                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Stephen Upton,
Plaintiff Below, Petitioner
                                                                                    FILED
                                                                                 April 21, 2017
vs) No. 16-0354 (Mason County 10-C-73)                                           RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Liberty Mutual Group, Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Stephen Upton, pro se, appeals two orders of the Circuit Court of Mason County.
In the first order, entered on March 11, 2016, the circuit court awarded partial summary judgment
to Respondent Liberty Mutual Group, Inc., by deciding that (1) no rational jury could find for
petitioner on his claims for bad faith, fraud, and professional negligence; and (2) the maximum
amount that petitioner could recover on his breach of contract claim was $6,197.59, plus interest.
In the second order, entered on April 27, 2016, the circuit court dismissed petitioner’s action with
prejudice after respondent tendered a check to petitioner for $6,197.59, plus applicable interest, in
the total amount of $9,088.21. Respondent, by counsel William M. Harter and Jared M. Tully,
filed a response in support of the circuit court’s orders. Petitioner filed a reply.

        The 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.

        According to petitioner, on the morning of August 24, 2009, he returned home after
working the night shift and discovered that someone had broken into his house by damaging the
exterior doors.1 Petitioner also discovered water on his kitchen floor from a “[m]inute” crack in a
pipe fitting under his sink. Petitioner reported both problems to respondent, his homeowners’
insurance carrier.

       1
         Petitioner, because of his perception that law enforcement did little to investigate prior
break-ins and/or vandalism directed at his residence, did not file a police report. According to
petitioner, nothing was stolen.

                                                 1
       Petitioner’s homeowners’ policy required a $5,000 per occurrence deductible. When
requested to do so by respondent, petitioner refused to file one claim for the damage to his exterior
doors and a separate claim for the water damage to his kitchen because he discovered both
problems at the same time. Nevertheless, respondent subsequently treated the damaged doors and
the water damage as separate occurrences on the ground that there was no evidence that whoever
damaged the exterior doors then went inside and caused the “[m]inute” crack under petitioner’s
kitchen sink.

        The parties each hired a separate contractor to appraise the damage to petitioner’s home.
Petitioner’s contractor, Robert Blankenship of Alternative Building Concepts, found that it would
cost $1,585.90 to fix petitioner’s exterior doors and $18,385.60 to make repairs to his kitchen.
Respondent’s contractor, Raintree Construction Co., LLC, found it would cost $1,921.72 to fix
petitioner’s exterior doors and $15,523.69 to make repairs to his kitchen. Neither contractor was
willing to do repair work involving petitioner’s granite countertops, but Mr. Blankenship opined
that such additional work would cost $3,662.06. Given that the damage to the exterior doors came
to an amount less the $5,000 per occurrence deductible, respondent paid nothing for that damage.
Respondent ultimately paid a total of $11,175.07 for the water damage after applying the $5,000
deductible to that occurrence.

        On July 12, 2010, petitioner filed a civil action against respondent in the Circuit Court of
Mason County asserting causes of action for breach of contract, bad faith, fraud, and professional
negligence. Petitioner alleged that respondent attempted to coerce him into filing a separate claim
for the water damage so that it could reduce the amount it owed him by applying his deductible
twice.

        Respondent removed the action to federal court. The action was later remanded to the
circuit court. Discovery did not commence until 2013, and the circuit court did not enter a
scheduling order until July 30, 2014. In the scheduling order, the circuit court set the deadline for
the completion of discovery as April 30, 2015. Respondent took Mr. Blankenship’s deposition on
March 12, 2013, and took petitioner’s deposition on August 8, 2014.

         The scheduling order also directed the parties to file pretrial memoranda. In respondent’s
pretrial memorandum, filed on July 13, 2015, it “reserve[d] the right to elicit . . . the expert
testimony of [Mr.] Blankenship to the extent permitted by the West Virginia Rules of Evidence.”
In petitioner’s pretrial memorandum, also filed on July 13, 2015, petitioner listed Mr. Blankenship
as a fact witness and stated that he intended to use Mr. Blankenship’s deposition testimony and his
own deposition testimony at trial. Petitioner also filed various motions to compel respondent to
comply with his discovery requests. Respondent responded by filing a motion to bifurcate
petitioner’s cause of action for breach of contract from his claims for bad faith, fraud, and
professional negligence.

