Dan Cava v. National Union Fire Insurance ( 2013 )

No. 12-0203 – Dan Cava, et al v. National Union Fire Insurance Co. of Pittsburgh
FILED
December 30, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Benjamin, Chief Justice, concurring: OF WEST VIRGINIA
I concur with the majority’s decision insofar as it affirms the circuit court’s
order granting summary judgment in favor of National Union. However, I write
separately to note two concerns with the majority’s opinion. First, the third-party
complaint filed by the Petitioners in this case did not seek coverage, but rather set forth
two causes of action under the West Virginia Unfair Trade Practices Act (“UTPA”), W.
Va. Code § 33-11-1 to -10, and common law bad faith. Thus, the majority’s discussion
regarding the ability of a party to file a third-party complaint requesting a declaratory
judgment that an insurance policy provides coverage is advisory in nature and the
creation of syllabus point 2 is unnecessary in this case.
Second, I disagree with the majority’s observations regarding the savings
statute, W. Va. Code §55-2-18. Rule 14(a) of the W. Va. Rules of Civil Procedure states,
in pertinent part, that at any time after commencement of an action a defending party, as a
third-party plaintiff, may serve a summons and complaint upon a person that is not a
party to the action who is or may be liable to the third-party plaintiff for all or part of the
plaintiff's “claim” against the third-party plaintiff. (emphasis added). Rule 14(a) also
provides, in part, that the plaintiff may assert any claim against the third-party defendant
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arising out of the transaction or occurrence that is the subject matter of the plaintiff's
claim against the third-party plaintiff. (emphasis added). W. Va. R. Civ. P. 14(a).
As the majority points out, this Court discussed the type of “claim” that
meets the requirements of Rule 14(a) in Magnet Bank, FSB v. Barnette, 187 W. Va. 435,
436-37, 419 S.E.2d 696, 697-98 (1992), stating,
[w]e have not had occasion to discuss in any detail the type of
claim which the defendant must assert to meet the
requirement of Rule 14(a) that the third-party defendant “is or
may be liable to him for all or part of the plaintiff's claim[.]”
The federal courts have considered this question and in 3
James Wm. Moore, et al., Moore's Federal Practice ¶ 14.07(1)
at 14–45–46 (1991), this summary is given:
“Thus, ‘claim’ is defined transactionally, and
has nothing to do with the legal theory upon
which a party relies. The fact that the third-
party complaint may be based upon a different
legal theory from the underlying case is
irrelevant; the question is whether the assertion
of liability against the third-party defendant is
derivative of the same transaction, occurrence
or nucleus of operative fact as the underlying
claim by the plaintiff. If the transactional
relatedness is present, impleader is proper even
if the third-party complaint will be tried to the
court while the underlying action will be tried to
a jury. In sum, it is clear that the remedial
purpose of Rule 14 requires that it be
interpreted liberally to promote its underlying
purposes.”
(emphasis added).
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In this case, the circuit court analyzed National Union’s argument that the
bad faith and UTPA claims were not derivative of the original wrongful termination
claim pursuant to Syllabus Point 9 of J.A. Street & Associates, Inc. v. Thundering Herd
Development, LLC, 228 W.Va. 695, 724 S.E.2d 299 (2011), which states:
To determine whether a cross-claim arises out of the same
transaction or occurrence as the original action, there are
three nonexclusive factors to be considered: (1) the identity of
the facts and law between the initial claim and the cross-
claim; (2) the mutuality of proof and whether substantially the
same evidence will support or refute both the com-plaint and
the cross-claim; and (3) the logical relationship between the
original claim and the cross-claim.
After considering these three factors, the circuit court essentially reversed
its earlier ruling granting the Petitioners’ motion to file a third-party complaint and
concluded that the Petitioners’ bad faith and UTPA claims were not derivative of the
original wrongful termination claim and thus, should not have been brought in a third-
party complaint. Based on this ruling, the circuit court concluded that both the bad faith
and UTPA claims were subject to the one-year statute of limitation contained in
W.Va.Code § 55–2–12(c) and were not timely filed.
I agree with the majority opinion insofar as it properly concludes that the
circuit court did not abuse its discretion in dismissing the third-party complaint because
undoubtedly, the Petitioners’ third-party UTPA and bad faith claims are not derivative of
the wrongful termination action and thus, they were not proper for a third-party claim
under Rule 14(a). However, I do not agree with the majority’s observation that the
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saving statute, W. Va. Code § 55-2-18(a) tolls the statute of limitations to allow the
Petitioners a second opportunity to file an independent lawsuit against National Union
alleging a cause of action under the UTPA and for bad faith.
West Virginia Code §55-2-18 (2001) provides,
(a) For a period of one year from the date of an order dismissing an action
or reversing a judgment, a party may re-file the action if the initial pleading was timely
filed and: (i) the action was involuntarily dismissed for any reason not based upon the
merits of the action; or (ii) the judgment was reversed on a ground which does not
preclude a filing of new action for the same cause.
(b) For purposes of subsection (a) of this section, a dismissal not based
upon the merits of the action includes, but is not limited to:
(1) A dismissal for failure to post an appropriate bond;
(2) A dismissal for loss or destruction of records in a former action; or
(3) A dismissal for failure to have process timely served, whether or not the
party is notified by the court of the pending dismissal.
(emphasis added).
To the extent that the Petitioners’ third-party complaint was involuntarily
dismissed because the claims asserted were not derivative of the wrongful termination
action and thus, a proper third-party claim under Rule 14(a) had not been pled, I believe
that the merits of the action were indeed addressed by the circuit court below. Therefore,
in my opinion, Petitioners should not be permitted to avail themselves of the savings
statute in this case. Although, admittedly, the savings statute is remedial in nature, it is
my belief that the majority’s analysis of the savings statute in this instance was not the
kind of procedural remedy for which it was designed. Petitioners should have properly
filed an independent lawsuit setting forth their UTPA and bad faith causes of action
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within one year of the denial of coverage on November 11, 2009. However, Petitioners
claims were not timely filed. The expiration of the statute of limitations notwithstanding,
by virtue of the dicta contained within the majority’s opinion regarding this issue, the
Petitioners are now given an unwarranted opportunity to take a second bite at the apple.
For the above stated reasons, I respectfully separately concur with the
majority opinion.
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