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

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
__________________ FILED
November 19, 2020
released at 3:00 p.m.
No. 18-1124 EDYTHE NASH GAISER, CLERK
__________________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SOUTHERN ENVIRONMENTAL, INC.,
Petitioner
v.
TUCKER-STEPHEN G. BELL ET AL.,
Respondents
Appeal from the Circuit Court of Monongalia County
The Honorable Russell M. Clawges, Jr., Judge
Civil Action No. 17-C-193
DISMISSED
AND
__________________
No. 18-1139
__________________
TUCKER-STEPHEN G. BELL ET AL.,
Petitioners
v.
NICHOLSON CONSTRUCTION COMPANY,
Respondent
Appeal from the Circuit Court of Monongalia County
The Honorable Russell M. Clawges, Jr., Judge
Civil Action No. 17-C-193
AFFIRMED
AND
__________________
No. 18-1140
__________________
NICHOLSON CONSTRUCTION COMPANY,
Petitioner
v.
BEST FLOW LINE EQUIPMENT, L.P.,
Respondent
____________________________________________________________
Appeal from the Circuit Court of Monongalia County
The Honorable Russell M. Clawges, Jr., Judge
Civil Action No. 17-C-193
DISMISSED
____________________________________________________________
Submitted: October 6, 2020
Filed: November 19, 2020
Bradley K. Shafer, Esq.
MINTZER SAROWTIZ ZERIS
LEDVA & MEYERS
Wheeling, WV
Counsel for Southern Environmental, Inc.
Carl A. Frankovitch, Esq.
FRANKOVITCH, ANETAKIS,
SIMON, DECAPIO & PEARL, LLP
Weirton, WV
Counsel for Tucker-Stephen G. Bell, et al.
J. David Bolen, Esq.
DINSMORE AND SHOHL, LLP
Huntington, WV
Counsel for Best Flow Line Equipment, LP
Bradley D. Bell, Esq.
KAY CASTO & CHANEY PLLC
Morgantown, WV
Counsel for Longview Power, LLC
Nathaniel D. Griffith, Esq.
PULLIN, FOWLER, FLANAGAN,
BROWN & POE, PLLC
Morgantown, WV
Counsel for Casagrande USA, LP
Rita Massie Biser, Esq.
MOORE & BISER PLLC
Charleston, WV
Counsel for Nicholson Construction Company
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WORKMAN dissents in Case No. 18-1139, and reserves the right to file
a dissenting opinion.
JUSTICE HUTCHISON concurs, in part, dissents, in part, and reserves the right to
file a separate opinion.
SYLLABUS BY THE COURT
1. “Appellate review of a circuit court’s order granting a motion to
dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
2. “Pursuant to Rule 15, W.Va.R.C.P., amendments relate back when the
cause of action sought to be added grows out of the specified conduct of the defendant that
gave rise to the original cause of action. If, however, the supplemental pleading creates an
entirely new cause of action based on facts different from those in the original complaint,
the amended pleading will not relate back from statute of limitations purposes.” Syllabus
Point 7, Dzinglski v. Weirton Steel Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994).
3. “[T]his Court has a responsibility sua sponte to examine the basis of
its own jurisdiction.” Syllabus Point 1, in part, James M. B. and Lawrence E.B. v.
Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995).
4. “Ordinarily the denial of a motion for failure to state a claim upon
which relief can be granted made pursuant to West Virginia Rules of Civil Procedure
12(b)(6) is interlocutory and is, therefore, not immediately appealable.” Syllabus Point 2,
State ex re. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995).
i
ARMSTEAD, CHIEF JUSTICE:
This matter involves three consolidated appeals from the Circuit Court of
Monongalia County’s orders of November 27, 2018 and November 29, 2018, which all
relate to the same underlying civil action involving a workplace incident on May 19, 2015.
