No. 18-0509 – State ex rel. Universal Underwriters Ins. Co. v. Wilson
                                                                                FILED
WORKMAN J., dissenting:
                                                                             March 8, 2019
                                                                                released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



              I dissent to the majority opinion based on the presenting issue as to whether

the lower court erred in denying Universal’s motion for summary judgment because a

material issue of fact existed; and because the criteria for use of the extraordinary remedy of

prohibition were not present. But my most stringent dissent is to the majority’s sweeping

expansion of our law on an issue that was neither raised nor briefed at the lower court or in

this Court; that was completely unnecessary to resolve this case; and that which is highly

likely to have unintended and unjust consequences in other future contexts.



              Our existing law on judicial estoppel is correctly stated by the majority as

follows:

              Judicial estoppel bars a party from re-litigating an issue when:
              (1) the party assumed a position on the issue that is clearly
              inconsistent with a position taken in a previous case, or with a
              position taken earlier in the same case; (2) the positions were
              taken in proceedings involving the same adverse party; (3) the
              party taking the inconsistent positions received some benefit
              from his/her original position; and (4) the original position
              misled the adverse party so that allowing the estopped party to
              change his/her position would injuriously affect the adverse
              party and the integrity of the judicial process.

Syl. Pt. 2, W. Va. Dep’t of Transp. v. Robertson, 217 W. Va. 497, 499, 618 S.E.2d 506, 508

(2005).
              Instead of simply applying the existing law to achieve its goal of reversing the

denial of summary judgment, the majority adventures into creating new law extending the

doctrine of judicial estoppel to nonparties. Not only did the facts in this case not warrant

such an extension, but the issue was neither briefed nor argued below or before this Court.

At the time the circuit court denied summary judgment, both Dan Cava and Dan’s Car World,

LLC, were parties to this action, along with the Plaintiff below, Christina M. Varvel,

administratrix of the estate of David Ralph Allen (hereinafter “Plaintiff”), and Universal

Underwriters Insurance Company and Zurich American Insurance Company (hereinafter

collectively referred to as “Zurich”). The circuit court did not dismiss Dan Cava and Dan’s

Car World from the case until after it entered the opinion letter denying summary judgment.

As the majority opinion indicates, “[i]n an opinion letter dated May 29, 2018, the circuit

court denied Petitioners’ motion for summary judgment on the coverage issue.” And in a

footnote, the majority notes that “[i]n a separate opinion letter dated May 30, 2018, the circuit

court granted the summary judgment of Mr. Cava and Dan’s Car World on the tort claims

brought by Respondent [the Plaintiff].” Critically, at the time Dan Cava’s deposition was

taken, he was a party to the litigation. Thus, based upon the majority’s conclusion that

inconsistent positions were taken in the case, the majority could have reached its desired

result by applying our existing law concerning judicial estoppel.




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              Instead, the majority expands the law as follows in a new syllabus point:

                     For summary judgment purposes, judicial estoppel may
              be applied against a litigant to prevent the litigant from using
              deposition testimony of a nonparty that is not consistent with a
              position taken by the deponent in a previous case, or with a
              position taken earlier in the same case. Application of this
              principle should be rare and only when the integrity of the
              judicial process is clearly undermined.

Under this syllabus point, at summary judgment, a litigant with a viable fact witness who has

indicated one position in written discovery responses in the case, but who has testified

inconsistently during a deposition in a completely different proceeding that is determined to

be “inconsistent” with the statement in the first proceeding, may be judicially estopped from

using the witness. This essentially can result in sanctioning not the person who has made an

inconsistent statement, but a litigant who may have nothing to do with the inconsistency.

Rather, such an inconsistency on the part of a nonparty witness should more properly be the

subject of impeachment on cross-examination, not a complete bar to its use. The majority

appears to recognize the unnecessary overreach of the language in this syllabus point

suggesting that its application should be “rare and when the integrity of the judicial process

is undermined.” But what is “rare” and what impacts “the integrity of the judicial process”

is pauce guidance for such a sweeping new legal principle. No other limits are placed on this

new point of law, leaving whether it applies to expert witnesses an open question.




