Pingley v. Perfection Plus Turbo-Dry, LLC

231 W.Va. 553

746 S.E.2d 544

Brandy PINGLEY, et al., Plaintiffs Below, Petitioners

v.PERFECTION PLUS TURBO–DRY, LLC, Defendant Below, Respondent.

No. 11–1605.

Supreme Court of Appeals of West Virginia.

Submitted: April 10, 2013.

Decided: April 26, 2013.

Syllabus by the Court

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “ ‘ “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.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. “Summary 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).

4. “Unconscionability is an equitable principle, and the determination of whether a contract or a provision therein is unconscionable should be made by the court.” Syl. Pt. 7, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).

5. “The doctrine of unconscionability means that, because of an overall and gross imbalance, one-sidedness or lop-sidedness in a contract, a court may be justified in refusing to enforce the contract as written. The concept of unconscionability must be applied in a flexible manner, taking into consideration all of the facts and circumstances of a particular case.” Syl. Pt. 4, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).

6. “An analysis of whether a contract term is unconscionable necessarily involves an inquiry into the circumstances surrounding the execution of the contract and the fairness of the contract as a whole.” Syl. Pt. 3, Troy Mining Corp. v. Itmann Coal Co., 176 W.Va. 599, 346 S.E.2d 749 (1986).

7. “A determination of unconscionability must focus on the relative positions of the parties, the adequacy of the bargaining position, the meaningful alternatives available to the plaintiff, and ‘the existence of unfair terms in the contract.’ Syllabus Point 4, Art's Flower Shop, Inc. v. Chesapeake and Potomac Telephone Co. of West Virginia, Inc., 186 W.Va. 613, 413 S.E.2d 670 (1991).” Syl. Pt. 6, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).

8. “Procedural unconscionability is concerned with inequities, improprieties, or unfairness in the bargaining process and formation of the contract. Procedural unconscionability involves a variety of inadequacies that results in the lack of a real and voluntary meeting of the minds of the parties, considering all the circumstances surrounding the transaction. These inadequacies include, but are not limited to, the age, literacy, or lack of sophistication of a party; hidden or unduly complex contract terms; the adhesive nature of the contract; and the manner and setting in which the contract was formed, including whether each party had a reasonable opportunity to understand the terms of the contract.” Syl. Pt. 17, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011).

9. “Substantive unconscionability involves unfairness in the contract itself and whether a contract term is one-sided and will have an overly harsh effect on the disadvantaged party. The factors to be weighed in assessing substantive unconscionability vary with the content of the agreement. Generally, courts should consider the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of the risks between the parties, and public policy concerns.” Syl. Pt. 19, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011).

Erika Klie Kolenich, Esq., Klie Law Offices, P.L.L.C., Buckhannon, WV, for Petitioners.

Rebecca A. Judy, Esq., Stephen G. Jory, Esq., McNeer, Highland, McMunn and Varner, L.C. Elkins, WV, for Respondent.

PER CURIAM:

The petitioners, Brandy Pingley, et al. (hereinafter “the petitioners” or “the Pingleys”), appeal from an order of the Circuit Court of Randolph County granting summary judgment in favor of the respondent, Perfection Plus Turbo–Dry, LLC (hereinafter “the respondent” or “Perfection Plus”), in a case where the petitioners asserted claims for personal injury and property damage arising from the respondent's alleged negligence in failing to detect and/or remediate mold in their home, following a sewer backup that flooded the home with water and waste. By order entered on September 15, 2011, the circuit court held that the contract between the parties, which included a “Mold/Mildew/Bacteria Waiver,” was neither unconscionable nor against public policy and was a complete bar to the Pingleys' claims. The court further held that the petitioners' claims were barred by the statute of limitations.

Based upon a careful review of the parties' briefs and arguments, the materials contained in the appendix record, and our relevant precedents, we affirm the judgment of the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

The facts which underlie this dispute were set forth in an earlier opinion in this case, Pingley v. Huttonsville Public Service District (“ Pingley I ”), 225 W.Va. 205, 691 S.E.2d 531 (2010):

The record indicates that in January or February of 2007, the Pingleys moved into their home in the East Daily area of Randolph County, West Virginia. The Pingleys allege that at approximately 2:00 a.m. on April 14, 2007, they awoke and found that their home was flooded with a substantial amount of sewage. The Pingleys contacted [Huttonsville Public Service District] to complain that the sewage backup in their home was caused by problems with HPSD's sewer system. As a result of the damage done to their home by the sewage backup, the Pingleys were forced to move out of their home for three and a half months.

HPSD, through its insurer, allegedly spent over $60,000.00 repairing the Pingleys' home and sewer line, and providing for the Pingleys during the repair period. The Pingleys believed that they were not adequately compensated for the damage caused by the sewage backup. Consequently, on June 9, 2008, the Pingleys filed the instant action against HPSD.

Id. at 206–07, 691 S.E.2d at 532–33 (internal footnotes omitted).

On December 11, 2008, the circuit court granted summary judgment in favor of the HPSD, which was reversed by this Court on the ground that the circuit court erred in ruling, as a matter of law, that an operator of a sewer system must have prior knowledge of a sewer problem before a duty arises to its customers. Id. at 209, 691 S.E.2d at 535.¹ Holding that the Pingleys had a right to conduct discovery in support of their claims that HPSD failed to properly maintain, inspect, and repair its sewer system, this Court reversed and remanded the case for further proceedings. Id. at 210, 691 S.E.2d at 536–37.

During the course of the proceedings on remand, the Pingleys alleged for the first time that the flood of sewage into their home was attributable not only to the HPSD but also to Perfection Plus, an entity which had been hired on April 16, 2007, to “perform Emergency and/or Restoration Services and any/all necessary Supplemental Services ... for damages to structure and/or contents sustained as a direct result of sewage backup occurring on 4/15/07.” The company completed its work on June 11, 2007.²

Consequently, on July 28, 2010, the Pingleys filed their Third Amended Complaint, bringing Perfection Plus into the case as a defendant. The Pingleys claimed that immediately after Perfection Plus completed its work, they smelled a “stench” and observed a run-off of water under the house, which they contend was the result of a trench dug by Perfection Plus. They further claimed that as a result of Perfection Plus' negligence, their house was contaminated with mold and the mold was causing petitioner Brandy Pingley severe health problems. ³

It is undisputed that prior to July 28, 2010, the date on which the Third Amended Complaint was filed, Perfection Plus had no knowledge of the ongoing proceedings against HPSD, and no knowledge that the petitioners were dissatisfied with Perfection Plus' services.

On September 15, 2011, the circuit court entered an order granting summary judgment to Perfection Plus on the grounds that the contract between the parties, which included a “Mold/Mildew/Bacteria Waiver,” was neither unconscionable nor against public policy, and that the petitioners' claims were barred by the statute of limitations. From this order, the Pingleys now appeal.⁴

II. STANDARD OF REVIEW

“A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). With regard to the circuit court's review of a motion for summary judgment, we have held:

“ ‘ “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.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).”

Syl. Pt. 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Further:

“Summary 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...