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No. 18-1124 – Southern Environmental, Inc. v. Tucker-Stephen G. Bell, et al.

No. 18-1139 – Tucker-Stephen G. Bell, et al. v. Nicholson Construction Co.

No. 19-1140 – Nicholson Construction Co. v. Best Flow Line Equipment, L.P.

Hutchison, J., concurring, in part, and dissenting, in part: 

I concur with the majority opinion insofar as it concludes that the circuit court 

orders entered in Case No. 18-1140 and Case No. 18-1124, and the order entered in Case 

No. 18-1139 with respect to the cross appeal filed by Respondent Nicholson Construction 

Company (“Nicholson”), are interlocutory and not presently reviewable by this Court. 

However, in Case No. 18-1139, the majority’s decision to affirm the circuit court’s ruling 

that the plaintiffs’ deliberate intent claims against Nicholson do not relate back to the filing 

of the original complaint is a stunning and hostile departure from our rules of civil 

procedure, their recognized purpose, and our longstanding case law. To this unfortunate 

holding, I vigorously dissent. 

The question of whether the plaintiffs’ deliberate intent claims relate back to 

the filing of the original complaint calls for a simple and straightforward application of 

Rule 15 of the West Virginia Rules of Civil Procedure. Rule 15 governs amended and 

supplemental pleadings and provides:

(a)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 

FILED

November 19, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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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.

. . . . 

(c)Relation Back of Amendments. An amendment of a pleading 

relates back to the date of the original pleading when:

. . . 

(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[.]

Id. in relevant part (emphasis added). 

Rule 15’s “words ‘and leave (to amend) shall be freely given when justice so 

requires’ . . . [are] to secure such an adjudication on the merits of the controversy as would 

be secured under factual situations in the absence of procedural impediments[]” such as 

statutes of limitations. Roberts v. Wagner Chevrolet-Olds, Inc., 163 W. Va. 559, 562, 258 

S.E.2d 901, 903 (1979). Indeed, “[t]his Court is pledged to the principle that Rule 15 

should be liberally construed” in order “to allow the liberal use of amendments to 

implement the policy of encouraging litigation on the merits.” Peneschi v. Nat’l Steel 

Corp., 170 W. Va. 511, 523, 295 S.E.2d 1, 13 (1982) (internal citation omitted). In the 

syllabus of Bennett v. Owens, 180 W. Va. 641, 378 S.E.2d 850 (1989), this Court held: 

“The purpose of the words ‘and leave [to amend] shall 

be freely given when justice so requires’ in Rule 15(a) 

W.Va.R.Civ.P., is to secure an adjudication on the merits of the 

controversy as would be secured under identical factual 

situations in the absence of procedural impediments; therefore, 

motions to amend should always be granted under Rule 15 

when: (1) the amendment permits the presentation of the merits 

of the action; (2) the adverse party is not prejudiced by the 
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sudden assertion of the subject of the amendment; and (3) the 

adverse party can be given ample opportunity to meet the 

issue.” Syllabus point 3, Rosier v. Garron, Inc., 156 W.Va. 

861, 199 S.E.2d 50 (1973).

Similarly, in Roberts, the Court instructed that 

[a]n amendment to a complaint which changes only the legal 

theory of the action, or adds another claim arising out of the 

same conduct, transaction or occurrence, will relate back to the 

filing of the original complaint, provided (1) injustice to the 

adverse party will not result from allowance of relation back, 

and (2) the adverse party has received adequate notice of the 

claim against him and has an adequate opportunity to prepare 

a defense to it.

163 W. Va. at 559, 258 S.E.2d at 901, syl. See also Brooks v. Isinghood, 213 W. Va. 675, 

684, 584 S.E.2d 531, 540 (2003) (“‘Rule 15 allows a party to amend despite the running 

of an applicable state statute of limitations when parties are sufficiently on notice of the 

facts and claims that gave rise to the proposed amendment.’” (quoting James Wm. Moore,

3 Moore’s Federal Practice 3d, § 15.19[1] at 15–78 (Matthew Bender, 1997))).

Critically, “[t]he fact that an amendment changes the legal theory on which 

the action initially was brought is of no consequence if the factual situation upon which the 

action depends remains the same and has been brought to defendant’s attention by the 

original pleading.” 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal 

Practice and Procedure § 1497 (3rd ed. 2010). (Footnote omitted). In case after case, this 

Court has held steadfast to these guiding principles. See Bennett, 180 W. Va. at 842-43, 

378 S.E.2d at 351-52 (holding that change in legal theory alleging that defendant 

committed battery to allegations that he was negligent in conducting party where plaintiff 
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was injured by failing to monitor consumption of alcohol by attendees, by allowing guests 

to become intoxicated, by failing to neutralize argument between plaintiff and other guests, 

and by encouraging other guests to engage in aggressive conduct “arose out of the same 

factual context” and put defendant on adequate notice such that amendment related back 

to filing of original complaint); Adkins v. Slater, 171 W. Va. 203, 298 W. Va. 236 (1982) 

(liberally applying Rule 15 to permit amendment to pleadings to conform to evidence 

where plaintiffs, who originally alleged negligence theory, amended pleading one month 

before trial to allege common carrier claim which, if proven, would have made defendants 

strictly liable for plaintiffs’ damages, and finding that defendants were neither surprised 

nor prejudiced by allowing amendment); Roberts, 163 W. Va. at 565, 258 S.E.2d at 904

(holding that amended complaint alleging violation of Truth in Lending Act related back 

to allegations of original complaint that agreement for car repairs was unconscionable 

contract of adhesion and that defendants conspired to convert plaintiffs’ property; Court 

reasoned that amendments stated cause of action growing out of specified conduct of 

defendant that gave rise to original cause of action and did not unfairly prejudice 

defendant); and State ex rel. Bd. of Educ. v. Spillers, 164 W. Va. 453, 259 S.E.2d 417 

