                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Alexandra Ottaviano, administratrix of
the Estate of John Anthony Ottaviano,
                                            FILED
Plaintiff Below, Petitioner                                                  September 5, 2017

                                                                                  RORY L. PERRY II, CLERK
vs) No. 16-0714 (Berkeley County 16-C-56)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Tiffany R. Durst,

Defendant Below, Respondent



                              MEMORANDUM DECISION
         Petitioner Alexandra Ottaviano, administratrix of the Estate of John Anthony Ottaviano,
by counsel Paul G. Taylor, appeals the Circuit Court of Berkeley County’s May 27, 2016, order
dismissing her complaint for failure to state a claim upon which relief can be granted.
Respondent Tiffany R. Durst, by counsel Kathryn A. Grace, filed a response. Petitioner argues
that the circuit court erred in dismissing the complaint because the circuit court, in applying the
litigation privilege to petitioner’s claims, failed to consider the exceptions to that privilege and
erred in concluding that petitioner could not assert a third-party bad faith cause of action under
the West Virginia Human Rights Act.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner’s complaint details actions that occurred in an underlying civil action. The
underlying action stemmed from a November 20, 2010, accident in which John Anthony
Ottaviano (“John”), who was the father of Mark Anthony Ottaviano (“Mark”), ran over and
killed Mark with his vehicle. State Farm Mutual Automobile Insurance Company (“State Farm”)
insured the vehicle that John was operating. Mark’s estate filed a wrongful death action against
John, and State Farm assigned the defense of that action to the law firm of Pullin, Fowler,
Flanagan, Brown and Poe PLLC (“Pullin Fowler”). Respondent, an attorney employed by Pullin
Fowler, was counsel of record for John, and later, following John’s death, for petitioner as
administratrix of John’s Estate.1 The wrongful death action was tried before a jury, and the jury
returned a verdict in the amount of $190,000.00 to Mark’s estate. State Farm paid to Mark’s
estate the bodily injury policy limits of $100,000.00, plus costs.

       1
        John’s death was unrelated to the circumstances surrounding the underlying wrongful
death lawsuit.
                                                     1

        Following the trial and resolution of this underlying lawsuit, on February 10, 2016,
petitioner2 filed suit against respondent and State Farm alleging that they are liable for damages
under the West Virginia Human Rights Act and asserting first- and third-party bad faith claims.
Specifically, the complaint states that respondent engaged in discriminatory practices by failing
to competently investigate the underlying case and make a reasonable offer of settlement.
Respondent moved to dismiss petitioner’s complaint against her for failure to state a claim upon
which relief can be granted. On May 27, 2016, the circuit court granted respondent’s motion to
dismiss.3 This appeal followed.

        On appeal, petitioner asserts that the circuit court erred in concluding that the complaint
failed to state a claim upon which relief can be granted under West Virginia Rule of Civil
Procedure 12(b)(6). Petitioner also cites as error the circuit court’s specific findings that underlie
its conclusion that petitioner failed to state a claim. Specifically, petitioner asserts that the circuit
court erred in finding that the litigation privilege prohibited suit against respondent because the
court failed to consider the exceptions to that privilege. Petitioner claims that the circuit court
erroneously concluded that respondent was not an agent of State Farm. Lastly, petitioner claims
that West Virginia Code § 33-11-4 does not preclude a third-party cause of action against an
insurer under the West Virginia Human Rights Act, West Virginia Code § 5-11-9(7).


        2
         Mark’s Estate was also a named plaintiff below. Only petitioner appealed the circuit
court’s order, however.
        3
         We note that this Court’s “jurisdiction normally does not encompass appeals from the
denial or granting of a motion to dismiss where there are remaining issues to be litigated.” State
ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 775, 461 S.E.2d 516, 521
(1995). The order at issue here dismisses all claims against respondent only, leaving claims
pending against State Farm; however, it does not include certification under West Virginia Rule
of Civil Procedure 54(b). Nonetheless,

                [t]he key to determining if an order is final is not whether the
                language from Rule 54(b) of the West Virginia Rules of Civil
                Procedure is included in the order, but is whether the order
                approximates a final order in its nature and effect. We extend
                application of this rule to a motion to dismiss under Rule 12(b)(6)
                of the West Virginia Rules of Civil Procedure.

