Mills v. Watkins

¶1concurring, in part, and dissenting, in part.

¶2I can agree with the outcome of the majority opinion in this case. The court did appoint a guardian ad litem for the minor plaintiff in this case, she did have the benefit of counsel, and the court approved the settlement. However, I must dissent to some of the language employed by the majority in syllabus point three. The majority holds that a settlement that complies with W. Va.Code § 44-10-14 (1929) is final, provided that “the insurer is unaware of any misconduct which would constitute substantive grounds for a bad faith action at the time the insurer agrees to the settlement.”

¶3The essence of a bad faith suit is an allegation that an insurance company has committed some sort of improper conduct that has harmed its insured. This syllabus point asks plaintiffs who have been forced already to take the insurance company to court, to then trust the company when it says that no misconduct occurred. It strikes me as exceedingly likely that almost every defendant insurance company in a bad faith suit like this one will be “unaware of any misconduct” that occurred at the time of the settlement.

¶4Because I cannot agree with such an egregious example of “letting the fox guard the hen house,” I must respectfully dissent to this aspect of the majority opinion.

¶5(Filed July 11, 2003)

¶6concurring.

¶7I concur with the majority’s holding, but write separately to demonstrate, in simpler terms, how I view the holding of the case.

¶8In this case, the plaintiff-teenager was injured in an automobile accident caused by another teenager, the “tortfeasor.” The plaintiff-teenager did not hire a lawyer; instead, she and her mother negotiated with the tortfeasor’s insurance company, Nationwide, themselves. To protect the plaintiff-teenager’s rights, the circuit court later appointed a lawyer to serve as guardian ad litem.

¶9The plaintiff-teenager; her legal guardian, the plaintiff-teenager’s mother; the plaintiff-teenager’s father; the guardian ad litem; and the circuit court, reviewed and approved the settlement offer and settlement agreement proposed by Nationwide. The settlement offer gave the plaintiff-teenager nearly $50,000.00 in cash. In return, the plaintiff-teenager signed an agreement that gave up her rights to sue the tortfeasor and the owner of the automobile the tortfeasor had negligently driven, and gave up any rights against Nationwide for its conduct in the course of *438handling and settling the plaintiff-teenager’s claim.

¶10When the plaintiff-teenager reached majority age, she filed suit against Nationwide seeking damages under the Unfair Trade Practices Act, W.Va.Code, 33-11-4 [1985].1 The plaintiff-teenager alleged that Nationwide made misrepresentations during the settlement process that improperly induced the plaintiff-teenager to agree to the settlement. Upon motion by Nationwide, the circuit court dismissed the plaintiff-teenager’s complaint under Rule 12(b)(6) of the Rules of Civil Procedure, concluding that she had failed to state a claim because the settlement agreement previously signed by the plaintiff-teenager specifically released Nationwide for any misconduct during the settlement process.

¶11Based on these facts, I support the majority opinion’s decision to affirm the circuit court’s dismissal of the plaintiff-teenager’s complaint against Nationwide. The plaintiff-teenager — with the advice and consent of her parents, guardian ad litem, and the circuit court — plainly released Nationwide from any and all liability under the Unfair Trade Practice Act. The plaintiff-teenager could have insisted that the language releasing “bad faith” claims against Nationwide be removed from the agreement, but neither she nor her representatives did so. The briefs of the parties in this case presented no reason why that plainly-worded release should now be set aside to allow the plaintiff-teenager a “second bite at the apple.”

¶12One other point should be noted about the majority’s opinion: in dicta, the majority opinion indicates that the Court found “no indication that Nationwide misrepresented the ‘insurance policy provisions relating to coverages’ during the time that the underlying release and settlement agreement was negotiated and adopted by the parties in this case.” The majority opinion goes on to contend that guardians ad litem could face liability for malpractice if they “fail[ ] to get the full policy limits for [ ] infant claimants” if we were to accept the plaintiff-teenager’s arguments that Nationwide engaged in unfair trade practices. Because this ease is before the Court upon the circuit court’s granting of a Rule 12(b)(6) motion to dismiss for failure to state a claim, there isn’t a lot of record to support or contradict these “findings.” Such “findings” by the Court are also irrelevant, considering the fact that the Court’s decision is guided by the explicit terms of the settlement agreement and not the parol evidence surrounding the signing of the agreement.

¶13That said, I otherwise respectfully concur.