                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


David M. Smith and Doris Smith
Third-Party Plaintiffs Below, Petitioners                                        FILED
                                                                            February 12, 2016
vs) No. 15-0228 (Fayette County 14-C-96H)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
The Velotta Company and Safety Caution
Equipment Co.,
Third-Party Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioners David M. Smith and Doris Smith, by counsel James D. McQueen, Jr., and
Christopher Heavens, appeal the February 11, 2015, order of the Circuit Court of Fayette County
granting respondents’ motions to dismiss. Respondent The Velotta Company (“Velotta”), by
counsel James D. Stacy, II, responds in support of the circuit court’s order. Respondent Safety
Caution Equipment Co., (“Safety Caution”), by counsel Melvin F. O’Brien and Michelle B.
Skeens, also responds in support of the circuit court’s order. Petitioners filed a reply.

        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.

         Petitioners’ claims arise from an April 11, 2012, motor vehicle accident which occurred
on U.S. Route 19, near Mount Hope, West Virginia. At the time of the accident, Petitioner David
Smith was a commercial truck driver and was operating a tractor-trailer vehicle for his employer
William Thomas Allen d/b/a William Thomas Allen Trucking (“Allen Trucking”). Petitioner
Smith was traveling in the outside lane of Route 19, approaching a road construction site, when
traffic slowed in front of him. Mr. Smith was unable to stop his vehicle before it struck a vehicle
operated by James A. Murdock.1 At all times relevant hereto, Respondent Velotta was a
contractor working on the road construction project in the area where the accident occurred.
Respondent Safety Caution Equipment Co. (“Safety Caution”) was a subcontractor of Velotta
that worked on implementation of a portion of the temporary traffic control plan in place around
the accident site.


       1
         Ultimately, the Smith vehicle struck two temporary concrete barriers, crossed the outside
barrier of a bridge, and fell onto an embankment below the bridge.


                                                1

        On April 2, 2014, James A. Murdock, and his wife Barbara, filed the underlying civil
action in the circuit court of Fayette County against Petitioner David Smith (and his employer)
for damages arising from the accident. On August 18, 2014, petitioners filed a third-party
complaint and impleaded respondents into the underlying civil action.2 The Murdocks then filed
cross-claims against respondents. Thereafter, petitioners also filed cross-claims against
respondents.3 Respondents (separately) filed motions to dismiss petitioner’s third-party
complaint and cross-claims.

        By order dated February 11, 2015, the Fayette County Circuit Court dismissed
petitioners’ third-party complaint and cross-claims. In its order, the circuit court ruled that

               [a]t the time of the accident on April 11, 2012, the [t]hird-[p]arty
               [p]laintiff David Smith knew that he had been involved in an
               accident and that he was injured as a result. As indicated in the
               police report, the accident occurred in a work zone. The plaintiffs
               attached to their opposition brief certain medical records of David
               Smith’s treatment following this accident. Those records clearly
               demonstrate that Mr. Smith had knowledge of the accident, the
               manner in which it occurred, and the fact that he was injured as a
               result.

       It is from the February 11, 2015, order that petitioners now appeal.

       “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461
S.E.2d 516 (1995).4 Moreover, “[t]he trial court, in appraising the sufficiency of a complaint on a

       2
         Petitioners’ third-party complaint was filed in Fayette County Circuit Court four days
after petitioners’ Kanawha County action against respondents was dismissed (as that action was
filed outside of the two year statute of limitations set forth in West Virginia Code § 55-2-12). In
their third-party complaint, petitioners asserted identical claims against respondents to those that
had been asserted by petitioners in their Kanawha County action. Petitioners’ appeal of the
Kanawha County Circuit Court’s order dismissing petitioners’ civil action against respondents
was the subject of a separate appeal pending before this Court, wherein the circuit court’s
dismissal was affirmed in a memorandum decision. Smith v. Velotta Co. and Safety Caution
Equip. Co., No. 14-1285 (W.Va. Feb. 12, 2016)(memorandum decision).
       3
         Petitioners argued that they were permitted to file cross-claims against respondents
because James Murdock and Barbara Murdock (plaintiffs in the underlying case) caused
respondents to become “direct defendants” in this action. However, there is no indication in the
record that the Murdocks ever filed an amended complaint or any request to cause respondents to
become direct defendants in the underlying action.
       4
        Consideration of materials outside of the complaint on a motion to dismiss for failing to
state a claim upon which relief may be granted requires the motion “be treated as one for
(continued . . .)
                                                 2

Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, [78 S.Ct. 99, 2 L.E.2d 80] (1957).” Syl. Pt. 3, Chapman v.
Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). With these principles in mind,
we turn to a consideration of each of petitioners’ arguments on appeal.

