State ex rel. Vedder v. Zakaib

• Decision Date: 16 May 2005
• Docket Number: No. 32266.,32266.
• Parties: STATE of West Virginia ex rel. Nancy VEDDER, Petitioner, v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County; and Nationwide Mutual Insurance Company, Respondents.
• Court: West Virginia Supreme Court

618 S.E.2d 537

STATE of West Virginia ex rel. Nancy VEDDER, Petitioner, v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County; and Nationwide Mutual Insurance Company, Respondents.

No. 32266.

Supreme Court of Appeals of West Virginia.

Submitted March 22, 2005.

Decided May 16, 2005.

Concurring Opinion of Justice Benjamin June 15, 2005.

COPYRIGHT MATERIAL OMITTED

Christopher J. Heavens, Esq., Heavens Law Offices, Charleston, for Nancy Vedder.

Michelle Roman Fox, Esq., Martin & Seibert, L.C., Charleston, for Angela Owens & Nationwide Mutual Insurance Company.

Andrew P. Workman, Esq., Law Offices of Dana F. Eddy, Charleston, for Nationwide Mutual Insurance Company.

MAYNARD, Justice.

Petitioner, Nancy Vedder, seeks a writ of mandamus from this Court to compel the Circuit Court of Kanawha County to grant Petitioner's motion to amend her complaint to add a cause of action for spoliation of evidence against Respondent Nationwide Mutual Insurance Company. For the reasons that follow, we deny the requested writ.

I. FACTS

On March 16, 2001, Petitioner Nancy Vedder was driving her husband's 1997 Toyota 4Runner down Horsepen Mountain in Mingo County when she was involved in a single-car roll-over automobile crash. Petitioner claims that she crashed after swerving to avoid an unidentified automobile traveling in the opposite direction and occupying part of Petitioner's lane. Petitioner or her husband notified their automobile insurer, Respondent Nationwide Mutual Insurance Company, of the accident and filed an uninsured motorist claim with Respondent.

In April 2001, Petitioner retained legal counsel who by letter dated April 19, 2001, requested that Respondent "store the vehicle, which Ms. Vedder was driving[,] until such time as I may have an expert examine the vehicle." Respondent replied to Petitioner's counsel and incorrectly indicated that no claim had yet been opened with Respondent in regards to Petitioner's accident, and that Respondent needed the correct policy number of the claim before any further action could be taken. Actually, Respondent already had set up a claim and made payments on behalf of Petitioner. Also, during approximately this same time period, an employee of Respondent determined that Petitioner's vehicle was totaled, and the Respondent sold the vehicle to a salvage yard in May 2001.

In January 2002, Petitioner's counsel contacted Respondent and requested information regarding the vehicle's location. By letter dated January 11, 2002, Respondent informed Petitioner's counsel that "the vehicle has been sold to a salvage yard." In addition, on January 17, 2002, Respondent provided Petitioner's counsel with salvage documents which identified the vehicle's purchaser. On March 14, 2003, Petitioner filed a complaint in the Circuit Court of Kanawha County against, among others, Respondent, Toyota Motor Sales, U.S.A., Inc., and Toyota Motors Distributors, Inc. (hereafter "Toyota"), in which she asserted claims for negligence and product liability, and Respondent Nationwide, in which she asserted claims for bad faith and unfair claim settlement practices.¹

On January 27, 2004, Toyota inspected the vehicle at the salvage yard accompanied by Petitioner's counsel. At that time, the vehicle was found to have been substantially altered since Petitioner's accident.² Consequently, Petitioner filed a motion on April 23, 2004, to amend her complaint to add a cause of action against Respondent for spoliation of evidence based on Hannah v. Heeter, 213 W.Va. 704, 584 S.E.2d 560 (2003), which this Court decided on June 30, 2003. The circuit court denied the motion to amend.

