             IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2013 Term
                                    ____________                   FILED
                                                             September 12, 2013
                                     No. 12-0203                 released at 3:00 p.m.
                                    ____________                 RORY L. PERRY II, CLERK
                                                               SUPREME COURT OF APPEALS
                                                                   OF WEST VIRGINIA


                           DAN CAVA, STEVEN HALL,

                            SONNY NICHOLSON, AND

                          DAN’S CAR WORLD LLC, d/b/a

                        DAN CAVA’S TOYOTA WORLD,

                Defendants and Third-Party Plaintiffs Below, Petitioners


                                           v.

                       NATIONAL UNION FIRE INSURANCE

                         COMPANY OF PITTSBURGH, PA.,

            Third-Party Defendant and Counter-Plaintiff Below, Respondent

             _________________________________________________

                  Appeal from the Circuit Court of Marion County

                      The Honorable David R. Janes, Judge

                            Civil Action No. 09-C-110

                                   AFFIRMED

           _____________________________________________________

                             Submitted: September 4, 2013
                                Filed: September 12, 2013


Gregory H. Schillace, Esq.                            Don C.A. Parker, Esq.

Schillace Law Office                                  Glen A. Murphy, Esq.

Clarksburg, West Virginia                             Charity K. Flynn, Esq.

Counsel for Petitioners Dan Cava,                     Spilman Thomas & Battle, PLLC

Steven Hall and Dan’s Car World                       Charleston, West Virginia

                                                      Counsel for Respondent

JUSTICE KETCHUM delivered the Opinion of the Court.

CHIEF JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.
                               SYLLABUS BY THE COURT



              1.      A trial court may, in exercising its discretion whether to allow a party

to file a third-party complaint pursuant to Rule 14(a) of the West Virginia Rules of Civil

Procedure, consider the following factors: (1) the potential prejudice to the original plaintiff

or to the third-party defendant; (2) whether a third-party complaint would delay or unduly

complicate the trial; (3) the timeliness of the motion; (4) judicial efficiency; and (5) whether

the proposed third-party complaint states a claim upon which relief can be granted.



              2.      A third-party complaint requesting a declaratory judgment that an

insurance policy provides coverage and that an insurance company has a duty to defend, may,

in the discretion of the trial court, be allowed.
JUSTICE KETCHUM:




              The petitioners, who are the defendants/third-party plaintiffs below, Dan Cava,

Steven Hall, Sonny Nicholson, and Dan’s Car World, LLC, d/b/a Dan Cava’s Toyota World

(“petitioners”), appeal from an order entered January 3, 2012, by the Circuit Court of Marion

County. The circuit court granted summary judgment to the respondent, who is the third­

party defendant below, National Union Fire Insurance Company of Pittsburgh, PA (“National

Union”). The circuit court concluded, inter alia, that the claims contained in the petitioners’

third-party complaint were not derivative of the claims asserted in the underlying lawsuit.

              After thorough review, we affirm the circuit court’s summary judgment order.



                  I. FACTUAL & PROCEDURAL BACKGROUND

              Johnnie Fluker, Jr. filed a lawsuit against the petitioners on April 3, 2009,

alleging that he was wrongfully terminated from his employment with the petitioners.1 The

petitioners reported Mr. Fluker’s lawsuit to their insurance carrier, National Union, four days

later, but National Union did not respond until November 11, 2009, when it sent a denial of



       1
        Mr. Fluker’s complaint alleged that (1) he was subjected to a racially hostile work
environment, (2) his employment had been wrongfully terminated following an altercation
that occurred in April 2007, (3) he was the victim of racial discrimination and retaliation in
connection with the April 2007 altercation, (4) the termination of his employment breached
his employment agreement with the petitioners, and (5) the petitioners failed to pay certain
moneys owed to him upon the termination of his employment.

                                              1

coverage letter to the petitioners’ lawyer.2 Therefore, the petitioners defended the lawsuit

without the assistance of their insurance carrier, National Union.

