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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2009 Term _______________ No. 34858 _______________

FILED October 13, 2009
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


STATE OF WEST VIRGINIA EX REL.
PROGRESSIVE CLASSIC INSURANCE COMPANY,
Petitioner
v. THE HONORABLE THOMAS A. BEDELL,
JUDGE OF THE CIRCUIT COURT OF HARRISON COUNTY, WEST
VIRGINIA, and JUDITH A. SWOGER,
Respondents
_________________________________________________ ORIGINAL PROCEEDING IN PROHIBITION WRIT DENIED __________________________________________________ Submitted September 23, 2009
Filed: October 13, 2009
R. Carter Elkins, Esq. Laura L. Gray, Esq. Campbell Woods, PLLC Huntington, West Virginia Attorneys for Progressive Classic Ins. Co. David J. Romano, Esq. Rachel Romano, Esq. Romano Law Office Clarksburg, West Virginia Attorneys for Judith A. Swoger

The Opinion of the Court was delivered by JUSTICE KETCHUM.

SYLLABUS BY THE COURT


1. "The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction." Syl., State ex rel. Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925).

2. "When a court is attempting to proceed in a cause without jurisdiction, prohibition will issue as a matter of right regardless of the existence of other remedies." Syl. pt. 10, Jennings v. McDougle, 83 W.Va. 186, 98 S.E. 162 (1919).

3. In addition to the provisions set forth in Rule 45(b)(1) of the West Virginia Rules of Civil Procedure concerning the service of a subpoena upon a person in the manner provided for service of process under W.Va. R. Civ. P. 4(d)(1)(A), a subpoena or a subpoena duces tecum for a deposition under W.Va. R. Civ. P. 30(b)(7) may be served upon a domestic or foreign corporation through the corporation's agent or attorney-in-fact authorized by appointment or by statute to receive or accept service upon the corporation's behalf.

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Ketchum, Justice:

This original proceeding is before this Court upon the petition of Progressive Classic Insurance Company asking this Court to prohibit the enforcement of the February 11, 2009, order of the Circuit Court of Harrison County, West Virginia. Pursuant to that order, the Circuit Court denied Progressive's motion to set aside contempt and various sanction orders arising from Progressive's failure to respond to a subpoena duces tecum. The subpoena, issued to Progressive in August 2008, concerned a scheduled deposition in the underlying personal injury action brought by Judith A. Swoger against Dina J. McKinney. Although not a party in the action, Progressive is the insurer of McKinney and was named in the subpoena as a corporate deponent pursuant to Rule 30(b)(7) of the West Virginia Rules of Civil Procedure.

Progressive contends that the Circuit Court was without jurisdiction to enter the contempt and sanction orders because the subpoena duces tecum was served upon Progressive through the West Virginia Secretary of State, rather than by personal service as contemplated under West Virginia Rule of Civil Procedure 45(b)(1) and Rule 4(d)(1)(A). The response filed by Judith A. Swoger asserts that service of the subpoena was proper and that the contempt and sanction orders were warranted because of Progressive's failure to timely challenge the subpoena or respond to the admonitions of the Circuit Court concerning compliance with the subpoena's provisions.
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This Court has before it the petition for a writ of prohibition, the response, all exhibits and the argument of counsel. As discussed below, Progressive is correct in indicating that Rules 45(b)(1) and Rule 4(d)(1)(A) provide a valid route, through personal service, by which Progressive could have been served with the subpoena duces tecum. This Court is of the opinion, however, that a subpoena or a subpoena duces tecum for a Rule 30(b)(7) deposition may, in addition, be served upon a corporation, such as Progressive, through the corporation's agent or attorney-in-fact authorized by appointment or by statute to receive or accept service in the corporation's behalf.

This Court concludes that Progressive was properly served with the subpoena duces tecum in the underlying action. Moreover, this Court concludes that the contempt and sanction orders imposed upon Progressive were within the Circuit Court's discretion and that the Circuit Court did not exceed its jurisdiction in that regard. Progressive Classic Insurance Company is, therefore, not entitled to relief, and its petition to prohibit the enforcement of the February 11, 2009, order is denied.

I.
Procedural Background


On July 16, 2006, the automobile driven by Swoger was allegedly rear-ended at a stoplight by the automobile driven by McKinney. Swoger filed a personal injury action in
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the Circuit Court of Harrison County seeking compensatory and punitive damages. The action was styled Judith A. Swoger v. Dina J. McKinney, civil action no. 08-C-330-2. McKinney's automobile liability insurance carrier is Progressive Classic Insurance Company, a foreign corporation doing business in West Virginia.

Thereafter, a subpoena duces tecum, emanating from Swoger's counsel, was issued pursuant to W.Va. R. Civ. P. 30(b)(7) requiring Progressive to designate a witness, or witnesses, to testify and produce documents at a deposition scheduled for September 4, 2008. The deposition was to take place at the law office of Swoger's counsel in the City of Clarksburg, Harrison County. As Rule 30(b)(7) states:

A party may in a notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.

The subpoena duces tecum sought factual information from Progressive's investigation of the accident. Specifically, the subpoena requested: (1) photographs, film, videotape, diagrams, maps or drawings of the scene, (2) witness statements concerning the

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accident, (3) medical information and (4) a certified copy of the policy issued by Progressive to McKinney.

