                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Carole Hanlon, individually, and Carole Hanlon,
as the Executrix of the Estate of David Hanlon,
                                  FILED
Plaintiff Below, Petitioner                                                     May 20, 2016

                                                                                RORY L. PERRY II, CLERK
vs) No. 15-0337 (Kanawha County 11-C-132)                                     SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


AXA Equitable Life Insurance Company,
and Joseph V. Funderburk, II,
Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioner Carole Hanlon, individually and as executrix of the estate of David Hanlon, by
counsel Scott Curnutte, appeals the orders of the Circuit Court of Kanawha County, entered on
March 16, 2015, granting respondents’ motions for summary judgment. Respondent AXA
Equitable Life Insurance Company (“AXA Equitable Life”) appears by counsel J. Rudy Martin.
Respondent Joseph V. Funderburk II appears by counsel Edgar Allen Poe and Ashley L. Justice.

       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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        Petitioner Carole Hanlon and her husband David Hanlon, an attorney, purchased life
insurance policies from Respondent AXA Equitable Life through an agent, Respondent
Funderburk, in 1977, 1981, 1983, 1989, and 1993. Mr. Hanlon died on January 25, 2006, and
petitioner, as his beneficiary, requested benefits under those policies. Respondent AXA
Equitable Life issued benefit checks for two of the policies at less than the face value, explaining
that the value had been diminished by loan transactions, and notified petitioner that two of the
policies lapsed for non-payment prior to Mr. Hanlon’s death. Petitioner refused the checks that
were issued. She has not submitted paperwork that Respondent AXA Equitable Life requested to
process the fifth policy.

        Petitioner filed a twenty-count complaint in the Circuit Court of Kanawha County in
January of 2011 (nearly five years after the death of her husband), asserting several causes of
action as to each of the five policies. At the close of discovery, respondents filed motions for
summary judgment. In response to those motions, petitioner conceded that summary judgment
was appropriate on her claims for breach of fiduciary duty as to both respondents; appropriate on
her claims of breach of contract and breach of the duty of good faith and fair dealing as to

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Respondent Funderburk; and appropriate on her claim of reasonable expectation of coverage as
to Respondent AXA Equitable Life. The circuit court granted respondents’ motions in separate
orders, and this appeal followed.

        On appeal, petitioner asserts four assignments of error. She argues that the circuit court
erred in: (1) dismissing her claim for “reasonable expectation of coverage” as time-barred; (2)
finding that she cannot maintain an unjust enrichment claim against Respondent Funderburk
because neither petitioner nor her husband paid him directly; (3) finding that petitioner cannot
maintain an unjust enrichment claim against Respondent AXA Equitable Life because her
relationship with that respondent was based in express contract; and (4) ruling that breach of the
duty of good faith and fair dealing is not a stand-alone claim. Inasmuch as the circuit court’s
determinations on these issues established the grounds for the grant of summary judgment, we
review petitioner’s assignments error de novo. “A circuit court’s entry of summary judgment is
reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d 755, 756
(1994). “‘“A motion for summary judgment should be granted only when it is clear that there is
no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the
application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of
Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 2, Painter.

        We begin with petitioner’s first assignment of error, in which she argues that the circuit
court erred in dismissing her claim for “reasonable expectation of coverage,” which she suggests
is governed by the ten-year statute of limitations applicable to contract actions. The circuit court
instead applied the two-year statute of limitations described in West Virginia Code § 55-2-12.1
“Reasonable expectation of coverage” is not an independent cause of action in West Virginia
but, rather, as we have noted, “essentially a rule of construction” for contract interpretation.
National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 742 n. 7, 356 S.E.2d 488, 496
n.7 (1987); accord Luikart v. Valley Brook Concrete & Supply, Inc., 216 W.Va. 748, 755, 613
S.E.2d 896, 903 (2005). As explained above, petitioner agreed below that summary judgment
was appropriate on her claim of “reasonable expectation of coverage” as to Respondent AXA
Equitable Life. Inasmuch as she also agreed that summary judgment was appropriate on her
claim of breach of contract as to Respondent Funderburk, and application of the doctrine of
“reasonable expectation of coverage” would be wholly tied to that claim, we find no error in the
circuit court’s grant of summary judgment on this issue.