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                                     Summary Judgment

              I now focus on the presenting, and only real, issue in this appeal, i.e. whether

the lower court erred in denying summary judgment, especially in light of the fact that

reasonable expectations of coverage is inherently a fact-driven issue. See Keller v. First

Nat’l Bank, 184 W. Va. 681, 685, 403 S.E.2d 424, 428 (1991) (stating that “[a]n action based

on a reasonable expectation of insurance usually will raise substantial questions of fact.”).

This Court has consistently held that summary judgment should not be granted where a

genuine issue as to a disputed material fact exists. See Syl. Pt. 3, Painter v. Peavy, 192 W.

Va. 189, 451 S.E.2d 755 (1994) (“The circuit court’s function at the summary judgment stage

is not to weigh the evidence and determine the truth of the matter, but is to determine

whether there is a genuine issue for trial.”).



              The majority holds in syllabus point two:

                     As a general rule, in order for the doctrine of reasonable
              expectations to be applicable to an insurance contract, there
              must be an ambiguity regarding the terms of that contract.
              However, an exception to this general rule occurs when reliable
              and relevant evidence, extrinsic to the insurance contract, casts
              a reasonable doubt as to whether coverage was provided by an
              otherwise unambiguous policy.

In this case, the Plaintiff claims that Dan’s Car World was told by its Zurich insurance agent,

Scott Beresford, that Salvatore was covered under the insurance issued to Dan’s Car World.

While Tiffany Moine, Dan’s Car World’s Rule 30(b)(7) deponent, testified that she did not


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know what Mr. Beresford specifically told Dan Cava, she also testified that she was made

aware by Dan Cava of a conversation between himself and Zurich’s agent on adding

Salvatore to Dan’s Car World’s policy. And after that conversation, Mr. Cava was “under

the assumption that” Salvatore had been added to the policy. Like Ms. Moine, Dan Cava

testified that he had a conversation with Mr. Beresford in which he wanted to add Salvatore

to Dan’s Car World’s policy as a named insured and Mr. Beresford advised him that his son

was covered. The positions taken by Dan’s Car World and Dan Cava are not inconsistent,

as both Dan’s Car World and Dan Cava testified regarding a conversation with Mr. Beresford

about adding Salvatore as an insured under the Zurich policy issued to Dan’s Car World.

Conversely, Zurich’s agent, Mr. Beresford, did not recall telling Dan Cava that his son was

covered under the Dan’s Car World policy. Clearly, a genuine issue of a disputed material

fact existed, and the circuit court correctly denied summary judgment on that basis. See id.



                                    Rule 30(b)(7) Notice

              I also take issue with majority finding judicial estoppel in this case based on

the “I don’t know” answer of Dan’s Car World’s Rule 30(b)(7) deponent to Zurich’s inquiry

concerning whether Dan’s Car World knew the specifics of the conversation Mr. Beresford

had with Dan Cava, because the questions posed were not within the parameters of the items

set forth for inquiry in the 30(b)(7) Motion. Rule 30(b)(7) of the West Virginia Rules of

Civil Procedure provides, in pertinent part, that “[a] party may in a notice and in a subpoena


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name as the deponent a public or private corporation or a partnership or association or

governmental agency and describe with reasonable particularity the matters on which

examination is requested.” (Emphasis added). The Notice described the following matters

on which examination was requested:

              1.     Dan’s Car World’s purchase of insurance coverage from
                     either Universal Underwriters Insurance Company or
                     Zurich American Insurance Company from 2011 to the
                     present. . . .
              2.     The insurance coverage purchased by Dan’s Car World
                     that it contends provides coverage to it with respect to
                     Plaintiffs claims in this lawsuit. . . .
              3.     The insurance coverage Dan’s Car World contends
                     provides coverage to Salvatore Cava with respect to the
                     Plaintiffs claims in this lawsuit. . . .

Zurich did not designate with reasonable certainty the specifics of any oral conversations or

other oral communications between Dan’s Car World and Zurich as even a potential area of

inquiry. As a matter of fact, there was nothing in the notice that would place Dan’s Car

World on notice that it should have presented a witness with knowledge of such alleged oral

communications.



              This entire issue of the information sought by the Rule 30(b)(7) deponent

could have been resolved by subpoenaing Dan Cava for deposition as a fact witness some

three years prior to the circuit court denying Zurich’s motion for summary judgment. But

Zurich failed to do so even though the circuit court invited it to do so both in its denial of



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Zurich’s motion to compel and again in the ruling denying Zurich’s motion for summary

judgment.



