DeVane v. Kennedy

In DeVane v. Kennedy, 205 W. Va. 519, 519 S.E.2d 622 (1999), the issues presented were whether the Guaranty Act required exhaustion of the hospital's solvent insurance before Mrs. DeVane could recover from WVIGA and whether the circuit court could enforce a pre-insolvency settlement agreement against WVIGA. The Court was not asked to determine whether WVIGA could be liable for multiple claims stemming from one injury. In DeVane, Richard Richardson received medical treatment from Dr. Kennedy in the emergency room of Charles Town General Hospital, Inc. As a result of such treatment, Mr. Richardson died. The decedent's personal representative, Cheryl Richardson DeVane who was his widow and sole beneficiary, instituted a civil action alleging medical malpractice by Dr. Kennedy and ostensible agency and vicarious liability of the hospital. Mrs. DeVane entered into a settlement agreement with ICA, Dr. Kennedy's insurer. Shortly thereafter, ICA was declared to be insolvent. WVIGA assumed responsibility for the claims for benefits filed against ICA by West Virginia residents. WVIGA disputed its liability for ICA's obligations arising from the pre-insolvency settlement agreement and refused to tender the settlement amount. Mrs. DeVane asked the circuit court to enforce the settlement agreement against WVIGA. The court directed that the agreement be entered as a judgment. WVIGA moved to intervene and asked the court to set aside its ruling. The court granted WVIGA's motion to intervene and WVIGA appealed to this Court. On appeal, this Court affirmed the ruling of the circuit court enforcing the settlement agreement against WVIGA. In so doing, we reasoned that: the definition of "covered claim" contemplates a (1) claim that is (2) unpaid; (3) "which arises out of and is within the coverage of an insurance policy," which (a) is "in force at the time of the occurrence giving rise to" the claim and (b) was issued by an insurer which became insolvent after May 12, 1970; and (4)(a) that is asserted by a claimant or insured who "is a resident of West Virginia at the time of the insured occurrence" or (b) that arises from property which "is permanently located in West Virginia." (Id., 205 W. Va. at 530, 519 S.E.2d at 633.)