IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2016 Term FILED 

June 10, 2016 

No. 15-0012 released at 3:00 p.m. 

RORY L. PERRY, II CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

OLD REPUBLIC INSURANCE COMPANY, 

Petitioner 

v. 

JASON D. O’NEAL and ANDREA O’NEAL, his wife,
 

Individually, and as parents and next friends of
 

ANDREW SCOTT O’NEAL, ANNA LEIGH GRACE O’NEAL,
 

and AUSTIN MATTHEW O’NEAL, Infants under the age of eighteen,
 

Respondents
 

Appeal from the Circuit Court of Wyoming County
 

The Honorable Warren R. McGraw, Judge
 

Civil Action No. 10-C-20
 

REVERSED, IN PART; AFFIRMED, IN PART.
 

Submitted: February 10, 2016 

Filed: June 10, 2016 

Michael J. Schessler, Esq. W. Stuart Calwell, Esq. 

Paul E. Frampton, Esq. David H. Carriger, Esq. 

Bowles Rice LLP The Calwell Practice, LC 

Charleston, West Virginia Charleston, West Virginia 

Counsel for the Petitioner Counsel for the Respondents 

JUSTICE WORKMAN delivered the Opinion of the Court.
 

JUSTICE LOUGHRY concurs, in part, and dissents, in part, and reserves the right to file a
 

separate opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “In reviewing an order denying a motion under Rule 60(b), 

W.Va.R.C.P., the function of the appellate court is limited to deciding whether the trial court 

abused its discretion in ruling that sufficient grounds for disturbing the finality of the 

judgment were not shown in a timely manner.” Syl. Pt. 4, Toler v. Shelton, 157 W. Va. 778, 

204 S.E.2d 85 (1974). 

2. “A motion to vacate a judgment made pursuant to Rule 60(b), West 

Virginia Rules of Civil Procedure, is addressed to the sound discretion of the court, and the 

court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an 

abuse of such discretion.” Syl. Pt. 5, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 

(1974). 

3. “A court, in the exercise of discretion given it bythe remedial provisions 

of Rule 60(b), W.Va.R.C.P., should recognize that the rule is to be liberally construed for the 

purpose of accomplishing justice and that it was designed to facilitate the desirable legal 

objective that cases are to be decided on the merits.” Syl. Pt. 6, Toler v. Shelton, 157 W. Va. 

778, 204 S.E.2d 85 (1974). 

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4. West Virginia Rule of Civil Procedure 60(b) may be used as a means 

to seek relief from a judgment or order that was not noticed to a party in accordance with 

West Virginia Rule of Civil Procedure Rule 77(d) upon a showing of diligence or exceptional 

circumstances by the aggrieved party. The requisite diligence or exceptional circumstances 

necessary for Rule 60(b) relief under these circumstances will require a case-by-case 

analysis. 

5. “A circuit court’s entry of summary judgment is reviewed de novo.” 

Syl. Pt 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). 

6. “‘“A motion for summary judgment should be granted only when it is 

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not 

desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. 

v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus 

Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt 

2, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). 

7. “‘The doctrine of subrogation is that one who has the right to pay, and 

does pay, a debt which ought to have been paid by another is entitled to exercise all the 

remedies which the creditor possessed against that other.’ Syl. Pt. 1, Bassett v. Streight, 78 

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W.Va. 262, 88 S.E. 848 (1916).” Syl. pt. 4, Ray v. Donohew, 177 W.Va. 441, 352 S.E.2d
 

729 (1986).” Syl. Pt. 2, Bush v. Richardson, 199 W. Va. 374, 484 S.E.2d 490 (1997).
 

8. “‘The right of subrogation depends upon the facts and circumstances
 

of each particular case. Huggins v. Fitzpatrick, 102 W.Va. 224, 228, 135 S.E. 19, 20 (1926).’
 

Syl. pt. 3, Ray v. Donohew, 177 W.Va. 441, 352 S.E.2d 729 (1986).” Syl. Pt. 3, Bush v.
 

Richardson, 199 W. Va. 374, 484 S.E.2d 490 (1997).
 

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Workman, Justice: 

This case is before the Court upon the appeal of the Petitioner Old Republic 

Insurance Co. (hereinafter referred to as “Old Republic”) from two orders entered in the 

Circuit Court of Wyoming County, wherein the court denied Old Republic’s Rule 601 motion 

for relief from judgment and motion for summary judgment. Old Republic argues2 that the 

circuit court 1) abused its discretion when it denied Old Republic’s Rule 60 motion for relief 

from entry of judgment order and 2) erred in its application of statutory and substantive law 

bygranting the Respondents (hereinafter referred to collectivelyas “the Plaintiffs”) summary 

judgment and determining that Old Republic was not entitled to a statutory right of 

subrogation as set forth in West Virginia Code § 23-2A-1 (2010).3 Having reviewed the 

parties’ briefs and arguments, the appendix record and all other matters before the Court, we 

find that the circuit court erred in denying Old Republic’s Rule 60 motion; however, we 

affirm the circuit court’s entry of summary judgment in favor of the Plaintiffs. As we will 

discuss in greater detail below, Old Republic’s claim for subrogation fails because it is 

1

See W. Va. R. Civ. P. 60(b) set forth infra in section III. A. of this opinion. 

2 Old Republic’s two assigned errors are lengthy, cumbersome, and contain subparts 

that are repetitious of the larger assignments of errors. Thus, we condense the two errors for 

discussion purposes. See In re Tax Assessments Against Pocahontas Land Corp., 158 W. Va. 

229, 234, 210 S.E.2d 641, 645-46 (1974) (“The assignments of error are numerous and are 

lengthy, repetitious and confusing for each appeal. The assignments may be condensed . . . 

.”). 

3

See W. Va. Code § 23-2A-1(b) set forth infra in section III. B. of this opinion. 

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attempting to recover money that it never expended and that its insured, Speed Mining, is not 

entitled to recover. 

I. Facts and Procedural History 

This case arises from a June 20, 2009, accident at an underground American 

Eagle Mine in Kanawha County West Virginia. The Plaintiff, Jason O’Neal,4 who was 

employed as an electrician by Speed Mining, LLC, (“Speed Mining”), was working in the 

mine when a shuttle car struck and ran over him. The accident caused catastrophic injuries 

to Mr. O’Neal, including the loss of one leg, a significant portion of his pelvis and his 

genitalia. 

On February 11, 2010, the Plaintiffs5 filed a lawsuit against Speed Mining,6 

alleging claims of deliberate intention pursuant to West Virginia Code § 23-4-2 (2005)7 and 

4

Mr. O’Neal was approximately twenty-nine years old at the time. He was married 

and had three minor children. 

5

Mr. O’Neal’s lawsuit included claims of loss of consortium and support on behalf of 

his wife and children. 

