IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                    January 2013 Term
                                                  FILED
                                               June 5, 2013
                                               released at 3:00 p.m.
                                               RORY L. PERRY II, CLERK
                       No. 12-0037           SUPREME COURT OF APPEALS
                                                 OF WEST VIRGINIA




          HARTFORD FIRE INSURANCE CO.,
             Defendant Below, Petitioner


                            V.


      MICAH A. CURTIS AND ANGELA L. CURTIS,
             Plaintiffs Below, Respondents



      Appeal from the Circuit Court of Jackson County
                Honorable J.D. Beane, Judge
                 Civil Action No. 08-C-157
                        AFFIRMED



                           AND



                       No. 12-0522



          HARTFORD FIRE INSURANCE CO.,
             Defendant Below, Petitioner


                            V.
              JERRY LEE RHODES AND BONNIE M. COCHRAN
                       Plaintiffs Below, Respondents



                Appeal from the Circuit Court of Kanawha County
                        Honorable James C. Stucky, Judge
                           Civil Action No. 10-C-592
                                  AFFIRMED


                            Submitted: April 17, 2013
                              Filed: June 5, 2013

Thomas V. Flaherty                         Daniel F. Hedges
Flaherty Sensabaugh Bonasso PLLC           Mountain State Justice, Inc.
Charleston, West Virginia                  Charleston, West Virginia
Archibald Wallace, III                     Scott S. Blass
WallacePledger, PLLC                       Bordas & Bordas, PLLC
Richmond, Virginia                         Wheeling, West Virginia
Attorneys for Petitioner Hartford          Attorneys for the Respondents
in case No. 12-0037

Archibald Wallace, III                     Gene W. Bailey, II
Thomas J. Moran                            Jill E. Hall
WallacePledger, PLLC                       Bowles Rice McDavid Graff & Love LLP
Richmond, Virginia                         Charleston, West Virginia
Attorneys for Petitioner Hartford          Attorneys for Amicus Curiae,
in case No. 12-0522                        The Surety & Fidelity Association
                                           of America

JUSTICE DAVIS delivered the Opinion of the Court.

CHIEF JUSTICE BENJAMIN and JUSTICE KETCHUM dissent and reserve the right
to file dissenting opinions.
                              SYLLABUS BY THE COURT



              1.      “A judgment against a principal does not bind the surety conclusively,

as a general rule, but it is prima facie evidence of liability and its extent. If, however, the

instrument binds its makers to abide the result of certain litigation, or to satisfy any judgment

therein, or to indemnify against it, a judgment against the principal is conclusive upon the

sureties, so that they cannot contest the liability, in the absence of fraud or collusion.”

Syllabus point 4, State v. Nutter, 44 W. Va. 385, 30 S.E. 67 (1898).



              2.      The surety on a judgment bond is conclusively bound by a default

judgment entered against its principal, even when the surety did not have notice of the prior

suit against the principal, so long as the judgment is the type of judgment contemplated by

the bond and the surety cannot establish collusion or fraud.



              3.      “Defendants in a civil action against whom a verdict is rendered are

entitled to have the verdict reduced by the amount of any good faith settlements previously

made with the plaintiff by other jointly liable parties. Those defendants against whom the

verdict is rendered are jointly and severally liable to the plaintiff for payment of the

remainder of the verdict. Where the relative fault of the nonsettling defendants has been

determined, they may seek contribution among themselves after judgment if forced to pay

more than their allocated share of the verdict. Syllabus point 7, Board of Education of

                                                i
McDowell County v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796

(1990).



              4.     “‘“Where a payment is made, and release obtained, by one joint

tort-feasor, the other joint tort-feasors shall be given credit for the amount of such payment

in the satisfaction of the wrong.” Point 2, Syllabus, Hardin v. The New York Central

Railroad Company, 145 W. Va. 676[, 116 S.E.2d 697 (1960)].’ Syllabus Point 1, Tennant

v. Craig, 156 W. Va. 632, 195 S.E.2d 727 (1973).” Syllabus point 5, Board of Education of

McDowell County v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796

(1990).




                                              ii
Davis, Justice:

              In these two consolidated cases, Hartford Fire Insurance Co. (hereinafter

“Hartford”) appeals from two separate summary judgment orders entered against it in two

separate cases. Each case involved a bond for which Hartford was the surety. The principals

under the bonds, a mortgage lender and a mortgage broker, are both now defunct. Each bond

principal was sued and failed to file a response to the complaint filed against it, which

resulted in the entry of default judgments in both cases. Hartford was not given notice of

either lawsuit against its principals, or notice that default judgments were being sought.

Hartford was notified of the default judgments only after the same had already been entered,

when the plaintiffs in those cases sought payment under the bonds. In each case, Hartford

ultimately was found liable on the bond notwithstanding Hartford’s lack of notice or an

opportunity to present a defense. On appeal, Hartford asserts that the circuit courts erred in

finding the bonds to be judgment bonds and in holding Hartford liable on the bonds under

the circumstances presented in these cases. In addition, Hartford complains that the Circuit

Court of Kanawha County erred by refusing to grant Hartford credit for a settlement the

plaintiffs reached with other defendants named in the case before that court. For the reasons

set out in the body of this opinion, we conclude that the two bonds at issue in these

consolidated cases are judgment bonds; therefore, the circuit courts correctly found that

default judgments entered against the bond principals are conclusive and binding against

Hartford. We further conclude that the Circuit Court of Kanawha County correctly declined

to grant Hartford credit against a default judgment for a settlement that did not exist at the

                                              1
time the default judgment was entered. Accordingly, both of the instant cases are affirmed.



                                              I.

                     FACTUAL AND PROCEDURAL HISTORY

              For purposes of this opinion, this Court has consolidated two cases that, in part,

raise the same issues. We set forth the relevant facts of each case separately below.



                         A. Appeal No. 12-0037: Curtis History

              Micah A. Curtis and Angela L. Curtis (hereinafter “the Curtises”), residents of

Jackson County, West Virginia, brought the suit underlying the instant dispute that is the

subject of Appeal Number 12-0037. The Curtises had obtained refinancing of the mortgage

on their home from Calusa Investments, LLC (hereinafter “Calusa”), a mortgage lender

licensed and operating in West Virginia. In order to obtain and maintain its license to

conduct business in West Virginia, Calusa was required, under W. Va. Code § 31-17-4

(2002) (Repl. Vol. 2003),1 to obtain a mortgage lender bond. Accordingly, Calusa obtained

a mortgage lender bond from Hartford, the petitioner in this appeal. Hartford was the surety

on the $100,000 mortgage lender bond issued to Calusa as its principal.



