WW Consultants, Inc. v. Pocahontas County Public Service District, and A-3 USA, Inc., Orders Construction Company, Inc., and Pipe Plus, Inc.

• Court: West Virginia Supreme Court
• Decided: June 12, 2023
• Docket: 21-0485
• Status: Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED January 2023 Term June 12, 2023 _____________ released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS

No. 21-0485 OF WEST VIRGINIA

_____________

WW CONSULTANTS, INC., Plaintiff/Counterclaim Defendant/Third-Party Plaintiff Below, Petitioner,

V.

POCAHONTAS COUNTY PUBLIC SERVICE DISTRICT, Defendant/Counterclaim Plaintiff Below, Respondent,

and

A-3 USA, INC., ORDERS CONSTRUCTION COMPANY, INC., AND PIPE PLUS, INC., Counterclaim Defendants/Third-Party Defendants Below, Respondents. ________________________________________________

Appeal from the Circuit Court of Kanawha County Business Court Division The Honorable Christopher C. Wilkes, Judge Civil Action No. 18-C-115

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ________________________________________________

Submitted: January 11, 2023 Filed: June 12, 2023

Lee Murray Hall, Esq. John D. Hoblitzell, III, Esq. Sarah A. Walling, Esq. Camille E. Wartts, Esq. Jenkins Fenstermaker, PLLC Kay Casto & Chaney, PLLC Huntington, West Virginia Charleston, West Virginia Attorneys for the Petitioner Attorneys for Respondent Norman T. Daniels, Jr., Esq. Orders Construction Company, Inc. Thomas E. G. Spears, Esq. Daniels Law Firm, PLLC John W. Burns, Esq. Charleston, West Virginia Gordon Rees Scully Mansukhani, LLP Attorneys for Respondent Pittsburgh, Pennsylvania Pipe Plus, Inc. Attorney for Respondent A-3 USA, Inc. Christopher D. Negley, Esq. Michael D. Dunham, Esq. Shuman McCuskey Slicer PLLC Charleston, West Virginia Attorneys for Respondent Pocahontas County Public Service District

JUSTICE BUNN delivered the Opinion of the Court.

JUSTICE ARMSTEAD concurs in part, dissents in part, and may write separately. SYLLABUS BY THE COURT

1. “‘The key to determining if an order is final is not whether the

language from Rule 54(b) of the West Virginia Rules of Civil Procedure is included in the

order, but is whether the order approximates a final order in its nature and effect. We extend

application of this rule to a motion to dismiss under Rule 12(b)(6) of the West Virginia

Rules of Civil Procedure.’ Syl. Pt. 1, State ex rel. McGraw v. Scott Runyan Pontiac-Buick,

Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).” Syllabus point 7, Erie Insurance Co. v.

Dolly, 240 W. Va. 345, 811 S.E.2d 875 (2018).

2. “Where an order granting summary judgment to a party completely

disposes of any issues of liability as to that party, the absence of language prescribed by

Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that ‘no just reason for

delay’ exists and ‘directi[ng] . . . entry of judgment’ will not render the order interlocutory

and bar appeal provided that this Court can determine from the order that the trial court’s

ruling approximates a final order in its nature and effect.” Syllabus point 2, Durm v. Heck’s,

Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991).

3. Even though a claim for indemnity does not technically arise until the

primary obligation to pay has been established, such claims may be brought by way of

i third-party practice before they are technically ripe to serve the interests of fairness and

judicial economy.

4. “The requisite elements of an implied indemnity claim in West

Virginia are a showing that: (1) an injury was sustained by a third party; (2) for which a

putative indemnitee has become subject to liability because of a positive duty created by

statute or common law, but whose independent actions did not contribute to the injury; and

(3) for which a putative indemnitor should bear fault for causing because of the relationship

the indemnitor and indemnitee share.” Syllabus point 4, Harvest Capital v. West Virginia

Department of Energy, 211 W. Va. 34, 560 S.E.2d 509 (2002).

5. “The general principle of implied indemnity arises from equitable

considerations. At the heart of the doctrine is the premise that the person seeking to assert

implied indemnity—the indemnitee—has been required to pay damages caused by a third

party—the indemnitor. In the typical case, the indemnitee is made liable to the injured party

because of some positive duty created by statute or the common law, but the actual cause

of the injury was the act of the indemnitor.” Syllabus point 2, Hill v. Joseph T. Ryerson &

Son, Inc., 165 W. Va. 22, 268 S.E.2d 296 (1980).

ii 6. The statutory scheme and exceptions set forth in West Virginia Code

§§ 55-7-13a to -13d govern contribution claims. The unambiguous language of those

statutes abolished any contribution claim that falls outside of them.

iii BUNN, Justice:

In this appeal from pending litigation involving the construction of a

wastewater treatment facility in Pocahontas County, WW Consultants, Inc. (“WWC”), the

design engineer for the project, challenges various rulings by the business court that either

dismissed or granted summary judgment to three third-party defendant contractors who

worked on or supplied materials for the project. WWC contends that the business court

erred by disposing of its claims for contractual indemnity, implied indemnity, and

contribution in favor of the third-party defendants. Because we have determined that the

business court erred by disposing of WWC’s contractual indemnity claims, we reverse, in

part, on that issue and remand for additional proceedings consistent with this opinion.

However, we further conclude that WWC failed to plead or present facts alleging the

requisite special relationships to support its implied indemnity claims, and that WWC

failed to plead contribution claims that are recognized under the modified comparative fault

statutory scheme codified at West Virginia Code §§ 55-7-13a to -13d. Accordingly, we

affirm, in part, as to those issues. 1

1 We do not address the merits of two additional issues raised by WWC. First, WWC appeals an order finding its “Notice of Intent to Attribute Fault” was untimely. As explained below, this order is interlocutory and is not subject to appellate review at this time. Second, the business court determined that certain claims asserted in WWC’s third- party complaint are time barred. For reasons also set forth below, we decline to address this issue as it would not dispose of WWC’s claims.

1 I.

FACTUAL AND PROCEDURAL HISTORY 2

Respondent Pocahontas County Public Service District (“Pocahontas PSD”),

defendant and counterclaim plaintiff below, provides water service and wastewater

processing to certain customers throughout Pocahontas County, West Virginia. Petitioner

WWC, plaintiff, counterclaim defendant, and third-party plaintiff below, 3 is a professional

engineering firm that contracted, through its predecessor entity, 4 with Pocahontas PSD in

2011.

A. The Project

WWC was to serve as the lead engineer and provide certain design and

consulting services to Pocahontas PSD related to the construction of a new wastewater

plant to serve the Snowshoe Resort and Linwood Valley areas of Pocahontas County.

Complete copies of the contracts between Pocahontas PSD and WWC are not in the

2 The underlying case remains pending below, so in reciting facts to provide context we make no determination as to any factual dispute that may remain pending. We glean the following facts from the parties’ briefs and the record before us. 3 According to its complaint, WWC is a Virginia professional engineering corporation licensed to do business in West Virginia. It provides engineering, consulting, and design services in the planning, design, construction, operation, and financing of municipal and other water and wastewater piping, pumping, and treatment systems.

WWC’s complaint states that it became the successor-in-interest to Waste 4

Water Management, Inc., following a corporate name change.

2 appellate record, only the “Standard General Conditions” portion was provided. WWC

represents that the project was divided into two phases but fails to describe them.

According to WWC, the project experienced delays from the outset,

including proceedings before the West Virginia Public Service Commission (“PSC”),

which resulted in a PSC order directing that Pocahontas PSD resolve to build a centralized

treatment plant rather than a decentralized system utilizing multiple sewage plants as

proposed in WWC’s design. WWC represents that some delays required additional work

not contemplated in the design agreement. For example, following a PSC mandated

consultation with the West Virginia Department of Environmental Protection, WWC had

to prepare unanticipated engineering design alternatives. WWC completed Phase I of the

project in 2012.

In April 2013, the PSC granted Pocahontas PSD approval for a Phase II

engineering contract. WWC completed its engineering work in 2013; however, the

construction process for Phase II did not begin until 2015 because Pocahontas PSD had to

obtain necessary easements.

