SER WV Fire v. Karl, Judge
Annotate this CaseJanuary 1997 Term
_______________
No. 23944
_______________
STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA FIRE & CASUALTY COMPANY
and JOE KIRTNER,
Petitioners,
v.
THE HONORABLE MARK A. KARL, JUDGE OF THE CIRCUIT COURT OF MARSHALL
COUNTY, WEST VIRGINIA, JIMMY LEE PRICE, and NORA LEE PRICE,
Respondents,
_________________
23986
_________________
STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA FIRE & CASUALTY
COMPANY; CHICAGO INSURANCE COMPANY; INTERSTATE INDEMNITY COMPANY; STATE FARM FIRE AND
CASUALTY COMPANY; STATE FARM GENERAL INSURANCE COMPANY; STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY; THE CELINA MUTUAL INSURANCE COMPANY; REPUBLIC MUTUAL INSURANCE COMPANY;
WEST VIRGINIA FARMERS MUTUAL INSURANCE COMPANY and CANAL INSURANCE COMPANY,
Petitioners,
v.
HONORABLE JOHN T. MADDEN, JUDGE OF THE CIRCUIT COURT OF MARSHALL COUNTY,
MEGAN BARKER, BRADLEY BARKER, and All Others Similarly Situated, and ROBERT P.
FITZSIMMONS, MICHAEL W. MCGUANE, and THOMAS C. SCHULTZ,
Respondents.
________________________________________________________________________
WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
________________________________________________________________________
Submitted: March 25, 1997
Filed: May 29, 1997
James A. Varner, Esq.
Catherine D. Munster, Esq.
Gregory H. Schillace, Esq.
McNeer, Highland,
McMunn and Varner, L.C.
Clarksburg, West Virginia
Attorneys for Petitioners
R. Carter Elkins, Esq.
Laura Gray, Esq.
Campbell, Woods, Bagley, Emerson,
McNeer and Herndon
Huntington, West Virginia
Co-Attorneys for State Farm Petitioners
Robert P. Fitzsimmons, Esq.
Russell Jay Guthrie, Esq.
Fitzsimmons Law Office
Wheeling, West Virginia
Michael W. McGuane, Esq.
Thomas C. Schultz, Esq.
Wheeling, West Virginia
Attorneys for Respondents
Thomas V. Flaherty, Esq.
Flaherty, Sensabaugh & Bonasso
Charleston, West Virginia
Attorney for Amici Curiae
Continental Casualty Company, et al
Heather Heiskell Jones, Esq.
J. Michael Weber, Esq.
Dean A. Furner, Esq.
Spilman, Thomas & Battle
Parkersburg, West Virginia
Attorneys for Amici Curiae
The West Virginia Insurance
Federation, et al.
Boyd L. Warner, Esq.
G. Thomas Smith, Esq.
Waters, Warner & Harris
Clarksburg, West Virginia
Attorneys for Amicus Curiae
United States Fidelity and
Guaranty Company
Eric K. Falk, Esq.
Davies, McFarland & Carroll, P.C.
Pittsburgh, Pennsylvania
Attorney for Amici Curiae
Tokio Marine & Fire Insurance
and Houston General Insurance
Company
Richard C. Polley, Esq.
S. Jane Anderson, Esq.
Gail W. Kahle, Esq.
Dickie, McCamey & Chilcote
Attorneys for Amici Curiae
Quaker City Insurance Company, et al.
Mary H. Sanders, Esq.
Huddleston, Bolen, Beatty, Porter & Copen
Charleston, West Virginia
Attorney for Amici Curiae
Shelby Insurance Company, et al.
Robert G. Steele, Esq.
Steptoe & Johnson
Clarksburg, West Virginia
Attorney for Amici Curiae
Church Mutual Insurance Company,
et al.
David L. Wyant, Esq.
Shuman, Annand & Poe
Wheeling, West Virginia
Attorney for Amici Curiae
Dairyland Insurance and
Sentry Insurance
Brent L. Kesner, Esq.
Kesner, Kesner & Bramble
Charleston, West Virginia
Attorney for Amici Curiae
Ohio Farmers Insurance Company
Westfield Insurance Company
Westfield National Insurance Company
Joseph J. Bosick, Esq.
Pietragallo Bosick & Gordon
Pittsburgh, Pennsylvania
Attorney for Amici Curiae
Coregis Insurance Company, et al.
Phillip L. Schwartz, Esq.
American Insurance Association, Inc.
