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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
STATE OF WEST VIRGINIA EX REL. DEBORAH HARPER-ADAMS,
ADMINISTRATRIX OF THE ESTATE OF SUSIE MAY PENDLETON SMITH,
Plaintiff Below, Appellee,
DONNA SUE MURRAY, INDIVIDUALLY AND IN HER CAPACITY
AS FORMER ADMINISTRATRIX OF THE ESTATE OF SUSIE
MAE PENDLETON SMITH; AND ONEBEACON INSURANCE COMPANY,
A CORPORATION, Defendants Below
Donna Sue Murray, Appellant
Appeal from the Circuit Court of Kanawha County
Honorable James C. Stucky, Judge
Case No. 05-C-1347
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Submitted: January 13, 2009
Filed: June 22, 2009
| Richard A. Robb
South Charleston, West Virginia
Attorney for Appellant
| Appellee, Deborah Harper-Adams, pro se
Keith R. Huntzinger
Dickie, McCamey & Chilcote
Wheeling, West Virginia
Attorney for Appellee, OneBeacon
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. Appellate review of the propriety of a default judgment focuses on the
issue of whether the trial court abused its discretion in entering the default judgment.
Syllabus Point 3, Hinerman v. Levin, 172 W. Va. 777, 310 S.E.2d 843 (1983).
2. On an appeal to this Court the appellant bears the burden of showing
that there was error in the proceedings below resulting in the judgment of which he
complains, all presumptions being in favor of the correctness of the proceedings and
judgment in and of the trial court. Syllabus Point 2, Perdue v. Coiner, 156 W. Va. 467, 194
S.E.2d 657 (1973).
3. A default relates to the issue of liability and a default judgment occurs
after damages have been ascertained. Syllabus Point 2, Coury v. Tsapis, 172 W. Va. 103,
304 S.E.2d 7 (1983).
4. The term 'sum certain' under West Virginia Rules of Civil Procedure
Rule 55(b)(1) contemplates a situation where the amount due cannot be reasonably disputed,
is settled with respect to amount, ascertained and agreed upon by the parties, or fixed by
operation of law. A claim is not for a 'sum certain' merely because the claim is stated as a
specific dollar amount in the complaint, verified complaint, or affidavit. Syllabus Point 3, Farm Family Mutual Ins. Co. v. Thorn Lumber Company, 202 W. Va. 69, 501 S.E.2d 790
The instant action is before this Court upon the appeal of Donna Sue Murray
[hereinafter Appellant], from a March 21, 2007, order entered by the Circuit Court of
Kanawha County granting default judgment against her and assessing punitive damages as
part of that judgment in lieu of attorneys fees. Herein, the Appellant alleges that it was error
for the circuit court to grant default judgment against her, and to assess punitive damages in
lieu of attorneys fees. (See footnote 1)
This Court has before it the petition for appeal, all matters of record
and the briefs and argument of counsel. For the reasons expressed below, the March 21,
2007, order of the Circuit Court of Kanawha County is affirmed in part and reversed in part,
and remanded with directions.
FACTUAL AND PROCEDURAL HISTORY
Appellant was appointed administratrix of the estate of her mother, Susie Mae
Pendleton Smith, following her mother's death in September, 2000. (See footnote 2)
Appellant served as
Administratrix of her mother's estate until she was removed by order of the County
Commission of Kanawha County, West Virginia entered on June 18, 2004. Appellant's
sister, Deborah Harper-Adams [hereinafter Appellee], was thereafter appointed to replace
her as administratrix. (See footnote 3)
On June 21, 2005, Appellee filed the instant lawsuit against Appellant
alleging various torts concerning the prior administration of the estate. (See footnote 4)
The other defendant,
OneBeacon Insurance Company was the surety for Murray's bond as administratrix.
Appellant was served with the Summons and Complaint on August 26, 2005. Appellant,
who represented herself pro se
, never filed an Answer to the Complaint. (See footnote 5)
that despite the fact that she did not file an Answer, she was in contact with court personnel
and opposing counsel throughout the course of the litigation.