        On appeal, petitioners assert five assignments of error. First, petitioners allege that the
circuit court erred in dismissing their third-party complaint as the discovery rule tolled the
applicable statute of limitations. Second, petitioners contend that the circuit court erred in failing
to apply West Virginia Code § 55-2-15 to toll the statute of limitations, and in ignoring the
controlling precedent of Worley v. Beckley Mechanical, Inc., 220 W.Va. 633, 648 S.E.2d 620
(2007). Third, petitioners allege that the circuit court erred in dismissing the cross-claim filed by
petitioners pursuant to West Virginia Code § 55-2-21 and Rule 13(g) of the West Virginia Rules
of Civil Procedure. Fourth, petitioners argue that the circuit court erred in dismissing petitioners’
third-party complaint as petitioners’ claims were permissible under Rule 14(a) of the West
Virginia Rules of Civil Procedure. Finally, petitioners contend that the circuit court erred by
invading the province of the jury and weighing evidence inconsistent with the facts presented by
petitioners, in violation of syllabus point five of Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d
255 (2009).

        With respect to petitioners’ first assignment of error, the record establishes that, in filing
their third-party complaint against respondents, petitioners sought to recover monies for their
personal injuries arising from the April 11, 2012, motor vehicle accident. Our law is clear that
actions for personal injuries must be brought “within two years next after the right to bring the
same shall have accrued.” W. Va. Code § 55-2-12. It is without dispute that petitioners filed
their third-party complaint against respondents on August 18, 2014, more than two years
following the accident. Petitioners argue that they only “discovered” their possible claims against
respondents after being contacted by an investigator (representing another party in a separate
lawsuit arising from a separate accident) and that the circuit court erred in failing to apply the
discovery rule to toll the running of the two-year statute of limitations.5 This Court has held that



summary judgment and disposed of under Rule 56 [of the West Virginia Rules of Civil
Procedure].” Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr., Litigation
Handbook on West Virginia Rules of Civil Procedure, § 12(b)(6), p. 393 (4th ed. 2012). Although
the trial court’s dismissal of petitioners’ claims was technically a summary judgment dismissal,
because the trial court considered materials outside the complaint in making its decision, our
standard of review of that aspect of the dismissal is still de novo. See Syl. Pt. 1, Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is
reviewed de novo.”)
       5
        Petitioners contend that, on May 10, 2014, Mr. Smith was contacted by an investigator
on behalf of another party who was reportedly injured in a separate motor vehicle accident that
occurred in the same area of Route 19 as Mr. Smith’s April 11, 2012, accident. Petitioners allege
they did not know, and reasonably should not have known, the identity of respondents, or that
(continued . . .)
                                                  3

               “[i]n tort actions, unless there is a clear statutory prohibition to its
       application, under the discovery rule the statute of limitations begins to run when
       the plaintiff knows, or by the exercise of reasonable diligence, should know (1)
       that the plaintiff has been injured, (2) the identity of the entity who owed the
       plaintiff a duty to act with due care, and who may have engaged in conduct that
       breached that duty, and (3) that the conduct of that entity has a causal relation to
       the injury.” Syllabus Point 4, Gaither v. City Hosp., Inc., 199 W.Va. 706, 487
       S.E.2d 901 (1997).

Syl. Pt. 3, Dunn. In syllabus point two of Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644
(1992), we stated that “[t]he ‘discovery rule’ is generally applicable to all torts, unless there is a
clear statutory prohibition of its application.” However, we have explained that “[o]nce the
defendant shows that the plaintiff has not filed his or her complaint within the applicable statute
of limitations, the plaintiff has the burden of showing an exception to the statute.” Worley, 220
W.Va. at 638-39 n.7, 648 S.E.2d at 625-26 n.7 (citing Syl. Pt. 3, Cart v. Marcum, 188 W.Va.
241, 423 S.E.2d 644 (1992), overruled on other grounds in Dunn, 225 W.Va. at 51-52, 689
S.E.2d at 263-64).

