IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
____________ FILED
September 12, 2013
No. 12-0203 released at 3:00 p.m.
____________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
DAN CAVA, STEVEN HALL,
SONNY NICHOLSON, AND
DAN’S CAR WORLD LLC, d/b/a
DAN CAVA’S TOYOTA WORLD,
Defendants and Third-Party Plaintiffs Below, Petitioners
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.,
Third-Party Defendant and Counter-Plaintiff Below, Respondent
_________________________________________________
Appeal from the Circuit Court of Marion County
The Honorable David R. Janes, Judge
Civil Action No. 09-C-110
AFFIRMED
_____________________________________________________
Submitted: September 4, 2013
Filed: September 12, 2013
Gregory H. Schillace, Esq. Don C.A. Parker, Esq.
Schillace Law Office Glen A. Murphy, Esq.
Clarksburg, West Virginia Charity K. Flynn, Esq.
Counsel for Petitioners Dan Cava, Spilman Thomas & Battle, PLLC
Steven Hall and Dan’s Car World Charleston, West Virginia
Counsel for Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. A trial court may, in exercising its discretion whether to allow a party
to file a third-party complaint pursuant to Rule 14(a) of the West Virginia Rules of Civil
Procedure, consider the following factors: (1) the potential prejudice to the original plaintiff
or to the third-party defendant; (2) whether a third-party complaint would delay or unduly
complicate the trial; (3) the timeliness of the motion; (4) judicial efficiency; and (5) whether
the proposed third-party complaint states a claim upon which relief can be granted.
2. A third-party complaint requesting a declaratory judgment that an
insurance policy provides coverage and that an insurance company has a duty to defend, may,
in the discretion of the trial court, be allowed.
JUSTICE KETCHUM:
The petitioners, who are the defendants/third-party plaintiffs below, Dan Cava,
Steven Hall, Sonny Nicholson, and Dan’s Car World, LLC, d/b/a Dan Cava’s Toyota World
(“petitioners”), appeal from an order entered January 3, 2012, by the Circuit Court of Marion
County. The circuit court granted summary judgment to the respondent, who is the third
party defendant below, National Union Fire Insurance Company of Pittsburgh, PA (“National
Union”). The circuit court concluded, inter alia, that the claims contained in the petitioners’
third-party complaint were not derivative of the claims asserted in the underlying lawsuit.
After thorough review, we affirm the circuit court’s summary judgment order.
I. FACTUAL & PROCEDURAL BACKGROUND
Johnnie Fluker, Jr. filed a lawsuit against the petitioners on April 3, 2009,
alleging that he was wrongfully terminated from his employment with the petitioners.1 The
petitioners reported Mr. Fluker’s lawsuit to their insurance carrier, National Union, four days
later, but National Union did not respond until November 11, 2009, when it sent a denial of
1
Mr. Fluker’s complaint alleged that (1) he was subjected to a racially hostile work
environment, (2) his employment had been wrongfully terminated following an altercation
that occurred in April 2007, (3) he was the victim of racial discrimination and retaliation in
connection with the April 2007 altercation, (4) the termination of his employment breached
his employment agreement with the petitioners, and (5) the petitioners failed to pay certain
moneys owed to him upon the termination of his employment.
1
coverage letter to the petitioners’ lawyer.2 Therefore, the petitioners defended the lawsuit
without the assistance of their insurance carrier, National Union.
On June 24, 2010, the petitioners filed a motion requesting leave to file a third-
party complaint against National Union. The petitioners’ proposed third-party complaint
against National Union set forth two tort causes of action: (1) common law “bad faith” and
(2) violations of the West Virginia Unfair Trade Practices Act (“UTPA”), arising from
National Union’s denial of coverage. The third-party complaint did not contain a count for
declaratory judgment requesting a finding that there was coverage under the National Union
policy or even a general request that the court find coverage and order National Union to
defend the lawsuit. In November 2010, the circuit court granted the petitioners’ motion to
file a third-party complaint. The petitioners filed their third-party complaint on December
3, 2010.
National Union filed an answer and counterclaim to the petitioners’ third-party
complaint on January 19, 2011. Seven months later, National Union filed a motion for
summary judgment, arguing that the petitioners’ third-party complaint alleging common law
bad faith and UTPA violations was tortious in nature and subject to the one-year statute of
limitation set forth in W.Va. Code § 55-2-12(c) [1959]. National Union argued that the third-
party complaint should be dismissed because it did not derive from Mr. Fluker’s underlying
2
National Union denied coverage on the ground that Mr. Fluker’s claim against the
petitioners was not made during the policy period.