              On October 1, 2008, the Curtises filed a complaint against several defendants,



              1
               See infra note 6 for a discussion of W. Va. Code § 31-17-4.

                                              2
including Calusa, in the Circuit Court of Jackson County. The claims made by the Curtises

against Calusa essentially were that Calusa had made certain misrepresentations and taken

certain actions that caused the Curtises to refinance the mortgage on their home on

unfavorable terms. At that time, Hartford was not made a party to the lawsuit and was not

informed of the suit or a potential claim against its principal.



               Calusa apparently had become defunct and failed to respond to the complaint.

Due to Calusa’s failure to respond to the complaint, the Curtises obtained a default judgment

against Calusa in the amount of $99,795.05, plus post-judgment interest. Calusa failed to

satisfy the judgment.      Hartford, as surety on Calusa’s mortgage lender bond, was

subsequently notified, on January 12, 2009, of the Curtises’ claim against Calusa. The

Curtises requested Hartford to satisfy the judgment they had obtained against Calusa. On

March 26, 2010, the circuit court granted leave to the Curtises to file an amended complaint

adding Hartford as a party defendant. Meanwhile, after the entry of default judgment against

it, Calusa attempted to enter the case late, filing motions seeking to have the trial court either

set aside the default judgment or grant Calusa a hearing on the issue of damages. The circuit

court denied both motions and reaffirmed the judgment against Calusa by its orders dated

December 21, 2010, and January 10, 2011.



               The Curtises then filed a motion for partial summary judgment asking the

circuit court to find, as a matter of law, that Hartford was liable for the entirety of the

                                                3
judgment under the terms of the bond it issued to Calusa. Hartford opposed the motion on

the grounds that it had not been notified of the action against Calusa and that it had been

denied an opportunity to present defenses or challenge the amount of damages claimed.

Following arguments on the motion, the circuit court entered an order, on July 13, 2011,

granting partial summary judgment in favor of the Curtises and finding Hartford was

obligated to satisfy the default judgment awarded against Calusa. In this regard, the circuit

court examined the language of the bond and concluded that said language

              clearly establishes that the condition that the Plaintiffs needed
              to satisfy in this case is a judgment against Calusa involving
              conduct violating the provisions of Article 17, Chapter 31 of the
              West Virginia Code. There is no other language in the Bond to
              indicate that the Plaintiffs should first be required to try their
              case against Calusa, determine if Calusa will pay any judgment
              obtained, and then, upon Calusa’s failure to pay such a
              judgment, try their case a second time against Hartford. Instead,
              the Bond provides that once the Plaintiffs obtain a judgment
              against Calusa, they can proceed against the Bond and Hartford,
              as surety on the bond, is obligated to pay the judgment as it
              contracted.

The circuit court entered a “Final Judgment Order Regarding Count IV of the Complaint”

on December 5, 2011, in which it awarded final judgment in favor of the Curtises against

Hartford in the amount of $99,795.05 plus accrued statutory interest. The circuit court

included in the order the appropriate language rendering the judgment final and appealable

to this Court in accordance with Rule 54(b) of the West Virginia Rules of Civil Procedure.




                                              4
It is from this order that Hartford appeals.2 Finding commonality in the issues herein raised

and those raised in the case of Hartford v. Jerry Lee Rhodes and Bonnie M. Cochran, Appeal

Number 12-0522, we have consolidated the two cases for purposes of our review.



                  B. Appeal Number 12-0522: Rhodes/Cochran History

              The suit underlying the dispute in this case was brought by Jerry Lee Rhodes,

the sole owner of real property at issue in the case, and Bonnie M. Cochran, Mr. Rhodes’

former live-in girlfriend (hereinafter collectively referred to as “Rhodes/Cochran”), against

Equity South Mortgage, LLC (“Equity South”), and others. Equity South was a residential

mortgage broker licensed to operate a mortgage brokering business in West Virginia. To

obtain and maintain its license to conduct business in West Virginia, Equity South was

required to obtain a mortgage broker bond pursuant to W. Va. Code § 31-17-4.3

Accordingly, Equity South obtained a mortgage broker bond from Hartford, the petitioner

in this appeal. Hartford was the surety on the $50,000 mortgage broker bond issued to

Equity South as principal.



              On March 3, 2008, Rhodes/Cochran filed their suit against Equity South and


              2
               Also appearing before the Court in this proceeding is the Surety and Fidelity
Association of America as Amicus Curiae in support of Hartford’s position in this case. We
appreciate the appearance of Amicus Curiae and will consider its arguments in conjunction
with those of Hartford.
              3
               See infra note 6 for a discussion of W. Va. Code § 31-17-4.

                                             5
others in the Circuit Court of Putnam County, West Virginia, seeking damages in connection

with two allegedly oppressive home improvement loans brokered by Equity South

(hereinafter “the Putnam County case”).4 Rhodes/Cochran alleged, in relevant part, that

Equity South had obtained an inflated appraisal of the home, misrepresented critical facts in

writing the loan, and engaged in other improper and predatory lending practices. Hartford

was not made a party to the lawsuit and was not, at that time, informed of the suit or a

potential claim against its principal, Equity South.



              Equity South apparently had become defunct and failed to file a response to

the complaint. Due to Equity South’s failure to respond to the complaint, Rhodes/Cochran

obtained a default judgment against Equity South, on October 14, 2008, in the amount of

$56,300 plus post-judgment interest.5 Claims against the other defendants in the case

remained pending for resolution. Equity South failed to satisfy the judgment.



              Thereafter, Rhodes/Cochran presented Hartford with a claim for payment under


              4
               Plaintiff Jerry Lee Rhodes owns and resides in the home against which the two
loans were secured. Plaintiff Bonnie M. Cochran moved out of the home in 2006 when her
relationship with Mr. Rhodes ended. Ms. Cochran does not hold an interest in the property
at issue and never has. However, it was alleged in the Putnam County case that Equity South
misrepresented that Ms. Cochran was an owner of the home for purposes of including her as
a debtor on the home improvement loans.
              5
             The circuit court’s order states that the default judgment was for the amount
of $50,000; however, both parties to this appeal agree that the amount of the default
judgment was $56,300.

