CHARLESTON – Nationwide Mutual Insurance policyholders who sued the insurer in Jefferson and Marshall counties don't want anyone settling their claims in Roane County.
Five plaintiffs have asked the West Virginia Supreme Court of Appeals to vacate an order of Circuit Judge David Nibert, consolidating their cases into a Roane County case.
Nibert gathered 24 West Virginia cases into his court under rules allowing consolidation of claims arising from the same transaction or occurrence.
Nibert temporarily certified Roane County plaintiffs George and Stacy O'Dell as class representatives, so that Nationwide and plaintiffs could work toward a class settlement.
Three plaintiffs in two Jefferson County suits and two in a Marshall County suit refused to go along with the plan.
Their attorney, Victor Woods of Charleston, petitioned the Supreme Court of Appeals Aug. 2 for a writ of prohibition against Nibert.
Woods told the Justices the claims of his clients did not arise from the same transaction as the other claims.
Justices plan to hear oral arguments Wednesday, Nov. 1.
Chief Justice Robin Davis has disqualified herself because Woods works at the law firm of her husband, Scott Segal.
All the suits involve offers Nationwide mailed to policyholders in 1993 and 1999. Plaintiffs claim they received less coverage than the offer promised.
Under Nibert's plan, class members cannot opt out of any settlement pertaining to punitive damages. Woods's plaintiffs want to preserve the opportunity to opt out.
Nibert closed the opportunity to opt out under rules aimed at preventing unconstitutionally excessive awards of punitive damages.
Woods called this a remote theoretical possibility. He wrote that Nationwide has assets of more than $26 billion.
Attorney Todd Wiseman of Vienna, representing the O'Dells as class counsel, responded Aug. 26 that the Woods complaints were identical to his.
He wrote that Woods's clients sought individual gain at the expense of other class members.
He wrote that chaos would reign if different courts reached different conclusions.
Nationwide attorney Walter Jones III of Martinsburg wrote to the Justices Oct. 2 that Nibert already considered the arguments of the unhappy plaintiffs.
He wrote that consolidation avoids possible conflicts of judgments.
He wrote that a settlement proposal would require a fairness hearing where Nibert would consider the concerns of plaintiffs.