Sharon Tasker v. Agency Insurance Company and Allan L. McVey, Insurance Commissioner of the State of West Virginia

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
SHARON TASKER, September 26, 2023
Complainant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-83 (Admin. Proc. No. 22-IC-02378)

AGENCY INSURANCE COMPANY,
Respondent Below, Respondent

and

ALLAN L. MCVEY,
INSURANCE COMMISSIONER OF
THE STATE OF WEST VIRGINIA,
Respondent

MEMORANDUM DECISION

Petitioner Sharon Tasker appeals the January 11, 2023, order from respondent Allan
L. McVey, in his official capacity as the West Virginia Insurance Commissioner
(“Commissioner”), denying Ms. Tasker’s request for a hearing on her third-party
administrative complaint (“complaint”) against respondent Agency Insurance Company
(“Agency Insurance”). In her complaint, Ms. Tasker contested Agency Insurance’s denial
of her claim based upon its determination that she was liable for a motor vehicle accident
involving an Agency Insurance insured. Agency Insurance and the Commissioner each
filed a response. 1 Ms. Tasker did not file a reply. The issue on appeal is whether the
Commissioner erred in denying Ms. Tasker’s request for a hearing.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Commissioner’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This case arises from a motor vehicle accident in Berkeley County, West Virginia
on December 16, 2021, involving a vehicle driven by Ms. Tasker and a second vehicle.

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Sharon Tasker is self-represented. Agency Insurance Company is represented by
Brent K. Kesner, Esq., and Ernest G. Hentschel II, Esq. The Commissioner is represented
by Larry M. Bonham, Esq.

1
The second vehicle and its driver, Ms. Feiser, were insured by an Agency Insurance policy.
The accident was investigated by a deputy with the local sheriff’s department. As part of
the investigation, the deputy completed a Uniform Traffic Crash Report (“report”).
According to the Report, the deputy attributed fault to Ms. Feiser, who allegedly ran a red
light, and collided with Ms. Tasker, causing damages. The deputy made this finding based
upon the written statement of a witness, Mr. Macafoy. However, the report failed to contain
any contact information for this witness.

Following the accident, Ms. Tasker filed a claim with Agency Insurance seeking
coverage for the damage to her vehicle and medical expenses related to the accident.
Thereafter, Agency Insurance began its investigation into the facts of the accident. Due to
the lack of contact information, Mr. Macafoy could not be located. Agency Insurance was
also unable to contact Ms. Feiser’s passenger from the day of the incident, and Ms. Feiser
had no recollection of the accident due to being rendered unconscious in the collision.
However, Agency Insurance was able to locate and speak with another eyewitness, Ms.
Fox. According to Ms. Fox, the deputy’s report was incorrect in that, it was Ms. Tasker
who ran a red light at a high rate of speed and collided with Ms. Feiser’s vehicle.
Additionally, Agency Insurance spoke with Ms. Tasker who claimed that Ms. Feiser had
run a red light, striking her vehicle at a high rate of speed.

Based upon its investigation, by letter dated December 1, 2022, Agency Insurance
notified Ms. Tasker that it was denying her claim because its investigation indicated that
she was the proximate cause of the accident and damages sustained. Thereafter, Ms.
Tasker’s insurer accepted liability for the incident and the bodily injury claim of Ms. Feiser
and her passenger.

On June 10, 2022, Ms. Tasker filed her complaint against Agency Insurance with
the Offices of the Insurance Commissioner (“OIC”). In her complaint, Ms. Tasker disputed
Agency Insurance’s finding of liability against her and its denial of her claim. By letter
dated July 11, 2022, Ms. Tasker was notified by the OIC that it had received her complaint
and would be investigating the same. Included in this letter was the following paragraph,
in part:

Please note that an assessment of your administrative complaint by this
agency is for the sole purpose of determining whether Agency Insurance
Company committed an unfair claims settlement practice while handling
your insurance claim. While this agency has the authority to order an insurer
to cease and desist from engaging in an unfair claim settlement practice, it
does not have the authority to determine and order payment of any damages
you may have incurred in connection with the underlying incident that gave
rise to the need to file an insurance claim in the first place.

2
Following its investigation and review of the complaint, the OIC determined that
Agency Insurance did not violate state insurance laws or commit an unfair claims handling
or settlement practice in its administration of Ms. Tasker’s claim. The OIC informed Ms.
Tasker of its determination by letter dated November 22, 2022, wherein it noted:

Your complaint was reviewed by this agency solely to determine whether
Agency Insurance Company violated state insurance laws and/or committed
an unfair claims settlement practice in the handling of your third-party claim.
The Insurance Commission does not have the authority, and it is not the
proper forum, to adjudicate a good faith disagreement regarding liability of
your claim. Our review of this matter revealed that Agency Insurance
Company conducted a reasonable investigation into your claim and, based
on the facts gathered, determined that its insured was not negligent.
Accordingly, your claim was denied. I understand that you likely disagree
with Agency Insurance Company’s decision in regard to your claim.
However, W. Va. Code § 33-11-4a(g) [(2005)] states that “[a] good faith
disagreement over the value of an action or claim or the liability of any party
to any action or claim is not an unfair claims settlement practice.” We have
concluded that your complaint involves a good faith disagreement regarding
liability in regard to your claim and not an unfair claims settlement practice.

Because the OIC determined that Agency Insurance did not violate state insurance laws or
commit an unfair claims settlement practice regarding Ms. Tasker’s claim, the OIC closed
the complaint without further hearing.