WWC oversaw the bidding process and explains that the project was bid as

three separate construction contracts; one for the collection system, one for the pump

stations, and one for the wastewater treatment plant. Respondent Pipe Plus, Inc.,

3 counterclaim defendant and third-party defendant below, successfully bid both the

collection system and pump stations and executed two contracts with Pocahontas PSD

accordingly. Respondent Orders Construction Company, Inc., also a counterclaim

defendant and third-party defendant below, successfully bid the wastewater treatment

plant, which included the headworks portion of the facility, 5 and entered a contract with

Pocahontas PSD for its construction. Respondent A-3 USA, Inc., an additional

counterclaim defendant and third-party defendant below, supplied certain component parts

used in the wastewater treatment plant. 6

The project’s target completion date was October 1, 2016; however, WWC

claims the project was not completed until at least May 31, 2017. WWC accepts no

responsibility for the numerous delays incurred throughout the design and construction of

the project. WWC contends that it was required to provide additional engineering services

not contracted for, and was engaged in the project for a longer period than anticipated,

through no fault of its own.

5 According to WWC, the headworks is the initial stage of the treatment process where the wastewater is collected and received. 6 A-3 USA secured a bid through Orders Construction to supply membrane bioreactor system component parts.

4 B. The Litigation

Seeking compensation for the alleged additional work for which it had not

been paid, WWC filed a complaint in the Circuit Court of Kanawha County against

Pocahontas PSD and certain others on February 6, 2018, asserting, in relevant part, various

breach of contract claims. 7 On March 28, 2018, Pocahontas PSD served its answer and a

two-count counterclaim on WWC. Count I of Pocahontas PSD’s counterclaim asserted

professional negligence based on twenty-eight alleged deficiencies in the wastewater

treatment plant and facilities designed by WWC. As discussed in more detail below, some

of Pocahontas PSD’s allegations identified discrete deficiencies in the headworks portion

of the wastewater treatment plant. Count II asserted breach of contract.

In July 2018, the case was transferred to the Business Court Division of the

West Virginia Judiciary, and the parties engaged in discovery. In August 2019, WWC filed

a motion for partial summary judgment as to Pocahontas PSD’s professional negligence

counterclaim. By order entered on November 27, 2019, the business court granted WWC’s

motion and dismissed twenty of Pocahontas PSD’s twenty-eight allegations of professional

negligence because they were not adequately supported by expert testimony.

7 The complaint also named as defendants three board members of the Pocahontas PSD, the West Virginia Department of Environmental Protection, and the West Virginia Water Development Authority. These persons and entities are neither part of nor relevant to this appeal.

5 Meanwhile, discovery closed on September 15, 2019. WWC asserts that it

tried to obtain information about the nature of Pocahontas PSD’s counterclaims and

associated damages during discovery, yet Pocahontas PSD gave no indication that it

anticipated extensive repairs of the headworks area. After the close of discovery,

Pocahontas PSD filed its third supplemental response to WWC’s requests for production.

This supplemental response included a headworks repair plan and three options for

headworks improvements that ranged in cost from $274,000 to $1,573,500. WWC

characterizes this discovery response as a “new headworks improvement claim,” and filed

a motion to strike the response on November 4, 2019. By order entered on March 16, 2020,

the business court granted, in part, WWC’s motion to strike. The court declined to strike

certain documents contained in Pocahontas PSD’s third supplemental response to WWC’s

requests for production, but it reopened discovery to allow for development of the newly

produced evidence and stated that it would implement a new scheduling order to allow for

possible amendment of pleadings, joinder of parties, and supplementation of expert witness

reports.

After WWC filed its motion to strike, it sent a tender letter to Orders

Construction. The tender letter, dated November 5, 2019, advised Orders Construction that

claims asserted in Pocahontas PSD’s counterclaim implicated Orders Construction’s work

and that WWC sought to be defended and indemnified under Orders Construction’s

contract with Pocahontas PSD.

6 WWC then filed a motion to join new parties and a proposed third-party

complaint against Orders Construction, Pipe Plus, and A-3 USA. Pocahontas PSD also

moved for leave to file an amended counterclaim to add claims against Pipe Plus and A-3

USA. The business court granted both motions. Pocahontas PSD filed its first amended

counterclaim on May 12, 2020, 8 and WWC filed its third-party complaint on May 18,

2020. 9 In its third-party complaint, WWC alleged, in relevant part, that Orders and Pipe

Plus were obligated by contract to provide it with a defense and indemnity pursuant to their

contracts with Pocahontas PSD and asserted claims of implied indemnity and contribution

against Orders, Pipe Plus, and A-3 USA.

In July 2020, Orders Construction and A-3 USA each filed a Rule 12(b)(6)10

motion to dismiss WWC’s third-party complaint, raising several grounds for dismissal.

Prior to the business court ruling on these motions, WWC filed, on November 4, 2020, a

“Notice of Intent to Attribute Fault,” under West Virginia Code § 55-7-13d (eff. 2016), as

8 On July 2, 2020, Pocahontas PSD served a “Notice of Voluntary Dismissal” of its counterclaim against A-3 USA. The notice provided no explanation for the dismissal. 9 According to A-3 USA, WWC’s original claims against Pocahontas PSD were resolved in mediation, and the case below now involves only the surviving counterclaims asserted against WWC by Pocahontas PSD. 10 See Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, allowing a motion to dismiss for “failure to state a claim upon which relief can be granted.”

7 to Orders Construction and A-3 USA. 11 Orders Construction and A-3 USA filed a joint

motion to strike the notice as untimely, and the business court granted that motion.

By order entered on January 14, 2021, the business court granted Orders

Construction’s Rule 12(b)(6) motion and dismissed it from the action with prejudice. The

business court denied WWC’s subsequent Rule 59(e) 12 motion to alter this judgment by

order entered on April 12, 2021. Similarly, by order entered on March 30, 2021, the

business court granted A-3 USA’s Rule 12(b)(6) motion and dismissed it, with prejudice,

from the action. In an order dated May 18, 2021, the business court denied WWC’s Rule

59(e) motion to alter the order dismissing A-3 USA. The business court certified this order

as final pursuant to Rule 54(b). 13

In February 2021, Pipe Plus filed a motion for partial summary judgment,

which the business court granted by order entered on April 16, 2021, completely resolving

Because West Virginia Code § 55-7-13d provides for a notice of nonparty 11

fault, WWC characterizes its notice as contingent upon the business court granting the pending motions to dismiss. Thus, we will refer to it as a “contingent notice of nonparty fault.” 12 See Rule 59(e) of the West Virginia Rules of Civil Procedure, providing for a motion to alter or amend a judgment. 13 See Rule 54(b) of the West Virginia Rules of Civil Procedure, permitting a court to direct entry of a final judgment “as to one or more but fewer than all” claims or parties when certain conditions are met.

8 WWC’s claims against Pipe Plus and dismissing it, with prejudice, as a third-party

defendant. 14

In this appeal, WWC seeks review of the business court’s orders granting

dismissal of its third-party complaint against Orders Construction and A-3 USA, along

with the orders denying WWC’s motions to alter or amend those dismissals. WWC also

seeks review of the business court’s order granting summary judgment to Pipe Plus and

dismissing Pipe Plus as a third-party defendant. Finally, WWC seeks review of the business

court’s order granting the joint motion by Orders Construction and A-3 USA to strike

WWC’s contingent notice of nonparty fault.

II.

STANDARD OF REVIEW

Our review of the orders dismissing Orders Construction and A-3 USA, as

well as the summary judgment order dismissing Pipe Plus, is de novo. See Syl. pt. 2, State

ex. rel McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516

In its motion seeking partial summary judgment, Pipe Plus sought 14

dismissal as to WWC’s third-party claims against it. Accordingly, the business court’s order granting “partial” summary judgment resolved the claims between Pipe Plus and WWC and dismissed Pipe Plus, with prejudice, from the action. We presume that the circuit court designated its order as granting “partial” summary judgment because, at that time, Pocahontas PSD’s claims against Pipe Plus remained pending. However, following settlement of those claims, the business court entered an “Agreed Partial Dismissal Order” on July 15, 2021, which dismissed all claims between Pocahontas PSD and Pipe Plus.