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           That section provides:

               Every personal action for which no limitation is otherwise prescribed shall
       be brought: (a) Within two years next after the right to bring the same shall have
       accrued, if it be for damage to property; (b) within two years next after the right to
       bring the same shall have accrued if it be for damages for personal injuries; and
       (c) within one year next after the right to bring the same shall have accrued if it be
       for any other matter of such nature that, in case a party die, it could not have been
       brought at common law by or against his personal representative.


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        We turn to petitioner’s second assignment of error, in which she argues that the circuit
court erred in grounding its order denying summary judgment, in part, on the finding that
petitioner could not maintain a claim against Respondent Funderburk for unjust enrichment. It is
undisputed that neither petitioner nor her husband paid money directly to that respondent for the
insurance policies. We have examined the “concept” of unjust enrichment:

       In Syllabus Point 4 of Prudential Ins. Co. of America v. Couch, 180 W.Va. 210, 376
S.E.2d 104 (1988), this Court held:

              It is generally recognized in the law of restitution that if one party pays
       money to another party (the payee) because of a mistake of fact that a contract or
       other obligation required such payment, the party making the payment is entitled
       to repayment of the money from the payee.

        In so holding, this Court explained in Prudential that “[t]he theoretical basis for this
principle is that it would be unjust to allow a person to retain money on which he had no valid
claim. He would be unjustly enriched thereby, when in equity and justice it should be returned to
the payor.” Id. at 214, 376 S.E.2d at 108.

        Hill v. Stowers, 224 W. Va. 51, 60, 680 S.E.2d 66, 75 (2009). Prudential succinctly
clarifies that

       restitution principles require that suit be brought ordinarily against the party
       receiving the payment. There do not appear to be many cases that have dealt with
       suits against nonpayees. The few that have conclude that a suit for restitution may
       not be maintained against a party who is not the payee, unless it is shown that
       such party was unjustly enriched because the payment satisfied an obligation that
       was the responsibility of such party.

180 W.Va. 210 at 215, 376 S.E.2d at 109. The case before us does not fit into the limited
circumstance described in Prudential wherein recovery from a nonpayee may be permitted,
inasmuch as petitioner has identified no obligation satisfied on behalf of respondent. As the
circuit court pointed out, we have expressly explained that an insurance agent is “but an
incidental beneficiary” to a contract between an insured and an insurance company, and “the
agent’s right to commissions . . . is of no concern to the insured, and [is] solely a matter of
contract between the agent and his principal, the insurance company.” See Shrewsbery v.
National Grange Mut. Ins. Co., 183 W.Va. 322, 325, 395 S.E.2d 745, 748 (1990). We thus find
no error in the circuit court’s decision on this ground.

       Similarly, we find no error in the circuit court’s grant of summary judgment on the
ground that petitioner cannot maintain an unjust enrichment claim against Respondent AXA
Equitable Life, the basis of the issue raised in petitioner’s third assignment of error. It is
undisputed that petitioner and her husband entered into express contracts with this respondent.
However, an unjust enrichment claim is inconsistent with a contractual dispute. See Bright v.
QSP, Inc., 20 F.3d 1300, 1306 (4th Cir.1994)(applying West Virginia law, and stating that,



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because an “action for unjust enrichment is quasicontractual in nature[, it] may not be brought in
the face of an express contract.”)

        Finally, we turn to petitioner’s fourth assignment of error, in which she maintains that the
circuit court erred in determining that a claim for the breach of the duty of good faith and fair
dealing cannot stand alone. We agree with the circuit court that this Court has “declined to
recognize an independent claim for a breach of the common law duty of good faith. . . .’” Doyle
v. Fleetwood Homes of Virginia, Inc., 650 F. Supp. 2d 535, 541 (S.D.W.Va. 2009) (citing
Highmark W.Va., Inc. v. Jamie, 221 W.Va. 487, 655 S.E.2d 509, 514 (2007)). We, therefore, find
no error in the circuit decision in this regard.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: May 20, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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