6

Speed Mining is not a party to the instant appeal. 

7

The Legislature recently amended West Virginia Code § 23-4-2 (Supp. 2015) with 

the changes becoming effective June 12, 2015. Because the accident occurred in 2009, the 

2005 version of the statute is applicable to this case. 

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common law negligence. The Plaintiffs also asserted a products liability claim against four 

related companies and individuals, collectively referred to as the Baughan defendants.8 

At the time of the accident, Speed Mining was a named insured on a workers’ 

compensation policy of insurance issued by Old Republic to Mangum Coal Company.9 As 

a result of the accident, Mr. O’Neal filed a workers’ compensation claim. Mr. O’Neal has 

received workers’ compensation benefits under Speed Mining’s workers’ compensation 

policy and he will continue to receive workers’ compensation for his injuries as his workers’ 

compensation claim remains open.10 

According to the terms of Old Republic’s policy, there was a $2,000,000 

workers’ compensation deductible amount for bodily injury by accident that was paid by 

Speed Mining. Beverly Sellers, Old Republic’s manager of its workers’ compensation unit, 

testified during her deposition that “[i]t was Patriot’s [Speed Mining’s parent company] wish 

8

The Baughan defendants included the Baughan Group, Inc., Coal Age, Inc., d/b/a 

CAI Industries, Robertson, Inc., d/b/a Gauley Robertson, and Roger Baughan. These 

defendants are not involved in the instant appeal. 

9

Patriot Coal acquired Magnum Coal and all of its subsidiaries, including Speed 

Mining, about a year before the accident at issue. 

10The workers’ compensation benefits that are the subject of the subrogation claim 

were paid to the Plaintiffs through a third-party administrator, Avizent, according to the 

deposition testimony of Beverly Sellers, Old Republic’s manager of its workers’ 

compensation unit. Old Republic consented to Avizent’s handling of insured claims for 

Speed Mining. 

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to fund the $2 million deductible themselves . . . and Old Republic agreed to that.” Moreover, 

if Old Republic paid benefits for the $2,000,000 of coverage it would be reimbursed by 

Speed Mining. The policy provided, “you will reimburse us up to the Deductible Amount(s) 

stated in the Schedule for all payments we may make on your behalf because of bodily injury 

to one or more persons as a result of any one accident . . . .” 

Further, under the terms of the policy, Old Republic retained all rights to 

subrogation, even as to deductible amounts. The policy provided: 

We have your rights and the rights of persons entitled to the 

benefits of this insurance to recover all advances and payments, 

including those within the Deductible Amounts from anyone 

liable for the injury. You will do everything necessary to protect 

those rights for us and to help us enforce them. If we recover 

any advance or payment made under this policy from anyone 

liable for the injury, the amount we recover will first be applied 

to any payments made by us on this injury in excess of the 

Deductible Amount(s); only then will the remainder of the 

recovery, if any, be applied to reduce the Deductible Amount(s) 

paid or reimbursed or reimbursable by you on this injury. (See 

Attached Endorsement). 

The Plaintiffs were fully aware of the statutory right of workers’ compensation 

subrogation as demonstrated by a May 24, 2010, letter from David H. Carriger, the Plaintiffs’ 

attorney, to Michele Craft of Avizent, Old Republic’s third-party administrator. In the letter, 

Mr. Carriger “requests an itemization of whatever lien amount you (or any other provider of 

workers compensation benefits) intend to assert, should Mr. O’Neal recover monies from 

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third-parties as a result of the workplace injuries.” In response to the Plaintiffs’ inquiry, by 

letter dated June 17, 2010, Christopher Brumley, an attorneyfor Speed Mining, indicated that 

Old Republic was entitled by statute to a subrogation lien and that as of that date, 

$1,068,993.77 from the workers’ compensation claim had been paid by Speed Mining. Mr. 

Brumley further indicated in the letter that “Speed Mining is self insured up to its $2 million 

self insured retention on the policy.” According to Mr. Brumley, “Old [R]epublic is the 

carrier after the $2 million, so any subrogation frights [sic] after that amount will be the 

statutory right of Old [R]epublic.” 

The information given byMr. Brumleyin the aforementioned letter concerning 

Speed Mining being self-insured was incorrect and was later corrected by several different 

communications, both emails and letters, between Old Republic, Avizent and the Plaintiffs’ 

counsel. Additionally, Ms. Sellers testified during her deposition that Speed Mining was not 

self-insured. Moreover, the record contains repeated notices either from Old Republic, 

Speed Mining’s counsel or Avizent to the Plaintiffs’ counsel regarding Old Republic’s 

statutory right of subrogation prior to any settlements in the case. 

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On October 13, 2011, the Plaintiffs settled their deliberate intention claim 

against Speed Mining.11 That settlement, according to the language of West Virginia Code 

§ 23-2A-1(e),12 was not subject to a workers’ compensation subrogation lien and Old 

Republic is not seeking any amount as a result of subrogation from this settlement. Language 

contained in the settlement agreement relating to the deliberate intention claim, however, is 

important to the resolution of this case. In the agreement, the Plaintiffs and Speed Mining 

expressly declared that “this Agreement is the entire agreement and encompasses all terms 

and agreements negotiated by them in settlement of any and all claims relating to the Subject 

Incident and that there are not other writings whatsoever.” (Emphasis added). 

On March 21, 2012, the Plaintiffs moved the circuit court during a status 

conference to amend their complaint to add a declaratory judgment action against Old 

Republic as it had asserted a statutory subrogation lien with respect to any settlement 

obtained by the Plaintiffs from the remaining Baughan defendants. 

11Speed Mining’s insurer for the deliberate intention claim was Commerce and 

Industry Insurance Company. The settlement amount is confidential and has not been 

disclosed in the appendix record or briefs before the Court. 

12West Virginia Code § 23-2A-1(e) provides, in relevant part, that “[t]he statutory 

subrogation described in this section does not apply to uninsured and underinsured motorist 

coverage or any other insurance coverage purchased . . . on behalf of the injured worker.” 

Id. (emphasis added). The deliberate intention claim was subject to insurance coverage that 

was purchased by Speed Mining on behalf of its workers, including Mr. O’Neal. 

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The Plaintiffs thereafter settled the products liability claims against the 

Baughan defendants at a mediation that occurred on April 26, 2012. Old Republic was not 

a party to the mediation and had not yet been brought into the action, because the circuit 

court had not yet ruled on the motion to amend the Plaintiffs’ complaint. 

In an order entered May 1, 2012, the circuit court granted the Plaintiffs’ motion 

to amend their complaint to add a declaratory judgement action against Old Republic. In 

granting the motion, the circuit court found that “the statutory right of subrogation under W. 

Va. Code § 23-2A-1 is not available to the aforementioned insurer . . . [as] it is established 

that said insurer has not actually paid money or medical benefits to (or for the benefit of) Mr. 

