Tucker-Stephen G. Bell v. Nicholson Construction Company ( 2020 )

No. 18-1139 – Tucker-Stephen Bell, et al v. Nicholson Construction Co.
FILED
November 19, 2020
released at 3:00 p.m.
WORKMAN, J., dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
The issue in this case is very narrow—so narrow in fact that the majority fails
to identify a single case in the extensive body of state and federal caselaw that interprets
Rule 15’s “relation back” principle so narrowly. That is because the proposed amendment
in this case clearly relates back to an occurrence outlined in the original pleading—just as
the Rule requires. Not only was the respondent employer (“Nicholson”) already a party to
the suit, on notice of personal injury claims and participating in the workers’ compensation
claim resulting from the workplace accident, but was already defending against the precise
cause of action presented by amendment, which had been asserted by way of cross-claim
for contribution. The majority violates the paramount principle this Court has enunciated
when construing this Rule: “Rule 15, by its own terms, is to be construed liberally in order
to promote the consideration of claims on their merits.” Brooks v. Isinghood, 213 W. Va.
675, 684, 584 S.E.2d 531, 540 (2003). Therefore, I dissent.
“The purpose of Rule 15 is to provide maximum opportunity for each claim
to be decided on its merits rather than on procedural technicalities.” Slayton v. Am. Express
Co., 460 F.3d 215, 228 (2d Cir. 2006) (cleaned up). And yet the majority invents a new
hyper-technical requirement to Rule 15’s “relation back” principles to bar a meritorious
claim. Petitioner filed a complaint against Nicholson and various manufacturing and
premises defendants alleging that he was injured in a workplace accident involving a drill
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rig. Petitioner’s original complaint, in which the full details surrounding the workplace
accident and subsequent handling of relevant evidence were set forth, asserted products
liability claims against the manufacturing defendants, premises liability against the site
owner, and a spoliation of evidence claim against Nicholson. Nicholson, who unilaterally
initiated a workers’ compensation claim for petitioner in Pennsylvania, was then sued for
deliberate intent by one of the manufacturing defendants, for purposes of contribution.
Approximately only two months after the original complaint was filed, petitioner sought
and obtained leave to amend his complaint to hold Nicholson liable for these same injuries,
involving the same facts and circumstances set forth in the original complaint, but under
the same theory of deliberate intent advanced by Nicholson’s co-defendant. The circuit
court and majority concluded, however, that the amended complaint did not “relate back”
to the original complaint under Rule 15(c) and the deliberate intent claim was therefore
time-barred.
One need not look far to find the genesis of the majority’s error. The
language of Rule 15(c)(2) itself plainly states that an amended complaint relates back to
the original where the “claim . . . asserted in the amended pleading arose out of the . . .
occurrence set forth or attempted to be set forth in the original pleading[.]” (emphasis
added). There is no question that all of the facts alleging petitioner’s workplace injury—
the “occurrence”—were fully set forth in the original pleading. Nevertheless, the majority
concludes that an amendment to add a claim against an already-named defendant does not
relate back even if it emanates from facts set forth in the complaint, if those facts relate
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primarily to claims against other named defendants. In so doing, the majority adds a
provision to the Rule that simply is not there: a requirement that an occurrence not only
be set forth in the original pleading, but that the occurrence be contained within a claim or
count directed at that particular defendant in the original pleading. Or, in other words,
that the precise occurrence from which the amendment derives must have already been the
source of a cause of action against that particular defendant. The majority boldly cites not
a single case in support of this construction of the Rule.
This Court has made clear that the general application of Rule 15 operates as
follows:
Rule 15 allows a party to amend despite the running of an
applicable state statute of limitations when parties are
sufficiently on notice of the facts and claims that gave rise to
the proposed amendment. The principal purpose of Rule 15(c)
is to enable a plaintiff to correct a pleading error after the
statute of limitations has run if the correction will not prejudice
his adversary in any way.
Brooks, 213 W. Va. at 684, 584 S.E.2d at 540 (cleaned up). Regardless, the majority
grossly narrows Rule 15’s “pleading” language by cherry-picking a phrase from an
inapposite case which simply does not contemplate multi-party, multi-theory complaints.
