Copier Word Processing Supply, Inc. v. WesBanco Bank, Inc.

rights though parents have substantial primary protected, goal

must be cases neglect,

involving family abuse and as in all matters, must be the health and welfare children.”); A., re Elizabeth

(2005)(“Any pertaining evaluation

rights guided by of children must be recognition

Court’s consistent child’s

rights paramount.”). Accordingly, I re

spectfully majority opinion. dissent from the

COPIER WORD PROCESSING

SUPPLY, INC., Plaintiff, BANK, INC.,

WESBANCO al.,

et Defendants.

No. 33046.

Supreme Appeals Court Virginia. Sept.

Submitted: 2006.

Decided: Nov. 2006.

Dissenting Opinion of Justice

Stareher Nov.

Dissenting Opinion of Justice

Albright Dec. Leach, Sopranik, J. Jim

James R. Victoria Leach, L.C., Parkersburg, for the Plaintiff. Full, LLP, Goodwin, & Goodwin Robert W. Gardill, Parkersburg, James C. J. Christo- Gardill, Gardill, pher & Alt- Phillips, Kaiser PLLC, meyer, Wheeling, for the Defendants. Heywood, Thomas Murphy, Sandra M. A. Chincheck, A. Bowles Rice McDavid Julia Love, Charleston, Graff & for Amici Curiae Bankers, Community Ass’n of Inc., Virginia Bankers and West Ass’n. DAVIS, Chief Justice. presents re- questions

This ease certified lating to whether the may three-year be toll of limitations set out W. Va.Code 46-3- (1993) 118(g) (Repl.Vol.2001) in connection with a action for the conversion of multi- civil ple, instruments. We theory may conclude applied. not be so I. AND

FACTUAL PROCEDURAL HISTORY pertinent The facts resolution questions undisputed. herein certified (here- Processing Supply, Word Inc. “Copier”), plaintiff inafter referred action, hired Doris Hendrickson eventually pro- 1985. Ms. Hendrickson position manager office moted to the May 2003, Copier discovered embezzling against had that Ms. Hendrickson been cross-claim Ms. Hendrickson. Ms. answer; for a and Hendrickson failed to file an its funds several there- fore, discharged employ. upon judgment her from its Based default was entered discovery pro- February that has occurred her on below, ceedings Copier now believes that Ms. Copier summary judg- filed a motion for may Hendrickson's embezzlement have be- against ment WesBanco November 2004 gun early as 1991. asserting, part, in relevant that the acts of Ms. Hendrickson carried out her embezzle- at conversion issue this case amounted to a checks, Copier’s by depositing ment of funds tort such that the limi- statute of Copier’s begin received from tations to which were vendors would run until the date payable Copier, per- made to into of the last act of were conversion. WesBanco Bank, subsequently judgment sonal accounts she held at WesBanco filed a motion for on (hereinafter “WesBanco”), Inc. pleadings claiming three-year referred to as the defendant this action. To embezzle statute of limitations to actions for funds, intercept negotiable pursu- Ms. Hendrickson would conversion of instruments Copier by § checks that had been mailed to ant 3—118(g) Va.Code to W. served 46— Copier’s vendors. She then locate the respect any nego- would corre- bar claims with sponding and “zero negotiated invoices out” the invoices tiable instruments more than Finally, a credit memo. sign prior filing original with she would three to the of the complaint February the back of the check with an endorsement in this matter. On “CWS,” purported meaning Copier hearing to be was held on all motions. Processing Supply, Following hearing, by Word and “John Alkire: order entered on Pres., Hendrickson, Treas.,” 28, 2005, February Doris and de- the circuit court denied posit personal Copier’s summary judgment the check into one of motion for two checking granted accounts she maintained at judgment Wes- WesBanco’s motion for on pleadings. Accordingly, Banco.1 Often she would some receive cash the circuit court deposit Copier alleges partial judgment from the transaction.2 awarded in favor of Wes- years, prejudice Copier’s over the Ms. Hendrickson re- Banco dismissed times, peated process any this at least 721 em- cause of action with $472,000.00, bezzling approximately alleged and that to have been any questioned negotiated years prior no one WesBanco at more than three authority deposit corporate filing Copier’s original complaint checks on Octo- personal into her accounts.3 ber Copier Subsequently, May 2005, Copier