       Following the close of discovery, respondent filed a motion for partial summary judgment
on June 8, 2015, arguing that there was no genuine issue of material fact and that (1) no rational
jury could find for petitioner on his claims for bad faith, fraud, and professional negligence; and
                                                 2
(2) the maximum amount that petitioner could recover on his breach of contract claim was
$3,796.43, plus interest. Petitioner filed a response on June 17, 2015. On June 29, 2015,
respondent filed a reply to petitioner’s response. Petitioner filed a response to the reply on July 13,
2015.

        The circuit court held a hearing on the parties’ various motions on July 13, 2015. The
circuit court declined to consider petitioner’s motions, finding that he failed to properly notice
them. While petitioner objected to that finding, the circuit court further found that the parties still
needed to engage in mediation. Consequently, the circuit court continued the trial date set forth in
the scheduling order and ordered that mediation be commenced.

         After mediation proved unsuccessful, the circuit court held a hearing on February 29, 2016.
The circuit court found that the case was not progressing. The circuit court determined that the
parties’ disputes over petitioner’s discovery requests related to his seeking of information for his
causes of action alleging bad faith, fraud, and professional negligence. The circuit court further
found that respondent waited to file its motion for partial summary judgment until the close of
discovery pursuant to the scheduling order. Notwithstanding the fact that a number of petitioner’s
pending motions would result in discovery reopening, the circuit court found that the motion for
partial summary judgment was ripe for decision given that the parties “properly briefed” the issues
raised therein. Accordingly, the circuit court concluded that the best way for it to move the case
forward was to rule on respondent’s motion for partial summary judgment and, if necessary, its
motion to bifurcate the causes of action alleging the mishandling of petitioner’s insurance claim
from his breach of contract claim.

         By order entered on March 11, 2016, the circuit court awarded respondent partial summary
judgment. The circuit court first found that no rational jury could find for petitioner on his causes
of action alleging the mishandling of his insurance claim. Petitioner based those claims on his
allegation that respondent improperly asked him to file a separate claim for the water damage in
his kitchen and then, after his refusal to file an additional claim, nevertheless treated the water
damage as a separate occurrence from the damage to his exterior doors so that it could apply his
deductible twice. The circuit court found that there was no evidence that whoever damaged the
exterior doors then went inside and caused the water damage. First, at his deposition, petitioner
testified that the water damage was caused by a “[m]inute” crack under his kitchen sink. Second, at
the deposition of petitioner’s contractor, Mr. Blankenship testified that one would expect to see
more extensive damage when a pipe or a pipe fitting is damaged by vandalism. Given no genuine
issue of material fact existed that vandalism was the cause of only the damage to the exterior doors,
the circuit court concluded that respondent properly treated the water damage as a separate
occurrence, to which another deductible applied. Therefore, the circuit court awarded respondent
summary judgment on petitioner’s claims for bad faith, fraud, and professional negligence.

        With regard to petitioner’s breach of contract claim, the circuit court found that, because
the cost of fixing petitioner’s exterior doors was below his $5,000 deductible, respondent owed
petitioner nothing for that occurrence. However, construing the evidence in the light most
favorable to petitioner, the circuit court used the higher cost estimate produced by Mr.
Blankenship, rather than the estimate given by respondent’s contractor, regarding the repair of the
                                                  3
water damage in petitioner’s kitchen. Mr. Blankenship’s estimate included a $325 fee to inspect
for mold and the $3,662.06 for the additional work involving petitioner’s granite countertops that
had to be performed by a different contractor, who specialized in that field. The circuit court found
that Mr. Blankenship’s total estimate for the kitchen work was $22,372.66. From this amount, the
circuit court subtracted petitioner’s $5,000 deductible and the $11,175.07 that respondent already
paid to petitioner. Accordingly, the circuit court found that the maximum amount that petitioner
could recover on his breach of contract claim was $6,197.59, plus interest.

       Following the circuit court’s March 11, 2016, order, petitioner filed a motion to disqualify
The Honorable David W. Nibert from continuing to preside in this case on April 8, 2016.
According to Judge Nibert, petitioner failed to submit a copy of his motion to the judge, as
required by West Virginia Trial Court Rule 17.01(a)(3), so that the judge would be aware of it. By
administrative order entered on May 3, 2016, the Chief Justice of this Court denied the April 8,
2016, motion for Judge Nibert’s disqualification and directed the judge to continue presiding in the
case.