              On June 24, 2010, the petitioners filed a motion requesting leave to file a third-

party complaint against National Union. The petitioners’ proposed third-party complaint

against National Union set forth two tort causes of action: (1) common law “bad faith” and

(2) violations of the West Virginia Unfair Trade Practices Act (“UTPA”), arising from

National Union’s denial of coverage. The third-party complaint did not contain a count for

declaratory judgment requesting a finding that there was coverage under the National Union

policy or even a general request that the court find coverage and order National Union to

defend the lawsuit. In November 2010, the circuit court granted the petitioners’ motion to

file a third-party complaint. The petitioners filed their third-party complaint on December

3, 2010.

              National Union filed an answer and counterclaim to the petitioners’ third-party

complaint on January 19, 2011. Seven months later, National Union filed a motion for

summary judgment, arguing that the petitioners’ third-party complaint alleging common law

bad faith and UTPA violations was tortious in nature and subject to the one-year statute of

limitation set forth in W.Va. Code § 55-2-12(c) [1959]. National Union argued that the third-

party complaint should be dismissed because it did not derive from Mr. Fluker’s underlying



       2
        National Union denied coverage on the ground that Mr. Fluker’s claim against the
petitioners was not made during the policy period.

                                              2

wrongful termination claim and it was not filed within one year of the denial of coverage.

In support of this argument, National Union cited Syllabus Point 1 of Wilt v. State Auto. Mut.

Ins. Co., 203 W.Va. 165, 506 S.E.2d 608 (1998), in which this Court held “[c]laims

involving unfair settlement practices that arise under the Unfair Trade Practices Act, West

Virginia Code § 33-11-1 to -10 (1996 & Supp.1997) are governed by the one-year statute of

limitations set forth in West Virginia Code § 55-2-12(c) (1994).” Similarly, National Union

cited Syllabus Point 4 of Noland v. Virginia Ins. Reciprocal, 224 W.Va. 372, 686 S.E.2d 23

(2009), which states “[t]he one year statute of limitations contained in W.Va. Code § 55-2­

12(c) (1959) (Repl. Vol. 2008) applies to a common law bad faith claim.”

              National Union argued that the statute of limitations on the petitioners’

common law bad faith and UTPA claims began to run on November 11, 2009, the date it sent

the denial of coverage letter to the petitioners’ lawyer. Because the petitioners filed their

third-party complaint on December 3, 2010, more than one year after receiving the denial of

coverage letter, National Union asserted that the complaint was untimely filed.

              By contrast, the petitioners stated that their third-party complaint was

connected to Mr. Fluker’s wrongful termination claim and was timely filed pursuant to W.Va.

Code § 55-2-21 [1981], which states, in relevant part,

              After a civil action is commenced, the running of any statute of
              limitation shall be tolled for, and only for, the pendency of that
              civil action as to any claim which has been or may be asserted
              therein by . . . . third-party complaint[.]



                                              3

Because the circuit court granted their motion to file a third-party complaint and because the

petitioners subsequently filed the complaint during the pendency of the underlying wrongful

termination action, the petitioners argued that the statute of limitation was tolled based on

the plain language contained in W.Va. Code § 55-2-21. In support of their position, the

petitioners cited J.A. Street & Associates, Inc. v. Thundering Herd Development, LLC, 228

W.Va. 695, 724 S.E.2d 299 (2011), in which this Court considered whether an engineering

firm’s cross-claims filed against a contractor were time-barred pursuant to W.Va. Code § 55­

2-21. The Court held in Syllabus Point 8 of J.A. Street that “[p]ursuant to W.Va. Code § 55­

2-21 (1981) (Repl.Vol.2008), during the pendency of a civil action, the statute of limitation

shall be tolled as to any cross-claim that has been or may be asserted therein.” The

Petitioners’ argued that the circuit court should apply Syllabus Point 8 of J.A. Street to its

third-party complaint and conclude that it was timely filed based on the non-discretionary,

mandatory language contained in W.Va. Code § 55-2-21.

