Full Opinion

USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 1 of 26 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 25-1765 MAURA ANNE KREITZER, Plaintiff - Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, a Liberty Mutual Company; LIBERTY MUTUAL INSURANCE COMPANY; MARISA CULBERTSON, Defendants - Appellees. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:22-cv-00312-JPB-JPM) Argued: September 15, 2026 Decided: November 13, 2026 Before QUATTLEBAUM, RUSHING, and BENJAMIN, Circuit Judges. Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Rushing and Judge Benjamin joined. ARGUED: George Nico Sidiropolis, I, INJURY RIGHTS LAW FIRM, Wheeling, West Virginia, for Appellant. Elise N. McQuain, FBT GIBBONS LLP, Charleston, West Virginia, for Appellees. ON BRIEF: Jordan M. Laird, LAIRD LAW, PLLC, Wheeling, West Virginia, for Appellant. William M. Harter, FBT GIBBONS LLP, Columbus, Ohio, for Appellees. USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 2 of 26 QUATTLEBAUM, Circuit Judge: This appeal arises from an insurance claim following a car wreck. Having settled with the driver who rear-ended her, a policyholder demanded the full amount of her underinsured motorist policy from her own insurance company. But her carrier thought the demand was too high, so it countered with a lower offer and invited further negotiations. The policyholder sued instead, claiming breach of the insurance contract, attorney’s fees and unfair trade practices. After discovery, the district court granted summary judgment to the insurance company on each of those claims, and the policyholder contests that order on appeal. We affirm. There is no genuine dispute of material fact that the parties already settled the breach-of-contract claim. And while West Virginia awards attorney’s fees when a carrier’s stonewalling forces a policyholder to sue for their benefits, that principle does not apply here, where the policyholder sued without negotiating and only later developed evidence that prompted a higher payout. Finally, the policyholder presented no evidence of unfair conduct by the insurance company, much less the required pattern of wrongdoing. I. Maura Kreitzer was rear-ended in March 2018. Claiming to have suffered a concussion, neck pain, cognitive deficits, psychological issues and temporomandibular joint dysfunction (“TMJ”) from the collision, she sued the other driver. And in September 2022, the other driver’s insurance company, which provided up to $50,000 of coverage, offered to settle for $45,000. 2 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 3 of 26 Kreitzer thought her damages exceeded that amount. And fortunately for her, she was insured by Safeco Insurance Company up to $25,000 for underinsured motorists’ coverage (“UIM”)—coverage that kicks in when another person’s insurance is not enough to fully compensate you. So, in late 2022, Kreitzer sent Safeco her medical records and asked it to consent to the settlement with the other driver and pay the full amount of her underinsurance policy. A month later, Safeco consented to Kreitzer’s other settlement, evaluated her UIM claim and made an offer of $4,000. In Safeco’s view, Kreitzer only had $31,226 in qualifying medical expenses. Though she had submitted bills totaling $37,785, Safeco rejected the costs of her TMJ treatment, which didn’t begin until over two years after the accident. To Safeco, the crash didn’t cause the TMJ, so the treatment for it was unrelated to the crash. 1 Even so, factoring in the money she was getting from the other driver’s insurance company, Safeco’s offer put Kreitzer’s total recovery at $49,000—more than her documented medical expenses. Beyond that, Safeco’s review of the records revealed what it believed was “an individual who was largely healed from her alleged injuries and who was no longer receiving treatment for any of her injuries.” Resp. Br. at 6 (citing J.A. 210–13). Kreitzer had been discharged from physical therapy in September 2019 after failing to show up to her last appointment. And other than her TMJ treatment, it had been nearly three years since she received any accident-related care. 1 In fact, Kreitzer testified that she likely had TMJ pre-accident but never had it treated. 