194 W. Va. at 773, 461 S.E.2d at 519, syl. pt. 1. Because the order granting respondent’s motion
to dismiss completely disposes of all claims against her, we find that the order is final in its
nature and effect, and the matter is, therefore, properly before this Court on appeal. See Nat’l
Union Fire Ins. Co. v. Miller, 228 W. Va. 739, 746-47, 724 S.E.2d 343, 350-51 (2012) (“The
circuit court’s order completely disposes of the indemnity claim. Although it does not contain the
W. Va. R. Civ. P. 54(b) finality language, . . . this Court agrees [] that the order is final in its
nature and effect as to the issue of indemnity. Therefore, the matter is properly before this Court
on appeal.”)

                                                       2

        We review the circuit court’s order denying the motion to dismiss de novo. Syl. Pt. 4,
Ewing v. Board of Educ., 202 W.Va. 228, 503 S.E.2d 541 (1998). “The purpose of a motion
under Rule 12(b)(6) is to test the formal sufficiency of the complaint.” Collia v. McJunkin, 178
W.Va. 158, 159, 358 S.E.2d 242, 243 (1987) (citations omitted). In reviewing the sufficiency of
a complaint under Rule 12(b)(6), this Court is required to accept the factual allegations as true
and to draw all reasonable inferences in the light most favorable to the plaintiff. John W. Lodge
Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158-59 (1978).
Additionally, dismissal for failure to state a claim is proper only where it is clear beyond doubt
that no relief could be granted under any set of facts that could be proved consistent with the
allegations in the complaint. Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236
S.E.2d 207 (1977). A plaintiff’s complaint must “set forth sufficient information to outline the
elements of his claim.” Price v. Halstead, 177 W.Va. 592, 594, 355 S.E.2d 380, 383 (1987).

       Petitioner’s complaint set forth four causes of action:

               Plaintiffs file this civil action (1) under the provisions of West
               Virginia Code § 5-11-9(7), the West Virginia Human Rights Act,
               (2) a claim against a party’s insurer, (3) a third-party claim against
               the insurer, and ([4]) for a declaratory judgment under the
               provisions of Rule 57, West Virginia Rules of Civil Procedure.4

Petitioner’s complaint characterized respondent as an agent for State Farm, and claimed that
respondent and State Farm engaged in discriminatory practices that resulted in economic loss to
petitioner.

         The circuit court dismissed petitioner’s complaint against respondent upon finding that
the litigation privilege barred suit against her because petitioner’s complaint failed to allege any
conduct unrelated to the underlying lawsuit. Petitioner asserts that the circuit court erred in
dismissing the complaint on this ground because it failed to consider the exceptions to the
litigation privilege. “The litigation privilege is generally applicable to bar a civil litigant’s claim
for civil damages against an opposing party’s attorney if the alleged act of the attorney occurs in
the course of the attorney’s representation of an opposing party and is conduct related to the civil
action.” Syl. Pt. 3, Clark v. Druckman, 218 W.Va. 427, 428, 624 S.E.2d 864, 865 (2005). The
exceptions to this privilege are claims of fraud and malicious prosecution. Id. at 435, 624 S.E.2d
at 872. Petitioner’s complaint, however, contains no cause of action for fraud or malicious
prosecution.

       In further arguing that an exception to the privilege should permit his suit against
respondent to go forward, petitioner urges this Court to consider Moss v. Parr Waddoups Brown
Gee & Loveless, 285 P.3d 1157 (Utah 2012), which relied upon Clark in outlining the contours
of Utah’s litigation privilege. The Moss Court noted that the privilege is not without limit and

