*1 DHHR maintains after school, children were removed from the these cooperative appellees became less and as staff and result some the children were Thus, they requested
interviewed. that the appellees
circuit court order the to make the
remaining children and staff available record, reviewing
interviews. After ample DHHR opportuni
believe that the
ty investigate neglect the abuse and alle
gations. investigators The DHHR’s were at interviewing
the school and staff the students through April April
from 1999.
The DHHR conducted further interviews on 1, 2,
May 24 and 1999 and on June every 1999. There is indication that the thorough
DHHR conducted zealous and
investigation. Consequently, we see no basis allowing DHHR to conduct further
interviews the students and staff of Mira
cle Meadows.
Accordingly, for forth the reasons set
above, final the Circuit Court County January
Ritchie entered on
is affirmed.
Affirmed.
WEST FIRE & VIRGINIA CASUALTY
COMPANY, Below, Plaintiff
Appellee, MATHEWS,
David Defendant
Below, Appellant.
Rodney Loftis, Defendant
Below, Appellee.
Record No. 27711.
Supreme Appeals Court of Virginia.
Submitted Oct. 2000.
Decided Dec.
Dissenting Opinion of Justice 16, 2001.
MeGraw Jan. *2 Heavens, Venza,
Christopher J. Denese Offices, Charleston, Heavens Law Vir- West ginia, Attorneys Appellant. for the Munster, Riley, D. Catherine James N. Durst, McNeer, Tiffany Highland, R. Varner, Clarksburg, McMunn Virgi- & West nia, Attorneys Appellee West Casualty &Fire Co. Brown, Timothy MeNeely, E. A.
Johnnie Pullin, Knopf, Flanagan, Fowler & Charles- ton, Attorneys Virginia, for Appellee ' Rodney Loftis. PER CURIAM: In this appeal declaratory judgment from a Mathews, insured, David asks this rulings by Court to reverse two the Circuit County. Court of Kanawha One order de- nied Mr. Mathews’ motion to alter or amend judgment granting summary judgment insurer, Mr. based, Casualty Company, in relevant
part, upon the circuit conclusion that Mr. without coverage Mathews was for his loss, asserted the destruction of a house he owned. The second order dismissed contractor who had performed the demolition. We conclude correctly found that Mr. possess coverage Mathews did not for his loss, “Dwelling was a Mr. Mathews suranee Fire” because asserted comply coverage,2 with the West Rules is commonly with extended dilatory in unduly and was of Civil Procedure policy.3 known as a “named cross-claim, the cir- attempting to assert Following house, the destruction of the dismissing err in cuit court did not *3 a claim with Virginia filed West claim. seeking coverage Fire for his loss. On June Virginia West a Fire issued declina- I. indicating tion letter that there was no cover- FACTUAL AND PROCEDURAL age for pur- claim as he
HISTORY chased for or vandalism malicious Thereafter, Virginia mischief. West to Fire appeal, The facts relevant this declaratory judgment filed a essentially undisputed pursuant the circuit before were court, In Virginia are as follows. March con- to the West Uniform Declaratory (hereinafter “Loftis”), Rodney Act, tractor Loftis Judgments § 55-13-1 et W. Va.Code below, appellee and an defendant herein seq., judicial seeking determination of the through a employees, his demolished house duties, respective liabilities, rights, responsi- (hereinafter by owned David Mathews1 legal relationships bilities and between itself “Mathews”), a appellant herein and defen- subsequently and Mathews. Mathews filed dant below. Loftis contends that he had declaratory judgment his answer to the com- approached by a purporting man to be been plaint and a against asserted counterclaim Mathews, requested who the destruction of Virginia contract, West Fire for breach two the aforementioned house. The men faith, prac- bad and unfair claims settlement property negotiated and a fee for viewed tices. performed. demolition to services However, man who Loftis was met with filing Sometime after its answer to Math- meeting Mathews. Loftis’ with After counterclaim, Virginia ews’ West Fire a filed imposter, employees hydraulic his used a ex- summary judgment. motion for house, cavator to debris was raze the response then filed his to West away dump in a truck. then hauled motion, and, judgment summary Fire’s addition, for summary filed a counter-motion destroyed, At the house it time the was Thereafter, judgment. the circuit court en- policy insured is- under of insurance an tered titled by Casualty “DECLARATORY West Com- sued & JUDGMENT,” apparently which was pany, appellee plaintiff unre- herein and below (hereinafter Fire”). in- for parties’ summary The lated to the motions ‘West part appears following made Perils 1. It that this was one of several houses Insured primary Against. his owned Mathews was not residence. or mischief. Vandalism malicious peril This does not include loss: regard coverage purchased safety 2. With to the glass glazing a. or to material consti- Mathews, stated, part: in relevant tuting building glass part of the other than blocks; building Coverage for When a Premium Extended theft, by pilferage, burglary larceny, Declarations, b. or through shown Perils damage but we be liable shall for to the part Against. Perils Insured are by burglars; building covered caused or property c. on the Described Location if 6. Vehicles. dwelling has been vacant for more than peril This not include loss: does days