The West Virginia Investment Management Board v. The Variable Annuity Life Insurance Company

Summary

Justice Davis concurred in the affirmance of a Business Court arbitration decision involving annuity contracts. The concurrence addresses whether the presiding judge could also serve as a resolution judge and whether the same person could mediate and arbitrate the dispute, concluding that any procedural objections were waived because the parties agreed to the arrangements.

Holdings

1. The arrangement was not contemplated by the West Virginia Trial Court Rules and constituted a serious procedural error, but the parties waived the error by agreeing to and acquiescing in the arrangement.
2. Rule 29.08(h) permits the parties and the resolution judge to agree to alternative dispute resolution that may include mediation followed by arbitration, and any procedural objection was waived because the parties consented to the arrangement.

Questions Presented

1. Whether it was a procedural error for the Business Court presiding judge also to serve as the resolution judge in the same case.
2. Whether a resolution judge may serve as both mediator and arbitrator in the same case.
3. Whether the parties waived any procedural objection by agreeing to or acquiescing in the challenged arrangements.

Disposition

affirmed