9 (1995) (“Appellate review of a circuit court’s order granting a motion to dismiss a

complaint is de novo.”); 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.”). Applying

these standards, we give plenary review to the issues properly before us.

III.

DISCUSSION

After a brief discussion of the appealability of the orders WWC seeks review

of, we will address, in turn, four issues raised by WWC: express indemnity, implied

indemnity, contribution, and timeliness.

A. Appealability

Although this case remains pending below, WWC seeks review of orders

issued by the business court that resolved WWC’s claims against Orders Construction, A-

3 USA, and Pipe Plus, and an order that struck its notice of nonparty fault. Only one of

these orders, the May 18, 2021 order denying WWC’s motion to alter or amend the

dismissal order as to A-3 USA, is designated as final pursuant to Rule 54(b). This order,

which resolves WWC’s claims against A-3 USA, is appealable pursuant to well-established

caselaw. See Syl. pt. 1, Riffe v. Armstrong, 197 W. Va. 626, 477 S.E.2d 535 (1996) (“In an

order dismissing fewer than all of the parties or fewer than all the claims in a civil action,

the inclusion of the language required by Rule 54(b) of the West Virginia Rules of Civil

10 Procedure makes that order appealable immediately with respect to the dismissed parties

and claims.”), modified on other grounds by Moats v. Preston Cnty. Comm’n, 206 W. Va.

8, 521 S.E.2d 180 (1999).

However, the absence of Rule 54(b) language from the orders granting

dismissal to Orders Construction and summary judgment to Pipe Plus is not dispositive as

to those orders’ finality. We have held that

“[t]he key to determining if an order is final is not whether the language from Rule 54(b) of the West Virginia Rules of Civil Procedure is included in the order, but is whether the order approximates a final order in its nature and effect. We extend application of this rule to a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.” Syl. Pt. 1, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).

Syl. pt. 7, Erie Ins. Co. v. Dolly, 240 W. Va. 345, 811 S.E.2d 875 (2018). Likewise,

[w]here an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that “no just reason for delay” exists and “directi[ng] . . . entry of judgment” will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court’s ruling approximates a final order in its nature and effect.

Syl. pt. 2, Durm v. Heck’s, Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991). Both the order

dismissing A3-USA and the order granting summary judgment to Pipe Plus as to WWC’s

claims disposed of all WWC’s claims against those third-party defendants and dismissed

11 both parties with prejudice. Accordingly, these orders approximate a final order in their

nature and effect and are appealable.

WWC also seeks review of the business court’s order granting a motion to

strike its contingent notice of nonparty fault as untimely. WWC argues that this

interlocutory order is reviewable under the following standard:

“‘Where an appeal is properly obtained from an appealable decree either final or interlocutory, such appeal will bring with it for review all preceding non-appealable decrees or orders, from which have arisen any of the errors complained of in the decree appealed from, no matter how long they may have been rendered before the appeal was taken.’ Point 2, syllabus, Lloyd v. Kyle, 26 W. Va. 534 [1885].” Syllabus point 5, State ex rel. Davis v. Iman Mining Co., 144 W. Va. 46, 106 S.E.2d 97 (1958).

Syl. pt. 6, Riffe, 197 W. Va. 626, 477 S.E.2d 535 (emphasis added). We disagree. In the

context of an appeal under Rule 54(b) of an order that does not fully resolve the litigation

below, the foregoing authority permits consideration of preceding non-appealable orders

only when the errors in the Rule 54(b) order arise from the earlier non-appealable orders.

See, e.g., Jane Doe-1 v. Corp. of President of The Church of Jesus Christ of Latter-day

Saints, 239 W. Va. 428, 445, 801 S.E.2d 443, 460 (2017) (considering in limine rulings

along with an appeal from a Rule 54(b) order granting summary judgment where “the in

limine rulings and the summary judgment rulings are inextricably entwined”). In this case,

WWC’s contingent notice of nonparty fault was stricken by the business court as untimely.

The business court’s ruling on the timeliness of that notice—a procedural issue governed

12 by West Virginia Code § 55-7-13d—cannot reasonably be said to have given rise to the

business court’s rulings on the substantive issues regarding the merits of the underlying

indemnity and contribution claims addressed in the orders that are properly before us on

appeal. Therefore, the order striking WWC’s contingent notice of nonparty fault is an

interlocutory order that may not be appealed at this time. As such, we will not address

WWC’s assignment of error regarding this notice.

B. Contractual Indemnity Claims Against Orders Construction and Pipe Plus

In its third-party complaint, WWC demanded indemnification from Orders

and Pipe Plus pursuant to their contracts with Pocahontas PSD, WWC asserts that the

business court erred by dismissing its express indemnity claims against both Orders

Construction and Pipe Plus.

WWC based its contractual indemnity demands on the following clause,

which appears in the relevant contracts: 15

7.18 Indemnification

A. To the fullest extent permitted by laws and Regulations, and in addition to any other obligations of Contractor under the Contract or otherwise, Contractor shall

15 The contracts between Pocahontas PSD and Orders Construction, and Pocahontas PSD and Pipe Plus, each list the documents that make up the respective contract. Included in that list is “General Conditions (pages 1 to 65 inclusive).” The indemnification clause at issue is part of these standard general conditions.

13 indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the performance of the Work, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for whose acts any of them may be liable.

....

C. The indemnification obligations of Contractor under Paragraph 7.18.A shall not extend to the liability of Engineer and Engineer’s officers, directors, members, partners, employees, agents, consultants and subcontractors arising out of:

1. the preparation or approval of, or the failure to prepare or approve maps, Drawings, opinions, reports, surveys, Change Orders, designs, or Specifications; or

2. giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage.

WWC argues that the foregoing language encompasses all claims Pocahontas PSD has

raised in its counterclaims, and as such, requires Orders and Pipe Plus to indemnify WWC

for any damages it may owe Pocahontas PSD.

14 The business court rejected WWC’s contractual indemnity claims and

provided only a vague and convoluted discussion of the indemnity clause when granting

both Orders Construction’s motion to dismiss and Pipe Plus’s motion for summary

judgment. The court first found the claims in this case are related to the exceptions to

indemnity set out in paragraph “C” quoted above. Nevertheless, the court then discussed

the requirements for the indemnity provision and observed that it is narrow and applies

only to certain types of damages and losses caused by Orders Construction or Pipe Plus.

Then, turning back to the exceptions, the business court commented that they exclude

liability arising from WWC’s design work. Finally, the business court identified the various

claims asserted against WWC by Pocahontas PSD, which are based on WWC’s design of

the wastewater treatment facility and its failure to supervise the contractors. 16 Absent from

the business court’s orders is any discussion or application of the standards for dismissing

a complaint or granting summary judgment.

We have explained that “Rule 12(b)(6) permits a party to move to dismiss a

pleading for ‘failure to state a claim upon which relief can be granted.’” Mountaineer Fire

& Rescue Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. 508, 526, 854 S.E.2d 870,

888 (2020). The purpose of a Rule 12(b)(6) motion “is to test the sufficiency of the

16 The only claim involving supervision asserted against WWC by Pocahontas PSD alleges that WWC failed to “supervise contractors so that proper as-built drawings for the force mains could be made.”

15 complaint.” Cantley v. Lincoln Cnty. Comm’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492

(2007) (per curiam). In so testing a complaint, the trial court should grant dismissal only

when “it appears beyond doubt that the plaintiff can prove no set of facts in support of [its]

claim [that] would entitle [it] to relief.” Syl. pt. 3, in part, Chapman v. Kane Transfer Co.,

Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977) (citation omitted). In other words, “[t]he task

of a court in ruling on a Rule 12(b)(6) motion ‘is merely to assess the legal feasibility of

the complaint, not to assay the weight of the evidence which might be offered in support

thereof.’” Mountaineer Fire, 244 W. Va. at 520, 854 S.E.2d at 882 (quoting Sims v. Artuz,

230 F.3d 14, 20 (2d Cir. 2000)). In assessing the sufficiency of a complaint, our notice

pleading standard requires only “a short and plain statement of the claim showing that the

pleader is entitled to relief[.]” W. Va. R. Civ. P. 8(a)(1).