3 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 4 of 26 Kreitzer’s medical records included a report from Dr. Alicia Trbovich, the physician who treated her for the concussion. That report supported Safeco’s assessment. Trbovich reported that Kreitzer denied any ongoing physical or emotional symptoms. Her mood was better. She was “[w]orking full time without restriction.” J.A. 217. Her “[c]ognitive symptoms ha[d] resolved [for] the most part.” Id. And though she “still ha[d] some mild vestibular sensitivities and cognitive fatigue by the end of the day,” Dr. Trbovich “[a]nticipate[d] she will continue to improve and reach full recovery with ongoing therapy and progressive return to day to day activities.” J.A. 218–19. What’s more, Trbovich reached those conclusions not even eight months after the accident. By the time Safeco evaluated the claim nearly three years later, Kreitzer was far removed from accident-related care. Safeco explained the basis for its valuation to Kreitzer. But when Safeco offered $4,000 and invited further negotiations, Kreitzer rejected the offer and advised she would be filing a lawsuit. Even then, Safeco’s adjuster told Kreitzer’s counsel, “If you have a counter demand/response to our offer, please let me know. I would be more than willing to discuss the case further with you.” J.A. 224. But Kreitzer engaged no further. Instead, she filed suit just two weeks later—less than two months after first contacting Safeco. She sued Safeco and Marisa Culbertson, Safeco’s claims resolution specialist. 2 Kreitzer alleged breach of contract, Hayseeds damages (a common law claim against 2 Kreitzer originally sued in West Virginia state court, but Safeco removed the case to federal court. Kreitzer also named Liberty Mutual, Safeco’s parent company, as a defendant in the suit and asserted the same claims against it. The district court dismissed 4 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 5 of 26 insurers for attorney’s fees and costs), common law bad faith and violations of the West Virginia Unfair Trade Practices Act (“WVUTPA”). Through discovery, Safeco obtained more information that it believed confirmed its initial estimate. First was a report from Dr. Paul Nussbaum, the physician who evaluated Kreitzer in the underlying tort suit. He concluded that Kreitzer “did not hit her head” during the accident and, at most, suffered a “mild” concussion. J.A. 263. Though Nussbaum reported symptoms of depression and anxiety, and that Kreitzer would benefit from psychotherapy, he made clear “this [recommended] treatment is not related to the [accident] but rather to a near lifelong struggle with mood disorder.” Id. Bottom line, he concluded, “Kreitzer has recovered from any neuropsychological deficits or limitations,” as the accident was years ago. Id. Safeco also obtained Kreitzer’s deposition from the underlying tort suit which further confirmed its conclusions. In that testimony, given three years after the accident and a year before she filed her UIM claim, Kreitzer said she still experienced dizziness and anxiety. But when asked if she “still treat[ed] with any doctor specifically for the concussion related to the symptoms,” she said, “No.” J.A. 309. And when asked if the accident still “made it difficult to recall clear events and articulate events that ha[d] happened,” Kreitzer said, “I don’t think so.” J.A. 326. She acknowledged it may take her “more time, but [she] recall[s] everything very clearly.” Id. Kreitzer’s claims against Liberty Mutual because they were never in a contractual relationship. Kreitzer does not challenge that ruling on appeal. 5 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 6 of 26 None of that evidence prompted Safeco to revisit its initial offer. But things changed in September 2024. Over six years after the accident and two years after her UIM claim, Kreitzer produced a new report from Dr. Timothy Saar. He was not one of Kreitzer’s treating doctors. Instead, Kreitzer hired him as an expert to review her medical records and conduct his own neuropsychological exam. And his conclusions were far different from anything Safeco had seen before, describing “various declines in the areas of complex attention, immediate/recent memory, and perceptual motor functioning,” all attributable to the accident. J.A. 354. Dr. Saar’s treatment recommendations also differed from the earlier records. Kreitzer had not sought individual counseling after the accident. And she had previously testified that none of her “doctors referred [her] to any kind of treatments or therapies” other than the ones she had already described. J.A. 274. Yet Dr. Saar recommended seven years of counseling. Kreitzer had also testified that her marriage was generally strong and that she and her husband had not sought couple’s therapy. Yet Dr. Saar recommended six months of family counseling. He also recommended consultation with a neuro-optometric rehabilitation therapy provider. Just six weeks later, Kreitzer produced another report. This one was from Dr. Richard Bowman, another hired expert. Based on his review of the records and Dr. Saar’s conclusions, he estimated that Kreitzer’s care plan totaled roughly $700,000. Two days after receiving Dr. Bowman’s report, Safeco offered to settle Kreitzer’s claim for $25,000—the full amount of her underinsurance policy. Safeco