Insurer’s Refusal to Defend West Virginia Man Means He Can Claim Damages

A former Wyoming County Council on Aging director can recover damages for aggravation and inconvenience from an insurance company that refused to represent him when the state sued him, a federal appeals court ruled.

This week’s unpublished opinion by a three-judge panel of the 4th Circuit Court of Appeals in Virginia came in an appeal by Bob Graham. U.S. District Judge David Faber had ruled that Graham couldn’t recover these damages from National Union Fire Insurance.

“From the insured’s perspective, he is bound to suffer the same aggravation and inconvenience regardless of how the insurer breaches the policy; either by unjustifiably refusing to provide a defense against liability or by wrongfully withholding indemnification from property loss,” the appeals court wrote in the opinion.

The ruling is the latest in a long legal battle, both civil and criminal, over Graham’s tenure as the director of the aging council and All Care Home and Community Services.

He was convicted in 2006 on one federal count of cashing out $31,129 in sick leave without the approval of the council’s board of directors. The 4th Circuit overturned the conviction in 2008, ruling there was insufficient evidence that Graham knowingly stole from his employer.

In 2004, the state sued Graham, the council and All Care, alleging they breached public trust in their use of public funds. That lawsuit was dismissed as moot in 2009 after the organizations’ boards removed Graham from his position.

Graham sued National Union in 2010 after it refused to represent him in the lawsuit filed by the state. Faber found in favor of National Union but the appeals court overturned his ruling in 2012 and sent the case back, which led to Graham’s latest appeal.

“I don’t expect a lot of money. But the case will be at an end,” Graham said Wednesday.

“It’s a matter of principle. If you start something, you finish it,” he said.

Lawyers for National Union were not immediately available for comment Wednesday.