Employers Fire Ins. Co. v. Biser

• Decision Date: 07 April 1978
• Docket Number: No. 13792,13792
• Parties: EMPLOYERS FIRE INSURANCE COMPANY, etc., et al. v. Lloyd C. BISER, dba L. C. Biser Painting and Decorating.
• Court: West Virginia Supreme Court

Page 708

242 S.E.2d 708

161 W.Va. 493

EMPLOYERS FIRE INSURANCE COMPANY, etc., et al. v. Lloyd C. BISER, dba L. C. Biser Painting and Decorating.

No. 13792.

Supreme Court of Appeals of West Virginia.

April 7, 1978.

Syllabus by the Court

1. It is not necessary to aver the capacity of a party to sue or be sued but if such issue is to be relied upon successfully the pleader shall do so by specific negative averment.

2. Unless the pleader raises the issue of capacity to sue by specific negative averment, it is reversible error to dismiss an action on the ground that the plaintiff failed to aver capacity to sue.

3. A trial court should permit a party to amend his pleading once as a matter of course at any time before a responsive pleading is served and, unless the amendment will prejudice the opposing party by not affording him an opportunity to meet the issue, the refusal to permit such amendment will constitute reversible error.

4. W.Va.Code, 1931, 55-2-18 is designed to remedy the harsh effect of the statute of limitations and is to be liberally construed; to that end, an action or suit commenced within due time but involuntarily dismissed for a cause that could not be plead in bar in a subsequent suit, may be pursued in a new action provided it is brought within one year of such involuntary dismissal.

Richard E. Hamstead, Morgantown, for appellants.

No appearance for appellee.

CAPLAN, Chief Justice:

This is an appeal from two orders of the Circuit Court of Monongalia County, wherein the court, in Civil Actions Nos. 8942 and 9034, dismissed said actions for reasons hereinafter noted.

Francis Ray Mitchell and Elvira Mitchell were, on September 1, 1973, the owners of a residence designated as 443 Washington Street in Morgantown, West Virginia. On that date their residence was, as charged in the complaints, substantially damaged by fire as the proximate result of the negligence of the defendant, Lloyd C. Biser, d/b/a L. C. Biser Painting and Decorating. The defendant had contracted to repaint and remodel the Mitchell residence. It was during the performance of that contract that the damage occurred.

Employers Fire Insurance Company and Travelers Insurance Company were co-insurers of the Mitchell property. These insurers paid the Mitchells in accordance with the terms of the policies and obtained subrogation rights. On three occasions, two of which are the subject of this appeal, the parties were unable to obtain a jury trial on the merits of the claim.

As noted in the petition for a writ of error, the Mitchells, subsequent to the receipt of payment from the insurers, instituted an action in their own names against the defendant, charging him with the negligent destruction of their home. On the ground that a local rule of court required that the action be brought in the names of the real parties in interest, the insurance companies, the action was allegedly (that action is not involved in this appeal) dismissed. It is further alleged in the petition that the Mitchells were refused the right to amend so as to make the insurance companies parties plaintiff in the complaint.

Subsequent to the above dismissal, another action (Civil Action No. 8942) was instituted against Biser, wherein the aforenamed insurance companies and the Mitchells were the plaintiffs. Therein it was alleged that the said insurance companies were the insurers of the Mitchell residence and that the residence was destroyed as the result of the negligence of the defendant. Alleging that they had paid the Mitchells the sum of $49,162.14 under the policies of insurance, they and the Mitchells sought a judgment in that amount from the defendant, Biser.

The defendant moved to dismiss the action on the ground that neither of the insurance companies designated in what legal capacity they brought the action; that is, they did not allege that they were individuals, partnerships or corporations. For that reason, said the defendant, the insurance companies did not have sufficient standing to bring and prosecute the action. The plaintiffs moved to amend their complaint under Rule 15(a), R.C.P. and also called to the attention of the court Rule 9(a) of said rules.

Prior to a ruling by the court on the motion to dismiss, the plaintiffs filed a new action (Civil Action No. 9034) charging the same negligence and liability against the defendant as were charged in the two prior actions. In the new complaint, filed September 17, 1975, more than two years after the subject damage, the plaintiffs sought to correct any deficiencies of the former complaint.

On October 29, 1975 the court entered an order dismissing Civil Action No. 8942, without prejudice, on the ground that plaintiff insurance companies failed to designate in what legal capacity they instituted that civil action. Civil Action No. 9034 was dismissed by an order of the court entered on November 19, 1975, the ground therefor being that the claim was barred by the statute of limitations. This appeal followed.

On the latter date a further order of dismissal, without prejudice, was entered in Civil Action No. 8942, the ground therefor being that the Mitchells were not the real parties in interest under Rule 17(a), R.C.P. That this was an erroneous order is clearly demonstrated by examining Rule 17(a), R.C.P. and applying it to this case. It provides: "Every action shall be prosecuted in the name of the real party in interest . . . in subrogation and similar cases, the court shall apply this subdivision as will promote justice." The subrogation receipt signed by the Mitchells revealed that they assigned all of their right, claim and interest for any recovery for the damages claimed to the...