It places particular emphasis on the Court’s prior wording that a claim relates back where
a cause of action emanates from the “specified conduct of the defendant that gave rise to
the original cause of action.” Syl. Pt. 7, in part, Dzinglski v. Weirton Steel Corp., 191 W.
Va. 278, 445 S.E.2d 219 (1994), holding modified on other grounds by Tudor v. Charleston
Area Med. Ctr., Inc., 203 W. Va. 111, 506 S.E.2d 554 (1997); see also Roberts v. Wagner
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Chevrolet-Olds, Inc., 163 W. Va. 559, 563, 258 S.E.2d 901, 903 (1979). As even the
majority admits, Dzinglski did not involve or purport to address multi-defendant, multi-
theory lawsuits. To afford language in a syllabus point dispositive significance in a
scenario not contemplated or intended is a dangerous game. This language1 simply does
not contemplate anything other than a case involving one defendant or multiple, vicariously
liable defendants with an unanimity of interest and cause of action. Where there exists a
multiplicity of parties, occurrences, and legal theories, this overbroad language bites off
more than it intends to chew.
The illogic of the majority’s conclusion is even more obvious when
considering what would have been permissible had the original complaint in this case not
named Nicholson at all, but later sought to add it and the deliberate intent claim by
amendment under Rule 15(c)(3). This Court has held:
Under Rule 15(c)(3) of the West Virginia Rules of Civil
Procedure [1998], an amendment to a complaint changing a
defendant or the naming of a defendant will relate back to the
date the plaintiff filed the original complaint if: (1) the claim
asserted in the amended complaint arose out of the same
conduct, transaction, or occurrence as that asserted in the
original complaint; (2) the defendant named in the amended
complaint received notice of the filing of the original complaint
and is not prejudiced in maintaining a defense by the delay in
being named; (3) the defendant either knew or should have
known that he or she would have been named in the original
complaint had it not been for a mistake; and (4) notice of the
action, and knowledge or potential knowledge of the mistake,
was received by the defendant within the period prescribed for
1
This passing phrase was lifted from dicta in Roberts and inserted into the Dzinglski
syllabus point.
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commencing an action and service of process of the original
complaint.
Syl. Pt. 4, Brooks, 213 W. Va. 675, 584 S.E.2d 531. Rule 15(c)(3) and Brooks therefore
allow a new defendant against whom a new claim is asserted to be added by amendment
provided that the claim arises from an occurrence contained in the original pleading, the
notice provisions in Brooks are met, the new defendant knew or should have known it
would have been named but for a mistake, and no prejudice would result.
Under these guidelines, consider then a hypothetical scenario where
petitioner did not name Nicholson or assert a spoliation claim against it in the original
complaint, but sought to amend to name Nicholson as a new defendant later and assert a
deliberate intent action against it. The original complaint would have set forth the
workplace accident—plainly an “occurrence” from which the deliberate intent claim arises
(satisfying element one). Adequate notice would not be an issue given that 1) the
manufacturing defendant would have then needed to file a third-party complaint, rather
than a cross-claim, to advance its contribution claim (providing notice of the original action
as required by element two); and 2) the amended complaint was filed 105 days after the
original complaint—well within the time period prescribed by Brooks (providing notice
and mistake in omitting Nicholson as required by elements three and four).2 In light of
2
Notice of the action must have been received “within the period prescribed for
commencing an action and service of process of the original complaint.” Syl. Pt. 4, in part,
Brooks, 213 W. Va. 675, 584 S.E.2d 531. Petitioner had until May 19, 2017, to file his
(continued . . .)
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Nicholson’s active involvement in the workers’ compensation claim and the fact that a co-
defendant was asserting a deliberate intent claim, there can be no question it should have
known it would have been named as a first-party defendant, but for a mistake.3 Plainly no
prejudice would result, given that Nicholson has articulated none before this Court: the
case was in its infancy and it ultimately would have to defend against a deliberate intent
claim for contribution by a co-defendant regardless. Under these circumstances, the
amendment would obviously be permissible under Brooks. An entirely new defendant—a
stranger to the entire action itself—could then be brought into the case on this theory of
liability, regardless of the running of the statute of limitations.