              The circuit court rejected the petitioners’ argument and granted National

Union’s motion for summary judgment. The circuit court made the following findings in its

summary judgment order:

                     17. The Court finds and concludes as a matter of law that
              the Third-Party Complaint is an independent action because the
              Third-Party Complaint against National Union is not derivative
              of the claims asserted in Plaintiff Johnnie Fluker, Jr.’s original
              Complaint.

                    18. The Court finds and concludes as a matter of law that
              West Virginia Code § 55-2-21 does not apply to toll the statute

                                              4

              of limitations applicable to Third-Party Plaintiffs’ bad faith
              claims against National Union.

                     19. The Court finds and concludes as a matter of law that
              the statute of limitations on the bad faith claims expired on
              November 11, 2010 and that those claims are therefore barred.

The circuit court reversed its previous ruling and held that the third-party complaint was not

proper because it was not derivative of the original wrongful termination claim. The circuit

court concluded that there was no logical relationship between the wrongful termination

claim and the third-party complaint filed by the petitioners that only alleged the torts of

common law bad faith and UTPA violations arising from National Union’s denial of

coverage. After entry of the circuit court’s summary judgment order, the petitioners filed the

present appeal.



                              II. STANDARD OF REVIEW

              This Court has long held that “[a] circuit court’s entry of summary judgment

is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755

(1994). In conducting our de novo review, we apply the same standard for granting summary

judgment that is applied by the circuit court: “A motion for summary judgment should be

granted only where it is clear that there is no genuine issue of fact to be tried and inquiry

concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3,

Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

Moreover, “[s]ummary judgement is appropriate where the record taken as a whole could not

                                              5

lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving

party has failed to make a sufficient showing on an essential element of the case that it has

the burden to prove.” Syllabus Point 4, Painter, supra.

                 Guided by the foregoing, we proceed to consider the arguments of the parties.



                                         III. ANALYSIS

                 On appeal, the petitioners argue that the circuit court erred in its ruling that

W.Va. Code § 55-2-21 does not apply to toll the statute of limitations. Conversely, National

Union argues that the bad faith and UTPA claims contained in the third-party complaint are

not derivative of the wrongful termination claim and that the circuit court correctly held that

these are independent tort causes of action subject to the one-year statute of limitation

contained in W.Va. Code § 55-2-12(c).

                 Our review of this matter starts with Rule 14(a) of the West Virginia Rules of

Civil Procedure.3 Rule 14(a) states that at any time after commencement of an action a


       3
           The full text of Rule 14(a) states
                 [a]t any time after commencement of the action a defending
                 party, as a third-party plaintiff, may cause a summons and
                 complaint to be served upon a person not a party to the action
                 who is or may be liable to the third-party plaintiff for all or part
                 of the plaintiff’s claim against the third-party plaintiff. The
                 third-party plaintiff need not obtain leave to make the service if
                 the third-party plaintiff files the third-party complaint not later
                 than 10 days after serving the original answer. Otherwise the
                 third-party plaintiff must obtain leave on motion upon notice to
                                                                                        (continued...)

                                                  6

defending party, as a third-party plaintiff, may serve a summons and complaint upon a person

that is not a party to the action who is or may be liable to the third-party plaintiff for all or

part of the plaintiff’s “claim” against the third-party plaintiff. “The purpose of Rule 14(a),

West Virginia Rules of Civil Procedure, permitting impleader of a third party defendant by

the original defendant, is to eliminate circuity of actions when the rights of all three parties

center upon a common factual situation.” Syllabus Point 1, Bluefield Sash & Door Co., Inc.

v. Corte Const. Co., 158 W.Va. 802, 216 S.E.2d 216 (1975), overruled on other grounds,

Haynes v. City of Nitro, 161 W.Va. 230, 240 S.E.2d 544 (1977).


