STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

David M. Smith and Doris Smith 

Third-Party Plaintiffs Below, Petitioners FILED 

vs) No. 15-0228 (Fayette County 14-C-96H) 

February 12, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

The Velotta Company and Safety Caution OF WEST VIRGINIA 

Equipment Co., 

Third-Party Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioners David M. Smith and Doris Smith, by counsel James D. McQueen, Jr., and 

Christopher Heavens, appeal the February 11, 2015, order of the Circuit Court of Fayette County 

granting respondents’ motions to dismiss. Respondent The Velotta Company (“Velotta”), by 

counsel James D. Stacy, II, responds in support of the circuit court’s order. Respondent Safety 

Caution Equipment Co., (“Safety Caution”), by counsel Melvin F. O’Brien and Michelle B. 

Skeens, also responds in support of the circuit court’s order. Petitioners filed a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Petitioners’ claims arise from an April 11, 2012, motor vehicle accident which occurred 

on U.S. Route 19, near Mount Hope, West Virginia. At the time of the accident, Petitioner David 

Smith was a commercial truck driver and was operating a tractor-trailer vehicle for his employer 

William Thomas Allen d/b/a William Thomas Allen Trucking (“Allen Trucking”). Petitioner 

Smith was traveling in the outside lane of Route 19, approaching a road construction site, when 

traffic slowed in front of him. Mr. Smith was unable to stop his vehicle before it struck a vehicle 

operated by James A. Murdock.1 At all times relevant hereto, Respondent Velotta was a 

contractor working on the road construction project in the area where the accident occurred. 

Respondent Safety Caution Equipment Co. (“Safety Caution”) was a subcontractor of Velotta 

that worked on implementation of a portion of the temporary traffic control plan in place around 

the accident site. 

1

Ultimately, the Smith vehicle struck two temporary concrete barriers, crossed the outside 

barrier of a bridge, and fell onto an embankment below the bridge. 

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On April 2, 2014, James A. Murdock, and his wife Barbara, filed the underlying civil 

action in the circuit court of Fayette County against Petitioner David Smith (and his employer) 

for damages arising from the accident. On August 18, 2014, petitioners filed a third-party 

complaint and impleaded respondents into the underlying civil action.2 The Murdocks then filed 

cross-claims against respondents. Thereafter, petitioners also filed cross-claims against 

respondents.3 Respondents (separately) filed motions to dismiss petitioner’s third-party 

complaint and cross-claims. 

By order dated February 11, 2015, the Fayette County Circuit Court dismissed 

petitioners’ third-party complaint and cross-claims. In its order, the circuit court ruled that 

[a]t the time of the accident on April 11, 2012, the [t]hird-[p]arty 

[p]laintiff David Smith knew that he had been involved in an 

accident and that he was injured as a result. As indicated in the 

police report, the accident occurred in a work zone. The plaintiffs 

attached to their opposition brief certain medical records of David 

Smith’s treatment following this accident. Those records clearly 

demonstrate that Mr. Smith had knowledge of the accident, the 

manner in which it occurred, and the fact that he was injured as a 

result. 

It is from the February 11, 2015, order that petitioners now appeal. 

“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, 194 W.Va. 770, 461 

S.E.2d 516 (1995).4 Moreover, “[t]he trial court, in appraising the sufficiency of a complaint on a 

2

Petitioners’ third-party complaint was filed in Fayette County Circuit Court four days 

after petitioners’ Kanawha County action against respondents was dismissed (as that action was 

filed outside of the two year statute of limitations set forth in West Virginia Code § 55-2-12). In 

their third-party complaint, petitioners asserted identical claims against respondents to those that 

had been asserted by petitioners in their Kanawha County action. Petitioners’ appeal of the 

Kanawha County Circuit Court’s order dismissing petitioners’ civil action against respondents 

was the subject of a separate appeal pending before this Court, wherein the circuit court’s 

dismissal was affirmed in a memorandum decision. Smith v. Velotta Co. and Safety Caution 

Equip. Co., No. 14-1285 (W.Va. Feb. 12, 2016)(memorandum decision). 