        On April 6, 2016, respondent filed a confession of judgment and, on April 13, 2016, filed a
motion to dismiss stating that it tendered a check to petitioner for $6,197.59, plus applicable
interest, in the total amount of $9,088.21. Respondent attached a proposed order dismissing the
parties’ case to its motion. On April 27, 2016, the circuit court granted respondent’s motion and
dismissed the parties’ case, including a counterclaim previously filed by respondent, with
prejudice.2

        Given that the April 27, 2016, dismissal order was entered while petitioner’s April 8, 2016,
motion for Judge Nibert’s disqualification was pending, petitioner filed a supplemental motion for
disqualification on May 4, 2016. In the supplemental motion, petitioner alleged that Judge Nibert
“concocted” the story about being unaware of petitioner’s April 8, 2016, motion for
disqualification and violated Trial Court Rule 17.01(b)(1) by entering the dismissal order on April
27, 2016. By administrative order entered on May 4, 2016, the Chief Justice denied petitioner’s
supplemental motion for disqualification and again directed Judge Nibert to continue presiding in
the case.

        Petitioner now appeals the circuit court’s March 11, 2016, order awarding respondent
partial summary judgment and its April 27, 2016, order dismissing the parties’ case following
respondent’s confession of judgment on petitioner’s breach of contract claim that remained
pending. Respondent counters that the circuit court’s March 11, 2016, and April 27, 2016, orders
should be affirmed.
        We review both the entry of summary judgment and the entry of a dismissal de novo. See
Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (summary judgment); Syl. Pt.
2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516

       2
        In 2014, respondent sought and obtained the circuit court’s leave to file a counterclaim
against petitioner for the spoliation of evidence because petitioner disposed of the damaged pipe
and pipe fitting prior to its inspection by respondent.

                                                 4
(1995) (dismissal). However, because the April 27, 2016, dismissal of this case depends on the
circuit court’s rulings in the March 11, 2016, partial summary judgment order, we evaluate this
case under Rule 56 of the West Virginia Rules of Civil Procedure, which governs motions for
summary judgment.

        As an initial matter, petitioner contends that the circuit court’s award of partial summary
judgment was improper because discovery was incomplete. An award of summary judgment must
not be “precipitous.” Williams v. Precision Coil, Inc., 194 W.Va. 52, 61, 459 S.E.2d 329, 338
(1995) (internal quotations and citations omitted); see Rule 56(f), W.V.R.C.P. In this case,
respondent did not file its motion for partial summary judgment until after the closing of discovery
on April 30, 2015. By that time, respondent took the depositions of both petitioner and his
contractor and, as reflected by the record, responded to various discovery requests and requests for
admissions submitted by petitioner. Dissatisfied with respondent’s responses to those requests,
petitioner filed various motions to compel respondent to respond more fully. However, the circuit
court declined to consider petitioner’s motions on the ground that he failed to properly notice
them. The circuit court further found that the parties’ discovery disputes related to petitioner’s
seeking of information for his causes of action alleging bad faith, fraud, and professional
negligence. Thus, the circuit court determined that petitioner’s discovery motions would be
resolved by its ruling on either respondent’s motion to bifurcate those claims from petitioner’s
breach of contract claim or respondent’s motion for partial summary judgment to the extent that
the summary judgment motion also sought bifurcation of petitioner’s causes of action. Therefore,
we find that the circuit court resolved petitioner’s discovery motions by awarding respondent
summary judgment on petitioner’s claims alleging the mishandling of his insurance claim and
finding that his breach of contract claim, as modified by the court’s March 11, 2016, order, could
proceed. Accordingly, we conclude that the circuit court’s award of partial summary judgment to
respondent was not precipitous, as we affirm the March 11, 2016, order.

        With regard to the circuit court’s March 11, 2016, order, petitioner first contends that the
circuit court erred in awarding respondent summary judgment on his claims alleging the
mishandling of his insurance claim. Rule 56(c) provides that summary judgment “shall” be
granted provided that “there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” In syllabus point 4 of Painter, we held that “[s]ummary
judgment is appropriate where the record taken as a whole could not 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.” 192 W.Va. at 190, 451
S.E.2d at 756.

       To substantiate claims alleging the mishandling of a single insurance claim, the insured
must show a violation of the West Virginia Unfair Trade Practices Act (“UTPA”), West Virginia
Code §§ 33-11-1 through 33-11-10, as follows:

               To maintain a private action based upon alleged violations of W.Va. [C]ode
       § 33-11-4(9) in the settlement of a single insurance claim, the evidence should
       establish that the conduct in question constitutes more than a single violation of
       W.Va. [C]ode § 33-11-4(9), that the violations arise from separate, discrete acts or
                                                 5
       omissions in the claim settlement, and that they arise from a habit, custom, usage,
       or business policy of the insurer, so that, viewing the conduct as a whole, the finder
       of fact is able to conclude that the practice or practices are sufficiently pervasive or
       sufficiently sanctioned by the insurance company that the conduct can be
       considered a “general business practice” and can be distinguished by fair minds
       from an isolated event.