Washington, D.C.
J. Michael Weber, Esq.
Spilman, Thomas & Battle
Parkersburg, West Virginia
Attorneys for Amici Curiae
Acceleration National Insurance
Company and Yashuda Fire & Marine
of America
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE
COURT
1. " '
"In determining whether to grant a rule to show cause in prohibition when a court is
not acting in excess of its jurisdiction, this Court will look to the adequacy of other
available remedies such as appeal and to the over-all economy of effort and money among
litigants, lawyers and courts; however, this Court will use prohibition in this
discretionary way to correct only substantial, clear-cut, legal errors plainly in
contravention of a clear statutory, constitutional, or common law mandate which may be
resolved independently of any disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error is not corrected in
advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744
(1979).' Syllabus Point 12, Glover v. Narick, 184 W.Va. 381, 400 S.E.2d 816
(1990)." Syllabus Point 1, State ex rel. Doe v. Troisi, 194 W.Va. 28, 459 S.E.2d 139 (1995).
2. W.Va. Code, 44-10-14
[1929] does not require court approval of all claims where a guardian executes a
settlement agreement on behalf of a minor who has been injured in his or her person or
property.
Starcher, Justice:
These are petitions for
writs of prohibition from the Circuit Court of Marshall County. In the underlying cases,
insurance companies for insureds who had injured a child paid money to the parents of the
injured children and obtained the parents' signatures on settlement releases without
obtaining court approval of the settlements.
The Circuit Court of Marshall County
concluded that W.Va. Code, 44-10-14 [1929] requires court approval of all such
settlements. The insurance companies ask that we determine that this conclusion was
incorrect. We conclude that this statute does not require court approval of all such
settlements, and we grant a writ of prohibition as moulded, directing the circuit court
not to proceed under an incorrect legal conclusion.
I.
Facts and Background
These petitions for writs of prohibition
involve two underlying cases from the Circuit Court of Marshall County. We have
consolidated them for purposes of argument and decision. In the first case, the
respondents (plaintiffs below), Jimmy Lee Price (an infant) and his mother Nora Lee Price,
have sued the petitioners (defendants below) West Virginia Fire & Casualty Insurance
Company ("WVF&C") and its claims representative, Joe Kirtner ("the
Price case"). In the second case, the respondents (plaintiffs
below), Meagan Barker (an infant) and her father Bradley Barker, individually and on
behalf of all others similarly situated, have sued the petitioners (defendants below)
Nationwide Mutual Insurance
Company and its claims representative G. Greg Sherman, and a large number of other
insurance company defendants ("the Barker case").
In both lawsuits, the complaints allege
violations of W.Va. Code, 33-11-4(9) [1985] (unfair claims settlement practices),
the tort of outrage and fraud. The gravamen of the two lawsuits is the respondents'
contention that the petitioners have paid money to and obtained settlement releases from
the parents of injured children, where there was no litigation pending, to settle tort
claims against the petitioners' insureds (we shall refer to such cases as "infant
settlements")See footnote 1 1 --
in a fashion that was wrongful, illegal and actionable.
The petitioners request that this court
prohibit the circuit court from proceeding in either case upon the premise that the
provisions of W. Va. Code, 44-10-14 [1929]See
footnote 2 2 require
court approval of all infant settlements.See
footnote 3 3
In the Price case, the Circuit Court of
Marshall County has entered an order requiring the production of WVF&C's claim files
for the past ten years for other West Virginia infant settlements which were not approved
by a court. In this order, the circuit court stated that W.Va. Code, 44-10-14
[1929] "requires an infant settlement proceeding where a minor is injured in his
person or property." While it does not appear that such a ruling has been made in the
Barker case, a discovery request for claim files similar to the request at issue in the
Price case is pending in the Barker case.
It is apparently undisputed that the
petitioners did not seek or obtain court approval for paying money to and obtaining
releases from the Price and Barker parents (who
were not represented by counsel when they signed the releases)See footnote 4 4 ; and that the petitioners have
acted in a similar fashion in numerous other instances.See footnote 5 5 We conclude that the issue of
whether W.Va. Code, 44-10-14 (1929) requires court approval of all infant settlements is a
substantial, clear-cut narrow legal issue that is before the circuit
court in both of the underlying cases.
II.
