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WELLINGTON POWER CORP. v. CNA SUR. CORP.

Nos. 31869, 31870.

614 S.E.2d 680 (2005)

217 W.Va. 33

WELLINGTON POWER CORPORATION, a Pennsylvania Corporation, Plaintiff v. CNA SURETY CORPORATION, dba CNA Commercial Insurance, a Delaware Corporation, Defendant and W.G. Tomko, Incorporated, a Pennsylvania Corporation, Plaintiff v. CNA Surety Corporation, dba CNA Commercial Insurance, a Delaware Corporation, Defendant.

Supreme Court of Appeals of West Virginia.

Decided May 16, 2005.

Attorney(s) appearing for the Case

James Bryan Edwards, Cranston & Edwards, Morgantown, and Roy S. Cohen, John A. Greenhall, Cohen, Seglias, Pallas, Greenhall & Furman, Philadelphia, PA, for Wellington and Tomko.

Billy Atkins, Atkins & Oblak, P.L.L.C., Morgantown, and Kevin P. Lucas, James R. Walker, Manion, McDonough & Lucas, P.C., Pittsburgh, PA, for CNA.

MAYNARD, Justice:

This Court is called upon to answer the following certified question from the Circuit Court of Monongalia County:

In a public building project in West Virginia, does a "pay if paid" condition precedent clause violate West Virginia public policy, as articulated in the West Virginia Public Bond Statute (W.Va.Code § 38-2-39), so as to entitle a subcontractor to proceed with a claim against a contractor's surety bond, despite the terms...

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