Michael v. Appalachian Heating, LLC

• Decision Date: 11 June 2010
• Docket Number: No. 35127.,35127.
• Citation: 701 S.E.2d 116,226 W. Va. 394
• Court: West Virginia Supreme Court
• Parties: Doris MICHAEL and Todd Battle, by His Next Friend, Doris Michael, and Kitrena Michael, Plaintiffs, v. APPALACHIAN HEATING, LLC, and State Auto Insurance Company, Defendants.

701 S.E.2d 116

226 W.Va. 394

Doris MICHAEL and Todd Battle, by His Next Friend, Doris Michael, and Kitrena Michael, Plaintiffs,

v.APPALACHIAN HEATING, LLC, and State Auto Insurance Company, Defendants.

No. 35127.

Supreme Court of Appeals of West Virginia.

Submitted March 2, 2010.

Decided June 11, 2010.

Syllabus by the Court

1."The appellate standard of review of questions of law answered and certified by a circuit court is de novo."Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172(1996).

2."When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va.Code, 51-1A-1, et seq. and W. Va.Code, 58-5-2[ (1998) ], the statute relating to certified questions from a circuit court of this State to this Court."Syllabus point 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74(1993).

3."The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature."Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361(1975).

4."When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute."Syllabus point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353(1959).

5. W. Va.Code § 5-11-9(7)(A)(1998)(2006) of the West Virginia Human Rights Act establishes three distinct causes of action.More specifically, pursuant to W. Va.Code § 5-11-9(7)(A), unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the state of West Virginia or its agencies or political subdivisions, it is an unlawful discriminatory practice for any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to: (1) engage in any form of threats or reprisal, or; (2) engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss, or (3) aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in W. Va.Code § 5-11-9.

6.The term "person" is defined by the Human Rights Act, in W. Va.Code § 5-11-3(a)(1998)(Repl.Vol.2006), as "one or more individuals, partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups of persons."Therefore, aninsurance company is included within the meaning of the term "person" as used in W. Va.Code § 5-11-9(7)(1998)(2006).

7. W. Va.Code § 5-11-9(7)(A)(1998)(2006) of the West Virginia Human Rights Act, prohibits unlawful discrimination by a tortfeasor's insurer in the settlement of a property damage claim when the discrimination is based upon race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status.

8.The prohibition of a third-party law suit against an insurer under W. Va.Code § 33-11-4a(a)(2005)(Repl.Vol.2006), does not preclude a third-party cause of action against an insurer under W. Va.Code § 5-11-9(7)(A)(1998)(2006) of the West Virginia Human Rights Act.

Cynthia M. Ranson, J. Michael Ranson, Ranson Law Offices, PLLC, Charleston, WV, for Plaintiffs.

John R. Fowler, Anna B. Williams, Andrea M. King, John R. Fowler, PLLC, Charleston, WV, for Defendant, State Auto Insurance Company.

DAVIS, Chief Justice:

This matter comes before this Court upon a request from the Circuit Court of Kanawha County to answer a certified question asking whether the West Virginia Human Rights Act, W. Va.Code § 5-11-1, et seq., prohibits discrimination by a tortfeasor's insurer in the settlement of a property damage claim.We conclude that the Human Rights Act does prohibit such discrimination.

I.FACTUAL AND PROCEDURAL HISTORY

The facts underlying the instant action originated from the alleged negligence of Appalachian Heating, LLC(hereinafter referred to as "Appalachian Heating").Appalachian Heating was hired by the Charleston-Kanawha County Housing Authority to repair and/or replace climate control units in South Park Village, a public housing development located in Charleston, West Virginia.The plaintiffs in this action are Doris Michael; her minor son, Todd Battle; and her adult daughter, Kitrena Michael(hereinafter collectively referred to as "the Plaintiffs").The Plaintiffs, who are African American, resided together in an apartment located in South Park Village.On November 21, 2006, the apartment in which the Plaintiffs resided caught fire, allegedly due to negligence on the part of Appalachian Heating, causing a total loss of the Plaintiffs' personal property and rendering the apartment temporarily uninhabitable.¹State Auto Insurance Co.(hereinafter referred to as "State Auto"), a defendant in this action, provided liability insurance coverage to Appalachian Heating.