followed up 6 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 7 of 26 several times to confirm payment details but got no reply. Kreitzer’s counsel finally reached out a few weeks later to discuss some potential scheduling issues. Right after, Safeco drafted a joint motion to amend the scheduling order, which stated, “The Parties have resolved Plaintiff’s claim for policy proceeds, leaving Plaintiff’s claims for extracontractual damages and bad faith.” J.A. 80. Safeco sent the draft to Kreitzer’s counsel, to which he replied, “Looks perfect! Please file at your convenience.” J.A. 1425–26. The parties then jointly submitted the motion, which Kreitzer’s counsel signed at the bottom. The parties continued with discovery and later cross-moved for summary judgment. That’s when Kreitzer first claimed that—despite her earlier settlement representations— her underinsurance policy should be reformed to increase its policy limits from $25,000 to $100,000. Before discussing the facts related to this claim, a brief review of West Virginia law will be helpful. To start, there’s standard liability insurance. That’s the coverage you buy to compensate the other driver when you are the one at fault. And there’s UIM coverage, which protects you when the other driver caused the accident but their insurance cannot cover your total damages. In West Virginia, an insurer is required to offer UIM coverage not less than the amount of liability insurance. Riffle v. State Farm Mut. Auto. Ins. Co., 410 S.E.2d 413, 414 (W. Va. 1991) (citing W. Va. Code § 33-6-31). Insurers bear the burden of proving an effective offer and a knowing and informed rejection; absent that proof, the UIM policy is reformed by operation of law to provide an amount equal to liability coverage. Id. So for example, if you buy a liability insurance policy for $100,000, your 7 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 8 of 26 insurance company needs to offer you at least that amount in UIM coverage. If the company fails to make that offer, or if it made that offer but cannot show that you consciously rejected it, your UIM coverage will automatically be reformed to $100,000—even if the UIM policy you originally bought was worth less. Kreitzer said she’s entitled to precisely that sort of reformation. Her policy with Safeco provided up to $100,000 for liability insurance and $25,000 for UIM coverage. Safeco had offered Kreitzer UIM coverage of $100,000—the amount of her liability limits, as required by statute. Kreitzer had signed the offer form without selecting a higher optional limit; however, she left blank the box expressly rejecting that coverage. This form was in her possession all along—including when she represented to the court that her claim for policy proceeds was settled. But after a discussion with Safeco’s representative about her form, Kreitzer argued that she had a right to statutory reformation. So, at summary judgment, despite the settlement, Kreitzer persisted with her breach of contract claim, seeking $100,000, which she contended reflected the reformed policy limits. Safeco responded that the contractual claim had already been resolved for $25,000. Everyone agrees Safeco offered that amount after Kreitzer disclosed the Saar and Bowman reports. And by informing the court of the settlement in the joint motion to amend the scheduling order, Kreitzer made it clear that she had accepted the settlement. Safeco indicated that the district court relied on that representation in granting the motion. And even though Kreitzer’s counsel had ignored several requests for information to issue the check, Safeco stood ready to pay. All told, Safeco argued, “[t]he actual undisputed facts 8 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 9 of 26 establish that judgment should be entered on Plaintiff’s UIM claim in the amount of $25,000.” J.A. 1353. Kreitzer characterized Safeco’s use of her settlement representations as an improper application of judicial estoppel. That doctrine outright bars a party from contradicting an earlier statement only where they intentionally misled the court to gain an unfair advantage, and Safeco had not made that showing. Safeco replied that it was not arguing judicial estoppel. Instead, the evidence simply refuted the notion that “there is a question of fact” whether the contractual claim was settled. J.A. 1411. “[A]s a matter of law,” Safeco argued, the “claim for policy proceeds . . . has been resolved.” Id. After a hearing, the district court granted summary judgment for Safeco, denied it to Kreitzer and entered judgment for Kreitzer in the amount of $25,000 on the contract claim due to the settlement. The court pointed to undisputed record evidence that showed Safeco had offered $25,000 to settle, which the parties accepted and then memorialized in the joint motion submitted to the court. The court added that it relied on that representation in deciding to amend the schedule. And the joint motion was “clear: the claim for policy proceeds is resolved.” J.A. 1498. Thus, Kreitzer’s reformation argument was “unavailing” and she “ha[d] no claim for UIM proceeds beyond the $25,000 to which the parties agreed.” Id. The district court rejected Kreitzer’s remaining claims. Hayseeds damages require a plaintiff to have “substantially prevailed” in the underlying claim, meaning an insurer’s actions forced a policyholder to sue for benefits she was reasonably due. Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73, 80 (W. Va. 1986). But “[c]onsidering the 9 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 10 of 26 negotiations as a whole,” the court explained, Safeco had acted reasonably throughout the process. J.A. 1509. And it was unreasonable to require an insurer to “foresee” last-minute expert findings. J.A. 1507–08. Kreitzer’s arguments for common law bad faith and unfair trade practices failed for similar reasons—Safeco’s negotiating position was reasonable, its investigation into the claims was adequate and it was “under no obligation to foresee reports of experts which did not exist.” J.A. 1510–15. Kreitzer now appeals the district court’s grant of summary judgment to Safeco on breach of contract, Hayseeds damages and claims under WVUTPA. 3 II. A. First, breach of contract. The district court found no genuine dispute of material fact on this claim based on the undisputed evidence that the parties had settled it. We agree. Kreitzer demanded $25,000 from the start. And after she submitted additional materials suggesting greater damages, Safeco met that demand. We know Kreitzer accepted the offer because the parties memorialized the settlement just weeks later in a joint motion to amend the scheduling order. That motion stated that “[t]he Parties have resolved Plaintiff’s claim for policy proceeds, leaving Plaintiff’s claims for We review cross-motions for summary judgment de novo. See Spriggs v. Diamond 3 Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001). Summary judgment is appropriate only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 10 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 11 of 26 extracontractual damages and bad faith.” J.A. 80. It further acknowledged “the Parties’ success at resolving Plaintiff’s underlying policy claim.” Id. When Safeco sent that draft language to Kreitzer’s counsel, he replied, “Looks perfect! Please file at your convenience.” J.A. 1425–26. The parties then submitted the motion, which Kreitzer’s counsel signed at the bottom. So in all, there was a $25,000 demand, a $25,000 offer and a near-immediate representation by both parties that the claim was resolved. On that record, no reasonable factfinder could conclude anything other than that the parties settled Kreitzer’s claim for $25,000. See Moore v. Beaufort Cnty., 936 F.2d 159, 162 (4th Cir. 1991) (“In deciding whether a settlement agreement has been reached, the Court looks to the objectively manifested intentions of the parties.”). 4 Kreitzer did not assert, much less develop, her reformation theory until after this settlement. Still, she makes two arguments to try to put reformation back on the table. Both fail. 4 “[W]hether a complete settlement agreement was reached . . . ‘implicate[s] federal procedural interests’ in settling rather than litigating suits, making it ‘distinct from the underlying substantive interests of the parties.’” Smith-Phifer v. City of Charlotte, 118 F.4th 598, 610 n.10 (4th Cir. 2024) (quoting Gamewell Mfg. v. HVAC Supply, 715 F.2d 112, 115 (4th Cir. 1983)). “So our cases apply federal common law derived from general contract principles in our discussion of agreement formation.” Id. (citing Gamewell, 715 F.2d at 116). The result would be the same under West Virginia law anyway. See Donahue v. Mammoth Restoration & Cleaning, 874 S.E.2d 1, 7–8 (W. Va. 2022) (record evidence can establish objective manifestation to settle an insurance claim); Painter v. Peavy, 451 S.E.2d 755, 759–61 (W. Va. 1994) (affirming summary judgment where the objective record established settlement of an insurance claim). 