No. 35127 -- Doris Michael and Todd Battle v. Appalachian Heating and Cooling, LLC, and State Auto Insurance Company
McHugh, Justice, concurring, in part, and dissenting, in part:
In trying to find a way to bring an insurance settlement under the Act, the majority looks to the language of West Virginia Code § 5-11-9(7)(A). That provision makes it an unlawful discriminatory practice to:
Engage in any form of threats or reprisals, or to engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss or to aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in this section.
W.Va. Code § 5-11-9(7)(A).
Following the Plaintiffs' lead, the majority cherry picks certain terms (embarrass and economic loss) from subsection seven (A) to serve its purposes. At the core of the Plaintiffs' complaint is their contention that they were under-compensated for the aggravation and inconvenience associated with being displaced from their home. (See footnote 10) Understandably, the Plaintiffs sought to come under the only provision of the Act that refers to monetary loss (See footnote 11) as a means of increasing the amount of their insurance settlement. (See footnote 12) Falling into the intellectual trap set by the Plaintiffs, however, the majority fails to appreciate that the emphasis of West Virginia Code § 5-11-9(7)(A) is not the nature of the resulting harm (i.e. emotional or monetary) but the fact that the conduct was specifically aimed at causing the harm that results. I submit that in overlooking this pivotal language that requires purposeful discrimination, the majority goes seriously astray of the Legislature's intent.
In the six subsections that precede subsection seven of West Virginia Code § 5-11-9, each provision is clearly aimed at two of the three subject matters identified in the Act's statement of legislative purpose. See W.Va. Code § 5-11-2. Those two matters are employment and access to places of public accommodation. Subsections one through five are expressly directed at the actions of employers, employment agencies, or labor organizations. See W.Va. Code § 5-11-9(1) to (5). Subsection six is directed at any person who is a[n] owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodations. W.Va. Code § 5-11-9(6). The final subsection - subsection seven - is directed at any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution. W.Va. Code § 5-11-9(7). In contrast to the preceding six subsections, subsection seven is written in a broader and more encompassing fashion. It is the only subsection that addresses the third aim of the Act: the procurement or financing of housing or real property.
To bring insurers under the Act, the majority concludes that an insurance company comes within the meaning of the term person as that term is used in West Virginia Code § 5-11-9(7). See W.Va. Code § 5-11-3(a). When you consider the definition of person under the statutory definition set forth in West Virginia Code § 5-11-3(a) (See footnote 13) independent of any other provision of the Act, an insurance company could conceivably fall under the list of entities that qualify as persons. But when you plug that term into West Virginia Code § 5-11-9(7)(A) and conclude, as does the majority, that the Legislature was specifically including insurers within the entities subject to action upon commission of the specified acts of unlawful discrimination, the application does not withstand scrutiny. My conclusion is premised on the fact that the delineated acts of unlawful discrimination in each of the subsections of section nine, as well as the parties to whom subsection seven is aimed at, all fall within one of the Act's three concerns: (1) employment; (2) access to public accommodation; and (3) procurement of housing or real estate and related financing. See W.Va. Code § 5-11-9(7)(A). As the Act does not contain even one reference to insurance, it is simply illogical to reach the conclusion that the Legislature specifically included insurers among the potential discriminatory actors it was targeting by its use of the term person. See W.Va. Code §§ 5-11-3(i), -9, -(9)(7). What makes infinitely more sense is to view the legislative omission of insurers from the designated list of potential discriminators as intentional.
Not only is the majority's decision to find authority for including insurers under the definition of person demonstrably inconsistent with the Act's purposes, it requires the presumption that by its use of the term person the Legislature decided to cast its unlawful discriminatory practice net in an uncharacteristically broad fashion. This seems improbable given that the Legislature intentionally constrained the reach of the Act so that it applies to only those unlawful discriminatory practices that are expressly set forth in section nine. See W.Va. Code § 5-11-9-3(i). The legislative framework of subsection seven correlates specific entities such as employers, labor organizations, and proprietors of places of public accommodation to particularized acts of unlawful discrimination. With the exception of the term person, each of the entities that is specified within West Virginia Code § 5-11-9(7)(A) falls squarely within the legislatively-identified purposes of the Act. As a result, the majority's reliance upon the arguably amorphous term person as the only mechanism by which the Legislature expressed its intent to bring insurance companies under the Act appears both specious and misguided. See Davis Mem'l Hosp. v. State Tax Comm'r, 222 W.Va. 677, 683, 671 S.E.2d 682, 688 (2008) (recognizing that statute should be so read and applied as to make it accord with the spirit, purposes, and objects of the general system of law of which it is intended to form a part) (citations omitted).