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Petitioners argued that they were permitted to file cross-claims against respondents 

because James Murdock and Barbara Murdock (plaintiffs in the underlying case) caused 

respondents to become “direct defendants” in this action. However, there is no indication in the 

record that the Murdocks ever filed an amended complaint or any request to cause respondents to 

become direct defendants in the underlying action. 

4

Consideration of materials outside of the complaint on a motion to dismiss for failing to 

state a claim upon which relief may be granted requires the motion “be treated as one for 

(continued . . .) 

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Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to relief. 

Conley v. Gibson, 355 U.S. 41, 45-46, [78 S.Ct. 99, 2 L.E.2d 80] (1957).” Syl. Pt. 3, Chapman v. 

Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). With these principles in mind, 

we turn to a consideration of each of petitioners’ arguments on appeal. 

On appeal, petitioners assert five assignments of error. First, petitioners allege that the 

circuit court erred in dismissing their third-party complaint as the discovery rule tolled the 

applicable statute of limitations. Second, petitioners contend that the circuit court erred in failing 

to apply West Virginia Code § 55-2-15 to toll the statute of limitations, and in ignoring the 

controlling precedent of Worley v. Beckley Mechanical, Inc., 220 W.Va. 633, 648 S.E.2d 620 

(2007). Third, petitioners allege that the circuit court erred in dismissing the cross-claim filed by 

petitioners pursuant to West Virginia Code § 55-2-21 and Rule 13(g) of the West Virginia Rules 

of Civil Procedure. Fourth, petitioners argue that the circuit court erred in dismissing petitioners’ 

third-party complaint as petitioners’ claims were permissible under Rule 14(a) of the West 

Virginia Rules of Civil Procedure. Finally, petitioners contend that the circuit court erred by 

invading the province of the jury and weighing evidence inconsistent with the facts presented by 

petitioners, in violation of syllabus point five of Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 

255 (2009). 

With respect to petitioners’ first assignment of error, the record establishes that, in filing 

their third-party complaint against respondents, petitioners sought to recover monies for their 

personal injuries arising from the April 11, 2012, motor vehicle accident. Our law is clear that 

actions for personal injuries must be brought “within two years next after the right to bring the 

same shall have accrued.” W. Va. Code § 55-2-12. It is without dispute that petitioners filed 

their third-party complaint against respondents on August 18, 2014, more than two years 

following the accident. Petitioners argue that they only “discovered” their possible claims against 

respondents after being contacted by an investigator (representing another party in a separate 

lawsuit arising from a separate accident) and that the circuit court erred in failing to apply the 

discovery rule to toll the running of the two-year statute of limitations.5 This Court has held that 

summary judgment and disposed of under Rule 56 [of the West Virginia Rules of Civil 

Procedure].” Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr., Litigation 

Handbook on West Virginia Rules of Civil Procedure, § 12(b)(6), p. 393 (4th ed. 2012). Although 

the trial court’s dismissal of petitioners’ claims was technically a summary judgment dismissal, 

because the trial court considered materials outside the complaint in making its decision, our 

standard of review of that aspect of the dismissal is still de novo. See Syl. Pt. 1, Painter v. Peavy, 

192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is 

reviewed de novo.”) 

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Petitioners contend that, on May 10, 2014, Mr. Smith was contacted by an investigator 

on behalf of another party who was reportedly injured in a separate motor vehicle accident that 

occurred in the same area of Route 19 as Mr. Smith’s April 11, 2012, accident. Petitioners allege 

they did not know, and reasonably should not have known, the identity of respondents, or that 

(continued . . .) 

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“[i]n tort actions, unless there is a clear statutory prohibition to its 

application, under the discovery rule the statute of limitations begins to run when 

the plaintiff knows, or by the exercise of reasonable diligence, should know (1) 

that the plaintiff has been injured, (2) the identity of the entity who owed the 

plaintiff a duty to act with due care, and who may have engaged in conduct that 

breached that duty, and (3) that the conduct of that entity has a causal relation to 

the injury.” Syllabus Point 4, Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 

S.E.2d 901 (1997). 

Syl. Pt. 3, Dunn. In syllabus point two of Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 

(1992), we stated that “[t]he ‘discovery rule’ is generally applicable to all torts, unless there is a 

clear statutory prohibition of its application.” However, we have explained that “[o]nce the 

defendant shows that the plaintiff has not filed his or her complaint within the applicable statute 

of limitations, the plaintiff has the burden of showing an exception to the statute.” Worley, 220 

W.Va. at 638-39 n.7, 648 S.E.2d at 625-26 n.7 (citing Syl. Pt. 3, Cart v. Marcum, 188 W.Va. 

