Glover v. Narick

• Decision Date: 13 November 1990
• Docket Number: No. 19717,19717
• Citation: 184 W.Va. 381,400 S.E.2d 816
• Court: West Virginia Supreme Court
• Parties: Debra Lyn GLOVER, Individually, and Debra Lyn Glover, Next Friend of Darren Glover, a Minor Child v. Honorable Steven D. NARICK, Judge of the Circuit Court of Wetzel County, James M. Simpkins, and Dolly J. Beagle.

Page 816

400 S.E.2d 816

184 W.Va. 381

Debra Lyn GLOVER, Individually, and Debra Lyn Glover, Next Friend of Darren Glover, a Minor Child v. Honorable Steven D. NARICK, Judge of the Circuit Court of Wetzel County, James M. Simpkins, and Dolly J. Beagle.

No. 19717.

Supreme Court of Appeals of West Virginia.

Nov. 13, 1990.

Dissenting Opinion of

Chief Justice Neely

Jan. 10, 1991.

Syllabus by the Court

1. "Rule 19(a) of the West Virginia Rules of Civil Procedure requires two general inquiries for joinder of a person who is subject to service of process. First, is his presence necessary to give complete relief to those already parties? Second, does he have a claim that, if he is not joined, will be impaired or will his nonjoinder result in subjecting the existing parties to a substantial risk of multiple or inconsistent obligations? If the absent person meets the foregoing test, his joinder is required. However, in the event that the absent person cannot be joined, the suit should be dismissed only if the court concludes that the 19(b) criteria cannot be met." Syllabus, Wachter v. Dostert, 172 W.Va. 93, 303 S.E.2d 731 (1983).

2. It is a misapplication of Rule 19(a) of the West Virginia Rules of Civil Procedure to add parties who are neither necessary nor indispensable, who are not essential for just adjudication, and who have a separate cause of action entirely.

3. A personal injury to a minor child gives rise to two causes of action: (1) an action on behalf of the child for pain and suffering, permanent injury, and impairment of earning capacity after majority; and (2) an action by the parent for consequential damages, including the loss of services and earnings during minority and expenses incurred for necessary medical treatment for the child's injuries.

4. Although it is based upon and arises out of the negligence causing injury to the child, the parent's right of action for consequential damages is separate and distinct from the child's right of action for his or her injuries.

5. Rule 19(a)(1) of the West Virginia Rules of Civil Procedure requires joinder where, in the absence of the person whose joinder is sought, complete relief cannot be accorded among those already parties. This provision is directed at the perspective of those who are already parties to the litigation to determine whether complete relief can be accorded among them.

6. "A fundamental due process point relating to the utilization of collateral estoppel is that any person against whom collateral estoppel is asserted must have had a prior opportunity to have litigated his claim." Syllabus Point 8, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

7. A judgment against a parent in an action for loss of a minor's services does not preclude a subsequent action by or on behalf of the minor to recover for the minor's personal injuries.

8. "Mere involvement in a common accident, without more, does not create a privity relationship among the participants for purposes of collateral estoppel." Syllabus Point 3, Galanos v. National Steel Corp., 178 W.Va. 193, 358 S.E.2d 452 (1987).

9. Rule 19(a)(2)(ii) of the West Virginia Rules of Civil Procedure is designed to require joinder of a nonparty where the failure to join would expose the defendant to the possibility of double or multiple recovery on the same claim. On the other hand, where nonjoinder of an absentee might result in multiple litigation on separate claims, but not multiple recovery on the same claim, Rule 19(a)(2)(ii) does not require joinder.

10. The mere fact that nonjoinder of one not a party to a pending lawsuit will expose a party to the risk of further litigation, which may result in inconsistent verdicts, will not necessarily require joinder of the nonparty under Rule 19(a)(2)(ii) of the West Virginia Rules of Civil Procedure.

11. If none of the other criteria of Rule 19(a) of the West Virginia Rules of Civil Procedure have been met, judicial economy alone is not sufficient to require compulsory joinder.

12. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

Terence M. Gurley, Patrick S. Casey, Schrader, Stamp, Byrd, Byrum & Companion, Wheeling, for Debra Lyn Glover.

Daniel A. Ruley, Jr., Diana Everett, Parkersburg, for James M. Simpkins and Dolly J. Beagle.

