                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-2078



FRANK W. VINCENZO; SANDRA K. VINCENZO,

                Plaintiffs - Appellees,

           v.


AIG INSURANCE SERVICES, INCORPORATED,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:07-cv-00026-IMK)


Argued:   May 15, 2008                     Decided:   July 17, 2008


Before TRAXLER and KING, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Clifford Forrest Kinney, Jr., SPILMAN, THOMAS & BATTLE,
PLLC, Charleston, West Virginia, for Appellant.        Theodore L.
Tsoras, JACOB M. ROBINSON LAW OFFICES, Wheeling, West Virginia, for
Appellees. ON BRIEF: Paula L. Durst, SPILMAN, THOMAS & BATTLE,
PLLC, Charleston, West Virginia, for Appellant. Jacob M. Robinson,
JACOB M. ROBINSON LAW OFFICES, Wheeling, West Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Defendant AIG Insurance Services, Incorporated, pursues this

interlocutory appeal from the district court’s denial of AIG’s

motion to dismiss the state law third-party bad faith claim brought

against it by plaintiffs Frank and Sandra Vincenzo.   See Vincenzo

v. AIG Ins. Servs., Inc., No. 1:07-cv-00026 (N.D. W. Va. Sept. 21,

2007) (the “Order”).1   As explained below, we conclude that the

Order correctly resolved the issue of whether West Virginia’s

savings statute, see W. Va. Code § 55-2-18 (the “Savings Statute”),

preserved the Vincenzos’ claim, which had been timely filed prior

to abolition of private third-party bad faith claims in West

Virginia.   Thus, we are content to affirm the Order — ruling that

the Vincenzos’ bad faith claim was not barred when it was refiled

after being dismissed without prejudice — on the basis of the

district court’s reasoning.



                                I.

                                A.

     In 2000, the Vincenzos filed suit in the Circuit Court of

Monongalia County, West Virginia, against multiple defendants,

seeking recovery for physical injuries sustained on the job by



     1
      The Order is found at J.A. 140-53. (Citations to “J.A. __”
refer to the contents of the Joint Appendix filed by the parties in
this appeal.)

                                 2
Frank Vincenzo.    On July 7, 2005, while their suit was pending, the

Vincenzos filed a separate action in the state circuit court

against AIG (the “First Complaint”), alleging a third-party bad

faith claim, then authorized under state law.     See Jenkins v. J.C.

Penney Cas. Ins. Co., 280 S.E.2d 252, 254 (W. Va. 1981) (concluding

that West Virginia Code section 33-11-4(9) gave rise to cause of

action by third-party claimants against insurance companies for

having engaged in unfair claims settlement practices).        In April

2005, however, the West Virginia legislature had enacted West

Virginia    Code   section   33-11-4a,   which   abrogated   the   rule

promulgated in Jenkins, and provided instead for such a claim to be

handled administratively:

     A third-party claimant may not bring a private cause of
     action or any other action against any person for an
     unfair claims settlement practice.         A third-party
     claimant’s sole remedy against a person for an unfair
     claims settlement practice or the bad faith settlement of
     a claim is the filing of an administrative complaint with
     the Commissioner.

W. Va. Code § 33-11-4a(a) (the “Abrogation Statute”) (emphasis

added).    The Abrogation Statute became effective on July 8, 2005,

one day after the Vincenzos filed their First Complaint.            The

Vincenzos failed to perfect service of the First Complaint on AIG

within 120 days, as required by Rule 4 of the West Virginia Rules

of Civil Procedure.    As a result, on January 24, 2006, the state

circuit court dismissed the First Complaint without prejudice.




                                   3
     One year later, on January 24, 2007, the Vincenzos refiled

their third-party bad faith claim against AIG in the state circuit

court (the “Second Complaint”), relying on the Savings Statute.

The Savings Statute provides, in pertinent part, that

     [f]or a period of one year from the date of an order
     dismissing an action or reversing a judgment, a party may
     refile the action if the initial pleading was timely
     filed and . . . the action was involuntarily dismissed
     for any reason not based upon the merits of the action.

W. Va. Code § 55-2-18(a).     In the Second Complaint, the Vincenzos

alleged that, although the Abrogation Statute had abolished private

third-party bad faith claims on July 8, 2005 (a day after they

filed their First Complaint), the Savings Statute preserved their

claim against AIG because the Statute allowed them to refile the

claim within a year from the date of its dismissal due to a failure

to perfect service — a dismissal that was “not based upon the

merits of the action.”

