Southern Environmental, Inc. v. Bell, 111920 WVSC, 18-1124

Docket Nº:18-1124, 18-1139, 18-1140
Opinion Judge:ARMSTEAD, CHIEF JUSTICE:
Party Name: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
Attorney: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 Hunt...
Judge Panel:WORKMAN, J., dissenting: Hutchison, J., concurring, in part, and dissenting, in part:
Case Date:November 19, 2020
Court:Supreme Court of Appeals of West Virginia

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

Nos. 18-1124, 18-1139, 18-1140

Supreme Court of Appeals of West Virginia

November 19, 2020

Submitted: October 6, 2020

Appeal from the Circuit Court of Monongalia County The Honorable Russell M. Clawges, Jr., Judge Civil Action No. 17-C-193

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

SYLLABUS BY THE COURT

1. "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

2. "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." Syllabus Point 7, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994).

3. "[T]his Court has a responsibility sua sponte to examine the basis of its own jurisdiction." Syllabus Point 1, in part, James M. B. and Lawrence E.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

4. "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." Syllabus Point 2, State ex re. Arrow Concrete Co. v. Hill, 194 W.Va. 239, 460 S.E.2d 54 (1995).

OPINION

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 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").

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.2 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.

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...

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