Moore v. Knippenberg et al
Filing
75
MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 70 ) AND DENYING ALLSTATE'S MOTION TO DISMISS AS MOOT (DKT. NO. 56 ). The Court GRANTS Allstate's 70 Motion for Summary Judgment; denies as moot Allstate's 56 Motion to Dismiss and DISMISSES Moore's claims against Allstate WITH PREJUDICE. Signed by District Judge Irene M. Keeley on 11/18/16. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEVIN M. MOORE, SR.,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:15CV193
(Judge Keeley)
ERIN KNIPPENBERG, LOTTIE WILHELM,
and ALLSTATE INDEMNITY CO.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
Pending
before
the
Court
are
two
motions
filed
by
the
defendant, Allstate Indemnity Company (“Allstate”), a motion to
dismiss and a motion for summary judgment (Dkt. Nos. 56; 70). The
motion for summary judgment contends that Allstate is entitled to
judgment as a matter of law regarding claims made by the plaintiff,
Kevin M. Moore, Sr. (“Moore”), because the claims are barred by the
doctrine of res judicata. For the reasons that follow, the Court
GRANTS Allstate’s motion for summary judgment (Dkt. No. 70) and
DENIES its motion to dismiss as moot (Dkt. No. 56).
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, Moore purchased a home in Burlington, West Virginia,
which he later rented to a third party from 2009 to 2011 (Dkt. No.
70-2 at 2). Of importance to this litigation, during that rental
period, he insured the property through Allstate under a landlord’s
policy. Id. at 4. In October 2011, he returned to the home, which
MOORE V. KNIPPENBERG, ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
later burned to the ground in 2013. Id. at 5. Although Allstate’s
landlord policy was still in place at the time of the fire, Moore
argues
that
the
fire
homeowner’s policy.
loss
should
have
been
covered
under
a
He alleges that, prior to the fire, he had
informed Lottie Wilhelm (“Wilhelm”), an employee of Allstate agent
Erin Knippenberg (“Knippenberg”), that he had returned to his home
in Burlington and required a homeowner’s policy (Dkt. No. 32 at 3).1
The instant suit is Moore’s second suit against Allstate arising
from the fire loss.
I.
The First Allstate Action (“Moore I”)2
On August 27, 2013, Moore filed suit in the Circuit Court of
Harrison
County,
West
Virginia
(“Moore
I”),
naming
Allstate,
Knippenberg, and claims adjuster Ray Betler (“Betler”) as defendants
(Dkt. No. 1-2 at 4). Moore’s complaint contained four counts,
including (1) breach of contract, (2) violation of the covenant of
good faith and fair dealing, (3) violation of the West Virginia
Unfair Claims Settlement Practices Act (“WVUCSPA”), and (4) punitive
1
For a fuller recitation of the alleged underlying facts, see
this Court’s Order at Dkt. No. 28.
2
Unless otherwise noted, all citations in this section refer
to docket entries for Moore v. Allstate Indemnity Co., Civil Case
No. 1:13CV228. Outside of the current section, docket entries for
this case will be referenced as “Moore I, Dkt. No. [X].”
2
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1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
damages. Id. at 7-10. During the pendency of the case in state
court, Moore and Allstate voluntarily dismissed claims against
Knippenberg and Betler without prejudice. Id. at 50.
After that dismissal, on October 11, 2013, Allstate removed
Moore I to this Court, citing diversity jurisdiction (Dkt. No. 1).
Much later, Moore sought to bifurcate his bad faith claims against
Allstate, acknowledging that the fate of those claims depended on
whether Allstate had breached its contract of insurance by not
providing coverage for his personal property (Dkt. No. 33-1 at 4-5).
On September 10, 2014, the Court granted in part and denied in part
the motion, and limited the first round of briefing to the coverage
question (Dkt. No. 39 at 1).
