STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Andrea Roberts, FILED 

Plaintiff Below, Petitioner May 30, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-0743 (Kanawha County 11-C-430) OF WEST VIRGINIA 

State Farm Mutual Automobile 

Insurance Company, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Andrea Roberts, by counsel John J. Polak and Mark A. Atkinson, appeals an 

order of the Circuit Court of Kanawha County entered June 24, 2013, which granted summary 

judgment in favor of Respondent State Farm Mutual Automobile Insurance Company (“State 

Farm”). State Farm, by counsel Charles S. Piccirillo and Sabrena Olive Gillis, filed a response to 

which petitioner filed a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

The Underlying Action 

On December 13, 2007, petitioner was operating a 1996 Ford Explorer in Barboursville, 

Cabell County, West Virginia, when it was struck from behind by a vehicle owned by Thelma 

Hall and operated by Kitty Ann Alderson. The Hall vehicle was insured by Allstate Insurance 

Company and had a $50,000.00 liability policy. Driver Kitty Alderson had a policy issued by 

State Farm, with liability limits of $100,000.00 and which was excess liability coverage to the 

Allstate policy for the subject accident. Petitioner was the named insured under her own State 

Farm policy, which provided underinsured motor vehicle coverage limits of $100,000.00 per 

person and $300,000.00 per occurrence, as well as medical payment coverage (also referred to as 

“MPC”) limits of $25,000.00. 

Petitioner presented an MPC claim to State Farm under her own policy. As it began 

making MPC payments under this coverage, State Farm also initiated contact with Allstate. By 

letter dated September 4, 2008, State Farm provided Allstate with “notice of [State Farm’s] 

subrogation lien and interest in this matter,” and also requested that Allstate “should address our 

subrogation interest prior to executing any settlement. In the event that a settlement is made 

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without first addressing our subrogation rights, your company will be responsible for the medical 

expense payments, which we made pursuant to Nationwide v. Dairyland, 445 S.E.2d 184 (W.Va. 

1994).” Meanwhile, on September 23, 2009, petitioner filed a civil action against Alderson (the 

driver of the vehicle that struck petitioner’s vehicle) in the Circuit Court of Cabell County for 

bodily injury received in the accident. Pursuant to its insurance agreement with Hall (the owner 

of the vehicle Alderson was driving), Allstate provided a defense for Alderson. 

It is undisputed that under petitioner’s policy with State Farm, State Farm had a 

contractual right to subrogation for MPC payments made under the policy. In October of 2009, 

given that the two-year statute of limitations on petitioner’s personal injury claim was about to 

expire and that petitioner did not inform State Farm that she had already protected State Farm’s 

contractual subrogation rights by filing a civil action, State Farm submitted a medical payment 

subrogation claim against Allstate to inter-company arbitration seeking $18,097.70 in medical 

payments it had paid on petitioner’s behalf.1 

On December 1, 2009, State Farm received an arbitration award of $18,097.70 from the 

Arbitration Forum. Allstate subsequently advised State Farm that it would honor the award upon 

settlement of petitioner’s personal injury claim. However, on or about March 16, 2010, with the 

assistance of the Arbitration Forum, State Farm collected a $18,097.70 check from Allstate that 

was made payable to “State Farm Mutual Auto Insurance, as a subrogee of Andrea Roberts, and 

Mark Atkinson Esq. her attorney.” State Farm failed to advise either petitioner or her counsel 

that the arbitration award had been received and cashed the check. 

On July 19, 2010, in connection with petitioner’s MPC claim and pursuant to the terms of 

petitioner’s State Farm policy, a State Farm claims representative requested that petitioner 

submit to an independent medical examination (“IME”). The stated reason was that petitioner 

had no contact with State Farm from March 2009 until April 2010, when she was prescribed a 

TENS unit, and that a June of 2010 doctor’s note stated that petitioner injured her back in a fall 

months after the subject car accident. It is undisputed that petitioner refused to attend the IME. 

In October of 2010, State Farm Claims Representative Debbie Clem learned that Allstate 

previously paid State Farm $18,097.90 in subrogation and that approximately $31,000.00 in 

liability coverage was still available. On or about November 30, 2010, Clem returned the 

subrogation arbitration award to Allstate and, shortly thereafter, advised petitioner’s attorney of 

the refund. 

