                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


THOMAS H. MCCORKLE,                    
              Plaintiff-Appellant,
                 v.
DPIC COMPANIES, INCORPORATED, A
foreign corporation authorized to do            No. 99-1229
business in the State of West
Virginia; MAURICE ABRAHAMS, A
nonresident of the State of West
Virginia,
               Defendants-Appellees.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
           Elizabeth V. Hallanan, Senior District Judge.
                          (CA-98-585-2)

                      Argued: October 30, 2000
                       Decided: July 3, 2001

     Before NIEMEYER and LUTTIG, Circuit Judges, and
     Alexander WILLIAMS, Jr., United States District Judge
       for the District of Maryland, sitting by designation.


Reversed in part and remanded by unpublished opinion. Judge Wil-
liams wrote the opinion, in which Judge Luttig joined. Judge Nie-
meyer wrote an opinion concurring in the judgment.


                            COUNSEL

ARGUED: Christopher D. Dean, FERGUSON & DEAN, P.L.L.C.,
Wayne, West Virginia, for Appellant. Stuart Andrew McMillan,
2                 MCCORKLE v. DPIC COMPANIES, INC.
BOWLES, RICE, MCDAVID, GRAFF & LOVE, P.L.L.C., Charles-
ton, West Virginia, for Appellees. ON BRIEF: Gerard R. Stowers,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, P.L.L.C., Charles-
ton, West Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

WILLIAMS, District Judge:

   Thomas A. McCorkle ("McCorkle"), filed this civil action on July
2, 1998, against DPIC Companies, Inc. ("DPIC") and one of its
adjusters, Maurice Abrahams ("Abrahams") in the United States
Court for the Southern District of West Virginia, at Charleston. The
complaint alleged statutory violations of W.Va. Code § 33-11-4(9), in
Counts I through VIII, and a common law bad faith claim in Count
IX. The Appellees filed a Motion to Dismiss the Appellant’s Com-
plaint pursuant to Rule 12(b)(6) and 9(b) of the Federal Rules of Civil
Procedure. On October 29, 1998, the district court entered an order
holding that the release executed by the Appellant did not release the
Appellees and therefore did not act as a complete defense to the
Appellant’s action. Because the scope of the release was unclear, the
court asked the parties to submit additional briefs on the issue of the
release. On December 22, 1998, the district court entered an order rul-
ing that Appellant’s complaint was time barred.* For the reasons that
follow, we reverse the district court’s decision dismissing Appellant’s
claim based on the running of the statute of limitations. As for the

   *The record is unclear as to how the district court treated the disposi-
tive motions. The October 29, 1998 order characterized the motions as
a motion to dismiss that had been interpreted as a motion for summary
judgment. (Joint Appendix 183.) After additional briefings were filed,
the December 22, 1998 order by the district court characterized the
motions as motions to dismiss. (J.A. 200.)
                  MCCORKLE v. DPIC COMPANIES, INC.                     3
scope of the release and the sufficiency of the pleadings, we remand
the case back to the district court for a determination on those issues.

                                    I

   McCorkle entered into a fee splitting arrangement with James M.
Pierson and the now defunct law firm of Hunt, Lees, Ferrel & Kess-
ler. The contract called for the parties to split the legal fees from the
settlement or verdict of a medical malpractice claim. Under the agree-
ment, McCorkle was entitled to 25% of the legal fees. At some point,
the claim was settled without McCorkle’s knowledge. In November
1996, McCorkle wrote Pierson, Hunt and Lees on eight occasions
demanding his share of the legal fees. In December 1996, he con-
tacted Pierson two additional times. Pierson is insured by DPIC
against McCorkle’s claims. McCorkle alleges that, through his
demand letters and a proposed complaint sent to Pierson, DPIC was
put on notice of his claim against Pierson and that the supporting doc-
umentation established Pierson’s liability. According to McCorkle,
DPIC failed to respond to his demands for settlement until April
1997, four months after his initial demand. McCorkle claims that,
instead of promptly settling his contract claim against Pierson, DPIC
financially supported a frivolous lawsuit against him for defamation
brought by Shellie Nue, an employee of Pierson. Further, McCorkle
alleges that DPIC financed a declaratory judgment action filed by
Pierson on the contract claim where Pierson and Nue lied under oath.
On July 3, 1997, McCorkle signed a release settling his contract dis-
pute with Pierson. McCorkle alleges that DPIC forced him to settle
for an inequitable amount ($33,500) by supporting the frivolous liti-
gation and refusing to disclose the settlement amount of the malprac-
tice action. DPIC disputes the majority of McCorkle’s allegations.
DPIC acknowledges the existence of the contractual dispute and the
settlement in July 1997.

