                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-1156



MEDICAL    ASSURANCE   OF    WEST   VIRGINIA,
INCORPORATED, a West Virginia Corporation,

                                              Plaintiff - Appellant,

          versus


UNITED STATES OF AMERICA,

                                               Defendant - Appellee.

--------------------------------------

WEST   VIRGINIA    MUTUAL   INSURANCE   COMPANY,
INCORPORATED,

                                        Amicus Supporting Appellant.



                             No. 06-1494



MEDICAL    ASSURANCE   OF    WEST   VIRGINIA,
INCORPORATED, a West Virginia Corporation,

                                              Plaintiff - Appellant,

          versus


UNITED STATES OF AMERICA,

                                               Defendant - Appellee.

--------------------------------------
WEST   VIRGINIA   MUTUAL     INSURANCE   COMPANY,
INCORPORATED,

                                         Amicus Supporting Appellant.



Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:04-cv-0432)


Argued:   January 30, 2007                  Decided:   April 24, 2007



Before WILKINS, Chief Judge, and NIEMEYER and MICHAEL, Circuit
Judges.


Reversed by unpublished per curiam opinion.


ARGUED: Douglas Warren Baruch, FRIED, FRANK, HARRIS, SHRIVER &
JACOBSON, L.L.P., Washington, D.C., for Appellant. Lawrence Eiser,
UNITED STATES DEPARTMENT OF JUSTICE, Torts Branch, Civil Division,
Washington, D.C., for Appellee. ON BRIEF: Eugene N. Hansen, FRIED,
FRANK, HARRIS, SHRIVER & JACOBSON, L.L.P., Washington, D.C., for
Appellant. Peter D. Keisler, Assistant Attorney General, Roger D.
Einerson, Assistant Director, UNITED STATES DEPARTMENT OF JUSTICE,
Torts Branch, Civil Division, Washington, D.C., for Appellee.
Michael J. Farrell, Charlotte A. Hoffman, Robert L. Hogan, FARRELL,
FARRELL & FARRELL, P.L.L.C., Huntington, West Virginia, for West
Virginia Mutual Insurance Company, Incorporated, Amicus Supporting
Appellant.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Medical Assurance of West Virginia, Inc. (MAWV) brought

a declaratory judgment action in federal court against the United

States, the subrogee of MAWV’s insured, Dr. Prakob Srichai, to

establish that it has no obligation to pay a medical malpractice

claim against the doctor.          The case went to trial, and MAWV

contended that Dr. Srichai had breached the terms of his insurance

policy   by    failing   to   notify   MAWV       of    the   claim   “as   soon   as

practicable.”       The jury returned a verdict in favor of the United

States and against MAWV.        The district court denied MAWV’s motion

for judgment as a matter of law and awarded attorney’s fees to the

United States as Dr. Srichai’s subrogee.                We conclude that because

MAWV received no notice of the claim until four years after Dr.

Srichai first became aware of it, and Dr. Srichai offered no

reasonable explanation for the delay, the jury had no basis for

excusing      Dr.   Srichai’s   breach       of   the    policy’s     notification

provision.     MAWV was thus entitled to judgment as a matter of law.

              The underlying medical malpractice claim arose from an

automobile accident caused by Terry Hoosier, one of Dr. Srichai’s

patients.      At the time, Dr. Srichai was employed by the Community

Health Foundation of Man (CHF), a federally funded clinic covered

by the Federal Tort Claims Act (FTCA), 42 U.S.C. § 233.                            The

representative of the accident victims, Gorman Osbourne, sued

Hoosier in West Virginia state court.              Osbourne also initiated an


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administrative proceeding with the United States Department of

Health and Human Services against Dr. Srichai and CHF in March

1999.    Osbourne alleged that the accident occurred while Hoosier

was under the influence of drugs negligently prescribed by Dr.

Srichai.   After Osborne exhausted the administrative process, he

was permitted to add Dr. Srichai and CHF as defendants in the suit

against Hoosier.    Because Dr. Srichai and CHF qualified as federal

employees, the United States intervened in the suit, removed the

case to federal court, and had itself substituted for Dr. Srichai

as a defendant in accordance with the FTCA.            In October 2002 the

parties settled the case with an agreement by the United States to

pay the plaintiffs $3.9 million.

           The   United    States     subsequently    discovered    that    Dr.

