No. 13-1153 - State of West Virginia ex rel. Owners Insurance Company v. Honorable
Warren R. McGraw, Judge of the Circuit Court of Wyoming County, West Virginia, and
Morlan Enterprises, Inc.
                                                                   FILED
                                                                June 18, 2014
                                                                           released at 3:00 p.m.
                                                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
LOUGHRY, Justice, concurring:                                                OF WEST VIRGINIA



               I concur in the judgment of the majority in denying the petitioner’s request for

a writ of prohibition.1 I write separately to explain why I believe extraordinary relief should

be parsimoniously granted rather than serving as an interlocutory review of a trial court’s

pretrial rulings.



       1
       In syllabus point four of State ex. rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d
12 (1996), we explained that

                      [i]n determining whether to entertain and issue the writ
               of prohibition for cases not involving an absence of jurisdiction
               but only where it is claimed that the lower tribunal exceeded its
               legitimate powers, this Court will examine five factors: (1)
               whether the party seeking the writ has no other adequate means,
               such as direct appeal, to obtain the desired relief; (2) whether the
               petitioner will be damaged or prejudiced in a way that is not
               correctable on appeal; (3) whether the lower tribunal’s order is
               clearly erroneous as a matter of law; (4) whether the lower
               tribunal’s order is an oft repeated error or manifests persistent
               disregard for either procedural or substantive law; and (5)
               whether the lower tribunal’s order raises new and important
               issues of law of first impression. These factors are general
               guidelines that serve as a useful starting point for determining
               whether a discretionary writ of prohibition should issue.
               Although all five factors need not be satisfied, it is clear that the
               third factor, the existence of clear error as a matter of law,
               should be given substantial weight.

                                                1

              The petitioner has sought a writ of prohibition to reverse various pretrial orders

entered by the trial court. These orders involve rulings on a choice of law issue, the denial

of the petitioner’s motion to dismiss for lack of personal jurisdiction, the award of partial

summary judgment in favor of respondent Morlan Enterprises allowing its claim against the

petitioner for first party bad faith and Unfair Trade Practices Act violations to proceed, and

the grant of a motion in limine prohibiting the petitioner from presenting evidence of the

payment of attorney’s fees, which are sought by Morlan, but which were paid by another

source.



              In determining whether to issue a writ of prohibition, I first observe that “[a]

writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court . . .

. W.Va. Code, 53-1-1.” Syl. pt. 2, in part, State ex rel. Peacher v. Sencindiver, 160 W.Va.

314, 233 S.E.2d 425 (1977); see also State ex rel. Allen v. Bedell, 193 W.Va. 32, 37, 454

S.E.2d 77, 82 (1994) (Cleckley, J., concurring) (“Mere doubt as to the correctness of a trial

court’s ruling on a motion in limine regarding an evidentiary issue is an insufficient basis to

invoke this Court’s writ power.”). Indeed, “[i]n the absence of compelling evidence of

irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s

pretrial ruling on a matter of evidentiary admissibility.” Syl. Pt. 2, State ex rel. Williams v.

Narick, 164 W.Va. 632, 264 S.E.2d 851 (1980)).




                                               2

              I further observe that decades ago, this Court explained that “[t]he writ of

prohibition . . . does not lie to correct mere errors; and it cannot be allowed to usurp the

functions of appeal, writ of error or certiorari.” State ex rel. City of Huntington v.

Lombardo, 149 W.Va. 671, 679, 143 S.E.2d 535, 541 (1965). This Court has also cautioned

that it

              will look to the adequacy of other available remedies such as
              appeal and to the over-all economy of effort and money among
              litigants, lawyers and courts; however, this Court will use
              prohibition in this discretionary way to correct only substantial,
              clear-cut, legal errors plainly in contravention of a clear
              statutory, constitutional, or common law mandate which may be
              resolved independently of any disputed facts and only in cases
              where there is a high probability that the trial will be completely
              reversed if the error is not corrected in advance.

Syl. Pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979). More recently,

in Justice Cleckley’s well-reasoned concurrence in Bedell, he explained that

              [t]he “‘[l]iberal allowance’” of extraordinary writs “‘degrades
              the prominence of the trial’” and it undermines our statutory
              provisions limiting appellate review to final judgments. Brecht
              v. Abrahamson, 507 U.S. 619, ---- - ----, 113 S.Ct. 1710,
              1720-21, 123 L.Ed.2d 353, 371 (1993), quoting Engle v. Isaac,
              456 U.S. 107, 127, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783, 800
              (1982).

Bedell, 193 W.Va. at 36, 454 S.E.2d at 81. As Justice Cleckley expounded,

              When appropriate, writs of prohibition and mandamus provide
              a drastic remedy to be invoked only in extraordinary situations.

              ****



                                              3

              [t]o justify this extraordinary remedy, the petitioner has the
              burden of showing that the lower court’s jurisdictional
              usurpation was clear and indisputable and, because there is no
              adequate relief at law, the extraordinary writ provides the only
              available and adequate remedy. Thus, writs of prohibition, as
              well as writs of mandamus and habeas corpus, should not be
              permitted when the error is correctable by appeal.

Id., 193 W.Va. at 37, 454 S.E.2d at 82. Admittedly, these are extremely high hurdles that a

party must clear before extraordinary relief will be granted, as I believe they should be, but

I also believe that if these hurdles are met, extraordinary relief should be granted.



              In the case at bar, however, like the majority, I see no clear error or excess of

legitimate power in the case at bar that is not “correctable by appeal.” Bedell, 193 W.Va. at

37, 454 S.E.2d at 82. As Justice Cleckley suggested, a factor to be considered in determining

whether extraordinary relief is appropriate is “[w]hether the damage (other than expense and

time) or prejudice suffered by the petitioner is correctable on appeal[.]” Id. (emphasis

added). Thus, the fact that the parties will expend time and money as the litigation proceeds

below does not entitle the petitioner to extraordinary relief, nor should prohibition be used

for “the purpose of appealing cases upon the installment plan.” State ex rel. Shelton v.

Burnside, 212 W.Va. 514, 519, 575 S.E.2d 124, 129 (2002) (quoting Wimberly v. Imel, 358

P.2d 231, 232 (Okla.Crim.App.1961)); see also Bedell, 193 W.Va. at 37, 454 S.E.2d at 82

(Cleckley, J., concurring) (“Unfortunately, in West Virginia the writ of prohibition has been

used with increasing frequency as a device to escape from the ‘final judgment’ rule.”).


                                              4

              As indicated above, the petitioner seeks extraordinary relief from the trial

court’s pretrial rulings involving a motion in limine, personal jurisdiction, choice of law, and

whether respondent Morlan is a first party insured under the policy issued by the petitioner.

While I am disappointed that the majority did not undertake a more thorough and complete

analysis of these issues, upon consideration of the parties’ arguments and the procedural

posture of this litigation, I cannot conclude that there is “compelling evidence of irremediable

prejudice.” Syl. Pt. 2, in part, Narick, 164 W.Va. 632, 264 S.E.2d 851. Accordingly, I agree

with the majority that under the factors set forth in Hoover, these are issues that can be

considered on appeal following a final order of the circuit court.



              For these reasons, I concur in the majority’s decision to deny extraordinary

relief in this matter. I am authorized to state that Justice Workman joins in this separate

opinion.




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