Opinion
No. 18-1124 No. 18-1139 No. 18-1140
11-19-2020
SOUTHERN ENVIRONMENTAL, INC., Petitioner v. Tucker-Stephen G. BELL et al., Respondents Tucker-Stephen G. Bell et al., Petitioners v. Nicholson Construction Company, Respondent Nicholson Construction Company, Petitioner v. Best Flow Line Equipment, L.P., Respondent
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.
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.
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, 2017, Mr. Bell and others ("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").
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.
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, 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. 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.
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.
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 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.
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 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. Curtiss-Wright Corp. v. General Electric Co. , 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (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 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.
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.
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. 770, 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.
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).
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.
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. 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, the Bell Plaintiffs cannot maintain any derivative claims for loss of consortium. For the reasons set forth below, we agree with the circuit court.
The circuit court denied Nicholson's motion to dismiss the claims for spoliation.
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 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.
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. Out of the thirteen "Factual Allegations," only two mention Nicholson. In Paragraph 16, the Bell Plaintiffs allege that Nicholson "was a 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:
Count XV – intentional spoliation; Count XVI – negligent spoliation; Count XVII – spousal loss of consortium; and Count XVIII – parental loss of consortium
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).
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.
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.
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.
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)
The Bell Plaintiffs argue that the circuit court imposed nonexistent constraints into Rule 15(c)(2) and that such "judicial activism" should be stymied. 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.
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.
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 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.
For the same reasons we are dismissing Case Nos. 18-1124 and 18-1140, we decline to address Nicholson's cross-assignments of error.
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 motion to dismiss cross-claims asserted it by Best Flow. The orders in both of these cases deny motions to dismiss. 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).
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).
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).
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." Vaughan 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 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." Vaughan at 588-589, 678 S.E.2d at 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.
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.
WORKMAN, J., dissenting:
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 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 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 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 language 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.
This passing phrase was lifted from dicta in Roberts and inserted into the Dzinglski syllabus point.
See Roberts , 163 W. Va. at 559, 258 S.E.2d at 901, syl.
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 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). In light of 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. 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.
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 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.
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.
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-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, 87 N.Y.2d 173, 638 N.Y.S.2d 405, 661 N.E.2d 978, 981 (1995).
Other courts have expressly rejected the majority's "overreading" of Rule 15. In Marek v. O.B. Gyne Specialists II, S. C., 319 Ill.App.3d 690, 253 Ill.Dec. 759, 746 N.E.2d 1, 9 (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.
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., 301 Ill.App.3d 939, 235 Ill.Dec. 158, 704 N.E.2d 731, 736 (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.
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.
Hutchison, J., concurring, in part, and dissenting, in part:
I concur with the majority opinion insofar as it concludes that the circuit court orders entered in Case No. 18-1140 and Case No. 18-1124, and the order entered in Case No. 18-1139 with respect to the cross appeal filed by Respondent Nicholson Construction Company ("Nicholson"), are interlocutory and not presently reviewable by this Court. However, in Case No. 18-1139, the majority's decision to affirm the circuit court's ruling that the plaintiffs’ deliberate intent claims against Nicholson do not relate back to the filing of the original complaint is a stunning and hostile departure from our rules of civil procedure, their recognized purpose, and our longstanding case law. To this unfortunate holding, I vigorously dissent.
The question of whether the plaintiffs’ deliberate intent claims relate back to the filing of the original complaint calls for a simple and straightforward application of Rule 15 of the West Virginia Rules of Civil Procedure. Rule 15 governs amended and supplemental pleadings and provides:
(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
....
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
...
(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[.]
Id. in relevant part (emphasis added).