O’Neal.” Nevertheless, the Plaintiffs thereafter filed its amended complaint adding the thirdparty declaratory judgment action against Old Republic on May 21, 2012. 

On July 2, 2012, the Plaintiffs and the Baughan defendants executed a 

Settlement Agreement Release. The Plaintiffs’ counsel did not take any action to protect Old 

Republic’s claimed statutory lien13 before distributing the proceeds of this settlement, which 

amounted to $3.5 million. At the time the settlement agreement was executed and the 

13See W. Va. Code § 23-2A-1(e) set forth infra in section III. B. (creating duty on part 

of injured worker and his counsel to protect statutory right of subrogation or risk losing right 

to retain attorney fees and costs out of subrogation amount and also creating cause of action 

that insurer can bring against injured worker and his counsel to recover subrogated amount, 

as well as attorney fees and costs). 

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Plaintiffs recovered this money from the Baughan defendants, workers’ compensation 

benefits in the amount of $1,845,197.13 – $1,738,513.31 in medicals and $106,683.82 in 

indemnity – had been paid to, or for the benefit of, Mr. O’Neal by Speed Mining due to the 

$2,000,000 deductible in the Old Republic workers’ compensation policy. This is the 

subrogation amount sought by Old Republic from the settlement with the Baughan 

defendants arising out of the Plaintiffs’ product liability claim. 

Old Republic filed its answer to the third-party complaint and asserted its own 

declaratory judgment action against the Plaintiffs on July 23, 2012. Discovery followed and 

both parties filed motions for summary judgment. On December 18, 2013, the circuit court 

held a hearing regarding the motions. At the conclusion of the hearing, the circuit court 

made no rulings on either summary judgment motion; however, the court asked both parties 

to submit proposed orders by January 15, 2014. 

On January 27, 2014, without any notice to Old Republic, the circuit court 

entered the Plaintiffs’ proposed order. The order entered was styled, “[Proposed] Order 

Granting Plaintiff Jason D. O’Neal’s Motion for Summary Judgment.” The Plaintiffs’ 

counsel received a “courtesy call” informing him that his proposed order was to be entered 

by the circuit court. The proposed order that was entered by the circuit court only directed 

service to the Plaintiffs’ counsel as the Plaintiffs submitted the proposed order with only 

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their attorneys’ names on it for signature. Consequently, the circuit clerk did not send a 

copy of the proposed order, which was entered by the circuit court as the final order, to Old 

Republic’s counsel. Moreover, when the order was entered onto the circuit court’s docket, 

the entry was for “[Proposed] Order Granting Jason D. O’Neal’s Motion for Summary 

Judgment.” 

About one month later, on February25, 2014, Old Republic’s counsel checked 

the circuit court’s docket utilizing “Circuit Express” a third-party vendor that provides 

electronic docket information to lawyers in West Virginia. Old Republic’s counsel saw the 

styled “proposed” order and attempted to view the same, but could not do so for reasons that 

are not apparent in the record. Old Republic’s counsel then called the Wyoming County 

Circuit Clerk’s office and asked whether a final order had been entered in the case. The 

official in the circuit clerk’s office indicated that only the “proposed” order had been 

docketed. Old Republic’s counsel continued to electronically monitor the docket sheet for 

the next six months. In late August of 2014, Old Republic’s counsel contacted both the 

circuit court and the Plaintiffs’ attorney regarding the status of the case and was advised that 

a final order had been entered. On September 4, 2014, Old Republic’s counsel was 

provided a copy of the January 24, 2014, final order by facsimile, which was styled as a 

“proposed” order granting the Plaintiffs’ summary judgment. Counsel for Old Republic 

filed a motion pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure on 

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September 12, 2014, requesting the circuit court to re-enter the January27, “proposed” order 

as the final order so that Old Republic could appeal. By order entered December 18, 2014, 

the circuit court denied Old Republic’s motion. 

II. Standard of Review 

Because the applicable standard of review is different for each of the issues 

addressed, we will set out the applicable standard of review in the discussion of each issue. 

III. Discussion of Law 

A. Rule 60(b) Motion14 

The first issue before the Court concerns whether the circuit court abused its 

discretion when it denied Old Republic’s Rule 60(b)15 motion for relief from the entry of the 

“[Proposed] Order Granting Plaintiff Jason D. O’Neal’s Motion for Summary Judgment.” 

Old Republic argues that the circuit court “arbitrarily and irrationally” refused to correct the 

failure to provide proper notice of the order, thereby depriving Old Republic of its due 

14Old Republic filed its motion in the circuit court asking for relief from the judgment 

below pursuant to Rule 60(a) (“clerical mistakes”) and Rule 60(b)(1) (“mistake, inadvertence 

surprise, excusable neglect, or unavoidable cause” or (6) (“any other reason justifying relief 

from the operation of the judgment”). On appeal, Old Republic discusses the application of 

Rule 60 in a very generic fashion, never expressly referring to Rule 60(a). Old Republic, 

however, does expresslyrefer to Rule 60(b) and, consequently, our ruling today focuses upon 

an application of Rule 60(b). It would behoove counsel in the future to be precise in setting 

forth the authority relied upon when arguing before this Court. 

15See W. Va. R. Civ. P. 60(b) infra. 

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process right to appeal. Old Republic maintains that the circuit court improperly created an 

affirmative duty for a party to monitor the docket to find any disguised order that may be a 

final order after Old Republic was not served with a copy of the order upon its entry and the 

Plaintiffs left Old Republic’s counsel’s name off said order. Further, Old Republic simply 

requested the circuit court to vacate the entry of the January 27, 2014, “proposed” order and 

re-enter that order to allow Old Republic the right to appeal the same. Thus, Old Republic 

asserts that the Plaintiffs would not have suffered any undue or unfair prejudice by the 

circuit court’s correction of the error in this manner. 

Conversely, the Plaintiffs contend that Old Republic’s counsel should have 

further investigated when he discovered that a “proposed” order had been entered to see 

whether that order was the final order. Yet, despite having knowledge that the “proposed” 

order had been entered on the docket sheet of the circuit court, Old Republic undertook no 

further investigation to ascertain what the order was and, therefore, delayed for six months 

the filing of a motion pursuant to West Virginia Rule of Civil Procedure 60(b). The 

Plaintiffs argue that the circuit court correctly determined that this delay was the result of 

the dilatory conduct of Old Republic’s counsel. The Plaintiffs further contend that all Old 

Republic’s assignments of error related to the January 27, 2014, order are untimely and 

should be stricken from the record.16 

16See Syl. Pt. 3, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974) (holding that 

(continued...) 

