STATE OF WEST VIRGINIA EX REL. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, AND ZURICH AMERICAN INSURANCE COMPANY, Petitioners
THE HONORABLE PATRICK N. WILSON, JUDGE OF THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA, CHRISTINA M. VARVEL, ADMINISTRATRIX OF THE ESTATE OF DAVID RALPH ALLEN, DECEASED, SALVATORE CAVA, DAN'S CAR WORLD, LLC, DAN CAVA'S TOYOTA WORLD, AND DANIEL A. CAVA, Respondents
Submitted: May 3, 2017
FOR WRIT OF PROHIBITION WRIT GRANTED AS MOULDED
M. Spitz, Esq., Jill C. Rice, Esq., Dinsmore & Shohl LLP,
Charleston, West Virginia, Counsel for Petitioners, Universal
Underwriters Insurance Co., and Zurich American Insurance
Jeffrey M. Wakefield, Esq., Flaherty Sensabaugh Bonasso PLLC,
Charleston, West Virginia, Attorney for Amicus Curiae West
Virginia Insurance Federation
Gregory H. Schillace, Esq., Schillace Law Office, Clarksburg,
West Virginia, Counsel for Respondents, Salvatore Cava,
Dan's Car, World, LLC, Dan Cava's, Toyota World, and
Daniel A. Cava
"'A writ of prohibition will not issue to prevent a
simple abuse of discretion by a trial court. It will only
issue where the trial court has no jurisdiction or having
such jurisdiction exceeds its legitimate powers. W.Va. Code
53-1-1.' Syl. Pt. 2, State ex rel. Peacher v.
Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)."
Syl. Pt. 1, State ex rel. York v. W.Va. Office of
Disciplinary Counsel, 231 W.Va. 183, 744 S.E.2d 293
"This Court, on its own motion, will take notice of lack
of jurisdiction at any time or at any stage of the litigation
pending therein." Syl. Pt. 2, In re Boggs'
Estate, 135 W.Va. 288, 63 S.E.2d 497 (1951).
Subject matter jurisdiction does not exist over claims that
are not ripe for adjudication.
petitioners herein and defendants below, Universal
Underwriters Insurance Company, and Zurich American Insurance
Company (hereinafter collectively "Zurich"),
invoke this Court's original jurisdiction seeking a writ
of prohibition to prevent enforcement of the December 8,
2016, order entered by the Honorable Patrick N. Wilson, Judge
of the Circuit Court of Marion County, West Virginia. In that
order, the circuit court denied Zurich's motion to
dismiss the cross-claims of the respondents herein and
defendants below, Salvatore Cava, Daniel A. Cava, and
Dan's Car World, LLC, d/b/a Dan Cava's Toyota World
(hereinafter collectively the "Cava defendants"
and/or individually). After review of the appendix record and
briefs of the parties, contemplation of the matters raised
during oral arguments, and full consideration of the
applicable law, we find the Cava defendants' cross-claims
against Zurich are not ripe for adjudication. Thus, the
circuit court lacked subject matter jurisdiction.
Accordingly, we grant a writ of prohibition, as
FACTUAL AND PROCEDURAL HISTORY
30, 2014, nineteen-year-old Salvatore Cava was driving a 2014
Toyota Rav4 sports utility vehicle when he was involved in a
motor vehicle accident with sixty-six-year-old David R.
Allen, who was driving a motorcycle. Mr. Allen suffered
catastrophic injuries in the accident and died nine days
later at Ruby Memorial Hospital in Morgantown, West Virginia.
Cava, a college student residing in his parents' home, is
the son of Daniel A. Cava, member of Dan's Car World,
LLC, d/b/a Dan Cava's Toyota World ("Dan's Car
World"). This business owned the Rav4. Salvatore Cava
was an employee of Dan's Car World, although he was not
engaged in any activity on behalf of the business at the time
of the collision. It is undisputed that Salvatore Cava was
driving the Rav4 with permission from his father at the time
of the accident. Dan's Car World purchased the insurance
policy at issue from Zurich. Part 500 of this policy, titled
"garage coverage, " provides up to $300, 000 in
liability coverage. Part 980 of this policy, titled
"commercial umbrella coverage, " provides up to $5,
000, 000 in liability coverage.