On the other hand, “[a] motion for summary judgment should be granted only

when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the

facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co.

v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963). At this stage, the court is

“bound to draw any permissible inference from the pleadings, depositions, and the facts,

in a light most favorable to the non-moving party,” however, “the non-moving party still

must produce evidence sufficient for a reasonable jury to find in its favor.” City of

Morgantown v. W. Va. Univ. Med. Corp., 193 W. Va. 614, 620, 457 S.E.2d 637, 643

(1995). Accordingly,

16 summary judgment is proper [only] ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.’ W. Va. R. Civ. P. 56(c).

Bowden v. Monroe Cnty. Comm’n, 239 W. Va. 214, 219, 800 S.E.2d 252, 257 (2017).

In connection with its contractual indemnity claim, WWC quoted the

pertinent indemnity clause language in its third-party complaint and maintained that “the

allegations in [Pocahontas PSD’s] Counterclaim clearly allege damages that arise out of

the construction and construction management undertaken by Orders Construction and/or

its subcontractors, for which it is responsible pursuant to Orders Construction’s contract

with [Pocahontas PSD].” In addition, WWC alleged that “to the extent WWC has been

sued as a result of Orders Construction’s defective work and/or inadequate construction

management and supervision of the Project, Orders Construction is contractually obligated

to . . . indemnify WWC, as the Project Engineer, for [Pocahontas PSD’s] claims in this

lawsuit.” WWC asserted identical claims against Pipe Plus. Viewed in the light most

favorable to WWC, it has, in effect, alleged that the damages, if any, suffered by

Pocahontas PSD in connection with the construction of the wastewater treatment plant

project were caused by Orders Construction and Pipe Plus rather than by any design defect.

We find these allegations sufficient to survive a 12(b)(6) motion to dismiss on the issue of

contractual indemnity.

17 To the extent that the business court relied on exceptions to the indemnity

clause in dismissing Orders Construction, the application of those exceptions is dependent

upon resolving whether or not the alleged harm to Pocahontas PSD was caused by WWC’s

“preparation or approval of, or the failure to prepare or approve maps, Drawings, opinions,

reports, surveys, Change Orders, designs, or Specifications,” or “giving directions or

instructions, or failing to give them, if that is the primary cause of the injury or damage.”

The presence of these factual questions preclude dismissal pursuant to Rule 12(b)(6) as

such dismissal is proper only when “it appears beyond doubt that the plaintiff can prove no

set of facts in support of [its] claim [that] would entitle [it] to relief.” Syl. pt. 3, in part,

Chapman, 160 W. Va. 530, 236 S.E.2d 207 (citation omitted).

We also reject Orders Construction’s claim that, under the modified

comparative fault standard set out in West Virginia Code § 55-7-13c (eff. 2015), WWC

can only be severally liable for its own acts or omissions and cannot be exposed to claims,

losses, or damages caused by Orders. The modified comparative fault standard “does not

affect, impair[,] or abrogate any right of indemnity . . . arising out of any contract or

agreement . . . .” W. Va. Code § 55-7-13c(f). Thus, we find the circuit court erred by

granting Orders Construction’s 12(b)(6) motion dismiss as to WWC’s contractual

indemnity claim.

18 For the same reasons, we find there are material questions of fact with respect

to the source of the alleged damages suffered by Pocahontas PSD that preclude summary

judgment in favor of Pipe Plus as to WWC’s contractual indemnity claim. Pipe Plus has

not directed us to any evidence in the record that resolves these liability questions as a

matter of law.

Pipe Plus also asserts that WWC’s contractual indemnity claim is not ripe;

therefore, the business court lacks subject matter jurisdiction. See Syl. pt. 3, State ex rel.

Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 801 S.E.2d 216 (2017)

(“Subject matter jurisdiction does not exist over claims that are not ripe for adjudication.”).

However, under the circumstances presented in this case, there is an exception to the

general ripeness doctrine. This Court has explained that

[t]he ripeness doctrine “seeks to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Paraquad v. St. Louis Housing Auth., 259 F.3d 956, 958 (8th Cir. 2001) (internal quotations and citation omitted). “Questions that may never arise or are purely advisory or hypothetical do not establish a justiciable controversy. Because an unripe claim is not justiciable, the circuit court has no subject matter jurisdiction over it.” Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky. Ct. App. 2005) (footnotes omitted)[.]

Universal Underwriters Ins. Co. at 345, 801 S.E.2d at 223 (footnote omitted).

Nevertheless, “[a] claim for . . . indemnity may be asserted long before the cause of action

19 actually accrues.” 3 Bruner & O’Connor on Constr. Law, § 10:6, at 1048 (2022 ed). As

one court explained,

[t]echnically a claim for indemnity does not arise until the prime obligation to pay has been established . . . . Nevertheless, for the sake of fairness and judicial economy, . . . third-party actions [may] be commenced in certain circumstances before they are technically ripe, so that all parties may establish their rights and liabilities in one action.

Mars Assocs., Inc. v. New York City Educ. Const. Fund, 126 A.D.2d 178, 191-92 (N.Y.

App. Div. 1987) (emphasis added; quotations and citations omitted). Thus, we now hold

that even though a claim for indemnity does not technically arise until the primary

obligation to pay has been established, such claims may be brought by way of third-party

practice before they are technically ripe to serve the interests of fairness and judicial

economy. 17 For this reason, the fact that WWC’s contractual indemnity claims are not

technically ripe did not require disposition of those claims by summary judgment in Pipe

Plus’s favor. See W. Va. R. Civ. P. 14(a) (allowing a third-party claim against a “person

not a party to the action who is or may be liable to the third-party plaintiff for all or part of

17 See, e.g., Drammeh v. Uber Techs. Inc., No. 2:21-CV-202-BJR, 2021 WL 3664008, at *4 n.2 (W.D. Wash. Aug. 18, 2021) (“[A]s a general matter, unripe indemnity claims may be brought against third-party defendants in the same action as the underlying claim against which a third-party plaintiff seeks indemnification, if impleading is in line with [Federal Civil Procedure] Rule 14’s goal of judicial efficiency.”); Guzman v. C.R. Epperson Const., Inc., 752 N.E.2d 1069, 1075 (Ill. 2001) (acknowledging that “[i]n effect, Illinois law allows the third-party indemnity claim to be filed before it accrues, in order to promote settlement of all claims in one action. The third-party claim cannot be determined, however, before the underlying claim establishing liability and damages is determined.” (quotations and citation omitted)).

20 the plaintiff’s claim against the third-party plaintiff” (emphasis added)). Therefore, we

conclude that the circuit court erred by granting summary judgment to Pipe Plus as to

WWC’s contractual indemnity claims.

C. Contractual Duty to Provide a Defense Claim Against Orders Construction and Pipe Plus.

WWC also demanded that Orders’ Construction and Pipe Plus assume its

legal defense of Pocahontas PSD’s claims and argues that the business court erred by

concluding that the indemnification provision does not impose such an obligation. WWC

contends that West Virginia law requires Orders and Pipe Plus to provide it with a defense

“unless or until sufficient evidence is developed relieving them of this duty.” WWC argues

that the duty to defend is tested by whether the allegations in the complaint “‘are reasonably

susceptible of an interpretation that the claim may be covered’ by the terms of the contract.

Bruceton Bank v. U.S. Fid. & Guar. Ins. Co., 199 W. Va. 548, [553,] 486 S.E.2d 19[, 24]

(1997) [(quotations and citation omitted).]” WWC’s reliance on Bruceton Bank, a case

interpreting an insurance policy, is misplaced. With respect to insurance policies, we have

explained that

[a]n insurance company’s duty to defend an insured is broader than the duty to indemnify under a liability insurance policy. An insurance company has a duty to defend an action against its insured if the claim stated in the underlying complaint could, without amendment, impose liability for risks the policy covers. If, however, the causes of action alleged in the plaintiff’s complaint are entirely foreign to the risks

21 covered by the insurance policy, then the insurance company is relieved of its duties under the policy.

Bowyer v. Hi-Lad, Inc., 216 W. Va. 634, 651, 609 S.E.2d 895, 912 (2004) (per curiam).