241, 423 S.E.2d 644 (1992), overruled on other grounds in Dunn, 225 W.Va. at 51-52, 689 

S.E.2d at 263-64). 

In syllabus point five, in part, of Dunn we established a five-step analysis to determine 

whether a cause of action is time-barred: 

First, the court should identify the applicable statute of limitation for each 

cause of action. Second, the court (or, if questions of material fact exist, the jury) 

should identify when the requisite elements of the cause of action occurred. Third, 

the discovery rule should be applied to determine when the statute of limitation 

began to run by determining when the plaintiff knew, or by the exercise of 

reasonable diligence should have known, of the elements of a possible cause of 

action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 

706, 487 S.E.2d 901 (1997). Fourth if the plaintiff is not entitled to the benefit of 

the discovery rule, then determine whether the defendant fraudulently concealed 

facts that prevented the plaintiff from discovering or pursuing the cause of action. 

Whenever a plaintiff is able to show that the defendant fraudulently concealed 

facts which prevented the plaintiff from discovering or pursuing the potential 

cause of action, the statute of limitation is tolled. And, fifth, the court or the jury 

should determine if the statute of limitation period was arrested by some other 

tolling doctrine. 

Dunn, 255 W.Va. at 54, 689 S.E.2d at 266. 

In the instant case, petitioners contend that Mr. Smith suffered an acute mental and 

physical disability as an immediate result of the April 11, 2012, accident, which prevented him 

their conduct had a causal relation to Mr. Smith’s injuries until they were contacted by the 

investigator. 

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from discovering respondents’ identities or the fact that an alleged defective design of the 

construction area was a causal factor for the accident.6 As such, they argue, the circuit court 

erred in failing to apply the discovery rule to toll the statute of limitations. Respondents argue 

that the purported medical evidence on which petitioners rely to establish Mr. Smith’s inability 

to discern a potential cause of action simply does not support the conclusions petitioners seek to 

reach. Rather, Mr. Smith’s proffered medical records demonstrate that he knew he was in an 

accident, and was able to give medical staff at two different facilities a coherent and accurate 

history. Respondents note that Mr. Smith’s medical records indicate that he was discharged from 

the hospital on the day following the accident, and that there was a notation in his records within 

the ten months following the accident that he was remembering details about the accident. In 

summary, respondents contend that petitioners simply failed to proffer sufficient evidence to 

warrant the circuit court’s application of the discovery rule. 

Based upon our review of the record before us, we find no error in the circuit court’s 

conclusion that the discovery rule is inapplicable to petitioners’ claims herein. In syllabus point 

four of Dunn we held that 

[u]nder the discovery rule set forth in Syllabus Point 4 of Gaither v. City 

Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), whether a plaintiff “knows 

of” or “discovered” a cause of action is an objective test. The plaintiff is charged 

with knowledge of the factual, rather than the legal, basis for the action. This 

objective test focuses upon whether a reasonable prudent person would have 

known, or by the exercise of reasonable diligence should have known, of the 

elements of a possible cause of action. 

Dunn, 255 W.Va. at 54, 689 S.E.2d at 266. 

The record herein establishes that, at all times relative hereto, Petitioner Mr. Smith was 

aware of the fact that he was injured as a result of the April 11, 2012, accident, having reported 

the same to his medical providers immediately following the accident. Further, there is no 

evidence in the record below to suggest that petitioners were prevented in any manner from 

discovering the identities of respondents or that their involvement in the construction area where 

the subject accident occurred. Thus, we conclude, in accord with the circuit court’s findings, that 

in the exercise of reasonable diligence, petitioners objectively should have known the identity of 

respondents and their alleged negligent conduct. Accordingly, we find no error in the circuit 

court’s conclusion that the discovery rule is in applicable in this case. 

In their second assignment of error, petitioners argue that the circuit court erred in failing 

to apply West Virginia Code § 55-2-15 to toll the statute of limitations, and in ignoring the 

controlling precedent of Worley.