Standard of Review
This Court is
restrictive in the use of prohibition as a remedy. " ' "In determining whether
to grant a rule to show cause in prohibition when a court is not acting in excess of its
jurisdiction, this Court will look to the adequacy of other available remedies such as
appeal and to the over-all economy of effort and money among litigants, lawyers and
courts; however, this Court will use prohibition in this discretionary way to correct only
substantial, clear-cut, legal errors plainly in contravention of a clear statutory,
constitutional, or common law mandate which may be resolved independently of any disputed
facts and only in cases where there is a high probability that the trial will be
completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle
v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).' Syllabus Point 12, Glover v.
Narick, 184 W.Va. 381, 400 S.E.2d 816 (1990)." Syllabus Point 1, State ex rel.
Doe v. Troisi, 194 W.Va. 28, 459 S.E.2d 139 (1995). We give questions of law and
statutory interpretations a de novo review. Syllabus Point 1, Chrystal R.M. v.
Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
In the instant case, our determination of
the narrow legal issue presented by the statute in question will serve the purposes
articulated in the foregoing standard. Our determination herein is not dispositive of the
discovery and bad faith issues which are
properly within the province of the trial court in the underlying,
pending proceedings.See footnote 6 6 Hence,
our discretionary use of the writ of prohibition is indicated.
III.
Discussion
The statute at issue, W.Va. Code,
44-10-14 [1929], states, in part:
In any case where an infant is
injured in his person or his property by another, the legal guardian of such infant may
negotiate with the person inflicting such injury for the settlement of any claim for
damages therefor. But the guardian shall, when proceeding under this section,
before making final settlement, file his petition in equity with the circuit court of the
county, or judge thereof in vacation, in which he was appointed, for permission to settle
such claim . . .
* * *
Nothing in this section contained
shall be construed as preventing any tort-feasor from settling any such claim in any of
the modes now recognized by law. (emphasis added).
We begin by examining the pertinent
language of the statute itself. "[C]ourts should not ordinarily stray beyond the
plain language of unambiguous statutes . . . [except in exceptional circumstances] in
which there is a clearly expressed legislative intent to the contrary, in which a literal
application would defeat or thwart the statutory purpose; or in which a literal
application of the statute would produce an absurd or unconstitutional result[.]"
State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994)
(citations omitted).
The initial sentence of W.Va. Code,
44-10-14 [1929] permits a guardian to negotiate on behalf of an injured infant, and then
provides that "the guardian shall, when proceeding under this section, before
making final settlement . . . " follow certain procedures for obtaining court
approval. Id. (emphasis added). This statutory language by clear implication
contemplates that a guardian may elect not to proceed under the provisions of this
section.
Additionally, the statute's final sentence
explicitly states that the statute does not "[prevent]. . . any tort-feasor from
settling any such claim in any of the modes now recognized by law . . . ." Id.
(emphasis added). This statutory language also contemplates that a tort-feasor may elect
not to proceed under this section.
Therefore, the statutory language
plainly contemplates that both parties to an infant settlement -- the guardian and the
tort-feasor -- may elect not to proceed under the provisions of the statutory section in
question.
Additional support for this interpretation
is found in the language of the title of the original Act, which reads:
Guardian of injured infant may file
petition in circuit court for settlement of damages for personal injuries to infant;
procedure on; form of release; other modes of settlement permitted.
1929 Acts of the Legislature Chapter 37. (emphasis added).
Additionally, the introduction to the
original Act described the statute as:
An Act to provide for the releasing of
infants' claims for personal injuries in making binding and conclusive settlements made in
accordance with this Act, but not making such mode exclusive of modes now recognized by
law."
Id. (emphasis added).
Furthermore, the plain meaning we find in the statutory language in question is supported by the decision in a case that examined a similar statute and raised similar issues, Purcell v. Robertson, 122 W.Va. 287, 8 S.E.2d 881 (1940). In Purcell, this Court rejected the argument that W.Va. Code, 44-5-7 [1931],See footnote 7 7 which provided for court approval
of settlements by trustees, "required the sanction of a court of
chancery as a condition precedent." 122 W.Va. at 292, 8 S.E.2d at 883.
That is, in Purcell this Court held
that a similar statute's authorization of court approval in settlements by trustees did
not create a statutory requirement of court approval for all settlements by trustees.
The respondents do not offer a plausible
contrary reading of this plain statutory language. Exceptional circumstances are not
presented by the instant case which would warrant going beyond the statute's plain
language. We conclude that W.Va. Code, 44-10-14 [1929] does not require court
approval of all claims where a guardian executes a settlement agreement on behalf of a
minor who has been injured in his or her person or property.
IV.
