IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

__________________

No. 18-1124

__________________

SOUTHERN ENVIRONMENTAL, INC.,

Petitioner

v.

TUCKER-STEPHEN G. BELL ET AL.,

Respondents

Appeal from the Circuit Court of Monongalia County

The Honorable Russell M. Clawges, Jr., Judge

Civil Action No. 17-C-193

DISMISSED

AND 

__________________

No. 18-1139

__________________

TUCKER-STEPHEN G. BELL ET AL.,

Petitioners

v.

NICHOLSON CONSTRUCTION COMPANY,

Respondent

FILED

November 19, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Appeal from the Circuit Court of Monongalia County

The Honorable Russell M. Clawges, Jr., Judge

Civil Action No. 17-C-193

AFFIRMED

AND

__________________

No. 18-1140

__________________

NICHOLSON CONSTRUCTION COMPANY,

Petitioner

v.

BEST FLOW LINE EQUIPMENT, L.P.,

Respondent

____________________________________________________________

Appeal from the Circuit Court of Monongalia County

The Honorable Russell M. Clawges, Jr., Judge

Civil Action No. 17-C-193

DISMISSED

____________________________________________________________

Submitted: October 6, 2020

Filed: November 19, 2020
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

CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court. 

JUSTICE WORKMAN dissents in Case No. 18-1139, and reserves the right to file 

a dissenting opinion.

JUSTICE HUTCHISON concurs, in part, dissents, in part, and reserves the right to 

file a separate opinion.
i

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). 
1

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, 
2

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, 

1 In addition to Mr. Bell, the plaintiffs in the original complaint included his wife, 

Heather M. Bell, and his children, Colton T. Bell, Tucker M. Bell, and Chase G. Bell. 
3

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 

2 SEI filed its motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the 

West Virginia Rules of Civil Procedure. 
4

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. 
5

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 in order to render justice, the November 1, 2018 order should be 

appealable. SEI further argued that due to the complexity of this case, it will likely take 
6

several years to come to a final judgment and if this Court is inclined to reverse the circuit 

court, it would not be “in the interest of sound judicial administration” to require SEI to 

participate in the protracted litigation. Curtis-Wright Corp. v. General Electric Co., 446 

U.S. 1, 8 (1980). 

On November 29, 2018 the circuit court entered an order ruling on the Bell 

Plaintiffs’ and SEI’s motions seeking entry of final judgments pursuant to Rule 54(b) of 

the West Virginia Rules of Civil Procedure. The circuit court found that it was proper to 

certify its orders of August 31, 2018, and November 1, 2018, as final and appealable orders 

pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure. The circuit court 

found that its November 1, 2018 order (denying SEI’s motion to dismiss) was “sufficiently 

related” to the issues and rulings addressed in the August 31, 2018 order such that, “in the 

interest of judicial economy, said Order should likewise be certified as final and appealable 

at this time.” The circuit court ordered that its August 31, 2018 order and its November 1, 

2018 order “be certified as final and appealable orders, in all respects, pursuant to Rule 

54(b) of the West Virginia Rules of Civil Procedure.” In Case No. 18-1139, the Bell

Plaintiffs appeal the November 29, 2018 order as it relates to the order dated August 31, 

2018. In Case No. 18-1124, SEI appeals the November 29, 2018 order as it relates to the 

order dated November 1, 2018. 

CASE NO. 18-1124 In Case No. 18-1124, SEI appeals the November 

29, 2018 order granting motions for entry of final judgment. Specifically, SEI appeals the 
7

circuit court’s denial of its motion to dismiss the Bell Plaintiffs’ claims of negligence and 

loss of spousal and parental consortium asserted against it in the First Amended Complaint. 

CASE NO. 18-1139

In Case No. 18-1139, the Bell Plaintiffs appeal the circuit court’s dismissal 

of their claims against Nicholson for deliberate intent and loss of consortium.3

 

CASE NO. 18-1140 In Case No. 18-1140, Nicholson appeals the 

November 27, 2018 circuit court’s order denying its motion to dismiss cross-claims that 

were asserted against it by Best Flow. 