2
wrongful termination claim and it was not filed within one year of the denial of coverage.
In support of this argument, National Union cited Syllabus Point 1 of Wilt v. State Auto. Mut.
Ins. Co., 203 W.Va. 165, 506 S.E.2d 608 (1998), in which this Court held “[c]laims
involving unfair settlement practices that arise under the Unfair Trade Practices Act, West
Virginia Code § 33-11-1 to -10 (1996 & Supp.1997) are governed by the one-year statute of
limitations set forth in West Virginia Code § 55-2-12(c) (1994).” Similarly, National Union
cited Syllabus Point 4 of Noland v. Virginia Ins. Reciprocal, 224 W.Va. 372, 686 S.E.2d 23
(2009), which states “[t]he one year statute of limitations contained in W.Va. Code § 55-2
12(c) (1959) (Repl. Vol. 2008) applies to a common law bad faith claim.”
National Union argued that the statute of limitations on the petitioners’
common law bad faith and UTPA claims began to run on November 11, 2009, the date it sent
the denial of coverage letter to the petitioners’ lawyer. Because the petitioners filed their
third-party complaint on December 3, 2010, more than one year after receiving the denial of
coverage letter, National Union asserted that the complaint was untimely filed.
By contrast, the petitioners stated that their third-party complaint was
connected to Mr. Fluker’s wrongful termination claim and was timely filed pursuant to W.Va.
Code § 55-2-21 [1981], which states, in relevant part,
After a civil action is commenced, the running of any statute of
limitation shall be tolled for, and only for, the pendency of that
civil action as to any claim which has been or may be asserted
therein by . . . . third-party complaint[.]
3
Because the circuit court granted their motion to file a third-party complaint and because the
petitioners subsequently filed the complaint during the pendency of the underlying wrongful
termination action, the petitioners argued that the statute of limitation was tolled based on
the plain language contained in W.Va. Code § 55-2-21. In support of their position, the
petitioners cited J.A. Street & Associates, Inc. v. Thundering Herd Development, LLC, 228
W.Va. 695, 724 S.E.2d 299 (2011), in which this Court considered whether an engineering
firm’s cross-claims filed against a contractor were time-barred pursuant to W.Va. Code § 55
2-21. The Court held in Syllabus Point 8 of J.A. Street that “[p]ursuant to W.Va. Code § 55
2-21 (1981) (Repl.Vol.2008), during the pendency of a civil action, the statute of limitation
shall be tolled as to any cross-claim that has been or may be asserted therein.” The
Petitioners’ argued that the circuit court should apply Syllabus Point 8 of J.A. Street to its
third-party complaint and conclude that it was timely filed based on the non-discretionary,
mandatory language contained in W.Va. Code § 55-2-21.
The circuit court rejected the petitioners’ argument and granted National
Union’s motion for summary judgment. The circuit court made the following findings in its
summary judgment order:
17. The Court finds and concludes as a matter of law that
the Third-Party Complaint is an independent action because the
Third-Party Complaint against National Union is not derivative
of the claims asserted in Plaintiff Johnnie Fluker, Jr.’s original
Complaint.
18. The Court finds and concludes as a matter of law that
West Virginia Code § 55-2-21 does not apply to toll the statute
4
of limitations applicable to Third-Party Plaintiffs’ bad faith
claims against National Union.
19. The Court finds and concludes as a matter of law that
the statute of limitations on the bad faith claims expired on
November 11, 2010 and that those claims are therefore barred.
The circuit court reversed its previous ruling and held that the third-party complaint was not
proper because it was not derivative of the original wrongful termination claim. The circuit
court concluded that there was no logical relationship between the wrongful termination
claim and the third-party complaint filed by the petitioners that only alleged the torts of
common law bad faith and UTPA violations arising from National Union’s denial of
coverage. After entry of the circuit court’s summary judgment order, the petitioners filed the
present appeal.