On December 14, 2022, Ms. Tasker filed her hearing request with the Commissioner
seeking to have her complaint heard on the merits. On January 11, 2023, the Commissioner
entered an order denying Ms. Tasker’s request for a hearing. In this order, the
Commissioner again explained that Ms. Tasker’s complaint was not based on allegations
of unfair settlement practices by Agency Insurance, but rather, she sought to have the
Commissioner rule on the merits of liability for the accident and to direct Agency Insurance
to pay her claim for damages. Citing West Virginia Code § 33-11-4a (2005), the
Commissioner noted that his authority was limited to resolving complaints regarding unfair
claims settlement practices, and that he did not have the statutory authority to order an
insurance company to pay a third-party claimant’s damages. 2 For that reason, the order
concluded that neither the Commissioner, nor the OIC had the authority to adjudicate the
claims raised by Ms. Tasker.

2
In general, West Virginia Code § 33-11-4a(a) states that a third-party claimant’s
sole remedy for an unfair claims settlement practice or bad faith settlement of a claim is
the filing of an administrative complaint with the Commissioner. See also W. Va. Code §
33-11-4(9) (2002) (defining the term “unfair claim settlement practices”).

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The January 11, 2023, order further found that pursuant to West Virginia Code §
33-2-13 (1957) and West Virginia Code of State Rules § 114-13-3.3 (2003), the
Commissioner has discretion to grant or refuse a hearing request. 3 Therefore, due to the
lack of statutory authority to rule on the issues raised in Ms. Tasker’s complaint, the
Commissioner exercised his discretion and denied the hearing request. It is from this order
that Ms. Tasker now appeals.

Our review of this matter is governed by the State Administrative Procedures Act,
and it provides:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate, or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021).

On appeal, Ms. Tasker argues that had the Commissioner heard her case on the
merits, it would have been determined that Agency Insurance erred in its assignment of
liability for the motor vehicle accident, and that, as a result, would have found her claim

3
West Virginia Code § 33-2-13 states, in part, “the commissioner may call and hold
hearings for any purpose deemed necessary by him for the performance of his duties.”
Pursuant to West Virginia Code of State Rules § 114-13-3.3:

When the commissioner is presented with a demand for a hearing . . . he or
she shall conduct a hearing[.] However, if the commissioner shall determine
that the hearing . . . [w]ould involve an exercise of authority in excess of that
available to him or her under law; or . . . [w]ould serve no useful purpose,
the commissioner shall . . . enter an order refusing to grant the hearing as
requested, incorporating therein his or her reasons for such refusal.

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compensable. 4 We disagree, and find that the Commissioner lacked authority to adjudicate
the issues of liability and payment raised by Ms. Tasker in her complaint.

The complaint is governed by the Unfair Trade Practices Act (“Act”), West Virginia
Code §§ 33-11-1 to -10. The Act provides for the Commissioner’s review of third-party
complaints alleging unfair claims settlement practices. See W. Va. Code § 33-11-4a.
However, as the Commissioner properly concluded, West Virginia Code § 33-11-4a(g)
expressly states that a good faith dispute over the liability or value of a claim does not
constitute an unfair claims settlement practice. In this case, Ms. Tasker disputes Agency
Insurance’s determination that she was liable for the motor vehicle accident when it denied
her claim. Nothing in her complaint alleged an unfair claims settlement practice by Agency
Insurance. As such, we conclude that Ms. Tasker’s complaint was clearly framed as a good
faith disagreement between Ms. Tasker and Agency Insurance over liability and the value
of her claim. Therefore, we find that the Commissioner did not err in finding it lacked
jurisdiction and that the OIC was the improper forum for Ms. Tasker to litigate this dispute.

We further find that the Commissioner did not err in denying Ms. Tasker’s request
for a hearing on the merits of her complaint. Both West Virginia Code § 33-2-13 and West
Virginia Code of State Rules § 114-13-3.3 grant the Commissioner discretionary authority
in deciding whether to grant or deny hearing requests. In this case, it was determined that
a ruling on Ms. Tasker’s complaint would exceed the Commissioner’s statutory authority,
and, thus, the hearing would serve no useful purpose. Critically, these bases are expressly
permitted by Rule as grounds upon which the Commissioner may deny a hearing request.
See W. Va. Code R. § 114-13-3.3. Further, our state’s highest court has previously found
that the Commissioner is not required to grant a hearing on every complaint. See Lightner
v. Riley, 233 W. Va. 573, 579-583, 760 S.E.2d 142, 148-152 (2014) (noting West Virginia
Code § 33-2-13 and West Virginia Code of State Rules § 114-13.3 give the Commissioner
discretion to deny hearing requests). As previously established, Ms. Tasker’s complaint
was based solely on issues outside the purview of the Commissioner’s statutory authority.
Therefore, we find that the Commissioner correctly determined a hearing in the matter
would serve no useful purpose.

Accordingly, we find no error and affirm the Commissioner’s January 11, 2023,
denial of Ms. Tasker’s request for a hearing on her complaint.

Affirmed.

4
Ms. Tasker’s appeal also seeks for this Court to rule on the merits of Agency
Insurance’s liability determination. We decline to do so. That is a determination first
reserved for a trial court. As an appellate court, our review is limited to the order on appeal.
In this case, because the order on appeal is not from a trial court, we do not have jurisdiction
to consider the merits of that argument in this appeal.

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ISSUED: September 26, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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