II. STANDARD OF REVIEW

“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. 700, 461 S.E.2d 516 (1995).

III. DISCUSSION

A. CASE NO. 18-1139

In Case No. 18-1139, the Bell Plaintiffs appeal the circuit court’s dismissal 

of their deliberate intent and loss of consortium claims against Nicholson. 

3 In this case, the Bell Plaintiffs are technically appealing the circuit court’s 

November 29, 2018 order, which certified an earlier order dismissing their claims against 

Nicholson for deliberate intent and loss of consortium. 
8

In the original complaint filed by the Bell Plaintiffs, they asserted the 

following claims against Nicholson: (1) negligent spoliation; (2) intentional spoliation; (3) 

spousal loss of consortium; and (4) parental loss of consortium. On August 17, 2017, the 

Bell Plaintiffs filed their First Amended Complaint, which included additional causes of 

action against Nicholson for deliberate intent pursuant to West Virginia Code § 23-4-

2(d)(2)(i)-(ii), West Virginia Workers’ Compensation Act. The First Amended Complaint, 

contained six causes of action against Nicholson: (1) deliberate intent under West Virginia 

Code § 23-4-2(d)(i) (Count XV); (2) deliberate intent under West Virginia Code § 23-4-

2(d)(ii) (Count XVI); (3) intentional spoliation (Count XVII); (4) negligent spoliation 

(Count XVIII); (5) loss of spousal consortium (Count XIX); and (6) loss of parental 

consortium (Count XX).4

By order entered on August 31, 2018, the circuit court granted Nicholson’s 

motion to dismiss, in part, and dismissed the Bell Plaintiffs’ claims for deliberate intent 

and loss of consortium.5

 In dismissing the claims for deliberate intent, the circuit court 

ruled that those claims did not relate back to the time of the filing of the original complaint 

pursuant to Rule 15(c) and, therefore, were time barred. Further, the circuit court found 

because there was no legally cognizable personal injury claim asserted against Nicholson, 

4 Although the circuit court gave the Bell Plaintiffs the opportunity to amend their 

original complaint, after considering Nicholson’s arguments in support of its motion to 

dismiss, the circuit court ruled that the claims for deliberate intent and loss of consortium 

should be dismissed. 

5 The circuit court denied Nicholson’s motion to dismiss the claims for spoliation.
9

the Bell Plaintiffs cannot maintain any derivative claims for loss of consortium. For the 

reasons set forth below, we agree with the circuit court.

Rule 15(c) of the West Virginia Rules of Civil Procedure provides as follows: 

(c) Relation back of amendments. – An amendment of a 

pleading relates back to the date of the original pleading when:

(1) relation back is permitted by the law that provides the 

statute of limitations applicable to the action; or 

(2) the claim or defense asserted in the amended pleading arose 

out of the conduct, transaction, or occurrence set forth or 

attempted to be set forth in the original pleading; or 

(3) the amendment changes the party or the naming of the party 

against whom a claim is asserted if the foregoing paragraph (2) 

is satisfied and, within the period provided by Rule 4(k) for 

service of the summons and complaint, the party to be brought 

in by amendment (A) has received such notice of the institution 

of the action that the party will not be prejudiced in maintaining 

a defense on the merits, and (B) knew or should have known 

that, but for a mistake concerning the identity of the proper 

party, the action would have brought against the party. 

