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Summaries of recently issued WV Supreme Court opinions
?Thursday, September 24, 2009
TORTS, INSURANCE, PROCEDURE :: Umbrella policy duty to defend, statute of limitations in first party bad faith
NOLAND v. VIRGINIA INSURANCE RECIPROCAL, et al., No. 34702 (DAVIS, J.)(September 24, 2009). Granting mixed relief from an order of the Circuit Court of Raleigh County that granted partial summary judgment in favor of Virginia Insurance Reciprocal and dismissed claims against the remaining appellees. Reviewing the plain language of the primary and excess insurance policies at issue to conclude that there was no language that extinguished VIR's duty to continue defending the appellant under the funds remaining in the excess policy after a settlement occurred, especially in light of the fact that the very purpose of the umbrella policy was to provide coverage once the primary policy limits had been exhausted, in addition to the fact that the clear language of the umbrella policy provides that it will defend the appellant if the limits of the primary policy are exhausted. Further concluding that the "other insurance" clause in the umbrella policy cannot be invoked to preclude its defense of the appellant after the date of the settlement. Concluding that the circuit court properly dismissed both statutory and common law bad faith claims on statute of limitations grounds. Holding in syllabus point 4 that: "[t]he one year statute of limitations contained in W. Va. Code 55-2-12(c) applies to a common law bad faith claim." Further holding, in syllabus point 5: "In a first-party bad faith claim that is based upon an insurer's refusal to defend, and is brought under W. Va. Code 33-11-4(9) and/or as a common law bad faith claim, the statute of limitations begins to run on the claim when the insured knows or reasonably should have known that the insured refused to defend him or her in an action."
??[Permanent Link] ?Google It!?TAXATION :: Assessment of real property participating in the Low Income Housing Tax Credit Program
STONE BROOKE LIMITED PARTNERSHIP v. SISSINNI, ASSESSOR OF BROOKE COUNTY, et al., No. 34423 -AND- HEATHERMOOR LIMITED PARTNERSHIP v. ALONGI, ASSESSOR OF HANCOCK COUNTY, et al., No. 34424 -AND- PINE HAVEN LIMITED PARTNMERSHIP, et al. v. ADKINS, ASSESSOR OF CABELL COUNTY, et al., No. 34863 (DAVIS, J.)(Benjamin, J., concurring)(Ketchum, J., concurring)(September 24, 2009). In three consolidated cases arising from the Circuit Courts of Brooke, Hancock and Cabell Counties, addressing the proper method of assessing the value for purposes of ad valorem taxation of real property participating in the Low Income Housing Tax Credit Program. Concluding that the Brooke and Hancock County Circuit Court orders properly upheld the assessor's selection of the cost approach as the most accurate method of appraising the properties at issue, but concluding that the lower court failed to address whether the assessors had analyzed each of the factors to be considered in the appraisal of commercial real property set forth in W. Va. C.S.R. 110-1P-2.1.1 to 2.1.4, and remanding for further proceedings. Reversing the Cabell County Circuit Court's order because the assessor presented substantial evidence to support his cost approach and the circuit court's order did not address whether the assessor had analyzed each of the required factors, and remanding for reinstatement of the cost approach appraisals and for review the correctness of the assessor's application of the required criteria.
??[Permanent Link] ?Google It!?PROPERTY :: Ownership in context of location of public road
CARPENTER v. LUKE, No. 34497 (Per Curiam)(September 24, 2009). Affirming an order of the Circuit Court of Harrison County that denied a motion to alter or amend judgment and a motion for new trial in a property dispute. Holding that the trial court properly entered judgment as a matter of law in favor of the plaintiff below on the issue of disputed ownership of certain real estate. Concluding that the trial court properly interpreted the context associated with the phrase "middle of the public road" set forth in the deed description, and further was correct in concluding that the defendant below's father could not have been a bona fide purchaser of land that was not included in his property description.
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