On December 2, 2010, Allstate (on behalf of Alderson) offered petitioner the Allstate 

policy limits of $50,000.00, contingent upon State Farm’s agreement to waive its MPC 

subrogation claim. State Farm refused to waive subrogation, contending that only $6,000.00 of 

petitioner’s medical bills arguably related to the subject accident. Petitioner and Alderson 

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Petitioner represents that, prior to filing its subrogation claim, State Farm failed to make 

any attempt to contact her to inquire as to whether she intended to file or had filed a lawsuit in 

her own name. For its part, State Farm contends that when it notified petitioner of its subrogation 

interests in December of 2008, petitioner failed to respond; failed to inform State Farm that she 

intended to file suit; and further failed to inform it that she subsequently did file suit. 

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eventually settled the underlying personal injury action in January of 2011. Under the terms of 

the settlement agreement, petitioner received the entire limits of liability under Hall’s Allstate 

policy ($50,000.00) and also received $10,000.00 from Alderson’s State Farm policy, which was 

a $100,000.00 excess liability policy. State Farm subsequently reduced its MPC subrogation 

claim of $19,276.75 to $6,000.00, which was then further reduced by a one-third attorney’s fee, 

to $4,000.00. 

The Present Action 

On March 16, 2011, Petitioner filed the present action in the Circuit Court of Kanawha 

County against State Farm, State Farm Claims Representative Clem, and another claims 

representative, Joan Schwartz.2 Petitioner alleged claims of breach of contract, unfair claims 

settlement practices, and bad faith, all arising from State Farm’s handling of petitioner’s claim 

for MPC benefits. The complaint essentially challenges State Farm’s efforts to exercise its right 

of subrogation of medical payment benefits prior to petitioner being “made whole” for her 

damages suffered as a result of the subject accident. More specifically, petitioner challenges 

State Farm’s attempt to directly pursue subrogation through arbitration and its subsequent refusal 

to waive its subrogation rights when petitioner was seeking to recover the Allstate liability 

coverage in the underlying personal injury lawsuit. 

A Scheduling Order was entered on May 15, 2012, providing for a June 3, 2013, trial 

date; a discovery cut-off date of March 15, 2013; and a deadline for the filing of dispositive 

motions on April 5, 2013. In accordance therewith, State Farm filed a motion for summary 

judgment on April 5, 2013. Almost three weeks later, on April 25, 2013, petitioner served a Rule 

30(b)(7) deposition notice upon State Farm. On April 29, 2013, petitioner filed a motion to 

continue the trial and for an extension of the time frames in which to complete pre-trial 

discovery. As grounds for her motion, petitioner stated that “the parties have experienced 

scheduling difficulties and delays in completing the fact discovery necessary for the development 

of the case” and that “because fact discovery has not been completed, the party’s expert 

witnesses have not been able to render their final opinions in this case, nor have the parties been 

able to depose the experts about their opinions.” Thereafter, on May 14, 2013, petitioner filed her 

response in opposition to State Farm’s motion for summary judgment. 

In an order entered June 24, 2013, following a hearing on the motion, the circuit court 

granted State Farm’s motion for summary judgment.3 This appeal followed. 

Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment 

should be awarded “if the pleadings, depositions, answers to interrogatories, and admissions on 

2

Deposition testimony of Defendants Schwartz and Clem subsequently revealed that they 

were neither involved in nor had personal knowledge of State Farm’s decision to try to enforce 

its subrogation rights against Allstate via arbitration. 

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It appears that, on July 16, 2013, well after the circuit court entered its June 24, 2013, 

order granting summary judgment in favor of State Farm and dismissing the matter, with 

prejudice, the circuit court inadvertently entered an order granting petitioner’s motion to 

continue the trial date and to extend the discovery time line. 

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file, together with the affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” Thus, “‘[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.’ 

Syl. pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 

(1963).” Syl. Pt. 1, McComas v. ACF Industries, LLC, 232 W.Va. 19, 750 S.E.2d 235 (2013). 

We accord a plenary review to the circuit court’s order granting summary judgment: “[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). We note, as well, that “the party opposing summary judgment must 

satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce 

evidence sufficient for a reasonable jury to find in a nonmoving party’s favor. Anderson [v. 

