Above the Law calls opinions where judges criticize one another “benchslaps,” and there’s a doozy of one in West Virginia, made all the sweeter by the appropriateness of the facts for Overlawyered.
Robert Cleavenger and Marissa Strahin were lovers, but at some point the relationship ended. Strahin, pregnant with Cleavenger’s child, moved in with Earl Sullivan in Braxton County, West Virginia. This perturbed Cleavenger, who decided to resolve the matter with a high-powered rifle. Thinking discretion the better of valor, Sullivan fled his property in a car, taking Strahin and her brother, Daniel Strahin, with him. Cleavenger pursued, and fired at the fleeing car, hitting Daniel in the arm.
Now the lawyers enter the picture. In 1999, Daniel Strahin and his parents sued Cleavenger and his parents, and also sued Sullivan on the grounds that it was foreseeable that Cleavenger would come after people on Sullivan’s property. The Strahins demanded that Sullivan’s insurers settle for insurance limits; they refused. The Strahins then conspired with Sullivan for the latter to assign a “bad-faith” claim to the plaintiffs in exchange for a covenant not to execute on any judgment against him. A sham of a trial took place, and a jury awarded over a million dollars to the Strahins, holding Cleavenger 70% responsible and Sullivan 30% responsible. The Strahins then went after Sullivan’s insurers.
West Virginia is enough of a judicial hellhole that it affirmed Sullivan’s liability (for which the insurers paid the $100,000 limit), even though there was no longer a case or controversy against him, but even West Virginia courts would not countenance the attempt to team up against the insurer for the bad-faith claim. After all, Sullivan’s assets were never at risk because he already settled with the Strahins, so there was no harm from the insurer’s refusal to settle, even if it were in bad faith.
Amazingly, Justice Larry Starcher dissented from this common-sense result. But none of the cases he cited supported his dissent. This prompted a concurrence, and the aforementioned benchslap:
“The complexity of the issue is quite evident in view of the fact that absolutely none of the fifteen string-cited cases in Mr. Strahin’s brief is on point with the facts of his case. I should note that the dissenting opinion of Justice Starcher repeats Mr. Strahin’s error, by citing to cases that are not on point with the fact pattern presented to and addressed by the majority opinion.”
In the words of the West Virginia Record, “State Supreme Court Chief Justice Robin Jean Davis lectured Justice Larry Starcher so firmly over a dissent that he probably can count it as credit for continuing education.” (Steve Korris, “Davis lectures Starcher in insurance opinion”, Aug. 16; Strahin v. Sullivan (Feb. 21 majority opinion); Starcher dissent (Jun. 29); Davis concurrence (Jul. 19)).
One Comment
That the insurer had to pay anything is an abuse.