W. Va. R. Civ.P., 15(c)(2017). 

The Bell Plaintiffs argue that their claims against Nicholson for deliberate 

intent are not time barred because they relate back to the time of the filing of the original 

complaint. More specifically, the Bell Plaintiffs argue that 1) their deliberate intent claims 

arise out of the same conduct, transaction and occurrences set forth in the original 

complaint; 2) their deliberate intent claims relate back even under what they perceive is the 

circuit court’s restrictive interpretation of Rule 15(c)(2) of the West Virginia Rules of Civil 

Procedure; 3) Nicholson will suffer no prejudice if the claims relate back; and 4) the circuit 
10

court misapplied Rule 15(c)(2) of the West Virginia Rules of Civil Procedure and such 

application cannot be retroactively applied to their First Amended Complaint. 

In response to the Bell Plaintiffs’ argument that the deliberate intent claims 

at issue relate back to the filing of their original complaint, Nicholson argues that the claims 

do not relate back because they arise from an entirely different relationship, from an 

entirely different set of alleged wrongful acts, occurred at an entirely different place and 

time, and involved entirely different individuals. 

The first question to be addressed by this Court is whether the deliberate 

intent claims asserted against Nicholson in the First Amended Complaint relate back to the 

original complaint such that they are not barred by the applicable statute of limitations. As 

a preliminary matter, we note that deliberate intent claims are governed by a two-year 

statute of limitations. See Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 729

S.E.2d 231 (2012). The workplace incident occurred on May 19, 2015, and the Bell 

Plaintiffs filed their original complaint on May 4, 2017, which was within the applicable 

statute of limitations. Although the Bell Plaintiffs make note that their original complaint 

set forth the workplace incident “in great detail,” it is undisputed that the claims they

asserted against Nicholson in the original complaint were limited to negligent and 

intentional spoliation of evidence and loss of spousal and parental consortium. It is also 

undisputed that the Bell Plaintiffs filed their First Amended Complaint over two years after 

the workplace incident. It was not until they filed the First Amended Complaint that the 

Bell Plaintiffs first asserted claims for deliberate intent against Nicholson. 
11

Although the Bell Plaintiffs concede that they filed their First Amended 

Complaint after the applicable statute of limitations, they argue that their claims for 

deliberate intent are saved because they “relate back” to the filing of their original 

complaint pursuant to Rule 15(c)(2). Further, they argue that the circuit court disregarded 

the clear and unambiguous language contained in Rule 15(c)(2) and erroneously construed 

the rule, rather than applying its plain meaning. Specifically, they argue that Rule 15(c)(2) 

does not require that their newly added claims arise from the conduct, transaction, or 

occurrence set forth in the particular section of their original complaint that was directed 

at Nicholson. Instead, they argue that their claims for deliberate intent arose out of the 

workplace incident and because they mentioned the workplace incident in their original 

complaint, their claims relate back pursuant to Rule 15(c)(2). 

In order to relate back, the new claims must arise “out of the conduct, 

transaction, or occurrence set forth or attempted to be set forth in the original pleading.” 

Rule 15(c)(2) of the West Virginia Rules of Civil Procedure. There is no dispute that a 

workplace incident occurred on May 19, 2015, and that details of that incident are 

contained in the original complaint. However, it is also undisputed that the only claims 

that the Bell Plaintiffs asserted against Nicholson in the original complaint were for 

spoliation and loss of consortium. Of the eighteen Counts contained in the original 

complaint, only four named Nicholson.6

 Out of the thirteen “Factual Allegations,” only 

two mention Nicholson. In Paragraph 16, the Bell Plaintiffs allege that Nicholson “was a 

6 Count XV – intentional spoliation; Count XVI – negligent spoliation; 

Count XVII – spousal loss of consortium; and Count XVIII – parental loss of consortium
12

subcontractor hired by Defendant SEI to design and install the foundation pilings for the 

Fabric Filler Building at Longview Power Plant.” In Paragraph 17, the Bell Plaintiffs 

allege that “[o]n or about May 19, 2015, Plaintiff Tucker-Stephen G. Bell was employed 

by and working in the course of his employment for Nicholson at the Longview Power 

Plant.” In fact, when alleging who was at fault for the accident, the Bell Plaintiffs did not 

even mention Nicholson. Specifically, in Paragraph 24, the Bell Plaintiffs allege “[t]he 

accident was a direct and proximate result of the acts and/or omissions of Defendants Best 

Flow, SEI, Casagrande, and Longview Power as set forth below.” The claims against 

Nicholson in the original complaint occurred after the workplace incident. The deliberate 

intent claims against Nicholson in the First Amended Complaint occurred at a different 

time and are based upon an entirely different set of facts than the allegations against 

Nicholson in the original complaint. We are guided by the following: 

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.

