No. 15-0013 –          John Doe, an unknown driver v. Hasil Pak
                                                                                FILED
                                                                            January 28, 2016
                                                                               RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA


Davis, Justice, concurring, in part, and dissenting, in part:

                I fully agree with the new syllabus point herein announced by the majority and its

corresponding determination that the circuit court erred in refusing to credit State Farm’s advance

payment to its insured against the final judgment she obtained in this action. I likewise agree with

the majority’s determination that Ms. Pak is not entitled to prejudgment interest for her loss of

household services, because she had no out-of-pocket expenditures related to that loss. Accordingly,

I concur in those portions of the majority opinion. However, I part ways with my brethren on the

proper method of calculating pre-judgment interest pursuant to W. Va. Code § 56-6-31(a) (2006)

(Repl. Vol. 2012).



                In this case, the majority relied on this Court’s prior decision in State Farm Mutual

Automobile Insurance Co. v. Rutherford, 229 W. Va. 73, 726 S.E.2d 41 (2011), to conclude that the

circuit court erred by failing to deduct State Farm’s advance payment to Ms. Pak from the judgment

amount prior to assessing interest thereon.       Because the majority’s reliance on Rutherford

perpetuates the misinterpretation of W. Va. Code § 56-6-31(a), I must dissent as I did with respect

to the same issue in Rutherford.



                W. Va. Code § 56-6-31(a) states, in relevant part,




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                       Except where it is otherwise provided by law, every judgment
              or decree for the payment of money, whether in an action sounding
              in tort, contract or otherwise, entered by any court of this state shall
              bear interest from the date thereof, whether it be so stated in the
              judgment or decree or not: Provided, That if the judgment or decree,
              or any part thereof, is for special damages, as defined below, or for
              liquidated damages, the amount of special or liquidated damages
              shall bear interest at the rate in effect for the calendar year in which
              the right to bring the same shall have accrued, as determined by the
              court and that established rate shall remain constant from that date
              until the date of the judgment or decree, notwithstanding changes in
              the federal reserve district discount rate in effect in subsequent years
              prior to the date of the judgment or decree. Special damages includes
              lost wages and income, medical expenses, damages to tangible
              personal property and similar out-of-pocket expenditures, as
              determined by the court. If an obligation is based upon a written
              agreement, the obligation shall bear a prejudgment interest at the rate
              set forth in the written agreement until the date the judgment or
              decree is entered and, thereafter, the judgment interest rate shall be
              the same rate as provided for in this section.

(Emphasis added). As I pointed out in my separate opinion in Rutherford,

                        The plain language of W. Va. Code § 56-6-31 states that “the
              amount of such special or liquidated damages shall bear interest.”
              (Emphasis added). The word “amount,” though not defined by
              statute, is commonly understood to mean “aggregate,” “full value,”
              “total,” or “the whole.” See, e.g., Random House Webster’s
              Unabridged Dictionary 69 (2d ed. 1998) (defining “amount” as “the
              sum total of two or more quantities or sums; aggregate” and as “the
              full . . . value”); I The Oxford English Dictionary 411 (2d ed. 1991
              reprt.) (construing “amount” as “[t]he full value” and “[a] quantity or
              sum viewed as a total”); Webster’s Third New International
              Dictionary Unabridged 72 (1970) (interpreting “amount” as “the total
              number or quantity: aggregate . . .: sum” and “the whole”). Thus, it
              is clear that W. Va. Code § 56-6-31 requires the calculation of
              prejudgment interest upon the entire amount of the special damages
              verdict. This Court is bound to apply and enforce statutes, as they are
              written, according to their plain meaning. See, e.g., Syl. pt. 2, in part,
              State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) ( “A statutory
              provision which is clear and unambiguous and plainly expresses the
              legislative intent . . . will be given full force and effect.”). Here,
              W. Va. Code § 56-6-31 required the majority to calculate


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               prejudgment interest upon the total amount of the special damages
               verdict before the settlements were applied as an offset. I disagree
               with the majority’s contrary approach which directly contradicts the
               expressly prescribed calculation method and shows callous disregard
               for the Legislature’s intent.

Rutherford, 229 W. Va. at 82, 726 S.E.2d at 50 (footnote omitted). In the case sub judice, the

majority has continued to ignore the plain language of W. Va. Code § 56-6-31 and has wrongly

deducted State Farm’s advance payment from Ms. Pak’s special damages prior to calculating the pre­

judgment interest to which she is statutorily entitled. Thus, for the same reasons I explained in

Rutherford, I respectfully dissent.




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