Petitioner thereafter filed a motion for relief, under Rule 60 of the West Virginia Rules of Civil Procedure, from the circuit court's order denying her motion to amend her complaint. After a hearing, the circuit court, by order of September 30, 2004, denied Petitioner's motion for relief.³ The circuit court found, first, that a spoliation claim would not relate back to the original complaint because the spoliation claim arises out of a different occurrence and transaction than those facts originally asserted against Nationwide. In addition, the circuit court concluded that the two-year statute of limitations on the spoliation claim had run because Petitioner's counsel was made aware in January 2002 that the vehicle had been sold for salvage, yet Petitioner did not file her motion to amend her complaint until April 23, 2004, two years and three months later. Finally, the circuit court determined that Petitioner was dilatory in asserting and/or investigating a potential spoliation claim because, even though Petitioner knew as early as January 2002 that the vehicle had been sold for salvage, she took no action either to inspect or store the vehicle.

Petitioner now presents this Court with her petition praying for a writ of mandamus to compel the circuit court to permit her to amend her complaint to assert a spoliation claim against Respondent Nationwide based on the alteration of the vehicle Petitioner was driving at the time of her accident.

II. STANDARD OF REVIEW

This Court has held that "[a] writ of mandamus will not issue unless three elements coexist — (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

III. DISCUSSION

Petitioner asserts that the circuit court erred by refusing to allow her to amend her complaint and assert a spoliation of evidence claim against Respondent. Rule 15(a) of the West Virginia Rules of Civil Procedure, which governs the amendment of pleadings, provides in relevant part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." This Court held in Syllabus Point 3 of Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973) that,

The purpose of the words "and leave [to amend] shall be freely given when justice so requires" in Rule 15(a) W.Va.R.Civ.P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue.

Petitioner asserts that this Court's liberal application of Rule 15(a) and the fact that Respondent has not shown that it would suffer prejudice as a result of Petitioner's proposed amendment compel the circuit court to grant her motion to amend.

One of the reasons stated by the circuit court for denying Petitioner's motion to amend was Petitioner's dilatoriness in asserting her potential spoliation claim. The circuit court explained:

The Court further finds that the Plaintiff was dilatory in asserting and/or investigating a possible spoliation of evidence claim against Nationwide. In this regard, the Court finds that although the Plaintiff knew as early as January 17, 2002 that the subject vehicle had been sold for salvage, the Plaintiff failed to take any action whatsoever to either inspect the vehicle or continue to store the vehicle, even though Nationwide, at this time in January, 2002, provided the Plaintiff with the exact location of said vehicle. The Court finds the Plaintiff knew or should have known that the vehicle was a vital piece of evidence for her claim against Toyota, but instead choose [sic] to ignore said evidence and failed to take any steps whatsoever to secure the vehicle or to allow the same to be inspected by Toyota. The Plaintiff sat on her duty to investigate her claim.

We agree with the circuit court's reasoning. This Court has recognized that,

The liberality allowed in the amendment of pleadings [pursuant to Rule 15(a) of the West Virginia Rules of Civil Procedure] does not entitle a party to be dilatory in asserting claims or to neglect his [or her] case for a long period of time. Lack of diligence is justification for a denial of leave to amend where the delay is unreasonable, and places the burden on the moving party to demonstrate some valid reason for his [or her] neglect and delay.

Mauck v. City of Martinsburg, 178 W.Va. 93, 95, 357 S.E.2d 775, 777 (1987) (citations omitted).⁴ See also Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook On West Virginia Rules of Civil Procedure § 15(a), at 334 (2002) (explaining that liberality allowed in amendment of pleadings does not entitle party to be dilatory in asserting claims or to neglect case for long period of time).

For example, in Consolidation Coal v. Boston Old Colony, 203 W.Va. 385, 508 S.E.2d 102 (1998), the appellant moved to amend its complaint to add claims for bad faith and unfair settlement practices approximately 16 months after this Court decided State ex rel. State Farm Fire v. Madden, 192 W.Va. 155, 451 S.E.2d 721 (1994) which held that, under appropriate circumstances, statutory bad faith claims may be joined in an original pleading or added to an original pleading against an insured. The circuit court in Boston Old Colony denied the motion to amend finding that the appellant had been dilatory in pursuing the claims. This Court agreed and found that the circuit court did not abuse its discretion in denying the appellant's motion to amend its complaint. Also, in McCoy v. CAMC, Inc., 210 W.Va. 324, 557 S.E.2d 378 (2001),⁵ this Court found the delay in filing a motion to amend a complaint unreasonable where the plaintiffs began asserting a new theory of their case as early...