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Dosso v. Farmers and Mechanics Insurance Companies

Supreme Court of West Virginia

June 17, 2019

Maurice Dosso, Plaintiff Below, Petitioner
v.
Farmers and Mechanics Insurance Companies, a West Virginia Corporation, Foster Sirbaugh, and Lauren Voglesong, Defendants Below, Respondents

          Berkeley County 16-C-90

          MEMORANDUM DECISION

         Petitioner Maurice Dosso, pro se, appeals two orders of the Circuit Court of Berkeley County. In a June 29, 2017, order, the circuit court awarded summary judgment to Respondents Farmers and Mechanics Insurance Companies, Foster Sirbaugh, and Lauren Voglesong (collectively "respondent") in petitioner's civil action alleging breach of an insurance contract, bad faith, and intentional and negligent infliction of emotional distress.[1] In an earlier order, entered May 1, 2017, the circuit court adopted, inter alia, a discovery commissioner's recommendation that one-half of the commissioner's fees and costs be borne by petitioner, an indigent party. Respondent, by counsel Susan R. Snowden, filed a response in support of the circuit court's orders.

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is affirmed, in part, reversed, in part, and this case is remanded to the circuit court with directions to vacate that portion of its May 1, 2017, order adopting the discovery commissioner's recommendation that one-half of the commissioner's fees and costs be borne by petitioner.

         For the period from October 6, 2014, to October 5, 2015, petitioner insured a 2000 Ford Expedition with respondent. On December 22, 2014, petitioner reported a loss to respondent. According to petitioner, water leaked into his vehicle and damaged the computer and electrical systems, causing it not to start. Petitioner claimed that respondent was financially responsible for the loss under the "other than collision" coverage set forth in his policy, which included losses from "[h]ail, water[, ] or flood."

         On December 31, 2014, respondent's appraiser inspected petitioner's vehicle. In a January 1, 2015, report, the appraiser opined that there was "nothing for us to appraise" because, based on the inspection of the vehicle, petitioner did not have a covered loss. The appraiser explained:

Truck appears to have water leak at windshield, frt of roof pnl is rusting and may have deteriorated seal between roof and w/shld.
[T]his is definitely a problem that has been present quite a while and has gotten worse over time, the w/shld has some silicone applied to top/left side (indicating a problem existed with a leak that the silicone tried to patch), which insd states he did not put there and was there when he purchased trk 6 yrs ago, insd states he did not have any problem with water leak until a couple weeks ago. [I]nsd has apt at ford dealer in [M]tsbg [J]an 8th to try and determine why truck wont start after rain/when water runs down w/shld and behind the dashboard? Vehicle started during my inspection, insd states it has dried out over the last week as it has not rained. I advised dealer may not be able to diagnose if problem does not exist when he takes it there and that dealer may need to remove dashboard to inspect components behind dash and the diagnosis attempt may cost several hundred dollars.

         By letter dated January 7, 2015, respondent informed petitioner that his policy did not provide coverage for the leak and any resultant water damage[2] because of the wear-and-tear exclusion: "We will not pay for: . . . 2. Damage due and confined to: a. Wear and tear; . . . c. Mechanical or electrical breakdown or failure[.]" (Emphasis in original.) However, to the extent that petitioner's vehicle's computer and electrical problems could be traced to a covered loss, respondent did not deny petitioner's claim. Rather, respondent reserved its right to deny the claim based on additional information and noted that "[t]he vehicle started during the [appraiser's] inspection."

         Petitioner declined to proceed with the diagnostic examination that was scheduled for January 8, 2015. Given that the December 31, 2014, inspection did not reveal any covered loss, respondent informed petitioner in a January 13, 2015, email that it would not pay for the diagnostic examination "upfront," but that "[i]f what is discovered is covered[, ] we will pay for it." By letter dated January 22, 2015, respondent confirmed to petitioner that a diagnostic examination was necessary to verify "the cause of [the] loss." Petitioner continued to refuse to take his vehicle to the dealer for a diagnostic examination. By letter dated February 16, 2015, respondent informed petitioner that, if he did not have a diagnostic examination performed on his vehicle within thirty days, the claim would be closed. Petitioner still failed to have a diagnostic examination performed. Consequently, by letter dated March 18, 2015, respondent informed petitioner that the claim"[was] considered closed."

         On February 19, 2016, petitioner filed a complaint against respondent alleging breach of an insurance contract, bad faith, and intentional and negligent infliction of emotional distress. With his complaint, petitioner filed an application for waiver of fees and costs as an indigent person, which was approved. On March 14, 2016, respondent filed an answer. On March 28, 2017, respondent filed a motion to bifurcate the contract claim from petitioner's other claims and to stay the other claims pending resolution of the contract claim. Following a response by petitioner, the circuit court granted respondent's motion by order entered April 29, 2016, finding that the contract claim's resolution may render the other claims "moot."

         Thereafter, the parties engaged in discovery. By order entered February 9, 2017, the circuit court referred the parties' discovery dispute to a discovery commissioner. The circuit court directed that each party deposit $150 with the discovery commissioner who shall "dispers[e] the deposits in accordance with" a subsequent assessment of costs between the parties. By recommended order dated April 12, 2017, the discovery commissioner found that "the bulk of the outstanding discovery requests . . . by both [petitioner] and [respondent] relate to the counts of the [c]omplaint which have been bifurcated and stayed[.]" Accordingly, the discovery commissioner recommended that the circuit court rule on a December 9, 2016, motion by respondent to be awarded on summary judgment on the contract claim.[3]

         The discovery commissioner further found that the parties' discovery dispute was "in good faith and could not be resolved without the necessity of intervention by the [c]ourt[.]" Therefore, the discovery commissioner recommended that each party pay one-half of his fees and costs in the amount of $947.77. By order entered May 1, 2017, the circuit court adopted the discovery commissioner's recommended order.

         On June 29, 2017, the circuit court resolved the litigation between the parties by awarding respondent summary judgment on petitioner's claim for breach of their insurance contract.[4] The circuit court found:

[Respondent's appraiser] did inspect the vehicle, finding that the damage that he observed was from wear and tear[.] . . . However, [respondent's appraiser] was unable to find any damage due to a "flood." It is undisputed that the subject vehicle started upon inspection by [respondent's appraiser]. [Respondent] paid for [the appraiser's] services, another fact that is undisputed by [petitioner]. [Petitioner] produced no evidence that a flood had occurred, nor was there evidence observable by [respondent's appraiser] that the vehicle had been in a flood. Rather, [respondent], after an inspection of the vehicle (paid for by [respondent]) informed [petitioner] to make a claim if the vehicle stopped working, or have a diagnostic and make a claim if the results would support such a claim. It is clear from the record that there is no evidence to support a finding that the vehicle was involved in a flood, or that it would not start. [Petitioner] has never provided any such documentation to [respondent].

         The circuit court further found that respondent complied with the regulations of the West Virginia Insurance Commissioner set forth at W.Va. C.S.R.§§ 114-14-1 through -10 given that it (1) gave petitioner sufficient notice of its actions regarding his claim; and (2) provided petitioner what benefits were due him under the policy by sending an appraiser to inspect petitioner's vehicle and paying for that inspection. Petitioner now appeals both the circuit court's June 29, 2017, order awarding respondent summary judgment and its May 1, ...


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