Appellee filed a Motion for Default Judgment on October 21, 2005. (See footnote 6)
the circuit court could act on the motion, Appellant filed a Chapter 13 Bankruptcy Petition
in the United States Bankruptcy Court of the Middle District of Georgia, Columbus Division,
on October 28, 2005. The circuit court proceedings were stayed until a Consent Order was
entered on September 12, 2006. (See footnote 7)
Once the automatic stay was lifted, the circuit court
conducted a hearing on the default judgment motion on September 22, 2006. Appellant was
notified of the hearing but did not attend. She alleges that she was unable to attend due to
a medical emergency involving an infant for whom she was caring, and that she notified the
circuit court of her anticipated absence. (See footnote 8)
At the hearing, the circuit court awarded default judgment against Appellant
as to Count I of the Complaint, for a sum certain of $108,766.00. (See footnote 9)
It also entered default on
liability as to Count III of the Complaint, and set a hearing for a writ of inquiry on the Count
III damage issues which were not for a sum certain. Appellant attended the hearing on the
Count III damages which was conducted on November 29, 2006. (See footnote 10)
At this hearing, the
plaintiff orally moved to amend the circuit court's default judgment order on Count I stating
that the $108,766.00 awarded in that order was incorrect due to a typographical error and the
correct amount was $88,756.00. The court granted the motion and awarded Appellee
$88,756.00, being a sum certain under Count I of the Complaint.
The court then conducted the inquiry of damages on Count III of the
Complaint. The circuit court specifically found that there were three assets remaining in the
decedent's Estate. Those assets consisted of the decedent's home, coin collection and the
remainder of the net proceeds of the distribution of the $20,000.00 bond after the expenses
and fees were paid by the Estate. The court ordered that a constructive trust be imposed over
the Appellant's one-fifth interest in the remaining assets of the Estate, (See footnote 11)
and ordered that the
value of her interest in these assets be used to satisfy the judgment awarded in this case. The
court directed that the coin collection be turned over to the Appellee, as Administratrix of
the Estate. Lastly, the circuit court ordered that punitive damages were appropriate, and
awarded punitive damages in the amount of $50,000.00 in lieu of attorney's fees.
STANDARD OF REVIEW
A judgment by default may be entered in West Virginia pursuant to the
guidelines of Rule 55 of the West Virginia Rules of Civil Procedure
. (See footnote 12)
review of the propriety of a default judgment focuses on the issue of whether the trial court
abused its discretion in entering the default judgment. Syl. Pt. 3, Hinerman v. Levin
W. Va. 777, 310 S.E.2d 843 (1983). On an appeal to this Court the appellant bears the
burden of showing that there was error in the proceedings below resulting in the judgment
of which he complains, all presumptions being in favor of the correctness of the proceedings
and judgment in and of the trial court. Syl. Pt. 2, Perdue v. Coiner
, 156 W. Va. 467, 194
S.E.2d 657 (1973). Mindful of these standards, we proceed forward to consider the
This appeal involves an entry of default as to liability and an entry of default
judgment as to the issue of damages. We have traditionally recognized a distinction between
the two. In
Syl. Pt. 2, Coury v. Tsapis
, 172 W. Va. 103, 304 S.E.2d 7 (1983), we held that
a default relates to the issue of liability and a default judgment occurs after damages have
been ascertained. For reasons explained below, we affirm the circuit court's entry of
default as to liability. However, we reverse the entry of the default judgment awarding
damages, and remand with directions. (See footnote 13)
A. Entry of Default Determining Liability
Appellant alleges that default was improper because the Appellant had multiple
communications with the circuit court and opposing counsel. Specifically, Appellant alleges
that she had direct verbal communication with court personnel throughout the course of the
litigation. (See footnote 14)
Appellant also alleges that prior to the September 22, 2006, hearing on the
Motion for Default Judgment, she notified the court of a family medical emergency
involving an infant for whom she was caring, and her anticipated absence. She asserts that
despite this notification, the circuit court proceeded on with the hearing, entering default
judgment against her on Count I and a default on Count III. Following entry of this order,
Appellant appeared personally at the inquiry of damages on Count III of the Complaint.