All of the orders at issue rule on motions to dismiss filed by several of the parties in the
underlying action. In its rulings, the circuit court dismissed claims for deliberate intent and
loss of consortium asserted by the plaintiffs in the underlying case. In addition, the circuit
court denied several motions to dismiss filed by some of the defendants in the underlying
case.
Upon careful review of the briefs of the parties, the appendix record, the
arguments of the parties, and the applicable legal authority, we agree with the circuit court’s
conclusion in Case No. 18-1139 that the deliberate intent claims are barred by the statute
of limitations and that the plaintiffs in the underlying action cannot maintain any derivative
claims for loss of consortium. However, we find that this Court lacks jurisdiction to
consider the petitions for appeal in Case Nos. 18-1124 and 18-1140 because the orders
appealed are not final orders. Accordingly, we dismiss those appeals for lack of appellate
jurisdiction.
I. FACTS AND PROCEDURAL HISTORY
On May 19, 2015, Mr. Bell was involved in a workplace incident at the
Longview Power Plant (the “Plaint”) in Monongalia County, West Virginia. On May 4,
1
2017, Mr. Bell and others1 (“the Bell Plaintiffs”) filed a complaint against Best Flow Line
Equipment, L.P. (“Best Flow”), Southern Environmental, Inc. (“SEI”), Longview Power,
LLC (“Longview”), Casagrande USA, Inc. and Nicholson Construction Company
(“Nicholson”).
The Bell Plaintiffs allege that on or about May 19, 2015, Mr. Bell, who was
employed by Nicholson, was injured when a 3” water swivel unthreaded and/or detached
from a pipe nipple causing a hose and the swivel to whip in the air and strike Mr. Bell in
the back of the head. The Bell Plaintiffs further alleged, among other things, the following
upon information and belief: (1) that Best Flow designed, manufactured, marketed,
labeled, packaged and sold the water swivel; (2) that SEI had been hired to undertake the
“Longview Power baghouse expansion project”; (3) that Longview was responsible for the
operation and maintenance of Longview Power Plant and directed and/or controlled all
contractors and subcontractors performing services at the Plant; (4) that Casagrande
designed, manufactured, marketed, labeled, packaged and sold the drill rig; and (5) that
Nicholson was Mr. Bell’s employer and that Mr. Bell was working in the course of his
employment at the time of the incident.
SEI and Nicholson filed motions to dismiss the complaint. On or about
August 2, 2017, the Bell Plaintiffs filed a motion for leave to file an amended complaint,
1
In addition to Mr. Bell, the plaintiffs in the original complaint included his wife,
Heather M. Bell, and his children, Colton T. Bell, Tucker M. Bell, and Chase G. Bell.
2
and the circuit court granted this motion. The Bell Plaintiffs filed their First Amended
Complaint on August 17, 2017.
On September 8, 2017, Best Flow answered the First Amended Complaint
and asserted various cross-claims including cross-claims against Nicholson. On September
18, 2017, Nicholson moved to dismiss Best Flow’s cross-claims.
On or about September 18, 2017, Nicholson filed a motion seeking to dismiss
the First Amended Complaint asserting the same arguments that it had advanced in its
earlier motion to dismiss and also maintaining that the circuit court lacked subject matter
jurisdiction over the deliberate intent claims and that such claims were also barred by the
applicable two-year statute of limitations. On or about September 21, 2017, SEI filed a
motion to dismiss the First Amended Complaint. 2 SEI argued that Pennsylvania law
applies to the Bell Plaintiffs’ claims and that it was entitled to complete immunity from
tort liability. SEI also argued that the circuit court lacked subject matter jurisdiction over
the Bell Plaintiffs’ claims.
On October 10, 2017, the circuit court heard arguments on various motions.
On August 31, 2018, the circuit court entered an order denying Nicholson’s motion to
dismiss the Bell Plaintiffs’ spoliation claims and granting Nicholson’s motion to dismiss
2
SEI filed its motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the
West Virginia Rules of Civil Procedure.