On October filed civil filed against requesting action for conversion Ms. Hendrick- a motion the circuit court son, negligence certify questions clarifying and for to this Court against theory applies WesBanco.4 In November whether along period provided WesBanco filed its answer the limitations W. Va. Inc., original July complaint. 1. Ms. Hendrickson shared one of the two Wes- on the son, Banco accounts with her Steven complaint Hendrick- filed a second amended to add The other account was held in her son, son. own aas defendant Ms. Hendrickson’s Steven only. Fraudulently name endorsed checks were Hendrickson, personal who shared one of the deposited into both accounts. bank accounts with Ms. Hendrickson. WesBan- complaint amended co answered second 2. When Ms. Hendrickson received cash back also asserted a cross-claim Steven Hen- deposit solely from a to the account held in her timely drickson. Hendrickson answered Steven name, deposit own she would often that cash complaints, subsequently but filed for bank- into the account she shared with her son. Bankrupt- ruptcy protection in the United States Virgi- cy Court for the Southern District of West 3. Ms. Hendrickson was indicted for embezzle- and, Accordingly, presently party pursuant plea agreement, pled to a nia. he is not guilty stay provision to the offense. action due to the automatic Bankruptcy Code. the United States Copier subsequently filed an amended com- WesBanco, plaint the name to correct WesBanco, designated incorrectly had been II. 46-3-118(g). The circuit court Code motion and certified the granted Copier’s OF REVIEW STANDARD questions to this Court: following two appellate of review of “The standard governed the three In a case by a questions of and certified law answered provided for West Syl. pt. Gallapoo circuit court is de novo.” 46-3-118(g): Code Stores, Inc., 172, 475 v. Wal-Mart S.E.2d 172 (a) ap- Does the multiple, ply to the conversion of III. pay- separate negotiable instruments made by an em- plaintiffs business able DISCUSSION personal checking ployee plaintiff of to ques The issue at the heart of the of account at defendant bank over to determine tions certified this case seeks years, such that the cause of action several portion Copier’s claims survive the what at, limitations accrues and the statute of applicable statute of limitations. causes until, begin to run the date of the does not by by Copier governed of action asserted of the last out in the three statute limitations set instrument, permitting damage claims for 46-3-118(g), § W. Va.Code which states allegedly converted more than by governed regarding other Unless year's prior filing of the com- three contribution, indemnity claims for or an plaint, or (I) instrument, action for conversion of an received, money like action for had and or (b) Does the cause of action accrue and (ii) conversion, for breach of based on war- period run from the date of the limitations (iii) ranty duty, obligation, or to enforce an negotiation the of each instru- right arising under this article and not permitting damage only for claims governed by this section must be com- allegedly such instruments converted with- years menced three after the cause within year period prior filing in such three accrues. complaint? of the many of the transactions Because between (a) question The circuit court answered involving WesBanco and Ms. Hendrickson Or) negative question the and answered fraudulently the endorsed checks occurred accepted the affirmative. This Court the Copier more than three before filed its questions certified for order en- review complaint Copier sought in this to ex- Having tered March the considered operation of limita- tend the of the statute briefs, parties’ appellate including the brief by asserting tions conduct WesBaneo’s curiae,5 authorities, pertinent of amici continuing amounted to a tort. We find arguments presented, and the oral we now separate grounds reaching three our con- questions answer the certified in the same correctly reject- clusion that the circuit court they continuing theory manner were answered the circuit ed the tort when answer- First, questions court.6 herein certified. 2000) ("The pause briefly acknowledge appear- [S]upreme [A]ppeals 5. We [C]ourt to Virginia Virginia may question ance of the West nity Association of Commu- West reformulate a certi Bankers, Inc., it.”); the West Bank- Syl. pt. Manguin, Kincaid v. fied to Association, Inc., curiae, ers brief in as amici who filed a (1993) ("When a certi support court's to circuit answers question fied is not framed so that this Court questions. appreciate par- the ticipation We certified their fully the law which is involved in able to address position and consider their in deter- question, power then this Court retains the mining the outcome of this case. questions reformulate certified to it under both Questions the Uniform Certification of of Law has invited to invoke its au- this Court Va.Code, I, seq. Act found in W. 51—1 A — et and W. thority question in to reformulate a certified or- Va.Code, [1967], relating 58-5-2 question resolving der to an address additional questions certified from a circuit court of this applicability discovery rule to this case. Court."). We decline invitation. State to this (1996) (Repl.Vol. W. See Va.Code 51-1A-4 converting multiple, separate negotia- act of personal real property. Grahams’ ble instruments does not fall within the The circuit granted summary court judg meaning continuing theory of a tort as that ment in favor of the Parkers with previously applied Virginia; has been negligence the Grahams’ claim based in second, statutory provision setting part upon finding out the cause of ac clearly statute of tion was “time-barred the relevant stat expresses legislative ute intent that each act of of limitations.” Beverage, Graham v. separately conversion be treated W.Va. at for limita- 566 S.E.2d at 613. The purposes; finally, application appealed tions a Grahams claiming, this Court part, contrary would be Parkers’ conduct amounted to policy purposes “a underlying duty breach of causing the Uni- a con (hereinafter tinuing therefore, form repeated injury”; Commercial Code referred UCC”). to as “the statute of did begin to run “until the date injury.” of the last Id. The Continuing Theory A. Tort Graham Court observed that begin analysis our We of this case the thrust of the complaint Grahams’ by examining that the construction of the sys- infiltration ascertain whether it applica is amenable to tem as well continuing wrongful as the tion in the context of the conversion of a conduct of the negligently Parkers in fail- formally instrument. This Court ing to take action regard to correcting adopted continuing Sylla tort in alleged inadequacies system of that point bus 11 Beverage, of Graham v. causing continuing injuries to their real states: personal property. a Where tort a continuing involves or 477, Id. at 566 S.E.2d at 614. The Court repeated injury, the cause of action ac- then concluded that “we do not find the crues at and the statute of limitations be- negligence claim time-barred because the al gins run from the date of injury the last leged negligence of the complained Parkers or when the tortious overt acts or omis- by the Grahams continuing constitutes sions cease. wrongful continuing conduct tohich in from 466, (2002). juries added). Thus, (emphasis 211 W.Va. 566 emanate.” Id. S.E.2d 603 Graham in instructs that order to toll the Graham, Syllabus point 11 of which for statute of continuing limitations under a tort mally adopted continuing tort theory, there a “continuing must be or re jurisdiction, was derived from this peated injury.” To Id. determine whether per opinion Court’s curiam in Handley v. multiple, separate the conversion of negotia Shinnston, 617, Town 169 W.Va. ble to “a continuing instruments amounts Handley, S.E.2d 201 a water repeated injury,” we find useful to review Handleys’ transmission line installed on the some of the circumstances under which we property by the began Town of Shinnston have either apply declined to a leak sometime in 1972. The town was noti continuing theory. Nevertheless, fied of the leak at that time. pertinent portion