While this Court has “recognized that an indemnitor may assume control of the

indemnitee’s defense, at least where no conflict of interest exists,” State ex rel. Vapor Corp.

v. Narick, 173 W. Va. 770, 774, 320 S.E.2d 345, 349 (1984) (emphasis added), WWC cites

no case imposing on a purported indemnitor a broad duty to defend like that imposed on

insurance companies.

To the contrary, a Michigan appellate court has explained that “[t]he duty to

defend is not the same as the duty to indemnify.” Downer v. GDC-Cranbrook Ltd. Dividend

Hous. Ass’n, LLC, No. 359580, 2023 WL 2144553, at *8 (Mich. Ct. App. Feb. 21, 2023)

(per curiam). Contrasting the duty to defend as it relates to insurance with a commercial

law duty to defend, the Downer court clarified that in “commercial transactions not

involving insurance law, whether a duty to defend exists is determined by the language of

the parties’ contract.” Id. Further,

the duty to defend and the duty to indemnify are two concepts that are not interdependent and “relate to distinctly different matters.” . . . The duty to defend contemplates a duty to deny, contest, or oppose an allegation or claim while the duty to indemnify “contemplates reimbursement for injuries/losses that have already been incurred.”

22 Id. (quoting Ajax Paving Indus., Inc. v Vanopdenbosch Constr. Co., 797 N.W. 2d 704

(Mich. Ct. App. 2010)). 18

The relevant language of the indemnity clause requires Orders Construction

and Pipe Plus to

indemnify and hold harmless [WWC] . . . from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) . . . .

Plainly, the obligation described is to indemnify, not to assume WWC’s defense. See

Indemnify, Black’s Law Dictionary (11th ed. 2019) (defining “indemnify” in relevant part

as meaning “1. To reimburse (another) for a loss suffered because of a third party’s or

one’s own act or default; . . . 2. To promise to reimburse (another) for such a loss.”

(emphasis added)); see also Supervalu Operations, Inc. v. Ctr. Design, Inc., 206 W. Va.

311, 315, 524 S.E.2d 666, 670 (1999) (per curiam) (“If the contract language is found to

be unambiguous then ‘[i]t is the safest and best mode of construction to give words, free

from ambiguity, their plain and ordinary meaning.’” (quoting Syl. pt. 3, Bennett v. Dove,

166 W. Va. 772, 277 S.E.2d 617 (1981))). Because the indemnification clause at issue does

not encompass a duty to defend, the business court did not err by concluding that Orders

18 See also Marydale Pres. Assocs., LLC v. Leon N. Weiner & Assocs., Inc., No. N19C-05-348 AML CCLD, 2022 WL 4446275, at *18 (Del. Super. Ct. Sept. 23, 2022) (“A ‘duty to defend’ is a contractual obligation that is distinct from a ‘duty to indemnify.’”).

23 Construction and Pipe Plus had no obligation to assume WWC’s defense in this matter, so

Rule 12(b)(6) dismissal and summary judgment were proper as to this claim.

D. Implied Indemnity Claim Against A-3 USA and Pipe Plus

In its third-party complaint, WWC claimed entitlement to common-law

indemnity, also referred to as implied indemnity or equitable indemnity, 19 from A-3 USA

and Pipe Plus. We first address this issue with respect to A-3 USA, we then consider it as

to Pipe Plus.

Because the business court disposed of WWC’s implied indemnity claim

against A-3 USA by granting A-3 USA’s Rule 12(b)(6) motion to dismiss, we must again

test the sufficiency of WWC’s third-party complaint and affirm the dismissal only if WWC

can prove no set of facts to support its claim. See Cantley v. Lincoln Cnty. Comm’n, 221

19 See, e.g., Chacko v. Costco Wholesale Corp., 568 F. Supp. 3d 487, 497 (S.D.N.Y. 2021) (commenting that “[c]ommon-law indemnification [is] also referred to as ‘implied indemnity’”); Casper Inn, LLC v. Superior Builders, Inc., No. 16-CV-11-R, 2017 WL 5172401, at *4 (D. Wyo. July 17, 2017) (referring to “equitable implied indemnity, also known as implied in law indemnity or common law indemnity” under Wyoming law); Gen. Motors Corp. v. Maritz, Inc., No. 02-CV-2132-PHXPGR, 2009 WL 1259376, at *1 (D. Ariz. May 6, 2009) (observing that “common law indemnity” is “also known as implied indemnity”). See also Indemnity, Black’s Law Dictionary (11th ed. 2019) (defining “implied indemnity” as “[i]ndemnity arising from equitable considerations and based on the parties’ relationship, as when a guarantor pays a debt to a creditor that the principal debtor should have paid. — Also termed equitable indemnity.”).

24 W. Va. 468, 470, 655 S.E.2d 490, 492 (“The purpose of a motion under Rule 12(b)(6) of

the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint.”);

Syl. pt. 3, in part, Chapman, 160 W. Va. 530, 236 S.E.2d 207 (establishing that a trial court

should not dismiss a complaint “unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of [its] claim [that] would entitle [it] to relief” (citation omitted)).

We have previously explained that,

[t]he requisite elements of an implied indemnity claim in West Virginia are a showing that: (1) an injury was sustained by a third party; (2) for which a putative indemnitee has become subject to liability because of a positive duty created by statute or common law, but whose independent actions did not contribute to the injury; and (3) for which a putative indemnitor should bear fault for causing because of the relationship the indemnitor and indemnitee share.

Syl. pt. 4, Harvest Cap. v. W. Va. Dep’t of Energy, 211 W. Va. 34, 560 S.E.2d 509 (2002)

(emphasis added). These three elements are joined by the conjunction “and” meaning they

all must be present. 20 And we have clarified that “the concept of implied indemnity is based

on equitable principles arising from the special nature of the relationship between the

20 See, e.g., Bowden v. Monroe Cnty. Comm’n, 239 W. Va. 214, 221, 800 S.E.2d 252, 259 (2017) (explaining that when factors are “joined with the conjunctive ‘and,’ . . . all elements are required”); Ooten v. Faerber, 181 W. Va. 592, 597, 383 S.E.2d 774, 779 (1989) (finding “the use of ‘and’ here clearly makes both conditions necessary”).

25 parties.” 21 Sydenstricker v. Unipunch Prods., Inc., 169 W. Va. 440, 445, 288 S.E.2d 511,

515 (1982) (emphasis added).

The business court granted A-3 USA’s motion to dismiss, in part, on WWC’s

failure to proffer a special relationship with A-3 USA upon which to base a claim for

implied indemnity. On appeal, WWC seizes on a sentence in Pocahontas PSD’s amended

counterclaim alleging that WWC “was to act as [Pocahontas PSD’s] representative in

connection with the construction of the Project.” Based on this allegation, WWC argues

that “in any supervisory capacity it may have had, [it] would not have actually created the

defects” alleged by Pocahontas PSD. (Emphasis added). However, WWC’s role as a

representative for Pocahontas PSD with respect to construction of the wastewater treatment

plant does not suggest the type of relationship between A-3 USA and WWC necessary to

support an implied indemnity claim. The special relationship that would give rise to

implied indemnity is one that imposed a duty on WWC to pay for damages caused by A-3

USA:

The general principle of implied indemnity arises from equitable considerations. At the heart of the doctrine is the premise that the person seeking to assert implied indemnity— the indemnitee—has been required to pay damages caused by a third party—the indemnitor. In the typical case, the indemnitee is made liable to the injured party because of some

21 Further, “[i]mplied indemnity is based upon principles of equity and restitution[,] and one must be without fault to obtain implied indemnity.” Syl. pt. 2, Sydenstricker v. Unipunch Prods., Inc., 169 W. Va. 440, 288 S.E.2d 511 (1982).

26 positive duty created by statute or the common law, but the actual cause of the injury was the act of the indemnitor.

Syl. pt. 2, Hill v. Joseph T. Ryerson & Son, Inc., 165 W. Va. 22, 268 S.E.2d 296 (1980)

(emphasis added). The Hill Court, addressing a product liability claim, also stated generally

that

[i]t is this relationship [between indemnitee and indemnitor] . . . as well as to the injured party, which must ultimately determine the right to implied indemnity and the defenses available to the indemnitor. . . . [T]he fundamental premise for the cause of action is that the indemnitee has been subjected to a judgment which arose from injuries brought about by the action of the indemnitor.