Following the fire, State Auto settled the Plaintiffs' claims.In their brief to this Court, the Plaintiffs submit that "with the exception of one small stipend of $2,500.00 paid in December of 2006, Doris Michael was not provided with a penny to put her life back together."According to Kitrena Michael's amended complaint, State Auto placed "no value on the general damages associated with the total loss."²According to the amended complaint filed by DorisMichael and Todd Battle, State Auto"placed a total value of Two Thousand Five Hundred Dollars ($2,500.00) on Doris Michael and Todd Battle's general damages associated with the total loss outlined herein."³

Thereafter, on December 6, 2007, the plaintiffs commenced the instant action by filing two separate complaints.One complaint was filed by Kitrena Michael, ⁴ and another was filed by Doris Michael and Todd Battle.⁵Both complaints alleged, inter alia,⁶ that State Auto had violated the West Virginia Human Rights Act in settling their claims.Specifically, both complaints set out nearly identical allegations as follows:

32.That [State Auto] by and through its agents, employees and representatives ... failed to properly, fairly and reasonably evaluate, process and adjust the plaintiff[s'] fire loss claims because of the plaintiff[s'] race and the fact that they resides [sic] in public housing.

33.That [State Auto], by and through its agents, employees and representatives ... wrongfully denied the plaintiffs ... fair and reasonable compensation for the loss and damages arising out of the fire loss [they] sustained on November 21, 2006 because of plaintiffs' race and the fact that they reside in public housing.

34.That [State Auto], through its agents, employees and representatives ... committed the act of inferring and informing the [plaintiffs] that the loss of [their] personal property and the commensurate damages arising there from [sic] virtually had no value because of [their] race and the fact that [they] resided in public housing.

35.That the express purpose and spirit of the West Virginia Act was clearly violated by the defendant, [State Auto,] and its agents, employees and representatives when it participated directly in excluding the plaintiffs from and/or refusing to extend to the plaintiffs the same opportunity and consideration when evaluating the plaintiffs' fire loss claims it extends to those persons not of African American descendent and those who do not reside in public housing.

36.That the express purpose of the West Virginia Act was clearly violated by the defendant, [State Auto,] and its agents, employees and representatives when it acted as previously described herein and in such a way as to degrade the plaintiffs, to embarrass the plaintiffs and to cause the plaintiffs economic loss as set forth in 5-11-9(A)[sic] of the West Virginia Code.⁷

(Footnote added).State Auto filed a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure in each case, based upon State Auto's contention that the Plaintiffs are barred from bringing their Human Rights Act case by aprovision of the West Virginia Unfair Trade Practices Act(hereinafter referred to as "the UTPA") that provides the only method for bringing a third-party action against an insurance company based upon its settlement practices.SeeW. Va.Code § 33-11-4a(2005)(Repl.Vol.2006).The actions were then consolidated by order of the circuit court entered on May 22, 2008.⁸By order entered December 1, 2008, the circuit court denied State Auto's motions to dismiss.After the denial, State Auto orally moved that a question be certified to this court pursuant to W. Va.Code § 58-5-2(1998)(Repl.Vol.2005).⁹The circuit court granted the motion, and by agreed order entered April 23, 2009, the circuit court certified the following question:

May a plaintiff present a cause of action against a tortfeasor's insurance carrier pursuant to the West Virginia Human Rights Act, West Virginia Code § 5-11-9[ (7) ](A), when it is alleged that a tortfeasors' insurance carrier discriminated against the plaintiffs because they are African-American and reside in public housing?

Circuit Court: Yes.

By order entered September 3, 2009, this Court accepted the certified question for review.

II.STANDARD OF REVIEW

"The appellate standard of review of questions of law answered and certified by a circuit court is de novo."Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172(1996).AccordSyl. pt. 1, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660(2009);Syl. pt. 1, Copier Word Processing...