West Virginia Fire & Cas. Co. v. Mathews

• Decision Date: 13 December 2000
• Docket Number: Record No. 27711.
• Citation: 543 S.E.2d 664,209 W.Va. 107
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA FIRE & CASUALTY COMPANY, Plaintiff Below, Appellee, v. David MATHEWS, Defendant Below, Appellant. Rodney Loftis, Defendant Below, Appellee.

543 S.E.2d 664

209 W.Va. 107

WEST VIRGINIA FIRE & CASUALTY COMPANY, Plaintiff Below, Appellee, v. David MATHEWS, Defendant Below, Appellant.

Rodney Loftis, Defendant Below, Appellee.

Record No. 27711.

Supreme Court of Appeals of West Virginia.

Submitted October 31, 2000.

Decided December 13, 2000.

Dissenting Opinion of Justice McGraw January 16, 2001.

Christopher J. Heavens, Denese Venza, Heavens Law Offices, Charleston, West Virginia, Attorneys for the Appellant.

Catherine D. Munster, James N. Riley, Tiffany R. Durst, McNeer, Highland, McMunn & Varner, Clarksburg, West Virginia, Attorneys for Appellee West Virginia Fire & Casualty Co.

Johnnie E. Brown, Timothy A. McNeely, Pullin, Knopf, Fowler & Flanagan, Charleston, West Virginia, Attorneys for Appellee Rodney Loftis.

Justice MCGRAW dissents and files a dissenting opinion.

PER CURIAM:

In this appeal from a declaratory judgment action, David Mathews, the insured, asks this Court to reverse two rulings by the Circuit Court of Kanawha County. One order denied Mr. Mathews' motion to alter or amend a judgment granting summary judgment to Mr. Mathews' insurer, West Virginia Fire and Casualty Company, based, in relevant part, upon the circuit court's conclusion that Mr. Mathews was without coverage for his asserted loss, the destruction of a house he owned. The second order dismissed his cross-claim against the contractor who had performed the demolition. We conclude that the circuit court correctly found that Mr. Mathews did not possess coverage for his asserted loss, and that, because Mr. Mathews failed to comply with the West Virginia Rules of Civil Procedure and was unduly dilatory in attempting to assert his cross-claim, the circuit court did not err in dismissing that claim.

I. FACTUAL AND PROCEDURAL HISTORY

The facts relevant to this appeal, which were essentially undisputed before the circuit court, are as follows. In March 1997, contractor Rodney Loftis (hereinafter "Loftis"), an appellee herein and defendant below, through his employees, demolished a house owned by David Mathews¹ (hereinafter "Mathews"), appellant herein and a defendant below. Loftis contends that he had been approached by a man purporting to be Mathews, who requested the destruction of the aforementioned house. The two men viewed the property and negotiated a fee for the demolition services to be performed. However, the man who met with Loftis was not Mathews. After Loftis' meeting with the imposter, his employees used a hydraulic excavator to raze the house, and the debris was then hauled away in a dump truck.

At the time the house was destroyed, it was insured under a policy of insurance issued by West Virginia Fire & Casualty Company, an appellee herein and plaintiff below (hereinafter "West Virginia Fire"). The insurance policy was a "Dwelling Fire" policy with extended coverage,² which is commonly known as a "named perils" policy.³

Following the destruction of the house, Mathews filed a claim with West Virginia Fire seeking coverage for his loss. On June 4, 1997, West Virginia Fire issued a declination letter indicating that there was no coverage for Mathews' claim as he had not purchased coverage for vandalism or malicious mischief. Thereafter, West Virginia Fire filed a declaratory judgment action, pursuant to the West Virginia Uniform Declaratory Judgments Act, W. Va.Code § 55-13-1 et seq., seeking judicial determination of the respective rights, liabilities, duties, responsibilities and legal relationships between itself and Mathews. Mathews subsequently filed his answer to the declaratory judgment complaint and asserted a counterclaim against West Virginia Fire for breach of contract, bad faith, and unfair claims settlement practices.