Rule 55(a) requires that when a party against whom an entry of default is
sought has failed to plead or otherwise defend as provided for by these rules, and that fact
is made to appear by affidavit or otherwise, the clerk shall enter the party's default. In the
case before us, Appellant was served with the Summons and Complaint via certified mail
on August 26, 2005. Pursuant to Rule 12 of the West Virginia Rules of Civil Procedure
Appellant's Answer to the Complaint was due no later than 30 days after the service of the
summons. As of October 21, 2005, the date the Motion for Default Judgment was filed,
Appellant made no request for an extension of time to file an Answer, and made no
appearance before the Court or otherwise filed any pleadings in this action. (See footnote 15)
We have held that certain forms of informal communication between litigants
will require that a defaulting party be given notice before unliquidated damages can be
assessed under Rule 55(b)(2) of the West Virginia Rules of Civil Procedure
. Cales v. Wills
212 W. Va. 232, 241, 569 S.E.2d 479, 488 (2002). (See footnote 16)
However, we have specifically noted
that this type of communication will not prevent entry of a default as to liability. Id
10A Charles Alan Wright et al., Federal Practice and Procedure: Civil 3d §2686, at 41 ([I]t
must be remembered that an appearance, without any further attempt to defend on the merits,
will not keep a party from being held in default for failure to plead or otherwise defend; it
merely activates the special notice and judicial review protections provided in the rule.)). (See footnote 17)
While there was contact between the Appellant, who represented herself pro se
underlying action, and the circuit court's staff who advised Appellant on several occasions
that she needed to file an Answer and that she should retain counsel, the circuit court
afforded the Appellant ample opportunity to retain counsel and continued hearings several
times in order to accommodate her attempts to retain counsel. The facts are undisputed that
although Appellant was served with the Complaint and knew of the lawsuit, she failed to file
an Answer or other responsive pleading in the action. Thus, we believe the circuit court's
entry of default on liability was appropriate with regard to both Count I and III of the
B. Default Judgment Awarding Damages
Although we find that the circuit court properly entered default as to liability
against the Appellant based upon her failure to file an Answer or other responsive pleading,
we find that the circuit court erred in awarding default judgment on Count I (the alleged sum
certain amount) and Count III (the alleged unliquidated damages count) of the Complaint.
Appellee's Motion for Default Judgment contended that Count I of the
Complaint, alleging embezzlement, conversion and breach of fiduciary duty, was for a sum
certain of $228,500.00, together with pre- and post-judgment interest. However, the motion
and supporting affidavits do not demonstrate how the amount of damages can be ascertained
without resorting to extrinsic facts. In its September 25, 2006, order granting default
judgment on Count I of the Complaint, the circuit court awarded sum certain damages in
the amount of $108,766.00. However, the Court gave no explanation for how it arrived at
that figure. Following the entry of that order, that figure was subsequently modified by the
Appellee. The circuit court's March 21, 2007, order amended the default judgment amount
awarded as sum certain, stating that due to a typographical error, this amount should be
$88,756.00, and Plaintiff orally moved at the hearing to amend the prior judgment amount
to this amount.
We have traditionally held that
[t]he term sum certain under West Virginia Rules of Civil Procedure
contemplates a situation where the amount due cannot be
reasonably disputed, is settled with respect to amount, ascertained and
agreed upon by the parties, or fixed by operation of law. A claim is not
for a sum certain merely because the claim is stated as a specific
dollar amount in the complaint, verified complaint, or affidavit.
Syl. Pt. 3, Farm Family Mutual Ins. Co. v. Thorn Lumber Company
, 202 W. Va. 69, 501
S.E.2d 790. Typical sum certain situations covered by Rule 55(b)(1) include actions on
money judgments, negotiable instruments, or similar actions where the damages can be
determined without resort to extrinsic proof. Id.
at 74, 791. If the damages sought by the
party moving for the default judgment are for a sum certain, or an amount which can be
rendered certain by calculation, no evidentiary hearing on damages is necessary and the
circuit court may proceed to enter a default judgment on all issues in the case. Id.
790. (See footnote 18)
While we recognize that circuit courts are generally not required to conduct
an evidentiary hearing on damages that are for a sum certain, circuit courts are still required
to make the requisite findings within their orders granting default judgment demonstrating,
for purposes of appellate review, how the amount entered can be rendered certain by
calculation. The circuit court's orders fail to address precisely how the $88,756.00 figure
was ultimately derived. In her Motion for Default Judgment, the Appellee originally
requested an award of $228,500.00, a figure three times that which was ultimately awarded.
Following that, the circuit court's first order dated September 25, 2006, entered default on
liability against Appellant as to Count I of the Complaint, for a sum certain of $108,766.00,
without explaining how that figure was derived. The circuit court subsequently amended that
amount, pursuant to Appellee's oral request at the hearing, to the final sum certain award of
$88,756.00. The lack of information contained in the circuit court's orders leaves this Court
no way to assess whether the amount awarded is in fact a sum certain, or whether the circuit
court abused its discretion in entering sum certain damages in that amount. Because the
circuit court's two default judgment orders as to Count I of the Complaint are bereft of
adequate findings on this issue, we reverse them accordingly.