      In syllabus point five, in part, of Dunn we established a five-step analysis to determine
whether a cause of action is time-barred:

               First, the court should identify the applicable statute of limitation for each
       cause of action. Second, the court (or, if questions of material fact exist, the jury)
       should identify when the requisite elements of the cause of action occurred. Third,
       the discovery rule should be applied to determine when the statute of limitation
       began to run by determining when the plaintiff knew, or by the exercise of
       reasonable diligence should have known, of the elements of a possible cause of
       action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va.
       706, 487 S.E.2d 901 (1997). Fourth if the plaintiff is not entitled to the benefit of
       the discovery rule, then determine whether the defendant fraudulently concealed
       facts that prevented the plaintiff from discovering or pursuing the cause of action.
       Whenever a plaintiff is able to show that the defendant fraudulently concealed
       facts which prevented the plaintiff from discovering or pursuing the potential
       cause of action, the statute of limitation is tolled. And, fifth, the court or the jury
       should determine if the statute of limitation period was arrested by some other
       tolling doctrine.

Dunn, 255 W.Va. at 54, 689 S.E.2d at 266.

       In the instant case, petitioners contend that Mr. Smith suffered an acute mental and
physical disability as an immediate result of the April 11, 2012, accident, which prevented him


their conduct had a causal relation to Mr. Smith’s injuries until they were contacted by the
investigator.



                                                  4
from discovering respondents’ identities or the fact that an alleged defective design of the
construction area was a causal factor for the accident.6 As such, they argue, the circuit court
erred in failing to apply the discovery rule to toll the statute of limitations. Respondents argue
that the purported medical evidence on which petitioners rely to establish Mr. Smith’s inability
to discern a potential cause of action simply does not support the conclusions petitioners seek to
reach. Rather, Mr. Smith’s proffered medical records demonstrate that he knew he was in an
accident, and was able to give medical staff at two different facilities a coherent and accurate
history. Respondents note that Mr. Smith’s medical records indicate that he was discharged from
the hospital on the day following the accident, and that there was a notation in his records within
the ten months following the accident that he was remembering details about the accident. In
summary, respondents contend that petitioners simply failed to proffer sufficient evidence to
warrant the circuit court’s application of the discovery rule.

        Based upon our review of the record before us, we find no error in the circuit court’s
conclusion that the discovery rule is inapplicable to petitioners’ claims herein. In syllabus point
four of Dunn we held that

               [u]nder the discovery rule set forth in Syllabus Point 4 of Gaither v. City
       Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), whether a plaintiff “knows
       of” or “discovered” a cause of action is an objective test. The plaintiff is charged
       with knowledge of the factual, rather than the legal, basis for the action. This
       objective test focuses upon whether a reasonable prudent person would have
       known, or by the exercise of reasonable diligence should have known, of the
       elements of a possible cause of action.

Dunn, 255 W.Va. at 54, 689 S.E.2d at 266.

        The record herein establishes that, at all times relative hereto, Petitioner Mr. Smith was
aware of the fact that he was injured as a result of the April 11, 2012, accident, having reported
the same to his medical providers immediately following the accident. Further, there is no
evidence in the record below to suggest that petitioners were prevented in any manner from
discovering the identities of respondents or that their involvement in the construction area where
the subject accident occurred. Thus, we conclude, in accord with the circuit court’s findings, that
in the exercise of reasonable diligence, petitioners objectively should have known the identity of
respondents and their alleged negligent conduct. Accordingly, we find no error in the circuit
court’s conclusion that the discovery rule is in applicable in this case.

        In their second assignment of error, petitioners argue that the circuit court erred in failing
to apply West Virginia Code § 55-2-15 to toll the statute of limitations, and in ignoring the
controlling precedent of Worley.7

       6
        As a result of the accident, Mr. Smith sustained a scalp laceration, a concussion, and
suffered an alleged impairment of his memory.
       7
        In its dismissal order, the circuit court found that petitioners did not “allege any facts in
(continued . . .)
                                                  5

       West Virginia Code § 55-2-15 provides that:

       [i]f any person to whom the right accrues to bring any such personal action, suit
       or scire facias, or any such bill to repeal a grant, shall be, at the time the same
       accrues, an infant or insane, the same may be brought within the like number of
       years after his becoming of full age or sane that is allowed to a person having no
       such impediment to bring the same after the right accrues, . . . except that it shall
       in no case be brought after twenty years from the time when the right accrues.