December 2014, the plaintiff below, Christina M. Varvel,
Administratrix of Mr. Allen's estate, filed suit against
Salvatore Cava and Dan's Car World with respect to the
vehicular accident. She alleged that Salvatore Cava was an
employee, agent, and/or servant of Dan's Car World. The
plaintiff also asserted a declaratory judgment action against
Zurich to determine the amount of insurance coverage
determined that the complaint triggered its duty to defend
under the policy; it retained counsel for Salvatore Cava and
separate counsel for Dan's Car World. Zurich also
retained counsel to defend itself in the declaratory judgment
action brought by the plaintiff. Zurich admitted that the
garage policy provides liability coverage to Salvatore Cava
with respect to the plaintiff's claims. However, Zurich
maintained that the umbrella policy did not cover the
plaintiff's claims. Zurich offered the plaintiff $300, 000
to settle this matter, and she rejected the offer. The
plaintiff contends the umbrella policy provides additional
liability coverage with respect to this lawsuit.
January 2016, the plaintiff filed a motion for leave to file
her first amended complaint, which the circuit court granted
in March 2016. In her amended complaint, the plaintiff added
Daniel A. Cava as an individual defendant and asserted
negligent entrustment and family use claims against him.
Defense counsel for Daniel A. Cava, retained by Zurich,
answered the amended complaint on his behalf and denied all
Cava Defendants' Cross-claims
March 2016, the Cava defendants, by personal counsel, mounted
a sweeping attack on Zurich's defense strategy or alleged
lack thereof, and filed individual cross-claims against
Zurich. The Cava defendants asserted two counts in
the cross-claims: in Count I, they alleged violations of the
Unfair Trade Practices Act ("UTPA"), West Virginia
Code § 33-11-4 (2011),  and breach of contract; in Count
II, they alleged breach of the "common law duty to deal
fairly and in good faith" in the investigation, defense
and indemnification of this action. The Cava defendants
asserted, generally, that Zurich placed its interest above
theirs during the course of this litigation, and acted in bad
faith by failing to investigate the matter properly and
settle the case. They accused Zurich of engaging in
intentional, wrongful litigation conduct.
Salvatore Cava asserted that he has suffered, and continues
to suffer, "emotional and mental distress, " some
of which has "resulted in physical consequences"
arising from the vehicle collision, the death of Mr. Allen,
the police investigation, the allegations that the collision
was his fault, "as well as, the institution of this
civil action[.]" He further stated his "emotional
stress and mental anguish" have been and continue
"to be increased and compounded by the wrongful,
reckless and intentional conduct" of Zurich. Salvatore
Cava noted that prior to the institution of the
plaintiff's civil action, he made a demand on behalf of
Zurich "that all claims of the plaintiff be immediately
resolved within the policy limit of all policies[.]"
A. Cava asserted he advised a representative of Zurich, prior
to the motor vehicle accident, to make sure Salvatore Cava
was an insured on all policies issued by Zurich. He claimed
to have "endured additional mental and emotional
strain" as a result of the mental and emotional strain
of Salvatore Cava. He asserted Zurich engaged in wrongful
litigation conduct, such as attempting to obtain a court
order to take his deposition, which the circuit court denied,
not objecting to the plaintiff's motion to amend her
complaint to add Daniel A. Cava as a defendant.
Car World asserted that Zurich engaged in wrongful litigation
conduct by "falsely asserting" that Salvatore Cava
was not an employee of the business. Dan's Car World
demanded the same damages as Salvatore Cava and Daniel A.
(a) That it have judgment against [Zurich] in the amount of
any judgment awarded to the plaintiff in this action;
(b) That it have judgment against [Zurich] for compensatory
damages in an amount to be determined at the trial of this
action, said damages to include, but not be limited to, the
cost and reasonable attorneys' fees . . . in the
defense of this action;
(c) That [it] be awarded its costs herein expended,
including reasonable attorneys' fees in prosecution of
this civil action, all in accordance with ...