WEST VIRGINIA RECORD

CHARLESTON – Wang-Yu Lin signed a car rental contract that excluded other drivers but he can recover for a head injury he suffered when someone else drove, the Supreme Court of Appeals has ruled.

The Justices on Nov. 25 affirmed Kanawha Circuit Judge Jennifer Bailey Walker, who pinned liability on Empire Fire and Marine Insurance and Enterprise Rent a Car.

They treated the case as a freak, however, leaving little room for future claims like it.

They implied that Enterprise and Empire would have prevailed if they had argued the case before Walker the way they would argue it later before the Justices.

They quoted a 1971 decision that, "In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal is taken."

Empire and Enterprise had already waived their argument when they presented it to the Justices on Sept. 9, they wrote.

Lin rented a car from Enterprise in Clarksburg, so that he and other Salem International University students could take a trip.

The contract stated, "Use of vehicle by an unauthorized driver will affect my liability and rights under this agreement."

He also bought a $1 million supplemental liability policy from Empire.

On the road he grew weary and pulled over. He handed the keys to passenger Shin Yi-Lin, no relation.

She wrecked the car. He sustained injuries that would cost about $300,000 to treat.

He sought coverage and Empire denied it.

He sued in 2006, and both sides moved for summary judgment.

Walker granted summary judgment in Lin's favor last year. She ruled that under state auto insurance law, a policy covers anyone driving with permission.

She held that Empire must pay all Lin's bills, except $20,000 that Enterprise owed through self insurance.

On appeal, Empire and Enterprise tried to persuade the Justices that state law on licenses for rental companies should bar Lin's claim.

The law allows sales of policies covering "renters and other authorized drivers."

The argument made sense to the Justices, but they threw it out anyway.

"The appellants clearly did not raise this issue in their cross motion for summary judgment below," they wrote.

"Because the appellants did not raise this issue below, this Court, consistent with our law, declines to consider the issue for the first time on appeal," they wrote.

"As a result, this Court, having found no error in the circuit court's ruling below, must affirm the ruling," they wrote.

They wrote that their decision did not hold that Walker applied the correct law.

"Rather, we simply affirm the circuit court's decision in the absence of error properly preserved for this Court's review," they wrote.

Attorneys Scott Curnutte, Charles R. Bailey and John P. Fuller represented Empire and Enterprise in Walker's court.

Thomas Flaherty and Erica Baumgras of Charleston represented Empire and Enterprise at the Supreme Court of Appeals.

William Tiano, Christina Smith and Shawn Taylor of Charleston represented Lin.