II. STANDARD OF REVIEW
This Court has long held that “[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). In conducting our de novo review, we apply the same standard for granting summary
judgment that is applied by the circuit court: “A motion for summary judgment should be
granted only where 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.” Syllabus Point 3,
Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
Moreover, “[s]ummary judgement is appropriate where the record taken as a whole could not
5
lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing on an essential element of the case that it has
the burden to prove.” Syllabus Point 4, Painter, supra.
Guided by the foregoing, we proceed to consider the arguments of the parties.
III. ANALYSIS
On appeal, the petitioners argue that the circuit court erred in its ruling that
W.Va. Code § 55-2-21 does not apply to toll the statute of limitations. Conversely, National
Union argues that the bad faith and UTPA claims contained in the third-party complaint are
not derivative of the wrongful termination claim and that the circuit court correctly held that
these are independent tort causes of action subject to the one-year statute of limitation
contained in W.Va. Code § 55-2-12(c).
Our review of this matter starts with Rule 14(a) of the West Virginia Rules of
Civil Procedure.3 Rule 14(a) states that at any time after commencement of an action a
3
The full text of Rule 14(a) states
[a]t any time after commencement of the action a defending
party, as a third-party plaintiff, may cause a summons and
complaint to be served upon a person not a party to the action
who is or may be liable to the third-party plaintiff for all or part
of the plaintiff’s claim against the third-party plaintiff. The
third-party plaintiff need not obtain leave to make the service if
the third-party plaintiff files the third-party complaint not later
than 10 days after serving the original answer. Otherwise the
third-party plaintiff must obtain leave on motion upon notice to
(continued...)
6
defending party, as a third-party plaintiff, may serve a summons and complaint upon a person
that is not a party to the action who is or may be liable to the third-party plaintiff for all or
part of the plaintiff’s “claim” against the third-party plaintiff. “The purpose of Rule 14(a),
West Virginia Rules of Civil Procedure, permitting impleader of a third party defendant by
the original defendant, is to eliminate circuity of actions when the rights of all three parties
center upon a common factual situation.” Syllabus Point 1, Bluefield Sash & Door Co., Inc.
v. Corte Const. Co., 158 W.Va. 802, 216 S.E.2d 216 (1975), overruled on other grounds,
Haynes v. City of Nitro, 161 W.Va. 230, 240 S.E.2d 544 (1977).
3
(...continued)
all parties to the action. The person served with the summons
and third-party complaint, hereinafter called the third-party
defendant, shall make any defenses to the third-party defendant
plaintiff’s claim as provided in Rule 12 and any counterclaims
against the third-party plaintiff and cross-claims against other
third-party defendants as provided in Rule 13. The third-party
defendant may assert against the plaintiff any defenses which
the third-party plaintiff has to the plaintiff’s claim. The third-
party defendant may also assert any claim against the plaintiff
arising out of the transaction or occurrence that is the subject
matter of the plaintiff’s claim against the third-party plaintiff.
The plaintiff may assert any claim against the third-party
defendant arising out of the transaction or occurrence that is the
subject matter of the plaintiff’s claim against the third-party
plaintiff, and the third-party defendant thereupon shall assert any
defenses as provided in Rule 12 and any counterclaims and
cross-claims as provided in Rule 13. Any party may move to
strike the third-party claim, or for its severance or separate trial.
A third-party defendant may proceed under this rule against any
person not a party to the action who is or may be liable to the
third party for all or part of the claim made in the action against
the third-party defendant.
7
This Court discussed the type of “claim” that meets the requirements of Rule
14(a) in Magnet Bank, F.S.B. v. Barnette, 187 W.Va. 435, 436-37, 419 S.E.2d 696, 697-98
(1992), stating:
We have not had occasion to discuss in any detail the
type of claim which the defendant must assert to meet the
requirement of Rule 14(a) that the third-party defendant “is or
may be liable to him for all or part of the plaintiff’s claim[.]”
The federal courts have considered this question and in 3 James
Wm. Moore, et al., Moore’s Federal Practice ¶ 14.07(1) at 14
45-46 (1991), this summary is given:
“Thus, ‘claim’ is defined transactionally, and has nothing
to do with the legal theory upon which a party relies. The fact
that the third-party complaint may be based upon a different
legal theory from the underlying case is irrelevant; the question
is whether the assertion of liability against the third-party
defendant is derivative of the same transaction, occurrence or
nucleus of operative fact as the underlying claim by the plaintiff.