       In syllabus points three and four of Worley we held that:

                  The general purpose of W.Va. Code § 55-2-15 (1923) is to toll the
               commencement of the running of the statute of limitations so that the legal
               rights of infants and the mentally ill may be protected.

                   In order for mental illness to toll the commencement of the running of
               the statute of limitations pursuant to W.Va. Code § 55-2-15 (1923), the
               plaintiff must show that the interval between the tortious act and the
               resulting mental illness was so brief that the plaintiff, acting with
               diligence, could not reasonably have taken steps to enforce his or her legal
               rights during such interval.

Worley, 220 W.Va. at 638-39, 648 S.E.2d at 625-26.

        Petitioners contend that Petitioner Mr. Smith’s post-accident medical condition may
fairly be characterized as mentally ill, mentally disabled, mentally incompetent, or insane. As
such, petitioners contend that West Virginia Code § 55-2-15 is applicable to toll the statute of
limitations in this case. Respondents argue that given the record before the circuit court, the court
had no basis for finding that Petitioner Mr. Smith was insane or under a legal disability that
would have prevented him from comprehending his legal rights and responsibilities for any
period that would toll the statute of limitations for this case. We agree. It is clear from our review
of the record below that petitioners make no allegations that Mr. Smith was insane. There is no
evidence that during the time frame at issue that Mr. Smith had a legally appointed guardian or
conservator, or that he was unable to care for himself. Mr. Smith’s medical records are a
testament to his ability to give his medical provider a competent history. As such, the circuit
court did not err in dismissing petitioners’ claim by finding that the same were not tolled by
West Virginia Code § 55-2-15.

       Next, petitioners argue that the circuit court dismissed their cross-claims against
respondents without any discussion or justification and, in doing so, erroneously disregarded
West Virginia Code § 55-2-21 and Rule 13(g) of the West Virginia Rules of Civil Procedure.


their Third-Party Complaint which would support the possibility that the statute of limitations for
[petitioners’] claims is tolled by West Virginia Code § 55-2-15.”



                                                  6
West Virginia Code § 55-2-21 provides that

       [a]fter a civil action is commenced, the running of any statute of limitation shall
       be tolled for, and only for, the pendency of that civil action as to any claim which
       has been or may be asserted therein by counterclaim, whether compulsory or
       permissive, cross-claim or third-party complaint: Provided, that if any such
       permissive counterclaim would be barred but for the provisions of this section,
       such permissive counterclaim may be asserted only in the action tolling the statute
       of limitations under this section. This section shall be deemed to toll the running
       of any statute of limitation with respect to any claim for which the statute of
       limitation has not expired on the effective date of this section [July 6, 1981], but
       only for so long as the action tolling the statute of limitations is pending.

       Rule 13(g) of the West Virginia Rules of Civil Procedure provides that

       [a] pleading may state as a cross-claim any claim by one party against a co-party
       arising out of the transaction or occurrence that is the subject matter either of the
       original action or of a counterclaim therein or relating to any property that is the
       subject matter of the original action. Such cross-claim may include a claim that
       the party against whom it is asserted is or may be liable to the cross-claimant for
       all or part of a claim asserted in the action against the cross-claimant.

        Petitioners argue that they properly filed their cross-claims against respondents as an
alternative pleading and contend that the circuit court dismissed their cross-claims against
respondents without any discussion or justification.8 Respondents argue that there was never any
proper procedure exercised (under the Rules of Civil Procedure or otherwise) to permit
petitioners to file their cross-claims against respondents.9 Respondents argue further that because
petitioners have conceded their cross-claims against respondents were an “alternative” approach
to having personal injury claims pled in a case where the statute of limitations had expired, the
disposition of the cross-claims was then interchangeable with dismissal of the claims asserted in
the third-party complaint, and the circuit court treated them as such.

      In syllabus point nine of J.A. Street & Associates. v. Thundering Herd Development,
LLC, 228 W.Va. 695, 724 S.E.2d 299 (2011), we addressed the propriety of cross-claims and the
manner to determine if a cross-claim was, in actuality, an independent cause of action. We found
that:



       8
        In its February 11, 2015 dismissal order, the circuit court ruled that respondents’
motions to dismiss petitioners’ cross-claims “which set forth the same personal injury claims as
contained in the [t]hird-[p]arty [c]omplaint, are [granted] and the [c]ross-[c]laim is also
dismissed with prejudice.”
       9
           See fn. 3 supra.



