Christopher J. Heavens
Catherine D. Munster
Denese Venza James N. Riley
Heavens Law Offices Tiffany R. Durst
Charleston, West Virginia McNeer, Highland, McMunn & Varner
Attorneys for the Appellant Clarksburg, West Virginia
Attorneys for Appellee
West Virginia Fire & Casualty Co.
Johnnie E. Brown
Timothy A. McNeely
Pullin, Knopf, Fowler & Flanagan
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered Per Curiam.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
2. 'Language in an insurance policy should be given its plain, ordinary
meaning.' Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345
S.E.2d 33 (1986). Syllabus point 1, Murray v. State Farm Fire & Casualty Co., 203
W. Va. 477, 509 S.E.2d 1 (1998).
In this appeal from a declaratory judgement action, David Mathews, the
insured, asks this Court to reverse two rulings by the Circuit Court of Kanawha County.
One order denied Mr. Mathews' motion to alter or amend a judgment granting summary
judgment to Mr. Mathews' insurer, West Virginia Fire and Casualty Company, based, in
relevant part, upon the circuit court's conclusion that Mr. Mathews was without coverage
for his asserted loss, the destruction of a house he owned. The second order dismissed his
cross-claim against the contractor who had performed the demolition. We conclude that
the circuit court correctly found that Mr. Mathews did not possess coverage for his
asserted loss, and that, because Mr. Mathews failed to comply with the West Virginia
Rules of Civil Procedure and was unduly dilatory in attempting to assert his cross-claim,
the circuit court did not err in dismissing that claim.
At the time the house was destroyed, it was insured under a policy of insurance issued by West Virginia Fire & Casualty Company, an appellee herein and plaintiff below (hereinafter West Virginia Fire). The insurance policy was a Dwelling Fire policy with extended coverage,See footnote 2 2 which is commonly known as a named perils
policy.See footnote 3
Following the destruction of the house, Mathews filed a claim with West
Virginia Fire seeking coverage for his loss. On June 4, 1997, West Virginia Fire issued
a declination letter indicating that there was no coverage for Mathews' claim as he had not
purchased coverage for vandalism or malicious mischief. Thereafter, West Virginia Fire
filed a declaratory judgment action, pursuant to the West Virginia Uniform Declaratory
Judgments Act, W. Va. Code § 55-13-1 et seq., seeking judicial determination of the
respective rights, liabilities, duties, responsibilities and legal relationships between itself
and Mathews. Mathews subsequently filed his answer to the declaratory judgment
complaint and asserted a counterclaim against West Virginia Fire for breach of contract,
bad faith, and unfair claims settlement practices.
Sometime after filing its answer to Mathews' counterclaim, West Virginia Fire filed a motion for summary judgment. Mathews then filed his response to West Virginia Fire's summary judgment motion, and, in addition, filed a counter-motion for summary judgment. Thereafter, the circuit court entered an order titled DECLARATORY JUDGMENT, which was apparently unrelated to the parties' motions for summary judgment.See footnote 4 4 In that order, the court effectively denied both motions for summary judgment and ordered that the declaratory judgment action and the bad faith claims would proceed to trial simultaneously. Subsequently, however, the circuit court agreed to permit West Virginia Fire the opportunity to respond to Mathews' counter- motion for summary judgment.
In addition, on March 22, 1999, West Virginia Fire filed an amended complaint adding Loftis as a defendant and alleging, with regard to Loftis, that the loss of Mathews' property resulted from the negligent or other wrongful conduct of the defendant, Loftis, in demolishing the dwelling owned by Mathews . . . . Thereafter, the circuit court entered an order RECONSIDERING DECLARATORY JUDGMENT AND MOTION FOR SUMMARY JUDGMENT, on July 1, 1999. In this order, the circuit court granted summary judgment in favor of West Virginia Fire based, in relevant part, upon its finding that:
In the instant action, an imposter fraudulently pointed out the structure to be demolished by defendant Loftis, and the same structure was in fact demolished by defendant Loftis, who was under the impression that the owner had requested the demolition. Clearly, the direct cause of the loss was the malicious act by the alleged impersonator who directed that the structure be demolished.
This Court is of the opinion that based on the facts as plead by defendant Mathews there is no negligent act which could give rise to coverage under the insurance policy at issue in this matter. The act complained of by defendant Mathews and for which he seeks coverage under the insurance policy is clearly an act of vandalism or malicious behavior on the part of some third party. This factual scenario leads back to the insurance policy and possible coverage for such vandalism or malicious behavior.
Meanwhile, on June 25, 1999, Mathews filed an amended answer asserting, for the first time, a cross-claim against Loftis alleging that the destruction of his house was the sole proximate causal result of the negligence, wrongful conduct, and/or fault of Rodney Loftis . . . and/or his agents. Loftis responded with a motion to dismiss.