3
the Bell Plaintiffs’ claims for deliberate intent and loss of consortium. Specifically, the
circuit court ruled that the Bell Plaintiffs’ claims for deliberate intent were barred by the
two-year statute of limitations and that the claims for loss of consortium cannot be
maintained independent of a claim for personal injury. On September 10, 2018, the Bell
Plaintiffs filed a motion to amend the August 31, 2018 order or, in the alternative, for entry
of a final judgment pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure.
On September 8, 2017, Best Flow filed its answer to the First Amended
Complaint and asserted various cross-claims against Nicholson. Best Flow amended its
cross-claims against Nicholson identifying the following theories of liability: (1) deliberate
intention; (2) contribution; (3) implied indemnity; (4) negligent spoliation; and (5)
intentional spoliation. Nicholson filed a motion to dismiss Best Flow’s cross-claims on the
basis that the court lacked subject matter jurisdiction, that the cross-claims were barred by
the exclusivity and immunity provisions of the Pennsylvania Workers’ Compensation Act,
that the cross-claims were barred by the West Virginia several liability statute, and that
Best Flow was not entitled to implied indemnity because it was not without fault.
On October 24, 2018, the circuit court entered an order denying Nicholson’s
motion to dismiss Best Flow’s spoliation claims and granting Nicholson’s motion to
dismiss Best Flow’s cross-claims for deliberate intent, contribution, and implied
indemnity.
4
On November 1, 2018, the circuit court entered an order denying SEI’s
motion to dismiss, rejecting SEI’s argument that the Pennsylvania workers’ compensation
statute is the exclusive remedy by which Mr. Bell can recover for his workplace injuries.
In its November 1, 2018 order, the circuit court noted that it was unpersuaded by SEI’s
argument “at this stage of the proceedings.”
On November 5, 2018, Best Flow sought reconsideration of the circuit
court’s October 24, 2018 order granting Nicholson’s motion to dismiss a portion of its
cross-claims. Although the circuit court had initially granted Nicholson’s motion to dismiss
Best Flow’s cross-claims for deliberate intent, contribution and implied indemnity, by
order entered on November 27, 2018, the circuit court reconsidered its earlier
determination and denied Nicholson’s motion in its entirety. In its November 27, 2018
order, the circuit court included the following statement: “[t]he Court further ORDERS
that this Order is designated as a final order under W. Va. R. Civ. Proc 54(b) and is now
appealable immediately.” It is from this order that Nicholson appeals.
On or about November 19, 2018, SEI filed a motion seeking entry of a final
judgment pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure with respect
to the November 1, 2018 order denying its motion to dismiss. In its motion, SEI
acknowledged that typically, interlocutory orders are not appealable to this Court.
However, SEI argued that in order to render justice, the November 1, 2018 order should be
appealable. SEI further argued that due to the complexity of this case, it will likely take
5
several years to come to a final judgment and if this Court is inclined to reverse the circuit
court, it would not be “in the interest of sound judicial administration” to require SEI to
participate in the protracted litigation. Curtis-Wright Corp. v. General Electric Co., 446
U.S. 1, 8 (1980).
On November 29, 2018 the circuit court entered an order ruling on the Bell
Plaintiffs’ and SEI’s motions seeking entry of final judgments pursuant to Rule 54(b) of
the West Virginia Rules of Civil Procedure. The circuit court found that it was proper to
certify its orders of August 31, 2018, and November 1, 2018, as final and appealable orders
pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure. The circuit court
found that its November 1, 2018 order (denying SEI’s motion to dismiss) was “sufficiently
related” to the issues and rulings addressed in the August 31, 2018 order such that, “in the
interest of judicial economy, said Order should likewise be certified as final and appealable
at this time.” The circuit court ordered that its August 31, 2018 order and its November 1,
2018 order “be certified as final and appealable orders, in all respects, pursuant to Rule
54(b) of the West Virginia Rules of Civil Procedure.” In Case No. 18-1139, the Bell
Plaintiffs appeal the November 29, 2018 order as it relates to the order dated August 31,
2018. In Case No. 18-1124, SEI appeals the November 29, 2018 order as it relates to the
order dated November 1, 2018.
