made whole rule in West Virginia

2008As this Court stated in Porter v. McPherson, 198 W.Va. 158, 162-63 , 479 S.E.2d 668, 672-73 (1996): In insurance cases, the made-whole rule has been interpreted as meaning "[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.” Wine v. Globe American Casualty Co., 917 S.W.2d 558 , 562 (Ky.1996); see also Hill v. State Farm Mut.

1997We have explained the made-whole rule in insurance cases as meaning “ ‘[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.’” Id. (quoting Wine v. Globe American Casualty Co., 917 S.W.2d 558, 562 (Ky.1996)) (emphasis added).

2008As this Court stated in Porter v. McPherson, 198 W.Va. 158, 162-63 , 479 S.E.2d 668, 672-73 (1996): In insurance cases, the made-whole rule has been interpreted as meaning "[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.” Wine v. Globe American Casualty Co., 917 S.W.2d 558 , 562 (Ky.1996); see also Hill v. State Farm Mut.

2008As this Court stated in Porter v. McPherson, 198 W.Va. 158, 162-63 , 479 S.E.2d 668, 672-73 (1996): In insurance cases, the made-whole rule has been interpreted as meaning "[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.” Wine v. Globe American Casualty Co., 917 S.W.2d 558 , 562 (Ky.1996); see also Hill v. State Farm Mut.

1997Finding no intent by the legislature that the usual and ordinary definition of subrogation should not apply, and in light of the equitable principles underlying the doctrine of subrogation, we held in Kittle that the right to subrogation may be limited by the made-whole rule. 185 W.Va. at 133-34 , 405 S.E.2d at 463-64 .

1997Finding no intent by the legislature that the usual and ordinary definition of subrogation should not apply, and in light of the equitable principles underlying the doctrine of subrogation, we held in Kittle that the right to subrogation may be limited by the made-whole rule. 185 W.Va. at 133-34 , 405 S.E.2d at 463-64 .

2001In defining the made-whole doctrine, this Court has previously explained, and we now hold, 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.’” Bush v. Richardson, 199 W.Va. 374, 378 , 484 S.E.2d 490, 494 (1997) (some emphasis added) (citing Porter v. McPherson, 198 W.Va. 158, 162 , 479 S.E.2d 668, 672 (1996)).

2001In defining the made-whole doctrine, this Court has previously explained, and we now hold, 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.’” Bush v. Richardson, 199 W.Va. 374, 378 , 484 S.E.2d 490, 494 (1997) (some emphasis added) (citing Porter v. McPherson, 198 W.Va. 158, 162 , 479 S.E.2d 668, 672 (1996)).

1997The rationale given for applying the made-whole rule in insurance eases is “‘where either the insurer or the insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume.’ ” Waukesha County v. Johnson, 107 Wis.2d 155 , 320 N.W.2d 1, 3 (Ct.App.1982) (quoting Garrity v. Rural Mut.

1997The rationale given for applying the made-whole rule in insurance eases is “‘where either the insurer or the insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume.’ ” Waukesha County v. Johnson, 107 Wis.2d 155 , 320 N.W.2d 1, 3 (Ct.App.1982) (quoting Garrity v. Rural Mut.

2001Cos. v. Frohlich, 243 Neb. 111, 118 , 498 N.W.2d 74, 79 (“[I]f a contractual right of subrogation is merely the usual equitable right which would have existed in any event in the absence of a contract, equitable principles control subrogation.”). 6 Indeed, subrogation is an equitable principle and, as such, the general rules of equity, including the made-whole rule, will apply regardless of whether the subrogation arises from common law or by contract, unless a contrary agreement is clearly and expressly stated.

2001Cos. v. Frohlich, 243 Neb. 111, 118 , 498 N.W.2d 74, 79 (“[I]f a contractual right of subrogation is merely the usual equitable right which would have existed in any event in the absence of a contract, equitable principles control subrogation.”). 6 Indeed, subrogation is an equitable principle and, as such, the general rules of equity, including the made-whole rule, will apply regardless of whether the subrogation arises from common law or by contract, unless a contrary agreement is clearly and expressly stated.

1997In concluding that the made-whole rule was inapplicable, the Court of Appeals of Wisconsin explained that workers’ compensation laws are wholly statutory and that “questions regarding public policy should be determined by the legislature, not the courts.” Id. at 74 (citing Larson v. DILHR, 76 Wis.2d 595 , 252 N.W.2d 33, 45 (1977)).

1997In concluding that the made-whole rule was inapplicable, the Court of Appeals of Wisconsin explained that workers’ compensation laws are wholly statutory and that “questions regarding public policy should be determined by the legislature, not the courts.” Id. at 74 (citing Larson v. DILHR, 76 Wis.2d 595 , 252 N.W.2d 33, 45 (1977)).

1997Huggins v. Fitzpatrick, 102 W.Va. 224, 228 , 135 S.E. 19, 20 (1926).” Syl. pt. 3, Ray, supra. Generally, subrogation is limited by what is referred to as the made-whole rule.

1997Huggins v. Fitzpatrick, 102 W.Va. 224, 228 , 135 S.E. 19, 20 (1926).” Syl. pt. 3, Ray, supra. Generally, subrogation is limited by what is referred to as the made-whole rule.

1997For example, in Waith v. Workmen’s Compensation Bureau, 409 N.W.2d 94, 96 (N.D.1987), the Supreme Court of North Dakota examined whether the Workmen’s Compensation Bureau (hereinafter “the Bureau”) “should receive a prorated subrogation interest when a benefit recipient recovers against a third-party tortfeasor less than the total damages sustained by the recipient because the tort-feasor is protected by a statutory maximum liability limit.” The Bureau’s subrogation rights were authorized by N.D.