Laxton v. National Grange Mutual Insurance Company
In Laxton v. National Grange Mutual Insurance Company, 150 W. Va. 598, 148 S.E.2d 725 (1966), the plaintiff's automobile was damaged in a wreck.
The plaintiff filed an action against his insurer to recover the cost to repair the vehicle. The insurer defended the action on the theory that the policy had been cancelled before the wreck occurred.
The jury returned a verdict in favor of the plaintiff. The insurer appealed, and the plaintiff filed a cross-assignment of error. The relevant issue in the case involved the plaintiffs cross-assignment of error.
On appeal, the plaintiff argued that the insurer had waived its defense of alleged cancellation by failing to plead the defense in conformity with W. Va. Code 56-4-21.
That statute required that, in any action on an insurance policy, certain defenses must be asserted affirmatively by a statement in writing and under oath.
The Court in Laxton acknowledged that prior to the adoption of the West Virginia Rules of Civil Procedure, the requirements of W. Va. Code 56-4-21 had been mandatory.
However, the opinion went on to invalidate the statute as a result of the Rules of Civil Procedure:
We believe that the procedural provisions of this statute have been superseded by the West Virginia Rules of Civil Procedure which became effective July 1, 1960. The . . . cases cited in behalf of the plaintiff were decided before that date. R.C.P. 1 is, in part, as follows:
"These rules govern the procedure in all trial courts of record in all actions, suits, or other judicial proceedings of a civil nature whether cognizable as cases at law or in equity. . . ." R.C.P. 8 (c)) deals with affirmative defenses, but does not provide that such defenses must be raised by a pleading under oath. R.C.P. 11 provides, that except where otherwise provided by the Rules, pleadings need not be verified or accompanied by affidavit. The Rules embrace actions such as that involved in this case. The answer to the complaint affirmatively pleaded the alleged cancellation. The answer was not required by the Rules to be under oath. The cross-assignment of error, therefore, is not well taken. (Laxton, 150 W. Va. at 601, 148 S.E.2d at 727.)