(Download) "Devane V. Kennedy" by West Virginia Supreme Court of Appeals * eBook PDF Kindle ePub Free
eBook details
- Title: Devane V. Kennedy
- Author : West Virginia Supreme Court of Appeals
- Release Date : January 26, 1999
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 74 KB
Description
The appellant herein and intervenor below, the West Virginia Insurance Guaranty Association [hereinafter "WVIGA" or "the Association"], appeals from an order entered on January 21, 1998, by the Circuit Court of Jefferson County enforcing a pre- insolvency settlement agreement entered into by Cheryl Richardson DeVane [hereinafter "Mrs. DeVane"], plaintiff below; George Kennedy, M.D. [hereinafter "Dr. Kennedy"], defendant below; and the Insurance Corporation of America [hereinafter "ICA"], Dr. Kennedy's professional liability insurer. The terms of the settlement anticipated a release, by Mrs. DeVane, of all claims against Dr. Kennedy and Charles Town General Hospital, Inc., d/b/a Jefferson Memorial Hospital [hereinafter "the Hospital"], co-defendant below, in exchange for a payment of $220,000 by ICA. Following the insolvency of Dr. Kennedy's insurer, the WVIGA became liable for covered claims pending against ICA, including Mrs. DeVane's claim resulting from her settlement agreement therewith. As a result of the circuit court's order enforcing the settlement agreement and directing the WVIGA to pay Mrs. DeVane's claim, the WVIGA filed this appeal. The WVIGA asserts two errors, namely (1) that the nonduplication of recovery language contained in W. Va. Code § 33-26-12(1) (1970) (Repl. Vol. 1996) requires the exhaustion of the Hospital's solvent insurance before Mrs. DeVane may recover from the WVIGA and (2) that the circuit court erred by enforcing the pre-insolvency settlement agreement against the WVIGA because the enforcement order constituted a non-binding stipulated judgment and because the Association did not participate in the settlement negotiations. Having reviewed the parties' arguments, designated record, and pertinent authorities, we conclude that the language of W. Va. Code § 33-26-12(1) requires, before resort may be had to the WVIGA, the exhaustion of solvent insurance only insofar as the claim asserted against the WVIGA is collaterally insured by such solvent insurance. We further conclude that the circuit court did not abuse its discretion in ordering the enforcement of the pre-insolvency settlement agreement, and requiring the WVIGA to satisfy ICA's obligation arising therefrom, because the enforcement order was not a stipulated judgment and because the WVIGA's nonparticipation in settlement negotiations does not constitute a valid defense to the settlement's enforcement. Accordingly, we affirm the decision of the Circuit Court of Jefferson County.
 "Devane V. Kennedy" by West Virginia Supreme Court of Appeals * eBook PDF Kindle ePub Free){kind=link}