                                              6
the mortgage broker bond issued to Equity South. Hartford refused to pay, and, on March

29, 2010, Rhodes/Cochran filed their complaint against Hartford in the case sub judice in the

Circuit Court of Kanawha County, West Virginia (hereinafter “the Kanawha County case”).

Hartford filed its answer to the complaint in May 2010, and no further action was taken in

the case for some time. Meanwhile, Rhodes/Cochran pursued settlement with the remaining

defendants in the Putnam County case. On August 4, 2010, Rhodes/Cochran entered into a

formal settlement agreement with some of the remaining defendants in the Putnam County

case. Under the terms of the settlement, the settling defendants agreed to (1) void the loan,

(2) release the deed of trust on the real property owned by Plaintiff Rhodes, and (3) delete

the trade line for the account to cure all negative credit reporting against Rhodes/Cochran

relating to their default under the loan.



              On December 19, 2011, Rhodes/Cochran filed a motion for summary judgment

in the Kanawha County case asking the circuit court to hold Hartford, as surety on the Equity

South mortgage broker bond, liable for the default judgment entered against Equity South

in the Putnam County case. Hartford opposed the motion on the grounds that it had not been

notified of the Putnam County case against Equity South and that it had been denied an

opportunity to present defenses or challenge the amount of damages claimed. Following

arguments on the motion, the circuit court ultimately granted summary judgment in favor of

Rhodes/Cochran, by final order entered on March 27, 2012, and entered judgment against

Hartford in the amount of $50,000, which represented the amount of the bond. In reaching

                                             7
this conclusion, the circuit court found that the bond was a judgment bond and observed that,

“[u]nder West Virginia law, a surety on a judgment bond is conclusively obligated to pay any

judgment rendered against the principal.” (Citation omitted). In addition, the circuit court

denied Hartford’s request for a credit against the judgment in an amount equal to the funds

paid in settlement by some of the defendants in the Putnam County case. It is from this order

that Hartford now appeals. Finding common issues in this case and the case of Hartford v.

Curtis, Appeal Number 12-0037, we have consolidated the two cases for purposes of our

review.



                                              II.

                                STANDARD OF REVIEW

              The instant consolidated cases are both before this Court on appeals from

circuit court orders granting summary judgment in favor of the plaintiffs in the actions below.

Therefore, our review is de novo. “A circuit court’s entry of summary judgment is reviewed

de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). This Court

has further explained that “[w]hen undertaking our plenary review, we apply the same

standard for granting summary judgment as would be applied by a circuit court.” Subcarrier

Commc’ns, Inc. v. Nield, 218 W. Va. 292, 296, 624 S.E.2d 729, 733 (2005). Accordingly,

we observe that

                      “‘[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

                                               8
               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, 192 W. Va. 189, 451 S.E.2d 755. Finally, we note that “[t]he 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.” Syl. pt.

3, id. With these standards in mind, we now address the issues raised in these consolidated

appeals.



                                               III.

                                        DISCUSSION

               Hartford, who is the surety on the two bonds at issue (hereinafter “the Hartford

bonds”), challenges the circuit courts’ rulings requiring it to pay default judgments rendered

against its principals when Hartford was not provided notice of the claims against the

principals until after the judgments were rendered. To resolve this issue, it is necessary to

first ascertain whether the Hartford bonds were judgment bonds, as determined by the circuit

courts, or in the nature of performance bonds, as characterized by Hartford. After making

this determination, we will resolve the question of whether Hartford was entitled to notice

of the proceedings against its principals. Finally, we will address the issue of whether

Hartford is entitled to a credit equal to the amount of a settlement reached with some of the

defendants in the Rhodes/Cochran litigation.


                                                9
                                     A. Type of Bonds

              In order to resolve the central issue in this case, we first determine whether the

bonds issued by Hartford were judgment bonds. In this regard, it has been explained that

                      [t]he type of bond involved is not material unless it is an
              injunction or judgment bond. With this type of bond, the surety
              is obligating itself to pay a particular judgment rendered against
              a principal, even though the surety had no notice, so long as the
              judgment is one within the purview of the agreement between
              surety and principal. 74 Am. Jur. 2d Suretyship § 153 (1974).
              See also 46 Am. Jur. 2d Judgments § 553 (1969). In a judgment
              or injunction bond, the judgment against the principal is
              conclusive against the surety if it is free of fraud and collusion.
              74 Am. Jur. 2d Suretyship § 153 (1974).

Ohio Cas. Ins. Co. v. Kentucky Natural Res. & Envtl. Prot. Cabinet, 722 S.W.2d 290, 292

(Ky. Ct. App. 1986).



              Hartford argues, essentially, that the surety in a judgment bond explicitly grants

the right to recover against the bond immediately upon a judgment against the principal.

Hartford urges that the clear language of the bonds establishes that Hartford never agreed to

pay unquestioningly any judgment rendered against its principals. Hartford claims that the

obligation it bonded was the principals’ compliance with state laws, rules, and orders relating

to mortgage lenders, and the principals’ payment of any moneys due to the State or persons

designated by the State pursuant to a lawsuit brought by the Commissioner of Banking.

Thus, Hartford argues, the bonds are in the nature of performance bonds. Directing this


                                              10
Court’s attention to State v. Myers, 74 W. Va. 488, 82 S.E. 270 (1914), a case involving a

judgment bond, Hartford submits that, while the Myers opinion does not quote language from

the bond therein being considered, the deciding factor in the case was that the surety

“expressly stipulated” that paying a judgment or fine “shall be the condition of his bond.”

State v. Myers, 74 W. Va. at 492, 82 S.E. at 272.



              Respondents, the Curtises and Rhodes/Cochran (hereinafter collectively

referred to as “Respondents”), note that, through a performance bond, the surety guarantees

the performance of an underlying contract. A judgment bond, on the other hand, is one in

which the surety agrees to be liable for a judgment based on a specific violation covered by

the bond. Respondents argue that the language used in the instant bonds demonstrates that

Hartford agreed to be liable for judgments based upon its principals’ violations of “Article

17, Chapter 31, of the Code of West Virginia.” Thus, Respondents contend, the language of

the bonds issued by Hartford is clear in expressing that the bonds are, in fact, judgment

bonds.