Id. at 27-28, 268 S.E.2d at 301.

While we have repeatedly acknowledged the need for a special relationship

by which a faultless indemnitee is made liable for the acts of the indemnitor because of

some positive duty created by statute or common law, we have not provided guidance as

to the types of relationships that might fall into that category. 22 Other courts, though, have

examined scenarios where a special relationship supporting a claim for implied indemnity

22 We have commented, without analysis, that implied indemnity arises when the indemnitee’s liability is vicarious. See, e.g., Woodrum v. Johnson, 210 W. Va. 762, 769, 559 S.E.2d 908, 915 (2001) (commenting that “a vicariously liable defendant’s right to implied indemnity is not affected by settlement between a plaintiff and other liable parties”); cf. Martin Oil Co. v. Philadelphia Life Ins. Co., 203 W. Va. 266, 274, 507 S.E.2d 367, 375 (1997) (observing that “implied indemnity is a purely legal theory of recovery, not dependent on the existence of facts revealed in discovery”).

27 is present. These cases clarify that the requisite relationship is one by which liability is

imputed from the indemnitor to the indemnitee:

“Importantly, the right to indemnification at common law derives from a special relationship between the parties which has obligated one party to pay because of its vicarious, constructive, derivative or technical liability for the wrongful acts of the other.” Dominion of Canada v. State Farm Fire and Cas. Co., 754 So. 2d 852, 855 (Fla. 2nd DCA 2000).

CC-Aventura, Inc. v. Weitz Co., LLC, No. 06-21598-CIV, 2009 WL 2136527, at *1 (S.D.

Fla. July 13, 2009) (emphasis added). Another court has explained that

“[t]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor” (Dreyfus v. MPCC Corp., 124 A.D.3d 830, 830, 3 N.Y.S.3d 365 [2015] [internal quotation marks, brackets and citations omitted]). . . . “[T]he predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee” . . . (id. [internal quotation marks and citations omitted]). As the Court of Appeals has held, “[c]ommon-law indemnification is generally available ‘in favor of one who is held responsible solely by operation of law because of his [or her] relation to the actual wrongdoer’” (McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 375, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011], quoting Mas v. Two Bridges Assoc., 75 N.Y.2d 680, 690, 555 N.Y.S.2d 669, 554 N.E.2d 1257 [1990]).

O’Toole as Tr. for Charafeddine v. Marist Coll., 170 N.Y.S.3d 264, 268-69 (N.Y. App.

Div. 2022). 23 An implied indemnity claim has been found inapplicable where the party

23 See also Action, Inc. v. McQueeny Grp., Inc., 646 S.W.3d 672, 676 (Ark. Ct. App. 2022) (“Arkansas courts have applied the doctrine of implied indemnity only in limited situations where there is no express-indemnity contract, such as imputed or vicarious liability or product liability where a supplier seeks indemnity against the product

28 alleged to be at fault is an independent contractor. See Nolde v. Hamm Asphalt, Inc., 202

F. Supp. 2d 1257, 1269 (D. Kan. 2002) (“[O]ne who employs an independent contractor,

as compared to his own agent, is generally not vicariously liable for the negligent acts of

the contractor.”).

Absent a liability-imputing relationship, the claim that another is responsible

for an alleged harm is a defense rather than a basis for implied indemnification. See

Woodrum v. Johnson, 210 W. Va. 762, 768, 559 S.E.2d 908, 914 (2001) (“[T]he Court has

clearly acknowledged the fact that there is a technical difference between joint tortfeasors

and those whose liability is derivative or vicarious[.]”). See, e.g., Houdaille Indus., Inc. v.

Edwards, 374 So. 2d 490, 494 (Fla. 1979) (“[Manufacturer’s] claim that [employee’s]

death resulted solely from the negligence of [employer] states a complete defense to the

manufacturer.” (emphasis added)); Jentz v. ConAgra Foods, Inc., No. 10-CV-0474-MJR- PMF, 2012 WL 1297699, at *3 (S.D. Ill. Apr. 16, 2012) (acknowledging that “a promise to indemnify can be implied from the relationship among tortfeasors. ‘The fundamental premise . . . is that the indemnitee, although without fault in fact, has been subjected to liability solely because of the legal relationship with the plaintiff or a nondelegable duty arising out of common or statutory law,’” and identifying the types of relationships that support common-law indemnity as including “lessor/lessee, employer/employee[,] and master/servant” (quoting Frazer v. A.F. Munsterman, 527 N.E.2d 1248, 2151-52 (Ill. 1988))); In re Jordan Foster Constr., LLC, No. 08-22-00201-CV, 2023 WL 2366610, at *4 (Tex. Ct. App. Mar. 6, 2023) (explaining that Texas recognizes common-law indemnity only “in products liability actions . . . or in negligence actions to protect a defendant whose liability is purely vicarious in nature” (quotations and citation omitted)); 41 Am. Jur. 2d Indemnity § 20, at 406-07 (2015) (“One is entitled to implied indemnification where he or she has committed no wrong but is held vicariously liable for the wrongdoing of another.”).

29 original action. It does not establish that [manufacturer] is vicariously, constructively,

derivatively, or technically liable for [employer’s] negligence.”).

In this case, to support its claim for implied indemnity against A-3 USA,

WWC had to plead all the essential elements of its claim, including facts supporting a

special relationship with A-3 USA that would result in liability for A-3 USA’s wrongful

acts being imputed on WWC by operation of law. See Price v. Halstead, 177 W. Va. 592,

594, 355 S.E.2d 380, 383 (1987) (stating that a plaintiff must, “at a minimum . . . set forth

sufficient information to outline the elements of [the] claim” in its complaint, and if it “fails

to do so, dismissal is proper”); Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 52, 350

S.E.2d 562, 563 (1986) (per curiam) (“The complaint must set forth enough information to

outline the elements of a claim or permit inferences to be drawn that these elements exist.”).

WWC, in its third-party complaint, expresses its belief that “A3-USA was

retained by Orders Construction and supplied the membrane bioreactor (‘MBR’) system

and related components of that system installed in the WWTP [wastewater treatment plant]

and provided direction as to what components of the system, including the screens,

pumps[,] and solution tank, should be installed.” Then, under the heading “Negligence,”

WWC alleges:

35. [A-3 USA] had a duty to supply a membrane bioreactor (“MBR”) system and related components that functioned

30 properly and met the requirements of the Contract Documents and complied with applicable industry standards.

36. [A-3 USA] had a duty to exercise [a] reasonable degree of care, skill, and knowledge in supplying the MBR system and related components.

Finally, WWC avers that, to the extent Pocahontas PSD proves its allegations and suffered

damages in connection with the membrane bioreactor systems and related components

supplied by A-3 USA, WWC is entitled to implied indemnification from A-3 USA.

WWC’s third-party complaint contains no facts about its relationship with

A-3 USA, much less one that gives rise to imputed or vicarious liability. In fact, the only

relationship involving A-3 USA mentioned in WWC’s third-party complaint is one

between A-3 USA and Orders Construction. 24 Furthermore, Pocahontas PSD does not

assert any claims against WWC based on imputed or vicarious liability. 25 See, e.g.,

Schoolhouse Ltd. Liab. Co. v. Creekside Owners Ass’n, No. 13-0812, 2014 WL 1847829,

at *4 (W. Va. May 8, 2014) (memorandum decision) (affirming dismissal of Schoolhouse’s

cross-claim for implied indemnity against settling co-defendants and commenting that “the

Amended Complaint does not assert any claims against Schoolhouse predicated upon

imputed, strict, or vicarious liability of Schoolhouse for the actions or omission of the

24 WWC’s third-party complaint merely states that “A3-USA was retained by Orders Construction.” 25 Pocahontas PSD has asserted two claims against WWC, one for breach of the standard of care and professional negligence, and one for breach of contract.