       3
           (...continued)
                  all parties to the action. The person served with the summons
                  and third-party complaint, hereinafter called the third-party
                  defendant, shall make any defenses to the third-party defendant
                  plaintiff’s claim as provided in Rule 12 and any counterclaims
                  against the third-party plaintiff and cross-claims against other
                  third-party defendants as provided in Rule 13. The third-party
                  defendant may assert against the plaintiff any defenses which
                  the third-party plaintiff has to the plaintiff’s claim. The third-
                  party defendant may also assert any claim against the plaintiff
                  arising out of the transaction or occurrence that is the subject
                  matter of the plaintiff’s claim against the third-party plaintiff.
                  The plaintiff may assert any claim against the third-party
                  defendant arising out of the transaction or occurrence that is the
                  subject matter of the plaintiff’s claim against the third-party
                  plaintiff, and the third-party defendant thereupon shall assert any
                  defenses as provided in Rule 12 and any counterclaims and
                  cross-claims as provided in Rule 13. Any party may move to
                  strike the third-party claim, or for its severance or separate trial.
                  A third-party defendant may proceed under this rule against any
                  person not a party to the action who is or may be liable to the
                  third party for all or part of the claim made in the action against
                  the third-party defendant.

                                                   7

              This Court discussed the type of “claim” that meets the requirements of Rule

14(a) in Magnet Bank, F.S.B. v. Barnette, 187 W.Va. 435, 436-37, 419 S.E.2d 696, 697-98

(1992), stating:

                     We have not had occasion to discuss in any detail the
              type of claim which the defendant must assert to meet the
              requirement of Rule 14(a) that the third-party defendant “is or
              may be liable to him for all or part of the plaintiff’s claim[.]”
              The federal courts have considered this question and in 3 James
              Wm. Moore, et al., Moore’s Federal Practice ¶ 14.07(1) at 14­
              45-46 (1991), this summary is given:

                      “Thus, ‘claim’ is defined transactionally, and has nothing
              to do with the legal theory upon which a party relies. The fact
              that the third-party complaint may be based upon a different
              legal theory from the underlying case is irrelevant; the question
              is whether the assertion of liability against the third-party
              defendant is derivative of the same transaction, occurrence or
              nucleus of operative fact as the underlying claim by the plaintiff.
              If the transactional relatedness is present, impleader is proper
              even if the third-party complaint will be tried to the court while
              the underlying action will be tried to a jury. In sum, it is clear
              that the remedial purpose of Rule 14 requires that it be
              interpreted liberally to promote its underlying purposes.”

              Since the petitioners sought to file the third-party complaint more than ten days

after they filed their original answer, Rule 14(a) required that they (1) file a motion seeking

the circuit court’s permission to file the third-party complaint and (2) serve the motion on the

plaintiff, Johnnie Fluker, Jr. Rule 14(a) did not require that the proposed third-party

defendant, National Union, be notified or attend the hearing on the motion.




                                               8

                   The petitioners filed their motion to file the third-party complaint against

National Union and served only the plaintiff.4 The circuit court conducted a hearing on the

motion and had to determine whether to allow the petitioners to file their third-party

complaint. “Impleader under Rule 14(a) is permissive and not mandatory.” Franklin D.

Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia

Rules of Civil Procedure, § 14(a) at 443 (4th Ed. 2012). “The provisions for impleader under

Rule 14(a) . . . are within the sound discretion of the trial court.” Syllabus Point 2, in part,

State ex rel. Leung v. Sanders, 213 W.Va. 569, 584 S.E.2d 203 (2003).

                   In exercising its discretion whether to grant a motion for impleader, there are

a number of factors a circuit court may consider. “[W]here the third party procedure may

create confusion or cause complicated litigation involving separate and distinct issues the

trial court does not abuse its discretion in refusing to allow impleader under third party

practice.” Syllabus Point 5, in part, Bluefield Sash & Door Co., supra. Further, impleader

“should not be allowed if there is a possibility of prejudice to the original plaintiff or the third

party defendant.” Syllabus Point 3, in part, Id.