Allstate moved for summary judgment on the coverage issues
(Dkt. No. 41). Following full briefing, the Court granted the motion
and also dismissed with prejudice the remaining claims for bad faith
against Allstate (Dkt. No. 48). Moore argued that although he had
made Allstate aware that he had changed his address it had failed
to convert his landlord policy to a homeowner’s policy. In its
Order, the Court noted that “the complaint did not include a claim
against Knippenberg for failure to procure a homeowners policy.” Id.
at 5. The Court stated:
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
Simply put, there is no dispute that the policy in place
at the time of the fire was the Landlords Policy, not a
homeowners policy. It appears that the dispute in this
case centers on whether Knippenberg, Allstate’s insurance
agent, acted negligently either by failing to procure a
homeowners policy for Moore, or by misrepresenting to him
that a homeowners policy was in place. That said, not
only is Knippenberg no longer a defendant, but Moore’s
complaint also is conspicuously devoid of any such
claims. Indeed, his complaint alleges only that Allstate
breached the Landlords Policy . . . .
. . .
To the extent [Moore’s] briefing includes arguments
beyond the coverage question, such arguments are outside
the scope of the motion filed by Allstate; nor are they
alleged in Moore’s complaint.
Id. at 8, 10. The Court concluded that “coverage existed under the
Landlords Policy,” and “Moore [had] received the benefits of such
coverage . . . when Allstate paid the liability limits for personal
property protection and dwelling protection.” Id. at 10.
Thereafter, the Court declined to vacate and alter or amend the
judgment when Moore pursued an argument that he had substantially
prevailed on his debris removal coverage claim (Dkt. No. 52). It
based
this
decision
in
part
on
the
fact
that
Moore
had
“unequivocally represented throughout th[e] litigation that a ruling
on coverage favorable to Allstate would moot his remaining claims.”
Id. at 4.
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
II.
The Current Lawsuit (“Moore II”)
Moore filed the current lawsuit (“Moore II”) in the Circuit
Court of Marion County, West Virginia, on January 22, 2015 (Dkt. No.
1-2 at 2), naming Knippenberg, Wilhelm, and Betler as defendants.
He
filed
this
lawsuit
while
the
Court
was
still
considering
Allstate’s motion for summary judgment in Moore I. This complaint
alleges five causes of action, including counts for (1) negligent
procurement of adequate insurance, (2) breach of contract, (3)
negligent failure to reform the policy of insurance, (4) violation
of the WVUCSPA, and (5) punitive damages.
Id. at 7-12.
Knippenberg and Wilhelm removed the case to this Court on
October 28, 2015 (Dkt. No. 1). The Court dismissed Betler, who had
not been served within the time period required by Fed. R. Civ. P.
4(m) (Dkt. No. 22). Later, on March 22, 2016, it granted Moore’s
motion to amend the complaint to add Allstate as a party (Dkt. No.
28). After Moore amended his complaint and properly completed
service (Dkt. Nos. 32; 50), Allstate filed a motion to dismiss,
asserting that the Court’s holding in Moore I is res judicata here
(Dkt. No. 56).
The motion to dismiss was fully briefed on September 19, 2016;
due to an abbreviated schedule, however, the Court was unable to
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
issue a ruling before the deadline for dispositive motions arrived
on October 14, 2016, when Allstate filed the pending motion for
summary judgment, asserting the doctrine of res judicata (Dkt. No.
70). Moore did not respond to this motion. Because the motions are
substantially similar, to the extent relevant to the motion for
summary judgment, the Court will consider Moore’s arguments in
response to the motion to dismiss (Dkt. No. 62).
LEGAL STANDARD
Summary
documents,
judgment
is
appropriate
electronically
declarations,
stipulations
where
the
stored
information,
.
,
.
.
admissions,
“depositions,
affidavits
or
interrogatory
answers, or other materials” establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A).
When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850
(4th Cir. 2000). The Court must avoid weighing the evidence or
determining
its
truth
and
limit
its
inquiry
solely
to
a
determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
6
MOORE V. KNIPPENBERG, ET AL.
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
nonexistence of genuine issues of fact.
and
of
establishing
the
Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.”
Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted). The
“mere existence of a scintilla of evidence” favoring the non-moving
party will not prevent the entry of summary judgment. The evidence
must be such that a rational trier of fact could reasonably find for
the nonmoving party. Id. at 248–52.
APPLICABLE LAW
“The doctrine of res judicata precludes relitigation of the
same claim,” Horne v. Lighting Energy Servs., LLC, 123 F. Supp. 3d
830, 838 (N.D.W. Va. 2015) (citing Sattler v. Bailey, 400 S.E.2d
220, 225 (W. Va. 1990)), and is founded on wise public policy:
To preclude parties from contesting matters that they
have had a full and fair opportunity to litigate protects
their adversaries from the expense and vexation attending
multiple lawsuits, conserves judicial resources, and
fosters reliance on judicial action by minimizing the
possibility of inconsistent decisions.
Conley v. Spillers, 301 S.E.2d 216, 220 (W. Va. 1983) (quoting
Montana v. United States, 440 U.S. 147, 153-54 (1979)). In West
7
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
Virginia, a lawsuit is barred by res judicata if the following three
elements are satisfied:
First, there must have been a final adjudication on the
merits in the prior action by a court having jurisdiction
of the proceedings. Second, the two actions must involve
either the same parties or persons in privity with those
same parties. Third, the cause of action identified for
resolution in the subsequent proceeding either must be
identical to the cause of action determined in the prior
action or must be such that it could have been resolved,
had it been presented, in the prior action.
Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 498 S.E.2d 41
(W. Va. 1997).
“A final decision [is one] that ends the litigation on the
merits and leaves nothing more for the court to do but execute the
judgment.” Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86 (2000)
(internal citation omitted). “An erroneous ruling of the court will
not prevent the matter from being res judicata.” Conley, 301 S.E.2d
216, Syl. Pt. 1. Privity contemplates that “the interests of the
party against whom preclusion is asserted have been adequately
represented.” W. Va. Human Rights Com’n v. Esquire Group, Inc., 618
S.E.2d 463, 469 (W. Va. 2005).
The third prong “is most often the focal point, since ‘the
central inquiry on a plea of res judicata is whether the cause of
action in the second suit is the same as the first suit.’” Beahm v.
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
7 Eleven, Inc., 672 S.E.2d 598, 602 (W. Va. 2008) (quoting Conley,
301 S.E.2d at 220). “‘[A] cause of action’ is the fact or facts
which establish or give rise to a right of action, the existence of
which affords a party a right to judicial relief.” Blake, 498 S.E.2d
at 48 (quoting White v. SWCC, 262 S.E.2d 752, 756 (W. Va. 1980)).
Indeed, “res judicata may operate to bar a subsequent proceeding
even if the precise cause of action involved was not actually
litigated in the former proceeding so long as the claim could have
been raised and determined.” Id. at 49.
In this regard, “it is imperative that the party bringing the
subsequent lawsuit was, during the prior action, able to foresee the
consequences of his/her failure to raise the subsequently raised
issue in the prior action.” Id. West Virginia uses the “sameevidence” approach to assess whether two claims are identical under
res judicata. “The test to determine if the issue or cause of action
involved in the two suits is identical is to inquire whether the
same evidence would support both actions or issues.” Syl. Pt. 4,
Slider v. State Farm Mut. Auto. Ins. Co., 557 S.E.2d 883 (W. Va.
2001)
(distinguishing
the
“transaction-focused
Restatement (Second) of Judgments).
9
test”
of
the
MOORE V. KNIPPENBERG, ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
A notable exception to claim preclusion occurs when a plaintiff
can allege that “fraud, mistake, concealment, or misrepresentation
by the defendant of the second suit prevented the subsequent
plaintiff from earlier discovering or litigating his/her claims.”
Blake, 498 S.E.2d at 49. “A claim of fraud upon the court is
reserved for only the most egregious conduct on the part of
attorneys . . . which causes the judicial process to be subverted.