If the transactional relatedness is present, impleader is proper
even if the third-party complaint will be tried to the court while
the underlying action will be tried to a jury. In sum, it is clear
that the remedial purpose of Rule 14 requires that it be
interpreted liberally to promote its underlying purposes.”
Since the petitioners sought to file the third-party complaint more than ten days
after they filed their original answer, Rule 14(a) required that they (1) file a motion seeking
the circuit court’s permission to file the third-party complaint and (2) serve the motion on the
plaintiff, Johnnie Fluker, Jr. Rule 14(a) did not require that the proposed third-party
defendant, National Union, be notified or attend the hearing on the motion.
8
The petitioners filed their motion to file the third-party complaint against
National Union and served only the plaintiff.4 The circuit court conducted a hearing on the
motion and had to determine whether to allow the petitioners to file their third-party
complaint. “Impleader under Rule 14(a) is permissive and not mandatory.” Franklin D.
Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia
Rules of Civil Procedure, § 14(a) at 443 (4th Ed. 2012). “The provisions for impleader under
Rule 14(a) . . . are within the sound discretion of the trial court.” Syllabus Point 2, in part,
State ex rel. Leung v. Sanders, 213 W.Va. 569, 584 S.E.2d 203 (2003).
In exercising its discretion whether to grant a motion for impleader, there are
a number of factors a circuit court may consider. “[W]here the third party procedure may
create confusion or cause complicated litigation involving separate and distinct issues the
trial court does not abuse its discretion in refusing to allow impleader under third party
practice.” Syllabus Point 5, in part, Bluefield Sash & Door Co., supra. Further, impleader
“should not be allowed if there is a possibility of prejudice to the original plaintiff or the third
party defendant.” Syllabus Point 3, in part, Id.
In Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va. 585, 396 S.E.2d 766
(1990), we noted other issues a circuit court could consider in deciding whether to grant
impleader. The Court in Shamblin upheld the circuit court’s denial of an impleader motion
4
The plaintiff did not oppose the filing of the third-party complaint against National
Union.
9
based on the following: (1) the defendant’s unexplained delay in filing the motion shortly
before the trial which would have prejudiced the plaintiff had it been granted, (2) the strong
possibility of confusion of the issues because the third-party complaint was based on legal
malpractice and the underlying action was a bad faith insurance claim, and (3) the defendant
was not precluded from filing a separate action for indemnification and/or contribution.
Courts outside of our jurisdiction have also set forth equities to consider when
presented with a request to file a third-party complaint. In Murphy v. Keller Industries, Inc.,
201 F.R.D. 317 (S.D.N.Y. 2001), the court listed the following factors it considered in
determining whether to grant a motion for impleader: (1) whether the movant deliberately
delayed or was derelict in filing the motion, (2) whether impleading would delay or unduly
complicate the trial, (3) whether impleading would prejudice the third-party defendant, and
(4) whether the proposed third-party complaint states a claim upon which relief can be
granted. Similarly, in NuVasive, Inc. v. Renaissance Surgical Center North, L.P., 853
F.Supp.2d 654, 659 (S.D.Tex. 2012), the court stated, “The factors applied when deciding
whether to allow a third-party complaint include prejudice placed on the other parties, undue
delay by the third-party plaintiff, lack of substance to the third-party claim, and advancing
the purposes of Rule 14 (such as avoiding duplicative suits on closely related issues).”
It has also been stated that “a timely application for impleader should be
granted except when it will delay or disadvantage the existing action or the third-party claim
obviously lacks merit.” 6 Charles Alan Wright et al., Federal Practice and Procedure § 1443
10
at 352-53 (3d ed. 2010). Federal Practice and Procedure notes that “[s]ufficient prejudice
to warrant denial of impleader may be present when bringing in a third party will introduce
unrelated issues and unduly complicate the original suit.” Id. at 357. Federal Practice and
Procedure further states that a court applying the rule should “endeavor to effectuate the
purpose of Rule 14, which means that impleader should be allowed if it will avoid circuity
of action and eliminate duplication of suits based on closely related matters.” Id. at 351-52.
Based on all of the foregoing, we hold that a trial court may, in exercising its
discretion whether to allow a party to file a third-party complaint pursuant to Rule 14(a) of
the West Virginia Rules of Civil Procedure, consider the following factors: (1) the potential
prejudice to the original plaintiff or to the third-party defendant; (2) whether a third-party
complaint would delay or unduly complicate the trial; (3) the timeliness of the motion; (4)
judicial efficiency; and (5) whether the proposed third-party complaint states a claim upon
which relief can be granted.