The October, 1976, Graham the leak “continued until when opinion a involved lawsuit home owners ruptured causing waterline a crack to Spencer against and Helen Graham appear Earle [Handleys’] on the surface of the and Jean Parker. yard.” The Parkers Handley, were 169 W.Va. at developers housing complex adjacent of a Although repaired S.E.2d at 202. the town property. crack, the Grahams’ In the course of the leak continued until the water building complex, a storm water man- line was removed 1978. The crack that system, agement initially also referred to as an in- appeared had in 1976 continued to system, filtration “expand slip” was constructed. The even after the removal of system result, management allegedly storm water large the waterline. Id. a “As cra altered the developed yard, flow surface water onto the ter in the and the foundation thereby causing damage Grahams’ land Handleys’ of the house shifted.” Id. The dis- complaint against CAMC was Ricottilli’s May The filed their civil missed, part at least in due apparently summary judgment granted circuit court Mrs. of limitations.8 expiration of statute finding the action was the town favor of were for claims CAMC of Ricottilh’s two-year statute barred reversed, infliction outrageous conduct or intentional appeal, this Court limitations. On resulting from CAMC’s distress emotional reasoning that delay providing Mrs. nearly ten month damage that the case it is clear In this autop- daughter’s copy of her Ricottilli with increased as all at once but not occur did sy report the results report, and its failure injury being a new progressed; each sample analysis. Her particular tissue of a wrong.... applicable one- filed was outside lawsuit indicates Handley’s deposition Donald Ricottilli of limitations. Mrs. continued damage property to a amounted argued that CAMC’s conduct If the tor- suit was filed. after the even rejected the- Court tort. This cease, it did indeed act in this case tious concept ory noting that “the leaking when the wa- not until was wrong- showing repetitious, requires a appellants’ removed from terline was Ricottilli, at ful conduct.” 188 W.Va. clearly shows the record property. As omitted). (citation 425 S.E.2d at 632 May appellants filed suit on Court further observed Ricottilli two after the water- less than removed, the action Spahr line was v. Preston explained Court as this limitations, and Education, the statute of barred County Board granting sum- (1990), circuit court erred in wrongful act ... mary judgment. continuing damages consequential Id. at not a tort. 619-20, at 202-03. alleged continuing at 742. The S.E.2d Handley dem and cases both The Graham untimely and wrong in this case is the wrongful where a act was instances onstrate incomplete autopsy report as well as the time, continuing causing dama over sustained report to the failure of CAMC to date Having un ges.7 observed circumstances analysis. sample results of the tissue applied has the continu this Court der which theory, consider cases ing tort we now regard dilatoriness of the With theory rejected. the was wherein Appel- autopsy report, upon its tender to thereabouts, 9, 1990, January on lant In Ricottilli v. Summersville Memorial delay only 674, act of was fixed and the Hospital, 188 W.Va. to (1992), aspect of the claim that could be said suit Sum Mrs. Ricottilli filed damages, wrongful but not the Hospital, Charleston continue mersville Memorial (hereinafter Similarly, the incom- act itself. See id. referred to Area Medical Center others, “CAMC”), pleteness autopsy report, of the insofar as in connection and with as speeif- a six-year-old Appellant contends the absence of daughter. Mrs. the death of her act, continuing applied Taylor Copier the Court also directs our attention to 7. 639, District, theory W.Va. Public Service Culloden 591 S.E.2d tort and found that the relevant statute Taylor, owner/op- In was limitations did not run until nuisance facility a wastewater treatment continu- erator of ously dumped in the manner abated. Id. We find no distinction sewage Indian untreated into applied was in which the Fork, causing damage adjacent property Creek way Taylor and the it was in Graham by Bobby Shirley Ball. The Balls owned Handley. brought against the treat- intervened in an action facility the Division of Environmental identify, failed to and the 8. The circuit court facili- Protection and that treatment reveal, specific grounds relied record did not ty’s conclud- created a nuisance. After conduct grant upon tilli, Ricot CAMC'smotion to dismiss. temporary the nuisance created was a 629, W.Va. 425 S.E.2d 631. nuisance, Taylor explained that "the Court argu Accordingly, this Court addressed both temporary until such time as nuisance continues dismiss, asserted CAMCin its motion to ments abated or discontinued.” 