11 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 12 of 26 She first contends that the record does not establish that she separately agreed to settle her reformation claim. While she concedes that the parties resolved the UIM claim for $25,000, she argues that the issue of policy reformation was among the “extra- contractual” claims the settlement left open. Op. Br. at 16–17 (contending that the joint motion should “be read to reflect that liability for the undisputed sum of contractual UIM benefits had been resolved, while the extra-contractual limits of those benefits . . . remained in dispute”). That is wrong on several levels. For starters, the parties didn’t leave open any “extra- contractual” claim—they left open claims for “extracontractual damages.” J.A. 80. And claims of reformation necessarily concern the terms of the insurance contract, not damages outside of it. Ohio Farmers Ins. Co. v. Video Bank, Inc., 488 S.E.2d 39, 43 (W. Va. 1997) (asking “the court [to] reform an insurance policy” is asking “it [to] set forth correctly the contract[ual]” terms of that policy (citation modified)). When an insured seeks to “reform[]” their policy “to include [additional] UIM coverage,” they are ultimately claiming entitlement to more “benefits” under the “insurance contract”—not extracontractual damages. See Thomas v. McDermitt, 751 S.E.2d 264, 267 (W. Va. 2013). Calling reformation “extracontractual” cannot be squared with the nature of Kreitzer’s claims either. When the parties jointly represented that they “resolved Plaintiff’s claim for policy proceeds, leaving Plaintiff’s claims for extracontractual damages and bad faith,” J.A. 80, each phrase had a natural referent in the case. The “claim for policy proceeds” was Kreitzer’s breach-of-contract claim seeking UIM benefits—the type West Virginia calls the “underlying contractual claim.” McCormick v. Allstate Ins. Co., 475 12 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 13 of 26 S.E.2d 507, 514 (W. Va. 1996). The “extracontractual damages” were the Hayseeds damages, awarded only after prevailing on the underlying contractual claim and therefore labeled “extra-contractual” by courts. Raines v. Westfield Ins. Co., No. CV 3:21-0637, 2023 WL 5490161, at *3 (S.D.W. Va. Aug. 24, 2023). And “bad faith” obviously referred to Kreitzer’s common-law bad-faith claim, as well as her WVUTPA claim, which courts have referred to as a “bad faith settlement practice[]” that is “wholly distinct” from the underlying contractual action. McCormick, 475 S.E.2d at 519. The only logical place for claims of reformation was in the “claim for policy proceeds”—the one the parties settled. J.A. 80. At bottom, Kreitzer’s position undermines itself. On the one hand, she insists that she is entitled to $25,000 based on the parties’ representation that they settled the policy claim. But on the other, the very reason she now seeks reformation is to recover more on the underlying policy claim, which requires disregarding that same settlement. Kreitzer cannot have it both ways. She cannot keep the part of the settlement she likes—the $25,000 payment—while discarding the part she now regrets—that the payment resolved her claim. Unable to create a factual dispute over the settlement itself, Kreitzer falls back on her second argument—that the district court really relied on judicial estoppel to grant summary judgment but erred in doing so. When a party takes a position that intentionally misleads the court and gains an unfair advantage as a result, judicial estoppel formally bars them from contradicting that statement. Martineau v. Wier, 934 F.3d 385, 393 (4th Cir. 2019). Kreitzer says the district court used her representations in the joint motion to 13 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 14 of 26 judicially estop her from denying the settlement. But since it failed to tick through the required elements, she explains, remand is required. We disagree. A party’s prior representations can be used as evidence on summary judgment without invoking judicial estoppel. Even when an earlier statement does not conclusively settle the issue, the court can still consider it as evidence of what happened. And when the other side has no evidence pointing the opposite way, summary judgment is proper. See Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201, 1212 & n.3 (10th Cir. 2017) (even when representations do not warrant judicial estoppel, they can still “constitute undisputed substantive evidence” of a fact); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 & n.3 (9th Cir. 1996) (“Because we find no genuine issue of material fact in this case, we find it unnecessary to rely on the doctrine of judicial estoppel.”); White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983) (Even when admissions can “no longer be considered conclusive, they do still operate as adverse evidentiary admissions properly before the district court in its resolution of the factual issue.”). That’s exactly how Safeco treated the joint motion below. It pointed to those settlement representations along with other evidence to argue that “[t]he actual undisputed facts establish[ed] that judgment should be entered on Plaintiff’s UIM claim in the amount of $25,000.” J.A. 1353. That is a textbook summary judgment argument. The district court did the same. It cited