Liberty Lobby, Inc.], 477 U.S. [242] at 252, 106 S.Ct. [2505] at 2512, 91 L.Ed.2d [202] at 214 

[1986].” Williams v. Precision Coil, Inc., 194 W.Va. 52, 60, 459 S.E.2d 329, 337 (1995). 

Petitioner’s first assignment of error is that the circuit court erred in granting State Farm’s 

motion for summary judgment before discovery was completed. See Payne’s Hardware & Bldg. 

Supply, Inc. v. Apple Valley Trading Co., 200 W.Va. 685, 690, 490 S.E.2d 772, 777 (1997) 

(quoting Celotex Corp. v. Catrett, 477 U.S.317, 322 (1986)) (stating that “[s]ummary judgment 

is appropriate only after the non-moving party has enjoyed ‘adequate time for discovery.’”). As 

noted above, State Farm filed its motion for summary judgment on April 5, 2013, which was the 

deadline for the filing of dispositive motions as set forth by the scheduling order. Approximately 

three weeks later, petitioner moved to continue the trial and to extend the discovery time line and 

also served State Farm with a notice of video deposition of the company’s representatives, 

pursuant to Rule 30(b)(7) of the West Virginia Rules of Civil Procedure. In Syllabus Point 1 of 

Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 

(1996), this Court held as follows: 

An opponent of a summary judgment motion requesting a continuance for 

further discovery need not follow the exact letter of Rule 56(f) of the West 

Virginia Rules of Civil Procedure in order to obtain it. When a departure from the 

rule occurs, it should be made in written form and in a timely manner. The 

statement must be made, if not by affidavit, in some authoritative manner by the 

party under penalty of perjury or by written representations of counsel. At a 

minimum, the party making an informal Rule 56(f) motion must satisfy four 

requirements. It should (1) articulate some plausible basis for the party’s belief 

that specified “discoverable” material facts likely exist which have not yet 

become accessible to the party; (2) demonstrate some realistic prospect that the 

material facts can be obtained within a reasonable additional time period; (3) 

demonstrate that the material facts will, if obtained, suffice to engender an issue 

both genuine and material; and (4) demonstrate good cause for failure to have 

conducted the discovery earlier. 

On appeal, petitioner generally argues that her motion to continue the trial and to extend 

the time lines for the completion of discovery satisfied the informal requirements of Powderidge. 

We disagree. Petitioner’s brief fails to articulate any basis for the belief that “specified 

‘discoverable’ material fact” exists and further fails to demonstrate that “material facts can be 

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obtained within a reasonable additional time period.” Id. Furthermore, petitioner fails to 

demonstrate (or even argue) that newly-obtained material facts will suffice to produce a genuine 

and material issue and also fails to show “good cause for failure to have conducted the discovery 

earlier.” Id. Given that petitioner has failed to satisfy even the minimal requirements of 

Powderidge, this Court concludes that the circuit court did not err in considering State Farm’s 

timely motion for summary judgment. 

Petitioner’s second assignment of error is that the circuit court erred in granting State 

Farm’s motion for summary judgment because the existing record contained sufficient evidence 

to deny the motion and further erred in misapplying the “made whole” rule to this case. This 

Court has held 

[w]hen applying the made whole doctrine it is incumbent on the circuit 

court to consider: 1) the ability of parties to prove liability; 2) the comparative 

fault of all parties involved in the accident; 3) the complexity of the legal and 

medical issues; 4) future medical expenses; 5) nature of injuries; and 6) the assets 

or lack of assets available above and beyond the insurance policy. 

Syl. Pt. 3, Provident Life & Acc. Ins. Co. v. Bennett, 199 W.Va. 236, 483 S.E.2d 819 (1997). 