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

 

7 At the outset, we note that in Dzinglski, this Court was not considering a case 

involving multiple defendants. Although Dzinglski only involved one defendant, the 

syllabus point clearly provides that the relation back grows out of “the specified conduct 

of the defendant that gave rise to the original cause of action.” Accordingly, the allegations 

contained in the original complaint against other defendants may not be used to “relate” 

the new allegations against Nicholson back to the original complaint.
13

There is no doubt that the new causes of action asserted against Nicholson in 

the First Amended Complaint are “based on facts different from those in the original 

complaint” as they relate to Nicholson. In order to assert the deliberate intent claims, the 

Bell Plaintiffs had to add new factual allegations against Nicholson because the allegations 

contained in the original complaint would not have satisfied the specialized allegations 

required for a deliberate intent claim. Specifically, the Bell Plaintiffs added the following 

allegations in the First Amended Complaint:

19. At all relevant times herein, Plaintiff Tucker-Stephen G. 

Bell was an employee of Defendant Nicholson performing 

work in West Virginia on a non-temporary basis. 

20. Upon information and belief, in the preceding 365 day 

period, Plaintiff Tucker-Stephen G. Bell had performed work 

within the scope of his employment for Defendant Nicholson 

in the State of West Virginia for a period exceeding thirty (30) 

days.

21. Upon information and belief, Defendant Nicholson 

believed or reasonably should have believed that Plaintiff 

Tucker-Stephen G. Bell would be employed by Nicholson in 

the State of West Virginia for a period exceeding thirty (30) 

calendar days in a 365 day period.

22. Plaintiff Tucker-Stephen G. Bell was required to be 

covered by West Virginia workers’ compensation coverage 

under applicable West Virginia law, and is entitled to all 

benefits and privileges under the West Virginia Workers’ 

Compensation Act. 
14

In addition, and importantly, we note that the first time the Bell Plaintiffs 

alleged that Nicholson was at fault for the workplace incident was in the Amended 

Complaint.

8

 

The Bell Plaintiffs argue that the circuit court imposed nonexistent 

constraints into Rule 15(c)(2) and that such “judicial activism” should be stymied.9

 In 

further support of their position, they make multiple references to the need to adjudicate 

cases on their merits and allege that injustice will result if this Court does not reverse the 

circuit court’s decision. However, they make few references to their failure to file the 

deliberate intent claims within the applicable statute of limitations. Prior to filing their 

First Amended Complaint, the Bell Plaintiffs’ original complaint essentially informed

Nicholson that 1) its acts and/or omissions were not alleged to be the direct and proximate 

result of the workplace incident; and 2) it was facing claims for spoliation of evidence and 

loss of consortium only. Over three months later and after the applicable statute of 

limitations had run, the Bell Plaintiffs added claims for deliberate intent against Nicholson. 