       4
        Petitioner sought a declaratory judgment that the statute abolishing third-party bad faith
actions against insurance carriers, West Virginia Code § 33-11-4a, violates the “open courts”
provision of the West Virginia Constitution. Accordingly, this cause of action concerned State
Farm rather than respondent and is not addressed in this appeal.
                                                      3

that the privilege can be lost when a plaintiff asserts that an “attorney has engaged in
independent acts, that is to say acts outside the scope of his representation of his client’s
interests, or has acted solely for his own interests and not his client’s.” Id. at 1166. Disregarding
the fact that Moss is not binding precedent on this Court, we find that there are no allegations
that respondent acted outside the scope of her representation or acted solely for her own interests.
To the contrary, the complaint details the underlying lawsuit against which respondent was
retained to defend; asserts that respondent “represented at all times State Farm as its attorney
throughout the proceedings and trial in the below described civil action[;]” and, for its primary
allegations of wrongdoing, asserts that respondent failed to competently investigate the case and
make a reasonable offer of settlement. Because the complaint fails to assert a claim for malicious
prosecution or fraud, because the allegations in petitioner’s complaint concern conduct occurring
during the course of respondent’s representation, and because the conduct is related to the
underlying civil action, dismissal of petitioner’s complaint under West Virginia Rule of Civil
Procedure 12(b)(6) was proper and warranted.

        Petitioner also argues that the circuit court erroneously concluded that respondent was not
an agent of State Farm. Petitioner asserted first- and third-party bad faith claims against State
Farm and further claimed that respondent was an attorney-agent of State Farm and, therefore,
liable to petitioner for alleged damages. “A first-party bad faith action is one wherein the insured
sues his/her own insurer for failing to use good faith in settling a claim filed by the insured.” Syl.
Pt. 2, Loudin v. Nat’l Liab. & Fire Ins. Co., 228. W.Va. 34, 35, 716 S.E.2d 696, 697 (2011).
“The Unfair Trade Practices Act, W.Va. Code §§ 33-11-1 to 10, and the tort of bad faith apply
only to those persons or entities and their agents who are engaged in the business of insurance.”
Syl. Pt. 2, Barefield v. DPIC Cos., Inc., 215 W.Va. 544, 546, 600 S.E.2d 256, 258 (2004)
(internal quotations and citation omitted).

                       A defense attorney who is employed by an insurance
               company to represent an insured in a liability matter is not engaged
               in the business of insurance. The defense attorney is therefore not
               directly subject to the provisions of the West Virginia Unfair Trade
               Practices Act. W.Va. Code, 33-11-1 to -10.

215 W.Va. at 547, 600 S.E.2d at 259, syl. pt. 3 (internal quotations and citation omitted). These
pronouncements make clear that defense attorneys hired to represent insureds are not engaged in
the business of insurance; thus, the circuit court did not err in concluding that respondent is not
State Farm’s agent and is not liable for the bad faith claims.

        Petitioner’s final assignment of error is that the circuit court erred in concluding that
West Virginia Code § 33-11-4(a), which precludes third-party suits for unfair claims settlement
practices, also precludes a third-party cause of action brought pursuant to West Virginia Code §
5-11-9(7) of the West Virginia Human Rights Act. Petitioner states that “[t]he [c]ircuit [c]ourt, in
a form of legal mumbo-jumbo on page 3 of the May 27th Order, asserts that the plaintiffs are not
members of a protected class. This is false.” We find that the circuit court’s order did not
conclude that third-party claims could not be asserted under the West Virginia Human Rights
Act. Rather, the circuit court found that petitioner had failed to assert a claim under the West
Virginia Human Rights Act because petitioner failed to assert membership in a protected class.

                                                      4

         To plead a prima facie case of discrimination under the Human Rights Act, a plaintiff
must allege “(1) [t]hat the plaintiff is a member of a protected class. (2) That the [defendant]
made an adverse decision concerning the plaintiff. (3) But for the plaintiff’s protected status, the
adverse decision would not have been made.” Syl. Pt. 3, in part, Conaway v. E. Associated Coal
Corp., 178 W.Va. 164, 166, 358 S.E.2d 423, 425 (1986). Petitioner argues discrimination based
upon “familial status,” but the complaint is devoid of any allegation concerning a protected class.
Because petitioner failed to plead a prima facie case of discrimination, dismissal for failure to
state a claim was proper.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: September 5, 2017

CONCURRED IN BY:

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




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