                                     B.

     On February 26, 2007, AIG removed the Vincenzo’s action to the

Northern District of West Virginia, on the basis of diversity

jurisdiction under 28 U.S.C. § 1332.      Shortly thereafter, on March

5, 2007, AIG moved in the district court to dismiss the Second

Complaint,   pursuant    to   Rule    12(b)(6),   contending   that   the

Abrogation Statute barred the third-party bad faith claim asserted

therein, and that the Savings Statute failed to preserve the claim

because it only applied when a statute of limitations issue was


                                     4
implicated.2    On April 24, 2007, the court heard argument on AIG’s

Rule 12(b)(6) motion, and thereafter assessed supplemental briefs

addressing     AIG’s   contention   that   the   Savings   Statute   is   not

applicable in these circumstances, and only applies to claims that

are time-barred by a statute of limitations.                AIG filed its

supplemental brief on May 4, 2007, requesting that, if the court

denied its Rule 12(b)(6) motion, the court certify an interlocutory

appeal to this Court under the provisions of 28 U.S.C. § 1292(b).3



     2
      As the district court aptly recognized in its Order, claims
involving unfair settlement practices that arise under the West
Virginia Unfair Trade Practices Act, see W. Va. Code §§ 33-11-1 to
-10, have a one-year statute of limitations, see Syl. Pt. 1, Wilt
v. State Auto. Mut. Ins. Co., 506 S.E.2d 608, 608 (W. Va. 1998),
which begins to run only after the expiration of the appeal period
for the underlying personal injury claim, see Klettner v. State
Farm Mut. Auto. Ins. Co., 519 S.E.2d 870, 876 (W. Va. 1999). The
parties settled their underlying personal injury claim on March 28,
2006, and a final order was entered on May 1, 2006. Thus, as the
district court concluded, the statute of limitations was not
implicated when the Vincenzos filed their Second Complaint on
January 24, 2007. See Order 3.
     3
      Pursuant to 28 U.S.C. § 1292(b), an interlocutory appeal may
be pursued in the following circumstances:

     When a district judge, in making in a civil action an
     order not otherwise appealable . . . , shall be of the
     opinion that such order involves a controlling question
     of law as to which there is substantial ground for
     difference of opinion and that an immediate appeal from
     the order may materially advance the ultimate termination
     of the litigation, he shall so state in writing such
     order.     The Court of Appeals which would have
     jurisdiction of an appeal of such action may thereupon,
     in its discretion, permit an appeal to be taken from such
     order.

28 U.S.C. § 1292(b).

                                     5
     On September 21, 2007, the district court issued its Order

denying AIG’s Rule 12(b)(6) motion to dismiss, ruling that the

Vincenzos’ third-party bad faith claim against AIG, as alleged in

the Second Complaint, is viable under state law.    The Order also

stayed the proceedings in the district court to permit AIG to

pursue an interlocutory appeal under § 1292(b), which the court

certified.    AIG filed a petition for interlocutory appeal on

October 5, 2007, and, on October 31, 2007, we granted the petition.



                               II.

     We review de novo the district court’s conclusion that the

Savings Statute preserves the third-party bad faith claim alleged

against AIG in the Second Complaint.   See Holly v. Scott, 434 F.3d

287, 288-89 (4th Cir. 2006) (“We review de novo a district court’s

denial of a motion to dismiss under Rule 12(b)(6).”).   In arriving

at this conclusion, the district court explained in its Order that

the plain language of the Savings Statute requires that “(1) the

initial complaint be timely filed, (2) the cause of action be

involuntarily dismissed for any reason not based on the merits, and

(3) the complaint be refiled within one year of the involuntary

dismissal.”   Order 4.   It is undisputed that the Vincenzos had

timely filed their First Complaint, and that it was dismissed

without prejudice.   See W. Va. Code § 55-2-18(b) (“[A] dismissal

not based upon the merits of the action includes . . . [a]


                                6
dismissal for failure to have process timely served.”).         The court

also    concluded   that   the   Vincenzos   had   satisfied   the   third

requirement of the Savings Statute, in that they filed their Second

Complaint, on January 24, 2007, within one year of the state

court’s involuntary dismissal of their First Complaint, on January

24, 2006.

       AIG argued that, although the plain terms of the Savings

Statute had been satisfied, the Statute nevertheless did not apply

to the bad faith claim alleged against it in the Second Complaint.