              In conducting our analysis, we are mindful that “[t]he liability of a surety is

generally measured by his or her contract or bond.” 72 C.J.S. Principal and Surety § 81 at

222 (2005) (footnotes omitted). See In re Microwave Prods. of Am., Inc. 118 B.R. 566, 570

(W.D. Tenn. 1990) (“The liability of the surety is measured by the terms of his contract.”

(citation omitted)); State ex rel. Duckett v. Pettee, 50 N.C. App. 119, 121, 273 S.E.2d 317,

                                             11
319 (1980) (“The principal and his surety are liable under a contract expressed in definite

terms and their liability cannot be carried beyond the fair meaning of those terms.” (internal

quotations and citation omitted)). In addition, consideration should be given to the statute

requiring the bond: “The scope of a statutorily required surety bond is determined by the

language and purpose of the bond and the terms of the statute it is given under.” 72 C.J.S.

Principal and Surety § 82 at 223.



              To identify the type of bonds that were issued by Hartford, we will contrast

judgment bonds with performance bonds, insofar as Hartford has argued that the Hartford

bonds are in the nature of performance bonds.



              A judgment bond has been described as a bond “‘in which the surety agrees to

be liable for a judgment based on a specific statutory violation covered by the bond.’

Lawyers Sur. Corp. v. Riverbend Bank, N.A., 966 S.W.2d 182, 188 (Tex. App.-Fort Worth

1998, no pet.).” Old Republic Sur. Co. v. Bonham State Bank, 172 S.W.3d 210, 214 (Tex.

Ct. App. 2005). See also Ohio Cas. Ins. Co. v. Kentucky Natural Res. & Envtl. Prot.

Cabinet, 722 S.W.2d at 292 (explaining that “judgment bond” is a bond in which “the surety

is obligating itself to pay a particular judgment rendered against a principal, even though the

surety had no notice, so long as the judgment is one within the purview of the agreement

between surety and principal. 74 Am. Jur. 2d Suretyship § 153 (1974).”).



                                              12
              A performance bond, on the other hand, has been defined as: “1. A bond given

by a surety to ensure the timely performance of a contract. . . . 2. A third party’s agreement

to guarantee the completion of a construction contract upon the default of the general

contractor. Also termed completion bond; surety bond; contract bond.” Black’s Law

Dictionary 1158 (7th ed. 1999).



              Both of the Hartford bonds6 utilized a mandatory bond form prepared by the

West Virginia Commissioner of Banking.7 The bonds are basically identical and state:

                     THE CONDITION OF THE ABOVE OBLIGATION IS
              SUCH THAT; WHEREAS, the above bound principal, in
              pursuance of the provisions of Article 17, Chapter 31, of the
              Code of West Virginia, as amended, (hereinafter the “Act”) has
              obtained, or is about to obtain, from the Commissioner of


              6
               The principals on the two bonds were required by law to obtain the same prior
to being issued a license to conduct their business in West Virginia. W. Va. Code § 31-17-4
(2002) (Repl. Vol. 2003) is the version of the statute in effect at the time the Hartford bonds
were issued. While the statute has been amended over the years, the past and current
versions of W. Va. Code § 31-17-4 still require license applicants to “[f]ile with the
commissioner a bond in favor of the state for the benefit of consumers.” See W. Va. Code
§ 31-17-4(b)(3) (2002) (Repl. Vol. 2003) (requiring bond in connection with application for
lender’s license); W. Va. Code § 31-17-4(c)(3) (2002) (Repl. Vol. 2003) (requiring bond in
connection with application for broker’s license); W. Va. Code § 31-17-4(e)(3) (2010) (Supp.
2012) (requiring bond in connection with application for lender’s license); W. Va. Code §
31-17-4(f)(3) (2010) (Supp. 2012) (requiring bond in connection with application for
broker’s license).
              7
               Because Hartford did not draft the bond, in considering its terms we will not
apply the general rule that “when the surety is a corporation and supplies bonds for a
consideration, the courts will construe the obligations of the bond most strongly against the
surety. See, Hicks v. Randich, 106 W. Va. 109, 144 S.E. 887 (1928).” Cecil I. Walker Mach.
Co. v. Stauben, Inc., 159 W. Va. 563, 567-68, 230 S.E.2d 818, 820 (1976).

                                              13
              Banking of the State of West Virginia, a license to conduct a
              Mortgage Lender[/Broker] business.

                     NOW, THEREFORE, if the said principal [specific
              principal named here] shall conform to and abide by the
              provisions of said Act and of all rules and orders lawfully made
              or issued by the Commissioner of Banking thereunder, and shall
              pay to the State and shall pay to any such person or persons
              properly designated by the State any and all moneys that may
              become due or owing to the State or to such person or persons
              from said obligor in a suit brought by the Commission on their
              behalf under and by virtue of the provisions of said Act, then
              this obligation shall be void, otherwise it shall remain in full
              force and effect. If any person shall be aggrieved by the
              misconduct of the principal, he may upon recovering judgement
              [sic] against such principal issue execution of such judgement
              [sic] and maintain an action upon the bond of the principal in
              any court having jurisdiction of the amount claimed, provided
              the Commissioner of Banking assents thereto.

(Emphasis added).



              The above-quoted language from the bonds requires, as Hartford contends, that

the principals comply with Article 17, Chapter 31, of the West Virginia Code, which is

known as the Mortgage Lender, Broker, and Servicer Act, and pay money due to the State

or persons designated by the State under circumstances outlined in the bonds. Relevant to

the instant cases, however, and as also quoted above, the bonds go on to specify that an

aggrieved person “may upon recovering judgement [sic] against such principal issue

execution of such judgement [sic] and maintain an action upon the bond of the principal[.]”