several pieces of record evidence demonstrating a settlement, most notably the joint motion, which made “clear [that] the claim for policy proceeds is resolved.” See J.A. 1498–99. But its holding wasn’t that Kreitzer was precluded from arguing reformation; the undisputed evidence just made that 14 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 15 of 26 argument “unavailing.” J.A. 1499. That’s a standard application of summary judgment, not judicial estoppel. In fact, the only party that has brought up “judicial estoppel” is Kreitzer. J.A. 1380– 81; J.A. 1474–75. And when she first characterized Safeco’s argument as such, it expressly disclaimed using that doctrine, calling it an attempt to “muddy th[e] issue” and a “proverbial ‘red herring[].’” J.A. 1410. 5 Still, on appeal, Kreitzer tries to impute this uninvoked rationale upon the district court. Her evidence? The court’s passing statement that it also “relied” on Kreitzer’s settlement representations in granting the motion to amend the schedule. J.A. 1499. But one passing line cannot undo what the rest of the record makes clear. And it’s Kreitzer’s own argument that undoes her claim. She insists that the court failed to consider the factors for judicial estoppel. That’s true. But not because it omitted them in ruling on that principle. The court did not mention judicial estoppel or its factors because it was not applying that theory in the first place. 5 On appeal, Safeco defends the district court’s decision as a correct summary judgment ruling. See, e.g., Resp. Br. at 32 (“The undisputed facts established that the Parties resolved Ms. Kreitzer’s UIM claim in the amount of $25,000 and that settlement should continue to be upheld.”). But at times, it also seems to engage with the merits of Kreitzer’s judicial estoppel arguments. See Resp. Br. at 35–40. That, however, changes nothing. A party’s reliance on a doctrine as an alternative basis for affirmance does not establish that the district court itself relied on that doctrine. See Guinness PLC v. Ward, 955 F.2d 875, 899–900 & n.21 (4th Cir. 1992) (explaining that, although Guinness had raised judicial estoppel below, “[t]he trial court . . . did not rely upon such ground,” and Guinness’s renewed reliance on judicial estoppel on appeal is “an alternative ground for affirmance”). 15 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 16 of 26 The undisputed facts show Kreitzer’s claim for policy proceeds was resolved for $25,000. So, we affirm the district court’s ruling on this claim. B. Although the settlement resolves her contractual claim, Kreitzer also uses it as a springboard for additional damages. That brings us to Hayseeds. In West Virginia, when you buy insurance, you buy just that, “insurance—not a lot of vexatious, time-consuming, expensive litigation with [your] insurer.” Hayseeds, 352 S.E.2d at 79. So, when an insured has to resort to the legal system to get their benefits and “substantially prevails” on that claim, the insurer can additionally be liable for attorney’s fees, economic loss caused by delay and damages for aggravation and inconvenience. Id. at 80. These are Hayseeds damages. And Kreitzer says she’s entitled to them because she “substantially prevailed” by obtaining the $25,000 settlement. But first, what does it mean to have “substantially prevailed” on a policy claim? At a high level, this inquiry looks at whether a policyholder had to sue to get what they were reasonably owed after a stonewalling insurance company forced litigation. See Miller v. Fluharty, 500 S.E.2d 310, 324 (W. Va. 1997). Settling for the amount the plaintiff originally sought can support such a finding. See Jordan v. Nat’l Grange Mut. Ins. Co., 393 S.E.2d 647, 652 (W. Va. 1990). But a “purely mathematical” comparison between the pre-suit demand and the ultimate recovery is not dispositive. Hadorn v. Shea, 456 S.E.2d 194, 198 (W. Va. 1995); Ramaco Res., LLC v. Fed. Ins. Co., 74 F.4th 255, 264 (4th Cir. 16 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 17 of 26 2023). Rather, “substantially prevailing” means the insurer’s actions made an attorney’s services “necessary to obtain [the] payment.” Jordan, 393 S.E.2d at 652 (emphasis added). That requires “look[ing] at the negotiations as a whole from the time of the insured event to the [settlement] of the insurance proceeds.” Miller, 500 S.E.2d at 321. And while the central question is whether an insurer made litigation necessary—not simply whether its actions were reasonable—the reasonableness of the insurer’s investigation, offers and negotiating position are all highly “relevant to [that] determination.” Slider v. State Farm Mut. Auto. Ins. Co., 557 S.E.2d 883, 889 (W. Va. 2001); see Miller, 500 S.E.2d at 321, 324; Hadorn, 456 S.E.2d at 198–99 & n.2; Jordan, 393 S.E.2d at 