                                   II

   The district court based it decision to dismiss Appellant’s com-
plaint on the analysis found in Stemple v. Dobson, 400 S.E.2d 561
(W. Va. 1990). In Stemple, the Supreme Court of Appeals of West
Virginia determined that, "where a cause of action is based on tort . . .
the statute of limitations does not begin to run until the injured person
4                 MCCORKLE v. DPIC COMPANIES, INC.
knows, or by the exercise of due diligence should know of the nature
of his injury." Id. at 321. Under this rationale, the district court sur-
mised that the statute of limitations on the Appellant’s complaint
would begin to run at some point between December 1996 and April
1997 when Appellant was fully cognizant of the nature of his alleged
injuries. However, the complaint in the above captioned case was not
filed until July 2, 1998, over one year from the court determined com-
mencement date.

   Subsequent to the district court’s ruling, the Supreme Court of
Appeals of West Virginia decided Klettner v. State Farm, 519 S.E.2d
870 (W. Va. 1999). The facts of the Klettner case are similar to the
instant case. Plaintiff Klettner filed suit against State Farm alleging
violations of the West Virginia Unfair Claims Settlement Practices
Act, West Virginia Code §§ 33-11-1 to -10 (1996 & Supp. 1999). The
allegations stemmed from the underlying suit in which Plaintiffs filed
a complaint against the tortfeasors in an automobile action which
were insured by State Farm. The same statute of limitations question
present in this case was presented to the West Virginia court. Is the
one-year statute of limitations for statutory bad faith causes of action
tolled by the appeal period applicable to the underlying action? The
Supreme Court of Appeals of West Virginia opined that the applica-
ble statute of limitations does not begin to run until the appeal period
on the underlying action has passed. Id. at 876. The court reasoned
that in its previous decisions on the issue, the court had determined
that the statute of limitations does not begin to toll until the case was
"ultimately resolved." Id. at 874. The court defined "ultimately
resolved" to mean resolved after any and all appeals.

   Both Appellant and Appellees stipulate that the Klettner case con-
trols the above captioned action and that the district court improperly
dismissed the case due to the running of the statute of limitations. The
statute of limitations in the case began to run on July 3, 1997 when
McCorkle executed a mutual release in the underlying action. This
constitutes an ultimate resolution. The complaint in the instant case
was filed on July 2, 1998, one day prior to the expiration of the one-
year statute of limitations. Therefore, because the complaint was
timely filed, the judgment of the district court is reversed.
                 MCCORKLE v. DPIC COMPANIES, INC.                      5
                                   III

   Appellees DPIC contend that, although the district court erred in
dismissing the instant case based on statute of limitations grounds, the
district court’s order may be affirmed on other grounds. DPIC argues
that (1) McCorkle’s action was included in his release of the insured;
(2) McCorkle has failed to state a claim for statutory relief under the
Unfair Claims Settlement Practices Act (UCSPA), W.Va. Code § 33-
11-4(9); and (3) West Virginia does not recognize common law third
party bad faith claims. While both parties have made arguments to
this Court on the three additional reasons to affirm the district court’s
ruling, we find the record below is inadequate and too scant to enable
this Court to resolve these alternative issues. The district court is in
a better position to decide the scope of the release between McCorkle
and Pierson, and the sufficiency of the pleadings. Therefore, this mat-
ter is remanded to the district court for a determination of the scope
of the release and the sufficiency of the pleadings.

                                   IV

   In conclusion, we reverse the district court’s dismissal of the
Appellant’s claim based on the running of the statute of limitations.
As for the scope of the release and the sufficiency of the pleadings,
we remand the case back to the district court for a determination con-
sistent with this opinion.

                            REVERSED IN PART AND REMANDED

NIEMEYER, Circuit Judge, concurring in the judgment:

   I concur in the judgment only to reverse the ruling based on appli-
cation of the applicable statute of limitations and to remand for fur-
ther proceedings.
