BECKLEY - A lawsuit against 2002 lottery winner Jack Whittaker involving an insurance company claiming he and others owe nearly $400,000 has been sent to Raleigh Circuit Court from Fayette Circuit Court.
Diversified Enterprise Inc.; Whitaker Equipment Inc.; Andrew Jack Whittaker; Jewell Whittaker; Margarett Dennett; Michael Dennett; and John Whittaker were all named as defendants in the suit.
On May 26, an order removing the case to Raleigh Circuit Court was filed.
After reviewing the plaintiff's motion, hearing arguments from the parties and upon mature consideration, the court ordered that the defendant's motion to dismiss was denied and that the plaintiff's motion to remove case to Raleigh County was granted.
On April 24, the plaintiffs filed a response to the defendant's motion to dismiss and a motion to remove the case to Raleigh Circuit Court.
"As raised in the defendants' motion to dismiss, it appears that the address used by the plaintiff is just over the Raleigh County line in Mount Hope," the motion to remove states. "[The] plaintiff was not forum shopping, but rather the suit was filed in Fayette County based on what it believed to be a Fayette County address. The plaintiff points out that all parties likely have sufficient business contacts in Fayette County to warrant venue in Fayette County..."
However, the plaintiff concedes that venue is likely more proper in Raleigh County, according to the motion to remove.
The case, which was originally filed in Fayette Circuit Court, was removed to Raleigh Circuit Court after the defendants filed a motion to dismiss for improper venue.
The motion to dismiss for improper venue was filed on June 21, 2013.
"Dismissal of the plaintiff's complaint is warranted because the Circuit Court of Fayette County, West Virginia, is not the proper venue for the above-styled civil action," the motion states. "Specifically, venue cannot be established in the Circuit Court of Fayette County...because none of the individual defendants in this matter are residents of Fayette County and none of the corporate defendants maintain a principal office in Fayette County."
Furthermore, no cause of action alleged on the plaintiff's complaint arose in Fayette County, according to the motion.
International Fidelity Insurance Company claims on May 15, 2001, the defendants executed and delivered an agreement of indemnity and, pursuant to that agreement, agreed to indemnify the plaintiff in the event claims were paid by the plaintiff for payment and performance bonds related to various construction projects, according to a complaint filed May 17, 2013, in Fayette Circuit Court and removed to Raleigh Circuit Court in June.
The defendants have failed and refused to indemnify IFIC per the terms of the agreement for amounts paid in the sums of $10,500, $10,154.97 and $38,110.70, for a total sum of $310,923.59, plus combined interest in the amount of $70,570.37 for a total of $381,493.96.
IFIC is seeking judgment in the amount of $381,493.96, with pre- and post-judgment interest. IFIC is being represented by Ryan S. Marsteller of Bailes, Craig & Yon PLLC.
The defendants are being represented by Wesley V. Queen and Tristan Clark-Bragg.
On Christmas 2002, Whittaker won a then-record $314 million Powerball drawing. He elected to take the cash option of $170.5 million cash, which resulted in a $113 million check after taxes.
Legal troubles began soon after that. In 2003, thieves broke into his car at a strip club in Cross Lanes and took a suitcase that held $545,000. In 2004, thieves again broke into his car and took about $200,000. That was later recovered.
He later was sued by Caesars in Atlantic City for bouncing $1.5 million worth of checks. He countersued, claiming he was supposed to have been credited due to a slot machine he developed.
In 2007, Whittaker claimed thieves had taken all of his money from 12 branches of City National Bank. He made that claim after failing to make payments to a woman who had sued him.
Several of Whittaker’s businesses also have been sued over the years.
Raleigh Circuit Court case number: 14-C-557