CASE NO. 18-1124 In Case No. 18-1124, SEI appeals the November
29, 2018 order granting motions for entry of final judgment. Specifically, SEI appeals the
6
circuit court’s denial of its motion to dismiss the Bell Plaintiffs’ claims of negligence and
loss of spousal and parental consortium asserted against it in the First Amended Complaint.
CASE NO. 18-1139
In Case No. 18-1139, the Bell Plaintiffs appeal the circuit court’s dismissal
of their claims against Nicholson for deliberate intent and loss of consortium.3
CASE NO. 18-1140 In Case No. 18-1140, Nicholson appeals the
November 27, 2018 circuit court’s order denying its motion to dismiss cross-claims that
were asserted against it by Best Flow.
II. STANDARD OF REVIEW
“Appellate review of a circuit court’s order granting a motion to dismiss a
complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
Inc., 194 W. Va. 700, 461 S.E.2d 516 (1995).
III. DISCUSSION
A. CASE NO. 18-1139
In Case No. 18-1139, the Bell Plaintiffs appeal the circuit court’s dismissal
of their deliberate intent and loss of consortium claims against Nicholson.
3
In this case, the Bell Plaintiffs are technically appealing the circuit court’s
November 29, 2018 order, which certified an earlier order dismissing their claims against
Nicholson for deliberate intent and loss of consortium.
7
In the original complaint filed by the Bell Plaintiffs, they asserted the
following claims against Nicholson: (1) negligent spoliation; (2) intentional spoliation; (3)
spousal loss of consortium; and (4) parental loss of consortium. On August 17, 2017, the
Bell Plaintiffs filed their First Amended Complaint, which included additional causes of
action against Nicholson for deliberate intent pursuant to West Virginia Code § 23-4-
2(d)(2)(i)-(ii), West Virginia Workers’ Compensation Act. The First Amended Complaint,
contained six causes of action against Nicholson: (1) deliberate intent under West Virginia
Code § 23-4-2(d)(i) (Count XV); (2) deliberate intent under West Virginia Code § 23-4-
2(d)(ii) (Count XVI); (3) intentional spoliation (Count XVII); (4) negligent spoliation
(Count XVIII); (5) loss of spousal consortium (Count XIX); and (6) loss of parental
consortium (Count XX).4
By order entered on August 31, 2018, the circuit court granted Nicholson’s
motion to dismiss, in part, and dismissed the Bell Plaintiffs’ claims for deliberate intent
and loss of consortium.5 In dismissing the claims for deliberate intent, the circuit court
ruled that those claims did not relate back to the time of the filing of the original complaint
pursuant to Rule 15(c) and, therefore, were time barred. Further, the circuit court found
because there was no legally cognizable personal injury claim asserted against Nicholson,
4
Although the circuit court gave the Bell Plaintiffs the opportunity to amend their
original complaint, after considering Nicholson’s arguments in support of its motion to
dismiss, the circuit court ruled that the claims for deliberate intent and loss of consortium
should be dismissed.
5
The circuit court denied Nicholson’s motion to dismiss the claims for spoliation.
8
the Bell Plaintiffs cannot maintain any derivative claims for loss of consortium. For the
reasons set forth below, we agree with the circuit court.
Rule 15(c) of the West Virginia Rules of Civil Procedure provides as follows:
(c) Relation back of amendments. – An amendment of a
pleading relates back to the date of the original pleading when:
(1) relation back is permitted by the law that provides the
statute of limitations applicable to the action; or
(2) the claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading; or
(3) the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing paragraph (2)
is satisfied and, within the period provided by Rule 4(k) for
service of the summons and complaint, the party to be brought
in by amendment (A) has received such notice of the institution
of the action that the party will not be prejudiced in maintaining
a defense on the merits, and (B) knew or should have known
that, but for a mistake concerning the identity of the proper
party, the action would have brought against the party.
