        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2015 Term
                                 _______________                        FILED
                                                                     May 13, 2015
                                                                     released at 3:00 p.m.
                                    No. 14-1168                    RORY L. PERRY II, CLERK
                                                                 SUPREME COURT OF APPEALS
                                  _______________                     OF WEST VIRGINIA




                     STATE OF WEST VIRGINIA EX REL.

                  ENERGY CORPORATION OF AMERICA and

                            JOHN D. SOLLON,

                               Petitioners


                                         v.

    THE HONORABLE JOHN LEWIS MARKS, Judge of the Circuit Court of

                       Harrison County;

                      ERIN E. GILMORE;

                    ERIKA L. GILMORE; and

                      RON R. GILMORE,

                         Respondents


       ____________________________________________________________

                          Petition for Writ of Prohibition

                      WRIT GRANTED AS MOULDED
       ____________________________________________________________

                              Submitted: April 22, 2015

                                Filed: May 13, 2015


David J. Romano, Esq.                         Michael P. Markins, Esq.
Romano Law Office                             Jennifer A. Lynch, Esq.
Clarksburg, West Virginia                     Mannion & Gray Co., L.P.A.
Counsel for the Petitioners                   Charleston, West Virginia
                                              Counsel for the Respondents


JUSTICE KETCHUM delivered the Opinion of the Court.

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
                              SYLLABUS BY THE COURT

              Under West Virginia Rule of Civil Procedure 20(a), persons may be joined

in one action as defendants if: (1) any right to relief is asserted against them with respect

to or arising out of the same transaction, occurrence, or series of transactions or

occurrences; and (2) any question of law or fact common to all of the defendants will

arise in the action. Under Rule 20(a), joinder of defendants is proper only if both of these

requirements are satisfied.




                                              i
Justice Ketchum:


             Petitioners, Energy Corporation of America and John D. Sollon

(collectively, “ECA”) seek a writ of prohibition to halt enforcement of a September 30,

2014, order of the Circuit Court of Harrison County.

             The circuit court’s order pertained to a lawsuit against ECA stemming from

a car wreck that occurred in Pennsylvania. The plaintiffs’1 lawsuit has two separate

causes of action, each with a different defending party: (1) a negligence claim against

ECA for causing the wreck; and (2) a bad faith claim against the plaintiffs’ insurer for

refusing to pay medical payments coverage for wreck-related injuries. The plaintiffs

assert that they may join their claims against their insurer and ECA under the permissive

joinder rule in West Virginia Rule of Civil Procedure 20(a).2

             ECA argues that joinder of the plaintiffs’ insurer and ECA was improper

under Rule 20(a). ECA further contends that because joinder was improper, the mere fact

that Harrison County was a proper venue for the plaintiffs’ insurer did not make Harrison

County a proper venue for ECA.




             1
              The plaintiffs consist of three people: the owner of the car involved in the
wreck and two people who were inside that car when the wreck occurred.
             2
                West Virginia Rule of Civil Procedure 20(a) allows for parties to be
joined as co-defendants when “any right to relief in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any question of
law or fact common to all defendants will arise in the action.” W.VA. R. CIV. P. 20
[1998].

                                            1

             After careful consideration, we grant the requested writ of prohibition as

moulded. As we discuss below, the circuit court improperly permitted the plaintiffs to

join ECA with the plaintiffs’ insurer, and it should have severed the two claims. Once

severed, the circuit court should have dismissed the claims against ECA for lack of

venue.


                                  I.

                 FACTUAL AND PROCEDURAL BACKGROUND


             In 2012, the plaintiffs’ car and one of ECA’s work-trucks (driven by an

ECA employee, John D. Sallon) were involved in a wreck. The wreck occurred in

Pennsylvania. However, all three plaintiffs live in Harrison County, West Virginia.

             In 2013, the plaintiffs filed a tort claim in Harrison County against ECA for

negligently causing the wreck. ECA timely filed a motion to dismiss on the ground that

Harrison County was not a proper venue. The circuit court noted that the wreck occurred

in Pennsylvania and that ECA is a West Virginia corporation with its local office and

chief officers residing in Kanawha County. It therefore dismissed the plaintiffs’ claim

against ECA for improper venue.3

             In the meantime, according to the plaintiffs, they notified their motor

vehicle insurer, State Auto, of the wreck and resulting injuries. Assuming the plaintiffs’

medical bills were covered under their medical payments coverage, the plaintiffs’ insurer


             3
              We note that in addition to its local, Kanawha County office, and the fact
that ECA’s president resides in Kanawha County, ECA also maintains a headquarters in
Denver, Colorado.