Srichai held a $1 million private insurance policy with MAWV that

covered the    malpractice incident.       In June 2003 the United States

sent a letter to MAWV “making a subrogation demand in the amount of

$916,667" under the policy. MAWV refused to pay, claiming that Dr.

Srichai had breached the policy by failing to comply with the

requirement that the insured notify the company of covered claims

“as soon as practicable.”         Prior to the United States’s letter,

MAWV had no notice of the malpractice claim against Dr. Srichai.

           The United States argues that the delay does not bar

coverage because the United States mistakenly believed that the

policy   had   expired    and   Dr.   Srichai   may   have   been   under   the


                                       4
impression that the policy covered only surgical treatment.      MAWV

argues that these explanations are insufficient as a matter of law.

We review de novo a district court’s denial of a motion for

judgment as a matter of law.   ABT Bldg. Prods. Corp. v. Nat’l Union

Fire Ins. Co. of Pittsburgh, 472 F.3d 99, 113 (4th Cir. 2006).     We

must assess whether the evidence, when viewed in the light most

favorable to the prevailing party, is sufficient for a reasonable

jury to find in that party’s favor.       Id.

           Under West Virginia law a violation of an insurance

policy’s notice provision does not always bar a claim against the

insurer.     If the insured offers a reasonable explanation for the

delay, “the burden shifts to the insurance company to show that the

delay in notification prejudiced [its] investigation and defense of

the claim.”    Dairyland Ins. Co. v. Voshel, 428 S.E. 2d 542, 546 (W.

Va. 1993).    The reasonableness of a delay is generally a question

of fact.     Colonial Ins. Co. v. Barrett, 542 S.E. 2d 869, 875 (W.

Va. 2000).     However, when the insured offers no explanation, the

delay is considered unreasonable as a matter of law.      See Ragland

v. Nationwide Mut. Ins. Co., 120 S.E. 2d 482, 490-91 (W. Va. 1961).

           Dr. Srichai’s insurance policy requires him to notify

MAWV of any claim or potential claim “as soon as practicable” to

guarantee coverage.     Dr. Srichai first had notice of a potential

malpractice     claim   when   Osbourne     commenced   administrative

proceedings against him in 1999.       However, MAWV did not receive


                                   5
notice of the claim until the United States demanded payment under

the   policy   (as    Dr.   Srichai’s   subrogee)   four   years   after   the

proceedings against Dr. Srichai began.              Under the policy Dr.

Srichai had a duty to report the claim to MAWV throughout this

period.   Thus, we consider only whether a reasonable explanation

has been offered for his failure to notify MAWV as soon as he

became aware of the malpractice claim.

           The United States attempts to explain Dr. Srichai’s

failure to notify MAWV by asserting that he mistakenly believed the

policy covered only his surgical practice.            Although the policy

plainly covers all “medical incidents,” the United States points to

two letters to claim that Dr. Srichai was under the mistaken

impression that the policy did not cover the claim.                The first

letter, from CHF’s insurance agent to MAWV, seeks to add CHF to Dr.

Srichai’s policy as an additional insured “because he is a general

surgeon and his specialty does not meet the federal guidelines” for

FTCA coverage.       This may suggest some confusion on the part of CHF,

but it does not show that Dr. Srichai thought the policy was

limited to his surgical practice.           The second letter, from CHF to

the federal officials handling the administrative claim, states

that the policy “was purchased to insure the surgical practice of

[Dr. Srichai].”       Again, however, Dr. Srichai neither drafted the

letter nor is there any indication that he received a copy.            Thus,

neither letter shows that Dr. Srichai had been mistaken or deceived


                                        6
as to the scope of the policy, and a jury could not reasonably

conclude that he had a valid reason for his failure to notify MAWV.

An unexplained, four-year delay in notice is unreasonable as a

matter of law.   See Ragland, 120 S.E. 2d at 490-91 (unexplained

delay of more than five months unreasonable as a matter of law).

The district court thus erred in denying MAWV’s motion for judgment

as a matter of law.     Similarly, because MAWV did not erroneously

disclaim liability under the policy, the United States is not

entitled to the award of attorney’s fees granted by the district

court.   See Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E. 2d

73, 80 (W. Va. 1986).

           The judgment entered in favor of the United States and

the order awarding attorney’s fees to the United States are

                                                          REVERSED.




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