W. Va. R. Civ.P., 15(c)(2017).
The Bell Plaintiffs argue that their claims against Nicholson for deliberate
intent are not time barred because they relate back to the time of the filing of the original
complaint. More specifically, the Bell Plaintiffs argue that 1) their deliberate intent claims
arise out of the same conduct, transaction and occurrences set forth in the original
complaint; 2) their deliberate intent claims relate back even under what they perceive is the
circuit court’s restrictive interpretation of Rule 15(c)(2) of the West Virginia Rules of Civil
Procedure; 3) Nicholson will suffer no prejudice if the claims relate back; and 4) the circuit
9
court misapplied Rule 15(c)(2) of the West Virginia Rules of Civil Procedure and such
application cannot be retroactively applied to their First Amended Complaint.
In response to the Bell Plaintiffs’ argument that the deliberate intent claims
at issue relate back to the filing of their original complaint, Nicholson argues that the claims
do not relate back because they arise from an entirely different relationship, from an
entirely different set of alleged wrongful acts, occurred at an entirely different place and
time, and involved entirely different individuals.
The first question to be addressed by this Court is whether the deliberate
intent claims asserted against Nicholson in the First Amended Complaint relate back to the
original complaint such that they are not barred by the applicable statute of limitations. As
a preliminary matter, we note that deliberate intent claims are governed by a two-year
statute of limitations. See Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 729
S.E.2d 231 (2012). The workplace incident occurred on May 19, 2015, and the Bell
Plaintiffs filed their original complaint on May 4, 2017, which was within the applicable
statute of limitations. Although the Bell Plaintiffs make note that their original complaint
set forth the workplace incident “in great detail,” it is undisputed that the claims they
asserted against Nicholson in the original complaint were limited to negligent and
intentional spoliation of evidence and loss of spousal and parental consortium. It is also
undisputed that the Bell Plaintiffs filed their First Amended Complaint over two years after
the workplace incident. It was not until they filed the First Amended Complaint that the
Bell Plaintiffs first asserted claims for deliberate intent against Nicholson.
10
Although the Bell Plaintiffs concede that they filed their First Amended
Complaint after the applicable statute of limitations, they argue that their claims for
deliberate intent are saved because they “relate back” to the filing of their original
complaint pursuant to Rule 15(c)(2). Further, they argue that the circuit court disregarded
the clear and unambiguous language contained in Rule 15(c)(2) and erroneously construed
the rule, rather than applying its plain meaning. Specifically, they argue that Rule 15(c)(2)
does not require that their newly added claims arise from the conduct, transaction, or
occurrence set forth in the particular section of their original complaint that was directed
at Nicholson. Instead, they argue that their claims for deliberate intent arose out of the
workplace incident and because they mentioned the workplace incident in their original
complaint, their claims relate back pursuant to Rule 15(c)(2).
In order to relate back, the new claims must arise “out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the original pleading.”