Furthermore, we find error in the circuit court's default judgment order on
Count III of the Complaint awarding the Appellee punitive damages. The order does not
specify any basis whatsoever for this award. This Court set forth the factors to be considered
in awarding punitive damages in Garnes v. Fleming Landfill, Inc.
, 186 W. Va. 656, 413
S.E.2d 897 (1991). (See footnote 19)
Herein, the circuit court simply did not make the necessary findings
required by Garnes
in order to justify an award of punitive damages. Specifically, the circuit
court made no findings regarding the reprehensibility of defendant's conduct or why such
conduct was so willful, wanton and malicious as to warrant punishment by way of punitive
damages. It also made no findings regarding whether there was a reasonable relationship
of the amount awarded to the actual harm, or the financial position of the defendant. Nor did
the circuit court make any findings regarding the award of punitive damages in lieu of
attorneys fees. The findings in the Order simply state that Appellee had requested punitive
damages in lieu of attorneys fees, and that punitive damages in lieu of attorney fees is
acceptable. The failure of the court to make the necessary findings required by Garnes
constitutes reversible error.
Moreover, to the extent that the circuit court awarded punitive damages in lieu
of attorney's fees in this case, we find that such action also constitutes reversible error. In Hayseeds v. State Farm
, 177 W. Va. 323, 352 S.E.2d 73 (1986), this Court discussed
attorney's fees and punitive damages, and pointed out, in dicta, that punitive damages are
often awarded to off-set litigation expenses. (See footnote 20)
Following that decision, this Court also held
that because punitive damages are designed in part to subsidize litigation costs, a court's
refusal to award attorneys fees where work had been done to support the theories justifying
punitive damages was appropriate. Muzelak v. King Chevrolet, Inc.
, 179 W. Va. 340, 368
S.E.2d 710 (1988). We wish to make it clear to our circuit courts that the language
enunciated by Justice Neely in Hayseeds v. State Farm
, and our prior decision in Muzelak
v. King Chevrolet, Inc.
, should not be interpreted by our circuit courts as implied authority
to grant such punitive damages awards in lieu of attorney's fees. Indeed, we have long held
that while there are similarities between the criteria for punitive damages and the criteria for
an award of attorney's fees, they are two separate and distinct issues that must be addressed
separately. Midkiff v. Huntington National Bank West Virginia
, 204 W. Va. 18, 19, 511
S.E.2d 129, 130 (1998).
Orders of circuit courts necessarily must contain requisite findings of fact and
conclusions of law in entering default judgment orders so that meaningful and adequate
appellate review is possible. In the case sub judice
, the circuit court's default judgment
orders simply do not contain the requisite information necessary for this Court to properly
review the circuit court's decision.
In conclusion, we find that the circuit court properly entered default as to
liability against the Appellant based upon her failure to file an Answer or other responsive
pleading. However, because we find that the circuit court's orders lacked findings of fact
and conclusions of law permitting adequate appellate review of the default judgment orders,
we reverse the circuit court's orders awarding default judgment and remand with directions
to reconsider the damages issues in accordance with this decision. Accordingly, the March
21, 2007, order of the Circuit Court of Kanawha County, is affirmed in part and reversed in
part, and remanded with directions.
Affirmed in Part, Reversed in Part, and Remanded.
Deborah Harper-Adams, [hereinafter Appellee], has not filed an appearance nor
submitted a response brief in this matter. OneBeacon Insurance Company, a defendant
below, has also not filed an appearance or response brief herein.
By order of the County Commission of Kanawha County, West Virginia entered on
November 29, 2000, Appellant was appointed Administratrix to serve under such bond in the
amount of $20,000.00 issued by OneBeacon Insurance Company as surety thereon.
Susie Mae Pendleton Smith left as her heirs at law in accordance with the laws of
the State of West Virginia her four surviving children Deborah Harper-Adams, Donna Sue
Murray, Michael L. Pendleton, and Sharon Pendleton and her grandchild Kendall L. Moore,
who is the sole heir of predeceased daughter Margaret Moore. Deborah Harper-Adams'
residence is believed to be Muscogee County, Georgia.
It is alleged that Appellant collected the valuable personal property of the decedent,
reduced it to cash, took it for her own use and benefit, removed it from the State of West
Virginia and absconded with it. Among other things, decedent was the owner of an
Individual Retirement Account held at Fidelity Investments in the approximate amount of
$88,766.00, which had the estate as the beneficiary. Upon her removal as Administratrix,
Appellant was ordered to prepare a full and complete accounting of all assets of the estate.