It ordinarily does not relate to misrepresentation or fraudulent
conduct between the parties themselves.” Syl. Pt. 5, Savas v. Savas,
382 S.E.2d 510 (W. Va. 1989). In addition, courts may abstain from
“rigid enforce[ment]” of res judicata when doing so “would plainly
defeat the ends of Justice.” Blake, 498 S.E.2d at 50 (quoting Gentry
v. Farruggia, 53 S.E.2d 741, 742 (W. Va. 1949)).
LEGAL ANALYSIS
No genuine dispute of material fact precludes the conclusion
that each of the three prongs of the Blake test is satisfied here.
Moore’s current claims against Allstate, therefore, are barred as
a matter of law by the doctrine of res judicata.
I.
Final Adjudication on the Merits and the Same Parties
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
The first two requirements of the Blake test are easily
satisfied in this case. As for the first prong, Moore I qualifies
as a final adjudication on the merits. Blake, 498 S.E.2d 41, Syl.
Pt. 4. In Moore I, the Court granted summary judgment to Allstate
on the coverage issues and dismissed the remaining bad faith claims
with prejudice because, in order to proceed, they depended upon a
coverage ruling favorable to Moore (Moore I, Dkt. No. 48 at 8-10).
This order ended litigation on the merits and left “nothing more for
the court to do but execute the judgment.” Randolph, 531 U.S. at 86.
In addition, as required by the second prong of Blake, both Moore
and Allstate were named as parties in Moore I. Therefore, at least
to the extent that Moore’s claims against Allstate are the focus of
the instant motion, the two actions involve the same parties. See
Blake, 498 S.E.2d 41, Syl. Pt. 4.
II.
Cause of Action
The primary question presented is whether, under Blake’s third
prong, the cause of action here is identical to that raised in Moore
I; if not, is it of such a nature that it could have been presented
and resolved there? See Blake, 498 S.E.2d 41, Syl. Pt. 4. Allstate
argues that Moore II “is nothing more than a re-hash of the same
issues upon which Allstate has already prevailed” (Dkt. No. 70 at
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MOORE V. KNIPPENBERG, ET AL.
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
17). Moore, on the other hand, argues that the current claims are
different from those presented in Moore I,3 and in any event, they
could not have been resolved without the presence of Knippenberg and
Wilhelm as defendants (Dkt. No. 62 at 4-5).
A.
The question presented in this case is substantially similar
to that raised in Ash v. Allstate Insurance Co., No. 12-1533, 2013
WL 5676774 (W. Va. Oct. 18, 2013). There, the plaintiff, Mark Ash
(“Ash”), was involved in an automobile accident with Shirley Salmon
in 1992. Id. at *1. Allstate insured both drivers, and Ash’s
coverage included three vehicles, all with underinsured motorist
coverage (“UIM”). Id. When Allstate paid only the $50,000 UIM
single-vehicle limit, Ash filed suit in the Circuit Court of Kanawha
County, West Virginia, alleging that Allstate had assured him he
would be able to stack his UIM coverage up to $150,000. Id. After
Allstate removed the case to federal court, the District Court for
the Southern District of West Virginia declared that Ash was only
3
In making this argument, Moore misunderstands what
constitutes a “cause of action.” Bringing different claims for
relief does not necessarily convert a second suit into a different
cause of action. See Blake, 498 S.E.2d at 49.
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MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
entitled to the $50,000 he had already received. Id. Ash did not
appeal that judgment. Id. at *2.
However, later, in 2009, Ash filed a second lawsuit in the
Circuit Court of Marshall County, West Virginia. This suit added
Allstate employees as defendants and made essentially identical
claims with “the addition of an unjust enrichment allegation . . .
and a change in the theory of recovery for misrepresentation.” Id.
at *2, *4. After finding that the underlying facts were essentially
the
same
in
both
actions,
and
that
both
complaints
alleged
misrepresentation, fraud, and entitlement to stacked UIM coverage,
the Supreme Court of Appeals of West Virginia affirmed the circuit
court’s decision that Ash’s second suit was barred by the doctrine
of
res
judicata.
Id.