8 Paragraph 31 of the First Amended Complaint provides, “[t]he aforesaid accident 

was a direct and proximate result of the acts and/or omissions of Defendants, Best Flow, 

SEI, Casagrande S.p.A. Casagrande USA, IDE, Longview Power, and/or Nicholson as set 

forth below. (emphasis added)

9 In addition to arguing that the circuit court disregarded the clear and unambiguous 

language of Rule 15(c)(2), the Bell Plaintiffs attempt to shift the blame for the circuit 

court’s “erroneous interpretation” of Rule 15(c)(2) to Nicholson by arguing that Nicholson 

misrepresented caselaw. However, our review of the Appendix does not reveal that 

Nicholson “deceptively submitted” caselaw.
15

The Bell Plaintiffs’ attempts to relate these new allegations of deliberate 

intent back to the original complaint are not only inconsistent with Rule 15(c) of the Rules 

of Civil Procedure, but are also inherently unfair to Nicholson in that they require it to 

defend against entirely new allegations and claims not made against it within the applicable 

statute of limitations. “[D]efendants have a right to rely on the certainty the statute of 

limitations provides.” Perdue v. Hess, 199 W. Va. 299, 303, 484 S.E.2d 182, 186 (1997). 

Moreover, we find that the fact that the original complaint contained allegations arguably 

giving rise to claims for which deliberate intent is the manner of proof for other defendants, 

does not permit the untimely claim against Nicholson to relate back to the original 

complaint. Indeed, we find that the fact that such claims were alleged against other 

defendants in the original complaint, but not made against Nicholson who was already a 

party to the action, actually undermines the Bell Plaintiffs’ argument that these claims 

against Nicholson should relate back to the time the original complaint was filed. Clearly, 

the Bell Plaintiffs’ knew the basis of their deliberate intent claim at the time they filed their 

original complaint, but determined that such claim should not be asserted against 

Nicholson. 

Because the Bell Plaintiffs’ deliberate intent claim against Nicholson must 

be dismissed, its loss of consortium claim, which is essentially derivative of such deliberate 

intent claims, must also be dismissed. A claim for loss of consortium cannot be maintained 

independent of a cognizable personal injury claim. See State ex rel. Small v. Clawges, 231 

W. Va. 301, 745 S.E.2d 192 (2013). The Bell Plaintiffs have made no personal injury 
16

claims against Nicholson independent of their deliberate intent claim. Because we find 

that the deliberate intent claim does not relate back to the original complaint, the loss of 

consortium claims against Nicholson must necessarily be dismissed as well. 

Therefore, we find that the Bell Plaintiffs’ claims for deliberate intent 

contained in their First Amended Complaint do not relate back to the filing of their original 

complaint and are therefore barred by the two-year statute of limitations. Consequently, 

because their allegations of personal injury are embodied in their deliberate intent claim, 

the Bell Plaintiffs’ claims for spousal and parental loss of consortium cannot survive and 

must be dismissed. 

Accordingly, the circuit court’s order dismissing the deliberate intent and 

loss of consortium claims against Nicholson in Case No. 18-1139 is affirmed.10 

B. CASE NOS. 18-1124 AND 18-1140

As a threshold matter, we must address whether there are appealable orders 

in these cases. “[T]his Court has a responsibility sua sponte to examine the basis of its 

own jurisdiction.” Syl. Pt. 1, in part, James M. B. and Lawrence E.B. v. Carolyn M., 193

W. Va. 289, 456 S.E.2d 16 (1995). 

In Case No. 18-1124, SEI appeals the denial of its motion to dismiss the Bell 

Plaintiffs’ claims against it, and in Case No. 18-1140, Nicholson appeals the denial of its 

10 For the same reasons we are dismissing Case Nos. 18-1124 and 18-1140, we 

decline to address Nicholson’s cross-assignments of error. 
17

motion to dismiss cross-claims asserted it by Best Flow. The orders in both of these cases 

deny motions to dismiss.11 As this Court has previously noted: “[m]otions to dismiss are 

viewed with disfavor, and we counsel lower courts to rarely grant such motions.” Ewing 

v. Board of Education of Summers County, 202 W. Va. 228, 235, 503 S.E.2d 541, 548 

(1998) (quoting/citing John W. Lodge Distributing Co. Inc. v. Texaco, Inc., 161 W. Va. 

603, 605-606, 245 S.E.2d 157, 159 (1978). “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.” 

Syl. Pt. 2, State ex re. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995). 

