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 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”).

and the circuit court granted this motion. The Bell Plaintiffs filed their First Amended Complaint on August 17, 2017.

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 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.”

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).

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.

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, 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 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.^[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; 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: 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.^[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.

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.^[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 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).

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 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.