immediately before operated 30 consecutive or a. caused a vehicle owned dwelling being loss. A constructed is not you of the Loca- resident Described tion; considered vacant. fences, page The of the by any Declarations shows that b. caused ways vehicle to drive- pay premium Mathews did not vandalism and walks. or malicious mischief. policy goes to state: may type referred When a for Vandalism Malicious 3.This also be to as a Premium Declarations, "specific policy. in the Mischief is shown time, order, alleg- first a cross-claim Loftis judgment.4 In the court effec- summary tively ing both motions for destruction of house “the denied negli- declaratory judgment and that the sole causal result ordered conduct, judgment wrongful bad faith claims fault of Rod- gence, action and the and/or proceed simultaneously. agents.” ney would to trial Sub- ... Loftis Loftis and/or however, agreed sequently, the circuit court responded with a motion to dismiss. permit opportunity Fire the West response In court’s order respond to Mathews’ counter-motion summary judgment Virgi- judgment. summary Fire, nia Mathews filed “MOTION TO addition, 22,1999, Virgi- on March ALTER OR AMEND JUDGMENT.” complaint adding nia Fire filed amended Thereafter, entered three alleging, with Loftis a defendant and re- as separate September orders on dis- *4 Loftis, to loss Mathews’ gard that the In posing claims in this action. the of all the negligent or oth- property “resulted from order, first the circuit court denied Mathews’ defendant, Loftis, conduct of the wrongful er judgment, motion to alter amend find- demolishing dwelling by Math- owned ing bring to forward that Mathews “failed ” Thereafter, court en- .... ews legal authority evidence additional DE- an order “RECONSIDERING tered previous upon which the of this Court Order AND JUDGMENT MOTION CLARATORY The order should be disturbed.” second JUDGMENT,” 1, July on FOR SUMMARY Virginia granted Fire’s motion for sum- West order, granted 1999. In this the circuit court counterclaim, mary judgment on Mathews’ Virginia judgment favor of summary West finding substantially that did Mathews based, part, upon finding in relevant its action, declaratory prevail judgment in the that: and that there was “insufficient evidence to imposter instant fraudu- Virginia under Unfair continue the West lently to be pointed out the structure de- [Act].” Practices The final Claims Settlement Loftis, by and molished defendant motion granted order Loftis’ to dismiss on by in fact same structure was demolished grounds delayed that Mathews for some Loftis, the im- defendant who under asserting time Lof- requested had pression that the owner tis, to and that Mathews seek Clearly, cause demolition. the direct of the court to amend his answer to leave was the malicious act the al- the loss It include cross-claim. is from the circuit leged impersonator who that directed denying Mathews’ motion to order structure demolished. judgment, alter or amend and the court’s dismiss, opinion that This Court of the based order motion to Loftis’ plead by appeals. on facts as Math- defendant now Mathews negligent ews is no act which could give coverage to under rise the insurance II.
policy at issue in this matter. The act OF REVIEW STANDARD complained of defendant Mathews and coverage for which he seeks under the appeals separate two Mathews orders clearly an act of vandal- County. of the Court of Kanawha Circuit part motion, ism or malicious behavior on the denied Mathews’ One order made 59(e) party. This pursuant Virginia some third factual scenario to Rule of the West Procedure, leads back the insurance Rules of alter or amend a Civil possible for such vandalism or judgment. previously explained: We have behavior. malicious applicable review to an “The standard of Meanwhile, appeal on from a motion to or amend a June Mathews alter asserting, judgment, pursuant R. filed an amended answer W. Va. Civ. sponse summary 4. The before there was a to Mathews’ counter-motion for rendered summary hearing judgment judgment. on either of the mo- tions, before Fire filed a re- West
1H 59(e), P. the same standard that would III. apply underlying judgment upon to the DISCUSSION motion is based and from which appeal Syllabus this Court is filed.” Coverage A. 1, Point v. American Travellers Wickland argues that the circuit court Ins. W.Va. Life judgment granting summary erred in (1998). upon Fire based its conclusion Syl. Thompson pt. v. Branches-Domestic direct loss cause Mathews’ was a Huntington, 207 Violence Shelter W.Va. impersonator. malicious act judgment 534 S.E.2d proximate asserts under the efficient underlying Mathews’ motion to alter doctrine, predominating cause cause need granted judgment summary amend to West triggering be the cause. Thus, appellate our Fire. review Fire, hand, other entry de novo. “‘A circuit court’s of sum- argues that ruling the circuit court’s should mary judgment Sylla- de reviewed novo.’ correctly be affirmed as it determined that point Peavy, bus Painter v. the efficient cause of the loss sus- (1994).” pt. 1, Syl. Shaffer wrongful tained Mathews was the action Co., Inc.,
Acme
Limestone
imposter requesting
Loftis to demolish
(1999). Furthermore,
in ex-
*5
house,
the
action amounted
vandal-
review,
ercising
in
plenary
this
we must bear
mischief,
peril
ism or malicious
a
for which
mind that:
coverage.