31 settling defendants”). Accordingly, we conclude that the business court did not err in

granting A3-USA’s motion to dismiss WWC’s third-party claim for implied indemnity

because WWC failed to adequately plead the necessary elements of that claim. See, e.g.,

Burlington N. v. Cosco N. Am., Inc., No. 03-2065-JWL, 2003 WL 21685908, at *4 (D.

Kan. 2003) (“Cosco’s allegations fail to state an implied contractual indemnification claim.

While Cosco pleads that the alleged derailment occurred without ‘any fault, negligence,

act or omission of [it],’ it does not allege that there was a relationship—such as principal

and agent—that would cause it to be vicariously liable for Nippon Express’s actions.”

(footnote omitted)).

In contrast to the procedural posture of A-3 USA’s dismissal, the business

court disposed of WWC’s implied indemnity claim against Pipe Plus by granting Pipe

Plus’s motion for summary judgment. 26 “A motion for summary judgment should be

granted only when it is clear that there is no genuine issue of fact to be tried and inquiry

26 Courts have acknowledged that the presence of a contract provision establishing indemnity thwarts a claim for implied indemnity. See Holt v. Walsh Grp., 316 F. Supp. 3d 274, 281 (D.D.C. 2018) (commenting that “many states have held that where an express, written indemnification provision exists, the agreed upon terms of that provision—and not principles of implied or equitable indemnification—control the duties and respective liability of the contracting parties,” and collecting cases). In this case, there is a contractual provision that requires Pipe Plus to indemnify WWC in certain circumstances; however, WWC was not a signatory to that contract, which was between Pocahontas PSD and Pipe Plus. We need not decide whether that provision prevents WWC from asserting an alternate claim for implied indemnity against Pipe Plus because we find WWC’s implied indemnity claim is not cognizable on other grounds.

32 concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna

Cas. & Sur. Co, 148 W. Va. 160, 133 S.E.2d 770. Further,

[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record 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.

Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). We have

stated that “[s]ummary judgment . . . is a device designed to effect a prompt disposition of

controversies on their merits without resort to a lengthy trial, if in essence there is no real

dispute as to salient facts or if only a question of law is involved.” Hanks v. Beckley

Newspapers Corp., 153 W. Va. 834, 836-37, 172 S.E.2d 816, 817 (1970).

In its motion seeking summary judgment, Pipe Plus argued, and the business

court subsequently agreed, that WWC had no viable claim for implied indemnity because

no special relationship had been alleged. On appeal, WWC asserts the same argument it

provided with respect to A-3 USA, that WWC “was to act as [Pocahontas PSD’s]

representative in connection with the construction of the Project” and that “in any

supervisory capacity it may have had, [i]t would not have actually created the defects”

alleged by Pocahontas PSD. Missing from WWC’s argument is any discussion of evidence

showing a special relationship between it and Pipe Plus by which WWC is liable for the

wrongful conduct of Pipe Plus. Likewise, WWC has directed us to no record evidence

creating a “genuine issue of fact to be tried” as to the existence of such a relationship. Syl.

33 pt. 3, in part, Aetna Cas. & Sur. Co., 148 W. Va. 160, 133 S.E.2d 770. Therefore, the

business court did not err in granting summary judgment to Pipe Plus on this issue, because

WWC “has failed to make a sufficient showing on an essential element of the case that it

has the burden to prove,” Syl. pt. 2, in part, Williams, 194 W. Va. 52, 459 S.E.2d 329.

E. Viability of Contribution Claim Against A-3 USA

In granting A-3 USA’s Rule 12(b)(6) motion to dismiss, the business court

observed that the modified comparative fault standard established by the West Virginia

Legislature in 2015 27 provides generally for several liability among defendants. 28 The

business court acknowledged that there are statutory exceptions to several liability but

found none of those exceptions applied here. Thus, the business court concluded that the

contribution claim asserted by WWC against A3-USA “cannot be maintained, as the facts

27 See W. Va. Code §§ 55-7-13a to -13d. 28 The Legislature has described several liability as follows:

(a) In any action for damages, the liability of each defendant for compensatory damages shall be several only and may not be joint. Each defendant shall be liable only for the amount of compensatory damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against each defendant for his or her share of that amount. . . .

W. Va. Code § 55-7-13c(a) (eff. 2015).

34 and allegations of conduct do not fit any of the exceptions to West Virginia’s several

liability law.”

WWC argues that the business court erred by ruling that West Virginia’s

modified several liability standard prevents its contribution claim against A-3 USA

because the Legislature did not expressly abolish claims of contribution. WWC also relies

on a 2019 order of the business court in a separate matter opining that legislative adoption

of the modified comparative fault standard did not extinguish the inchoate right to

contribution. We are unpersuaded by this authority.

We begin our analysis by reviewing the principles of contribution. This Court

explained, prior to the enactment of the modified comparative fault standard, that

[t]he right of contribution arises from liability for a joint wrong committed by two or more parties against the plaintiff. We explained the doctrine of contribution in Syllabus Point 4, in part, of Sydenstricker v. Unipunch Prods., Inc., 169 W. Va. 440, 288 S.E.2d 511 (1982), as follows:

“The doctrine of contribution has its roots in equitable principles. The right to contribution arises when persons having a common obligation, either in contract or tort, are sued on that obligation and one party is forced to pay more than his pro tanto share of the obligation.”

Bd. of Educ. of McDowell Cnty. v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 602,

390 S.E.2d 796, 801 (1990). The Zando Court further described the applicable

35 nomenclature, stating that an “inchoate right to contribution,” refers to the right of a

defendant in a negligence action to join those who share the fault by asserting claims for

contribution. Id. 29 The Court clarified that the “fundamental purpose of inchoate

contribution,” is to allow all those who contributed to an injury to be brought into one suit,

which promotes judicial economy, avoids piecemeal litigation, and ensures that damages

are shared among those who contributed to them. Id. at 603, 390 S.E.2d at 802.

The question we must address is whether, or to what extent, the inchoate right

to contribution exists under the modified comparative fault standard established by statute.

Resolving this issue requires us to determine the Legislature’s intent in adopting the

modified comparative fault standard. See Syl. pt. 1, Smith v. State Workmen’s Comp.

Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object in construing a

statute is to ascertain and give effect to the intent of the Legislature.”). In engaging in this

query, “[w]e look first to the statute’s language. If the text, given its plain meaning, answers

the interpretive question, the language must prevail and further inquiry is foreclosed.”

Appalachian Power Co. v. State Tax Dep’t, 195 W. Va. 573, 587, 466 S.E.2d 424, 438

29 The Court distinguished an inchoate right to contribution from “the statutory right of contribution,” which arises “after a joint judgment conferred by W. Va. Code, 55-7-13 (1923) [(repealed eff. 2015)]. [Haynes v. City of Nitro,] 161 W. Va. [203,] 234, 240 S.E.2d [544,] 547 [(1977)].” Bd. of Educ. of McDowell Cnty. v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 602, 390 S.E.2d 796, 801 (1990).

36 (1995). We find no ambiguity in the modified comparative fault provisions relevant to our

determination of the present issue; therefore, we apply the statute’s plain language.

In adopting modified comparative fault, the Legislature specifically provided

(a) For purposes of this article, “comparative fault” means the degree to which the fault of a person was a proximate cause of an alleged personal injury or death or damage to property, expressed as a percentage. Fault shall be determined according to section thirteen-c [§ 55-7-13c] of this article.

(b) In any action based on tort or any other legal theory seeking damages for personal injury, property damage, or wrongful death, recovery shall be predicated upon principles of comparative fault and the liability of each person, including plaintiffs, defendants and nonparties who proximately caused the damages, shall be allocated to each applicable person in direct proportion to that person’s percentage of fault.

(c) The total of the percentages of comparative fault allocated by the trier of fact with respect to a particular incident or injury must equal either zero percent or one hundred percent.

W. Va. Code § 55-7-13a (eff. 2015) (emphasis added). As reflected in subparagraph (a)

above, West Virginia Code § 55-7-13c(a) details how fault shall be determined among

wrongdoers:

(a) In any action for damages, the liability of each defendant for compensatory damages shall be several only and may not be joint. Each defendant shall be liable only for the amount of compensatory damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against each defendant

37 for his or her share of that amount. However, joint liability may be imposed on two or more defendants who consciously conspire and deliberately pursue a common plan or design to commit a tortious act or omission. Any person held jointly liable under this section shall have a right of contribution from other defendants that acted in concert.