652 & n.5. In that sense, an insured does not “substantially prevail” merely because counsel’s involvement preceded—or even helped produce—a better result; the insured must show that the company’s handling of the claim made counsel necessary to secure the benefit ultimately paid. See Jordan, 393 S.E.2d at 652. That limits Hayseeds damages to only those situations “when an insured must sue [their] insurer to compel it to honor its contractual obligations.” Hadorn, 456 S.E.2d at 199. This is not one of those situations. Not even close. True, Kreitzer ultimately settled for the amount she originally demanded. But nothing shows that Safeco made going to court necessary to get there. Start from the beginning. When Kreitzer filed her UIM claim and demanded the full policy proceeds, Safeco “ha[d] a duty to conduct a prompt investigation” of that claim and “either meet that demand, or promptly respond to [Kreitzer] with a statement why such a demand is not supported by the available information.” Miller, 500 S.E.2d at 319, 321. 17 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 18 of 26 Safeco did just that. Within a month, it reviewed Kreitzer’s medical records, investigated the claim and made a $4,000 offer. And based on the available information, that was a reasonable valuation. Kreitzer had long since stopped treatment, her physician expected a full recovery, and she had already received compensation well above her documented medical expenses. Safeco then explained the basis for its offer and opened the floor to further negotiations. That put the ball in Kreitzer’s court. Once Safeco carried “its burden of making a reasonable offer based upon . . . the available information,” it was up to her to “justify . . . her initial demand, or change the demand to conform to available information.” Miller, 500 S.E.2d at 324. She did neither. Her counsel rejected Safeco’s offer and simultaneously advised he would be bringing a lawsuit. Even then, Safeco tried to resolve things without litigation, asking for any “counter demand/response to [the] offer” and reiterating its “willing[ness] to discuss the case further.” J.A. 224. Kreitzer’s only response was to sue, asserting claims for breach of contract, enhanced damages and bad faith. For most of the case, nothing that followed undermined Safeco’s assessment. If anything, Dr. Nussbaum’s report confirmed its conclusions. Where another physician was also saying, “Kreitzer has recovered from any neuropsychological deficits or limitations,” J.A. 263, it was reasonable that Safeco would stand by its initial offer. Only later did the evidence change, much later. Two years into the suit—and six years after the accident—Kreitzer divulged new reports suggesting her injuries required far more treatment than anyone had recognized before, valuing her potential medical costs at 18 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 19 of 26 a significantly higher amount. With this newly acquired information, Safeco promptly re- evaluated the claim and tendered an offer for the full policy limits. Kreitzer now points to that sequence—a demand, a sublimit offer, an immediate lawsuit, later expert reports and then a full-limits settlement—as the basis for enhanced damages. That is not how Hayseeds works. Hayseeds gives insureds a remedy when a better- resourced insurer forces them into costly litigation just to obtain benefits. But it does not allow a policyholder to manufacture the necessity for litigation by cutting short an otherwise reasonable adjustment process and suing. “It takes two to negotiate.” Hadorn, 456 S.E.2d at 198. Yet, “[w]hen [Safeco] appeared ready to engage in negotiations,” “[Kreitzer] almost immediately filed suit, rather than engaging substantively.” Raines, 2023 WL 5490161, at *6 (denying Hayseeds damages). By ending negotiations without further explanation, Kreitzer cannot “show that ‘but for’ an attorney’s services, . . . she would not have been able to get the insurance carrier to settle before trial.” Miller, 500 S.E.2d at 324. She never gave the adjustment process a meaningful chance to answer that question. We recently followed this principle in Bristol Springs Custom Homes, LLC v. Argo Grp. US, Inc., No. 25-1070, 2026 WL 2137953 (4th Cir. July 24, 2026). There, litigation had admittedly “accelerated [the company’s] willingness to settle for the [original] demand[].” Id. at *3. Still, Hayseeds damages were unavailable because, “critically,” counsel “failed to engage in settlement negotiations” and “declin[ed] to respond to [the 19 USCA4 Appeal: 25-1765 Doc: 61 Filed: 11/13/2026 Pg: 20 of 26 company’s] requests for discussion.” Id. (citing Hadorn, 456 S.E.2d at 198–99). 6 As an unpublished opinion, Bristol Springs does not bind us; still, its reasoning tracks Hadorn and Miller. Nor can