214 those acts are expiration of the relevant 647, one of which was the upon at 591 S.E.2d at 205. Based W.Va. temporary a statute of limitations. Id. nuisance was conclusion that the DeRocchis, report ic of death renders the incom- cause Peter Vincent a num sustained plete, wrongful that, act was as of injuries effect, fixed discrete ber of he 9,1990. regard January to the tissue With exposed isocyanate was on a fumes num report, Appellant contends and CAMC ber different discrete occasions.” DeRoc dispute does not that she first learned chis, brief, through appellate CAMC’s explained The DeRocchis Court August on filed this Court “continuing conceives a action” cause of 1992, that the liver tissue had “[b]ecause being events, a situation where which for per- been embalmed and no tests could be identical, practical purposes all are occur formed, there are no liver tissue re- test intervals, repeatedly, at short in a consis- reported.” be sults to Given the facts tent, connected, rhythmic manner. Court, currently before applicable regard any case, statute of limitations present In the developed the facts delay report in the issuance of tissue events, suggest the traumatic Mr. DeRoc- August would start to run exposure isocyanate fumes, chis’ oc- Court apprised Were this to discover or be sporadic curred such a and nonconsis- Appellant at knowledge did have way separate tent as to constitute causes point an regarding earlier defi- of action. samples, accordingly cient tissue would 423 n. 460 S.E.2d at 669 n. 4. adjust the onset for the date The Court also held that period. Appellant’s Because pertaining autopsy claims and tis- [w]hen, in employment, the course of reports sue in- acts do not similar, person fixed receives number of but conduct, continuing wrongful volve injuries, separate, injury gives each rise to inapposite. distinct cause action. Ricottilli, 677-78, Further, 188 W.Va. at 425 S.E.2d at each (footnote added) omitted). (emphasis 632-33 begins cause of action to run from date thereto, the instant injury contends giving rise without conduct, unlike CAMC’s the conversion of any injuries. regard previous injury multiple, separate negotiable instruments Syl. pt. Although type DeRocchis. “repetitious, wrongful amounts to conduct.” injury directly involved in DeRocchis is not Id. at 425 S.E.2d at 632. disagree, We negotiable point with the conversion of as this Court has amade distinction between ease, at instruments issue it instant “repetitious, wrongful conduct” that amounts ‘continuing nevertheless instructs “a tort, id., continuing “similar, to a and but cause action’” is found in “a situation separate” acts that do not. v. DeRocchis events, practical pur- where for all Inc., Matlack, 194 W.Va. 460 S.E.2d identical, poses repeatedly, at are occur short (1995). 663, 669 intervals, consistent, connected, rhyth- in a DeRocchis involved a chemical mic manner” 194 W.Va. at 423 n. truck repeatedly exposed driver who was 4., “similar, S.E.2d at 669 n. and that but diisocyanate during tolulene the course of his separate” injuries give sepa- a each rise to employment April from 1972 until March or Syl. pt. distinct cause of rate and action. repeated exposure 1989. The chemical re DeRocchis. sulted in suffering Mr. a diminish DeRocchis analysis A final case we find useful to our pulmonary ed April function. In he Jellen, is Auber 196 W.Va. 469 S.E.2d against employer. filed a lawsuit his One Over a one about in this issues lawsuit was whether months, and nine Mr. Auber Dr. repeated was seen exposures chemical one constituted separate on five and re- continuing reaching tort. In Jellen occasions conclusion' diagnoses. five different Mr. Auber exposures that Mr. ceived DeRocchis’ various were Kalla, specialist, a separate injuries then referred Dr. opposed