                   In Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va. 585, 396 S.E.2d 766

(1990), we noted other issues a circuit court could consider in deciding whether to grant

impleader. The Court in Shamblin upheld the circuit court’s denial of an impleader motion



         4
             The plaintiff did not oppose the filing of the third-party complaint against National
Union.

                                                  9

based on the following: (1) the defendant’s unexplained delay in filing the motion shortly

before the trial which would have prejudiced the plaintiff had it been granted, (2) the strong

possibility of confusion of the issues because the third-party complaint was based on legal

malpractice and the underlying action was a bad faith insurance claim, and (3) the defendant

was not precluded from filing a separate action for indemnification and/or contribution.

              Courts outside of our jurisdiction have also set forth equities to consider when

presented with a request to file a third-party complaint. In Murphy v. Keller Industries, Inc.,

201 F.R.D. 317 (S.D.N.Y. 2001), the court listed the following factors it considered in

determining whether to grant a motion for impleader: (1) whether the movant deliberately

delayed or was derelict in filing the motion, (2) whether impleading would delay or unduly

complicate the trial, (3) whether impleading would prejudice the third-party defendant, and

(4) whether the proposed third-party complaint states a claim upon which relief can be

granted. Similarly, in NuVasive, Inc. v. Renaissance Surgical Center North, L.P., 853

F.Supp.2d 654, 659 (S.D.Tex. 2012), the court stated, “The factors applied when deciding

whether to allow a third-party complaint include prejudice placed on the other parties, undue

delay by the third-party plaintiff, lack of substance to the third-party claim, and advancing

the purposes of Rule 14 (such as avoiding duplicative suits on closely related issues).”

              It has also been stated that “a timely application for impleader should be

granted except when it will delay or disadvantage the existing action or the third-party claim

obviously lacks merit.” 6 Charles Alan Wright et al., Federal Practice and Procedure § 1443


                                              10

at 352-53 (3d ed. 2010). Federal Practice and Procedure notes that “[s]ufficient prejudice

to warrant denial of impleader may be present when bringing in a third party will introduce

unrelated issues and unduly complicate the original suit.” Id. at 357. Federal Practice and

Procedure further states that a court applying the rule should “endeavor to effectuate the

purpose of Rule 14, which means that impleader should be allowed if it will avoid circuity

of action and eliminate duplication of suits based on closely related matters.” Id. at 351-52.

              Based on all of the foregoing, we hold that a trial court may, in exercising its

discretion whether to allow a party to file a third-party complaint pursuant to Rule 14(a) of

the West Virginia Rules of Civil Procedure, consider the following factors: (1) the potential

prejudice to the original plaintiff or to the third-party defendant; (2) whether a third-party

complaint would delay or unduly complicate the trial; (3) the timeliness of the motion; (4)

judicial efficiency; and (5) whether the proposed third-party complaint states a claim upon

which relief can be granted.

              By order entered November 12, 2010, the circuit court granted the petitioners’

motion to file the third-party complaint. Since the motion was unopposed, the circuit court’s

order granting the petitioners’ motion did not include any analysis of whether the bad faith

and UTPA claims contained in the third-party complaint were derivative of the original

wrongful termination claim. It simply granted the motion to file the third-party complaint.

Based on this initial ruling, the statute of limitation that applies was contained in W.Va. Code

§ 55-2-21, which states that any statute of limitation for a claim contained in a third-party


                                              11

complaint “shall be tolled” during the pendency of the underlying civil action. Because their

third-party complaint was filed during the pendency of the underlying wrongful termination

claim, the petitioners’ third-party complaint was timely filed based on the plain language

contained in W.Va. Code § 55-2-21.