                                            2

would be obligated to provide coverage regardless of who was at fault in causing the

wreck. Nevertheless, the plaintiffs contend that their insurer failed to either accept or

reject their request to pay the medical bills.

              In 2014, the plaintiffs filed a bad faith claim in Harrison County against

their insurer. They alleged that their insurer violated the Unfair Trade Practices Act by

failing to provide no fault medical payments coverage for wreck-related injuries as

required by their insurance policy.4 The plaintiffs joined ECA as a co-defendant to their

suit, seeking tort damages for the wreck.

              ECA timely filed a motion to sever for improper joinder and dismiss for

improper venue. In an order dated September 30, 2014, the circuit court denied ECA’s

motion to sever and held that ECA could be tried in Harrison County. It found that the

negligence claim against ECA and the contractual medical payments claim against the

plaintiffs’ insurer arose from the same wreck, and therefore, they were part of the same

“transaction or occurrence.” The circuit court also found that, once joined, the plaintiffs’

insurer was a “venue-giving defendant” as to ECA. Accordingly, because venue was

proper in Harrison County for the plaintiffs’ insurer, it was also proper for ECA (even

though it would not have been a proper venue had the plaintiffs’ insurer not been joined

with ECA as a co-defendant). ECA then petitioned this Court for a writ of prohibition.




              4
               The Unfair Trade Practices Act, as codified in WEST VIRGINIA CODE § 33­
11-4(9) [2002], requires that insurers, among other things, affirm or deny coverage of
claims within a reasonable time.

                                                 3

                                       II.

                               STANDARD OF REVIEW



              When considering a petition for a writ of prohibition, we have held:

              In 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.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.V. 12, 483 S.E.2d 12 (1996) (emphasis

added).


                                          III.

                                       ANALYSIS



              The West Virginia Rules of Civil Procedure allow for defendants to be

joined in a single action if the claims asserted against them are sufficiently related. See

W.VA. R. CIV. P. 20. Furthermore, West Virginia follows the venue-giving defendant

principle: once venue is proper for one defendant in an action, venue is also proper for all


                                             4

other defendants in that same action, but only if the venue-giving defendant was properly

joined. See State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 231, 366 S.E.2d 738,

739 (1988).

                  ECA’s petition raises two arguments: (1) joinder of ECA and the plaintiffs’

insurer was improper under West Virginia Rule of Civil Procedure 20; and (2) because

joinder was improper, the venue-giving defendant principle did not apply to make

Harrison County a proper venue for ECA. We examine the parties’ arguments on these

issues in turn.

    A. Joinder of the defendants under West Virginia Rule of Civil Procedure 20(a)

                  The plaintiffs joined their insurer and ECA as co-defendants under West

Virginia Rule of Civil Procedure 20(a). This rule provides for discretionary joinder of

multiple defendants in a single complaint. Rule 20(a) states, in pertinent part:

                  All persons may be joined in one action as defendants if there
                  is asserted against them jointly, severally, or in the
                  alternative,5 any right to relief in respect of or arising out of
                  the same transaction, occurrence, or series of transactions or
                  occurrences and if any question of law or fact common to all
                  defendants will arise in the action.

W.VA. R. CIV. P. 20(a) [1998] (footnote added).




                  5
                 By “jointly, severally, or in the alternative,” the drafters of the rules of
civil procedure alluded to a common law rule which allowed multiple plaintiffs to “sue
together to assert joint, but not several rights . . . Thus, Rule 20(a) avoids the restrictions
imposed by historic practice, as well as the confusion engendered by the use of terms
such as ‘joint’ and ‘several.’” JAMES W. MOORE, MOORE’S FEDERAL PRACTICE, § 20.03
at 20-26 (3d ed. 2015).

                                                 5

              We recently interpreted similar language in Rule 20(a) as it pertains to the

joinder of multiple plaintiffs, holding that:

              Rule 20(a) of the West Virginia Rules of Civil Procedure
              provides that “[a]ll persons may join in one action as
              plaintiffs if they assert any right to relief … [1] arising out of
              the same transaction [or] occurrence ... and [2] if any question
              of law or fact common to all these persons will arise in the
              action.” Under Rule 20(a), joinder is proper only if both of
              these requirements are satisfied.