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The circuit court found that because Old Republic’s counsel, using “Circuit 

Express,” knew the Plaintiffs’ proposed order had been listed on the docket by the circuit 

clerk on January 27, 2014, “[Old Republic’s] counsel . . . admitted that he received actual 

notice from another source that the order in question was entered by the Clerk on the docket 

prior to the deadline for filing a Notice of Appeal[.]” Thus, the circuit court determined that 

it was not requiring a party to “mine the docket” searching for notice of entered orders. The 

circuit court went on to characterize Old Republic’s counsel’s “lack of action” as being 

“inconceivable” and “cavalier.” 

The standard of review applicable to this issue is that “[i]n reviewing an order 

denying a motion under Rule 60(b), W.Va.R.C.P., the function of the appellate court is 

limited to deciding whether the trial court abused its discretion in ruling that sufficient 

grounds for disturbing the finality of the judgment were not shown in a timely manner.” 

Syl. Pt. 4, Toler, 157 W. Va. at 778, 204 S.E.2d at 86. We further held that “[a] motion to 

vacate a judgment made pursuant to Rule 60(b), West Virginia Rules of Civil Procedure, is 

addressed to the sound discretion of the court, and the court’s ruling on such motion will not 

be disturbed on appeal unless there is a showing of an abuse of such discretion.” 157 W. 

16(...continued) 

“[a]n appeal of the denial of a Rule 60(b) motion brings to consideration for review only the 

order of denial itself and not the substance supporting the underlying judgment nor the final 

judgment order.”). 

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Va. at 778, 204 S.E.2d at 86, Syl. Pt. 5. With the foregoing in mind, we now undertake an 

examination of the issue before us. 

While not raised by either party, a necessary prerequisite to the ultimate 

resolution of this issue is whether Rule 60(b) of the Rules of Civil Procedure can be used 

to set aside a judgment that was not noticed to a party under Rule 77(d) of the Rules of Civil 

Procedure. Thus, we begin by examining these two rules. First, West Virginia Rule of Civil 

Procedure 60(b) provides, in relevant part: 

On motion and upon such terms as are just, the court 

may relieve a party or a party’s legal representative from a final 

judgment, order, or proceeding for the following reasons: (1) 

Mistake, inadvertence, surprise, excusable neglect, or 

unavoidable cause; (2) newly discovered evidence which by 

due diligence could not have been discovered in time to move 

for a new trial under Rule 59(b); (3) fraud (whether heretofore 

denominated intrinsic or extrinsic), misrepresentation, or other 

misconduct of an adverse party; (4) the judgment is void; (5) 

the judgment has been satisfied, released, or discharged, or a 

prior judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that the judgment 

should have prospective application; or (6) any other reason 

justifying relief from the operation of the judgment. The motion 

shall be made within a reasonable time, and for reasons (1), (2), 

and (3) not more than one year after the judgment, order, or 

proceeding was entered or taken. A motion under this 

subdivision (b) does not affect the finality of a judgment or 

suspend its operation. 

Id. (emphasis added). Next, West Virginia Rule of Civil Procedure 77(d) provides, 

Immediately upon the entry of an order or judgment the 

clerk, except as to parties who appear of record to have had 

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notice thereof, shall serve by mail a notice of the entry in the 

manner provided for in Rule 5 upon every party affected 

thereby who is not in default for failure to appear, and shall 

make a note of the mailing in the docket. Such mailing is 

sufficient notice for all purposes for which notice of the entry 

of an order is required by these rules; but any party may in 

addition serve a notice of such entry in the manner provided in 

Rule 5 for the service of papers. Lack of notice of the entry by 

the clerk does not affect the time to appeal or relieve or 

authorize the court to relieve a party for failure to appeal 

within the time allowed.

17 

Id. (emphasis and footnote added). 

From a plain reading of Rule 77(d), a circuit clerk’s office has a mandatory 

duty to mail a copy of an order or judgment to all parties affected by the order or judgment. 

The rule, however, further provides that a circuit clerk’s failure to give notice of the entry 

of an order or judgment “does not affect the time to appeal or relieve or authorize the court 

to relieve a party for failure to appeal within the time allowed.” Id. (emphasis added). 

Consequently, had Old Republic been asking for relief solely under the auspices of Rule 

77(d), the circuit did not have authority to grant relief. 

Old Republic, rather than relying only upon Rule 77(d), also invoked the 

protections afforded by Rule 60(b), which provides for relief from a final judgment or order 

17Additionally, West Virginia Trial Court Rule 24.01(b) provides: “Except for good 

cause or unless otherwise determined by the judicial officer, no order may be presented for 

entry unless it bears the signature of all counsel and unrepresented parties.” (Emphasis 

added). 

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based upon a variety of reasons including “[m]istake, inadvertence, surprise, excusable 

neglect, or unavoidable cause” and “any other reason justifying relief from the operation of 

judgment.” W. Va. R. Civ. P. 60(b)(1) and (6). This Court has previously recognized a 

liberal construction of Rule 60(b) as follows: 

[a] court, in the exercise of discretion given it by the remedial 

provisions of Rule 60(b), W.Va.R.C.P., should recognize that 

the rule is to be liberally construed for the purpose of 

accomplishing justice and that it was designed to facilitate the 

desirable legal objective that cases are to be decided on the 

merits. 

Toler, 157 W.Va. at 778, 204 S.E.2d at 86, Syl. Pt. 6 (emphasis added); accord Syl. Pt. 2, 

Hamilton Watch Co. v. Atlas Container, Inc., 156 W.Va. 52, 190 S.E.2d 779 (1972) 

(“Inasmuch as courts favor the adjudication of cases on their merits, Rule 60(b) of the West 

Virginia Rules of Civil Procedure should be given a liberal construction.”). Regarding the 

application of liberality that embraces Rule 60(b), we explained in Hamilton Watch Co., that 

[t]he purpose of the rules of civil procedure is to permit not 

only a speedy determination of an adversary proceeding but, 

more importantly, a just determination. With this in mind it is 

understandable that provision has been made in the rules to 

correct a situation which, under certain circumstances, proves 

to be unjust. 

156 W.Va. at 59, 190 S.E.2d at 783. 

In determining whether a liberal construction of Rule 60(b), when juxtaposed 

with the harsh reality of Rule 77(d), warrants relief in this case, we find an examination of 

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federal courts that have determined this matter to be helpful. The federal versions of both 

Rule 60 and Rule 77 are similar to our rules.18 Succinctly stated, federal courts have found 

that Rule 60(b) of the Rules of Civil Procedure can be used to set aside a judgment that was 

not noticed to a party under Rule 77(d). See Vencor Hosps., Inc. v. Standard Life and Acc. 