(1979) (finding that plaintiffs had clear right to amend ad damnum clause where opposing 

party would not be prejudiced by it and there was ample time and opportunity to meet issue 

raised by amendment – i.e., fourteen months before trial, no pretrial conference had been 

held, and additional discovery could occur).
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In Tucker v. Momentive Performance Materials USA, Incorporated, 2013 

WL 6073463 (S.D. W. Va. Nov. 18, 2013), the plaintiff alleged claims in the original 

complaint against his prior employer and ninety-nine other “John Doe” defendants, 

including product liability, failure to warn, negligence, fraudulent and negligent 

misrepresentation, and fraudulent concealment, related to his exposure to toxic chemicals 

during his employment. See Id. at *1. Subsequently, the plaintiff sought to amend the 

complaint to include additional counts for deliberate intent. See Id. The plaintiff’s 

employer filed a motion to dismiss on the ground that the new claims did not relate back 

to the filing of the original complaint and were thus untimely and barred by the applicable 

statute of limitations. See Id. The United States District Court for the Southern District of 

West Virginia disagreed with the employer and, applying the federal counterpart to our 

Rule 15, concluded that the 

amended complaint relates back to the[] original pleading. The 

theories of liability differ between the two pleadings, but they 

share an identical nucleus of facts. The amended complaint, 

like the original, arises out of Mr. Tucker’s exposure to 

hazardous chemicals at Momentive's worksite between the 

years of 1977 and 2011. The additional factual allegations 

contained in the amended complaint are obviously designed to 

track the West Virginia statute setting forth the elements of a 

deliberate intent cause of action. They do not, as Momentive 

claims, invoke reference to any conduct, transaction, or 

occurrence other than that already set forth by the original 

complaint. Particularly given the liberal amendment standard 

established by Federal Rule of Civil Procedure 15, any 

variances between the factual allegations in these pleadings do 

not suffice to prevent relation back.

Id. at *2 (footnote omitted and emphasis added).
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It is clear that the amended complaint relates back to the filing of the original 

pleading. The deliberate intent claims set forth in the amended complaint and all of the 

claims set forth in the original complaint arose from the same conduct, transaction or 

occurrence – that is, the accident and injuries Mr. Bell suffered while working in the course 

of his employment with Nicholson in West Virginia. The majority’s conclusion to the 

contrary is simply not supported in either law or fact. Furthermore, the majority’s feigned

concern that Nicholson would suffer injustice, received inadequate notice, and has not had 

an adequate opportunity to prepare a defense to the deliberate intent claims1 is likewise 

wholly unsupportable and, indeed, belied by the reality that this case is in the very earliest

procedural stages

Notably, the factual allegations in the amended complaint that the majority 

finds to be unfairly prejudicial to Nicholson because they were alleged a mere three months 

after the statute of limitations had expired are not those setting forth the elements of the 

deliberate intent claims. See W. Va. Code § 23-4-2(d)(2)(i) and (ii). Rather, they are 

simply facts expounding upon Mr. Bell’s employment with Nicholson in West Virginia 

leading up to the accident (i.e., that Mr. Bell worked for Nicholson on a non-temporary 

basis, for more than thirty days in the preceding 365-day period, and that he was covered 

by and entitled to the benefits and privileges of West Virginia’s workers’ compensation 

laws). To the extent the majority suggests that, without these “new” factual allegations, the 

plaintiffs’ deliberate intent claims would not have survived a motion to dismiss under West 

1 See Roberts, 163 W. Va. at 559, 258 S.E.2d at 901, syl.
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Virginia Rule of Civil Procedure 12(b)(6), I could not disagree more. It is beyond cavil 

that our rules of civil procedure clearly establish the principle that a plaintiff pleading a 

claim for relief need only give general notice as to the nature of their claims. This Court 

has instructed that

[t]he purpose of a motion under Rule 12(b)(6) of the West

Virginia Rules of Civil Procedure is to test the sufficiency of 

the complaint. A trial court considering 

a motion to dismiss under Rule 12(b)(6) must liberally 

construe the complaint so as to do substantial justice. West

Virginia Rules of Civil Procedure, Rule 8(f). The trial court’s 

consideration begins, therefore, with the proposition that “[f]or 

purposes of the motion to dismiss, the complaint is construed 

in the light most favorable to plaintiff, and its allegations are to 

be taken as true.” John W. Lodge Distributing Co., Inc. v.

Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978). 

The policy of Rule 8(f) is to decide cases upon their merits, and 

if the complaint states a claim upon which relief can 

be granted under any legal theory, a motion 

under Rule 12(b)(6) must be denied. John W. Lodge

Distributing Co., 161 W.Va. at 605, 245 S.E.2d at 158–159.

Cantley v. Lincoln Cty. Comm’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007). Hence, 

“[t]he trial court, in appraising the sufficiency of a complaint on a 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.” Syl. pt. 3, 

Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977). See also State

ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 

522 (1995) (“Complaints are to be read liberally as required by the notice pleading theory 

underlying the West Virginia Rules of Civil Procedure.”). Had our rules been fairly applied 

in this case, Nicholson’s Rule 12(b)(6) motion to dismiss the plaintiffs’ deliberate intent 
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claims would have categorically been denied. Thus, to the extent the circuit court granted 

Nicholson’s motion to dismiss the plaintiffs’ deliberate intent claims, and the derivative 

spousal and parental loss of consortium claims, I respectfully dissent. 

Based upon the foregoing, I concur, in part, and dissent, in part, to the 

majority opinion in this case.