Sometime after filing its answer to Mathews' counterclaim, West Virginia Fire filed a motion for summary judgment. Mathews then filed his response to West Virginia Fire's summary judgment motion, and, in addition, filed a counter-motion for summary judgment. Thereafter, the circuit court entered an order titled "DECLARATORY JUDGMENT," which was apparently unrelated to the parties' motions for summary judgment.⁴ In that order, the court effectively denied both motions for summary judgment and ordered that the declaratory judgment action and the bad faith claims would proceed to trial simultaneously. Subsequently, however, the circuit court agreed to permit West Virginia Fire the opportunity to respond to Mathews' counter-motion for summary judgment.

In addition, on March 22, 1999, West Virginia Fire filed an amended complaint adding Loftis as a defendant and alleging, with regard to Loftis, that the loss of Mathews' property "resulted from the negligent or other wrongful conduct of the defendant, Loftis, in demolishing the dwelling owned by Mathews...." Thereafter, the circuit court entered an order "RECONSIDERING DECLARATORY JUDGMENT AND MOTION FOR SUMMARY JUDGMENT," on July 1, 1999. In this order, the circuit court granted summary judgment in favor of West Virginia Fire based, in relevant part, upon its finding that:

In the instant action, an imposter fraudulently pointed out the structure to be demolished by defendant Loftis, and the same structure was in fact demolished by defendant Loftis, who was under the impression that the owner had requested the demolition. Clearly, the direct cause of the loss was the malicious act by the alleged impersonator who directed that the structure be demolished.

This Court is of the opinion that based on the facts as plead by defendant Mathews there is no negligent act which could give rise to coverage under the insurance policy at issue in this matter. The act complained of by defendant Mathews and for which he seeks coverage under the insurance policy is clearly an act of vandalism or malicious behavior on the part of some third party. This factual scenario leads back to the insurance policy and possible coverage for such vandalism or malicious behavior.

Meanwhile, on June 25, 1999, Mathews filed an amended answer asserting, for the first time, a cross-claim against Loftis alleging that the destruction of his house was "the sole proximate causal result of the negligence, wrongful conduct, and/or fault of Rodney Loftis ... and/or his agents." Loftis responded with a motion to dismiss.

In response to the circuit court's order granting summary judgment to West Virginia Fire, Mathews filed a "MOTION TO ALTER OR AMEND JUDGMENT." Thereafter, the circuit court entered three separate orders on September 7, 1999, disposing of all the claims in this action. In the first order, the circuit court denied Mathews' motion to alter or amend the judgment, finding that Mathews "failed to bring forward any additional evidence or legal authority upon which the previous Order of this Court should be disturbed." The second order granted West Virginia Fire's motion for summary judgment on Mathews' counterclaim, finding that Mathews did not substantially prevail in the declaratory judgment action, and that there was "insufficient evidence to continue under the West Virginia Unfair Claims Settlement Practices [Act]." The final order granted Loftis' motion to dismiss on the grounds that Mathews delayed for some time in asserting his cross-claim against Loftis, and that Mathews had failed to seek leave of the court to amend his answer to include the cross-claim. It is from the circuit court's order denying Mathews' motion to alter or amend judgment, and the court's order granting Loftis' motion to dismiss, that Mathews now appeals.

II. STANDARD OF REVIEW

Mathews appeals two separate orders of the Circuit Court of Kanawha County. One order denied Mathews' motion, made pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, to alter or amend a judgment. We have previously explained:

"The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syllabus Point 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

Syl. pt. 1, Thompson v. Branches-Domestic Violence Shelter of Huntington, 207 W.Va. 479, 534 S.E.2d 33 (2000). The judgment underlying Mathews' motion to alter or amend granted summary judgment to West Virginia Fire. Thus, our appellate review is de novo. "`A circuit court's entry of summary judgment is reviewed de novo.` Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 1, Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999). Furthermore, in exercising this plenary review, we must bear in mind that:

"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

Syl. pt. 1, Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 506 S.E.2d 578 (1998).

The second order herein appealed by Mathews dismissed his cross-claim against Loftis. Our review of that order is also de novo.

"`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)." Syllabus point 1, State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W.Va. 221, 488 S.E.2d 901 (1997).

Syl. pt. 1, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999).

Having set forth the appropriate standards for our review, we now consider the issues presented on appeal.

III. DISCUSSION

A. Coverage

Mathews argues that the circuit court erred in granting summary judgment to West Virginia Fire based upon its...