Conclusion
We grant the writ of prohibition as moulded. To the extent that any rulings by the circuit court in the Price or Barker cases are premised upon the assumption that W.Va. Code, 44-10-14 [1929] requires court approval of all cases where a parent or guardian obtains payment and executes a release on behalf of or regarding the injuries of an infant who
has been injured in his person or property and who is not involved in litigation, such rulings should be reconsidered.See footnote 8 8
For the foregoing reasons, the writ of
prohibition is granted as moulded.
Writ granted as moulded.
Footnote: 1 1 An "infant
settlement," as this opinion uses the term, therefore means a settlement regarding
the claims and injuries of a minor where a lawsuit has not been filed, and is
different from a settlement where a lawsuit has been filed. Where a lawsuit has been filed
regarding the minor's claims and injuries, the provisions of W.Va. Code, 56-10-4
[1982] state in part:
In any action or suit wherein an infant
or insane person is a party, the court in which the same is pending, or the judge thereof
in vacation, shall have the power to approve and confirm a compromise of the matters in
controversy on behalf of such infant or insane person, if such compromise shall be deemed
to be to the best interest of the infant or insane person.
Footnote: 2 2 W.Va. Code, 44-10-14
[1929] states:
In any case where an infant is injured
in his person or his property by another, the legal guardian of such infant may negotiate
with the person inflicting such injury for the settlement of any claim for damages
therefor. But the guardian shall, when proceeding under this section, before making final
settlement, file his petition in equity with the circuit court of the county, or judge
thereof in vacation, in which he was appointed, for permission to settle such claim, in
which petition he shall state the name and age of his ward, the nature and character of
the injury, and the facts relied upon by him to induce the court or judge to approve such
proposed settlement. The court, or judge thereof in vacation, shall appoint a guardian ad
litem for the ward who shall answer the petition. Upon the hearing thereof, the court or
judge thereof in vacation, may grant or refuse the petition by a proper order, as may seem
just and proper. In case the court or judge shall grant the petition, there may be
included in such order permission to the guardian to pay to his attorney such amount in
connection with the settlement of the claim as in the discretion of the court or judge is
reasonable and proper, taking into consideration the amount to be paid as damages, the
necessities of the infant, the nature of the injury, the probability of recovery in case
of suit, the difficulties involved in effecting the settlement, and such other matters as
may properly have a bearing on the reasonable compensation to be allowed such attorney. In
case the court or judge approves the prayer of the petition, the guardian may be
authorized to settle and receive the amount of the settlement, and to execute to the
tort-feasor a release therefor. Before so doing he shall execute a bond in an amount equal
to the approved settlement, unless he be already under bond sufficient for the purpose,
with surety or sureties approved by the clerk of said court, conditioned to account for
and pay over the amount of the approved settlement as required by law, which bond shall be
filed and recorded by the clerk.
The release to the tort-feasor may be in
form or effect as follows:
I, .........., the guardian of
.........., in consideration of the sum of $.........., and under authority of an order of
the circuit court of .......... county, entered on the .......... day of ..........,
19..., do hereby release .......... from all claims and demands on account of injuries
inflicted upon my said ward (or my said ward's
property, as the case may be) by said .......... on the .......... day of ..........,
19..., at .......... (here state the place or places).
...................................
Guardian of
After receiving such release from the
guardian of an infant who has been injured in his person or in his property by such
person, the tort-feasor shall be forever acquit therefor.
Nothing in this section contained
shall be construed as preventing any tort-feasor from settling any such claim in any of
the modes now recognized by law. (emphasis added).
Footnote: 3 3 In both cases the petitioners also request that we prohibit the circuit court from requiring the petitioners to produce claim files of other infant settlements; that we prohibit the circuit court from considering or granting class certification; and that we rule that the respondents may not go forward with claims for unfair claim settlement practices under W.Va. Code, 33-11-4(9) [1985].
Footnote: 4 4 The
release signed in the Barker case read as follows:
RELEASE OF ALL CLAIMS
FOR AND IN CONSIDERATION OF the payment
to me/us the sum of Five Thousand and 00/100 ($5,000.00) dollars, and other good and
valuable consideration, I/we, being of lawful age, have released and discharged, and by
these presents do for myself/ourselves, my/our heirs, executors, administrators and
assigns, release, acquit and forever discharge [name omitted] and any and all other
persons, firms and corporations, whether herein named or referred to or not, of and from
any and all past, present and future actions, causes of action, claims, demands, damages,
costs, loss of services, expenses, compensation, third party actions, suits at law or in
equity, including claims or suits for contribution and/or indemnity, of whatever nature,
and all consequential damage on account of, or in any way growing out of any and all known
and unknown personal injuries, death, and/or property damage resulting or to result from
an accident that occurred on or about 10-05-1994 at or near RT 2 & VA. ST--NEW
MARTINSVILLE.
