CHARLESTON — The West Virginia Supreme Court of Appeals ruled that an insurance company could not intervene in a wrongful death suit.
In the consolidated appeals, Praetorian Insurance Company wanted the court to review three orders issued by two separate judges presiding over two separate but related cases in Kanawha Circuit Court, according to a Nov. 17 majority opinion.
Justice Haley Bunn authored the majority opinion.
"For the reasons stated below, we affirm the circuit court’s order denying Praetorian’s motion to intervene in Ms. Chau’s wrongful death action for lack of standing to assert Air Cargo’s right to workers’ compensation immunity," Bunn wrote. "In addition, we reverse the circuit court’s order denying Praetorian’s motion for summary judgment as to Count I of its declaratory judgment complaint because we find the deliberate intent policy exclusion applies, and Air Cargo has no coverage.
The court remanded the case on this issue for entry of an order granting summary judgment to Praetorian. It also affirmed the circuit court’s order dismissing Count II of Praetorian’s declaratory judgment complaint, again concluding that Praetorian lacks standing to assert Air Cargo’s entitlement to workers’ compensation immunity.
On May 5, 2017, Anh Kim Ho, an employee of Air Cargo, died in an aircraft crash and Virginia Chau, the administratrix of Ho's estate, filed a wrongful death action in Kanawha Circuit Court in 2019 against Air Cargo.
Praetorian filed a declaratory judgment action in September 2020 to have the court determine the rights and obligations under the policy to Air Cargo.
Praetorian wanted to consolidate the two cases and transfer the wrongful death case, but Chau opposed the motions. Judge Louis Bloom denied both motions in 2021. The circuit court also denied Praetorian's motion to intervene in the wrongful death action.
The Supreme Court found that the circuit court was right in denying the motion to intervene in Chau's wrongful death.
"Before this Court, Praetorian argues that the circuit court erred by dismissing Count II of its declaratory judgment complaint," Bunn writes. "However, as explained above in Section II.B. of this opinion, we conclude that Praetorian has no standing to assert Air Cargo’s entitlement to workers’ compensation immunity. For this reason, we find no error and affirm the circuit court’s order dismissing Count II of Praetorian’s declaratory judgment complaint."
West Virginia Supreme Court of Appeals case numbers: 21-0243, 21-0682