                              STATE OF WEST VIRGINIA


                           SUPREME COURT OF APPEALS


STATE OF WEST VIRGINIA ex rel.

POTOMAC TRUCKING AND EXCAVATING, INC.,
                                       FILED
Petitioner                                                                October 6, 2016
                                                                             released at 3:00 p.m.
                                                                           RORY L. PERRY, II CLERK
vs.)   No. 16-0183 (Grant County Civil Action No. 14-C-62)               SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

THE HONORABLE JAMES W. COURRIER, JR.,

Judge of the Circuit Court of Grant County, West Virginia

and SHIRLEY BERGDOLL,

on behalf of Joshua Bergdoll,

a protected person,

Respondents




                              MEMORANDUM DECISION

       Petitioner Potomac Trucking and Excavating, Inc. (“Potomac Trucking”), by counsel
Trevor K. Taylor and Tiffany A. Cropp, petitions this Court to invoke its original jurisdiction
pursuant to Rule 16 of the West Virginia Rules of Appellate Procedure. Respondents are the
Honorable James W. Courrier, Jr., Judge of the Circuit Court of Grant County (“the circuit
court”), and Shirley Bergdoll,1 the plaintiff below, who is represented by counsel, Dino S.
Colombo and Travis T. Mohler. Petitioner seeks to prohibit the circuit court from enforcing
an order granting a motion to compel Potomac Trucking to produce a 2003 Peterbilt semi-
truck and trailer (“truck and trailer”) for inspection and other testing at the location at the
home of Potomac Trucking’s employee and truck driver, which is where the subject truck
was routinely parked by the employee. The circuit court further ordered that Ms. Bergdoll’s
expert was allowed “to be inside the subject truck at various spots on the driveway [while
Potomac Trucking’s employee operates the truck and trailer] to determine sight lines and to
determine what could and could not be seen by . . . [Potomac Trucking’s] employee while
backing the truck out of the driveway.” Having thoroughly reviewed the appendix record, the


       1
        Joshua David Bergdoll was the original plaintiff in the case. Ms. Bergdoll was
substituted as plaintiff in the case by an agreed order entered on April 10, 2015, following
the death of Mr. Bergdoll due to causes unrelated to the accident.

                                              1

parties’ briefs and oral arguments, the applicable law and all other matters before the Court,
we conclude that Potomac Trucking is entitled to relief and grant the writ of prohibition as
moulded. As this case presents no new or substantial question of law, its proper disposition
is by memorandum decision as contemplated by Rule 21 of the West Virginia Rules of
Appellate Procedure.

        On March 7, 2014, Douglas Wratchford, a Potomac Trucking employee, was backing
a truck and trailer owned by Potomac Trucking out his residential driveway onto Route 28/55
near Petersburg, West Virginia, when the truck and trailer collided with a vehicle driven by
Mr. Bergdoll.2 The accident occurred at approximately 5:45 a.m. A complaint against
Potomac Trucking3 was filed as a result of the accident wherein Ms. Bergdoll alleged causes
of action against Potomac Trucking for vicarious liability, “negligent and wreckless [sic]
conduct[,]” and negligent entrustment.

        According to the allegations in the complaint, Mr. Wratchford parked and/or stored
the truck and trailer at his personal residence “where there was no safe method for the truck
and trailer to enter or exit this location.” Thus, Ms. Bergdoll alleged that “oncoming traffic
had no warning that Mr. Wratchford would be backing the . . . truck and trailer into active
lanes of traffic o[n] Rt. 28/55.” Ms. Bergdoll also alleged that Mr. Bergdoll “was lawfully
operating his vehicle in the westbound lane of Rt. 28/55 and clearly had the right-of-way[]”
when “Mr. Wratchford improperly and negligently backed . . . [the] truck and trailer into the
immediate path of Joshua Bergdoll’s . . . [vehicle], causing a collision.”

      Pursuant to West Virginia Rule of Civil Procedure 34 (also referred to as “Rule 34”),
Ms. Bergdoll served “Plaintiff’s Request for Production of Documents and Other Tangible
Things and Entry Upon Land for Inspection” (hereinafter “request for production”) upon
Potomac Trucking. Ms. Bergdoll requested, in relevant part:


       2
        Mr. Wratchford was not named as a defendant in the original complaint. Ms.
Bergdoll filed a motion for leave to file her first amended complaint to add Mr. Wratchford,
individually, as a defendant. No order granting that motion has been entered by the circuit
court.
       3
        Ms. Bergdoll also alleged a negligence cause of action against a second defendant,
Anna Turpin. Following the collision, Mr. Wratchford reportedly exited the truck and trailer
and attempted to warn and flag vehicles approaching the scene. Ms. Turpin, who was also
traveling on Route 28/55, failed to adhere to the warnings being conveyed by Mr. Wratchford
and struck the rear of Mr. Bergdoll’s vehicle. Ms. Bergdoll settled with Ms. Turpin and Ms.
Turpin was dismissed from this action.

