John Doe, an unknown driver v. Hasil Pak

No. 15-0013 – John Doe, an unknown driver v. Hasil Pak
FILED
January 28, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Davis, Justice, concurring, in part, and dissenting, in part:
I fully agree with the new syllabus point herein announced by the majority and its
corresponding determination that the circuit court erred in refusing to credit State Farm’s advance
payment to its insured against the final judgment she obtained in this action. I likewise agree with
the majority’s determination that Ms. Pak is not entitled to prejudgment interest for her loss of
household services, because she had no out-of-pocket expenditures related to that loss. Accordingly,
I concur in those portions of the majority opinion. However, I part ways with my brethren on the
proper method of calculating pre-judgment interest pursuant to W. Va. Code § 56-6-31(a) (2006)
(Repl. Vol. 2012).
In this case, the majority relied on this Court’s prior decision in State Farm Mutual
Automobile Insurance Co. v. Rutherford, 229 W. Va. 73, 726 S.E.2d 41 (2011), to conclude that the
circuit court erred by failing to deduct State Farm’s advance payment to Ms. Pak from the judgment
amount prior to assessing interest thereon. Because the majority’s reliance on Rutherford
perpetuates the misinterpretation of W. Va. Code § 56-6-31(a), I must dissent as I did with respect
to the same issue in Rutherford.
W. Va. Code § 56-6-31(a) states, in relevant part,
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Except where it is otherwise provided by law, every judgment
or decree for the payment of money, whether in an action sounding
in tort, contract or otherwise, entered by any court of this state shall
bear interest from the date thereof, whether it be so stated in the
judgment or decree or not: Provided, That if the judgment or decree,
or any part thereof, is for special damages, as defined below, or for
liquidated damages, the amount of special or liquidated damages
shall bear interest at the rate in effect for the calendar year in which
the right to bring the same shall have accrued, as determined by the
court and that established rate shall remain constant from that date
until the date of the judgment or decree, notwithstanding changes in
the federal reserve district discount rate in effect in subsequent years
prior to the date of the judgment or decree. Special damages includes
lost wages and income, medical expenses, damages to tangible
personal property and similar out-of-pocket expenditures, as
determined by the court. If an obligation is based upon a written
agreement, the obligation shall bear a prejudgment interest at the rate
set forth in the written agreement until the date the judgment or
decree is entered and, thereafter, the judgment interest rate shall be
the same rate as provided for in this section.
(Emphasis added). As I pointed out in my separate opinion in Rutherford,
The plain language of W. Va. Code § 56-6-31 states that “the
amount of such special or liquidated damages shall bear interest.”
(Emphasis added). The word “amount,” though not defined by
statute, is commonly understood to mean “aggregate,” “full value,”
“total,” or “the whole.” See, e.g., Random House Webster’s
Unabridged Dictionary 69 (2d ed. 1998) (defining “amount” as “the
sum total of two or more quantities or sums; aggregate” and as “the
full . . . value”); I The Oxford English Dictionary 411 (2d ed. 1991
reprt.) (construing “amount” as “[t]he full value” and “[a] quantity or
sum viewed as a total”); Webster’s Third New International
Dictionary Unabridged 72 (1970) (interpreting “amount” as “the total
number or quantity: aggregate . . .: sum” and “the whole”). Thus, it
is clear that W. Va. Code § 56-6-31 requires the calculation of
prejudgment interest upon the entire amount of the special damages
verdict. This Court is bound to apply and enforce statutes, as they are
written, according to their plain meaning. See, e.g., Syl. pt. 2, in part,
State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) ( “A statutory
provision which is clear and unambiguous and plainly expresses the
legislative intent . . . will be given full force and effect.”). Here,
W. Va. Code § 56-6-31 required the majority to calculate
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prejudgment interest upon the total amount of the special damages
verdict before the settlements were applied as an offset. I disagree
with the majority’s contrary approach which directly contradicts the
expressly prescribed calculation method and shows callous disregard
for the Legislature’s intent.
Rutherford, 229 W. Va. at 82, 726 S.E.2d at 50 (footnote omitted). In the case sub judice, the
majority has continued to ignore the plain language of W. Va. Code § 56-6-31 and has wrongly
deducted State Farm’s advance payment from Ms. Pak’s special damages prior to calculating the pre­
judgment interest to which she is statutorily entitled. Thus, for the same reasons I explained in
Rutherford, I respectfully dissent.
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