The
first
suit
involved
allegations
of
affirmative misrepresentation, the second claims of fraudulent
concealment. Id. The Supreme Court of Appeals reasoned that “both
cases involve[d] alternative theories to prove the same fundamental
cause of action-that [Ash] is entitled to stacked UIM coverage.” Id.
Because those allegations had been resolved in the first action, Ash
was not entitled to collaterally attack that ruling in a second
case. Id.
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1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
The holding in Ash is persuasive, given the facts in the
present case. Much like Ash, the facts relied upon by Moore in both
Moore I and the current litigation are substantially similar; both
complaints arise out of Allstate’s coverage of losses resulting from
the 2013 fire that destroyed Moore’s Burlington home. The first
complaint alleged breach of contract, violation of the covenant of
good faith and fair dealing, violation of the WVUCSPA, and punitive
damages (Moore I, Dkt. No. 1-2 at 7-10).
The instant complaint
omits the bad faith claim, alleging instead alternate theories of
negligent procurement of adequate insurance and negligent failure
to reform the policy (Dkt. No. 1-2 at 7-12). Nevertheless, the Court
perceives no difference in the evidence supporting the claims in
this suit that could justify characterizing it as a new cause of
action. Slider, 557 S.E.2d at 888.
B.
When viewed in the light most favorable to Moore, the only
“new” evidence he identifies affected neither his ability to make
the claims alleged in Moore I nor the outcome of the Court’s
decision there. In an effort to distinguish his claims here, Moore
points to a letter from Allstate, predating the fire that destroyed
his Burlington home, a fact he first learned about during the
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DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
pendency of Moore I, and that Allstate allegedly failed to produce
in discovery (Dkt. No. 62 at 2). That letter reflects that Moore had
changed his address to the Burlington home prior to the fire. Id.
Moore argues that withholding this letter amounts to fraudulent
conduct by Allstate, id. at 4; however, he overlooks that the
“fraud, mistake, concealment, or misrepresentation” in Moore I must
have prevented him “from earlier discovering or litigating his[]
claims” in order to bar the application of res judicata. Blake, 498
S.E.2d at 49.
To that end, like the litigant in Ash, Moore was aware of his
claims for negligent procurement and failure to reform and had the
opportunity to litigate them in Moore I, but did not do so. Indeed,
the gravamen of his complaint in Moore I was that the various
defendants knew about his change of address or request for different
insurance but failed to respond appropriately. After the coverage
issue was bifurcated in Moore I, Moore argued strenuously that
various failures by Allstate and its agents kept him from being
covered under a homeowner’s policy (Moore I, Dkt. No. 44). As the
Court has noted, however, Moore either failed to plead those claims,
or the arguments fell outside the scope of the coverage issue (Moore
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DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
I, Dkt. No. 48 at 8-10). In addition, Moore never sought to amend
his complaint, nor did he appeal the Court’s coverage ruling.
Although the Court is troubled by Moore’s representation that
the change-of-address letter was not produced during discovery (Dkt.
No. 62 at 2), its existence does not obviate the fact that Moore
failed to plead appropriate claims that were within his knowledge
in Moore I and, indeed, conceded that his claims against Allstate
depended on the coverage question being answered in his favor. None
of these failures was a consequence of Allstate’s alleged wrongful
withholding of the letter. See Blake, 498 S.E.2d at 49 (quoting
Restatement (Second) of Judgments § 26 cmt. j). In addition, while
the letter was before the Court on summary judgment in Moore I, it
was “wholly irrelevant to [its] decision.” See Hayes v. Brady, No.