On August 21, 2008, the West Virginia Secretary of State accepted service of the subpoena duces tecum as Progressive's statutory attorney-in-fact and transmitted the subpoena by certified mail to Progressive's registered agent, C. T. Corporation System.1 C. T. Corporation System is located in Charleston, West Virginia, and the return receipt for the subpoena was signed by an employee of C. T. Corporation System on August 25, 2008. In addition, by letter dated August 21, 2008, counsel for Swoger sent a copy of the subpoena duces tecum to Progressive's claims representative, Michael W. Eaton, also located in Charleston.

Chapter 33 of the West Virginia Code is entitled Insurance, and W.Va. Code, 33-412 (2001), provides in part: "The Secretary of State shall be, and is hereby constituted, the attorney-in-fact of every licensed insurer, domestic, foreign or alien, transacting insurance in this State, upon whom all legal process in any action, suit or proceeding against it shall be served and he or she may accept service of the process." Moreover, Chapter 31D of the Code, known as the West Virginia Business Corporation Act, includes two provisions concerning service through the Secretary of State upon a corporation: W.Va. Code, 31D-5-504 (2008), concerning corporations generally, and W.Va. Code, 31D-15-1510 (2008), concerning foreign corporations. Both statutes state that a corporation's registered agent "is the corporation's agent for service of process, notice or demand required or permitted by law to be served" on the corporation. Moreover, both statutes provide that the West Virginia Secretary of State is constituted or appointed the attorney-in-fact for the corporation and that the Secretary of State has the authority to accept service upon the corporation's behalf.
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It is undisputed that Progressive had actual notice of the subpoena duces tecum. Progressive, however, did not object or otherwise respond to the subpoena. Nor did it appear at the September 4, 2008, deposition. See, W.Va. R. Civ. P. 45 authorizing objections with regard to subpoenas.

II.
The Contempt and Sanction Orders


On September 10, 2008, Swoger moved for a finding of contempt against Progressive for failing to respond to the subpoena duces tecum and for failing to appear at the scheduled deposition. The following day, the Circuit Court entered an order directing Progressive to file a response to the motion by September 18, 2008. No response was filed; nor did Progressive appear at the subsequent hearing upon Swoger's motion.

By order entered on October 1, 2008, the Circuit Court: (1) found Progressive in contempt, (2) awarded Swoger costs and attorney fees in the amount of $1,062.50 and (3) directed Progressive to appear at the law office of Swoger's counsel on October 29, 2008, for the Rule 30(b)(7) deposition, as rescheduled, and to produce the requested documents. In so ruling, the Circuit Court determined that Progressive was properly served with the subpoena duces tecum but failed to respond or object thereto and, further, that Progressive failed to respond or appear with regard to the contempt motion filed by Swoger.
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Soon after, James A. Dodrill, Corporate Claims Counsel for Progressive, sent a letter to Swoger's counsel asserting that, inasmuch as Progressive did not authorize the Secretary of State to accept service of the subpoena duces tecum, the Circuit Court was without jurisdiction to enter the October 1, 2008, order. Moreover, the letter inquired whether there was any case law in West Virginia to the effect that the Secretary of State could accept service in that regard. In a follow-up letter to Swoger's counsel, Dodrill stated that Progressive would not appear at the rescheduled deposition and that, in reaching its position, Progressive "consulted with outside counsel."

Progressive did not appear at the October 29, 2008, rescheduled deposition or produce the requested documents. As a result, Swoger filed a motion in the Circuit Court for contempt sanctions. Progressive did not file a response or attend the hearing on the motion for contempt sanctions conducted by the Circuit Court.

On November 21, 2008, the Circuit Court entered an order imposing a civil penalty for contempt against Progressive in the amount of $5,000. In addition, the Circuit Court imposed a civil penalty for contempt against Progressive in the amount of $750 per day, terminating upon compliance with the subpoena duces tecum. In imposing the penalties, the Circuit Court cited W.Va. R. Civ. P. 45(f) (failure without adequate excuse to obey a subpoena may be deemed contempt) and State Farm Mutual Automobile Insurance Company v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992) (a monetary per diem penalty, set
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prospectively, is permissible as a means of ensuring compliance with an underlying discovery order). The Circuit Court found that Progressive had engaged in deliberate and contumacious disregard of the subpoena and of the proceedings before the Court.2

The November 21, 2008, order directed counsel for Swoger to submit an affidavit for additional costs and attorney fees. The affidavit was received, and on December 8, 2008, the Circuit Court awarded Swoger additional costs and attorney fees in the amount of $562.50.

Thereafter, Progressive filed a motion to set aside the contempt and sanction orders. A hearing on the motion was conducted by the Circuit Court with counsel for Progressive, Swoger and McKinney in attendance. On February 11, 2009, the Circuit Court entered an order denying the motion to set aside, and Progressive was instructed to comply with the subpoena duces tecum as well as the Circuit Court's previous orders. Concluding that service of the subpoena duces tecum through the Secretary of State was proper, the order stated that Progressive failed to offer any good faith justification for its failure to challenge the subpoena, or the orders, by filing timely protective motions.

It should be noted that, as it did in the October 1, 2008, order, the Circuit Court found that Progressive was properly served with the subpoena duces tecum. The November 21, 2008, order states: "[T]he Court finds that Progressive Classic Insurance Company was properly served with legal process requiring Progressive to designate a corporate representative pursuant to Rule 30(b)(7) to attend a deposition and produce documents[.]" The same conclusion was set forth by the Circuit Court in the subsequent order entered on February 11, 2009.
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Progressive asks for relief in prohibition from the enforcement of the February 11, 2009, order. On April 30, 2009, this Court issued a rule to show cause why relief should not be awarded.

III.
Standards of Review


This Court has original jurisdiction in prohibition proceedings pursuant to Art. VIII,

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