                                                7

       [t]o determine whether a cross-claim arises out of the same transaction or
       occurrence as the original action, there are three nonexclusive actors to be
       considered: (1) the identity of facts and law between the initial claim and the
       cross-claim; (2) the mutuality of proof and whether substantially the same
       evidence will support or refute both the complaint and the cross-claim; and (3) the
       logical relationship between the original claim and the cross-claim.

        Based upon our review of the record, we find no error in the circuit court’s dismissal of
petitioners’ cross-claims against respondents. We initially note that petitioners proffer no
evidence to support that their cross-claims were properly filed. Such claims, even by petitioners’
own admissions, were simply an alternative pleading to petitioners’ third-party complaint.
Despite this fact, applying the test outlined in J.A. Street, as the identity of the facts and law
between the initial claim (the Murdocks’ claims against petitioners) and the cross-claim
(petitioners’ claims against respondents) are different and will require different evidence to
support or refute both the claim and the cross-claim, we find that the circuit court did not err in
dismissing petitioners’ cross-claims.

        Fourth, petitioners argue that the circuit court erred in dismissing petitioner’s third-party
complaint as petitioners’ claims were permissible under Rule 14(a) of the West Virginia Rules of
Civil Procedure. Rule 14(a) provides, in part, that

       [a]t any time after commencement of the action a defending party, as a third-party
       plaintiff, may cause a summons and complaint to be served upon a person not a
       party to the action who is or may be liable to the third-party plaintiff for all or part
       of the plaintiff’s claims against the third-party plaintiff.

        In its February 11, 2015, order, the circuit court reasoned that petitioners’ tort claims
were not derivative of Mr. and Mrs. Murdock’s original claim and, therefore, should not be the
subject of a third-party complaint. As such, it was improper for petitioners to institute a third-
party claim against respondents in the instant case.

        Petitioners argue that under Cava v. National Union Fire Insurance Co. of Pittsburgh,
232 W.Va. 503, 753 S.E.2d 1 (2013), their third-party complaint against respondents was proper.
In Cava, this court established five factors to consider when determining the appropriateness of a
third party complaint, which include: (1) potential prejudice to the original plaintiff or third party
defendant; (2) whether a third-party complaint would delay or unduly complicate the trial; (3) the
timeliness of the motion; (4) judicial efficiency; and (5) whether the proposed third-party
complaint states a claim upon which relief can be granted. Petitioners argue that neither the
Murdocks or respondents would be prejudiced by the third-party complaint, nor would said
complaint delay or unduly complicate the trial or negatively impact judicial efficiency.

         Respondents argue that if the court permitted petitioners to proceed with their third-party
complaint that decision would prejudice the parties and cause delay and undue complications. In
filing their third-party complaint in this case, petitioners occasioned a long delay in the litigation
and removal of the focus of the case from the Murdocks injury claims to those of petitioners. If
the Murdock case proceeds with petitioners’ personal injury and ancillary claims still pending,

                                                  8

the trial, unless bifurcated, will require the jury to make complex determinations regarding two
separate damage claims, and attribution of negligence and proximate cause as to both petitioners
and the Murdocks’ respective claims simultaneously.

        Based upon our review of the record herein, we agree with respondents. Because
petitioners’ personal injury claims are not proper as third-party claims we find that the statute of
limitations on those claims is not tolled. Accordingly, the circuit court did not err in dismissal of
these claims.

        Finally, in their fifth assignment of error, petitioners contend that the circuit court erred
by invading the province of the jury and weighing evidence inconsistent with the facts pled in
petitioners’ complaint or presented by petitioners in answer to respondents’ motions to dismiss,
in violation of syllabus point five of Dunn. Primarily, petitioners argue that the circuit court
made no findings of fact or conclusions of law, which address or even mention critical evidence
of Mr. Smith’s mental incapacity in making its determination of applicability of the discovery
rule. Further, petitioners are critical of a number of the circuit court’s findings of fact and
conclusions of law in the circuit court’s dismissal order.10 Respondents argue that the circuit

       10
            Petitioners take issue with following findings of fact and conclusions of law:

                 1)	 Finding of fact No. 9, in which the circuit court found that the third-party
                     complaint did not assert any grounds for an extension of the statute of
                     limitations. Petitioners contend this finding is incorrect in that they did assert
                     grounds for an “extension” of the statute of limitations.