Ins. Co., 279 F.3d 1306, 1310 (11th Cir. 2002) (stating that “[p]rior to 1991,19 relief from 

18In Cattrell Companies, Inc. v. Carlton, Inc., 217 W. Va. 1, 614 S.E.2d 1 (2005) , we 

explained that 

“‘[b]ecause the West Virginia Rules of Civil Procedure are 

patterned after the Federal Rules of Civil Procedure, we often 

refer to interpretations of the Federal Rules when discussing our 

own rules.’ See Painter v. Peavy, 192 W.Va. 189, 192 n. 6, 451 

S.E.2d 755, 758 n. 6 (1994) (“Because the West Virginia Rules 

of Civil Procedure are practically identical to the Federal Rules, 

we give substantial weight to federal cases . . . in determining 

the meaning and scope of our rules.”).” 

217 W. Va. at 8 n.21, 614 S.E.2d at 8 n.21 (quoting Keplinger v. Va. Elec. & Power Co., 208 

W.Va. 11, 20 n.13, 537 S.E.2d 632, 641 n.13 (2000)). 

19In 1991, Federal Rule of Appellate Procedure 4(a) was amended to include 

subsection (6), which now provides: 

(6) Reopening the Time to File an Appeal. – The district 

court may reopen the time to file an appeal for a period of 14 

days after the date when its order to reopen is entered, but only 

if all the following conditions are satisfied: 

(A) the court finds that the moving party did not receive 

notice under Federal Rule of Civil Procedure 77(d) of the entry 

of the judgment or order sought to be appealed within 21 days 

after entry; 

(B) the motion is filed within 180 days after the judgment 

or order is entered or within 14 days after the moving party 

receives notice of the entry under Federal Rule of Civil 

(continued...) 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

judgment under Rule 60(b) was a recognized method of avoiding the otherwise harsh results 

imposed upon parties failing to receive actual notice of a judgment until after the time for 

appeal had passed. See, e.g., Harnish v. Manatee County, Florida, 783 F.2d 1535, 1538 

(11th Cir.1986) (‘By availing itself of the escape valve provided by Rule 60(b) of the 

Federal Rules of Civil Procedure in vacating and reentering its order on the Rule 59 motion, 

the court avoided the manifest injustice worked by a rigid application of the provisions of 

Rule 77(d) to the above-recited facts.’).”) (footnote added); Wilson v. Atwood Grp., 725 

F.2d 255, 257 (5th Cir. 1984) (recognizing that “[b]ecause of . . . the ‘draconian effect’ of 

rule 77(d), courts have sought to palliate its results by invoking rule 60(b). This rule states 

that the court may relieve a party from a judgment or order for any ‘reason justifying relief 

from the operation of the judgment.’”). 

19(...continued)
 

Procedure 77(d), whichever is earlier; and
 

(C) the court finds that no party would be prejudiced. 

Fed. R. App. P. 4(a)(6). Since the adoption of Rule 4(a)(6), which provided a limited 

opportunity for relief in circumstances where the notice of entry of a judgment or order 

required by Rule 77(d) was not received or was not timely received, most federal courts have 

determined that Rule 4(a)(6) “provides the exclusive method for extending a party’s time to 

appeal for failure to receive actual notice that a judgment or order has been entered[,]” and 

that Federal Rule of Civil Procedure 60(b) can no longer be used. See Vencor Hosps., 279 

F.3d at 1311. West Virginia has no counter-part similar to the Rule 4(a)(6) and, therefore, 

the viability of West Virginia Rule of Civil Procedure 60(b) for the purpose of reducing the 

harshness of Rule 77(d) remains intact. 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Moreover, the majority of federal jurisdictions resolving this issue have 

required some diligence or special circumstances. See Spika v. Vill. of Lombard, Ill., 763 

F.2d 282, 285 (7th Cir. 1985) (stating that “[m]ost circuits allow Rule 60(b) relief to revive 

a lost right to appeal only where the appellant has exercised due diligence to ascertain 

whether the judgment has been entered or has given sufficient reason for the lack of such 

diligence.”); McKnight v. United States Steel Corp., 726 F.2d 333, 335 (7th Cir. 1984) 

(finding that “[t]he extraordinary relief provided by Rule 60(b) may be granted only upon 

a showing of exceptional circumstances.”); Rodgers v. Watt, 722 F.2d 456, 461 (9th 

Cir.1983) (finding relief proper where diligence shown in checking status and docket sheet 

entries were erroneously out of sequence); Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 

226, 230-31 (4th Cir.1981) (determining that court may rely on rule 60(b) to supersede Rule 

77(d) under “unique circumstances.”); Buckeye Cellulose Corp. v. Braggs Elec. Constr. Co., 

569 F.2d 1036, 1038 (8th Cir.1978) (determining that three inquiries about status of the case 

and reliance on clerk’s office statement that counsel would be notified sufficient for relief); 

Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 810 

(D.C.Cir.1974) (holding that rule 60(b) permits district court to vacate and reenter judgment 

where neither party received timely notice and winning party was not prejudiced.). 

In light of the foregoing, as the federal courts did prior to the adoption of Rule 

4(a) of the Federal Rules of Appellate Procedure, we seek to ameliorate the draconian 

18
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

effects of West Virginia Rule of Civil Procedure 77(d). We, therefore, hold that West 

Virginia Rule of Civil Procedure 60(b) may be used as a means to seek relief from a 

judgment or order that was not noticed to a party in accordance with West Virginia Rule of 

Civil Procedure Rule 77(d) upon a showing of diligence or exceptional circumstances by 

the aggrieved party. The requisite diligence or exceptional circumstances necessaryfor Rule 

60(b) relief under these circumstances will require a case-by-case analysis. 

In the instant case, the lack of notice of the final order that was entered 

granting summary judgment to the Plaintiffs is the result of error on the part of the circuit 

court.20 The Plaintiffs set in motion the events that led to the lack of notice to Old Republic 

by failing to include the names of Old Republic’s counsel on their proposed order submitted 

to the circuit court for consideration. This initial failure was compounded by the circuit 

court when it failed to change the style on the Plaintiffs’ order from “proposed” to final, 

when it chose to enter the Plaintiffs’ order as its final order resolving the matter. Moreover, 

unexplained in the record is why the circuit court gave the Plaintiffs’ counsel a “courtesy” 

call informing him that the proposed order was going to be entered in the case, when no 

commensurate “courtesy” was extended to Old Republic. This is especially significant in 

light of the circuit court’s finding that “[t]here [wa]s no question that Old Republic intended 

to appeal this order, should the Court rule in Mr. O’Neal’s favor.” Further, it is undisputed 

20The circuit court and the circuit clerk had sent prior orders to Old Republic’s 

counsel, including the order regarding the motion to amend the complaint. 

