State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell

Decision Date01 April 2011
Docket NumberNo. 35738.,35738.
Citation719 S.E.2d 722,228 W.Va. 252
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County; Lana S. Eddy Luby; and Carla J. Blank, Respondents.

July 22, 2011.

Syllabus by the Court

1. “A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders.” Syllabus point 1, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

2. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

3. “Issuance of a broad protective order, based upon the assertion of a blanket privilege against discovery, without scrutiny of each proposed area of inquiry and without giving full consideration to a more narrowly drawn order constitutes abuse of discretion under West Virginia Rule of Civil Procedure 26(c).” Syllabus point 7, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988).

4. Rule 26(c) of the West Virginia Rules of Civil Procedure requires a showing of good cause to support the issuance of a protective order. The party requesting the protective order bears the burden of demonstrating good cause by establishing particular and specific facts; mere conclusory statements are not sufficient to demonstrate good cause.

5. This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.’ Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958).” Syllabus point 2, Duquesne Light Co. v. State Tax Department, 174 W.Va. 506, 327 S.E.2d 683 (1984).

6. The interpretation of a court's order is a question of law, which we review de novo. When interpreting a court's order, we apply the same rules of construction as we use to construe other written instruments.

7. An ambiguous court order must be construed before it can be applied. Conversely, a court order whose language is plain need not be construed, but should be applied according to the plain meaning of the words used in the order.

E. Kay Fuller, Michael M. Stevens, Martin & Seibert, L.C., Martinsburg, WV, for the Petitioner, State Farm Mutual Automobile Insurance Company.

David J. Romano, J. Tyler Slavey, Romano Law Office, Clarksburg, WV, for the Respondent, Carla J. Blank.

Tiffany R. Durst, Pullin, Fowler, Flanagan, Brown, & Poe, PLLC, Morgantown, WV, for the Respondent, Lana S. Eddy Luby.James D. Lamp, Matthew J. Perry, Lamp O'Dell Bartram Levy Trautwein & Perry, PLLC, Huntington, WV, for Amicus Curiae, National Insurance Crime Bureau.

Jill Cranston Bentz, Jacob A. Manning, Dinsmore & Shohl, LLP, Charleston, WV, for Amicus Curiae, West Virginia Insurance Federation.D.C. Offutt, Jr., Offutt Nord, PLLC, Huntington, WV, for Amicus Curiae, West Virginia Mutual Insurance Company.Mary Jane Pickens, General Counsel, Victor A. Mullins, Associate Counsel, Offices of the West Virginia Insurance Commissioner, Charleston, WV, for Amicus Curiae, Jane L. Cline, West Virginia Insurance Commissioner.Todd A. Mount, Shaffer & Shaffer, PLLC, Madison, WV and Lee Murray Hall, Jenkins Fenstermaker, PLLC, Huntington, WV and Jeffrey A. Holmstrand, Flaherty Sensabaugh & Bonasso, PLLC, Wheeling, WV, for Amicus Curiae, Defense Trial Counsel of West Virginia.DAVIS, Justice:

The petitioner herein, State Farm Mutual Automobile Insurance Company (hereinafter referred to as “State Farm”), requests this Court to issue a writ of prohibition to prevent the Circuit Court of Harrison County from enforcing its October 25, 2010, Protective Order. By the terms of that order, the circuit court restricted the manner in which State Farm would be permitted to use the medical records of the respondent herein, Carla J. Blank (hereinafter referred to as “Mrs. Blank”), and those of Mrs. Blank's deceased husband, Lynn Robert Blank (hereinafter referred to as “Mr. Blank”). Before this Court, State Farm contends that the circuit court exceeded its authority in issuing the protective order requested by Mrs. Blank. Upon review of the parties' arguments, the record designated for our consideration, and the pertinent authorities, we deny the requested writ of prohibition.


The instant proceeding marks the second time these parties have been before this Court within the past twelve months. At issue herein, as well as in the prior case, is the circuit court's entry of a protective order limiting the manner in which State Farm may use the medical records of the respondent herein, Mrs. Blank, and her decedent, Mr. Blank, in its defense against Mrs. Blank's lawsuit.

On March 20, 2008, the vehicle in which Mr. and Mrs. Blank were traveling on Route 20 in Buckhannon, West Virginia, was struck head-on by a vehicle being driven by Jeremy Jay Thomas (hereinafter referred to as “Mr. Thomas”). Mr. Blank and Mr. Thomas both died as a result of the injuries they sustained in the collision; Mrs. Blank and Mr. Thomas' passenger were both injured, but they both survived the accident. Thereafter, Mrs. Blank filed a lawsuit against Mr. Thomas' estate, whose interests are represented herein by Mr. Thomas' mother, Lana S. Eddy Luby (hereinafter referred to as “Ms. Luby”), seeking redress for the personal injuries she sustained as well as for the wrongful death of her deceased husband, Mr. Blank. Mrs. Blank's lawsuit was filed in the Circuit Court of Harrison County.

During the course of the litigation, State Farm, Mr. Thomas' automobile insurer, sought discovery of Mr. and Mrs. Blank's medical records. In response to this request, Mrs. Blank sought a protective order to ensure the confidentiality of the requested medical records. By order entered February 11, 2010, the Circuit Court of Harrison County granted the requested protective order. From this ruling, State Farm sought a writ of prohibition from this Court claiming that the protective order was too restrictive and interfered with its ability to maintain claims files as required by West Virginia insurance law. This Court agreed that the protective order hindered State Farm's ability to comply with its statutory obligations and granted a writ of prohibition to prevent the circuit court from enforcing its February 11, 2010, protective order. See State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, 226 W.Va. 138, 697 S.E.2d 730 (2010) (hereinafter referred to as “ State Farm I). Specifically, we held that a protective order could not interfere with an insurer's obligations to comply with regulatory requirements for the maintenance of insurance claims files:

A court may not issue a protective order directing an insurance company to return or destroy a claimant's medical records prior to the time period set forth by the Insurance Commissioner of West Virginia in §§ 114–15–4.2(b) and 114–15–4.4(a) of the West Virginia Code of State Rules for the retention of such records.

Syl. pt. 7, 226 W.Va. 138, 697 S.E.2d 730. With respect to the protective order issued by the circuit court on February 11, 2010, we also found that Mrs. Blank had failed to demonstrate good cause for the order's issuance insofar as it prevented State Farm from electronically storing medical records and information. See State ex rel. Shroades v. Henry, 187 W.Va. 723, 728, 421 S.E.2d 264, 269 (1992) (observing that W. Va. R. Civ. P. 26(c) requires “good cause be shown for a protective order,” which consists of “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements” (internal quotations and citation omitted)). In this regard, we determined that, [i]n the absence of any factual support, the vague fears articulated by Mrs. Blank do not constitute the ‘particular and specific demonstration of fact’ that this Court requires from a party seeking a protective order.” State Farm I, 226 W.Va. at 148, 697 S.E.2d at 740 (citation omitted).

Following the issuance of this Court's decision in State Farm I, the parties resumed preparations for the upcoming trial in this case, which was scheduled to begin on December 13, 2010. On September 28, 2010, Mrs. Blank submitted a proposed “Temporary Protective Order Granting Plaintiff Protection for Her Confidential Medical Records and Medical Information,” to which State Farm objected. The circuit court held a hearing on Mrs. Blank's requested protective order and, on October 25, 2010, granted her relief. In language that is strikingly similar to its earlier, February 11, 2010, protective order, the circuit court again severely restricted the manner in which State Farm could use the medical records and...

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