Syl. Pt. 2, State ex rel. J.C. v. Mazzone, 233 W.Va.457, 759 S.E.2d 200 (2014) (emphasis

added).

              Thus, Rule 20(a) sets out a two-pronged test for permissive joinder of

plaintiffs or defendants: (1) the joined claims must be transactionally related; and (2) a

question of law or fact common to all parties must arise in the action. See FRANKLIN D.

CLECKLEY, ROBIN JEAN DAVIS, AND LOUIS J. PALMER, JR., LITIGATION HANDBOOK ON

WEST VIRGINIA RULES OF CIVIL PROCEDURE § 20(a), at 572 (4th ed. 2012).

Accordingly, we hold that under West Virginia Rule of Civil Procedure 20(a), persons

may be joined in one action as defendants if: (1) any right to relief is asserted against

them with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and (2) any question of law or fact common to all of the

defendants will arise in the action. Under Rule 20(a), joinder of defendants is proper

only if both of these requirements are satisfied. See CLECKLEY, DAVIS, AND PALMER,

LITIGATION HANDBOOK § 20(a), at 572.

              Therefore, determining whether joinder of defendants is proper under Rule

20(a) entails a two-step process. The first step is to assess whether the claims to be

                                                6

joined arise out of the same transaction or series of transactions. If the answer to the first

question is yes, then the second step is to consider whether any common question of law

or fact will arise in the joined claims. A court reviewing joinder of parties should make

these determinations in light of Rule 20(a)’s purpose, which is to promote judicial

efficiency, prevent duplication of effort, and alleviate the uncertainty that comes with

piecemeal litigation. Morris v. Crown Equip. Co., 219 W.Va. 347, 357 n.8, 633 S.E.2d

292, 302 n.8 (2006).      Further, Rule 20(a) is based on “common sense, fact-based

considerations.” MOORE’S FEDERAL PRACTICE, § 20.02 at 20-5. If common sense

dictates that the claims to be joined are sufficiently related to further these goals, Rule

20(a) should be liberally construed. See Anderson v. McDonald, 170 W.Va. 56, 60, 289

S.E.2d 729, 734 (1982).

              As to the first prong (transactional relatedness), there are no hard and fast

rules for determining whether it has been met. Mosley v. Gen. Motors Corp., 497 F.2d

1330, 1333 (8th Cir. 1974) (interpreting Federal Rule of Civil Procedure 20).6 However,

it is well established that this prong does not require that the events giving rise to the

claims be absolutely identical. Mazzone, 223 W.Va. at 464, 759 S.E.2d at 207. Rather,

claims are transactionally related if there is a logical relation between them. Mosley, 497


              6
                 “Because the West Virginia Rules of Civil Procedure are patterned after
the Federal Rules of Civil Procedure, we often refer to interpretations of the Federal
Rules when discussing our own rules.” See Hardwood Group v. Larocco, 219 W.Va. 56,
61 n.6, 631 S.E.2d 614, 619 n.6 (2006). However, we caution that “[a] federal case
interpreting a federal counterpart to a West Virginia rule of procedure may be persuasive,
but it is not binding or controlling.” Syl. Pt. 3, Brooks v. Isinghood, 213 W.Va. 675, 584
S.E.2d 531 (2003).

                                              7

F.2d at 1333 (“‘Transaction’ is a word of flexible meaning. It may comprehend a series

of many occurrences, depending not so much upon the immediateness of their connection

as upon their logical relationship.”). In other words, transactional relatedness will be

found when the claims “involve enough related operative facts to make joinder in a single

case fair.” MOORE’S FEDERAL PRACTICE, § 20.05 at 20-30. Joinder of multiple claims

into a single action may be fair if there is a “substantial evidentiary overlap” between

them. Klamath Irrigation Dist. v. U.S., 113 Fed. Cl. 688, 707 (2013). For example, a

single transaction may be found when otherwise unrelated parties are affected by the

same state-wide discriminatory policy. See Mosley, 497 F.2d at 1333.