It is alleged that she failed and refused to transfer such assets to the Appellee, the new
Specifically, Count I of the Complaint alleges that Appellant embezzled and converted
assets from the estate and breached her fiduciary duty as administratrix. However, Count I
does not specify a particular amount of damages or particular assets. Rather, Count I
generally seeks compensatory, consequential, incidental and punitive damages as can be
proven at trial, together with interest, attorney's fees and costs. Count II of the Complaint
alleges that OneBeacon is responsible for all judgments against the Appellant up to and
including the face amount of the bond, and that a constructive trust should be imposed upon
Appellant's interest in the Estate. Count III of the Complaint alleges that Appellant willfully,
intentionally and fraudulently embezzled the assets of the Estate, and accordingly seeks the
imposition of a constructive trust on Appellant's one-fifth interest in the Estate.
OneBeacon Insurance Company was served with the Complaint and filed its Answer
and Cross-Claim on September 1, 2005.
In her Motion for Default Judgment, Appellee specifically requested default
judgment against Appellant on Count I of the Complaint in the sum certain amount of
$228,500.00, plus interest and costs. Additionally, Appellant requested a default on liability
against Appellant on Count III of the Complaint, stating that the amount of damages sought
on that claim was not a sum certain. Two affidavits signed by Deborah Harper-Adams and
Ariella Silberman were submitted in support of the Motion for Default Judgment.
The Bankruptcy case was dismissed by order entered November 14, 2006.
In the circuit court's order dated March 21, 2007, the court states that from the time
the Complaint was filed there was contact between the Appellant and the circuit court's staff,
who advised the Appellant on several occasions that she needed to file an Answer and that
she should retain counsel. The order states that the Appellant was afforded ample
opportunity to retain counsel and hearings were continued several times in order to
accommodate Appellant's attempts to retain counsel.
The circuit court's order gives no explanation for how it arrived at the $108,766.00
According to the circuit court's March 21, 2007, order, the Appellant attended the
hearing, but still had not filed an Answer or otherwise responsive pleading.
The circuit court provided that an attorney was to be appointed as special
commissioner for the purpose of executing a deed conveying Appellant's one-fifth interest
in the decedent's domicile, in equal shares, to the remaining heirs of the Estate. In order to
ascertain the credit owed to the Appellant, the circuit court further ordered that the
decedent's domicile be appraised by a licensed real estate appraiser. Appellant was also
ordered to obtain an appraisal of the decedent's coin collection.
Rule 55 of the West Virginia Rules of Civil Procedure
states, in pertinent part:
When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend as provided by
these rules, and that fact is made to appear by affidavit or otherwise,
the clerk shall enter the party's default.
Judgment by Default May be Entered as Follows:
(1) By the Clerk
. When the plaintiff's claim against a defendant is for
a sum certain or for a sum which can by computation be made certain,
the court upon request of the plaintiff and upon affidavit of the amount
due shall direct the entry of judgment by the clerk for that amount and
costs against the defendant, if the defendant has been defaulted for
failure to appear and is not an infant, incompetent person, or convict.
(2) By the Court
. In all other cases the party entitled to a judgment by
default shall apply to the court therefor; but no judgment by default
shall be entered against an infant, incompetent person, or convict
unless represented in the action by a guardian, guardian ad litem,
committee, conservator, curator, or other representative who has
appeared therein. If the party against whom judgment by default is
sought has appeared in the action, the party (or, if appearing by
representative, the party's representative) shall be served with written
notice of the application for judgment at least 3 days prior to the
hearing on such application. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to take an account or
to determine the amount of damages or to establish the truth of any
averment by evidence or to make an investigation of any other matter,
the court may conduct such hearings or order such references as it
(c) Setting Aside Default.
For good cause shown the court may set
aside an entry of default and, if a judgment by default has been entered,
may likewise set it aside in accordance with Rule 60(b).
Appellant asserts thirteen assignments of error. Because the first three issues
presented are dispositive of this case, we need not address the other issues Appellant has
Appellant alleges that she also had verbal communication with Appellee's counsel
during the course of litigation. However, because the Appellee has not filed a response
herein, and because the record does not reflect what, if any, type of communication occurred
between the parties' counsel prior to the entry of default judgment, we cannot verify that
such communication did in fact occur.
From the record, it appears that Appellant has never filed an Answer or other
responsive pleading in this matter.