to one continu was tort, diagnosed ous Court cancer. observed that the who his condition as rectal “[i]n present appears malpractice appellant, subsequently that the Mr. Auber filed a connected, parties stipu- rhythmic manner. Just as Dr. The Jellen. DeRocchis, expo- discrete where several lated worsening con- each contributed to a sures opinion, a de- Kalla’s to reasonable Doctor dition, misdiagnosis examination and each certainty, upon the medical based gree of left tumor unde- Auber Mr. Auber’s Mr. cancer, type and of the tumor size which, tected, delay, grew and with each pres- and had been that the tumor cancer occasion, On each with each worsened. years, than two in Mr. Auber for more ent misdiagnosis, a physical examination and of the cancerous placing thus onset being upon, course was set each new first ex- prior to Doctor Jellen’s condition Auber_ negligent act or and a discrete omission Mr. amination of injury to occasion of Mr. Auber. 107. The at 469 S.E.2d at 196 W.Va. at at 110. S.E.2d ultimately a un- parties reached settlement paid the limits Dr. Jellen’s insurer der which discussion, find light foregoing we insurance, agreed it was policy of of one multiple, conversion of the judg- declaratory a Mr. Auber would file in this case negotiable instruments at issue any if additional action to determine ment a Con not amount to tort. does liability coverage was medical insurance negotiable is unlike version policies other sold under insurance available the circumstances created Graham declaratory judg- Dr. Id. In the Jellen. Handley, wrongful created a where conduct action, question a arose with then specific injury, which was misdiag- examinations and “whether five perpetuated failure to tortfeasor’s ” ‘continuing a tort.’ constituted noses Instead, action. find that take corrective Relying on 469 S.E.2d at 109. negotiable the conversion of instruments cre opinion, Auber Court rea- the DeRocchis a to that de ates circumstance more akin soned, in DeRocchis scribed and Auber. As exposures misdiag multiple multiple rationale of DeRocchis cases, pointed converting appeal As was in those the act of before us. noses below, yet separate, multiple, negotiable the court there was not instru out being course treatment with re- does not lend classified ments itself “events, purposes each of spect practical the five examinations. which for all identical, produced repeatedly, a different occur at short inter Each examination vals, consistent, connected, rhythmic com- misdiagnosis; each examination in a DeRocchis, treatment; each n. menced a new line of manner.” 194 W.Va. at 423 delay Rather, at 669 n. 4. examination was an occasion of while delay prompt appropri- multiple conversions carried out re further were time, peatedly treatment of cancer. These over each conversion was ate the rectal act, examinations, misdiagnoses single involving discrete discrete transaction not, disparate specifically in the individual instrument.9 treatments were conversion, similar, Handley, identical, occurring Thus, a though of re- each words intervals, consistent, distinctly separate in peatedly, at short a transaction.10 We need Maint., factually Corp., addressing 9. A court a simi- Metro Elec. & Inc. v. Bank One 924 Louisiana 446, (citation (La.Ct.App.2006) reached the lar case same conclusion: 451 omit- So.2d ted). Bank Metro Electric the actions of asserts that tort, a constituted and thus One our directs attention to two lower argu- begin prescription did not run. This from that a continu court cases ing Illinois by deposit merit. Ms. Riser ment lacks Each conversion of Computer Pow- of Metro Electric checks into instruments, v. Field First National Bank Har account, subsequent and er's Bank One’s seek- of 247, 822, Ill.App.3d risburg, 619 Power, 249 189 Ill.Dec. ing payment Computer for of consti- Illinois, (1993), N.E.2d 1296 and Haddad's separate separate tuted a conversion of Union, Ill. Credit Union 1 286 Inc. v. Credit damages. There is a ac- neither continuous 1069, 710, App.3d 222 N.E.2d 322 Ill.Dec. 678 part tion on the One nor a continuous Bank Field, Illinois, Electric, (1997). Appellate the damage Court of both of suffered Metro District, necessary Fifth lamented that it was "unable which are to find a any in which a of checks cashed tort.... find cases series

