SER Owners Insurance v. Hon. Warren R. McGraw, Judge ( 2014 )

No. 13-1153 - State of West Virginia ex rel. Owners Insurance Company v. Honorable
Warren R. McGraw, Judge of the Circuit Court of Wyoming County, West Virginia, and
Morlan Enterprises, Inc.
FILED
June 18, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
LOUGHRY, Justice, concurring: OF WEST VIRGINIA
I concur in the judgment of the majority in denying the petitioner’s request for
a writ of prohibition.1 I write separately to explain why I believe extraordinary relief should
be parsimoniously granted rather than serving as an interlocutory review of a trial court’s
pretrial rulings.
1
In syllabus point four of State ex. rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d
12 (1996), we explained that
[i]n 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
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.
1
The petitioner has sought a writ of prohibition to reverse various pretrial orders
entered by the trial court. These orders involve rulings on a choice of law issue, the denial
of the petitioner’s motion to dismiss for lack of personal jurisdiction, the award of partial
summary judgment in favor of respondent Morlan Enterprises allowing its claim against the
petitioner for first party bad faith and Unfair Trade Practices Act violations to proceed, and
the grant of a motion in limine prohibiting the petitioner from presenting evidence of the
payment of attorney’s fees, which are sought by Morlan, but which were paid by another
source.
In determining whether to issue a writ of prohibition, I first observe that “[a]
writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court . . .
. W.Va. Code, 53-1-1.” Syl. pt. 2, in part, State ex rel. Peacher v. Sencindiver, 160 W.Va.
314, 233 S.E.2d 425 (1977); see also State ex rel. Allen v. Bedell, 193 W.Va. 32, 37, 454
S.E.2d 77, 82 (1994) (Cleckley, J., concurring) (“Mere doubt as to the correctness of a trial
court’s ruling on a motion in limine regarding an evidentiary issue is an insufficient basis to
invoke this Court’s writ power.”). Indeed, “[i]n the absence of compelling evidence of
irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s
pretrial ruling on a matter of evidentiary admissibility.” Syl. Pt. 2, State ex rel. Williams v.
Narick, 164 W.Va. 632, 264 S.E.2d 851 (1980)).
2
I further observe that decades ago, this Court explained that “[t]he writ of
prohibition . . . does not lie to correct mere errors; and it cannot be allowed to usurp the
functions of appeal, writ of error or certiorari.” State ex rel. City of Huntington v.
Lombardo, 149 W.Va. 671, 679, 143 S.E.2d 535, 541 (1965). This Court has also cautioned
that it
will look to the adequacy of other available remedies such as
appeal and to the over-all economy of effort and money among
litigants, lawyers and courts; however, this Court will use
prohibition in this discretionary way to correct only substantial,
clear-cut, legal errors plainly in contravention of a clear
statutory, constitutional, or common law mandate which may be
resolved independently of any disputed facts and only in cases
where there is a high probability that the trial will be completely
reversed if the error is not corrected in advance.
Syl. Pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979). More recently,
in Justice Cleckley’s well-reasoned concurrence in Bedell, he explained that
[t]he “‘[l]iberal allowance’” of extraordinary writs “‘degrades
the prominence of the trial’” and it undermines our statutory
provisions limiting appellate review to final judgments. Brecht
v. Abrahamson, 507 U.S. 619, ---- - ----, 113 S.Ct. 1710,
1720-21, 123 L.Ed.2d 353, 371 (1993), quoting Engle v. Isaac,
456 U.S. 107, 127, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783, 800
(1982).
Bedell, 193 W.Va. at 36, 454 S.E.2d at 81. As Justice Cleckley expounded,
When appropriate, writs of prohibition and mandamus provide
a drastic remedy to be invoked only in extraordinary situations.
****
3
[t]o justify this extraordinary remedy, the petitioner has the
burden of showing that the lower court’s jurisdictional
usurpation was clear and indisputable and, because there is no
adequate relief at law, the extraordinary writ provides the only
available and adequate remedy. Thus, writs of prohibition, as
well as writs of mandamus and habeas corpus, should not be
permitted when the error is correctable by appeal.
Id., 193 W.Va. at 37, 454 S.E.2d at 82. Admittedly, these are extremely high hurdles that a
party must clear before extraordinary relief will be granted, as I believe they should be, but
I also believe that if these hurdles are met, extraordinary relief should be granted.
In the case at bar, however, like the majority, I see no clear error or excess of
legitimate power in the case at bar that is not “correctable by appeal.” Bedell, 193 W.Va. at
37, 454 S.E.2d at 82. As Justice Cleckley suggested, a factor to be considered in determining
whether extraordinary relief is appropriate is “[w]hether the damage (other than expense and
time) or prejudice suffered by the petitioner is correctable on appeal[.]” Id. (emphasis
added). Thus, the fact that the parties will expend time and money as the litigation proceeds
below does not entitle the petitioner to extraordinary relief, nor should prohibition be used
for “the purpose of appealing cases upon the installment plan.” State ex rel. Shelton v.
Burnside, 212 W.Va. 514, 519, 575 S.E.2d 124, 129 (2002) (quoting Wimberly v. Imel, 358
P.2d 231, 232 (Okla.Crim.App.1961)); see also Bedell, 193 W.Va. at 37, 454 S.E.2d at 82
(Cleckley, J., concurring) (“Unfortunately, in West Virginia the writ of prohibition has been
used with increasing frequency as a device to escape from the ‘final judgment’ rule.”).
4
As indicated above, the petitioner seeks extraordinary relief from the trial
court’s pretrial rulings involving a motion in limine, personal jurisdiction, choice of law, and
whether respondent Morlan is a first party insured under the policy issued by the petitioner.
While I am disappointed that the majority did not undertake a more thorough and complete
analysis of these issues, upon consideration of the parties’ arguments and the procedural
posture of this litigation, I cannot conclude that there is “compelling evidence of irremediable
prejudice.” Syl. Pt. 2, in part, Narick, 164 W.Va. 632, 264 S.E.2d 851. Accordingly, I agree
with the majority that under the factors set forth in Hoover, these are issues that can be
considered on appeal following a final order of the circuit court.
For these reasons, I concur in the majority’s decision to deny extraordinary
relief in this matter. I am authorized to state that Justice Workman joins in this separate
opinion.
5