19
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

that the circuit clerk failed to give any notice to Old Republic’s counsel. Thus, when Old 

Republic’s counsel saw that a proposed order had been docketed and called the circuit 

clerk’s office about it, the circuit clerk correctly informed Old Republic’s counsel that no 

final order had been entered, only a proposed order. Perhaps Old Republic’s counsel should 

have requested a copy of the proposed order, but the failure to do so does not establish a 

lack of diligence given the misleading caption on the order and the evidence offered by Old 

Republic, which was not refuted, indicating that Old Republic’s counsel continued to 

monitor the docket sheet for six months prior to finally inquiring of the circuit court and the 

Plaintiffs’ counsel about the status of a final order. While the Plaintiffs, as well as the 

circuit court, are quick to place an affirmative duty upon Old Republic to confirm the 

content of an order that appeared on the circuit court’s docket as a “proposed” order, they 

are equally quick to overlook their own negligence. 

Consequently, under the unique facts of this case, we find that the circuit court 

abused its discretion in failing to afford Old Republic relief under West Virginia Rule of 

Civil Procedure 60(b) by vacating the January 27, 2014, proposed order and re-entering the 

same as the final order to allow Old Republic the opportunity to file an appeal.21 The 

21In light of our ruling, we also find that the circuit court erroneously determined that 

“Old Republic filed its Motion [referring to the Rule 60 motion] nearly eight months after 

the original order was entered and seven months after the missed deadline for filing a Notice 

of Appeal.” Rather, the appendix record supports that Old Republic filed its Rule 60 motion 

within eight days of becoming aware that the January 27, 2014, “proposed” order was indeed 

(continued...) 

20
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

circumstances presented to the circuit court in this case were undeniably extraordinary and 

involved culpability on the part of all involved, including the circuit court. In light of our 

reversal on this issue, rather than remanding the case for the formality of re-entry of a final 

order granting the Plaintiffs summary judgment, in the interest of judicial economy, we 

proceed with consideration of the merits of the case as the substantive issue was fully 

briefed and argued by the parties. 

B. Subrogation Right 

The substantive issue before the Court is whether the circuit court erred in 

granting the Plaintiffs summary judgment, by determining that Old Republic was not 

entitled to subrogation under the provisions of West Virginia Code § 23-2A-1. This 

particular argument can not be viewed with tunnel vision, focusing solely upon the relevant 

statute. Rather, the Court must explore each of the three avenues of recovery sought by the 

Plaintiffs in their complaint. The first is Mr. O’Neal’s right to receive workers’ 

compensation under Speed Mining’s workers’ compensation insurance policyissued byOld 

Republic. With this recovery comes the statutory right of subrogation in favor of Old 

Republic, as well as a contractual right of reimbursement in favor of Speed Mining. See id. 

The second avenue of recovery stems from the Plaintiffs’ deliberate intention claim against 

21(...continued) 

intended by the circuit court to be the final order in the case. 

21
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Speed Mining. This particular claim is not subject to any subrogation claim by Old 

Republic. The recovery received by the Plaintiffs from Speed Mining as a result of this 

claim, however, involves a settlement agreement entered into between these two parties, 

which impacts the resolution of this case. The final avenue of recovery arises from the 

Plaintiffs’ products liability claim against the Baughan defendants. The Plaintiffs’ 

settlement of this claim falls within the purview of Old Republic’s statutory workers’ 

compensation subrogation claim. Thus, we undertake an examination of the interplay of 

each of these avenues of recovery. 

Looking first at Old Republic’s statutory right of subrogation as set forth in 

West Virginia Code § 23-2A-1, Old Republic argues that the circuit court erred in the 

application of law, statute and contract when it extinguished Old Republic’s statutory 

subrogation rights. Old Republic further argues that the circuit court erred in determining 

that “Speed Mining was a de-facto self-insured employer under the statute,” that Old 

Republic waived any right to seek statutory subrogation, that Old Republic’s subrogation 

rights were based on common law equitable principles, and that the statutory right could be 

modified, because the policy proceeds were provided by Speed Mining through the 

deductible, not from Old Republic’s own funds. 

22
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conversely, the Plaintiffs argue that Old Republic did not have a right of 

subrogation under West Virginia Code § 23-2A-1, because Patriot Coal, on behalf of Speed 

Mining, paid the worker’s compensation benefits to the Plaintiff Mr. O’Neal and both 

Patriot and Speed Mining waived any claims to recover those benefits by the terms of the 

underlying settlement entered into between Speed Mining and the Plaintiffs in conjunction 

with the Plaintiffs’ deliberate intention claim. 

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 

1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).22 Further, 

“‘[a] motion for summary judgment should be granted 

only when it is clear that there is no genuine issue of fact to be 

tried and inquiry concerning the facts is not desirable to clarify 

the application of the law.’ Syllabus Point 3, Aetna Casualty & 

Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 

160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. 

Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992). 

Painter, 192 W. Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. 

We begin with an examination of the statutory right of subrogation that is 

relied upon by Old Republic. West Virginia Code § 23-2A-1provides: 

(b) Notwithstanding the provisions of subsection (a) of 

this section, if an injured worker, his or her dependents or his 

22Similarly, “[a] circuit court’s entry of a declaratory judgment is reviewed de novo.” 

Syl. Pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). 

23
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

or her personal representative makes a claim against the third 

party23 and recovers any sum for the claim: 

(1) With respect to any claim arising from a right of 

action that arose or accrued, in whole or in part, on or after 

January 1, 2006, the private carrier or self-insured employer, 

whichever is applicable, shall be allowed statutory subrogation 

with regard to indemnity and medical benefits paid as of the 

date of the recovery. 

. . . . 

(d) In the event that an injured worker, his or her 

dependents or personal representative makes a claim against a 

third party, there shall be, and there is hereby created, a 

statutory subrogation lien upon the moneys received which 

shall exist in favor of the Insurance Commissioner, private 

carrier or self-insured employer, whichever is applicable. 

(e) It is the duty of the injured worker, his or her 

dependents, his or her personal representative or his or her 

attorney to give reasonable notice to the Insurance 

Commissioner, private carrier or self-insured employer after 

a claim is filed against the third party and prior to the 

disbursement of any third-party recovery. The statutory 

subrogation described in this section does not apply to 

uninsured and underinsured motorist coverage or any other 

insurance coverage purchased by the injured worker or on 

behalf of the injured worker. If the injured worker obtains a 

recovery from a third party and the injured worker, personal 

representative or the injured worker’s attorney fails to protect 

the statutory right of subrogation created herein, the injured 

worker, personal representative and the injured worker's 

attorney shall lose the right to retain attorney fees and costs 

out of the subrogation amount. In addition, such failure creates 

a cause of action for the Insurance Commissioner, private 

carrier or self-insured employer, whichever is applicable, 

23In the context of the this statute, third party refers to a party that is outside the 

employment relationship. Thus, in instant case, the Baughan defendants are the third parties 

against whom the Plaintiffs asserted a products liability claim. 

24
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

against the injured worker, personal representative and the 

injured worker's attorney for the amount of the full subrogation 

amount and the reasonable fees and costs associated with any 

such cause of action. 