Rule 15 ’s "words ‘and leave (to amend) shall be freely given when justice so requires’ ... [are] to secure such an adjudication on the merits of the controversy as would be secured under factual situations in the absence of procedural impediments[ ]" such as statutes of limitations. Roberts v. Wagner Chevrolet-Olds, Inc. , 163 W. Va. 559, 562, 258 S.E.2d 901, 903 (1979). Indeed, "[t]his Court is pledged to the principle that Rule 15 should be liberally construed" in order "to allow the liberal use of amendments to implement the policy of encouraging litigation on the merits." Peneschi v. Nat'l Steel Corp. , 170 W. Va. 511, 523, 295 S.E.2d 1, 13 (1982) (internal citation omitted). In the syllabus of Bennett v. Owens , 180 W. Va. 641, 378 S.E.2d 850 (1989), this Court held:
"The purpose of the words ‘and leave [to amend] shall be freely given when justice so requires’ in Rule 15(a) W.Va.R.Civ.P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue." Syllabus point 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973).
Similarly, in Roberts , the Court instructed that
[a]n amendment to a complaint which changes only the legal theory of the action, or adds another claim arising out of the same conduct, transaction or occurrence, will relate back to the filing of the original complaint, provided (1) injustice to the adverse party will not result from allowance of relation back, and (2) the adverse party has received adequate notice of the claim against him and has an adequate opportunity to prepare a defense to it.
163 W. Va. at 559, 258 S.E.2d at 901, syl. See also Brooks v. Isinghood , 213 W. Va. 675, 684, 584 S.E.2d 531, 540 (2003) (" ‘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.’ " (quoting James Wm. Moore, 3 Moore's Federal Practice 3d, § 15.19[1] at 15–78 (Matthew Bender, 1997))).
Critically, "[t]he fact that an amendment changes the legal theory on which the action initially was brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant's attention by the original pleading." 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1497 (3rd ed. 2010). (Footnote omitted). In case after case, this Court has held steadfast to these guiding principles. See Bennett , 180 W. Va. at 642-43, 378 S.E.2d at 851-52 (holding that change in legal theory alleging that defendant committed battery to allegations that he was negligent in conducting party where plaintiff was injured by failing to monitor consumption of alcohol by attendees, by allowing guests to become intoxicated, by failing to neutralize argument between plaintiff and other guests, and by encouraging other guests to engage in aggressive conduct "arose out of the same factual context" and put defendant on adequate notice such that amendment related back to filing of original complaint); Adkins v. Slater , 171 W. Va. 203, 298 S.E.2d 236 (1982) (liberally applying Rule 15 to permit amendment to pleadings to conform to evidence where plaintiffs, who originally alleged negligence theory, amended pleading one month before trial to allege common carrier claim which, if proven, would have made defendants strictly liable for plaintiffs’ damages, and finding that defendants were neither surprised nor prejudiced by allowing amendment); Roberts , 163 W. Va. at 565, 258 S.E.2d at 904 (holding that amended complaint alleging violation of Truth in Lending Act related back to allegations of original complaint that agreement for car repairs was unconscionable contract of adhesion and that defendants conspired to convert plaintiffs’ property; Court reasoned that amendments stated cause of action growing out of specified conduct of defendant that gave rise to original cause of action and did not unfairly prejudice defendant); and State ex rel. Bd. of Educ. v. Spillers , 164 W. Va. 453, 259 S.E.2d 417 (1979) (finding that plaintiffs had clear right to amend ad damnum clause where opposing party would not be prejudiced by it and there was ample time and opportunity to meet issue raised by amendment – i.e., fourteen months before trial, no pretrial conference had been held, and additional discovery could occur).
