MORGANTOWN – A Monongalia County business has filed a $4.5 million lawsuit against an insurance agent and insurance company, accusing them of civil conspiracy, breach of contract and bad faith.
Marine One LLC, doing business as Cheat Lake Marina, filed the lawsuit Jan. 10 in Monongalia Circuit Court against Dyer Heflin Bowers & Eckels Insurance Agency, now known as Dyer Insurance Group, and Liberty Mutual Insurance Company.
According to the complaint, the defendant insurance companies were contracted to provide coverage for the marina. After a catastrophic loss sustained by the marina in 2015, the complaint alleges Dyer and Liberty Mutual, as Dyer’s insurer, failed to compensate for the loss.
In March 2015, an ice dam broke loose on Cheat Lake and caused a rapid increase in the water level. As a result, the dock moorings broke, causing docks to break apart, crash into each other, get torn up and swept away. Later in 2015, Marine One filed a complaint against Dyer Insurance. Liberty Mutual was Dyer's insurer.
“Maliciously, intentionally, in bad faith, and in a punitive, egregious, vexatious way, the defendants jointly forced plaintiff through years of harassing litigation which required them to incur over six figures of attorney’s fees and endure personal attacks and insults,” the complaint states.
After a four-day trial last summer, a Monongalia County jury deliberated “for literally minutes” before rendering a verdict in the marina’s favor for $302,000 plus interest, an amount “virtually equal to the settlement demand made at the outset of litigation.”
Mark Kepple of Bailey & Wyant’s Wheeling office represents the marina, which is owned by Morgantown developers David and Rick Biafora.
“Liberty Mutual and Dyer have fumbled many opportunities to avoid suit or continued litigation and did so in such a manner to cause more exposure for Dyer and more damages and prejudice to the plaintiffs,” Kepple wrote in the complaint. “Such conduct appears intentional to harm the insured. …
“Numerous efforts were made to attempt to resolve this matter. … None of the efforts to negotiate this matter were successful as it was the plan of the defendants all along to avoid paying this loss they clearly owed. Dyer was given a full explanation of each of these settlement offers and unconditionally denied each of them. Liberty Mutual had a hand in the denial of these settlement offers and influenced the decision to deny them.”
That verdict amount plus interest was paid. But days after the verdict was rendered, the marina filed a Motion for Hayseed’s Damages, which was granted by the court. That amount was $133,295.77.
In a 1986 ruling titled Hayseed’s v. State Farm, the state Supreme Court held that whenever a policyholder substantially prevails in a lawsuit against its insurer, the insurer is liable for the insured's reasonable attorney's fees in vindicating its claim as well as the insured's damages for net economic loss caused by the delay in settlement and damages for aggravation and inconvenience.
“Dyer’s insurance company and defendant in this case, Liberty Mutual, became the insurer for the marina’s loss,” the new complaint states. “Plaintiff is entitled to present a first-party insurance claim now that the verdict, establishing full liability, has been rendered. The verdict, in essence, means that the plaintiff is entitled to all rights and remedies that it would have had against an insurance company had Dyer done its job.
“Liberty Mutual and the Dyer (company) have become the insurers of the marina’s loss.”
The complaint says Liberty Mutual “placed its interest above the interest of Dyer.”
“Liberty Mutual caused Dyer to continue upon a course of pursuing vexatious litigation tactics making the case personal against the principals of the plaintiff (the Biafora brothers),” the complaint states, adding that the defendants claimed David Biafora made threats against Tim Dyer of the Dyer agency.
That allegation also is included in exhibits attached to the new complaint, which also includes sometimes heated email discussions between Kepple and defense attorneys from the Nelson Mullins law firm.
Marine One alleges Liberty Mutual and Dyer “conspired together by concerted action to accomplish an unlawful purpose, by unlawful means to injure the plaintiff” and “agreed to commit overt tortious acts for a common purpose” and “caused harm to the plaintiff.”
It also claims Liberty Mutual misrepresented that “it is only a third-party insurer with regard to the loss at issue in this case and thus can act with impunity.”
“Liberty Mutual cannot hide behind Dyer and claim it is a third-party insurer to the loss sustained by the plaintiffs when they worked in concert with Dyer,” the complaint states, “to deny the plaintiff’s right to recover, force the plaintiffs into a vexatious and mean-spirited litigated trial, refuse to obey court orders directing payment of attorney’s fees and costs, refuse to negotiate in good faith and otherwise violate the rules governing the performance of insurance companies in West Virginia.”
Marine One seeks the $133,295.77 award for Hayseed’s damages. It also says the defendants have refused to participate in further settlement negotiations, forcing this new lawsuit to be filed. The plaintiff also says it has suffered annoyance and inconvenience, further attorney fees, court costs. It also seeks punitive damages, pre- and post-judgment interest and other relief.
The case has been assigned to Monongalia Circuit Judge Susan Tucker, who presided over the 2015 case.
Monongalia Circuit Court case number 19-C-6