In response to the circuit court's order granting summary judgment to West
Virginia Fire, Mathews filed a MOTION TO ALTER OR AMEND JUDGMENT.
Thereafter, the circuit court entered three separate orders on September 7, 1999, disposing
of all the claims in this action. In the first order, the circuit court denied Mathews' motion
to alter or amend the judgment, finding that Mathews failed to bring forward any
additional evidence or legal authority upon which the previous Order of this Court should
be disturbed. The second order granted West Virginia Fire's motion for summary
judgment on Mathews' counterclaim, finding that Mathews did not substantially prevail
in the declaratory judgment action, and that there was insufficient evidence to continue
under the West Virginia Unfair Claims Settlement Practices [Act]. The final order
granted Loftis' motion to dismiss on the grounds that Mathews delayed for some time in
asserting his cross-claim against Loftis, and that Mathews had failed to seek leave of the
court to amend his answer to include the cross-claim. It is from the circuit court's order
denying Mathews' motion to alter or amend judgment, and the court's order granting
Loftis' motion to dismiss, that Mathews now appeals.
Syl. pt. 1, Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 506 S.E.2d 578
The second order herein appealed by Mathews dismissed his cross-claim against Loftis. Our review of that order is also de novo.
'Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.' Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). Syllabus point 1, State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W. Va. 221, 488 S.E.2d 901 (1997).
Syl. pt. 1, Bowers v. Wurzburg, 205 W. Va. 450, 519 S.E.2d 148 (1999).
Having set forth the appropriate standards for our review, we now consider
the issues presented on appeal.
West Virginia Fire, on the other hand, argues that the circuit court's ruling
should be affirmed as it correctly determined that the efficient proximate cause of the loss
sustained by Mathews was the wrongful action of the imposter requesting Loftis to
demolish the house, which action amounted to vandalism or malicious mischief, a peril for
which Mathews had no coverage.
The efficient proximate cause doctrine was adopted by this Court in Murray
v. State Farm Fire & Casualty Co., 203 W. Va. 477, 509 S.E.2d 1 (1998). Pursuant to
When examining whether coverage exists for a loss under a first-party insurance policy when the loss is caused by a combination of covered and specifically excluded risks, the loss is covered by the policy if the covered risk was the efficient proximate cause of the loss. No coverage exists for a loss if the covered risk was only a remote cause of the loss, or conversely, if the excluded risk was the efficient proximate cause of the loss. The efficient proximate cause is the risk that sets others in motion. It is not necessarily the last act in a chain of events, nor is it the triggering cause. The efficient proximate cause doctrine looks to the quality of the links in the chain of causation. The efficient proximate cause is the predominating cause of the loss.
Syl. pt. 8, Murray.
Here, a combination of causes resulted in Mathews' loss: (1) the action of
the imposter; (2) Loftis' failure to verify the identity of the person requesting the
demolition of the home; (3) the actual act of demolishing the home. However, we agree
with the trial court that the direct, or predominating, cause of the loss in this case was the
action of the imposter in arranging the demolition of the house.See footnote 5
But for the actions of the
imposter, there was no evidence that Loftis would have had a reason to take any action
whatsoever toward the destruction of the house in question.
Moreover, we agree with the trial court that the action of the imposter was clearly an act of vandalism or malicious behavior. 'Language in an insurance policy should be given its plain, ordinary meaning.' Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986). Syl. pt. 1, Murray. Vandalism is generally understood to mean deliberately mischievous or malicious destruction or damage of property. Random House Webster's Unabridged Dictionary 2104 (2d ed. 1998). See also Chambers 20th Century Dictionary 1436 (1983) (defining vandal, in part, as one who destroys what is beautiful . . . one who wantonly damages property, and defining vandalize as to inflict wilful and senseless damage on (property, etc.)); Webster's Third New International Dictionary of the English Language 2532 (unabridged 1970) (describing vandalism as willful or malicious destruction or defacement of things of beauty or of public or private property). Similarly, the plain ordinary meaning of the term malicious mischief is willful destruction of personal property motivated by ill will or resentment toward its owner or possessor. Random House Webster's Unabridged Dictionary 1164. See also Webster's Third New International Dictionary of the English Language 1367 (defining malicious mischief as willful, wanton, or reckless damage or destruction of another's property). Cf. Chambers 20th Century Dictionary 761 & 804 (defining malicious as bearing ill-will or spite: moved by hatred or ill-will: mischievous, and defining mischief as an ill consequence: evil: injury: damage, hurt: the troublesome fact: a source of harm: petty misdeeds or annoyance: pestering playfulness . . .).