By order entered November 12, 2010, the circuit court granted the petitioners’
motion to file the third-party complaint. Since the motion was unopposed, the circuit court’s
order granting the petitioners’ motion did not include any analysis of whether the bad faith
and UTPA claims contained in the third-party complaint were derivative of the original
wrongful termination claim. It simply granted the motion to file the third-party complaint.
Based on this initial ruling, the statute of limitation that applies was contained in W.Va. Code
§ 55-2-21, which states that any statute of limitation for a claim contained in a third-party
11
complaint “shall be tolled” during the pendency of the underlying civil action. Because their
third-party complaint was filed during the pendency of the underlying wrongful termination
claim, the petitioners’ third-party complaint was timely filed based on the plain language
contained in W.Va. Code § 55-2-21.
Later in its summary judgment motion, National Union asserted that the
petitioners’ third-party complaint was improper because the alleged bad faith and UTPA
claims were tortious in nature, were not derivative of the original wrongful termination claim
and should have been brought in a separate lawsuit rather than in a third-party complaint.
National Union argued that because these claims were actually independent causes of action
and were filed more than one year after the claims arose, the petitioners’ lawsuit was not
timely filed and was properly dismissed.
The circuit court analyzed National Union’s argument that the bad faith and
UTPA claims were not derivative of the original wrongful termination claim pursuant to
Syllabus Point 9 of J.A. Street, supra, which states:
To determine whether a cross-claim arises out of the
same transaction or occurrence as the original action, there are
three nonexclusive factors to be considered: (1) the identity of
the facts and law between the initial claim and the cross-claim;
(2) the mutuality of proof and whether substantially the same
evidence will support or refute both the complaint and the cross-
claim; and (3) the logical relationship between the original claim
and the cross-claim.
After considering these three factors, the circuit court concluded that the petitioners’ bad
faith and UTPA claims were not derivative of the original wrongful termination claim and
12
therefore should not have been brought in a third-party complaint. The circuit court
essentially reversed its earlier ruling granting the petitioners’ motion to file a third-party
complaint. Based on this ruling, the circuit court concluded that both the bad faith and
UTPA claims were subject to the one-year statute of limitation contained in W.Va. Code §
55-2-12(c) and were not timely filed.
We do not find that the circuit court abused its discretion in dismissing the
third-party complaint. The petitioners’ tort action against National Union is not derivative
of the original wrongful termination claim and should have been brought in a separate
lawsuit. We note, however, that if the third-party complaint had requested that the circuit
court find that there was coverage under the policy and/or find that National Union had a
duty to defend the petitioners in the underlying wrongful termination claim, the petitioners
would have had a strong argument that the third-party complaint was proper. Federal courts
have found that impleader is proper when a third-party complainant seeks a declaratory
judgment against an insurer after an insurance company has refused to defend. “When the
insurer disclaims liability and refuses to defend on behalf of the insured, the federal courts
uniformly recognize the propriety of impleader.” Federal Practice and Procedure § 1449 at
461-62. Federal Practice and Procedure notes that a few federal district courts have refused
to allow impleader under these circumstances out of concern that it could cause delay or
confusion. After noting these limited exceptions to the general rule allowing a defendant to
implead his insurer, Federal Practice and Procedure concludes that
13
[r]ather than refusing impleader, however, the better approach
might be to allow impleader as a matter of course in this
situation and then, with an eye toward effective judicial
administration and fairness to the parties, to determine later
whether a severance or separate trials should be ordered as is
expressly authorized by Rule 14(a)(4).
Id. at 463.
This “better approach” of allowing impleader as a matter of course when an
insurer disclaims liability and refuses to defend on behalf of the inured, is consistent with this
Court’s holding in Christian v. Sizemore, 181 W.Va. 628, 383 S.E.2d 810 (1989). In
Christian, a plaintiff brought a personal injury action following an automobile accident and
filed a motion to amend her complaint to add a declaratory judgment count against the
defendants’ insurer. In Syllabus Point 4 of Christian, the Court held that “[a] declaratory
judgment claim with regard to the defendant’s insurance coverage may be brought in the
original personal injury suit rather than by way of a separate action.” The Court in Christian
noted that “we see no particular procedural impediment in permitting the declaratory
judgment claim with regard to the defendant’s insurance coverage to be brought in the
original personal injury suit rather than by way of separate action.” Christian, 181 W.Va. at
633, 383 S.E.2d at 815.
