WEST VIRGINIA RECORD

CHARLESTON - A Charleston attorney has filed a lawsuit against the state's insurance commissioner, demanding she provide certain information about BrickStreet Mutual Insurance Company.

John Skaggs of The Calwell Practice entered the suit on behalf of Sherry Grubb Aug. 1 in Kanawha Circuit Court against Jane Cline, alleging 'She has or is believed to have custody of or access to certain documents requested by the plaintiff, pursuant to the West Virginia Freedom of Information Act."

The state's Workers' Compensation division was privatized at the beginning of the year and became BrickStreet. Grubb is a widow who lost her Workers' Compensation benefits when that happened and has an appeal in state Supreme Court.

Her attorney, Skaggs, says he attempted to obtain financial information from Cline but never succeeded.

"The plaintiff and the public have a significant interest in the financial viability of the 'Workers' Compensation Old Fund' and BrickStreet, in light of the dedication of significant public funds and property to its creation and current financial viability," the complaint says.

Skaggs says the public has an interest in BrickStreet's financial information because it was created by public funds. He says given were $30 million from the Tobacco Master Settlement Agreement, $45 million from Personal Income Tax collections, $51 million from Workers' Compensation Self-Insured and Premium surcharges and additional funds from the Coal Severance Tax, Natural Gas Severance Tax, Timber Severance Tax and Racetrack Video Lottery.

Skaggs was seeking: Documents filed with Cline about a surplus note dated Jan. 1 by and between BrickStreet and the State of West Virginia, bearing a maturity date of June 30; expenditures for capital assets which exceed $100,000 and contracts that will cost in excess of $1 million over the life of the contract; a yearly budget, in quarterly segments and quarterly reports of budgeted to actual expenditures; and documents relating to Cline's activity in Board of Director meetings and committee meetings of the company.

He says Cline responded but did not provide the documents.

In a letter to Skaggs, Gregory Elam, Associate Counsel for the Insurance Commission, stated his position.

"The Insurance Commissioner is performing both her statutory duties and any duties that she might conceivably have, not being a signatory to the (surplus) note, under the terms of the surplus note to obtain financial information from BrickStreet," he wrote.

"The budget information required by the surplus note has been filed here, although it is not subject to disclosure pursuant to the Freedom of Information Act.

"The Insurance Commissioner or her representative has attended BrickStreet board meetings, but we do not believe that the Legislature intended for the information obtained during these meetings to become public by virtue of the fact that the surplus note authorizes (but does not require) her to attend these meetings.

"Finally, BrickStreet is not in default of the surplus note. The provisions of your proposed complaint are simply incorrect."

Kanawha Circuit Court case number 06-C-1512