Rule 15(c)(2) of the West Virginia Rules of Civil Procedure. There is no dispute that a
workplace incident occurred on May 19, 2015, and that details of that incident are
contained in the original complaint. However, it is also undisputed that the only claims
that the Bell Plaintiffs asserted against Nicholson in the original complaint were for
spoliation and loss of consortium. Of the eighteen Counts contained in the original
complaint, only four named Nicholson.6 Out of the thirteen “Factual Allegations,” only
two mention Nicholson. In Paragraph 16, the Bell Plaintiffs allege that Nicholson “was a
Count XV – intentional spoliation; Count XVI – negligent spoliation;
6
Count XVII – spousal loss of consortium; and Count XVIII – parental loss of consortium
11
subcontractor hired by Defendant SEI to design and install the foundation pilings for the
Fabric Filler Building at Longview Power Plant.” In Paragraph 17, the Bell Plaintiffs
allege that “[o]n or about May 19, 2015, Plaintiff Tucker-Stephen G. Bell was employed
by and working in the course of his employment for Nicholson at the Longview Power
Plant.” In fact, when alleging who was at fault for the accident, the Bell Plaintiffs did not
even mention Nicholson. Specifically, in Paragraph 24, the Bell Plaintiffs allege “[t]he
accident was a direct and proximate result of the acts and/or omissions of Defendants Best
Flow, SEI, Casagrande, and Longview Power as set forth below.” The claims against
Nicholson in the original complaint occurred after the workplace incident. The deliberate
intent claims against Nicholson in the First Amended Complaint occurred at a different
time and are based upon an entirely different set of facts than the allegations against
Nicholson in the original complaint. We are guided by the following:
Pursuant to Rule 15, W.Va.R.C.P., amendments relate back
when the cause of action sought to be added grows out of the
specified conduct of the defendant that gave rise to the original
cause of action. If, however, the supplemental pleading creates
an entirely new cause of action based on facts different from
those in the original complaint, the amended pleading will not
relate back from statute of limitations purposes.
Syl. Pt. 7, Dzinglski v. Weirton Steel Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994).7
7
At the outset, we note that in Dzinglski, this Court was not considering a case
involving multiple defendants. Although Dzinglski only involved one defendant, the
syllabus point clearly provides that the relation back grows out of “the specified conduct
of the defendant that gave rise to the original cause of action.” Accordingly, the allegations
contained in the original complaint against other defendants may not be used to “relate”
the new allegations against Nicholson back to the original complaint.
12
There is no doubt that the new causes of action asserted against Nicholson in
the First Amended Complaint are “based on facts different from those in the original
complaint” as they relate to Nicholson. In order to assert the deliberate intent claims, the
Bell Plaintiffs had to add new factual allegations against Nicholson because the allegations
contained in the original complaint would not have satisfied the specialized allegations
required for a deliberate intent claim. Specifically, the Bell Plaintiffs added the following
allegations in the First Amended Complaint:
19. At all relevant times herein, Plaintiff Tucker-Stephen G.
Bell was an employee of Defendant Nicholson performing
work in West Virginia on a non-temporary basis.
20. Upon information and belief, in the preceding 365 day
period, Plaintiff Tucker-Stephen G. Bell had performed work
within the scope of his employment for Defendant Nicholson
in the State of West Virginia for a period exceeding thirty (30)
days.
21. Upon information and belief, Defendant Nicholson
believed or reasonably should have believed that Plaintiff
Tucker-Stephen G. Bell would be employed by Nicholson in
the State of West Virginia for a period exceeding thirty (30)
calendar days in a 365 day period.
22. Plaintiff Tucker-Stephen G. Bell was required to be
covered by West Virginia workers’ compensation coverage
under applicable West Virginia law, and is entitled to all
benefits and privileges under the West Virginia Workers’
Compensation Act.
13
In addition, and importantly, we note that the first time the Bell Plaintiffs
alleged that Nicholson was at fault for the workplace incident was in the Amended
Complaint.8
The Bell Plaintiffs argue that the circuit court imposed nonexistent
constraints into Rule 15(c)(2) and that such “judicial activism” should be stymied. 9 In
further support of their position, they make multiple references to the need to adjudicate
cases on their merits and allege that injustice will result if this Court does not reverse the
circuit court’s decision. However, they make few references to their failure to file the
deliberate intent claims within the applicable statute of limitations. Prior to filing their
First Amended Complaint, the Bell Plaintiffs’ original complaint essentially informed
Nicholson that 1) its acts and/or omissions were not alleged to be the direct and proximate
result of the workplace incident; and 2) it was facing claims for spoliation of evidence and
loss of consortium only. Over three months later and after the applicable statute of
limitations had run, the Bell Plaintiffs added claims for deliberate intent against Nicholson.