In addition, allowing impleader as a matter of course when an insurer refuses
to defend on behalf of the insured serves a number of purposes. First, it eliminates circuity
of actions. Next, it would prevent a potential time lag between a judgment against a
defendant in one action and a judgment in the defendant’s favor against the insurer in a
14
subsequent action. Finally, it would require the insurer to be a party to the case and be
apprised of the evidence that develops during the lawsuit, thus allowing the insurer to
evaluate its position in light of all of the facts.
While the federal courts generally allow a defendant to bring a third-party
complaint as a matter of course when an insurance company denies coverage and refuses to
defend, our cases identify several factors that may weigh against the allowance of a third-
party complaint. See Shamblin, supra. It remains within the sound discretion of the trial
court, after weighing all of the relevant factors, whether to allow a defendant to file a third-
party complaint. We therefore hold that a third-party complaint requesting a declaratory
judgment that an insurance policy provides coverage and that an insurance company has a
duty to defend, may, in the discretion of the trial court, be allowed.
Although the petitioners’ third-party complaint did not seek insurance coverage
and only sought tort damages, the motion to file the third-party complaint was filed within
one year of the denial of coverage. The Legislature has enacted a savings statute providing
that a lawsuit in which the initial pleading was timely filed that is subsequently dismissed for
any reason not based upon the merits of the case, may be re-filed within one year. W.Va.
Code § 55-2-18(a) [2001], in part, states
[f]or a period of one year from the date of an order
dismissing an action . . . . a party may re-file an action if the
initial pleading was timely filed and (i) the action was
involuntarily dismissed for any reason not based upon the merits
of the action[.]
15
W.Va. Code § 55-2-18(a) is a highly remedial statute that should be liberally construed to
allow a party who has filed a timely action to have their case decided on the merits. See
Employers Fire Ins. Co. v. Biser, 161 W.Va. 493, 242 S.E.2d 708 (1978). Even when there
is a dismissal of a suit because of a misjoinder, the plaintiff has one year from the date of the
dismissal to file a new lawsuit because he/she is protected from the statute of limitations by
W.Va. Code § 55-2-18(a). Siever v. Klots Throwing Co. of West Virginia, 101 W.Va. 457,
132 S.E. 882 (1926).
The petitioners’ third-party complaint was timely filed based on the circuit
court’s initial ruling and was not later dismissed based upon the merits of the action.5 We
therefore conclude that pursuant to W.Va. Code § 55-2-18(a), the petitioners may file a new,
independent lawsuit containing their bad faith and UTPA claims against National Union.6
5
The petitioners sought leave to file their bad faith and UTPA claims well within the
one year statute of limitations that governed these claims. For reasons not apparent in the
record, there was a five month delay before the court ruled on the petitioners’ motion to file
the third-party complaint. The court’s ruling was favorable to the petitioners, and thus they
reasonably believed they could file the third-party complaint at any time during the pendency
of the underlying wrongful termination lawsuit – which they did, approximately one month
later. The respondents contend, in essence, that when the court subsequently reversed itself,
a trap door opened and the petitioners’ claims died. We disagree. We do not believe that a
litigant should lose the right to bring a cause of action solely as a result of his or her good
faith reliance on a court’s ruling, notwithstanding that the ruling is later reconsidered and
reversed.
6
We do not understand why the petitioners did not file a declaratory judgment action
requesting that the trial court determine whether there was insurance coverage. Generally,
a court must find that there is coverage before there can be common law bad faith and UTPA
claims against an insurance company.
16
In calculating the time period the petitioners have to file this independent
action based on W.Va. Code § 55-2-18(a), the period during the pendency of this appeal
should not be computed in applying the statute of limitations. See Atkinson v. Winters, 47
W.Va. 226, 34 S.E. 834 (1899).
IV. CONCLUSION
Based on all of the above, we affirm the circuit court’s January 3, 2012, order
granting summary judgment in favor of National Union. However, pursuant to W.Va. Code
§ 55-2-18(a), the petitioners may file an independent lawsuit against National Union.
Affirmed.
17