              Later in its summary judgment motion, National Union asserted that the

petitioners’ third-party complaint was improper because the alleged bad faith and UTPA

claims were tortious in nature, were not derivative of the original wrongful termination claim

and should have been brought in a separate lawsuit rather than in a third-party complaint.

National Union argued that because these claims were actually independent causes of action

and were filed more than one year after the claims arose, the petitioners’ lawsuit was not

timely filed and was properly dismissed.

              The circuit court analyzed National Union’s argument that the bad faith and

UTPA claims were not derivative of the original wrongful termination claim pursuant to

Syllabus Point 9 of J.A. Street, supra, which states:

                     To determine whether a cross-claim arises out of the
              same transaction or occurrence as the original action, there are
              three nonexclusive factors to be considered: (1) the identity of
              the facts and law between the initial claim and the cross-claim;
              (2) the mutuality of proof and whether substantially the same
              evidence will support or refute both the complaint and the cross-
              claim; and (3) the logical relationship between the original claim
              and the cross-claim.

After considering these three factors, the circuit court concluded that the petitioners’ bad

faith and UTPA claims were not derivative of the original wrongful termination claim and

                                             12

therefore should not have been brought in a third-party complaint. The circuit court

essentially reversed its earlier ruling granting the petitioners’ motion to file a third-party

complaint. Based on this ruling, the circuit court concluded that both the bad faith and

UTPA claims were subject to the one-year statute of limitation contained in W.Va. Code §

55-2-12(c) and were not timely filed.

              We do not find that the circuit court abused its discretion in dismissing the

third-party complaint. The petitioners’ tort action against National Union is not derivative

of the original wrongful termination claim and should have been brought in a separate

lawsuit. We note, however, that if the third-party complaint had requested that the circuit

court find that there was coverage under the policy and/or find that National Union had a

duty to defend the petitioners in the underlying wrongful termination claim, the petitioners

would have had a strong argument that the third-party complaint was proper. Federal courts

have found that impleader is proper when a third-party complainant seeks a declaratory

judgment against an insurer after an insurance company has refused to defend. “When the

insurer disclaims liability and refuses to defend on behalf of the insured, the federal courts

uniformly recognize the propriety of impleader.” Federal Practice and Procedure § 1449 at

461-62. Federal Practice and Procedure notes that a few federal district courts have refused

to allow impleader under these circumstances out of concern that it could cause delay or

confusion. After noting these limited exceptions to the general rule allowing a defendant to

implead his insurer, Federal Practice and Procedure concludes that


                                             13

               [r]ather than refusing impleader, however, the better approach
               might be to allow impleader as a matter of course in this
               situation and then, with an eye toward effective judicial
               administration and fairness to the parties, to determine later
               whether a severance or separate trials should be ordered as is
               expressly authorized by Rule 14(a)(4).

Id. at 463.

               This “better approach” of allowing impleader as a matter of course when an

insurer disclaims liability and refuses to defend on behalf of the inured, is consistent with this

Court’s holding in Christian v. Sizemore, 181 W.Va. 628, 383 S.E.2d 810 (1989). In

Christian, a plaintiff brought a personal injury action following an automobile accident and

filed a motion to amend her complaint to add a declaratory judgment count against the

defendants’ insurer. In Syllabus Point 4 of Christian, the Court held that “[a] declaratory

judgment claim with regard to the defendant’s insurance coverage may be brought in the

original personal injury suit rather than by way of a separate action.” The Court in Christian

noted that “we see no particular procedural impediment in permitting the declaratory

judgment claim with regard to the defendant’s insurance coverage to be brought in the

original personal injury suit rather than by way of separate action.” Christian, 181 W.Va. at

633, 383 S.E.2d at 815.

               In addition, allowing impleader as a matter of course when an insurer refuses

to defend on behalf of the insured serves a number of purposes. First, it eliminates circuity

of actions. Next, it would prevent a potential time lag between a judgment against a

defendant in one action and a judgment in the defendant’s favor against the insurer in a

                                               14

subsequent action. Finally, it would require the insurer to be a party to the case and be

apprised of the evidence that develops during the lawsuit, thus allowing the insurer to

evaluate its position in light of all of the facts.