              The second prong (commonality) is an easy requirement to satisfy and is

relatively straightforward. Mazzone, 223 W.Va. at 464, 759 S.E.2d at 207. It only

requires that a single factual or legal question will arise in the litigation against the joined

parties. Id. at 465, 759 S.E.2d at 208. The commonality requirement is satisfied even if

the common question is not the most dominant issue in the case. Id. This requirement

ensures that the claims can be tried together conveniently. MOORE’S FEDERAL PRACTICE,

§ 20.04 at 20-30.

              The circuit court considered Rule 20(a)’s first requirement and found that

the claims against the plaintiffs’ insurer and ECA arose out of the same “transaction or

occurrence.” We do not need to pass judgment on the circuit court’s determination

because it erred in ending its inquiry there. Even assuming the circuit court was correct,

it should have also considered Rule 20(a)’s second requirement, commonality. Mere

satisfaction of Rule 20(a)’s first requirement does not automatically satisfy the second

                                               8

requirement. See Horton Co. v. Int’l Tel. & Tel. Corp., 85 F.R.D. 369, 371 (W.D. Pa.

1980) (recognizing that two claims might have arisen out of same transaction or

occurrence, but there was no commonality between them).

              The plaintiffs’ claims against their insurer and ECA clearly do not raise a

common factual or legal question. Assuming the plaintiffs’ claim against their insurer to

be true, their insurer would be contractually required to pay the medical bills regardless

of who was at fault in causing the wreck. Therefore, ECA’s negligence in causing the

wreck has no bearing on whether the plaintiffs’ insurer is obligated to pay the claim for

medical payments coverage. Likewise, the plaintiffs’ bad faith claim against their insurer

does not affect ECA’s potential liability for its employee’s negligence in causing the

wreck. Furthermore, we note that joining these two unrelated claims would not further

Rule 20(a)’s objective of promoting judicial efficiency while preventing duplication of

effort. Because these claims do not present a single factual or legal question in common,

the claim against ECA can be resolved with just as much efficiency without being joined

to the plaintiffs’ claim against their insurer.

              Therefore, joinder of the plaintiffs’ insurer and ECA was improper because

it failed to satisfy both requirements under Rule 20(a). Because the plaintiffs’ insurer and

ECA were misjoined, the claims against them should have been severed under West

Virginia Rule of Civil Procedure 21 [1960]. See CLECKLEY, DAVIS, AND PALMER,

LITIGATION HANDBOOK § 21, at 574 (“If a trial court finds that a plaintiff has misjoined

parties, the court should sever those parties or claims[.]”). The circuit court clearly erred,

as a matter of law, in failing to do so.

                                                  9

           B. The Venue-Giving Defendant Principle and improper joinder

             ECA argues that the circuit court erred in finding venue was proper in

Harrison County. The wreck did not occur in West Virginia. Therefore, it contends that

venue for ECA was only proper in a West Virginia county where its “principal office is

or wherein its mayor, president or other chief officer resides[.]” W.VA. CODE § 56-1-1

[2007]. ECA is a corporate defendant with its local office and some of its chief officers,

including its president, located in Kanawha County. Accordingly, ECA asserts that

Harrison County was not a proper venue for ECA.7

             The circuit court’s finding that Harrison County was a proper venue for

ECA was based on the “venue-giving defendant” principle, whereby “once venue is

proper for one defendant, it is proper for all other defendants subject to process.”

Kenamond, 179 W.Va. at 231, 366 S.E.2d at 739. The circuit court found that Harrison

County was a proper venue for the insurer and that the insurer was a venue-giving

defendant as to ECA.

             ECA does not deny that West Virginia follows the venue-giving defendant

principle. Rather, ECA contends that this principle does not apply to cases where joinder

with the venue-giving defendant was improper. ECA contends that without the plaintiffs’

insurer (who, as we just discussed, was improperly joined with ECA), there is no venue-

giving defendant.

             7
               We note that the driver of the ECA work-truck involved in the wreck,
John D. Sollon, resides in Monongalia County, West Virginia. Therefore, Monongalia
County may also be a proper venue for the plaintiffs’ claim against ECA arising out of
Mr. Sallon’s negligence in causing the wreck.

                                           10

              When a venue-giving defendant is severed or dismissed from an action in

its initial phase, and venue for the remaining defendant is improper under WEST VIRGINIA

CODE § 56-1-1, the circuit court is required to grant the remaining defendant’s timely

filed motion to dismiss for improper venue. See Syl. Pt. 11, Lester v. Rose, 147 W.Va.