7 

6

As a result of the accident, Mr. Smith sustained a scalp laceration, a concussion, and 

suffered an alleged impairment of his memory. 

7

In its dismissal order, the circuit court found that petitioners did not “allege any facts in 

(continued . . .) 

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West Virginia Code § 55-2-15 provides that: 

[i]f any person to whom the right accrues to bring any such personal action, suit 

or scire facias, or any such bill to repeal a grant, shall be, at the time the same 

accrues, an infant or insane, the same may be brought within the like number of 

years after his becoming of full age or sane that is allowed to a person having no 

such impediment to bring the same after the right accrues, . . . except that it shall 

in no case be brought after twenty years from the time when the right accrues. 

In syllabus points three and four of Worley we held that: 

The general purpose of W.Va. Code § 55-2-15 (1923) is to toll the 

commencement of the running of the statute of limitations so that the legal 

rights of infants and the mentally ill may be protected. 

In order for mental illness to toll the commencement of the running of 

the statute of limitations pursuant to W.Va. Code § 55-2-15 (1923), the 

plaintiff must show that the interval between the tortious act and the 

resulting mental illness was so brief that the plaintiff, acting with 

diligence, could not reasonably have taken steps to enforce his or her legal 

rights during such interval. 

Worley, 220 W.Va. at 638-39, 648 S.E.2d at 625-26. 

Petitioners contend that Petitioner Mr. Smith’s post-accident medical condition may 

fairly be characterized as mentally ill, mentally disabled, mentally incompetent, or insane. As 

such, petitioners contend that West Virginia Code § 55-2-15 is applicable to toll the statute of 

limitations in this case. Respondents argue that given the record before the circuit court, the court 

had no basis for finding that Petitioner Mr. Smith was insane or under a legal disability that 

would have prevented him from comprehending his legal rights and responsibilities for any 

period that would toll the statute of limitations for this case. We agree. It is clear from our review 

of the record below that petitioners make no allegations that Mr. Smith was insane. There is no 

evidence that during the time frame at issue that Mr. Smith had a legally appointed guardian or 

conservator, or that he was unable to care for himself. Mr. Smith’s medical records are a 

testament to his ability to give his medical provider a competent history. As such, the circuit 

court did not err in dismissing petitioners’ claim by finding that the same were not tolled by 

West Virginia Code § 55-2-15. 

Next, petitioners argue that the circuit court dismissed their cross-claims against 

respondents without any discussion or justification and, in doing so, erroneously disregarded 

West Virginia Code § 55-2-21 and Rule 13(g) of the West Virginia Rules of Civil Procedure. 

their Third-Party Complaint which would support the possibility that the statute of limitations for 

[petitioners’] claims is tolled by West Virginia Code § 55-2-15.” 

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West Virginia Code § 55-2-21 provides that 

[a]fter 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 counterclaim, whether compulsory or 

permissive, cross-claim or third-party complaint: Provided, that if any such 

permissive counterclaim would be barred but for the provisions of this section, 

such permissive counterclaim may be asserted only in the action tolling the statute 

of limitations under this section. This section shall be deemed to toll the running 

of any statute of limitation with respect to any claim for which the statute of 

limitation has not expired on the effective date of this section [July 6, 1981], but 

only for so long as the action tolling the statute of limitations is pending. 

Rule 13(g) of the West Virginia Rules of Civil Procedure provides that 

[a] pleading may state as a cross-claim any claim by one party against a co-party 

arising out of the transaction or occurrence that is the subject matter either of the 

original action or of a counterclaim therein or relating to any property that is the 

subject matter of the original action. Such cross-claim may include a claim that 

the party against whom it is asserted is or may be liable to the cross-claimant for 

all or part of a claim asserted in the action against the cross-claimant. 

Petitioners argue that they properly filed their cross-claims against respondents as an 

alternative pleading and contend that the circuit court dismissed their cross-claims against 

respondents without any discussion or justification.8 Respondents argue that there was never any 

proper procedure exercised (under the Rules of Civil Procedure or otherwise) to permit 

petitioners to file their cross-claims against respondents.9 Respondents argue further that because 

petitioners have conceded their cross-claims against respondents were an “alternative” approach 

to having personal injury claims pled in a case where the statute of limitations had expired, the 

disposition of the cross-claims was then interchangeable with dismissal of the claims asserted in 

the third-party complaint, and the circuit court treated them as such. 