               While the federal courts generally allow a defendant to bring a third-party

complaint as a matter of course when an insurance company denies coverage and refuses to

defend, our cases identify several factors that may weigh against the allowance of a third-

party complaint. See Shamblin, supra. It remains within the sound discretion of the trial

court, after weighing all of the relevant factors, whether to allow a defendant to file a third-

party complaint. We therefore hold that a third-party complaint requesting a declaratory

judgment that an insurance policy provides coverage and that an insurance company has a

duty to defend, may, in the discretion of the trial court, be allowed.

               Although the petitioners’ third-party complaint did not seek insurance coverage

and only sought tort damages, the motion to file the third-party complaint was filed within

one year of the denial of coverage. The Legislature has enacted a savings statute providing

that a lawsuit in which the initial pleading was timely filed that is subsequently dismissed for

any reason not based upon the merits of the case, may be re-filed within one year. W.Va.

Code § 55-2-18(a) [2001], in part, states

                       [f]or a period of one year from the date of an order
               dismissing an action . . . . a party may re-file an action if the
               initial pleading was timely filed and (i) the action was
               involuntarily dismissed for any reason not based upon the merits
               of the action[.]


                                                15

W.Va. Code § 55-2-18(a) is a highly remedial statute that should be liberally construed to

allow a party who has filed a timely action to have their case decided on the merits. See

Employers Fire Ins. Co. v. Biser, 161 W.Va. 493, 242 S.E.2d 708 (1978). Even when there

is a dismissal of a suit because of a misjoinder, the plaintiff has one year from the date of the

dismissal to file a new lawsuit because he/she is protected from the statute of limitations by

W.Va. Code § 55-2-18(a). Siever v. Klots Throwing Co. of West Virginia, 101 W.Va. 457,

132 S.E. 882 (1926).

              The petitioners’ third-party complaint was timely filed based on the circuit

court’s initial ruling and was not later dismissed based upon the merits of the action.5 We

therefore conclude that pursuant to W.Va. Code § 55-2-18(a), the petitioners may file a new,

independent lawsuit containing their bad faith and UTPA claims against National Union.6




       5
         The petitioners sought leave to file their bad faith and UTPA claims well within the
one year statute of limitations that governed these claims. For reasons not apparent in the
record, there was a five month delay before the court ruled on the petitioners’ motion to file
the third-party complaint. The court’s ruling was favorable to the petitioners, and thus they
reasonably believed they could file the third-party complaint at any time during the pendency
of the underlying wrongful termination lawsuit – which they did, approximately one month
later. The respondents contend, in essence, that when the court subsequently reversed itself,
a trap door opened and the petitioners’ claims died. We disagree. We do not believe that a
litigant should lose the right to bring a cause of action solely as a result of his or her good
faith reliance on a court’s ruling, notwithstanding that the ruling is later reconsidered and
reversed.
       6
        We do not understand why the petitioners did not file a declaratory judgment action
requesting that the trial court determine whether there was insurance coverage. Generally,
a court must find that there is coverage before there can be common law bad faith and UTPA
claims against an insurance company.

                                               16

             In calculating the time period the petitioners have to file this independent

action based on W.Va. Code § 55-2-18(a), the period during the pendency of this appeal

should not be computed in applying the statute of limitations. See Atkinson v. Winters, 47

W.Va. 226, 34 S.E. 834 (1899).



                                  IV. CONCLUSION

             Based on all of the above, we affirm the circuit court’s January 3, 2012, order

granting summary judgment in favor of National Union. However, pursuant to W.Va. Code

§ 55-2-18(a), the petitioners may file an independent lawsuit against National Union.



                                                                                 Affirmed.




                                            17

