McGraw, J., concurring:
I
concur in the decision reached by the majority because I view this as largely
a warranty case. An automobile manufactured by Ford was found by a jury to be
defective. While I agree that under the facts of this case Ford was not “in
the business of insurance,” I write separately to suggest that we may well
face a situation someday where the UTPA has broader application. When we examined
a similar issue with respect to a self-insured freight company, we noted: “[T]he
fact that the legislature permits companies to formulate the most efficient
insurance coverage should not be misconstrued as a device to avoid liability
by the self-retention of risk.” Jackson v. Donahue, 193 W. Va. 587,
592, 457 S.E.2d 524, 529 (1995) (citation omitted).
In a later case, we again noted
that the Legislature's decision to permit self- insurance was not intended to
encourage unfair practices after a claim is filed:
In Jackson, this Court
recognized that the option to self-insure “'is a privilege, and it is unimaginable
[that] the legislature intended those to whom [West Virginia] grants this privilege
would then be able to use it as a shield against liability to the public under
circumstances where liability insurance would be required to pay.'” Id.
at 594, 457 S.E.2d at 531. This Court made clear in Jackson that self-insurers
are no different than third-party insurers with respect to the insurance coverage
they provide. Pivotal to our ruling in Jackson was acknowledgment of
the following tenet: “'[T]he fact that the legislature permits companies
to formulate the most efficient insurance coverage should not be misconstrued as a device to avoid liability by the self-retention
of risk.'” Id. at 592, 457 S.E.2d at 529 (quoting Hillegass
v. Landwehr, 176 Wis.2d 76, 499 N.W.2d 652, 655-56 (1993)).
Korzun v. Chang-Keun Yi, 207 W. Va. 377, 379, 532 S.E.2d 646, 648 (2000)
(footnote omitted). I should also note that I do not entirely agree with the
majority's statement in footnote 2 that Korsun “applies only for
procedural purposes.”
Many large companies are self-insured
up to a certain amount, and then carry insurance for sums beyond that amount.
I am concerned that a person injured on the premises of a self-insured company
might receive dramatically different treatment than a person injured on the
premises of an insured company, or that a person with a claim just over the
self-insured limit might receive different treatment than one whose claim
fell just under that limit.
Presume, for example that
large, self- insured “Company X” is self-insured up to $250,000.
Any claim above that limit is covered by the insurer “Mutual of Y.”
Presume that a patron of Company X is injured by falling merchandise on the
company's premises and files a claim for less than the $250,000 self-insured
limits. In that case, Company X would investigate the claim, place a value
on the claim, and negotiate with an injured party. Presume that another patron
is injured in a similar accident, but has more severe injuries and has a claim
greater than the $250,000 limits. In this second case, the patron's claim
(or at least that portion over the limit) would be handled by “Mutual
of Y.” Under this scenario, presumably appellee Ford would argue that the second patron would have all
the protection of the UTPA, while the first would have none of those protections.
(See footnote 1)
While we were not faced with such a case today, such an outcome strikes
me as both illogical and unfair.
Finally, I am not convinced
by the arguments of counsel to the effect that a decision to apply the UTPA
to a large self-insured company would pose any threat to so- called “mom
and pop” businesses. In most cases, “mom and pop” either have
bought insurance from an insurance company, or have so few assets that a lawsuit
against them is unlikely because of the difficulty of a recovery. Parading
“mom and pop” before the Court when this case really concerns some
of the country's largest corporations is not helpful to our analysis.
Having expressed these limited
concerns, I concur with the majority's decision in this case.