In syllabus point nine of J.A. Street & Associates. v. Thundering Herd Development, 

LLC, 228 W.Va. 695, 724 S.E.2d 299 (2011), we addressed the propriety of cross-claims and the 

manner to determine if a cross-claim was, in actuality, an independent cause of action. We found 

that: 

8

In its February 11, 2015 dismissal order, the circuit court ruled that respondents’ 

motions to dismiss petitioners’ cross-claims “which set forth the same personal injury claims as 

contained in the [t]hird-[p]arty [c]omplaint, are [granted] and the [c]ross-[c]laim is also 

dismissed with prejudice.” 

9

See fn. 3 supra. 

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[t]o determine whether a cross-claim arises out of the same transaction or 

occurrence as the original action, there are three nonexclusive actors to be 

considered: (1) the identity of 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. 

Based upon our review of the record, we find no error in the circuit court’s dismissal of 

petitioners’ cross-claims against respondents. We initially note that petitioners proffer no 

evidence to support that their cross-claims were properly filed. Such claims, even by petitioners’ 

own admissions, were simply an alternative pleading to petitioners’ third-party complaint. 

Despite this fact, applying the test outlined in J.A. Street, as the identity of the facts and law 

between the initial claim (the Murdocks’ claims against petitioners) and the cross-claim 

(petitioners’ claims against respondents) are different and will require different evidence to 

support or refute both the claim and the cross-claim, we find that the circuit court did not err in 

dismissing petitioners’ cross-claims. 

Fourth, petitioners argue that the circuit court erred in dismissing petitioner’s third-party 

complaint as petitioners’ claims were permissible under Rule 14(a) of the West Virginia Rules of 

Civil Procedure. Rule 14(a) provides, in part, that 

[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 claims against the third-party plaintiff. 

In its February 11, 2015, order, the circuit court reasoned that petitioners’ tort claims 

were not derivative of Mr. and Mrs. Murdock’s original claim and, therefore, should not be the 

subject of a third-party complaint. As such, it was improper for petitioners to institute a thirdparty claim against respondents in the instant case. 

Petitioners argue that under Cava v. National Union Fire Insurance Co. of Pittsburgh, 

232 W.Va. 503, 753 S.E.2d 1 (2013), their third-party complaint against respondents was proper. 

In Cava, this court established five factors to consider when determining the appropriateness of a 

third party complaint, which include: (1) potential prejudice to the original plaintiff or 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. Petitioners argue that neither the 

Murdocks or respondents would be prejudiced by the third-party complaint, nor would said 

complaint delay or unduly complicate the trial or negatively impact judicial efficiency. 

Respondents argue that if the court permitted petitioners to proceed with their third-party 

complaint that decision would prejudice the parties and cause delay and undue complications. In 

filing their third-party complaint in this case, petitioners occasioned a long delay in the litigation 

and removal of the focus of the case from the Murdocks injury claims to those of petitioners. If 

the Murdock case proceeds with petitioners’ personal injury and ancillary claims still pending, 

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the trial, unless bifurcated, will require the jury to make complex determinations regarding two 

separate damage claims, and attribution of negligence and proximate cause as to both petitioners 

and the Murdocks’ respective claims simultaneously. 

Based upon our review of the record herein, we agree with respondents. Because 

petitioners’ personal injury claims are not proper as third-party claims we find that the statute of 

limitations on those claims is not tolled. Accordingly, the circuit court did not err in dismissal of 

these claims. 

Finally, in their fifth assignment of error, petitioners contend that the circuit court erred 

by invading the province of the jury and weighing evidence inconsistent with the facts pled in 

petitioners’ complaint or presented by petitioners in answer to respondents’ motions to dismiss, 

in violation of syllabus point five of Dunn. Primarily, petitioners argue that the circuit court 

made no findings of fact or conclusions of law, which address or even mention critical evidence 

of Mr. Smith’s mental incapacity in making its determination of applicability of the discovery 

rule. Further, petitioners are critical of a number of the circuit court’s findings of fact and 

conclusions of law in the circuit court’s dismissal order.10 Respondents argue that the circuit 

10Petitioners take issue with following findings of fact and conclusions of law: 

1)	 Finding of fact No. 9, in which the circuit court found that the third-party 

complaint did not assert any grounds for an extension of the statute of 

limitations. Petitioners contend this finding is incorrect in that they did assert 

grounds for an “extension” of the statute of limitations. 