                                              2

              1.	    That Defendant Potomac Trucking and Excavating, Inc.
                     produce and permit the plaintiff [Ms. Bergdoll] to inspect
                     and/or test the following tangible things:

                     a.	    The 2003 Peterbilt Truck Tractor which
                            was involved in the March 7, 2014[,]
                            collision . . . ;
                     b.	    The trailer which was involved in the
                            March 7, 2014[,] collision . . . .

                     Such inspection is to take place at 3112 North
                     Fork Highway, Petersburg, WV 26847 at a time
                     and date that is mutually convenient to all parties
                     involved, but not later than 30 days after the
                     Service of this Request.

              2.	    That the plaintiff be permitted to enter the property
                     located at 3112 North Fork Highway, Petersburg, WV
                     26847 where the above-described tractor and trailer were
                     parked on March 7, 2014[,] and to inspect, measure,
                     survey, and photograph such land at the same time and
                     date upon which the inspection described in Request 1 is
                     conducted. This inspection of property is specifically
                     limited to the portions of the property on which the
                     tractor-trailer were parked, the driveway, and any
                     portions of the property on which the tractor-trailer may
                     have been able to drive and or turn around. This
                     inspection does not include or request access or entry to
                     any dwelling or other building on the property.

        Potomac Trucking filed objections to the request for production. According to
various letters contained within the appendix record, the parties attempted to resolve Potomac
Trucking’s objections which, in relevant part, were grounded in producing the truck and
trailer at Mr. Wratchford’s residence as he was not a party to the suit and his property was
beyond the control of Potomac Trucking. Thus, Potomac Trucking indicated that it would
only make the truck available for inspection at its facility as it was Potomac Trucking’s
position that Rule 34 did not require that the truck and trailer be taken to Mr. Wratchford’s
personal residence for the inspection to be performed. Conversely, Ms. Bergdoll’s position
was that her request that the truck and trailer be produced at Mr. Wratchford’s residence was
reasonable. Ms. Bergdoll’s attorney also informed Potomac Trucking’s counsel she was

                                              3

“willing to pay” for the cost of the fuel and related expenses in getting the truck and trailer
to the Wratchford residence and that she would “take care of traffic control with the local
authorities.”

       Because the parties reached an impasse on the issue of where the production of the
truck and trailer was to occur for the inspection to take place, Ms. Bergdoll filed a motion
to compel on December 7, 2015. In the motion to compel, Ms. Bergdoll sought to have
Potomac Trucking “produce the relevant truck and trailer for inspection and other testing at
the location where the truck was routinely parked by its employee, Douglas Wratchford. . .
.” Ms. Bergdoll stated in the memorandum in support of her motion that the purpose of the
inspection was “‘to evaluate what could or could not be seen by either Mr. Wratchford or Mr.
Bergdoll as the truck and trailer were being backed out of Mr. Wratchford’s property.’”

       Potomac Trucking responded to the motion by arguing that Ms. Bergdoll failed to
designate a reasonable place for the inspection to take place under Rule 34. According to
Potomac Trucking “[e]ssentially, the purpose of Plaintiff’s requested inspection at the
designated location, Douglas Wratchford’s property, is to have Potomac Trucking . . .
perform an accident recreation for and on behalf of her and her expert.” Potomac Trucking
continued:

                         Nothing in the West Virginia Rules of Civil Procedure
                 imposes an obligation upon a party to litigation to perform for
                 or be a party to an accident recreation that the other party wishes
                 to perform. Likewise, the Rules do not mandate an accident
                 vehicle be produced at the location of the accident so the
                 accident scene can be inspected and/or the accident recreated.
                 If Plaintiff wishes to conduct an accident recreation, she may do
                 so. However, she can neither compel Potomac Trucking . . . to
                 conduct it for her, nor can she compel Potomac Trucking . . . to
                 provide any equipment it owns and/or possesses to use in the
                 recreation. Indeed, Plaintiff’s request fails to take into account
                 the burden or the liability imposed upon Potomac Trucking . . .
                 by this request. . . .

