Davis: Other justices ignored plain language of state code

By Kyla Asbury | Feb 3, 2016

CHARLESTON – State Supreme Court Justice Robin Jean Davis said the majority has continued to ignore the plain language of West Virginia code in a recent opinion.

Davis said the majority also wrongly deducted State Farm’s advance payment from Hasil Pak’s special damages prior to calculating the pre-judgment interest to which she was statutorily entitled.

In her Jan. 28 concurring in part and dissenting in part opinion, Davis says she fully agreed with the new syllabus point the majority announced and its corresponding determination that the circuit court erred in refusing to credit State Farm’s advance payment to its insured against the final judgment she obtained in the action.

“I likewise agree with the majority’s determination that Ms. Pak is not entitled to pre-judgment interest for her loss of household services, because she had no out-of-pocked expenditures related to that loss,” she said. “Accordingly, I concur in those portions of the majority opinion. However, I part ways with my brethern on the proper method of calculating pre-judgment interest…”

In this case, the majority relied on the court’s prior decision in State Farm v. Rutherford to concluse that the circuit court erred by failing to deduct State Farm’s advance payment to Pak from the judgment amount prior to assessing interest thereon.

“Because the majority’s reliance on Rutherford perpetuates the misrepresentation of W.Va. Code … I must dissent as I did with respect to the same issue in Rutherford,” she said.

In 2009, Hasil Pak was injured in a car wreck caused by an unknown, hit-and-run driver and she filed an uninsured motorists suit against the unknown driver, John Doe, seeking damages for her injuries Her uninsured motorists’ insurance carrier was State Farm, who defended the lawsuit.

Before trial, State Farm advanced Pak $30,628.15 on her damages and, after a jury returned a verdict for Pak, Monongalia Circuit Court entered a judgment order on Dec. 4, 2014, refusing State Farm any credit against the final judgment for the advance payment.

The majority opinion was authored by Chief Justice Menis Ketchum.

State Farm then appealed the circuit court’s order, asserting that the court erred in refusing to credit the advance payment against the final judgment and State Farm also alleges that the circuit court erred in calculating prejudgment interest.

In the case, the jury returned a verdict of $101,000 exclusive of prejudgment interest, which included $25,000 for medical expenses; $30,000 for loss of earning capacity; $10,000 for loss of household services; $6,000 for pain, suffering, mental anguish and loss of enjoyment of life; and $30,000 for pain, suffering, mental anguish and loss of enjoyment of life to be incurred in the future.

The circuit court erred when it failed to deduct State Farm’s $30,628.15 advance payment against the final judgment and also erred by awarding pre-judgment interest on State Farm’s advance payment and on Pak’s award for loss of household services.

Doe is represented by Tiffany R. Durst and Nathaniel D. Griffith of Pullin, Fowler, Flanagan, Brown & Poe PLLC. Pak is represented by John R. Angotti and David J. Straface of Angotti & Straface.

W.Va. Supreme Court of Appeals case number: 15-0013

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Organizations in this Story

Angotti and Straface Pullin Fowler Flanagan Brown & Poe PLLC Pullin, Fowler, Flanagan, Brown & Poe, PLLC West Virginia Supreme Court of Appeals

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