cause of action could not be maintained "until the underlying suit
against the insured has been resolved." Id. at 598, 280 S.E.2d at
254. Appellant proposes that the Jenkins ruling be modified so
that a third-party claimant is not barred from directly suing a
liability insurer for unfair claim settlement practices
notwithstanding his or her failure to resolve the underlying tort
cause of action if the insurer has violated state insurance
regulations by failing to disclose the statute of limitations and
delaying communications with the claimant until after the claim has
The Jenkins case is factually apposite to Appellant's case.
The plaintiff in that case was involved in a minor automobile
accident which resulted in $177 worth of damage to her vehicle.See footnote 2
Rather than suing the driver of the other vehicle, she filed suit
against the driver's insurer alleging that the insurer had violated
West Virginia Code § 33-11-4(9)(f) by "'not attempting in good
faith to effectuate prompt, fair and equitable settlement of claims
in which liability has become reasonably clear.'" 167 W. Va. at
598, 280 S.E.2d at 254. The trial court granted the insurer's
motion to dismiss, ruling that West Virginia Code § 33-11-4(9) did
not give rise to a private cause of action. Id. at 599, 280 S.E.2d
at 254. Although this Court affirmed the decision of the trial
court, we found that: "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." Syl. Pt. 2, Jenkins, 167 W. Va. at
598, 280 S.E.2d at 253.
In Jenkins, we explained the necessity for requiring
settlement of the underlying claim as a prerequisite to maintaining
a direct action under West Virginia Code § 33-11-4(9):
In the present case, the claim is made under
W. Va. Code, 33-11-4(9)(f), which involves not
attempting in good faith to make a prompt,
fair settlement of a claim in which liability
has become reasonably clear. It can hardly be
doubted that in a given factual situation
there may be some bona fide dispute over what
is a fair settlement offer or whether
liability is reasonably clear. Given the
adversarial nature of the settlement of tort
claims, it can be expected that the parties
will often disagree as to whether there has
been a reasonable attempt made to promptly and
fairly settle a claim where the liability is
To permit a direct action against the
insurance company before the underlying claim
is ultimately resolved may result in
duplicitous litigation since the issue of
liability and damages as they relate to the
statutory settlement duty are still unresolved
in the underlying claim. Once the underlying
claim has been resolved, the issues of
liability and damages have became settled and
it is possible to view the statutory claim in
light of the final result of the underlying
action. A further policy reason to delay the
bringing of the statutory claim is that once
the underlying claim is resolved, the claimant
may be sufficiently satisfied with the result
so that there will be no desire to pursue the
statutory claim. Moreover, it is not until
the underlying suit is concluded that the
extent of reasonable damages in the statutory
action will be known.
167 W. Va. at 608-09, 280 S.E.2d at 259 (footnotes omitted).
Based on her characterization of Jenkins as a landmark, pro-claimant case, Appellant suggests that the objectives of Jenkins will be extirpated absent a reversal of the lower court's ruling.
Jenkins, however, cannot be narrowly viewed as simply a pro-claimant case which permits direct action by a third-party claimant
against an insurer whenever an allegation of unfair settlement
practices is made. This Court expressly limited the holding in
Jenkins to those cases where the underlying suit has already been
resolved. This requirement, as we expounded on in Jenkins, is
rooted in legitimate concerns ranging from inability to identify
reasonable damages to duplicitous litigation. See id. at 608-09,
280 S.E.2d at 259.
Appellant cites Amerisure's actions as the reason for her
failure to bring a suit against the tortfeasor and consequently,
the bar to successfully maintaining a Jenkins-type suit against the
insurer. Specifically, Appellant alleges that Amerisure neglected
to inform her of the two-year statute of limitationsSee footnote 3 and that
Amerisure purposefully delayed communication with her near the time
when the limitations period was about to lapse. Despite
Appellant's allegations that she was induced by Amerisure's
malfeasance to delay filing suit against the tortfeasor until after
the applicable two-year limitations period had expired, she has not
produced any evidence to substantiate these allegations. Amerisure
denies that it committed or failed to commit any act constituting
malfeasance.See footnote 4 Given the absolute dearth of evidence on this issue,
there is no factual basis in the record from which any court could
conclude that Amerisure induced Appellant, directly or indirectly,
to refrain from filing a civil action against the tortfeasor.
Appellant argues that those jurisdictions that bar third-party
bad faith suits against insurers compensate for such prohibition by
permitting recovery against the insurer under a traditional common-law fraud analysis when a statute of limitations has run because of
the insurer's malfeasance or nonfeasance. See State Farm Mut.