2)	 Finding of fact No. 10, in which the circuit court found that Petitioner David 

Smith’s medical records clearly demonstrate that Mr. Smith had knowledge of 

the accident, the manner in which it occurred, and the fact that he was injured 

as a result. Petitioners argue that this finding did not accurately reflect the 

factual record before the court; 

3)	 Conclusion of law No. 4, in which the circuit court cites McCoy v. Miller, 213 

W.Va. 161, 578 S.E.2d 355 (2003). Petitioners argue that the passage cited by 

the court is an incomplete statement of applicable law; 

4)	 Conclusion of law No. 6, which includes the statement that petitioners “do not 

allege that they were prevented from discovering the identity of [respondents] 

in any way.” Petitioners contend this statement is incorrect in that the medical 

evidence submitted to the circuit court substantiates that traumatic injuries 

sustained in the accident prevented petitioner from discovering respondents’ 

identities; 

5)	 Conclusion of law No. 7, in which the circuit court cites Syl. Pt. 5 of Dunn. 

Petitioners object because the circuit court’s cite does not include the last 

sentence of the syllabus point; 

(continued . . .) 

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court’s findings of facts and conclusions of law are supported by the record and the precedent of 

this court. 

In Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000), we held that 

[i]n reviewing challenges to findings and rulings made by a circuit court, 

we apply a two-pronged deferential standard of review. We review the rulings of 

the circuit court concerning a new trial and its conclusion as to the existence of 

6)	 Conclusion of law No. 10. In this conclusion of law, the circuit court finds 

that Petitioner David Smith was aware at the time of the accident that he was 

claiming to have had difficulties with the temporary traffic control pattern (as 

petitioner’s Fayette County civil action against respondents included the 

description that the accident occurred in a construction zone when Mr. Smith 

“was confronted with a sudden stoppage of traffic).” Petitioners argue that 

they have clearly demonstrated that there is absolutely no evidence supporting 

this conclusion of law; 

7)	 Conclusion of law No. 11 in which the circuit court notes that Petitioner 

David Smith was contacted by an investigator working for another party in a 

separate lawsuit was objective evidence that petitioners should have known 

the elements of a possible cause of action existed, as the fact that petitioners in 

the other case were able to assert their theories of liability within the thirteen 

months following the date of their accident. Petitioners contend that this 

conclusion of law did not address any injuries to petitioner’s memory or 

mental capabilities; 

8)	 Conclusion of law No. 13. In this conclusion, the court finds that there is no 

other tolling doctrine that would have arrested the statute of limitation period, 

and petitioners do not identify any such other doctrine. Petitioners contend 

that West Virginia Code § 55-2-12 (general saving as to persons under 

disability) arrests the statute of limitation period applicable herein; 

9)	 Conclusion of law No. 14. In this conclusion, the circuit court addresses West 

Virginia Code § 55-2-12. Petitioner is critical of this conclusion of law, as the 

court failed to set forth West Virginia Code § 55-2-12, in its entirety; 

10) Conclusion of law No. 15. In this conclusion, the court, citing Rule 14 of the 

West Virginia Rules of Civil Procedure finds that petitioners’ personal injury 

claims are clearly not claims for which petitioners are or may be liable to the 

Murdocks, and may not properly be brought as a third-party claim. As such, 

the statute of limitations is not tolled as to petitioners’ personal injury claims 

against respondents. 

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reversible error under an abuse of discretion standard, and we review the circuit 

court’s underlying factual findings under a clearly erroneous standard. Questions 

of law are subject to a de novo review. 

Based upon our review of the record below, we find no error. The findings of fact and 

conclusions of law made by the circuit court are supported by the record and are legally sound. 

The record herein establishes that the petitioners knew that Mr. Smith was involved in an 

accident on the day the accident occurred, knew he was injured on the day of the accident, and 

objectively should have known of the identities and involvement of the respondents. 

Accordingly, the circuit court did not err in its dismissal of the action. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: February 12, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

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