Mathews had no
summary judgment
“A motion for
should
granted only
when it
clear that there
proximate
The efficient
cause doc
genuine
is no
issue of fact to be
tried
adopted by
was
this
in Murray
trine
Court
v.
inquiry concerning the facts is not
Co.,
desir
Casualty
Farm Fire
203
State
&
W.Va.
clarify
application
(1998).
able to
the
of
law.” 477,
the
Having appropriate ed in Mathews’ the action of set forth standards loss: (2) review, verify imposter; for our we now consider the issues Loftis’ failure to presented appeal. identity person requesting the demolí- home; (3) beauty public private property”). of demol- or of or
tion of the actual act However, ishing agree ordinary meaning of the Similarly, plain home. we with direct, predominat- or the trial court is “willful destruc- mischief’ term “malicious ing, of the in this case was the cause loss property by ill will personal motivated tion imposter arranging action in the demo- posses- its owner or or resentment toward But for actions of lition of the house.5 Unabridged sor.” Random House Webster’s imposter, evidence that Third Dictionary 1164. See also Webster’s Loftis would have had reason to take English Dictionary New International action whatsoever toward the destruction of (defining mischief’ Language 1367 “malicious question. the house wanton, “willful, damage or reckless as or property”). destruction another’s Moreover, agree the trial with Cf. Dictionary 761 & Century 20th Chambers imposter court that the action of “bearing ill-will (defining as “malicious” clearly act of or malicious vandalism be “ mis- spite: or ill-will: in an moved hatred ‘Language havior. chievous,” “an ill given plain, ordinary meaning.’ defining “mischief’ as should be its Shand, Syllabus injury: Morahan hurt: consequence: damage, Point Soliva evil: Co., Inc., pet- & of harm: fact: a source the troublesome (1986).” pt. 1, Murray. Syl. Vandalism annoyance: pestering playful- ty misdeeds generally “deliberately to mean understood ”). ... ness or malicious destruction or dam mischievous noted, duly As circuit court age property.” Random House Webster’s coverage for purchase did not vandalism (2d ed.1998). Dictionary 2104 Unabridged argues, without malicious mischief. Mathews Century Dictionary See also Chambers 20th pur- authority, coverages legal (1983) “vandal,” (defining part, as consid- chased an insured should not be destroys ... “one who what beautiful one deciding particular loss ered whether wantonly property,” damages who and defin *6 coverages. of purchased falls within one the ing “vandalize” as “to inflict wilful and sense argues that the regard, In this etc.)”); damage (property, less on Webster’s by a of his house was caused destruction Dictionary Third New the International of vehicle,6 his 1970) peril which under a was covered English Language (unabridged the did not contain an policy. policy (describing “vandalism” as “willful or mali Because things un- express cious of for malicious mischief destruction or defacement of exclusion by lawyers a predominating do in 5. While the determination of the not constitute evidence Ward, fact, See, question e.g., generally a case. Crum v. cause of a loss of in Pres., (1961) (Haymond, surrounding the case the facts the demoli- instant knows, every ("Every dissenting) judge trial as tion of Mathews’ were not contested be- house knows, instance, every Thus, lawyer appellate court trial and proper, low. it in was this for know, determine, law, judge of coun- that the statements should the trial court to as a matter of argument in not but are sel an are evidence imposter predomi- that of the action the was the merely expression individual the of his nating cause of destruction of Mathews’ views....”). unsupported Consequently, this additionally house. We note that Mathews has theory by lawyer is inade- asserted Matthews’ complained that the circuit court failed to con- quate question fact that to raise material of may impos- sider that Loftis have concocted the summary judgment. preclude by would story tor in an cover effort to an error his house) (i.e., destroying employees wrong and liability. theory, supported properly if avoid This appeal, raises the issue of 6. On Mathews also record, question create a of on the would fact to raze house was whether the excavator used his However, summary judgment. preclude and our contemplated of as his a "vehicle” designated appeal review of the on re- record Because find that efficient insurance. we theory, for veals that this which was raised was the vandalism cause his loss by imposter, peril first time Mathews in his "REPLY TO DE- for mischief of the malicious coverage, FENDANT and WV FIRE’S LOFTIS’ RESPONS- we address which he had no need not question ES MOTION ALTER OR AMEND JUDG- MENT,” TO TO a vehicle. of whether ari excavator is reason, expressed by simply was need not addi- For the we resolve same court, involving in briefs to circuit raised Mathews counsel submitted tional issues Court, any interpretation supporting portions of and this without docu- of other to evidentiary policy. Statements mentation basis.
