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State ex rel. State Auto Ins. v. Risovich, Judge
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1998 Term No. 25347

STATE OF WEST VIRGINIA EX REL. STATE AUTO INSURANCE COMPANY, Petitioner, V. HONORABLE FRED RISOVICH, II, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, AND MELINDA KENT, INDIVIDUALLY, AND KRISTIN KENT, A MINOR, BY AND THROUGH HER FATHER AND NEXT FRIEND, ROGER KENT, AND ROGER KENT, INDIVIDUALLY, Respondents. PETITION FOR WRIT OF PROHIBITION WRIT GRANTED

Submitted: November 10, 1998 Filed: December 11, 1998 Anthony I. Werner Lea W. Ridenhour Bachmann, Hess, Bachmann & Garden Wheeling, West Virginia Attorneys for the Petitioner Joseph J. John John Law Offices Robert P. Fitzsimmons Fitzsimmons Law Offices Wheeling, West Virginia Attorneys for Respondents, the Kents Jolyon W. McCamic Charleston, West Virginia Counsel for Amicus Curiae, West Virginia Trial Lawyers Association CHIEF JUSTICE DAVIS delivered the Opinion of the Court and was joined by JUSTICES WORKMAN, STARCHER, MAYNARD and MCCUSKEY. JUSTICE MCGRAW did not participate in the decision of this case.

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SYLLABUS BY THE COURT 1. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-11." Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). 2. "'In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.' Syllabus Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979)." Syllabus point 1, State ex rel. U.S. Fidelity & Guar. Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995). 3. "The prohibition standard set out in Syllabus Point 1 of Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), permits an original prohibition proceeding in this Court to correct substantial legal errors where the facts are undisputed and resolution of the errors is critical to the proper disposition of the case, thereby conserving costs to the parties and economizing judicial resources." Syllabus point 1, State ex rel. Allstate Ins. Co. v. Karl, 190 W. Va. 176, 437 S.E.2d 749 (1993). 4. "Insurers may incorporate such terms, conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes." Syllabus point 3, Deel v. Sweeney, 181 W. Va. 460, 383 S.E.2d 92 (1989). 5. Under W. Va. Code

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