                 2)	 Finding of fact No. 10, in which the circuit court found that Petitioner David
                     Smith’s medical records clearly demonstrate that Mr. Smith had knowledge of
                     the accident, the manner in which it occurred, and the fact that he was injured
                     as a result. Petitioners argue that this finding did not accurately reflect the
                     factual record before the court;

                 3)	 Conclusion of law No. 4, in which the circuit court cites McCoy v. Miller, 213
                     W.Va. 161, 578 S.E.2d 355 (2003). Petitioners argue that the passage cited by
                     the court is an incomplete statement of applicable law;

                 4)	 Conclusion of law No. 6, which includes the statement that petitioners “do not
                     allege that they were prevented from discovering the identity of [respondents]
                     in any way.” Petitioners contend this statement is incorrect in that the medical
                     evidence submitted to the circuit court substantiates that traumatic injuries
                     sustained in the accident prevented petitioner from discovering respondents’
                     identities;

                 5)	 Conclusion of law No. 7, in which the circuit court cites Syl. Pt. 5 of Dunn.
                     Petitioners object because the circuit court’s cite does not include the last
                     sentence of the syllabus point;
(continued . . .)
                                                   9

court’s findings of facts and conclusions of law are supported by the record and the precedent of
this court.

       In Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000), we held that

               [i]n reviewing challenges to findings and rulings made by a circuit court,
       we apply a two-pronged deferential standard of review. We review the rulings of
       the circuit court concerning a new trial and its conclusion as to the existence of



              6)	 Conclusion of law No. 10. In this conclusion of law, the circuit court finds
                  that Petitioner David Smith was aware at the time of the accident that he was
                  claiming to have had difficulties with the temporary traffic control pattern (as
                  petitioner’s Fayette County civil action against respondents included the
                  description that the accident occurred in a construction zone when Mr. Smith
                  “was confronted with a sudden stoppage of traffic).” Petitioners argue that
                  they have clearly demonstrated that there is absolutely no evidence supporting
                  this conclusion of law;

              7)	 Conclusion of law No. 11 in which the circuit court notes that Petitioner
                  David Smith was contacted by an investigator working for another party in a
                  separate lawsuit was objective evidence that petitioners should have known
                  the elements of a possible cause of action existed, as the fact that petitioners in
                  the other case were able to assert their theories of liability within the thirteen
                  months following the date of their accident. Petitioners contend that this
                  conclusion of law did not address any injuries to petitioner’s memory or
                  mental capabilities;

              8)	 Conclusion of law No. 13. In this conclusion, the court finds that there is no
                  other tolling doctrine that would have arrested the statute of limitation period,
                  and petitioners do not identify any such other doctrine. Petitioners contend
                  that West Virginia Code § 55-2-12 (general saving as to persons under
                  disability) arrests the statute of limitation period applicable herein;

              9)	 Conclusion of law No. 14. In this conclusion, the circuit court addresses West
                  Virginia Code § 55-2-12. Petitioner is critical of this conclusion of law, as the
                  court failed to set forth West Virginia Code § 55-2-12, in its entirety;

              10) Conclusion of law No. 15. In this conclusion, the court, citing Rule 14 of the
                  West Virginia Rules of Civil Procedure finds that petitioners’ personal injury
                  claims are clearly not claims for which petitioners are or may be liable to the
                  Murdocks, and may not properly be brought as a third-party claim. As such,
                  the statute of limitations is not tolled as to petitioners’ personal injury claims
                  against respondents.



                                                10

       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

        Based upon our review of the record below, we find no error. The findings of fact and
conclusions of law made by the circuit court are supported by the record and are legally sound.
The record herein establishes that the petitioners knew that Mr. Smith was involved in an
accident on the day the accident occurred, knew he was injured on the day of the accident, and
objectively should have known of the identities and involvement of the respondents.
Accordingly, the circuit court did not err in its dismissal of the action.

       For the foregoing reasons, we affirm.

                                                                                     Affirmed.

ISSUED: February 12, 2016

CONCURRED IN BY:

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

DISSENTING:

Justice Robin Jean Davis




                                               11

