Dissenting View: “Required and Approved” in W. Va. Code § 17A-6A-10(1)(i) Means Mandatory, Not Voluntary Incentive-Program Upgrades

1. Introduction

This certified-question proceeding arises from litigation between Ford Motor Company (the manufacturer) and a group of West Virginia franchised dealers and their trade association: West Virginia Automobile and Truck Dealers' Association, Thornhill Auto Group, Inc., Moses Ford, Inc., and Astorg Ford of Parkersburg, Inc. The United States District Court for the Southern District of West Virginia asked the Supreme Court of Appeals of West Virginia to construe provisions of West Virginia Code §§ 17A-6A-1 through -17, which regulate the manufacturer–dealer relationship for new motor vehicles.

The interpretive dispute centers on the phrase “required and approved” in West Virginia Code § 17A-6A-10(1)(i). That subsection restricts a manufacturer from coercing or requiring a dealer to install new signs or other “franchisor image elements” that replace or substantially alter image elements completed within the prior ten years if those prior image elements were “required and approved” by the manufacturer. The dissent (Walker, Justice, joined by Justice Armstead) objects to the majority’s reading that improvements made under a voluntary incentive program can qualify as “required and approved” for purposes of the ten-year protection (the “grandfather” concept the dissent describes).

2. Summary of the Opinion (Dissent)

Justice Walker’s dissent argues that the statutory protection in § 17A-6A-10(1)(i) applies only when the earlier facility/image upgrades were mandatory—i.e., “required”—by the manufacturer, not when the dealer voluntarily chose to renovate under an optional incentive program.

On the facts emphasized by the dissent:

• In 2013, Ford offered the voluntary “Facility Assistance Program,” under which dealers could renovate to “Trustmark 3” standards and receive matching funds up to $750,000.
• In 2020, Ford launched “Phase II of the Lincoln Commitment Program,” also voluntary, with incentives up to 2.75% MSRP per vehicle if a dealer’s facility met exclusive Lincoln branding standards.
• The dealers’ Trustmark 3 (dual-branded) facilities did not meet the new standards, so they received reduced (1% MSRP) incentives through 2022 and none after January 1, 2023.

The dissent contends that because the earlier upgrades were optional, they cannot be deemed “required” under the statute’s plain language; therefore, the majority’s interpretation impermissibly expands the statutory ten-year protection to cover voluntary program upgrades.

3. Analysis

A. Precedents Cited

The dissent is built on a familiar set of West Virginia statutory-interpretation principles, anchored by the following authorities (cited exactly as they appear in the opinion text):

Bullman v. D & R Lumber Co.

The dissent quotes Bullman v. D & R Lumber Co. for the proposition that “[t]he starting point in every case involving construction of a statute is the language itself.” This citation frames the dissent’s methodological commitment: the statutory text controls, and interpretive work begins (and often ends) with the words enacted.

State ex rel. Cohen v. Manchin

The dissent invokes syllabus point language from State ex rel. Cohen v. Manchin that undefined terms “will be given their common, ordinary and accepted meaning.” That principle is used to justify turning to ordinary-language sources (dictionaries) to define “required,” rather than adopting a functional or policy-driven meaning that could treat voluntary programs as “requirements” in practical effect.

Crockett v. Andrews

The dissent relies on syllabus point 2 of Crockett v. Andrews: when statutory language is unambiguous, courts apply its plain meaning “without resort to interpretation.” This authority is pivotal to the dissent’s critique that the majority’s approach becomes “tortured analysis” because it effectively treats clear text as pliable.

Brooke B. v. Ray C.

The dissent cites syllabus point 11 of Brooke B. v. Ray C. for a separation-of-powers restraint: courts must not “read into a statute that which it does not say,” nor add what the Legislature “purposely omitted.” This case is deployed to accuse the majority of judicially expanding the statute—by folding optional programs into a protection the Legislature limited to image elements “required and approved” by the manufacturer.

Carper v. Kanawha Banking & Trust Co.

The dissent cites Carper v. Kanawha Banking & Trust Co. for the meaning of the disjunctive “or”: it ordinarily signals an “alternative or option to select.” The dissent uses this canon to read the statute’s phrase “agreement[s], program[s], incentive provision[s] or otherwise” as enumerating different mechanisms a manufacturer might use to coerce/require changes—not as a textual bridge that converts voluntary participation into “required” upgrades for the grandfather protection.