47 solely relating rely might not law to continu- or the reasonable minds be uncertain dis- (internal answering questions agree meaning.” torts in the certified as to quotations its case; omitted)). presented however, appli- this the and citation clearly expresses Legisla- cable statute ambiguity We no language find regard. ture’s intent 46-3-118(g). By stating § of W. Va.Code 46-3-118(g) § B. West Code period applicable of limitations to the conver instrument,” Leg sion of “an we believe the statutory provision The that estab plainly expressed islature has intention lishes of limitations that each act of be treated as a states, part, acts of conversion relevant purposes. violation for limitations that action for “an ... conversion of an “[generally It has been stated that instrument, money received, for had and or given of a words statute are to be their conversion, like ... action based on be must ordinary significance and familiar and mean commenced within three after ing, regard general and is to be for had their § cause of action accrues.” W. Va.Code 46- 4, proper Syl. pt. and use.” State v. General added).11 (emphasis 3-118(g) It is es well 548, V.F.W., Morgan Daniel Post No. 144 object primary tablished that “[t]he con (1959). 137, 107 Syl. pt. W.Va. S.E.2d 353 struing give a statute is to ascertain and Cf. 1, Hix, Miners v. Group in Gen. 123 W.Va. Legislature.” Syl. effect to the intent of (“In 637, (1941) 17 S.E.2d 810 the absence of pt. Comp. Smith v. State Workmen’s any meaning definition the intended Comm’r, 159 W.Va. 219 S.E.2d 361 or legislative words used in terms a enact (1975). However, equally it is well settled ment, they will, in interpretation statutory provision “[a] clear act, common, given ordinary be their and unambiguous plainly expresses accepted meaning in the connection in which legislative intent not interpreted be will used.”), they are grounds overruled on other given but be courts will full force and Rutledge, Lee-Norse v.Co. Syl. pt. effect.” Epperly, State v. 135 (1982). 291 usage S.E.2d 477 The familiar (1951). W.Va. See also “an,” meaning of the term used in when Co., Sizemore State Farm Ins. 202 Gen. appears the manner in which it in W. Va. (1998) § 46-3-118(g), singular’. Code As one court (“A open only statute is to construction explained has language requires interpreta where the used ambiguity tion euphonic because of “An” which renders is a mutation of the arti- susceptible of more two or constructions “a.” cle Webster’s Third New International meaning such doubtful or Dictionary obscure “n” letter allows single pur- opined is said to constitute a transaction for issue at least one federal court has poses running Supreme apply the statute of limita- Illinois Court would Ill.App.3d tions....” 247, 189 Ill.Dec. in this manner. See Nevertheless, Union, 619 N.E.2d at 1299. Rodrigue Employees v. Olin Credit daughter's repeated (7th Cir.2005) court concluded that con- (interpreting F.3d Illinois