(Emphasis added). Thus, the language of the Hartford bonds grants an aggrieved person who

has obtained a judgment against the principal the right to execute said judgment through an

                                            14
action upon the bond.8 Reading this plain language in light of the definition of a judgment

bond quoted above, it is clear that the Hartford bonds are judgment bonds.9 The foregoing

bond language plainly demonstrates that Hartford has “agree[d] to be liable for a judgment

based on a specific statutory violation covered by the bond,” i.e., a violation of the West



              8
                In arguing the Hartford bonds are not judgment bonds, Hartford places
significance on the fact that the bonds require an aggrieved person to “maintain an action
upon the bond.” We find this argument unpersuasive. An action on the bond would provide
Hartford an opportunity to adjudicate the potential existence of collusion or fraud, or to
challenge whether its principal’s conduct violated a condition of the bond. See Syl. pt. 4, in
part, State v. Nutter, 44 W. Va. 385, 30 S.E. 67 (1898) (holding, for purposes of a judgment
bond, that “a judgment against the principal is conclusive upon the sureties, so that they
cannot contest the liability, in the absence of fraud or collusion” (emphasis added)). See also
Ohio Cas. Ins. Co. v. Kentucky Natural Res. & Envtl. Prot. Cabinet, 722 S.W.2d 290, 292
(Ky. Ct. App. 1986) (“In a judgment or injunction bond, the judgment against the principal
is conclusive against the surety if it is free of fraud and collusion.” (emphasis added; citation
omitted)); Old Republic Sur. Co. v. Reyes, No. 05-01-01881-CV, 2002 WL 1772976, at *3
(Tex. Ct. App. Aug. 2, 2002) (“[A] surety may contest in litigation based on a claim on a
judgment bond whether the principal’s conduct violated a condition of the bond and whether
the judgment was obtained by fraud or collusion.” (citation omitted)).
              9
               Where contractual language is plain, it must be applied without construction:

                     “A valid written instrument which expresses the intent of
              the parties in plain and unambiguous language is not subject to
              judicial construction or interpretation but will be applied and
              enforced according to such intent.” Syl. pt. 1, Cotiga
              Development Company v. United Fuel Gas Company, 147
              W. Va. 484, 128 S.E.2d 626 ([1962]).

Syl. pt. 1, Sally–Mike Props. v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985). In other
words, “[i]t is not the right or province of a court to alter, pervert or destroy the clear
meaning and intent of the parties as expressed in unambiguous language in their written
contract or to make a new or different contract for them.” Syl. pt. 3, Cotiga Dev. Co. v.
United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962).


                                               15
Virginia Mortgage Lender, Broker, and Servicer Act. Old Republic Sur. Co. v. Bonham State

Bank, 172 S.W.3d at 214 (internal quotations and citation omitted).



              In addition, we find the Hartford bond language to be similar to the statutory

language that applied to the bond that was described as a judgment bond in State v. Myers

74 W. Va. 488, 82 S.E. 270. The bond in Myers was required by the West Virginia Code of

1913, sec. 1144 (ch. 32, para. 28), which stated, in relevant part, that

                     No county or license court nor town council shall
              authorize the issuing of any license to sell spirituous
              liquors . . . until the applicant shall have given bond with good
              security . . . in the penalty of at least [$3,500], conditioned that
              he will not permit any person to drink to intoxication on any
              premises under the control of such applicant; and will not
              knowingly sell or furnish any intoxicating drink to any person
              who is intoxicated at the time, or who is known to him to have
              the habit of drinking to intoxication, or whom he knows, or has
              reason to believe, is under the age of twenty-one years, and that
              he will not sell or furnish such drink to any person on Sunday;
              and with the further condition, that he will pay all such damages
              and costs as may be recovered against him by any person under
              any of the provisions of chapter thirty-two of the code of West
              Virginia, as amended. And such applicant and his securities in
              said bond shall be liable, in a suit or suits thereon, for the fine
              and costs which may be recovered against him for any offence
              under this chapter which is a violation of any of the conditions
              of said bond, as well as for the damages hereinbefore provided
              for, until the penalty of such bond is exhausted.

Much like the Hartford bonds, the statute requiring the bond at issue in Myers stated that the

bond would be conditioned upon the principal’s compliance with the statutory provisions

relating to the sale of intoxicating drink, which included the condition that the principal


                                              16
would pay “all such damages and costs as may be recovered against him by any person under

any of the provisions” of the referenced code. Also similar to the Hartford bonds, the statute

goes on to require that “such applicant and his securities in said bond shall be liable, in a suit

or suits thereon, for the fine and costs which may be recovered against him for any offence

under this chapter which is a violation of any of the conditions of said bond[.]” As will be

discussed in more detail below, the Myers Court observed that the surety on a judgment bond

is bound by a judgment against its principal. Thus, by treating the bond at issue in that case

as a judgment bond, the Myers Court clearly did not consider the foregoing language holding

the principal and his surety liable “in a suit or suits” for damages that may be recovered

against the principal as making the bond anything other than a judgment bond.10



               Furthermore, we note that other courts interpreting similar language have

reached the same result. For example, the Supreme Court of Texas addressed the question

of whether a particular bond was a general undertaking bond or a judgment bond in Howze

v. Surety Corp. of America, 584 S.W.2d 263 (Tex. 1979). The Howze court determined that

the bond was a judgment bond in which the surety agreed “to be liable for a judgment against

the principal.” Howze, 584 S.W.2d at 265. The bond at issue in Howze stated: “‘[the

principal and surety are] firmly bound unto THE STATE OF TEXAS in the sum of

$25,000.00 dollars payable at Austin, Travis County, Texas for the use by a consumer, the



               10
                 Compare note 8, supra.

                                               17
State, or any political subdivision thereof who establishes liability against a dealer for

damages, penalties, or expenses . . . .’” Id. (latter emphasis added). In concluding that this

language created a judgment bond, the Howze court reasoned that

              [t]he Act and bond both state specifically that the surety is not
              liable until the State, political subdivision or consumer
              establishes liability. It is implicit that one establishes liability
              by obtaining a judgment in a court of competent jurisdiction. A
              consumer can only make a claim upon the surety when he has
              obtained a judgment against the principal, or when he sues them
              together in the same suit. These bonds are, therefore, judgment
              bonds; and the surety is bound despite the fact that it was neither
              notified nor joined as a party.

Id. (footnote omitted). See also Axess Int’l, Ltd. v. Intercargo Ins. Co., 183 F.3d 935, 940

(1999) (finding bond was judgment bond based on language stating that “the condition of this

obligation is that the penalty amount of this bond [$50,000] shall be available to pay any

judgment for damages against the Principal arising from the Principal’s transportation related

activities” (internal quotations omitted)).



              Having found that the Hartford bonds are judgment bonds,11 we find no error


              11
                Hartford also has argued that the Commissioner of Banking had no authority
to require a judgment bond insofar as a judgment bond ignores a surety’s rights under
W. Va. Code § 45-1-3 (1923) (Repl. Vol. 2010) to notice of a proceeding before a judgment
arising therefrom is binding on said surety, or, in the absence of such notice, an opportunity
to present defenses its surety would have had. We find this argument to be without merit.
The statute directing the Commissioner of Banking to prepare a bond form to be used by
mortgage lender and mortgage broker license applicants simply states that the “[a]pplication
for a lender’s or broker’s license shall each year be submitted in writing under oath, in the
form prescribed by the commissioner . . . .” W. Va. Code § 31-17-4(a) (2002) (Repl. Vol.
                                                                                 (continued...)