Petitioner argues that there are genuine issues of material fact as to whether State Farm 

effectuated the ultimate settlement of her medical payments claim (including the handling of 

State Farm’s subrogation rights) in a fair and equitable manner. In support thereof, petitioner 

argues that State Farm’s subrogation rights did not arise in this case until petitioner was made 

whole for her injuries or losses sustained in the accident,4 and further, that although the 

subrogation provision in petitioner’s State Farm policy gives State Farm the right to take legal 

action against a tortfeasor in the insured’s name to recover payments made, the policy does not 

give State Farm the right to take legal action in its own name to recover payments. Petitioner 

contends that State Farm attempted to directly exercise its subrogation rights by filing an 

arbitration proceeding against Allstate before petitioner was made whole and by seeking to 

collect the arbitration award directly from Allstate even though State Farm knew its rights were 

being protected given that petitioner had filed her own lawsuit against Allstate’s insured. Finally, 

petitioner argues that a jury could have reasonably concluded that State Farm did not act fairly or 

equitably within the meaning of West Virginia Code § 33-11-4(9)(f) (2002)5 when it refused to 

4

See Syl. Pt. 3, Kanawha Valley Radiologists Inc. v. One Valley Bank, N.A., 210 W.Va. 

223, 557 S.E.2d 277 (2001) (holding that “[u]nder general principles of equity, in the absence of 

statutory law or valid contractual obligations to the contrary, an insured must be fully 

compensated for injuries or losses sustained (made whole) before the subrogation rights of an 

insurance carrier arise.”). 

5

West Virginia Code § 33-11-4(9)(f) provides as follows: 

The following are defined as unfair methods of competition and unfair or 

deceptive acts or practices in the business of insurance: 

. . . . 

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waive subrogation and argued that the $50,000.00 liability limits offered by Allstate would make 

petitioner whole because only $6,000.00 of petitioner’s medical bills were arguably related to the 

automobile accident. 

As indicated above, it is undisputed that State Farm had a contractual right of subrogation 

to recover medical payments made under petitioner’s policy. It is further undisputed that this 

right was subject only to petitioner’s right to be made whole. See Kanawha Valley Radiologists 

Inc., 210 W.Va. at 224, 557 S.E.2d at 278, syl. pt. 3. A total of $150,000.00 in liability coverage 

was available to compensate petitioner for her injuries. Petitioner voluntarily entered into a 

settlement whereby she was paid $50,000.00, the limits of liability under the Allstate policy, plus 

$10,000.00 from the State Farm policy of the driver (Alderson), which had limits of liability of 

$100,000.00. Under the limited facts of this case, we agree with the circuit court that “no 

reasonable fact-finder could find [Petitioner] was not made whole.” 

Furthermore, the record reveals that State Farm submitted a medical payment subrogation 

claim to inter-company arbitration approximately two months before the expiration of the statute 

of limitations. State Farm’s efforts were intended to protect its subrogation rights given that 

petitioner had not informed State Farm that she had filed suit. Indeed, when State Farm first 

notified petitioner of its subrogation interests in December of 2008, petitioner neither responded 

nor advised State Farm that she even intended to file suit. Importantly, State Farm’s actions in no 

way prevented petitioner from being made whole nor did it otherwise prejudice her claim. When 

State Farm’s claim representative learned the arbitration award had been paid prior to petitioner 

settling her personal injury claim, State Farm reimbursed Allstate in full. Thus, the full limits of 

liability under the Allstate policy ($50,000.00) were available to petitioner and, in fact, were paid 

to her in settlement of her claim. Moreover, as previously noted, State Farm requested that 

petitioner undergo an IME to determine whether all of petitioner’s medical payments were 

related to the underlying automobile accident.6 Even though State Farm had a contractual right 

under the policy to make such a request, petitioner refused to comply. Nonetheless, State Farm 

paid all of petitioner’s medical bills (totaling $19,276.75). Shortly after Allstate offered its 

policy’s full limits of liability, State Farm reduced its subrogation claim by approximately twothirds, to $4,000.00. Based upon the foregoing, this Court concludes that the circuit court 

committed no error in granting summary judgment in favor of State Farm. 

For the foregoing reasons, we affirm. 

(9) Unfair claim settlement practices.—No person shall commit or 

perform with such frequency as to indicate a general business practice any of the 

following: 

. . . . 

(f) Not attempting in good faith to effectuate prompt, fair and equitable 

settlements of claims in which liability has become reasonably clear[.] 

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As noted above, State Farm requested the IME because petitioner had no contact with it 

for almost one full year (from March 2009 until April 2010, when petitioner was prescribed a 

TENS unit) and because a June of 2010 doctor’s note indicated that petitioner injured her back in 

a fall months after the subject car accident. 

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Affirmed. 

ISSUED: May 30, 2014 

CONCURRED IN BY: 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Robin Jean Davis 

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