B. Legal Reasoning

The dissent’s reasoning proceeds in a tight textual sequence:

1. Identify the statutory trigger: § 17A-6A-10(1)(i) protects dealers from being forced to replace/substantially alter image elements installed within the last ten years, but only if those elements were “required and approved” by the manufacturer.
2. Fix the meaning of “required” using ordinary usage: The dissent treats “required” as incompatible with dealer choice. It underscores ordinary definitions: “stipulated as necessary to be done” (Merriam-Webster) and “something that must be done because of a law or rule” (Black’s Law Dictionary).
3. Apply the meaning to the facts: Because the Facility Assistance Program and Lincoln Commitment Program were voluntary, upgrades undertaken to meet those optional standards cannot be called “required,” even if incentives made participation attractive.
4. Reject textual importing from another clause: The dissent distinguishes between (a) the statute’s opening prohibition on coercion or requirement “by agreement, program, incentive provision or otherwise,” and (b) the later grandfather clause that omits “coercion” language and uses the narrower phrase “required and approved.” For the dissent, that omission is meaningful: the Legislature chose not to extend the grandfather protection to all coerced outcomes or all program-linked upgrades—only to those that were actually “required.”
5. Separation-of-powers constraint: Even if the Legislature was concerned about incentive-based pressure, the dissent insists the Court cannot convert that concern into a broader statutory rule than the words supply.

C. Impact

Although a dissent does not set binding precedent, it can shape future statutory interpretation and legislative responses. If the dissent’s approach were adopted in later cases or by statutory amendment, likely effects would include:

• Narrower ten-year protection: Dealers would receive the statute’s “completed within the preceding ten years” protection only for image/facility elements that were truly mandatory under a manufacturer rule or condition of the franchise, not merely encouraged through incentives.
• Sharper line between “incentive” and “requirement”: Manufacturers could structure optional programs with incentives without automatically triggering the statute’s ten-year deemed-compliance effect—unless the program becomes effectively mandatory by contract or other enforceable requirement.
• More litigation over “coercion” vs. “requirement”: The dissent implicitly channels disputes into whether a manufacturer’s conduct is “coercion” (covered by the statute’s opening prohibition) rather than whether voluntary upgrades become “required” for the grandfather protection.
• Legislative clarification pressure: If the policy objective is to protect dealers who make expensive upgrades in response to incentive programs, the dissent’s reading suggests that such protection must be written expressly—because “required and approved” will be read literally.

4. Complex Concepts Simplified

Certified question proceeding

A federal court asks a state’s highest court to answer a specific question of state law that will control or materially affect the federal case.

Franchisor image elements

Branding-related facility components—signs, design standards, and related visual features—imposed or promoted by the manufacturer/franchisor for uniform brand presentation.

“Required and approved”

The dissent reads this as two conditions: the manufacturer must have (1) mandated the image elements and (2) approved them. Voluntary upgrades may be “approved,” but they are not “required.”

Grandfather clause / ten-year protection

A rule that prevents a manufacturer from forcing near-term replacement of recently completed brand elements (here, within ten years), but only for the category of elements the statute covers.

Coerce vs. require

“Require” means you must do it; “coerce” means you are pressured to do it (including potentially through economic leverage). The dissent argues the Legislature used “required” as a narrower trigger for the ten-year protection than “coerce.”

Disjunctive “or”

A drafting signal that listed items are alternatives. The dissent uses this to argue that “agreement, program, incentive provision or otherwise” lists different possible mechanisms of pressure, not a redefinition of “required.”

MSRP incentive (e.g., 2.75% MSRP per vehicle)

A payment tied to a percentage of the manufacturer’s suggested retail price for each vehicle sold; it functions as a sales-linked bonus conditioned on meeting program standards.

5. Conclusion

Justice Walker’s dissent advances a strictly textual rule for West Virginia Code § 17A-6A-10(1)(i): the statute’s ten-year protection for existing facility/image elements applies only when those elements were mandatory (“required”) and approved by the manufacturer, not when dealers voluntarily upgraded under optional incentive programs. Anchored in Bullman v. D & R Lumber Co., Crockett v. Andrews, and Brooke B. v. Ray C., the dissent frames the dispute as one of judicial role and statutory fidelity—warning that expanding “required and approved” to include voluntary program compliance effectively adds words the Legislature did not enact.