15-0518, 2016 WL 3197435 (W. Va. June 8, 2016) (memorandum opinion
noting that an alleged misrepresentation to the court did not
preclude res judicata because the fact at issue did not affect the
court’s decision).4
4
Moore also takes issue with the fact that Allstate was
willing to accept liability for its agents on coverage issues but
not on negligent procurement or failure to reform (Dkt. No. 62 at
4). However, the Court has not identified, as required by a claim
of fraud on the court, any “egregious conduct . . . which cause[d]
the judicial process to be subverted” in Moore I, Savas, 382 S.E.2d
510, Syl. Pt. 5, nor did Moore ever make a motion alleging such
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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
Furthermore, Moore’s argument that the current claims could not
have been litigated in Moore I because Allstate’s agents, for whose
actions it is allegedly liable, were not defendants in the first
suit (Dkt. No. 62 at 5), is unavailing; it was by Moore’s own doing
that Allstate’s agents were absent from Moore I. His decision to
dismiss Knippenberg voluntarily as a defendant in order to pursue
his claims solely against Allstate does not allow him the privilege
of relitigating the same cause of action against Allstate now simply
by adding Knippenberg as a codefendant. The question is not whether
Allstate should be liable for the acts of its agents,5 but whether
Moore had the opportunity to litigate that liability in Moore I.
Blake, 498 S.E.2d at 49. The “imperative” aspect of Blake’s third
element has been met here. Moore “was, during the prior action, able
fraud. “[F]raud is never presumed but must be proved,” Haudenschilt
v. Haudenschilt, 39 S.E.2d 328, 338 (W. Va. 1946), and Moore has not
met his burden to prove that such “egregious conduct” took place.
Allstate’s obligation to defend the claims made against it in Moore
I and its subsequent motion to be dismissed from liability in this
suit on the basis of res judicata are not positions of such
inconsistence as to constitute fraud.
5
Although an agency relationship might affect a privity
analysis regarding claims against Allstate’s agents, see Gribben v.
Kirk, 466 S.E.2d 147, 157 n.21 (W. Va. 1995), Allstate’s status as
a principal does not affect the Court’s analysis of claims that
could have been brought against it in the prior suit.
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to
foresee
the
consequences
of
his[]
failure
to
raise
the
subsequently raised issue in the prior action.” Id.
C.
Moore’s argument that the “ends of justice” require the Court
to ignore the applicability of res judicata in this case is
unavailing. “[S]uch an exception must be based on ‘extraordinary
circumstances’
and
‘courts
should
be
loathe
to
exercise
this
power.’” State ex rel. Richey v. Hill, 603 S.E.2d 177, 184 (W. Va.
2004).6 It is far from plain that the preclusion of Moore’s current
claims against Allstate defeats the ends of justice, or defeats the
purpose of res judicata itself. Moore has failed to point to any
“extraordinary circumstance” that would justify departure from res
judicata in this case, and this Court has identified none.
6
For instance, the exception has been applied to certain
workers’ compensation cases to prevent injustice. See, e.g., White,
262 S.E.2d 752 (“Considering the scope and purpose of the Workmen’s
Compensation Act and the quasi-judicial proceeding in which claims
are decided, we cannot apply the principles of res judicata to bar
applications where the only obvious reason for rejection of the
original claim was that it was untimely filed.”); Kirby v. W. Va.
Office of Ins. Com’r, No. 110653, 2012 WL 3239376 (W. Va. June 27,
2012) (“Kirby suffers from this condition, and the diagnosis was
made following the subject compensable injury; accordingly, reliance
on res judicata would defeat the ends of justice.”).
18
MOORE V. KNIPPENBERG, ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING ALLSTATE’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 70] AND
DENYING ALLSTATE’S MOTION TO DISMISS AS MOOT [DKT. NO. 56]
CONCLUSION
Having failed to sufficiently plead and prosecute his prior
suit against Allstate, Moore attempts to remedy those errors in this
case by asserting claims that he believes may be more successful.
Such second chances, however, are what the doctrine of res judicata
is meant to prevent. “The underlying purpose of the doctrine of res
judicata was initially to prevent a person from being ‘twice vexed
for one and the same cause.’” Conley, 301 S.E.2d at 219. Therefore,
for the reasons discussed, the Court GRANTS Allstate’s motion for
summary judgment (Dkt. No. 70), denies Allstate’s motion to dismiss
as moot (Dkt. No. 56), and DISMISSES Moore’s claims against Allstate
WITH PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit a copy of this Order
to counsel of record.
DATED: November 18, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
19
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