In addition to wrongly finding insurers within the intended reach of the Act, the majority adopted an overly-broad new point of law in holding in its syllabus point seven that West Virginia Code § 5-11-9(7)(A) prohibits unlawful discrimination by a tortfeasor's insurer in the settlement of a property damage claim when the discrimination is based upon race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status. The question presented by the lower court was limited to seeking guidance on whether the Act provides for a cause of action against a tortfeasor's insurance carrier when the alleged discriminatees are African-American and reside in public housing. Not only did the majority go beyond what was necessary to resolve the question presented, but it failed to properly tailor the new point of law to the statutory language upon which it expressly relies as authority for a third party cause of action. Missing from syllabus point seven is language which tracks the statutory requirement of West Virginia Code § 5-11-9(7)(A) that the alleged discriminatory conduct was effected for the purpose of causing the statutorily-specified harms. The Legislature was clear in subsection seven (A) that it is not the conduct alone that is the triggering event, but the fact that such conduct was effected for the express purpose of harassment, degradation, embarrassment, physical harm, or economic loss. See W. Va. Code § 5-11-9(7)(A) (emphasis supplied). By its omission of this essential statutory language, the majority has improperly and unwisely broadened the scope of subsection seven (A) with absolutely no legislative authority. See id.
In its rush to create a new cause of action, the majority overlooks the critical fact that a cause of action already exists for the conduct at issue in the underlying case. Under 42 U.S.C. § 1981 (2006), [a]ll persons . . . shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . . Id. (emphasis supplied). The authority to seek redress for discrimination occurring in the context of insurance claims and settlements has been recognized to exist under this federal rights statute. See Harris v. McDonald's Corp., 901 F.Supp. 1552, 1558 (M.D. Fla. 1995); Singh v. State Farm Mut. Auto Ins. Co., 860 P.2d 1193, 1198-99 (Ala. 1993). (See footnote 14)
Under 42 U.S.C. § 1981, the statutory language that pertains to the making and enforcement of contracts is the fulcrum that permits a cause of action for discriminatory insurance settlements to be maintained. Commenting on why insurance settlements fall under this language, the Alaskan Supreme Court observed: It is well established that a settlement is a contract, provided that it meets minimal contractual requirements. Singh, 860 P.2d at 1199. It is of no surprise then that every single court which has recognized the type of claim under discussion has either looked to a state enactment that expressly recognizes relief for discrimination in connection with the making of or enforcement of contracts (See footnote 15) or to 42 U.S.C. § 1981. Based on the authority relied upon by the majority, it is clear that West Virginia is the only state to recognize a cause of action for third-party relief under a state human rights act when the subject legislation lacks a provision that expressly prohibits discrimination with regard to the making and enforcement of contracts. (See footnote 16) This distinction is not only critical, it is determinative.
Because our Act lacks the necessary basis for asserting discriminatory conduct against insurance companies - either inclusion of the making and enforcement of contracts language or specific identification of insurers as entities within the intended reach of the Act _ the majority's conclusion that the Act prohibits unlawful discrimination by a tortfeasor's insurer in the settlement of a property damage claim is not defensible. Rather than condoning any acts of alleged discriminatory conduct that may have occurred in this case, I seek only to apply the statute as it was written. (See footnote 17) Convinced that the Act does not authorize a third party cause of action against insurers, I respectfully dissent from the majority's conclusion to the contrary. Of the four new points of law created by the majority, I do not take issue with the thrust of syllabus point five because it merely recites the statutory language of West Virginia Code § 5-11-9(7)(A). (See footnote 18) Accordingly, I concur, in part, and dissent, in part.