MILLER, Justice:

In this original proceeding in prohibition, we are asked to determine whether the Circuit Court of Wetzel County exceeded its legitimate powers in ordering petitioner Darren Glover, an infant, to be joined as a party in a civil action brought by his mother, petitioner Debra Lyn Glover. We grant the writ of prohibition.

The petitioners were injured on April 25, 1987, as the result of an automobile accident in Wetzel County in which a vehicle owned by Dolly J. Beagle and driven by her son, James M. Simpkins, collided with the Glover car, driven by Debra and in which Darren was a passenger. On April 24, 1989, Debra Glover filed suit in the Circuit Court of Wetzel County against Mr. Simpkins and Mrs. Beagle to recover damages for the personal injuries and property damage she suffered as a result of the accident. Debra also sought to recover for the medical expenses she incurred in the treatment of Darren's injuries and for her loss of his services and consortium. No action was brought on behalf of Darren, who was eleven years old at the time of the accident.

On January 7, 1990, the defendants below filed a motion to compel the addition of Darren as a party to his mother's civil action. After hearing the arguments of the parties, the circuit court, by order dated April 11, 1990, granted the motion. The petitioners subsequently instituted this proceeding in prohibition to prevent Darren's joinder.

The key question in this proceeding is whether Darren is subject to compulsory joinder under Rule 19(a) of the West Virginia Rules of Civil Procedure. ¹ This rule, which is substantially similar to Rule 19(a) of the Federal Rules of Civil Procedure, premises the decision to require or excuse joinder of an absent person on the desirability of doing so under the facts and circumstances of each particular case. ²

We have recognized a two-pronged test for determining the applicability of Rule 19. In Wachter v. Dostert, 172 W.Va. 93, 96, 303 S.E.2d 731, 734 -35 (1983), we quoted the following language from Eldredge v. Carpenters 46 Northern California Counties Joint Apprenticeship & Training Committee, 662 F.2d 534, 537 (9th Cir.1981), cert. denied, 459 U.S. 917, 103 S.Ct. 231, 74 L.Ed.2d 183 (1982):

" 'Rule 19 requires two separate inquiries. First, are there persons who should be joined, either because their own interests or the interests of the parties might be harmed by their absence? Such persons, referred to as "necessary parties," must be joined if feasible. Fed.R.Civ.P. 19(a). Second, if parties determined to be necessary under rule 19(a) cannot be joined, should the action in "equity and good conscience" be dismissed? Only if the court determines that the action should be dismissed is the absent party labelled "indispensable." Fed.R.Civ.P. 19(b); see English v. Seaboard Coast Line Railroad, 465 F.2d 43, 48 (5th Cir.1972).' "

We are concerned only with the first prong of this inquiry. ³

In the Syllabus of Wachter v. Dostert, supra, we summarized the guidelines set forth in Rule 19(a) for determining whether a nonparty is a person whose joinder should be compelled:

"Rule 19(a) of the West Virginia Rules of Civil Procedure requires two general inquiries for joinder of a person who is subject to service of process. First, is his presence necessary to give complete relief to those already parties? Second, does he have a claim that, if he is not joined, will be impaired or will his nonjoinder result in subjecting the existing parties to a substantial risk of multiple or inconsistent obligations? If the absent person meets the foregoing test, his joinder is required. However, in the event that the absent person cannot be joined, the suit should be dismissed only if the court concludes that the 19(b) criteria cannot be met."

Accord Capitol Fuels, Inc. v. Clark Equip. Co., 176 W.Va. 277, 281, 342 S.E.2d 245, 248 (1986)

It has been stated that under the federal rules, "the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218, 227 (1966). (Footnote omitted). It has also been stated, however:

"There is no precise formula for determining whether a particular nonparty should be joined under Rule 19(a). Underlying policies include plaintiff's right to decide whom he shall sue, avoiding multiple litigation, providing the parties with complete and effective relief in a single action, protecting the absentee, and fairness to the other party. The determination is heavily influenced by the facts and circumstances of each case." Bakia v. County of Los Angeles, 687 F.2d 299, 301 (9th Cir.1982).

In Bakia, the Ninth Circuit went on to state that "[i]t is a misapplication of Rule 19(a) to add parties who are neither necessary nor indispensable, who are not essential for just adjudication...