                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

Sheila Ann Rutherford,                                                              FILED
Plaintiff Below, Petitioner                                                         June 7, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 12-0655 (Kanawha County 03-C-2908)                                       OF WEST VIRGINIA



Olive V. McClanahan and Kanawha County Commission,
Defendants Below, Respondents


                               MEMORANDUM DECISION
        Petitioner Sheila Ann Rutherford, by counsel Tim C. Carrico, appeals the judgment order
of the Circuit Court of Kanawha County entered April 16, 2012, following this Court’s remand.
As directed, the circuit court calculated the prejudgment interest on the special damages portion
of the judgment and not the special damages portion of the entire verdict. Respondents, by
counsel David A. Mohler and Greg S. Foster, filed a response.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        We begin by noting that this petition is the second appeal to come before this Court
following the jury trial in this case. Petitioner was injured in a vehicle accident in 2002. She filed
suit against respondents and provided notice of the suit to her underinsurance carrier. Petitioner
entered into a partial settlement with Respondent McClanahan for $100,000, and a partial
settlement with Respondent Kanawha County Commission for $30,000. Petitioner then
proceeded with her claim against State Farm, her underinsurance carrier.1

        In September of 2008, the jury returned a verdict of $175,000 in favor of petitioner,
which included $170,000 in special damages. The circuit court applied the previous settlements
to offset the verdict. Thus, State Farm owed a judgment in the amount of $45,000 to petitioner.

       In the first appeal, the parties disputed the proper method to determine the amount of
prejudgment interest on the special damages. This Court remanded the case to the circuit court to
recalculate the prejudgment interest as follows:



       1
           State Farm elected to defend the action in the name of Ms. McClanahan.
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       [T]his Court finds that the circuit court should have calculated prejudgment
       interest on the special damages portion of the $45,000 judgment against State
       Farm and not the special damages portion of the entire verdict of $175,000.
       Significantly, W. Va. Code § 56-6-31 provides for the payment of prejudgment
       interest on the special damages portion of “every judgment or decree for the
       payment of money.” This language is clear and unambiguous. It plainly indicates
       that payment of prejudgment interest shall be on the special damages portions of
       judgments or decrees for the payment of money, not on verdicts. Ms. Rutherford’s
       judgment against State Farm was not for $175,000. Rather, the judgment directed
       that State Farm pay to Ms. Rutherford $45,000.00 on her underinsurance claim.
       Therefore, State Farm should pay prejudgment interest on the special damages
       portion of the $45,000 judgment.

State Farm Mutual Automobile Ins. Co. v. Rutherford, 229 W.Va. 73, __ 726 S.E.2d 41, 46
(2011) (Rutherford I).

        As directed, the circuit court first deducted the $130,000 in settlement proceeds from the
$175,000 verdict to reach $45,000. To determine the special damages portion of the remaining
$45,000, the court found that “[s]ince the special damages were 97% of the total verdict, 97% of
the remaining $45,000 is $43,650.” Furthermore, the circuit court followed this Court’s holding
that the prejudgment interest rate of 10% should be applied to the amount from the date of the
accident to the date the judgment order was entered. Making that calculation, the court entered
an amended judgment order finding prejudgment interest in the amount of $27,146.71.

        In this second appeal, petitioner now contends that the circuit court should have
calculated interest on the entire $45,000 judgment. She also argues, in the alternative, that the
circuit court erred by not awarding prejudgment interest on $170,000, the entire amount of her
special damages.

       Respondents assert that petitioner’s assignments of error are directly contrary to this
Court’s mandate in Rutherford I. Respondents argue that petitioner’s attempts to relitigate this
matter are prohibited under the law of the case doctrine. We agree.

       The law of the case doctrine “generally prohibits reconsideration of issues which
       have been decided in a prior appeal in the same case, provided that there has been
       no material changes in the facts since the prior appeal, such issues may not be
       relitigated in the trial court or re-examined in a second appeal.” 5 Am.Jur.2d
       Appellate Review § 605 at 300 (1995) (footnotes omitted). “[T]he doctrine is a
       salutary rule of policy and practice, grounded in important considerations related
       to stability in the decision making process, predictability of results, proper
       working relationships between trial and appellate courts, and judicial economy.”
       United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir. 1991). Thus,
       consistent with these considerations, we have previously held, “[t]he general rule
       is that when a question has been definitively determined by this Court its decision
       is conclusive on parties, privies and courts, including this Court, upon a second



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       appeal and it is regarded as the law of the case.” Syl. Pt. 1, Mullins v. Green, 145
       W.Va. 469, 115 S.E.2d 320 (1960).

State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W.Va. 802, 808, 591 S.E.2d 728, 734
(2003) (footnote omitted).

        For the foregoing reasons, we decline to re-examine the issues previously determined by
this Court in Rutherford I. Accordingly, this Court affirms the amended judgment order entered
by the circuit court.

                                                                                        Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

Justice Robin Jean Davis not participating
Justice Margaret L. Workman disqualified




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