                                              18
in the findings of the circuit courts of Jackson and Kanawha Counties reaching the same

conclusion.



                                 B. Right to Assert Defenses

               Hartford additionally submits that, because it did not receive notice of the

actions against its principals, the circuit courts further erred in concluding that it was

automatically responsible for paying the default judgments rendered against said principals.

Hartford contends that, in the absence of notice, the default judgments are not binding against

it and that it is entitled to present any defense that would have been available to its principals

pursuant to W. Va. Code § 45-1-3 (1923) (Repl. Vol. 2010). Hartford acknowledges that the

case of State v. Myers, 74 W. Va. 488, 82 S.E. 270, created an exception to W. Va.

Code § 45-1-3. Nevertheless, Hartford argues that Myers created a narrow exception that

should be applied only where the surety explicitly grants the right to recover against the bond



               11
                (...continued)
2003) (emphasis added). Accord W. Va. Code § 31-17-4(e)(3) (2010) (Supp. 2012)
(requiring mortgage lender license applicant to “file with the commissioner a bond . . . in a
form and with conditions as the commissioner may prescribe” (emphasis added));
W. Va. Code § 31-17-4(f)(3) (2010) (Supp. 2012) (applying same requirement to mortgage
broker license applicant). The foregoing statutes specifying that the Banking Commissioner
prepare a bond form places no limitations on the Commissioner’s authority to prescribe the
terms applicable to said bonds, and are more specific to the Commissioner’s authority than
W. Va. Code § 45-1-3. See Syl. pt. 6, Carvey v. West Virginia State Bd. of Educ., 206
W. Va. 720, 527 S.E.2d 831 (1999) (“The general rule of statutory construction requires that
a specific statute be given precedence over a general statute relating to the same subject
matter where the two cannot be reconciled.” (internal quotations and citations omitted)). For
further treatment of W. Va. § 45-1-3, see Section III. B., infra.

                                               19
immediately upon a judgment against the principal.



              Respondents argue that the circuit courts properly declined to apply W. Va.

Code § 45-1-3, which is a general statute governing sureties, guarantors, indorsers, and

others who may be secondarily liable for a debt. Respondents assert that the circuit courts

were correct in concluding that they had satisfied the condition of the bond by obtaining

default judgments against Hartford and, therefore, that they were entitled to judgment against

Hartford. Respondents rely on State v. Myers for the proposition that the protections of

W. Va. Code § 45-1-3 do not apply to judgment bonds. According to Respondents, obtaining

a judgment in the absence of fraud or collusion is the only requirement for collecting on a

judgment bond.



              Our analysis of this issue is simplified by the fact that we have identified the

Hartford bonds as judgment bonds. Thus, the issue for our resolution is whether the surety

on a judgment bond who does not receive notice of an action prior to the entry of a default

judgment against its principal is obligated to pay the judgment without the opportunity to

present defenses that would have been available to its principal.



              The statute upon which Hartford bases its claim of entitlement to present

defenses that would have been available to its principals is W. Va. Code § 45-1-3, which

states:

                                             20
                      Whether the surety, guarantor or indorser (or his
               committee or personal representative) shall have given notice as
               provided in the first section of this article or not, no judgment,
               decree or recovery rendered, entered, or had in any suit, action,
               prosecution or proceeding, to which the surety, guarantor or
               indorser (or his committee or personal representative) was not
               a party regularly served with process, shall be in any wise
               binding on such surety, guarantor or indorser (or his committee
               or personal representative), and, notwithstanding such decree,
               judgment or recovery, the surety, guarantor or indorser (or his
               committee or personal representative) shall be allowed to make
               any such defense in any action, suit or proceeding instituted
               against him, as could have been made in the suit in which such
               decree, judgment or recovery was had.



               As Hartford has acknowledged, this Court recognized an exception to W. Va.

Code § 45-1-3 in State v. Myers, 74 W. Va. 488, 82 S.E. 270. The Myers Court interpreted

an earlier version of W. Va. Code § 45-1-3 that also contained the language requiring notice

to a surety before it could be bound by a judgment, and further allowing a surety who had

not received notice to assert any defense that could have been made in the suit that resulted

in the judgment.12 Based upon its analysis of that statute, the Myers Court concluded that the

Legislature had not intended the statute to apply to judgment bonds. In this regard, the Court

stated that,

               [p]rior to this statute, the surety on a bond, conditioned to pay
               any judgment that might be recovered against his principal, was
               bound by the judgment when so recovered. The judgment
               against the principal bound the surety, in the absence of fraud,


               12
               See Chapter 37, Acts 1907. See also State v. Myers, 74 W. Va. 488, 490-91,
82 S.E. 270, 271 (quoting Chapter 37, Acts 1907).

                                              21
              and determined his liability. State v. Nutter, 44 W. Va. 385[, 30
              S. E. 67 (1898)], and State[, to Use of Beard] v. Abbott, 63 W.
              Va. 189[, 61 S. E. 369 (1907)]. We think this is still the law.

Myers, 74 W. Va. at 491, 82 S.E. at 271. Thus, under the Myers decision, judgment bonds

are not subject to W. Va. Code § 45-1-3. If the West Virginia Legislature had disagreed with

the opinion, it could have amended the statute to plainly include judgment bonds. The

Legislature has made no such amendment. Therefore, the traditional rule stands:

                      A judgment against a principal does not bind the surety
              conclusively, as a general rule, but it is prima facie evidence of
              liability and its extent. If, however, the instrument binds its
              makers to abide the result of certain litigation, or to satisfy any
              judgment therein, or to indemnify against it, a judgment against
              the principal is conclusive upon the sureties, so that they cannot
              contest the liability, in the absence of fraud or collusion.

Syl. pt. 4, State v. Nutter, 44 W. Va. 385, 30 S.E. 67 (1898) (second emphasis added). In

adopting this rule, the Nutter Court explained that if a bond “undertakes to pay such

judgment as may be recovered, that judgment is conclusive, because that judgment is the

event on the happening of which the surety agrees to pay.” 44 W. Va. at 389, 30 S.E. at 69.