Syl. Pt. 4, Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 491 S.E.2d 1 (1996). In the instant
case, petitioner bases his claim-mishandling causes of action on two possible violations of the
UTPA: (1) respondent’s request that petitioner file a separate claim involving the water damage;
and (2) respondent’s handling of petitioner’s claim as involving two occurrences, despite his
refusal to file a separate claim, so that it could reduce the amount it owed him by applying his
$5,000 deductible twice.

        Although petitioner states that his policy sets forth a definition of “occurrence,” neither
party relies on the policy language. 3 Rather, the parties’ disagreement focuses on whether
whoever damaged the exterior doors then went inside and caused the “[m]inute” crack under
petitioner’s kitchen sink. According to petitioner’s deposition testimony, the crack in the damaged
pipe fitting was no longer than a fourth of an inch. At petitioner’s contractor’s deposition, Mr.
Blankenship testified that one would expect to see more extensive damage when a pipe or a pipe
fitting is damaged by vandalism. Respondent’s attorney specifically asked Mr. Blankenship
whether he “would expect to see more than a small slit in the pipe.” Mr. Blankenship answered,
“Oh, yes, right.”

        While petitioner does not attempt to rehabilitate Mr. Blankenship’s testimony,4 he does
challenge it. Despite the fact that Mr. Blankenship was petitioner’s contractor whom he listed as a
potential fact witness in his pretrial memorandum, petitioner contends on appeal that Mr.
Blankenship could offer no testimony relevant to the parties’ case given that Mr. Blankenship’s
deposition occurred several years after his inspection of petitioner’s home and that Mr.

       3
        Petitioner states that a complete copy of his homeowners’ policy was never entered into
the record.
       4
           In syllabus point 3 of Williams, we held, as follows:

                      If the moving party makes a properly supported motion for
              summary judgment and can show by affirmative evidence that there
              is no genuine issue of a material fact, the burden of production shifts
              to the nonmoving party who must either (1) rehabilitate the evidence
              attacked by the moving party, (2) produce additional evidence
              showing the existence of a genuine issue for trial, or (3) submit an
              affidavit explaining why further discovery is necessary as provided
              in Rule 56(f) of the West Virginia Rules of Civil Procedure.
194 W.Va. at 56, 459 S.E.2d at 333.

                                                   6
Blankenship’s inspection took place after the pipe and pipe fitting were repaired. See Rule 602,
W.V.R.E. (providing that “[a] witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the matter’).

         Notwithstanding petitioner’s argument, we find that his contractor possessed sufficient
experience in the inspection of vandalized pipes that Mr. Blankenship could testify as an expert
pursuant to Rule 702(a) of the West Virginia Rules of Evidence, which provides that “[i]f . . .
technical . . . or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise.” Mr. Blankenship
testified, as follows:

       Q.     Have you had occasion to review pipes that have been vandalized in your
       experience as a contractor?

       A.      Yes, I have.

       Q.     When pipes are vandalized, what do they—do they appear to be in good
       order or do they appear otherwise?

       A.      It all depends on how they do it. I’ve seen evidence before where someone
       has taken a saw or a file, and there will be a straight mark. There’s usually scratches
       on it, the area that’s vandalized, a lot of times they’ll take a hammer. And[,] if
       you’re going to vandalize it, most of the time they’ll vandalize at a joint, like where
       the pipe goes into a fitting. They’ll take pliers and they crimp and they squeeze that.
       That’s normally what we see if deliberately if someone’s trying to do it, that’s what
       they do because they always want to go to the same to do it.

         Given petitioner’s contractor’s testimony that petitioner’s description of a “[m]inute” crack
in a pipe fitting was inconsistent with pipe damage typical of vandalism, we concur with the circuit
court’s finding that there was no evidence that whoever damaged the exterior doors then went
inside and caused the water damage. Given the absence of such evidence served the basis of (1)
respondent’s request that petitioner file a separate claim involving the water damage; and (2)
respondent’s handling of petitioner’s claim as involving two occurrences despite his refusal to file
a separate claim, we find that the record taken as a whole could not lead a rational jury to find that
petitioner could prove a violation of the UTPA. Therefore, we conclude that the circuit court did
not err in awarding respondent summary judgment on petitioner’s claims alleging the mishandling
of his insurance claim.