8
Paragraph 31 of the First Amended Complaint provides, “[t]he aforesaid accident
was a direct and proximate result of the acts and/or omissions of Defendants, Best Flow,
SEI, Casagrande S.p.A. Casagrande USA, IDE, Longview Power, and/or Nicholson as set
forth below. (emphasis added)
9
In addition to arguing that the circuit court disregarded the clear and unambiguous
language of Rule 15(c)(2), the Bell Plaintiffs attempt to shift the blame for the circuit
court’s “erroneous interpretation” of Rule 15(c)(2) to Nicholson by arguing that Nicholson
misrepresented caselaw. However, our review of the Appendix does not reveal that
Nicholson “deceptively submitted” caselaw.
14
The Bell Plaintiffs’ attempts to relate these new allegations of deliberate
intent back to the original complaint are not only inconsistent with Rule 15(c) of the Rules
of Civil Procedure, but are also inherently unfair to Nicholson in that they require it to
defend against entirely new allegations and claims not made against it within the applicable
statute of limitations. “[D]efendants have a right to rely on the certainty the statute of
limitations provides.” Perdue v. Hess, 199 W. Va. 299, 303, 484 S.E.2d 182, 186 (1997).
Moreover, we find that the fact that the original complaint contained allegations arguably
giving rise to claims for which deliberate intent is the manner of proof for other defendants,
does not permit the untimely claim against Nicholson to relate back to the original
complaint. Indeed, we find that the fact that such claims were alleged against other
defendants in the original complaint, but not made against Nicholson who was already a
party to the action, actually undermines the Bell Plaintiffs’ argument that these claims
against Nicholson should relate back to the time the original complaint was filed. Clearly,
the Bell Plaintiffs’ knew the basis of their deliberate intent claim at the time they filed their
original complaint, but determined that such claim should not be asserted against
Nicholson.
Because the Bell Plaintiffs’ deliberate intent claim against Nicholson must
be dismissed, its loss of consortium claim, which is essentially derivative of such deliberate
intent claims, must also be dismissed. A claim for loss of consortium cannot be maintained
independent of a cognizable personal injury claim. See State ex rel. Small v. Clawges, 231
W. Va. 301, 745 S.E.2d 192 (2013). The Bell Plaintiffs have made no personal injury
15
claims against Nicholson independent of their deliberate intent claim. Because we find
that the deliberate intent claim does not relate back to the original complaint, the loss of
consortium claims against Nicholson must necessarily be dismissed as well.
Therefore, we find that the Bell Plaintiffs’ claims for deliberate intent
contained in their First Amended Complaint do not relate back to the filing of their original
complaint and are therefore barred by the two-year statute of limitations. Consequently,
because their allegations of personal injury are embodied in their deliberate intent claim,
the Bell Plaintiffs’ claims for spousal and parental loss of consortium cannot survive and
must be dismissed.
Accordingly, the circuit court’s order dismissing the deliberate intent and
loss of consortium claims against Nicholson in Case No. 18-1139 is affirmed.10
B. CASE NOS. 18-1124 AND 18-1140
As a threshold matter, we must address whether there are appealable orders
in these cases. “[T]his Court has a responsibility sua sponte to examine the basis of its
own jurisdiction.” Syl. Pt. 1, in part, James M. B. and Lawrence E.B. v. Carolyn M., 193
W. Va. 289, 456 S.E.2d 16 (1995).
In Case No. 18-1124, SEI appeals the denial of its motion to dismiss the Bell
Plaintiffs’ claims against it, and in Case No. 18-1140, Nicholson appeals the denial of its
10
For the same reasons we are dismissing Case Nos. 18-1124 and 18-1140, we
decline to address Nicholson’s cross-assignments of error.