In Tucker v. Momentive Performance Materials USA, Incorporated , 2013 WL 6073463 (S.D. W. Va. Nov. 18, 2013), the plaintiff alleged claims in the original complaint against his prior employer and ninety-nine other "John Doe" defendants, including product liability, failure to warn, negligence, fraudulent and negligent misrepresentation, and fraudulent concealment, related to his exposure to toxic chemicals during his employment. See Id. at *1. Subsequently, the plaintiff sought to amend the complaint to include additional counts for deliberate intent. See Id. The plaintiff's employer filed a motion to dismiss on the ground that the new claims did not relate back to the filing of the original complaint and were thus untimely and barred by the applicable statute of limitations. See Id. The United States District Court for the Southern District of West Virginia disagreed with the employer and, applying the federal counterpart to our Rule 15, concluded that the
amended complaint relates back to the[ ] original pleading. The theories of liability differ between the two pleadings, but they share an identical nucleus of facts. The amended complaint, like the original, arises out of Mr. Tucker's exposure to hazardous chemicals at Momentive's worksite between the years of 1977 and 2011. The additional factual allegations contained in the amended complaint are obviously designed to track the West Virginia statute setting forth the elements of a deliberate intent cause of action. They do not, as Momentive claims, invoke reference to any conduct, transaction, or occurrence other than that already set forth by the original complaint. Particularly given the liberal amendment standard established by Federal Rule of Civil Procedure 15, any variances between the factual allegations in these pleadings do not suffice to prevent relation back.
Id. at *2 (footnote omitted and emphasis added).
It is clear that the amended complaint relates back to the filing of the original pleading. The deliberate intent claims set forth in the amended complaint and all of the claims set forth in the original complaint arose from the same conduct, transaction or occurrence – that is, the accident and injuries Mr. Bell suffered while working in the course of his employment with Nicholson in West Virginia. The majority's conclusion to the contrary is simply not supported in either law or fact. Furthermore, the majority's feigned concern that Nicholson would suffer injustice, received inadequate notice, and has not had an adequate opportunity to prepare a defense to the deliberate intent claims1 is likewise wholly unsupportable and, indeed, belied by the reality that this case is in the very earliest procedural stages
Notably, the factual allegations in the amended complaint that the majority finds to be unfairly prejudicial to Nicholson because they were alleged a mere three months after the statute of limitations had expired are not those setting forth the elements of the deliberate intent claims. See W. Va. Code § 23-4-2(d)(2)(i) and (ii). Rather, they are simply facts expounding upon Mr. Bell's employment with Nicholson in West Virginia leading up to the accident (i.e., that Mr. Bell worked for Nicholson on a non-temporary basis, for more than thirty days in the preceding 365-day period, and that he was covered by and entitled to the benefits and privileges of West Virginia's workers’ compensation laws). To the extent the majority suggests that, without these "new" factual allegations, the plaintiffs’ deliberate intent claims would not have survived a motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(6), I could not disagree more. It is beyond cavil that our rules of civil procedure clearly establish the principle that a plaintiff pleading a claim for relief need only give general notice as to the nature of their claims. This Court has instructed that
[t]he purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint. A trial court considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do substantial justice. West Virginia Rules of Civil Procedure, Rule 8(f). The trial court's consideration begins, therefore, with the proposition that "[f]or purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are to be taken as true." John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978). The policy of Rule 8(f) is to decide cases upon their merits, and if the complaint states a claim upon which relief can be granted under any legal theory, a motion under Rule 12(b)(6) must be denied. John W. Lodge Distributing Co., 161 W.Va. at 605, 245 S.E.2d at 158–159.
Cantley v. Lincoln Cty. Comm'n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007). Hence, "[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl. pt. 3, Chapman v. Kane Transfer Co. , 160 W. Va. 530, 236 S.E.2d 207 (1977). See also State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc. , 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995) ("Complaints are to be read liberally as required by the notice pleading theory underlying the West Virginia Rules of Civil Procedure."). Had our rules been fairly applied in this case, Nicholson's Rule 12(b)(6) motion to dismiss the plaintiffs’ deliberate intent claims would have categorically been denied. Thus, to the extent the circuit court granted Nicholson's motion to dismiss the plaintiffs’ deliberate intent claims, and the derivative spousal and parental loss of consortium claims, I respectfully dissent.
Based upon the foregoing, I concur, in part, and dissent, in part, to the majority opinion in this case.