See also State, to Use of Beard v. Abbott, 63 W. Va. 189, 193, 61 S.E. 369, 371 (1907) (“This

bond not only covenants for faithful discharge of duties according to the decree, but it

contains the additional covenant that the receiver should pay over all moneys that might

come to his hands by virtue of the decree as the court shall direct. It contains both

covenants. . . . [T]he authorities are overwhelming, and almost without exception, that upon

such a bond as we have in hand the judgment is conclusive.”).



                                              22
               The foregoing cases are dissimilar from the instant actions insofar as none of

them have involved a default judgment. Thus, we must also decide whether the general rule

that sureties on judgment bonds are bound by judgments rendered against their principals is

applicable to default judgments. While the question is novel for this Court, it has been

resolved in other jurisdictions that have concluded that the rule does apply to default

judgments. See Axess Int’l, Ltd. v. Intercargo Ins. Co., 183 F.3d at 940 (“Generally, a default

judgment obtained by an obligee against a principal obligor does not have preclusive effect

in a subsequent action against a secondary obligor. See Restatement (Third) of Suretyship

and Guaranty § 67(3). Where a judgment bond is involved, however, such as the one at issue

here, a different rule applies: ‘Where the very condition of the bond is the performance of

a judgment against the principal, or that the surety will pay all damages that may be awarded

in an action brought against the principal, . . . there is no question as to the conclusiveness,

as against the surety, of a judgment against the principal, if binding upon the latter and free

from fraud and collusion, assuming, of course, that it is the kind of judgment contemplated

by the surety’s undertaking.’ 74 Am. Jur. 2d Suretyship § 153 (1974).” (footnote omitted));

Sargeant v. Starr, 102 Ga. App. 453, 459, 116 S.E.2d 633, 637 (1960) (“It is well settled,

beginning with Jackson v. Guilmartin, 61 Ga. 544 [(1878)], that the surety is bound by the

judgment entered against the principal on the bond. And this is so where the judgment

rendered was with the consent of the principal. . . . Such a bail or security takes the fortunes

of his principal, and is bound equally with him by the judgment in the main action. . . . The

bail can no more go behind the judgment, or attack it, by affidavit of illegality, after it is duly

                                                23
entered up against both, than can the principal.” (internal quotations and citations omitted));

Martiniello v. Robitaille, 293 Mass. 200, 202, 199 N.E. 534, 535 (1936) (“The judgment in

the original action against the principals on the bond, though obtained by default, being ‘the

final judgment in said action,’ . . . and having been entered in the lawful exercise of the

power of the court, . . . was conclusive on the sureties, by reason of their contract with the

plaintiffs.” (emphasis added)); R & L Lumber Co. v. Summit Fid. & Sur. Co., 284 Minn. 489,

494, 170 N.W.2d 594, 598 (1969) (“It is clear, however, that where a surety has undertaken

to pay ‘any judgment rendered’ in an action, the surety has neither a right to notice of such

an action or a right to reopen a judgment entered against its principal, even though it was

obtained by consent or default.”); Valencich v. TMT Homes of Oregon, Inc., 193 Or. App.

47, 55, 88 P.3d 300, 303 (2004) (holding surety liable for default judgment against principal

obtained in an action in which the surety was neither named as a party nor served, and

commenting that “Oregon endorses the traditional rule followed by a majority of

jurisdictions, discussion of which is found in Suretyship, 74 Am. Jur. 2d 115–16, §§ 129, 130

(2001): ‘Generally, where the liability of a surety is dependent on the outcome of litigation

in which his principal is involved, a judgment against the principal is binding and conclusive

on the surety, who may not interpose defenses which should have been set up in the action

in which the judgment was recovered. When the obligation of the principal has been

determined, the extent of the liability on the bond becomes fixed; the sureties on the bond

are not entitled to relitigate, separately, the question of the principal’s obligation, at least in

the absence of a charge of fraud or collusion.’”); Ward v. Federal Ins. Co., 233 S.C. 561,

                                                24
564-65, 106 S.E.2d 169, 170 (1958) (finding default judgment conclusive against surety and

observing that, “‘[a]s a general rule, in all cases where the liability of a surety is dependent

on the outcome of litigation in which his principal is or may be involved, a judgment against

the principal is binding and conclusive on the surety, and the surety may not interpose

defenses which should or might have been set up in the action in which the judgment was

recovered, or require proof of the facts on which the judgment rests, or attack the validity of

the judgment, except for fraud or collusion or want of jurisdiction. The rule is applicable

even though the surety had no notice of the suit or opportunity to defend[.]’” (quoting 72

C.J.S. Principal and Surety § 261 at 706)); Old Republic Sur. Co. v. Bonham State Bank, 172

S.W.3d at 214 (“Whether a default judgment is conclusive of the surety’s liability or only

prima facie evidence depends on what type of bond is at issue. . . . [I]f the bond is a

judgment bond, the Texas Supreme Court has held that a surety is bound by the default

judgment against the principal even if the surety did not have notice of the prior suit against

the principal absent proof of collusion or fraud.” (footnote omitted)).



                With regard to the fairness of the rule, the Supreme Court of Minnesota has

observed that

                       [t]his rule is not unfair to the surety. Assuming a surety
                pays a judgment pursuant to its bond under a contract to pay any
                judgment upon default by its principal, it is subrogated to
                whatever rights the judgment creditor had against its principal.
                Carr Hdwe. Co. v. Chicago Bonding & Surety Co., 190 Iowa
                1320, 181 N.W. 680 [(1921)]; Western Cas. & Surety Co. v.
                Meyer, 301 Ky. 487, 192 S.W.2d 388, 164 A.L.R. 769 [(1946)].

                                               25
              See, Anchor Cas. Co. v. Bird Island Produce, Inc., 249 Minn.
              137, 82 N.W.2d 48 [(1957)]; Hartford Acc. & Ind. Co. v. Dahl,
              202 Minn. 410, 278 N.W. 591 [(1938)]. Consequently, the
              surety, upon payment of the judgment, may seek reimbursement
              from its principal. It is only equitable that the surety which has
              contracted to pay any judgment, rather than the judgment
              creditor who relied on the bond, should be burdened with the
              expense and risk of such an action.