16
motion to dismiss cross-claims asserted it by Best Flow. The orders in both of these cases
deny motions to dismiss.11 As this Court has previously noted: “[m]otions to dismiss are
viewed with disfavor, and we counsel lower courts to rarely grant such motions.” Ewing
v. Board of Education of Summers County, 202 W. Va. 228, 235, 503 S.E.2d 541, 548
(1998) (quoting/citing John W. Lodge Distributing Co. Inc. v. Texaco, Inc., 161 W. Va.
603, 605-606, 245 S.E.2d 157, 159 (1978). “Ordinarily the denial of a motion for failure
to state a claim upon which relief can be granted made pursuant to West Virginia Rules of
Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable.”
Syl. Pt. 2, State ex re. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995).
Generally, an appeal lies from a final judgment. West Virginia Code § 58-
5-1, provides,
A party to a civil action may appeal to the Supreme Court of
Appeals from a final judgment of any circuit court or from an
order of any circuit court constituting a final judgment as to
one or more but fewer than all claims or parties upon an express
determination by the circuit court that there is no just reason
for delay and upon an express direction for the entry of
judgment as to such claims or parties…
(emphasis added).
11
In Case No. 18-1124, SEI’s motion sought dismissal pursuant to West Virginia
Rules of Civil Procedure 12(b)(1) and 12(b)(6). In Case No. 18-1140, Nicholson’s motion
sought dismissal pursuant to West Virginia Rules of Civil Procedure 12(b)(1) and
12(b)(6)..
17
The “companion provision” to this statute is found in Rule 54 of the West
Virginia Rules of Civil Procedure (hereinafter “Rule 54(b)”). West Virginia Rule of Civil
Procedure 54(b) provides:
(b) Judgment upon multiple claims or involving multiple
parties. --- When more than one claim for relief is presented in
an action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the
court may direct the entry of a final judgment as to one or more
but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an
express direction for the entry of judgment. In the absence of
such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the
parties shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is subject to
revision at any time before the entry of judgment adjudicating
all the claims and the rights and liabilities of all the parties.
“By limiting appellate jurisdiction to final judgments, the finality rule serves
to avoid piecemeal review of trial court rulings which do not end litigation regarding all or
some claims or parties in a case.” Vaughn v. Greater Huntington Park and Recreation
Dist., 223 W. Va. 583, 587, 678 S.E.2d 316, 320 (2009).
Both orders being appealed in these cases contain the declaration that they
are final and appealable pursuant to Rule 54(b) of the West Virginia Rules of Civil
Procedure. With respect to Case No. 18-1124, the circuit court certified the November 1,
2018 order denying SEI’s motion as “final and appealable in all respects” “pursuant to Rule
54(b) of the West Virginia Rules of Civil Procedure.” With respect to Case No. 18-1140,
the circuit court designated its November 27, 2018 amended order denying Nicholson’s
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motion to dismiss Best Flow’s cross-claims as “a final order under W.Va. R. Civ. Proc
54(b) and is now appealable immediately.” However, the circuit court’s declaration “by
itself does not satisfy the requirements of finality.” Vaughan at 588, 678 S.E.2d at 321.
Despite the circuit court’s “expressions of finality in the orders before us, the rulings fail
to dispose of the suit or to terminate the litigation as to a claim or a party and thus do not
represent the degree of finality which would permit interlocutory appellate review.”
Vaughn at 588-589, 678 S.E.2d 321-322.
Accordingly, Case Nos. 18-1124 and 18-1140 are hereby dismissed from our
docket because we lack the requisite jurisdiction to address them. The dismissals of these
cases are without prejudice so that the matters may be appealed if deemed appropriate after
a proper final judgment has been entered.
IV. CONCLUSION
For the reasons set forth above, the circuit court’s order dismissing the
deliberate intent and loss of consortium claims against Nicholson in Case No. 18-1139 is
affirmed and the appeals in Case Nos. 18-1124 and 18-1140 are dismissed due to lack of
jurisdiction by this Court to address them.
Affirmed as to Case No. 18-1139 and Dismissed as to Case No. 18-1124 and Case No. 18-
1140.
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