Auto. Ins. Co. v. Ling, 348 So.2d 472 (Ala. 1977) (upholding jury
verdict finding fraud, deceit, and misrepresentation based on
insurer's failure to inform insured that claim was subject to one-year statute of limitations); see also Lewis v. Royal Globe Ins.
Co., 170 Ill. App. 3d 516, 524 N.E. 2d 1126 (1988) (holding insurer
not exempt from liability to third-party for damages incurred as a
result of alleged fraudulent misrepresentations regarding
limitations period). In upholding the jury's finding of fraud
against the insurer in Ling, the appellate court noted
The record contains ample evidence that supports the jury's conclusion that a relationship of trust and confidence in State Farm by Ling was engendered through the actions and words of the agents of State Farm who dealt with him over the period of four days short of the one year period of limitations, of which they were well aware. This being true, it was the duty of State Farm to disclose to him that vitally material fact of the limited period of time during which he must negotiate the settlement that it assured him it stood ready to make.
348 So. 2d at 475. The evidence to which the Ling court referred included representations "by State Farm that he had nothing to worry about, the accident was entirely the fault of Crescent Transit [other driver] and his expenses would be paid; [and that] State Farm would settle his claim." Id. at 474.
Unlike the Ling plaintiff and others who have successfully
advocated the application of a common-law fraud analysis to an
insurer's failure to inform a third-party claimant of an impending
statute of limitations, Appellant has not presented this Court with
even a scintilla of evidence to support such a theory. Because
Appellant cannot produce any documents reflecting her
communications with Amerisure,See footnote 5 her case is comprised solely of
bare allegations. Accordingly, just as Appellant failed to meet
the prerequisite for asserting a Jenkins-type suit against
Amerisure, she similarly has failed to aver a case grounded in
principles of common-law fraud. Appellant's arguments regarding a
modification of Jenkins are premature given her inability to
establish that Amerisure induced her failure to timely initiate a
cause of action against the alleged tortfeasor.
A second ground upon which the lower court relied in
dismissing Appellant's complaint was her failure to sufficiently
plead a violation of West Virginia Code § 33-11-4(9). The circuit
court found that Appellant's "complaint failed to allege that the
practice in question was a general business practice that would
give rise to the statutory remedy of a direct action." As we ruled
in Jenkins: "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." Syl. Pt. 3, Jenkins, 167 W. Va. at 598,
280 S.E.2d at 253. Appellant argues unconvincingly that she has
"identified and pleaded five distinct violations of W. Va. Code §
33-11-4(9)" by alleging that Amerisure violated five different
subsections of West Virginia Code § 33-11-4(9).See footnote 6 The factual basis
for each of these violations is the same isolated scenario and does
not suffice to represent a "general business practice." W. Va.
Code § 33-11-4(9). Accordingly, we agree with the circuit court's
conclusion that Appellant failed to properly aver a claim pursuant
to West Virginia Code § 33-11-4(9).
Based on the foregoing, the decision of the Circuit Court of
Marshall County is hereby affirmed.
Footnote: 1West Virginia Code § 33-11-4(9) sets forth fifteen unfair claim settlement practices and directs that "No person shall commit or perform with such frequency as to indicate a general business practice any of the following[.]" In her complaint Appellant alleges that Amerisure committed the following five unfair claim settlement practices:
(a) Misrepresenting pertinent facts or
insurance policy provisions relating to
coverages at issue;
(b) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;
(c) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;
(f) Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; and
(g) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds, when such insureds have made claims for amounts reasonably similar to the amounts ultimately recovered;
W. Va. Code § 33-11-4(9).
Footnote: 2In this case, the only evidence Appellant submitted to Amerisure as proof of actual damages was an emergency room bill which amounted to $176.
Footnote: 3See W. Va. Code § 55-2-12 (1981).
Footnote: 4Appellant cites to section 114-14-6.10 of the code of state regulations as evidence of Amerisure's wrongful conduct. That
section of West Virginia's insurance regulations requires that "[n]o person shall negotiate for settlement of a claim with a claimant who is neither an attorney nor represented by an attorney without giving the claimant written notice that the claimant's rights may be affected by a statute of limitations. . . ." 8 W. Va. C.S.R. § 114-14-6.10 (eff. 1975). While the penalty imposed for violating this regulation is left to the discretion of the insurance commissioner, it includes license penalties such as suspension, revocation, or failure to renew or the imposition of a fine. Even assuming that Appellant could prove that Amerisure violated § 114-14-6.10, an act of malfeasance that this Court certainly does not condone, a violation of an insurance regulation standing alone does not give rise to a cause of action under West Virginia Code § 33-11-4(9).
Footnote: 5During oral argument of this case, Appellant's counsel conceded that there are no written communications between Amerisure and Appellant regarding the claim and settlement discussions.
Footnote: 6See supra, note 1.