                      To protect itself against an insolvent principal, a surety
              can and usually does require the principal to post collateral up
              to the full amount of the bond. In this case, defendant took [its
              principal’s] stock as collateral. Obviously this was not a prudent
              choice in view of the fact that [its principal] is now insolvent
              and the stock is quite likely worthless. It is not because of any
              act of plaintiff that defendant is not fully protected and finds
              itself in no better position than a general creditor of [its
              principal] on its subrogation claim. Had defendant required [its
              principal] to post sufficient collateral, its effort to intervene in
              [its principal’s] dispute with plaintiff would have been
              unnecessary.

R & L Lumber Co. v. Summit Fid. & Sur. Co., 284 Minn. at 495-96, 170 N.W.2d at 598-99.



              Based upon the foregoing discussion, we now expressly hold that the surety

on a judgment bond is conclusively bound by a default judgment entered against its principal,

even when the surety did not have notice of the prior suit against the principal, so long as the

judgment is the type of judgment contemplated by the bond and the surety cannot establish

collusion or fraud.



              Applying this holding to the instant consolidated cases, we conclude that

Hartford, as surety on the two judgment bonds at issue, is conclusively bound by the default

                                              26
judgments entered against its principals. Accordingly, the circuit courts in both of these

cases properly granted summary judgment in favor of the respective plaintiffs as to this issue.



                                 C. Credit for Settlements

              As an additional issue in only the case involving the Rhodes/Cochran plaintiffs,

Appeal Number 12-0522, Hartford assigns error to the circuit court’s refusal to grant

Hartford a credit equal to the amount of settlements that plaintiffs received from other

defendants.



              In this regard, Hartford argues that the circuit court erred in holding that a

surety and its principal are not entitled to a setoff or credit against a judgment rendered

against the principal despite the fact that the plaintiffs have already received one full

recovery for their alleged injury. Hartford notes that the plaintiffs are entitled to only one

satisfaction for their alleged injury. As a result of the settlement agreement with other

defendants named in the action below, Rhodes/Cochran’s loan was voided, the deed of trust

on the property was released, and the trade line for the account was deleted for the purposes

of reporting to credit bureaus. Thus, Hartford contends that if the plaintiffs obtain an

additional recovery of $50,000 from Hartford, they will receive a windfall.



              Respondents argue that Syllabus point 7 of Board of Education of McDowell

County v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990), makes

                                              27
clear that, in order to obtain a credit, a settlement must be entered prior to the judgment:

                      Defendants in a civil action against whom a verdict is
              rendered are entitled to have the verdict reduced by the amount
              of any good faith settlements previously made with the plaintiff
              by other jointly liable parties. Those defendants against whom
              the verdict is rendered are jointly and severally liable to the
              plaintiff for payment of the remainder of the verdict. Where the
              relative fault of the nonsettling defendants has been determined,
              they may seek contribution among themselves after judgment if
              forced to pay more than their allocated share of the verdict.

(emphasis added). Respondents Rhodes/Cochran note that they settled with some of the

remaining defendants nearly two years after the default judgment was entered against

Hartford’s principal, Equity South.



              This issue is easily resolved. We have explained earlier in this opinion that,

because the bond issued by Hartford to Equity South is a judgment bond, the judgment

against Hartford’s principal, Equity South, is binding on Hartford. In this regard, Hartford

is not entitled to re-litigate defenses available to its principal. Similarly, Hartford would not

be entitled to any credit that was not available to its principal in connection with the default

judgment. In the instant case, the default judgment against Equity South, Hartford’s

principal, was entered on October 14, 2008. Rhodes/Cochran entered into a formal

settlement agreement with Nationstar and the Bank of New York, two of the remaining

defendants in the case, on August 4, 2010. Clearly then, at the time of the default judgment

against Equity South, there was no settlement in existence upon which to base a credit.

Consequently, Hartford is entitled to no credit for the settlement that was executed almost

                                               28
two years after the default judgment. This result is in accordance with Syllabus point 7 of

the Zando opinion, which is quoted above and grants a credit for “good faith settlements

previously made.” Board of Ed. of McDowell Cnty. v. Zando, Martin & Milstead, Inc., 182

W. Va. 597, 390 S.E.2d 796 (emphasis added). It is also in accordance with Syllabus point

5 of Zando, which states:

                       “‘Where a payment is made, and release obtained, by one
               joint tort-feasor, the other joint tort-feasors shall be given credit
               for the amount of such payment in the satisfaction of the
               wrong.’ Point 2, Syllabus, Hardin v. The New York Central
               Railroad Company, 145 W. Va. 676[, 116 S.E.2d 697 (1960)].”
               Syllabus Point 1, Tennant v. Craig, 156 W. Va. 632, 195 S.E.2d
               727 (1973).

182 W. Va. 597, 390 S.E.2d 796 (emphasis added). Simply put, no credit can be given for

a settlement that is not yet in existence.



               To the extent that Hartford complains that failing to grant it credit for the

settlement violates the one recovery rule,13 we note the circuit court’s finding that “the

settlement was reached over [nineteen] months after the default judgment was entered against

Equity. The amount of the settlement was influenced, at least in part, by the existence of the

default judgment.” We find nothing to contradict this conclusion.



               13
               See Syl. pt. 3, State Farm Mut. Auto. Ins. Co. v. Schatken, 230 W. Va. 201,
737 S.E.2d 229 (2012) (“‘It is generally recognized that there can be only one recovery of
damages for one wrong or injury. Double recovery of damages is not permitted; the law does
not permit a double satisfaction for a single injury.’ Syl. Pt. 7, in part, Harless v. First Nat’l
Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982).”).

                                                29
              For the reasons set out above, we find the circuit court did not err in failing to

grant Hartford, as surety, credit for a settlement that was not executed until nineteen months

after entry of the default judgment against Hartford’s principal.



                                             IV.

                                      CONCLUSION

              Based upon the rationale set out in this opinion, in Appeal Number 12-0037,

we conclude that the Circuit Court of Jackson County did not err in granting summary

judgment in favor of the Curtises in their action against Hartford. Accordingly, the circuit

court’s order of December 5, 2011, is affirmed. Likewise, in Appeal Number 12-0522, the

Circuit Court of Kanawha County did not err in granting summary judgment in favor of

Rhodes/Cochran in their action against Hartford. Consequently, the March 27, 2012, order

of the circuit court is affirmed.



                                                              Appeal No. 12-0037, Affirmed.

                                                         Appeal Number 12-0522, Affirmed.




                                              30