H3 clause, comply der the vehicle Mathews contends cross-claim as Mathews to with impor- his loss It that should be covered. requirements of the West Rules note, however, tant that of Civil Procedure. question policy. is a “named Unlike agree with this We Loftis that issue is “all-risk” all that that includes risks 15(a) resolved Rule of the West specifically are excluded the terms Procedure, Rules of Civil which states: contract, perils” policy “named excludes may party Amendments. —A amend the specifically “all risks not included in con- party’s pleading once as a matter of course Segal- tract.” Lee R. Russ and Thomas F. any responsive at pleading time before a la, 101:7, § 3d 101- Couch Insurance at or, pleading if served one to which Latex, -18 See also Ennar Inc. v. responsive permitted no pleading is Atlantic Mut. Ins. No. 94 CIV. placed upon has the action not been (JFK), (S.D.N.Y. May at WL *5 calendar, may party trial so amend it 30,1995) (explaining “to that recover under days at time within 20 after it perils policy, named the insured must demon- party may served. Otherwise a amend op- perils strate one the enumerated party’s pleading only leave losses.”). erated to cause the Because Math- party; or written consent the adverse purchase coverage ews failed to for malicious justice freely given shall be leave when mischief, possessed he plead requires. party so A shall in re- Therefore, peril. find that sponse pleading amended within the granting summary judg- court did not err in remaining response original time to the ment West and in subse- pleading days or within 10 after service of quently denying Mathews’ motion to alter or pleading, period the amended whichever that judgment. amend may longer, be the unless the court other- Against B. Cross-Claim Loftis wise orders. argues Mathews also that the circuit added). (Emphasis dismissing court erred in his cross-claim Mathews’ answer West Fire’s against Loftis. Mathews asserts be complaint did contain a amended cross- already party litiga Loftis cause to the Consequently, pursu- elaim Loftis. tion, prejudiced by filing he was not the late 15(a), required ant to Rule Moreover, of Mathews’ cross-claim. Math to file an within either amended answer7 ews contends that was no time bar twenty days previous after answer was filing of the cross-claim as W. Va.Code *7 served, to obtain court (1981) or leave of or written § specifically 55-2-21 “[a]f states that consent from Loftis to file the commenced, amended civil running ter a action is period. pleading twenty-day after the Math- any of statute of limitation shall be tolled Virginia ews’ answer West Fire’s amended pendency ... of that civil action as to 30, 1999, complaint was served March but may claim which or has been be asserted he did not file his answer until by ... amended June therein cross-claim.” fur Mathews 15(a) 25,1999, exceeding twenty-day well limit. ther asserts that Rule of the West circumstances, it was provides of Under these incumbent Rules Civil Procedure pleading upon to obtain of court that leave to amend “shall be Mathews leave or freely given justice requires.” so Lof written consent from Loftis to file his amend- when responds Corp. circuit properly tis that the ed Commercial Credit v. answer. Cf. Pleasant, granted his motion to dismiss Mathews’ Nat’l Bank Point 150 Citizens of Although pleading simply responsive pleading titled thereto if asserted in one ....’’). "DEFENDANT MATHEWS’ required, CROSS-CLAIM v. is See also Charles- Shaffer LOFTIS,” Inc., 428, 433, AGAINST DEFENDANT not Ctr., and did W.Va. ton Area Med. 199 485 his restate answer to West Fire’s amend- 12, ("This (1997) pointed [has] 17 S.E.2d Court " was, nevertheless, complaint, it ed an amend- by the '[w]e label[s] out ... that are not bound 12(b) to that W. Va. ment answer. See R. Civ. P. below, employed [matters] and will treat made ' defense, fact, ("Every in law to a claim for (cita- pursuant appropriate rule.” to” the most claim, any pleading, relief in whether a counter- omitted)). tions claim, cross-claim, claim, third-party be shall (1965) 199, 784, grant- not err in find the circuit court did S.E.2d W.Va. ing Loftis’ motion to dismiss. (“It responsive pleading that after is true written consent of the court or served leave IV. party in must be obtained of the adverse (emphasis pleadings.” to amend the CONCLUSION added)). respects. in both Mathews failed reasons, September foregoing For the 7, 1999, of