888 S.E.2d 823
W. Va.2023Background
- WW Consultants, Inc. (WWC) was the design engineer for a Pocahontas County wastewater treatment project; construction contracts were awarded to Orders Construction (headworks), Pipe Plus (collection and pump stations), and A-3 USA (MBR components via Orders).
- Pocahontas PSD counterclaimed against WWC for professional negligence and breach of contract alleging design defects, including in the headworks; WWC tendered defense and filed third‑party claims against Orders, Pipe Plus, and A‑3 for contractual indemnity, implied (common‑law) indemnity, and contribution.
- The Business Court dismissed A‑3 USA and Orders Construction under Rule 12(b)(6) and granted summary judgment to Pipe Plus as to WWC’s third‑party claims; it also struck WWC’s contingent notice of nonparty fault as untimely (an interlocutory order).
- WWC appealed; the Supreme Court of Appeals (Bunn, J.) reviewed de novo and addressed appealability, indemnity (express and implied), contribution under the modified comparative‑fault statutes, duty to defend, and ripeness/timeliness issues.
- Court holdings in brief: reversed and remanded dismissals/summary judgment only as to WWC’s contractual indemnity claims against Orders and Pipe Plus; affirmed dismissals as to implied indemnity (A‑3 and Pipe Plus) and contribution (A‑3); held the defense‑duty claim failed because the indemnity clause did not impose a duty to assume defense; did not reach the interlocutory timeliness issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contractual (express) indemnity — Orders & Pipe Plus | Indemnity clause requires contractors to indemnify WWC for claims arising from contractors’ negligent construction work. | Clause exceptions (design/preparation/approval; directions) mean WWC’s design‑based counterclaims are excluded; Pipe Plus also argued ripeness and several‑liability limits. | Reversed dismissals and summary judgment as to contractual indemnity; WWC pleaded facts sufficient to survive 12(b)(6) and summary judgment questions of causation/preclusion are factual. Ripeness does not bar third‑party indemnity here. |
| Implied (common‑law) indemnity — A‑3 & Pipe Plus | Equitable indemnity is available because WWC may be held liable though it did not cause the defects. | WWC failed to plead a special relationship that would impute vicarious/derivative liability (no facts showing liability was imputed). | Affirmed dismissal: WWC did not plead facts showing the special/vicarious relationship required for implied indemnity (A‑3 dismissed by 12(b)(6); Pipe Plus resolved on summary judgment). |
| Contribution under modified comparative‑fault — A‑3 | WWC asserted a contribution claim to allocate fault to A‑3. | Modified comparative‑fault statutes make liability several and provide the exclusive framework for allocating fault; contribution outside statutory exceptions is abolished. | Affirmed dismissal: statutory scheme (W. Va. Code §§55‑7‑13a to ‑13d) governs contribution; inchoate/common law contribution is abolished except where statutes permit (e.g., conscious concert/joint liability, contract). |
| Timeliness of contingent notice of nonparty fault (§55‑7‑13d) | WWC contends its contingent notice was timely because it hinged on the outcome of motions and was properly filed. | Defendants moved to strike as untimely under the statute. | Not reached on the merits: the order striking the notice is interlocutory and not reviewable in this appeal; SCt declined to address timeliness. |
Key Cases Cited
- State ex rel. McGraw v. Scott Runyan Pontiac‑Buick, Inc., 194 W. Va. 770 (1995) (finality for appeal turns on whether order approximates a final order in nature and effect)
- Durm v. Heck’s, Inc., 184 W. Va. 562 (1991) (summary‑judgment orders disposing of liabilities can be appealable without Rule 54(b) language)
- Harvest Capital v. West Virginia Dep’t of Energy, 211 W. Va. 34 (2002) (elements required for implied indemnity claim)
- Hill v. Joseph T. Ryerson & Son, Inc., 165 W. Va. 22 (1980) (implied indemnity grounded in equity where indemnitee is vicariously liable for another’s acts)
- Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160 (1963) (standards for granting summary judgment)
- Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338 (2017) (ripeness doctrine and subject‑matter jurisdiction principles)
- Modular Bldg. Consultants of W. Va., Inc. v. Poerio, Inc., 235 W. Va. 474 (2015) (modified comparative‑fault statutory scheme occupies the field for allocation of fault)
- Bd. of Educ. of McDowell Cnty. v. Zando, Martin & Milstead, Inc., 182 W. Va. 597 (1990) (discussion of inchoate right to contribution and its purpose)