version of retirement checks his father's over concluding, part, in relevant that “a restrictive endorsement amounted cause of conversion arose each " 'scheme, plan, conspiracy, or the like’ which deposited Wiltshire one cashed of the checks deposits would transform the into what could be embezzled”). had she Haddad, single considered transaction.” Id. In Illinois, District, Appellate Court of Fourth 46-3-118(g) The full of W. text Va.Code Field, approval holding cited with but states: ultimately rule, applying found even the Field governed by regarding law Unless other plaintiff’s applica- the action fell outside the contribution, indemnity claims for or an action Ill.App.3d ble statute of limitations. 286 (i) instrument, 1072-73, money for of an 222 conversion for Ill.Dec. 678 N.E.2d at 324. received, analysis had and version, (ii) or like action based con- We find the utilized the Field court to (iii) warranty for breach of or be inconsistent with the manner in which the obligation, duty, right arising theory enforce an tort has been in West governed by Virginia, and we under this article and not this therefore decline to follow these Moreover, conceded, cases. has the section must be commenced within three Supreme yet Illinois Court has to address this after the of action cause accrues. 48 (2005) (“[W]e are should to be made between 408 satisfied we distinction

an audible majority it in this precedes. “a” and the word follow the vast of courts the article Consequently, country the resolution of uniformly Id. have held that interpretation on an appeal turns against a cause of action bank a conversion as an article “a.” “A” is defined article negotiable instruments “used as a function word before conversion_”). is which time of accrues at the singular proper other than most nouns and mass nouns when individual Purpose Policy and UCC C. unidentified, undetermined, question is Finally, applying a continu- we believe added). (emphasis unspecified_” at 1 Id. ing negotia- (Iowa Kidd, 764, 765 State v. 562 N.W.2d contrary purposes ble instruments is omitted) 1997) (footnote (concluding policy of and behind UCC. W. Va.Code statutory defining language the unit of “[t]he (2006) expressly § (Supp.2006) 46-1-103 724.3 is ‘an offen prosecution under section states that: ordinary weapon.’ ... Based on sive (a) chapter liberally con- This must be ‘an,’ meaning of the word as ascertained from promote underly- applied to strued and dictionary, we think the statute refers policies, purposes and are: single weapon.”). of a possession offensive Martin, See also State ex rel. Fatzer (1) simplify, clarify modernize To and (1953) 160, 162-63, Kan. 258 P.2d transactions; governing commercial law (“The using legislature in the word ‘an’ was (2) expansion permit To the continued following ordinary grammatical construc custom, practices through us- commercial tion as the use of ‘a’ could have been age agreement parties; and preceded a com proper inasmuch as it word (3) among To make uniform the vowel, only mencing words jurisdictions. various ‘any’ proper. More ‘an’ or would have been negotiable Ins. Co. v. tended ly expressed its lative intent it that a cause of action for the conversion of a the statute of limitations cordingly, applying the Cart v. check is conversion be treated as a subsequent a tort (Ind.Ct.App.2006) over, referred 46-3-118(g) (1992) (“a to causes of action it is occurs_”). it to have a Marcum, Insofar as the negotiated. instrument apparent Bank period occasions plainly expressed ‘said would be purposes, cause intention One, (“When city’ singular meaning set out W. Va.Code See of action accrues accrues at the time the in the See Legislature in the contrary begins to Syl. pt. 1, also governed by the rationally that each act of N.E.2d proviso.”). singular therein. of a legislature in property Auto-Owners run) has violation because follows on two plain when legis part, (i.e., con- Ac rule, explained other gotiable explained: the commercial strongly against One Uniform Commercial Code may play lies in their ness. Cheeks must be transferable. gotiability merical collection tiability requires Robert checks, Consequently, [T]he equitable court, rejecting creditors Equity instruments. As utility Hillman, Code, its role as through payment channels. of commercial ability ... seek tolling rule, Under the Uniform open-ended liability “in P 14.01 policies underlying negotiable payment et predictable structuring be to enhance al., money ^[1] application the Third Circuit readily accepted paper Common (1985). Nego for ... substitute.” the law of indebted discovery so that it militate the ne on ne- of an- rapid Com Law instrument, Closely negotiability related to verted is a the dam- finality certainty. done, commercial “The age complete and the tort is when finality promoted an negotiated....”); of transactions the instrument New liability Jersey definite Lawyers’ Client Protection ascertainable Fund for Pace, negotiability N.J.Super. 374 863 A.2d free of essential