Relying primarily on Browning v. Browning, 100 S.E. 860 (W. Va.

1919), AIG contended that the Savings Statute’s sole purpose was to

extend the statute of limitations on a timely filed claim that was

dismissed through no fault of the plaintiff.        Because the statute

of limitations had not expired with respect to the bad faith claim

in the Second Complaint, the Savings Statute was, according to AIG,

inapplicable.    In Browning, the defendant had attempted to utilize

the one-year limitations period from an earlier version of the

Savings Statute to bar a claim that had no statute of limitations.

The Supreme Court of Appeals of West Virginia thus concluded that

the claim was not barred, explaining that

       [t]he [Savings Statute] . . . applies only to those
       causes of action which, under the general statute of
       limitation applicable thereto, would otherwise be barred
       before the new action is commenced, and lengthens rather
       than shortens the period of limitation prescribed by the
       general statute. If there is no such bar, or if there is
       one whose limitation has not yet run against the cause of
       action, the [Savings Statute] has no application.

                                     7
Syl. Pt. 1, 100 S.E. at 860.             Premised on the Browning decision,

AIG asserted that, because the Vincenzo’s bad faith claim was not

time-barred, the Savings Statute did not apply. The district court

rejected      AIG’s      contention,         however,     concluding      that     its

interpretation of Browning was overly broad.                    The court reasoned

that “[w]hen read in light of its specific facts, Browning actually

stands for the proposition that the savings statute cannot be

utilized to create a statute of limitations for a cause of action.”

Order 10-11.

       As the district court properly recognized, the Savings Statute

has historically been broadly interpreted.                   In Tompkins v. Pacific

Mutual Life Insurance Co., the Supreme Court of Appeals of West

Virginia explained the Savings Statute as “a highly remedial

statute    [that]      ought      to    be       liberally    construed    for     the

accomplishment of the purpose for which it was designed, namely, to

save one, who has brought his suit within the time limited by law,

from   loss   of   his    right    of   action       by   reason   of   accident   or

inadvertence.”        44 S.E. 439, 441 (W. Va. 1903).               In Crawford v.

Hatcher, the district court in southern West Virginia adopted the

broad reading articulated in Tompkins, concluding that “[i]t can

hardly be questioned that the law favors resolution of disputes on

their merits.      Competing principles, such as prompt resolution of

disputes and judicial economy, must give way except in compelling

cases. . . .    [T]he savings statute is to be liberally construed in


                                             8
order to effect its intended purpose.”             804 F. Supp. 834, 836-37

(S.D. W. Va. 1992).

     In this appeal, AIG seeks to distinguish the Tompkins and

Crawford authorities on the ground that both involved a statute of

limitations issue.    But, as the district court observed here,

     neither case expressly limited the reach of the savings
     statute to claims that are time-barred by a statute of
     limitations. Rather, they recognized that the primary
     purpose of the savings statute is to permit claims to be
     resolved on their merits. Both thus liberally construed
     the savings statute to achieve this purpose.

Order 9. Relying on Tompkins and Crawford, the district court thus

denied AIG’s Rule 12(b)(6) motion to dismiss, concluding that,

because the Savings Statute must be broadly construed, it applied

to the bad faith claim alleged against AIG in the Second Complaint,

and authorized the Vincenzos to pursue their claim despite the

enactment of the Abrogation Statute.



                                   III.

     After thorough de novo consideration of this appeal, we are

constrained   to   agree   with   the       district   court’s   well-reasoned

Order.4   We are accordingly content to affirm on the basis thereof.


     4
      On May 6, 2008, prior to oral argument of this appeal, we
asked counsel to be prepared to address whether it might be
appropriate to certify the question on appeal to the Supreme Court
of Appeals of West Virginia.     See W. Va. Code § 51-1A-3 (“The
supreme court of appeals of West Virginia may answer a question of
law certified to it by any court of the United States . . . if the
answer may be determinative of an issue in a pending case in the
certifying court and if there is no controlling appellate decision,

                                        9
See Vincenzo v. AIG Ins. Servs., Inc., No. 1:07-cv-00026 (N.D. W.

Va. Sept. 21, 2007).

                                                         AFFIRMED




constitutional provision or statute of this state.”). Both parties
expressed their opposition to any such certification, and we have
determined that, in the circumstances, a certification is not
warranted.

                               10
