State of West Virginia, Ex rel 3M Company v. Jay Hoke and Patrick Morrisey

No. 20-0014 – State of West Virginia ex rel. 3M Company, F/K/A Minnesota Mining
and Manufacturing Company, Mine Safety Appliances Company, and
American Optical Corporation v. Honorable Jay Hoke, Judge of the
Circuit Court of Lincoln County, and State of West Virginia ex rel.
Patrick Morrisey, Attorney General
FILED
November 23, 2020
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
Jenkins, Justice, concurring, joined by Chief Justice Armstead: SUPREME COURT OF APPEALS
OF WEST VIRGINIA
This case presents a complicated matter regarding the applicability of the
CCPA to alleged violations that occurred nearly fifty years ago, and nearly thirty years
before this suit was filed. Here, the Petitioners—3M Company, Mine Safety Appliances
Company and American Optical Corporation—seek a writ of prohibition challenging a
circuit court order that ruled that the State may pursue claims for civil penalties under the
CCPA based on conduct that occurred decades before the case was filed.
I concur in the majority’s ultimate determination that, due to the specific
allegations of fraud in this case, and to achieve the goals of the CCPA, the discovery rule
can be applied to toll the statute of limitations. As this Court has long-acknowledged,
“[t]he purpose of the CCPA is to protect consumers from unfair, illegal, and deceptive acts
or practices by providing an avenue of relief for consumers who would otherwise have
difficulty proving their case under a more traditional cause of action.” State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 777, 461 S.E.2d 516, 523
(1995).
I write separately, however, to caution against tolling the statute of
limitations in all cases involving the CCPA. Our decision in this case should not be seen
as a “blanket” discovery rule for all future CCPA cases—especially when the Legislature
did not expressly provide for tolling in the drafting of the CCPA.
As noted by the majority opinion, “the general rule is that the statute of
limitations in Section 111(2) begins to run against the Attorney General when the violation
of the CCPA occurs and the right to file an action has obviously accrued.” However, other
jurisdictions that have considered whether to toll deceptive trade and consumer credit
protection law claims have noted:
[T]he consensus seems to be that a cause of action under a
consumer protection act begins to run from the time the
consumer discovered or reasonably should have discovered the
deception, fraud, or other unlawful conduct. Of course, even
if the consumer discovers the deception or fraud, the defendant
cannot raise the statute of limitations as a defense if the
consumer was effectively prevented from bringing suit within
the limitations period by the continuing fraud or false
statements of the defendant.
1 Howard J. Alperin, Roland F. Chase, Consumer Law Sales Practices and Credit
Regulation § 139 (2020). This illustrates that tolling in CCPA cases is an exception to the
general rule that a statute of limitations typically begins to run when the violation occurs.
Here, the CCPA clearly states that “[n]o civil penalty pursuant to this
subsection may be imposed for violations of this chapter occurring more than four years
before the action is brought.” W. Va. Code § 46A-7-111(2). Stated another way, no civil
penalty may be imposed for violations of the CCPA occurring more than four years before
the action was brought. Moreover, as argued by the Petitioners, the Legislature’s silence
on tolling can be construed as intent that the absence of a discovery rule in Section 111(2)
establishes its intention for no discovery rule to apply to CCPA actions.
However, the majority opinion adopts—and I agree with—the reasoning of
the circuit court, that because there is no statutory prohibition on the application of the
discovery rule, the discovery rule may be applied. Further, the majority notes, that under
Syllabus point 5 of Dunn, there is evidence in this matter that the Petitioners “fraudulently
concealed facts which prevented the [State] from discovering or pursuing the potential
cause of action” under the CCPA—evidence that would also would support tolling the
statute of limitations.
In a comparable case, the United States Supreme Court commented that it
was hesitant to toll the statute of limitations in a securities matter, except in instances of
fraud. The Court also emphasized that the discovery rule is an “exception.”
The Government nonetheless argues that the discovery rule
should apply here. That doctrine is an “exception” to the
standard rule, and delays accrual “until a plaintiff has
‘discovered’” his cause of action. Merck & Co. v. Reynolds,
559 U.S. 633, ––––, 130 S.Ct. 1784, 1793, 176 L.Ed.2d 582.
It arose from the recognition that “something different was
needed in the case of fraud, where a defendant’s deceptive
conduct may prevent a plaintiff from even knowing that he or
she has been defrauded.” Ibid. Thus “where a plaintiff has been
injured by fraud and ‘remains in ignorance of it without any
fault or want of diligence or care on his part, the bar of the
statute does not begin to run until the fraud is discovered.’”
Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90
L.Ed. 743.
Gabelli v. S.E.C., 568 U.S. 442, 133 S. Ct. 1216, 1217-18, 185 L. Ed. 2d 297 (2013)
(emphasis added). Just as in our case here, the United States Supreme Court found that the
existence of fraud necessitates the need for an exception to the general rule.
Ultimately, I agree, on the record presented sub judice, that the circuit court’s
decision to permit the parties to develop their evidence and present it anew was not
erroneous. I recognize, as does the majority, that the discovery rule can be applied in
CCPA cases involving fraud. However, I do caution future litigants against blindly
assuming that the discovery rule will be applied to all CCPA claims—it is the exception,
not the rule. For these reasons, I respectfully concur. I am authorized to state that Chief
Justice Armstead joins in this separate opinion.