        With regard to petitioner’s remaining claim, he had to prove the following elements to
show breach of contract: (1) the formation of a contract; (2) a breach of the terms of that contract;
and (3) resulting damages. See Sneberger v. Morrison, 235 W.Va. 654, 669, 776 S.E.2d 156, 171
(2015). There is no dispute that the parties agreed that respondent would provide petitioner with
homeowners’ insurance coverage. Next, because respondent requested that the circuit court
calculate the maximum amount that petitioner could recover on his breach of contract claim,
                                                  7
respondent conceded for the purposes of its motion that it breached the terms of petitioner’s
homeowners’ policy.

        The only remaining issue is the amount of damages owed to petitioner. Given that
respondent’s treatment of petitioner’s insurance claim as involving two occurrences was proper,
its application of petitioner’s deductible to each occurrence was likewise proper. Therefore, we
conclude that the circuit court did not err in finding that respondent owed petitioner nothing for the
damage to the exterior doors of his house.

        Regarding the water damage, the circuit court construed the evidence in the light most
favorable to petitioner and utilized Mr. Blankenship’s higher estimate for that occurrence. See
Painter, 192 W.Va. at 192, 451 S.E.2d at 758 (providing that, when considering a motion for
summary judgment, a court construes the evidence in the light most favorable to the nonmoving
party). The use of Mr. Blankenship’s estimate allowed the circuit court to include a $325 mold
inspection fee and the $3,662.06 for the additional work involving petitioner’s granite countertops
that had to be performed by a different contractor, who specialized in that field. The circuit court
found that Mr. Blankenship’s total estimate for the kitchen work was $22,372.66. From this
amount, the circuit court subtracted petitioner’s $5,000 deductible and the $11,175.07 that
respondent already paid to petitioner. Petitioner contends that the circuit court should have
included more costs; however, to the extent that he specifies other costs that he wanted included,
he fails to adequately explain why such additional costs should be considered part of his insurance
claim.5 Petitioner also alleges that the circuit court made a mathematical error in its calculations,
but fails to specify what that error is. Therefore, we conclude that the circuit court did not err in
finding that no genuine issue of material fact exists that the maximum amount that petitioner could
recover on his breach of contract claim was $6,197.59, plus interest.

        Given the correctness of that finding, and respondent’s confession of judgment and tender
of a check to petitioner for $6,197.59, plus applicable interest, in the total amount of $9,088.21, we
find that the circuit court did not err in dismissing petitioner’s civil action. Apart from the issues
raised by petitioner in contending that the circuit court’s rulings in its March 11, 2016, order were
erroneous, petitioner’s only argument regarding the April 27, 2016, dismissal order is that the
circuit court was barred from entering that order while petitioner’s first motion for Judge Nibert’s

       5
         Petitioner’s argument regarding what additional costs the circuit court should have taken
into account is confusing because, on the one hand, he asserts that the court should have included
another inspection fee he had to pay in the amount of $350 while, on the other hand, contending
that the court should have excluded personal property damage in the total amount of $306.88.
Petitioner may be saying that respondent should not be credited with making payments for the
personal property damage, but, because petitioner fails to provide an analysis of the policy
language, there is no way to determine that. We note here that, while neither party relies on the
language of petitioner’s policy, the interpretation of that policy would not be a jury question.
Rather, “[t]he interpretation of an insurance contract, including the question of whether the
contract is ambiguous, is a legal determination[.]” Syl. Pt. 2, Riffe v. Home Finders Associates.
Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999).

                                                  8
disqualification was pending. Trial Court Rule 17.01(b)(1) provides that “regardless of whether
the judge finds good cause and agrees to the disqualification motion or not, the judge shall: . . . (1)
proceed no further in the matter . . . .” We find that this issue was already addressed as a ground for
disqualification in the May 4, 2016, administrative order, in which the Chief Justice denied
petitioner’s supplemental motion for disqualification and once again directed Judge Nibert to
continue presiding in the case. As a substantive issue, we find that the entry of the dismissal order
while petitioner’s first motion for disqualification was pending constituted harmless error pursuant
to Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W.Va. 762, 773, 724
S.E.2d 733, 744 (2012), given that there was no justifiable reason for Judge Nibert’s
disqualification. Therefore, we affirm both the circuit court’s March 11, 2016, order finding that
(1) no rational jury could find for petitioner on his claims for bad faith, fraud, and professional
negligence; and (2) the maximum amount that petitioner could recover on his breach of contract
claim was $6,197.59, plus interest; and the circuit court’s April 27, 2016, order dismissing
petitioner’s action with prejudice after respondent tendered a check to petitioner for $6,197.59,
plus applicable interest, in the total amount of $9,088.21.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: April 21, 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




                                                  9