Generally, an appeal lies from a final judgment. West Virginia Code § 58-

5-1, provides, 

A party to a civil action may appeal to the Supreme Court of 

Appeals from a final judgment of any circuit court or from an 

order of any circuit court constituting a final judgment as to 

one or more but fewer than all claims or parties upon an express 

determination by the circuit court that there is no just reason 

for delay and upon an express direction for the entry of 

judgment as to such claims or parties...

(emphasis added). 

11 In Case No. 18-1124, SEI’s motion sought dismissal pursuant to West Virginia 

Rules of Civil Procedure 12(b)(1) and 12(b)(6). In Case No. 18-1140, Nicholson’s motion 

sought dismissal pursuant to West Virginia Rules of Civil Procedure 12(b)(1) and 

12(b)(6).. 
18

The “companion provision” to this statute is found in Rule 54 of the West 

Virginia Rules of Civil Procedure (hereinafter “Rule 54(b)”). West Virginia Rule of Civil 

Procedure 54(b) provides: 

(b) Judgment upon multiple claims or involving multiple 

parties. --- When more than one claim for relief is presented in 

an action, whether as a claim, counterclaim, cross-claim, or 

third-party claim, or when multiple parties are involved, the 

court may direct the entry of a final judgment as to one or more 

but fewer than all of the claims or parties only upon an express 

determination that there is no just reason for delay and upon an 

express direction for the entry of judgment. In the absence of 

such determination and direction, any order or other form of 

decision, however designated, which adjudicates fewer than all 

the claims or the rights and liabilities of fewer than all the 

parties shall not terminate the action as to any of the claims or 

parties, and the order or other form of decision is subject to 

revision at any time before the entry of judgment adjudicating 

all the claims and the rights and liabilities of all the parties. 

“By limiting appellate jurisdiction to final judgments, the finality rule serves 

to avoid piecemeal review of trial court rulings which do not end litigation regarding all or 

some claims or parties in a case.” Vaughn v. Greater Huntington Park and Recreation 

Dist., 223 W. Va. 583, 587, 678 S.E.2d 316, 320 (2009). 

Both orders being appealed in these cases contain the declaration that they 

are final and appealable pursuant to Rule 54(b) of the West Virginia Rules of Civil 

Procedure. With respect to Case No. 18-1124, the circuit court certified the November 1, 

2018 order denying SEI’s motion as “final and appealable in all respects” “pursuant to Rule 

54(b) of the West Virginia Rules of Civil Procedure.” With respect to Case No. 18-1140, 

the circuit court designated its November 27, 2018 amended order denying Nicholson’s 
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motion to dismiss Best Flow’s cross-claims as “a final order under W.Va. R. Civ. Proc 

54(b) and is now appealable immediately.” However, the circuit court’s declaration “by 

itself does not satisfy the requirements of finality.” Vaughan at 588, 678 S.E.2d at 321. 

Despite the circuit court’s “expressions of finality in the orders before us, the rulings fail 

to dispose of the suit or to terminate the litigation as to a claim or a party and thus do not 

represent the degree of finality which would permit interlocutory appellate review.” 

Vaughn at 588-589, 678 S.E.2d 321-322. 

Accordingly, Case Nos. 18-1124 and 18-1140 are hereby dismissed from our 

docket because we lack the requisite jurisdiction to address them. The dismissals of these 

cases are without prejudice so that the matters may be appealed if deemed appropriate after 

a proper final judgment has been entered. 

IV. CONCLUSION

For the reasons set forth above, the circuit court’s order dismissing the 

deliberate intent and loss of consortium claims against Nicholson in Case No. 18-1139 is 

affirmed and the appeals in Case Nos. 18-1124 and 18-1140 are dismissed due to lack of 

jurisdiction by this Court to address them. 

Affirmed as to Case No. 18-1139 and Dismissed as to Case No. 18-1124 and Case No. 18-

1140.