Justices: Harrison Co. wrong venue for one defendant

By Kyla Asbury | May 22, 2015

CHARLESTON – The state Supreme Court says Harrison County is not the right venue for one of the defendants in a lawsuit.

The State of West Virginia, by Energy Corporation of America and John D. Sollon were the petitioners in the lawsuit and  the Hon. John Lewis Marks, Harrison Circuit Judge; Erin E. Gilmore; Erika L. Gilmore; and Ron R. Gilmore were the respondents.

Petitioners, Energy Corporation of America and John D. Sollon seek a writ of prohibition to halt enforcement of a Sept. 30 order of Harrison Circuit Court, according to the May 13 opinion.

Justice Menis Ketchum authored the majority opinion. Justice Robin Jean Davis dissented.

The circuit court's order pertained to a lawsuit against ECA stemming from a car wreck that occurred in Pennsylvania and the plaintiffs' lawsuit has two separate causes of action, each with a different defending party, including a negligence claim against ECA for causing the wreck and a bad faith claim against the plaintiffs' insurer for refusing to pay medical payments coverage for wreck-related injuries.

"The plaintiffs assert that they may join their claims against their insurer and ECA under the permissive joinder rule in West Virginia Rule of Civil Procedure 20(a)," the opinion states. "ECA argues that joinder of the plaintiffs’ insurer and ECA was improper under Rule 20(a)."

ECA further contends that because joinder was improper, the mere fact that Harrison County was a proper venue for the plaintiffs’ insurer did not make Harrison County a proper venue for ECA.

"After careful consideration, we grant the requested writ of prohibition as moulded," the opinion states. "As we discuss below, the circuit court improperly permitted the plaintiffs to join ECA with the plaintiffs' insurer, and it should have severed the two claims. Once severed, the circuit court should have dismissed the claims against ECA for lack of venue."

In 2012, the plaintiffs' car and one of the ECA's work trucks were involved in a wreck and in 2013, the plaintiffs filed a tort claim against ECA in Harrision County for negligently causing the wreck.

ECA timely filed a motion to dismiss on the grounds that Harrison County was not a proper venue and the circuit court dismissed the claim against ECA for improper venue.

The three plaintiffs claimed their auto insurance failed to either accept or reject their request to pay the medical bills and in 2014, they filed a bad faith claim against the insurer. The plaintiffs joined ECA as a co-defendant to their suit, seeking tort damages for the wreck.

ECA then filed a motion to sever for improper joinder and dismiss for improper venue and on Sept. 30, the circuit court denied ECA's motion to sever and held that ECA could be tried in Harrison County.

ECA then petitioned the court for a writ of prohibition.

"Neither party argues that the plaintiffs lacked a reasonable belief that they had a bona fide cause of action against their insurer," the opinion states. "We do not need to address this subject because application of the venue-giving defendant  principle was not initially proper and because substantial delay would not result in dismissing the claim against ECA for improper venue."

The court refrained from speculating on  the plaintiffs' good faith and stated that once the plaintiffs’ insurer is properly severed from the claim against ECA, there will be no venue-giving defendant in this action.

"Without a venue-giving defendant, Harrison County was not a proper venue for ECA," the opinion states. "Our holding in Syllabus Point Eleven of Lester ... required the circuit court to grant ECA’s motion. The circuit court’s failure to do so was clear error,  not correctable on appeal, and left ECA with no adequate means to obtain its desired relief other than to request a writ of prohibition."

The court found that the circuit court erred in denying ECA’s motion to sever and dismiss. and haulted the enforcement of the Sept. 30 order denying ECA's motion to sever for improper joinder and dismiss for improper venue.

"In addition, we direct the circuit court to sever and dismiss the plaintiffs’ claims against ECA," the opinion states. "Likewise, we grant ECA’s requested writ of prohibition as moulded."

The petitioners were represented by Michael P. Markins and Jennifer A. Lynch of Mannion & Gray Co. LPA.

The respondents were represented by David J. Romano of Romano Law Office.

W.Va. Supreme Court of Appeals case number: 14-1168

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