Davis, J., concurring:
I believe the majority opinion is legally sound and the result reached was necessitated by the facts under review. Consequently, I fully concur in the decision reached. I have chosen to write separately in order to express my disagreement with the view set out in the dissenting opinion. The dissent in this case correctly notes that the defendant did not object to an amendment to the complaint. (See footnote 1) Consequently, the dissent asserts that an amendment should have been allowed. I disagree.
The critical point that is missed by the dissent is that prior to denying the plaintiff's motion to amend, the circuit court had already concluded that the plaintiff had not substantially prevailed in the case. (See footnote 2) See slip op. at 6 (The court then found that because
Jones had not substantially prevailed in the case, the claims which he sought to assert in an amended complaint were moot.). This Court has previously held that [i]n order for a policyholder to bring a common law bad faith claim against his insurer, according to Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986) and its progeny, the policyholder must first substantially prevail against his insurer on the underlying contract action. Syl. pt. 5, Jordache Enters., Inc. v. National Union Fire Ins. Co. of Pittsburgh, 204 W. Va. 465, 513 S.E.2d 692 (1998) (emphasis added).
I recognize that this court has observed an exception to this rule where the policyholder asserts a claim under the Unfair Trade Practices Act, W. Va. Code §§ 33-11-1 et seq. (hereinafter referred to as the UTPA). See Jordache, 204 W. Va. at 485, 513 S.E.2d at 712 (We note, however, that the appellants also brought a claim for the violation of the West Virginia Unfair Trade Practices Act, W. Va. Code § 33-11-4(9)(b), (c), (d), (e), and (f). This is not a claim . . . that rests on substantially prevailing on the underlying contract action.). However, I do not believe that this exception applies in the instant case.
With respect to his motion for leave to amend his complaint, (See footnote 3) the plaintiff merely asserted that he wished to amend his complaint to:
claims for consequential damages, such as annoyance, aggravation, inconvenience
as enumerated in Hayseeds v. State Farm Fire & Casualty Company;
2. Assert claims for unfair claims settlement practices; and
3. Assert claims for breach of the duty of good faith and fair dealing.
The plaintiff, in his motion for leave to amend his complaint, indicated that
he wished to assert common law claims by referring to Hayseeds v. State
Farm Fire & Casualty Co., 177 W. Va. 323, 352 S.E.2d 173 (1986),
as Hayseeds dealt with a common law cause of action. See, e.g., Jordache,
204 W. Va. at 484, 513 S.E.2d at 711 (Our case law is clear that
in order for a policyholder to bring a common law bad faith claim against
his insurer, according to Hayseeds, Inc. v. State Farm Fire & Cas.,
177 W.Va. 323, 352 S.E.2d 73 (1986) and its progeny, the policyholder must
first substantially prevail against his insurer on the underlying contract
action. (emphasis added)). Moreover, the motion did not further elaborate
on the claims, but rather relied solely on the text quoted above. Finally,
another possible source for further detail about the nature of the plaintiff's
proposed claims was absent as there was no proposed amended complaint attached
to the motion. Therefore, in the absence of a defined
claim under the UTPA, I find no fault in the circuit court's treatment of the
plaintiff's claims as being brought under the common law. Thus, because Mr.
Jones did not substantially prevail in his action against State Farm, the circuit
court did not abuse its discretion in denying his motion to amend his complaint.
In view of the foregoing, I concur.