The term appeared in the action, for purposes of a default judgment under Rule
55(b)(2) of the West Virginia Rules of Civil Procedure
, is quite different from an appearance
for other purposes. Colonial Insurance Company v. Barrett
, 208 W. Va. 706, 709, n. 2, 542
S.E.2d 869, 872, n. 2 (2000). We stated in Farm Family Mutual Ins. Co. v. Thorn Lumber
202 W. Va. 69, 75 n. 9, 501 S.E.2d 786, 792 n. 9 (1998):
An appearance for purposes of Rule 55(b)(2) may consist only of
letters or conversations, while a general appearance sufficient to waive
an objection to personal jurisdiction requires a greater showing of the
defendant's acceptance of the court's jurisdiction. This liberal
construction of the term allows for the resolution of litigation on its
merits, not technical pleading rules. See, e.g., Lutomski v. Panther
Valley Coin Exchange
, 653 F.2d 270, 271 (6th
curiam)(conversations between defendant's and plaintiff's counsel
concerning suit sufficient to constitute appearance); Charlton L. Davis
& Co., P.C. v. Fedder Data Center, Inc.
, 556 F.2d 308, 309 (5th
1977)(letters and phone calls from defendant's counsel constituted
appearance); H.F. Livermore Corp. v. Aktiengesellschaft Gebruder
, 432 F.2d 689, 690-92 (D.C.Cir. 1970)(per curiam)(settlement
discussions constituted appearance.). See generally
, James W. Moore,
10 Moore's Federal Practice
, 55.21[b][I] (Matthew Bender 3d. ed.).
This Court has also recognized that:
[f]or purposes of the requirement for notice to a defaulting party, prior
to a hearing on the default, pursuant to Rule 55(b)(2) of the West
Virginia Rules of Civil Procedure
, an appearance by an otherwise
defaulting party may consist of any communication to an opposing
party that demonstrates either an interest in the pending litigation, or
actual notice of the litigation. The communication may be made in
written or oral form.
Syl. Pt. 5, Cales v. Wills
, 212 W. Va. 232, 569 S.E.2d 479.
However, pursuant to Rule 55(c) of the West Virginia Rules of Civil Procedure
, [f]or good cause shown the court may set aside an entry of default and, if a
judgment by default has been entered, may likewise set it aside in accordance with Rule
60(b). Appellant points out that because counsel was obtained just prior to the expiration
of the time for appeal, Appellant never filed a Motion to Set Aside Default Judgment before
the circuit court.
A default judgment covered by Rule 55(b)(2) applies to cases where the amount
sued for is not a sum certain. In this situation, after a default is entered, a further hearing is
required in order to ascertain the damages. Farm Family Mutual Ins. Co. v. Thorn Lumber
, 202 W. Va. 69, 73, 501 S.E.2d 786, 790 (1998)(quoting Coury v. Tsapis
, 172 W.
Va. 103, 304 S.E.2d 7).
we held that:
When the trial court instructs the jury on punitive damages, the court
should, at a minimum, carefully explain the factors to be considered in
awarding punitive damages. These factors are as follows:
(1) Punitive damages should bear a reasonable relationship to the harm
that is likely to occur from the defendant's conduct as well as to the
harm that actually has occurred. If the defendant's actions caused or
would likely cause in a similar situation only slight harm, the damages
should be relatively small. If the harm is grievous, the damages should
(2) The jury may consider (although the court need not specifically
instruct on each element if doing so would be unfairly prejudicial to the
defendant), the reprehensibility of the defendant's conduct. The jury
should take into account how long the defendant continued in his
actions, whether he was aware his actions were causing or were likely
to cause harm, whether he attempted to conceal or cover up his actions
or the harm caused by them, whether/how often the defendant engaged
in similar conduct in the past, and whether the defendant made
reasonable efforts to make amends by offering a fair and prompt
settlement for the actual harm caused once his liability became clear to
(3) If the defendant profited from his wrongful conduct, the punitive
damages should remove the profit and should be in excess of the profit,
so that the award discourages future bad acts by the defendant.
(4) As a matter of fundamental fairness, punitive damages should bear
a reasonable relationship to compensatory damages.
(5) The financial position of the defendant is relevant.
Syl. Pt. 3, 186 W. Va. 656, 413 S.E.2d 897.
In Hayseeds, Justice Neely recognized, in dicta, that several courts have held that,
even in the absence of a statutory or contractual provision, attorneys' fees may be awarded
to the claimant when the insurer has acted in bad faith, wantonly, or for an oppressive
reason. 177 W. Va. 323, 329, 352 S.E.2d 73, 79.