49 that, alleging commercial in an action conversion of mul- instruments on which wel- instruments, tiple, separate negotiable heavily depends.” Fuscellaro v. fare so three-year governed by period Corp., Nat’l 117 R.I. 368 Industrial (1993) (1977); [statutory 46-3-118(g) 1231 cita- set out in Va.Code A.2d W. (Repl.Vol.2001), the cause of action accrues tion omitted]. period begins to run from

and the limitations separate negotiation the date of the of each sought quick The Code drafters instrument. inexpensive of commercial resolution overarching goal par- disputes. This IV. negotiable in- ticularly important with exigencies of struments where CONCLUSION require inexpensive, quick, commerce Applying foregoing holding to the cer- and reliable transfer of funds. When presented, questions tified herein we answer only legally significant temporal them as follows: injury are the time of events governed by In a the three case filing, time of the issue whether period provided for in of limitations bars an action be- statute 46-3-118(g): Code relatively simple comes a determination (a) capable of resolution on the basis of theory ap- Does the judicial pleadings. alleged multiple, of ply to the conversion negotiable pay- instruments made ], [1224,] F.2d Menichini Grant 995 [v. by an em- plaintiffs able to the business (3d Cir.1993) ]; see also Had [ 1230-31 ployee plaintiff personal cheeking of Illinois, 1 dad’s Inc. Credit Union [v. of at defendant bank over a of account Union], Ill.App.3d Credit years, such that the cause of action (1997) several [322,] N.E.2d 326 [ ] Ill.Dec. at, of limitations accrues (“The negotiable use of instruments was until, run the date of the begin does not rapid of com intended to facilitate the flow negotiable of the last conversion policy is best find merce. This served instrument, permitting damage claims for ing the accrual of a cause of action for allegedly more than converted instruments oc filing of the com- prior three negotiated.”); the instrument is curs when plaint, or Co. Mahaska State [v. Husker News [(Iowa [476,] Bank], 460 N.W.2d No. Answer: 1990) (“Strict application of the limitation ] (b) cause of action accrue and Does the predictably in some period, while harsh period run from the date the limitations cases, goals best serves twin swift separate instru- negotiation of each ‘certainty resolution controversies only permitting damage claims [Code].”). liability1 advanced allegedly converted with- such instruments filing year period prior to the Lee, three such Spaghetti Steak & House v. Pero’s (Tenn.2002). complaint? find 622-23 We S.W.3d pres- equally persuasive in the this rationale Answer: Yes. context; therefore, ap- conclude that ent we questions Certified answered. plying continuing to the conver- contrary negotiable instruments is sion of STARCHER, J., dissenting. purposes policy of and behind the UCC. majority opinion makes that will Holdings According- D. wrongdoers get off scot-free. let ly, I dissent. upon foregoing Based discus required sion, purposes of this we are expressly equita For now hold (“the bank”) was that Wesbanco tolling theory continuing torts does not to assume ble worse, and “looked the multiple, separate sloppy and careless or apply to the conversion defrauded way” Doris Hickerson further hold other while negotiable instruments. We required years employer. escape accountability We are also to as- for and then on a engaged technicality. sume that the bank this miscon- duct seven never corrected its Finally, plaintiff Copier Word Process- continuing conduct.1 may just negligent Copi- been have as says probably er the bank was—which is The statute of limitations can sometimes unspoken reason behind the result arrived help person stops doing things. who bad by majority opinion. legal But from a wrongdoer But matter it’s another when a view, point comparison is to be made over, repeats acts those bad over and trial, jury by at a before a a court that then, caught, plead when tries to the statute —not way goes express appreciation out of its escape accountability of limitations to for the played by Virginia of the role the West Asso- earlier actions have continued unabated. Community ciation of Bankers and the West presents majority opinion The the reader determining Bankers Association “in exactly that supports one case its coun- case,” the outcome of this see note 5. holding ter-sensical two that do not. —and Accordingly, I dissent. exactly “persuasive authority.” This is not Moreover, majority opinion confuses ALBRIGHT, Justice, dissenting. apples oranges. opinion recognizes For the reasons set forth Justice establishes legally Starcher in his sensitive and correct begins statute to run dissenting opinion, I judg- dissent from the injury on the date of the most recent reasoning majority ment and the Then, opinion instance of misconduct. this case. theory hanging, leaves the “equitable tolling,” and then discusses

suspends running of the statute of limi-

tations, entirely an different issue. The ma-

jority opinion appreciate doesn’t seem to

simple distinction, leading confusing to a

holding at best. Patty Kalany, KALANY and Robert apply the instant one can Below, Appellees, Plaintiffs

continuing tort to claim that the most recent “conversion” the bank was when began to run. But CAMPBELL, Individually Herman may one also view the case one where Bar, Irene’s Defendant D/B/A fraudulent concealment or similar conduct Below, Appellant. “equitably the bank tolled” the statute of begun running limitations which had at each No. 33078. episodes. of the earlier It’s unclear what Supreme Appeals Court of majority opinion means on these two differ- Virginia. issues; way, ent but either the bank should away get be able to miscon- Submitted: Oct. 2006. they duct stopped engaging when never in it. Decided: Nov. “statutory As to the construction” discus- Concurring Dissenting Opinion majority opinion, sion it strains to Justice Starcher Nov. produce gnat. The drafters of the UCC clearly did not demonstrate the intent sleep a bank to rights

allow on its customers’ accept 1. Let me I posture be clear that do not aas so find. But in the of a motion to fact wrongdoer that Wesbanco ais in the instant limitations, dismiss based on the statute of know, everything case. For all I Wesbanco did allegations against must treat all of the Wesban- bank should do with to their customer co as true. Processing, jury might Word and a well

Case Details

Case Name: Copier Word Processing Supply, Inc. v. WesBanco Bank, Inc.

Court Name: West Virginia Supreme Court

Date Published: Dec 1, 2006

Citation: 640 S.E.2d 102

Docket Number: 33046

Court Abbreviation: W. Va.