As the circuit court duly noted, Mathews did not purchase coverage for vandalism or malicious mischief. Mathews argues, without legal authority, that the coverages not purchased by an insured should not be considered in deciding whether a particular loss falls within one of the purchased coverages. In this regard, Mathews argues that the destruction of his house was caused by a vehicle,See footnote 6 6 a peril which was covered under his policy. Because the policy did not contain an express exclusion for malicious mischief under the vehicle clause, Mathews contends that his loss should be covered. It is important to note, however, that the policy in question is a named perils policy. Unlike an all- risk policy that includes all risks that are not specifically excluded in the terms of the contract, a named perils policy excludes all risks not specifically included in the contract. 7 Lee R. Russ and Thomas F. Segalla, Couch on Insurance 3d § 101:7, at 101- 17, -18 (1997). See also Ennar Latex, Inc. v. Atlantic Mut. Ins. Co., No. 94 CIV. 150 (JFK), 1995 WL 325640, at *5 (S.D.N.Y. May 30, 1995) (explaining that to recover under a named perils policy, the insured must demonstrate that one of the enumerated perils operated to cause the losses.). Because Mathews failed to purchase coverage for malicious mischief, he possessed no coverage for that peril. Therefore, we find that the circuit court did not err in granting summary judgment to West Virginia Fire and in subsequently denying Mathews' motion to alter or amend that judgment.
We agree with Loftis that this issue is resolved by Rule 15(a) of the West
Virginia Rules of Civil Procedure, which states:
Amendments. -- A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise 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. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
Mathews' answer to West Virginia Fire's amended complaint did not contain
a cross-claim against Loftis. Consequently, pursuant to Rule 15(a), Mathews was required
either to file an amended answerSee footnote 7
within twenty days after his previous answer was served,
or to obtain leave of court or written consent from Loftis to file the amended pleading after
the twenty-day period. Mathews' answer to West Virginia Fire's amended complaint was
served on March 30, 1999, but he did not file his amended answer until June 25, 1999,
well exceeding the twenty-day limit. Under these circumstances, it was incumbent upon
Mathews to obtain leave of court or written consent from Loftis to file his amended
answer. Cf. Commercial Credit Corp. v. Citizens Nat'l Bank of Point Pleasant, 150
W. Va. 196, 199, 144 S.E.2d 784, 786 (1965) (It is true that after a responsive pleading
is served leave of the court or written consent of the adverse party must be obtained in
order to amend the pleadings. (emphasis added)). Mathews failed in both respects.
In addition, it is noteworthy that, although Mathews had knowledge of Loftis' involvement in the destruction of Mathews' house prior to the filing of West Virginia Fire's declaratory judgment action, he nevertheless waited nearly fifteen months after the initiation of the declaratory judgment action before attempting to assert a claim against Loftis. Even when West Virginia Fire amended its complaint to assert its own claim against Loftis, Mathews waited approximately three additional months before attempting to assert his cross-claim. While it is true that Rule 15(a) directs circuit court's that leave [to amend] shall be freely given when justice so requires, this directive does not absolve a party from his or her obligations under the rule, nor does it allow a party to be unnecessarily lax in asserting his or her claims. We have previously explained that '[t]he liberality allowed in amendment of pleadings does not entitle a party to be dilatory in asserting claims or to neglect the case for a long period of time.' Mauck v. City of Martinsburg, 178 W. Va. 93, 95, 357 S.E.2d 775, 777 (1987) (citation omitted). Consolidation Coal Co. v. Boston Old Colony Ins. Co., 203 W. Va. 385, 393, 508 S.E.2d
102, 110 (1998).See footnote 8
In the instant case, Mathews utterly failed to follow the procedures required
by Rule 15(a) of the West Virginia Rules of Civil Procedure, and has offered no
justification for his delay of nearly fifteen months before attempting to assert a cross-claim
against Loftis. Under the circumstances presented, we find the circuit court did not err in
granting Loftis' motion to dismiss.
When a Premium for Extended Coverage is shown in the
Declarations, Perils 2 through 7 are made part of Perils
. . . .
This peril does not include loss:
a. caused by a vehicle owned or operated by you or a resident of the Described Location; or
When a Premium for Vandalism or Malicious Mischief is
shown in the Declarations, the following is made part of
Perils Insured Against.
8. Vandalism or malicious mischief.
This peril does not include loss:
a. to glass or safety glazing material constituting a part of the building other than glass building blocks;
b. by pilferage, theft, burglary or larceny, but we shall be liable for damage to the building covered caused by burglars; or
c. to property on the Described Location if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant.
The Declarations page of the policy shows that Mathews did not pay a premium for vandalism or malicious mischief.