Kana- orders of the Circuit Court addition, although noteworthy it is In County are wha affirmed. knowledge Loftis’ of involve- Affirmed. of Mathews’ house in the destruction ment filing of Fire’s prior to the and files a dissents Justice McGRAW declaratory judgment nevertheless he dissenting opinion. nearly fifteen after the initi- months waited McGRAW, Justice, dissenting. action declaratory judgment be- ation of the 2001) (Filed Jan. against claim attempting to assert fore a. did determining that Mathews not have In when Even Loftis. his coverage for the loss he sustained when complaint its to assert its own claim amended demolished, inadvertently ma- house approxi- waited Loftis. Mathews jority construing of makes the mistake before at- mately three additional months malicious or coverage of willful absence While it tempting to assert cross-claim. necessary limitation on as a conduct 15(a) that Rule directs true clearly provided under the that otherwise freely given [to amend] that shall be “leave logic glaring, in this policy. The mistake justice requires,” so this directive does when the Court has chosen ascertain the since party his or her obli- absolve from coverage not lan- scope of rule, gations nor does it allow a under the itself,1 provision by a guage but unnecessarily asserting party to lax be part that has never been ' previously explained claims. We have her (or, best, provision at which has been at all “ liberality allowed amendment ‘[t]he inoperative policy- as a result rendered party pleadings does entitle deny choice to a certain form holder’s neglect dilatory asserting effect, majority or to coverage). claims treats policy provision long period Mauck otherwise lifeless for a of time.’ case —intended prerequisites provide coverage if certain Martinsburg, 178 City a de exclusion. This omitted).” are satisfied —as (citation (1987) facto obviously approach is flawed. Colony Consolidation Coal Co. v. Boston Old anything authority Ins. in the Nor (1998).8 majority upon by supports relied approach. case and commen- such case, utterly instant In. tary by majority merely that a cited state procedures required by Rule follow only provides “named those 15(a) Virginia Rules of Civil of the West enumerated; they coverages specifically do Procedure, justification and has offered *8 step, as has not take the further been done nearly delay of months for his fifteen before here, limiting upon extant based against attempting overlapping to assert a cross-claim absence forms of cov- other view, presented, erage. my insurance Loftis. Under circumstances case, (1970) (“Where provisions 714 of an 8. Co. this Court In the Consolidation Coal plain- unambig- denial of the affirmed the court's are clear and contract amend, finding that the circuit tiffs motion they subject judicial are uous construction correctly plaintiff determined that the court been months before given interpretation, will be full effect but dilatory delaying approximately sixteen intended.”); syl. plain meaning pt. see also filing its motion to amend. Motors, Inc., v. Louk Isuzu (1996); syl. pt. Russell S.E.2d 911 v. State unremitting practice previously 1. been It has our Co., W.Va. Mut. Ins. Auto. upon interpret insurance contracts based to plain syllabus, meaning of their terms. See Kef Ins. v. Prudential fer
H5 undeniably question any damage covered (as by express
caused a “vehicle” modified
exclusions), and the fact that did specifically indemnify against acts of van- way
dalism or malicious mischief in no de- coverage. from that
tracted
Moreover, dispute since there destroyed
the Komatsu excavator tracks, on house moves it is a commonly
“vehicle” within the understood
meaning of such term. See Random House (2d Unabridged Dictionary
Webster’s
ed.1998) “vehicle,” alia, (defining inter as “a wheels,
conveyance moving runners,
tracks, like, cart, sled, automobile, or the as a tractor”) added). (emphasis Consequent-
ly, the circuit court erred sum-
mary judgment on the issue of whether policy.
Mathews’ loss was covered under the
I also no valid see reason for the circuit attempt to have denied Mathews’ Loftis,
lodge a where brought
such claim was within months three
of West Fire’s motion to make Lof- party.
atis reasons,
For foregoing respectfully I
dissent. COLLINS,
James R. Plaintiff
Below, Appellant, (now Davis), A.
Susan COLLINS Below, Appellee.
Defendant
No. 27717.
Supreme Appeals Court of Virginia. Sept.
Submitted
Decided Dec.