                                    Prohibition Improper

              Finally, I am troubled by the majority granting a writ of prohibition in this case

by finding that the circuit court, in denying summary judgment, clearly erred as a matter of

law on legal grounds that did not even exist at the time the circuit court rendered its

decision. Similar to what occurred in State ex rel. State Auto Property Insurance Companies

v. Stucky, 239 W. Va. 729, 806 S.E.2d 160 (2017) (Workman, J., dissenting), this Court is

again presented with an insurance company seeking this Court’s

              intervention, requesting a writ of prohibition and arguing that
              the circuit court clearly erred in denying its motion for summary
              judgment. . . . [A] writ of prohibition is an extraordinary
              remedy to be utilized in extremely limited instances. Despite
              this Court’s consistent observation that the writ “does not lie for
              errors or grievances which may be redressed in the ordinary
              course of judicial proceedings[,]” the majority permits . . . [the
              insurer] to employ an extraordinary writ as essentially a
              substitute for appeal in this case. County Court v. Boreman, 34
              W. Va[.] 362, 366, 12 S. E. 490, 492 (1890). A writ of
              prohibition is inappropriate in this case, and courts should be
              exceedingly wary of overindulgence in extraordinary remedies
              and “should sparingly use a writ to review an order denying a
              motion for summary judgment and limit its use to cases where
              extraordinary and compelling reasons exist to warrant such
              relief.” State ex rel. Speer v. Grimm, 599 S.W.2d 67, 69 (Mo.
              Ct. App. 1980).




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239 W. Va. at 737, 806 S.E.2d at 168 (footnote omitted). The majority, while giving lip

service to the factors necessary for this Court to grant a writ of prohibition, fails to offer any

reasoning as to how Zurich meets those factors. See Syl. Pt. 4, State ex rel. Hoover v.

Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).              Succinctly stated, there is nothing

“extraordinary” or “compelling” about this case. See State Auto Prop. Ins. Cos., 239 W. Va.

at 737, 806 S.E.2d at 168. To the extent that Zurich finds fault with the circuit court’s denial

of summary judgment, Zurich clearly had other adequate means of seeking relief, first taking

the deposition of Dan Cava (as the lower court urged them to do); or by the filing of an

appeal. Indeed, any damage or harm that Zurich alleges it may suffer from in allowing this

case to go trial is unquestionably correctable in a direct appeal. Most importantly, given the

nature of a reasonable expectations of coverage claim, the circuit court’s order denying

summary judgment due to its determination that material issues of fact exist is simply not

clearly erroneous as a matter of law. See Berger, 199 W. Va. at 14-15, 483 S.E.2d at 14-15,

Syl. Pt. 4.



               In my almost twenty-three years as an appellate court judge, one thing I have

learned is that the development of new law by a judicial body is a lot better when, like a good

stew, it is cooked slowly and thoroughly. The full processing of a new or novel legal issue

by its being fully considered by a lower court, a lower court making a ruling, the parties then

briefing and arguing the issue at the appellate level results in much sounder law and much


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fairer results than this Court embarking on creating new law and then granting prohibition

because the lower court failed to follow the (as-yet) established law.



              By way of analogy, the Supreme Court of the United States stated in Singleton

v. Wulff, 428 U.S. 106 (1976), that

              [i]t is the general rule, of course, that a federal appellate court
              does not consider an issue not passed upon below. In Hormel v.
              Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 83 L.Ed. 1037
              (1941), the Court explained that this is “essential in order that
              parties may have the opportunity to offer all the evidence they
              believe relevant to the issues . . . (and) in order that litigants may
              not be surprised on appeal by final decision there of issues upon
              which they have had no opportunity to introduce evidence.”

Singleton, 428 U.S. at 120; see also Michael v. Appalachian Heating, LLC, 226 W. Va. 394,

409, 701 S.E.2d 116, 131 (2010) (McHugh, J., concurring, in part, and dissenting, in part)

(stating that “[t]he question presented by the lower court was limited . . . . 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[,]” and further noting that “the majority adopted

an overly-broad new point of law” and that the majority went “beyond what was necessary

to resolve the question presented[.]”).



              For the foregoing reasons, I respectfully dissent.



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