       After a hearing4 on the motion to compel, the circuit court, by order entered February
1, 2016, granted Ms. Bergdoll’s motion to compel. In the order, the circuit court noted that
Potomac Trucking had agreed to allow Ms. Bergdoll to inspect the truck and tractor and had


       4
           There is no transcript from the January 11, 2016, hearing in the appendix record.

                                                 4

agreed to allow the inspection of its employee’s property. The court found the only issue
before it was

              whether the Plaintiff is entitled to inspect the subject truck and
              trailer at Mr. Wratchford’s property where the truck was
              routinely parked and stored and where the accident occurred
              and, if so, is it a “reasonable . . . manner of making the
              inspection and performing the related acts” to allow the
              plaintiff’s expert to be inside the subject truck at various spots
              on the driveway, while the Defendant’s employee operates the
              tractor, to determine sight lines and to determine what could and
              could not be seen by Defendant’s employee while backing the
              truck out of the driveway.

The circuit court then determined that the location specified by Ms. Bergdoll for the
inspection of the truck was reasonable because it was where the collision occurred, it was
where the Potomac Trucking routinely parked the truck and it was only three-and-one-half
miles from Potomac Trucking’s office. Further, the circuit court found that Ms. Bergdoll
had “agreed to pay the cost of fuel and other related expenses associated with the
transportation of the vehicle to Mr. Wratchford’s property and arrange for traffic control with
the local authorities.” The circuit court also found that “it is the opinion of this Court that
the plaintiff’s inspection of Defendant’s truck and trailer at the Defendant’s employee’s
driveway and having the truck and trailer backed out of the driveway to determine the
driver’s line of sight is within the scope of Rule 34 of the West Virginia Rules of Civil
Procedure.” Based upon the circuit court’s findings, it ordered Potomac Trucking to
produce the subject truck and trailer at the accident location and have its employee operate
the truck for an accident recreation, with Ms. Bergdoll’s expert inside the truck

              at various spots on the driveway to determine sight lines and to
              determine what could and could not be seen by Defendant’s
              employee while backing the truck out of the driveway. The
              Court does not place a limit on the number of times the subject
              truck can be backed out of the driveway; however, the Court
              emphasizes that the parties should act reasonably. . . .

              We have previously held:

                     “‘Prohibition lies only to restrain inferior courts from
              proceedings in causes over which they have no jurisdiction, or,
              in which, having jurisdiction, they are exceeding their legitimate

                                              5

              powers, and may not be used as a substitute for [a petition for
              appeal] or certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W. Va.
              207, 75 S.E.2d 370 (1953).”

Syl. Pt. 3, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Further,

                     [i]n determining whether to entertain and issue the writ
              of prohibition for cases not involving an absence of jurisdiction
              but only where it is claimed that the lower tribunal exceeded its
              legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate means,
              such as direct appeal, to obtain the desired relief; (2) whether the
              petitioner will be damaged or prejudiced in a way that is not
              correctable on appeal; (3) whether the lower tribunal’s order is
              clearly erroneous as a matter of law; (4) whether the lower
              tribunal’s order is an oft repeated error or manifests persistent
              disregard for either procedural or substantive law; and (5)
              whether the lower tribunal’s order raises new and important
              problems or issues of law of first impression. These factors are
              general guidelines that serve as a useful starting point for
              determining whether a discretionary writ of prohibition should
              issue. Although all five factors need not be satisfied, it is clear
              that the third factor, the existence of clear error as a matter of
              law, should be given substantial weight.

Id. at 14-15, 483 S.E.2d at 14-15, Syl. Pt. 4. Lastly, “‘[a] writ of prohibition is available to
correct a clear legal error resulting from a trial court’s substantial abuse of its discretion in
regard to discovery orders.’ Syllabus Point 1, State Farm [Mut. Auto. Ins. Co.] v. Stephens,
188 W. Va. 622, 425 S.E.2d 577 (1992).” Syl. Pt. 2, State ex rel. Med. Assurance of W. Va.,
Inc. v. Recht, 213 W. Va. 457, 583 S.E.2d 80 (2003). It is with the foregoing standards in
mind that we undertake an examination of the issue before us.

        The issue is whether the circuit court erred when it ordered Potomac Trucking not
only to produce its truck and trailer for inspection at the scene of the accident, but also to
supply a driver who was required to move the truck and trailer at the direction of Ms.
Bergdoll or her expert at the inspection location. Potomac Trucking argues in this case the
inspection ordered by the court pursuant to Rule 34 is not reasonable because it involves
Potomac Trucking having to take part in a recreation of the subject accident using its truck
and its employee “at the direction of and for the benefit of” Ms. Bergdoll.