W. Va. Code § 55-7-13c(a) (emphasis added). This provision uses mandatory language in

directing that, in general, liability for compensatory damages “shall be several only” and

that “[e]ach defendant shall be liable only” in proportion to its own percentage of fault. Id.

(emphasis added). See also Syl. pt. 1, Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va.

445, 300 S.E.2d 86 (1982) (“It is well established that the word ‘shall,’ in the absence of

language in the statute showing a contrary intent on the part of the Legislature, should be

afforded a mandatory connotation.”). This provision also provides an exception to several

liability under which contribution shall be available when two or more defendants

“consciously conspire and deliberately pursue a common plan or design to commit a

tortious act or omission.” W. Va. Code § 55-7-13c(a). Another exception, set out in

paragraph 13c(e), applies when a party’s liability has been reallocated under paragraph

13c(d). 30 A right to contribution may also be provided by contract. See W. Va. Code

§ 55-7-13c(f) (“This section does not affect, impair[,] or abrogate any right of indemnity

or contribution arising out of any contract or agreement or any right of indemnity otherwise

30 Under West Virginia Code § 55-7-13c(e), “[a] party whose liability is reallocated under subsection (d) of this section is nonetheless subject to contribution and to any continuing liability to the plaintiff on the judgment.” Subsection 13c(d) allows for reallocation within a certain timeframe “if a plaintiff through good faith efforts is unable to collect from a liable defendant . . . .” W. Va. Code § 55-7-13c(d).

38 provided by law.”). Furthermore, the Legislature established a method for allocating fault

to nonparties. See W. Va. Code § 55-7-13d.

By employing mandatory language in the modified comparative fault

standard, specifying that fault shall be allocated among those who proximately caused the

damages suffered, providing a method for a factfinder to consider the fault of nonparties,

and identifying specific exceptions to several liability with contribution expressly allowed

in those circumstances, the Legislature has made clear that, outside of exceptions

recognized in this statutory scheme, contribution is no longer available. Cf. State ex rel.

Discover Fin. Servs., Inc. v. Nibert, 231 W. Va. 227, 250, 744 S.E.2d 625, 648 (2013)

(“[T]he Latin doctrine inclusio unius est exclusio alterius, i.e., one is the exclusion of the

others . . . instructs courts to exclude from operation those items not included in the list of

elements that are given effect expressly by statutory language.” (quotations and citations

omitted)). In fact, we have previously recognized that the modified comparative fault

statutes “do purport to fully occupy the field of comparative fault and the consideration of

‘the fault of parties and nonparties to a civil action[.]’” Modular Bldg. Consultants of

W. Va., Inc. v. Poerio, Inc., 235 W. Va. 474, 486 n.12, 774 S.E.2d 555, 567 n.12 (2015)

(quoting H.B. 2002, 2015 Leg. 82nd Sess. (W. Va. 2015)). 31 We believe the Legislature

31 Federal courts applying West Virginia law have also recognized the abolition of contribution claims that are not recognized in our modified comparative fault statutes. See French v. XPO Logistics Freight, Inc., No. 2:18-CV-1544, 2020 WL 1879472, at *3 (S.D. W. Va. Apr. 15, 2020) (agreeing that “[i]n effect, this broad [modified

39 further expressed its intent that contribution claims be governed by the modified

comparative fault statutes when, at the same time it enacted those statutes, it repealed the

statutory right of contribution formerly provided in West Virginia Code, 55-7-13 (repealed

eff. 2015).

Based on the foregoing discussion, we now hold that the statutory scheme

and exceptions set forth in West Virginia Code §§ 55-7-13a to -13d govern contribution

claims. The unambiguous language of those statutes abolished any contribution claim that

falls outside of them. In this case, WWC’s third-party complaint had one section alleging

claims against A3-USA, titled “Negligence.” In that section, WWC avers that if Pocahontas

PSD proves its allegations and causes of action linked to any defects in the membrane

bioreactor system and related component parts, then any associated damages were caused

by negligence on the part of A3-USA, and “to the extent [Pocahontas PSD] is entitled to

any recovery, WWC demands that judgment be entered in its favor and against A3-USA

and that A3-USA be adjudged solely liable to [Pocahontas PSD] and/or liable to WWC for

comparative fault] rule amounts to the near total abolition of claims for contribution,” observing that “[n]ear total abolition is not the same as total abolition,” and discussing statutory exceptions allowing for joint liability and a right of contribution (quotations and citations omitted)); Bateman v. CMH Homes, Inc., No. CV-3:19-0449, 2020 WL 597564, at *2 (S.D. W. Va. Feb. 6, 2020) (same); Clovis v. J.B. Hunt Transp. Inc., No. 1:18-cv-147, 2019 WL 4580045, at *3 & n.4 (N.D. W. Va. Sept. 20, 2019) (acknowledging “the near total abolition of claims for contribution given the establishment of several liability as the norm,” and commenting that “this Court believes these sweeping statutory provisions completely govern the [contribution] issues raised in the pending motion as well as civil actions seeking recovery for the actionable negligence of others”).

40 contribution . . . .” WWC has failed to identify any statutory exception entitling it to

contribution from A3-USA or to direct us to any facts in its third-party complaint

supporting a contribution claim recognized in the modified comparative fault statutes.

Therefore, we find the business court’s dismissal of WWC’s third-party complaint as to

A3-USA was not erroneous on this ground. 32

32 WWC also assigns error to the business court’s determination that the applicable statute of limitations barred certain claims WWC asserted against Orders Construction and Pipe Plus. We need not address this issue. The business court granted Orders Construction’s Rule 12(b)(6) motion to dismiss on various grounds, including that WWC failed to plead a legally viable claim for implied indemnity against Orders Construction by failing to proffer a special relationship upon which such a claim can be based. The business court also found that the terms of the contractual indemnification clause discussed above prohibited WWC’s contribution claim against Orders, because allowing contribution would nullify the indemnity terms of the contract. WWC failed to appeal either of these rulings, so dismissal on these grounds will stand regardless of any determination by this Court as to the timeliness of WWC’s third-party complaint. Therefore, addressing these issues would amount to an improper advisory opinion. “Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes.” Mainella v. Bd. of Trs. of Policemen’s Pension or Relief Fund of City of Fairmont, 126 W. Va. 183, 185, 27 S.E.2d 486, 487-88 (1943). See also Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 140 n.10, 506 S.E.2d 578, 583 n.10 (1998) (“Issues not raised on appeal or merely mentioned in passing are deemed waived.”).

For the same reasons applied to Orders Construction, the business court concluded that the indemnity clause in the Pipe Plus contract prohibited WWC’s contribution claim against Pipe Plus. WWC has not challenged this ruling. Therefore, the business court’s summary judgment ruling on that ground is final. Additionally, we have already determined that the business court did not err in granting summary judgment as to WWC’s implied indemnity claim because WWC failed to make a sufficient showing of a special relationship to overcome summary judgment. Thus, we need not address the question of whether the business court was correct as to the alternate ground of the statute of limitations.

41 IV.

CONCLUSION

As explained above, we reverse the order of the Circuit Court of Kanawha

County, Business Court Division, dated January 14, 2021, granting Orders Construction’s

Rule 12(b)(6) motion to dismiss as to WWC’s contractual indemnity claim against Orders

Construction, and the court’s April 12, 2021 order denying WWC’s Rule 59(e) motion to

alter that judgment. We remand for additional proceedings on that issue consistent with

this opinion. Likewise, we reverse the business court’s order dated April 16, 2021, granting

summary judgment to Pipe Plus as to WWC’s contractual indemnity claim, and remand for

additional proceedings consistent with this opinion. However, we affirm that order as to

WWC’s implied indemnity claim against Pipe Plus. Finally, we affirm the business court’s

order dated March 30, 2021, granting A-3 USA’s Rule 12(b)(6) motion to dismiss as to

WWC’s claims for implied indemnity and contribution, and the May 18, 2021 order

denying WWC’s Rule 59(e) motion to alter that judgment.

Affirmed in part, Reversed in part, and Remanded.