Id. (emphasis and footnote added). Further, Old Republic also relies upon the following 

contractual language set forth in its insurance policy concerning its workers’ compensation 

coverage provided to Speed Mining. The policy provides: 

We have your rights and the rights of persons entitled to the 

benefits of this insurance to recover all advances and payments, 

including those within the Deductible Amounts from any liable 

for the injury. You will do everything necessary to protect 

those rights for us and to help us enforce them. If we recover 

any advance or payment made under this policy from anyone 

liable for the injury, the amount we recover will first be applied 

to any payments made by us on this injury in excess of the 

Deductible Amount(s); only then will the remainder of the 

recovery, in any, be applied to reduce the Deductible 

Amount(s) paid or reimbursed or reimbursable by you on this 

injury. 

From an examination of the record and the applicable law, we find the circuit 

court erred in its determination that the provisions of West Virginia Code § 23-2A-1(b) did 

not apply in this case because “Speed Mining was a de-facto self-insured employer under 

the statute, given the fact that its injured employee’s workers’ compensation benefits were 

actually paid by its parent corporation, Patriot Coal, who was self-insured.” Other than a 

couple of early communications, one from Speed Mining’s attorney, and one from Avizent, 

referring to the $2,000,000 deductible as Speed Mining’s “self-insured retention” the record 

25
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

is devoid of any evidence that supports the circuit court’s determination of Speed Mining’s 

status as being a “de-facto self-insured.” The circuit court’s finding also is in direct conflict 

with another finding made by the court that on the date of Mr. O’Neal’s accident, “his 

employer, Speed Mining, was a named insured on a workers’ compensation policy that had 

previously been issue[d] to Magnum Coal Company by Third party Defendant Old Republic 

Insurance Company. The aforementioned policy with Old Republic included a $2 million 

deductible.”24 Because Old Republic provided workers’ compensation insurance coverage 

to Speed Mining as evinced by the employer being a named insured on the Old Republic 

policy, Old Republic qualified as a “private insurer”25 under the provisions of West Virginia 

Code 23-2A-1(b). Thus, Old Republic fell within the purview of the statute providing an 

insurer a right of subrogation with regard to indemnity and medical benefits paid as of the 

date of the recovery as result of an injured worker’s claim against a third party. See id. 

Despite the erroneous ruling by the circuit court on the foregoing issue, we 

determine that it made the right ruling in this case, but based upon incorrect reasoning. As 

24The circuit court’s finding of “de-facto self-insured” is also unsupported by the law. 

See W. Va. Code § 23-2-9 (2010) (setting forth conditions that must be met in order for an 

employer to be considered self-insured). There is no evidence in the record that establishes 

that Speed Mining complied with the procedure established in this statute so as to qualify as 

a self-insured employer or even a “de-facto self-insured” employer. 

25“Private carrier” is defined in West Virginia Code § 23-2C-2(n) (2010) to mean “any 

insurer or the legal representative of an insurer authorized by the Insurance Commissioner 

to provide workers’ compensation insurance pursuant to this chapter.” 

26
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

we have explained, this Court is not bound by the incorrect reasoning relied upon by a lower 

court: 

We have consistently held that “[t]his Court may, on appeal, 

affirm the judgment of the lower court when it appears that 

such judgment is correct on any legal ground disclosed by the 

record, regardless of the ground, reason or theory assigned by 

the lower court as the basis for its judgment.” Syl. Pt. 3, Barnett 

v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965); see also 

Cumberland Chevrolet Oldsmobile Cadillac, Inc. v. General 

Motors Corp., 187 W.Va. 535, 538, 420 S.E.2d 295, 298 n. 4 

(1992)(stating that “even if the reasoning of a trial court is in 

error . . . we are not bound by a trial court’s erroneous 

reasoning”); State ex rel. Dandy v. Thompson, 148 W.Va. 263, 

274, 134 S.E.2d 730, 737, cert. denied, 379 U.S. 819, 85 S.Ct. 

39, 13 L.Ed.2d 30 (1964)(stating in criminal context that 

“correctness of ... [trial court’s] final action is the only material 

consideration, not the stated reasons for [the trial court’s] 

taking such action”). 

State v. Boggess, 204 W. Va. 267, 276, 512 S.E.2d 189, 198 (1998). 

Thus, we now examine other grounds relied upon by the circuit court in its 

decision to grant the Plaintiffs summary judgment. The circuit court also found the 

settlement entered into between Speed Mining and the Plaintiffs foreclosed the statutory 

right of subrogation as “the terms of the settlement did not expressly preserve Speed 

Mining’s right to be reimbursed for workers compensation benefits paid to Mr. O’Neal 

should he recover monies from third-parties,” such as Baughan defendants. It is the 

language contained within this settlement agreement that is the Achilles’ heal of Old 

Republic’s argument that it is entitled to statutory subrogation. 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

When Speed Mining settled the Plaintiffs’ deliberate intention action, the 

settlement agreement, dated October 13, 2011, provided: “It is FURTHER 

SPECIFICALLY UNDERSTOOD, ACKNOWLEDGED AND AGREED bythe parties that 

this Agreement is the entire agreement and encompasses all terms and agreements 

negotiated by them in settlement of any and all claims relating to the Subject Incident and 

that there is no other writings whatsoever.” (Emphasis added). 

At the time of the foregoing settlement, Speed Mining, in its own right, had 

a contractual claim of reimbursement under Old Republic’s insurance policy for the 

$1,845,197.13 that Speed Mining had paid as its deductible as a result of the Plaintiff Mr. 

O’Neal’s workers’ compensation claim. As Beverly Sellers, Old Republic’s representative 

testified during her deposition, “[t]he policy language dictates what happens to any 

recovery.” According to Ms. Sellers, Old Republic would keep any amount over the 

deductible and any other amount would be reimbursed to Speed Mining. Consequently, 

when Speed Mining settled the deliberate intention claim with the Plaintiffs, it agreed that 

the settlement was for “any and all claims relating to the Subject Incident[,]” i.e., the 

accident that caused Mr. O’Neal’s injuries. Thus, Speed Mining relinquished its right of 

reimbursement of any money it had expended in payment of the deductible amounts of Mr. 

O’Neal’s workers’ compensation claim from the settlement the Plaintiffs entered into with 

the Baughan defendants regarding their products liability claim. 