I/we hereby declare and represent that
the injuries sustained may be permanent and progressive and that recovery therefrom is
uncertain and indefinite, and in making this release and agreement it is understood and
agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature,
extent and duration of said injuries, and that I/we have not been influenced to any extent
whatever in making this release by any representations or statements regarding said
injuries, or regarding any other matters, made by the persons, firms or corporations who
are hereby released, or by any persons representing him or them, or by any physician or
surgeon by him or them employed.
I/we understand that this settlement is
the compromise of a doubtful and disputed claim, and that the payment is not to be
construed as an admission of liability on the part of the persons, firms and corporations
hereby released by whom liability is expressly denied.
It is agreed that distribution of the above sum shall be made as follows: As the minor claimant's parents see fit. Please note that the above stated amount is in addition to $581.80 in medical bills already paid directly to the providers by Nationwide Insurance.
Footnote: 5 5 In the Price case, the
deposition of the petitioner WVF&C's employee included the following testimony:
Q You would agree that liability, after January 4, 1996, existed
and the company was going to have to pay for damages incurred by these two boys; is that a
fair statement?
A Yes.
Q Now, the $5,000.00, what did that represent?
A That was -- what I was told was that was money that would be for
Jimmy Price and for him being injured and going through the pain of having a head injury,
or having injuries.
Q And that was without having ever seen any medical records to
ascertain what the true extent of his damages and injuries were; is that correct?
A Yes.
Q And are you to give the same interest of a claimant, who has
damages and injury, as you do to your company in trying to evaluate these claims fairly?
A Yes, sir.
Q And so if you were to give the same regard to Jimmy Price as you
do to your insurance company, your boss, your employer, you should have evaluated these
particular headaches -- you or somebody for the company; right?
A If they did not -- if they did not want to settle the claim, yes.
Q Well, you can't just let people blindly go in and on behalf of
this insurance company for the rest of his life believing probably they didn't know
whether or not the headaches were, in fact, caused from the accident; is that right?
A Not for the rest of his life. My understanding was that he could
potentially file an additional claim when he reached the legal age.
Q This company intentionally went in and offered money and told you
that this could be opened up later on, then; right? They intentionally did that; didn't
they?
A I'm not sure when I was told -- whether it was prior to the offer
or not. It was in the process of when we were going to settle it. I would say it was
probably prior to me offering the $5,000.00.
Q Now, that's an important thing for a parent to know -- that
you could reopen one of these things; right? Wouldn't you think that was pretty important
for a parent? By the way, are you a parent?
A Yes, sir, I am.
Q Don't you think that's pretty important for your child to know --
that if they had an injury and they had problems in the future you could just go back to
court and reopen it and get money?
A I don't know if you'd consider it important or not.
Q How about you, as a parent; if your child had been injured -- and
God forbid that your child would ever be injured -- but assuming that a child would be
injured and you were the parent, wouldn't you want to know if you had the rights, if
problems came up in the future, that you go to court with no problem and have the
insurance company come back in and start paying additional monies?
A Would I want to know? Probably.
Q You would consider that a material part of the settlement that
people should know if they're going to actually understand what they are settling for;
right?
A I would consider that something that could be talked about, yes.
Q Did you ever tell Mrs. Price that?
A I don't believe so, no.
Q Did you ever write her a letter and tell her that?
A No, sir.
Q Did you present a release to her to sign?
A Yes, sir.
Q Did that release not include that information?
A I don't believe so.
Q So, this material, important information about coming back into
court later on in life for the child, up to the time of majority, was never communicated
to Mrs. Price; is that correct?
A That's correct.
Q Never communicated to Jimmy Price; right?
A Not by me.
Q To your knowledge, not by anybody from this company; right?
A. That's correct.
Footnote: 6 6 We decline the petitioners'
request that we address the issues of: whether the respondents should or should not be
entitled to pursue discovery of claim files or other information regarding other infant
settlements to prove violation of W.Va. Code, 33-11-4(9) [1985] and to prove
punitive damages, cf. State Farm Mut. Auto Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992) (evidence of other unfair acts is relevant to establish a violation of W.Va.
