                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

John D. Longanacre, d/b/a
Longanacre Funeral Home,                                                         FILED
Plaintiffs Below, Petitioners                                                   November 8, 2013
                                                                              released at 3:00 p.m.
                                                                            RORY L. PERRY II, CLERK
vs) No. 12-0993 (Greenbrier County 12-C-98)                               SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Farmers Mutual Insurance Company,
a West Virginia Corporation,
Defendant Below, Respondent

                                MEMORANDUM DECISION

         Petitioner John D. Longanacre, by counsel Barry L. Bruce and Jesseca R. Church,
appeals the July 26, 2012, order of the Circuit Court of Greenbrier County that granted
respondent’s motion to dismiss. Respondent, Farmers Mutual Insurance Company (“Farmers
Mutual”), by counsel James A. Varner, Sr., Debra Tedeschi Varner, and Richard W. Shryock, Jr.,
filed its response to which petitioner replied.

        This Court has considered the parties’ briefs, their oral arguments, and the appendix
record. As set forth below, because petitioner’s appendix record fails to contain documentation
relevant to the questions raised on appeal, we find just cause to affirm the circuit court’s order
under Rule 21 of the Rules of Appellate Procedure.

      We have also considered petitioner’s “Motion to Amend Appendix to Include Copy of
Farmers Mutual Insurance Company Policy.” Because the motion fails to establish that the
document was ever a part of the trial court record as required by the Rules of Appellate
Procedure, we deny petitioner’s motion to amend the appendix record.

        Petitioner operated a funeral home and purchased a commercial liability insurance policy
from respondent Farmers Mutual. During the policy period, a lawsuit was filed against petitioner
that involved the disinterment, moving, and re-interment of a corpse by petitioner.

        Petitioner moved the corpse pursuant to a court order. The court order to move the corpse
had been obtained by the decedent’s sister (who was allegedly the decedent’s sole legal heir).
The underlying lawsuit, filed by other relatives of the decedent, alleged that: (1) petitioner had
failed to inform the other relatives that the corpse was being moved; (2) petitioner wrongfully
exerted dominion of family property when he moved the corpse and headstone without the
permission of the other relatives; and (3) that petitioner negligently disturbed the grave of
another family member when the corpse was disinterred, causing distress and mental anguish to
the other relatives. The trial court in the underlying lawsuit subsequently granted summary
judgment to petitioner and dismissed the lawsuit.




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       The underlying lawsuit involving the corpse was filed on June 22, 2010. Petitioner did
not promptly notify his liability insurance carrier, respondent Farmers Mutual, of the lawsuit.
Instead, petitioner hired a private attorney to defend his interests. Thirteen months after the
underlying lawsuit was filed, on July 20, 2011, petitioner notified Farmers Mutual of the lawsuit
and asked the insurer to provide him with coverage and a defense. Farmers Mutual refused.

         On May 4, 2012, petitioner filed the instant case against Farmers Mutual. Petitioner
alleged that Farmers Mutual wrongfully refused to provide coverage or a defense and therefore
acted in “bad faith.” Petitioner sought compensatory and punitive damages. In an order dated
July 26, 2012, the circuit court granted Farmers Mutual’s motion to dismiss petitioner’s bad faith
suit, finding that petitioner had no right to coverage or a defense under the policy.

        Petitioner appeals the circuit court’s order, and while he raises three separate points of
error, petitioner’s arguments may be distilled down into one central assertion: the circuit court
misinterpreted the Farmers Mutual insurance policy.

        We noted at oral argument, and both parties conceded, that the appendix record failed to
contain the disputed insurance policy. Neither party sufficiently explained how this Court is to
interpret the terms of an insurance policy without access to the policy, or how this Court can
fairly assess those terms outside their context.

        Rule 6(b) of the Rules of Appellate Procedure [2010] required petitioner to create an
appendix record of the papers and exhibits filed in the lower court that was “selectively abridged
by the parties in order to permit the Court to easily refer to relevant parts of the record,” parts
that “are important to a full understanding of the issues[.]” Rule 7(a) mandated that the appendix
record “contain accurate reproductions of the papers and exhibits submitted to the lower court[.]”
The appendix record did not contain the insurance policy which was important to a full
understanding of the parties’ arguments.

        Nevertheless, approximately two weeks after oral argument before this Court, petitioner
filed a “Motion to Amend Appendix to Include Copy of Farmers Mutual Insurance Company
Policy.” Petitioner’s motion was filed pursuant to Rule 7(g) of the Rules of Appellate Procedure,
which permits a party to seek “leave to file a supplemental appendix that includes such matters
from the record not previously submitted.” Attached to the motion was ostensibly a copy of the
relevant insurance policy. (Also attached to the motion was a wholly irrelevant three-page draft
of a complaint that petitioner’s counsel apparently intended to file in another lawsuit, in another
county.)

        However, Rule 7(g) requires that a supplemental appendix comply with the general
requirements of a primary appendix record. Obviously, a supplemental appendix must abide by
Rule 7(a) and contain only “accurate reproductions of the papers and exhibits submitted to the
lower court[.]” Rule 6(b) mirrors this rule, specifying that “[a]nything not filed with the lower
tribunal shall not be included in the record on appeal[.]” Moreover, Rule 7(c)(2)(a) requires a
certification by the lawyer submitting the supplemental appendix that the document was part of
the lower court record. It states, in part:



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               [A]n appendix must contain a certification page signed by counsel
               . . . certifying that: (a) the contents of the appendix are true and
               accurate copies of the items contained in the record of the lower
               tribunal; . . .

        Petitioner’s motion to supplement the appendix record does not contain the certification
that the insurance policy was part of the lower court record, as required by Rule 7(c)(2)(a).
Furthermore, the complete docket sheet from the clerk of the circuit court (required to be part of
the appendix record by Rule 7(d)(7)) has nothing to suggest that the insurance policy was ever
presented to the circuit court as a part of the lower court record.

        We are mindful that reaching a decision on the merits of a case is always a preferred
alternative. This appeal, however, presents us with violations of the Rules of Appellate
Procedure that have impeded the Court’s ability to comprehend the issues. We believe it would
be patently unfair to the parties to review the circuit court’s order by either reading the disputed
insurance policy terms out of context, or relying upon evidence that may never have been
presented to the circuit court.

       Accordingly, in the absence of a record on appeal that contains those portions of the trial
record important to a full understanding of the issues, we affirm the circuit court’s order
dismissing petitioner’s case against respondent.

                                                                                         Affirmed.


ISSUED: November 8, 2013

CONCURRED IN BY:

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




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