28
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The consequence of Speed Mining’s action are that when Old Republic sought 

to invoke its statutory right of subrogation under the provisions of West Virginia Code § 23­

2A-1(b) relating to the settlement that the Plaintiffs entered into with the Baughan 

defendants regarding the products liability claim, Old Republic sought subrogation of the 

$1,845,197.13,26 which was the amount of money that had been paid by Speed Mining,27 not 

Old Republic, under the subject workers’ compensation insurance policy at the time of the 

products liabilitysettlement. As previouslymentioned, Speed Mining relinquished its claim 

of reimbursement as part of the negotiated settlement regarding the deliberate intention 

claim entered into between it and the Plaintiffs. Had Old Republic paid any money relative 

26To the extent that Old Republic argues in its brief that “[a]s of December 13, 2013, 

three days before the hearing below [referring to the summary judgment hearing], . . . [Old 

Republic] had alreadypaid $239,454.65 over the deductible, and had conservativelyreserved 

$6,565,914.35 in benefits payments for this claim[,]” this information is nothing more than 

a red herring. Old Republic was only entitled to seek subrogation for money paid as of the 

date of recovery by the Plaintiffs from the third party. In this case, the date of recovery was 

the date the Plaintiffs settled their products liability claim with the Baughan Defendants and 

the record establishes that on that date, the workers’ compensation benefits that had been 

paid remained within the $2,000,000 deductible. 

27Old Republic relied upon Argonaut Insurance Co. v. Baker, 87 S.W.3d 526 (Tex. 

2002), to support its position that it is entitled to recover the deductible amount paid by its 

insured in this case. A close examination of the Argonaut decision, however, reveals that the 

decision fails to support Old Republic’s argument. The insurance company paid the 

deductible in that case under the deductible plan the employer had in place. Thus, the 

Supreme Court of Texas held the insurer “must be reimbursed from the settlement proceeds 

for the benefits it has paid to and on behalf of . . . [the injured worker], including those paid 

from the deductible[,]” because the insurer had actually paid the deductible amount. Id. at 

531-32. In this case, as the circuit court found, Old Republic had not pay any workers’ 

compensation benefits to the Plaintiffs at the time they recovered from the Baughan 

defendants. 

29
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

to indemnity or medical benefits under the Old Republic workers’ compensation insurance 

policy, Old Republic certainly would have had a statutory right of subrogation. The only 

claim that was waived, therefore, was Speed Mining’s claim for reimbursement. 

As we recognized in syllabus point two of Bush v. Richardson, 199 W. Va. 

374, 484 S.E.2d 490 (1997), 

“‘[t]he doctrine of subrogation is that one who has the right to 

pay, and does pay, a debt which ought to have been paid by 

another is entitled to exercise all the remedies which the 

creditor possessed against that other.’ Syl. Pt. 1, Bassett v. 

Streight, 78 W.Va. 262, 88 S.E. 848 (1916).” Syl. pt. 4, Ray v. 

Donohew, 177 W.Va. 441, 352 S.E.2d 729 (1986). 

Furthermore, we held: “‘The right of subrogation depends upon the facts and circumstances 

of each particular case. Huggins v. Fitzpatrick, 102 W.Va. 224, 228, 135 S.E. 19, 20 

(1926).’ Syl. pt. 3, Ray v. Donohew, 177 W.Va. 441, 352 S.E.2d 729 (1986).” Bush, 199 

W. Va. at 375, 484 S.E.2d at 491, Syl. Pt. 3. In reaching these two holdings, even though 

we accepted the differences between statutory and equitable subrogation,28 we 

acknowledged that “[t]he doctrine of subrogation originated from equity rather than out of 

statute or common law . . . .” Id. at 377-38, 484 S.E.2d at 493-94. We further stated that 

28We reject Old Republic’s arguments that the circuit court “applied principles of 

equitable subrogation to extinguish” or modify its statutory right of subrogation. Rather, a 

plain reading of the circuit court’s order reveals that the circuit court historically recognized 

that the concept of subrogation is derived from equity, not statute, and that at its essence, 

even statutory subrogation involves “a person who, in fact, paid the debts owed by 

another[.]” 

30
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“[t]he purpose of subrogation is ‘to compel the ultimate payment of a debt by one who, in 

justice, equity, and good conscience, should pay it.’ 83 C.J.S. Subrogation § 2 at 582 (1953) 

(footnote omitted).” Bush, 199 W. Va. at 378, 484 S.E.2d at 494. 

Consequently, under the unique facts of this case, Old Republic is attempting 

to recover money that it never paid and that its insured is not entitled to receive. If this 

Court were to allow Old Republic to exercise the statutory right of subrogation in this 

matter, Old Republic would receive a windfall insofar as it would receive monies it never 

expended.29 Moreover, under such a scenario, Old Republic’s insured, Speed Mining, 

29We decline to hold that a deductible amount paid under a workers’ compensation 

policy may never be recovered by a private insurer under the provisions of West Virginia 

Code § 23-2A-1. There may be instances either where a private insurer pays the deductible 

under the terms of the policy or where the private insurer contractually asserts a subrogation 

lien for money paid under the policy, which may include a deductible amount paid by the 

insured, but where the insured has not released its reimbursement or subrogation claim. In 

these instances, the terms of the insurance policy will more than likely govern the manner in 

which either the insured reimburses the insurer or the insurer reimburses its insured. 

We further note that under the contractual language of Old Republic’s policy in this 

case, the insured, Speed Mining, was contractually obligated to “do everything necessary to 

protect” Old Republic’s contractual rights “to recover all advances and payments, including 

those within the Deductible Amount(s) from anyone liable for the injury.” According to the 

terms of the policy, 

[i]f we [referring to Old Republic] recover any advance or 

payment under this policy from anyone liable for the injury, the 

amount we recover will first be applied to any payments made 

by us on this injury in excess of the Deductible Amount(s); only 

then will the remainder of the recovery, if any, be applied to 

reduce the Deductible Amount(s) paid or reimbursed or 

(continued...) 

31
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

would be allowed to circumvent its settlement of the deliberate intention claim entered into 

with the Plaintiffs, as Speed Mining gave up any claim of reimbursement as part of the 

terms of the settlement of that claim. 

IV. Conclusion 

Based upon the foregoing, we reverse the circuit court’s denial of Old 

Republic’s Rule 60(b) motion for relief from judgment. In the interest of judicial economy, 

deciding to forego remand for entry of an order granting Old Republic’s relief requested for 

purposes of pursuing an appeal, we proceed with a review of the substantive issue. We 

affirm the circuit court’s order granting the Plaintiffs’ motion for summary judgment. 

Reversed, in part; 

Affirmed, in part. 

29(...continued)
 

reimbursable by you [Speed Mining] on this injury.
 

Arguably, under the foregoing contractual language, Old Republic may have a basis for 

asserting that Speed Mining breached the terms of the insurance policy; however, it is 

uncertain as to how it can be established that Speed Mining failed to protect Old Republic’s 

contractual rights given Old Republic had not expended any money pursuant to the insurance 

policy at the time of the settlement. Moreover, as Speed Mining was not a party to this 

portion of the litigation below and is not a party to this appeal, we find no basis for resolving 

this issue. 

32