                                               6

         Conversely, Ms. Bergdoll argues that the circuit court did not err in its determination
that it was reasonable under West Virginia Rule of Civil Procedure 34 to allow the inspection
of the truck to take place where Potomac Trucking’s employee routinely parked the truck for
eight years. Further, Ms. Bergdoll maintains that she is not asking for a recreation: “she is
simply asking the Petitioner to move the truck to different locations on the driveway to
determine what can, or cannot, be seen from the vantage point of the truck driver.”5

       West Virginia Rule of Civil Procedure 34 provides:

                      (a) Scope. Any party may serve on any other party a
              request (1) to produce and permit the party making the request,
              or someone acting on the requestor’s behalf, to inspect and copy,
              any designated documents (including writings, drawings,
              graphs, charts, photographs, phono-records, and other data
              compilations from which information can be obtained,
              translated, if necessary, by the respondent through detection
              devices into reasonably usable form), or to inspect and copy,
              test, or sample any tangible things which constitute or contain
              matters within the scope of Rule 26(b) and which are in the
              possession, custody or control of the party upon whom the
              request is served; or (2) to permit entry upon designated land or
              other property in the possession or control of the party upon
              whom the request is served for the purpose of inspection and
              measuring, surveying, photographing, testing, or sampling the
              property or any designated object or operation thereon, within
              the scope of Rule 26(b).

(emphasis added). Further, Rule 34(b) provides that any “request shall specify a reasonable
time, place, and manner of making the inspection and performing the related acts.”
(emphasis added).



       5
         Ms. Bergdoll also argues that because the order concerns discovery, it is not
appealable until the litigation has ended and it is not subject to a writ of prohibition unless
it involves “the probable invasion of the attorney-client privilege or work-product immunity.”
As set forth supra, where a circuit court commits a substantial abuse of discretion in ruling
on a discovery matter, a party may seek a writ of prohibition to correct any legal error. See
Med. Assurance of W. Va., Inc., 213 W. Va. at 461, 583 S.E.2d at 84, Syl. Pt. 2.


                                               7

        The resolution of this issue requires the Court to look no further than the language
contained in Rule 34. Rule 34 expressly allows a party “to inspect and copy, test, or sample
any tangible things which constitute or contain matters within the scope of Rule 26(b) and
which are in the possession, custody or control of the party upon whom the request is
served[.]” (emphasis added). Under the language of Rule 26(b), the tangible things must be
“relevant to the subject matter involved in the pending action[.]” Finally, Rule 34(b) requires
that “the place[] and manner of making the inspection” shall be “reasonable.”

        Under the express language of Rule 34, Ms. Bergdoll can “inspect” the truck and
trailer that is the focus of her complaint and Potomac Trucking has not taken issue with
allowing an inspection of the truck and trailer. Likewise, we do not find error in the circuit
court’s determination that the inspection of the truck and trailer occur at the personal
residence of Potomac Trucking’s employee, Mr. Wratchford. Mr. Wratchford testified
during his deposition that he routinely parked the truck and trailer at his personal residence
for eight years. Also, this location is where the accident occurred and it is only three-and-a­
half miles from Potomac Trucking’s office.6

       The problem, however, is not with the circuit court ordering that the truck and trailer
be produced for inspection. Instead, it is the circuit court’s agreeing with Ms. Bergdoll’s
request that “the Petitioner . . . move the truck to different locations on . . . [Mr.
Wratchford’s] driveway to determine what can, or cannot, be seen from the vantage point of
the truck driver.” While Ms. Bergdoll insists that she is not asking Potomac Trucking to
participate in her accident recreation, we find the contrary to be true. Further, because the
express language of Rule 34 does not contemplate discovery requiring an opposing party to
participate in the recreation of an accident at the direction of the party seeking the discovery
under the rule, we find that the circuit court committed a substantial error. There simply is
no authority to support the circuit court’s directing Potomac Trucking and its employee to
operate a truck and trailer at the direction of Ms. Bergdoll’s expert. As Rule 34 provides no
support for such an order by the circuit court, we cannot find that this portion of the circuit
court’s order is reasonable under the rule.

       Consequently, there was no error committed by the circuit court in ordering the
inspection of the subject truck and trailer at the driveway of the personal residence of Mr.
Wratchford, Potomac Trucking’s employee. It was clear legal error on the part of the circuit


       6
        Further, even though Potomac Trucking does not have control or possession of its
employee’s property as the employee is not a named defendant, Potomac Trucking agreed
to work with its employee to allow Ms. Bergdoll’s expert to go onto the employee’s property
to inspect the portion of the property where the truck and trailer were routinely parked.

                                               8

court, however, to order Potomac Trucking to have its employee participate in an accident
recreation. In so ordering, the circuit court exceeded its authority and legitimate powers as
it acted outside the scope of West Virginia Rule of Civil Procedure 34.

                                                                  Writ granted as moulded.



ISSUED: October 6, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




                                             9

