Insurance Companies Beware: Recent West Virginia High Court Ruling May 'Unleash a Flood of Lawsuits'

Author:Ms Denise Klug and Randal M. Whitlatch
Profession:Dinsmore & Shohl

Since 2005, insurers operating in West Virginia have been able to rest a bit more easily knowing that so-called third-party bad faith or Jenkins claims had been eliminated by amendments to the West Virginia Unfair Trade Practices Act. A recent West Virginia Supreme Court of Appeals opinion, however, could end all of that. In its June 11, 2010 decision in Michael v. Appalachian Heating, LLC, Case No. 35127, the West Virginia Supreme Court of Appeals held that the West Virginia Human Rights Act prohibits unlawful discrimination by a tortfeasor's insurer "in the settlement of a property damage claim when the discrimination is based upon race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status." Moreover, the Court specifically held that "[t]he prohibition of a third-party law suit against an insurer under the [West Virginia Unfair Trade Practices Act] does not preclude a third-party cause of action against an insurer under...the West Virginia Human Rights Act." The impact of this decision on insurers could be tremendous. Justice Ketchum, who filed a dissenting opinion in Michael, thinks the majority opinion "has created a situation ripe for abuse by a handful of litigation lawyers." According to Justice Ketchum, "[a] handful of litigators will unleash a flood of lawsuits alleging discrimination in the settlement of a third-party property damage claims by insurance companies - and in most of those cases, the evidence of 'discrimination' will be entirely spurious." The facts underlying the Michael decision originated from the alleged negligence of Appalachian Heating, who was hired by the Charleston-Kanawha Housing Authority to repair and/or replace climate control units in a public housing development located in Charleston, West Virginia. The Plaintiffs who resided together in an apartment located in the development, are African American. The apartment in which the Plaintiffs were living caught fire due to the alleged negligence of Appalachian Heating, causing a total loss of the Plaintiffs' personal property and rendering the apartment temporarily uninhabitable. State Auto Insurance Co., also a defendant in the action, provided liability insurance coverage to Appalachian Heating. State Auto settled the Plaintiffs' property damage claims; however, the Plaintiffs filed separate lawsuits alleging, that State Auto had violated the West Virginia Human Rights Act in settling their claims. The complaints alleged that...

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