Code, 33-11-4(9) [1985]); cf. also Poling v. Motorists Mut. Ins. Co., 192 W.Va.
46, 450 S.E.2d 635 (1994) (punitive damages available under W.Va. Code, 33-11-4(9)
[1985]); cf. also Colonial Life and Accident Ins. Co. v. Perry, 31 Cal. 3d 785, 183 Cal. Rptr. 810, 647 P.2d 86 (1982) (writ of prohibition denied, discovery of claim files
permitted); whether the respondents may obtain discovery regarding or otherwise seek class
certification, cf. Burks v. Wymer, 172 W.Va. 478, 485, 307 S.E.2d 647, 654 (1983)
("[I]n most cases, an exploration beyond the pleadings is essential to make an
informed judgment on the propriety of a proposed . . . class action."); whether
misleading or failing to inform parents regarding the terms of an infant settlement may be
an unfair claims settlement practice under W.Va. Code, 33-11-4(9) [1985]; and
whether the respondents must void a completed infant settlement which did not receive
court approval before maintaining an action for unfair claims settlement practices under W.Va.
Code, 33-11-4(9) [1985]. These are matters which are within the province of the
circuit court in the underlying, pending cases.
Footnote: 7 7 W.Va. Code, 44-5-7
[1931] stated:
It shall be lawful for any guardian, committee or trustee, to compound and compromise any liability due to or from him, provided that such compounding and compromise be ratified
and approved by a court of equity of competent jurisdiction, all parties in interest being before the court by proper process. When such compounding and compromise has been so ratified and approved, it shall be binding on all parties in interest before the court.
Footnote: 8 8 We do not by our decision in
this case address or express any opinion regarding the rights, duties, liabilities or
remedies of an infant, parent, guardian, tort-feasor, insured or insurer who has entered
into or been the subject of an infant settlement which has not been approved by a court.
However, three issues raised in the briefs in this case require us to observe that we see
the need for further development of the law in West Virginia regarding infant settlements.
The first of these issues is raised by the petitioners' contention
that the use of the term "legal guardian" in W.Va. Code, 44-10-14 [1929]
means that the statute is applicable only where there is a "legal guardian"
appointed for an infant; and that the statute does not apply at all to "natural
guardians" like parents.
Because resolving this issue is not necessary to decide the narrow
issue before us, we decline to do so. However, we are confident that in many if not most
of the circuit courts of this state, the summary proceeding procedures set forth in this
statute are often used to obtain court approval for a minor's parents to settle and
release a minor's claims where there is no suit pending. Cf. Miller v. Lambert, supra, 195
W.Va. at 68 n.11, 464 S.E.2d at 587 n.11 (1985), where this Court stated: "W.Va.
Code, 44-10-14 (1929), provides for court approval of infant settlements even though no
suit has been filed."
A second issue is raised by an amici curiae brief filed in
the instant case by the West Virginia Insurance Federation, the West Virginia Association
of Domestic Insurance Companies, and the National Association of Independent Insurers.
These amici suggest that West Virginia's statutory law on infant settlements may be
"unique" among the states "by its preservation of common law
settlement" -- i.e., by purportedly not requiring under any circumstances some form
of court approval or similar safeguard for any infant settlements.
This suggestion -- coming from the representatives of an industry
that we can assume is involved each year in hundreds of infant settlements in West
Virginia and in tens of thousands of infant settlements across the country -- raises the
prospect that injured children in West Virginia may not be receiving the same kind and
degree of legal protection in infant settlements that is afforded to children who are
injured in other jurisdictions.
A third issue is raised by the respondents' assertion that there
is a significant potential for injustice if parents and other guardians may in a blanket
fashion enter into settlements regarding childrens' claims without court approval or
similar safeguards. See, e.g., the Barker case release and the deposition
transcript excerpt from the Price case at notes 4 and 5, supra. The petitioners
respond that any such potential for injustice is avoided by theoretically allowing
children to at some later date void infant settlements and bring claims
against a tort-feasor, a tort-feasor's insurer and/or the infant's own parents or
guardian.
The respondents reply that in the real world -- given the
disappearance and deterioration of evidence and records over time, possible lack of
judgment or information or financial imprudence by a parent, and/or the failure of a
parent or child to know of their theoretical legal rights -- these protections are
illusory and contrary to sound public policy. In light of these
issues, we observe that we see the need for further development of the law in this state
regarding infant settlements.
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