However, because petitioner had already named Nicholson in the original
suit and included the operative facts, but simply not in support of its specific count against
Nicholson at that time, the majority concludes the claim cannot be brought. This is patently
non-sensical. Under the present case, Nicholson is even less surprised by the deliberate
intent claim than it would have been in the above permissible hypothetical. It was a party-
action; with the addition of 120 days for service per Rule 4(k), respondent employer must
only have received notice of the action on or before September 16, 2017.
3
That mistake, no doubt, was occasioned by the complexity of the dual filings of
the Pennsylvania and West Virginia workers’ compensation claims. Since Pennsylvania—
where Nicholson initiated a workers’ compensation claim—does not permit deliberate
intent and was likely the impetus for its filing there, Nicholson would be hard-pressed to
suggest it should not have known about the potential for a deliberate intent claim given the
pendency of a West Virginia workers’ compensation claim. In fact, it is not unreasonable
to suggest that Nicholson attempted to perpetuate the omission of such a claim with its
Pennsylvania filing.
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defendant from the outset, knew that petitioner was seeking recovery for his personal
injuries outside of the workers’ compensation claim, knew the exact factual allegations
surrounding the workplace accident, and was already defending against precisely this
claim. Somehow the majority’s hair-splitting has transformed early notice and full
participation into a handicap to Nicholson which bars the claim, whereas being omitted
entirely from the outset would have permitted the claim under Rule 15(c)(3). In that way,
the majority has placed new constraints on amendments under Rule 15 which are inversely
proportionate to the actual risk of prejudice: “[A]llowing the relation back of amendments
adding new defendants implicates more seriously [] policy concerns than simply the
relation back of new causes of action since, in the latter situation, the defendant is already
before the court.” Buran v. Coupal, 661 N.E.2d 978, 981 (N. Y. 1995).
Other courts have expressly rejected the majority’s “overreading” of Rule
15. In Marek v. O.B. Gyne Specialists II, S. C., 746 N.E.2d 1, 9 (Ill. App. Ct. 2001), the
court stated that its Rule 15 equivalent “do[es] not require that the allegations in a particular
count of an original complaint correspond to the same defendant in an amended complaint
for the relation-back doctrine to apply[.]” The Marek court permitted an amendment
outside of the statute of limitations, which made a direct claim of negligence against a
clinic arising generally from the same facts in the original complaint, where it was named
only as a defendant vicariously liable for other, different acts of its agents. Id. It concluded
that the allegations against the clinic “were at the heart of Marek’s case and O.B. Gyne was
made aware of them at the time the original complaint was filed.” Id.
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 As succinctly explained by yet another court:
In determining whether the relation back doctrine should be
applied, we must focus not on the identity of the causes of
action asserted in the original and amended complaint but
rather on the identity of the transaction or occurrence on
which the causes of action are based. We take this approach
because if the defendant has been made aware of the
occurrence or transaction which is the basis for the claim, he
can prepare to meet the plaintiff’s claim, whatever theory it
may be based on. Central to our inquiry is the question of
whether the record reveals that the defendant was on notice,
before the expiration of the statutory time period, of the facts
upon which the claim set out in the amended complaint is
based.
Cammon v. W. Suburban Hosp. Med. Ctr., 704 N.E.2d 731, 736 (Ill. App. Ct. 1998)
(cleaned up) (emphasis added).
Because the majority has violated the paramount equitable considerations
involved in Rule 15 that this Court has long-observed, and injected a new requirement
entirely of its own making into the Rule, I respectfully dissent.4
4
Because I believe Rule 15 permits the amendment, I would likewise permit
petitioner’s derivative spousal and parental consortium claims. I agree, however, with the
majority’s dismissal of the remaining consolidated appeals as lacking in appellate
jurisdiction and therefore improvidently granted.
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