575, 130 S.E.2d 80 (1963) (modified by State ex rel. Sutton v. Spillers, 181 W.Va. 376,

382 S.E.2d 570 (1989)). See also In re Reynolds, 369 S.W.3d 638, 656-57 (Tex. App.

2012) (holding that trial court erred in denying remaining defendant’s motion to dismiss

for improper venue after venue-giving defendant was dismissed); Corry v. CFM Majestic

Inc., 16 F.Supp. 2d 660, 665-57 (E.D. Va. 1998) (noting severance prevents a plaintiff

from manipulating joinder rules to burden “defendant who otherwise would have been

entitled to a [transfer of venue].”).

              However, there is an exception to this rule which allows a circuit court to

deny a remaining defendant’s motion to dismiss for improper venue after the venue-

giving defendant is no longer a party to the action. This exception applies when: (1)

application of the venue-giving defendant principle was initially proper; (2) the plaintiff

had a reasonable belief that he/she had a bona fide cause of action against the venue-

giving defendant; and (3) dismissal of the remaining defendant would result in substantial

delay. See Syl. Pt. 1, Sutton, 181 W.Va. at 379, 382 S.E.2d at 573.

              Application of the venue-giving defendant principle was not initially proper

in this case because ECA’s joinder with the venue-giving defendant (the plaintiffs’

insurer) was not allowed under West Virginia Rule of Civil Procedure 20(a). We have

held that “[t]he principle of the venue-giving defendant . . . is closely intertwined with

                                            11

our procedural rules on joinder.” Morris, 219 W.Va. at 357, 633 S.E.2d at 302. In

Morris, we further explained the connection between the venue-giving defendant

principle and our joinder rules, stating: “a requirement that the plaintiff independently

‘establish venue’ with respect to the out-of-state tortfeasor would effectively prevent

joinder of the out-of-state tortfeasor. This would be an absurd result, contrary to all

established procedure.” Id. at 357, 633 S.E.2d at 302. Similarly, application of the

venue-giving defendant principle through an improperly joined party (the plaintiffs’

insurer) was contrary to our established procedure on joinder and thus, produced an

absurd result.

                 Furthermore, dismissing the claim against ECA for improper venue would

not result in substantial delay. In determining this issue, we have stated:

                 The determination of what constitutes substantial delay in an
                 individual case is at the discretion of the circuit court since
                 the severity of the delay will vary from suit to suit. We point
                 out, however, that if a case is settled early in the life of the
                 suit, there would be no waste of judicial effort if the case was
                 transferred. Judicial economy is at issue only if time and
                 effort have been expended by the court in reviewing the case
                 and answering motions.

Sutton, 181 W.Va. at 379 n.7, 382 S.E.2d at 573 n.7 (emphasis added). ECA timely filed

its motion to dismiss for improper venue early in the life of this suit, before the parties (or

judge) expended any time, research, or discovery on the action. See id., at 378-79, 382

S.E.2d at 572-73.

                 Neither party argues that the plaintiffs lacked a reasonable belief that they

had a bona fide cause of action against their insurer. We do not need to address this


                                               12

subject because application of the venue-giving defendant principle was not initially

proper and because substantial delay would not result in dismissing the claim against

ECA for improper venue. We therefore refrain from speculating on the plaintiffs’ good

faith.

              Once the plaintiffs’ insurer is properly severed from the claim against ECA,

there will be no venue-giving defendant in this action.         Without a venue-giving

defendant, Harrison County was not a proper venue for ECA. Our holding in Syllabus

Point Eleven of Lester, 147 W.Va. 575, 130 S.E.2d 80, required the circuit court to grant

ECA’s motion. The circuit court’s failure to do so was clear error, not correctable on

appeal, and left ECA with no adequate means to obtain its desired relief other than to

request a writ of prohibition.

                                        IV.

                                    CONCLUSION



              Therefore, we find that the circuit court erred in denying ECA’s motion to

sever and dismiss. Accordingly, we halt enforcement of the September 30, 2014, order

denying ECA’s motion to sever for improper joinder and dismiss for improper venue. In

addition, we direct the circuit court to sever and dismiss the plaintiffs’ claims against

ECA. Likewise, we grant ECA’s requested writ of prohibition as moulded.

                                                               Writ Granted as Moulded.




                                           13

