West Virginia Record

Thursday, August 22, 2019

Supreme Court to hear legal malpractice case

By Steve Korris | Sep 1, 2006

CHARLESTON – After attorney Kenneth Chittum of Bluefield negotiated $74,300 in insurance payouts for Samantha Sells over a motorcycle crash, Sells fired Chittum and sued him on a claim of legal malpractice.

According to attorney Frank Venezia of Madison, Chittum failed to obtain an extra $25,000 to which Sells was entitled.

Now the West Virginia Supreme Court of Appeals must decide whether Chittum reached a fair deal or blew the case.

The Justices will hear arguments Sept. 6 from Venezia and McGinnis Hatfield Jr., of Bluefield, representing Chittum.

Venezia appealed to the Justices after Mercer County Circuit Judge Derek Swope threw out the malpractice claim.

Swope ruled that Sells could not prove any loss due to Chittum's representation.

The accident happened in 2000, as Sells shared a motorcycle ride with Billy Ray Lewis Jr. A Ford F-150 pickup cut in front of them and they wiped out.

Sells hired Chittum to press a claim against pickup driver Arnold Thomas.

Thomas carried a $50,000 liability policy through Nationwide Insurance. Nationwide, after paying $25,700 to others, paid Sells the remaining balance of $24,300.

Chittum also filed suit in Mercer County courthouse at Princeton, seeking payment for Sells from State Farm Insurance under a policy of her parents in Virginia.

State Farm moved for summary judgment in its favor.

Before the motion came to a hearing, Sells and State Farm settled for $50,000.

Sells then hired Venezia, who filed suit for Sells against State Farm to enforce payment under a provision of her parents' policy covering underinsured drivers.

Venezia also filed suit for Sells against Chittum, claiming that he failed to determine that Sells qualified for $75,000 in underinsured driver coverage.

Chittum moved for summary judgment last year, arguing that Sells could not allege malpractice because she prevailed in her claims.

Venezia argued that Chittum's negligence forced Sells to settle for less.

In May 2005 Swope granted summary judgment for Chittum. He ruled that Sells was not forced to settle.

Swope wrote, "It is beyond the province of this Court to speculate that a jury would have awarded the plaintiff the policy limits."

Venezia's appeal of Swope's order argued again that Sells was forced to settle.

He wrote, "Otherwise, she ran the serious risk of an adverse ruling from the court on State Farm's summary judgment motion, resulting in no coverage for her injuries."

He wrote that Sells could have presented compelling evidence that her claim was easily worth $75,000.

He wrote that Swope erred in closing the case before Chittum deposed attorney William Watson as an expert on legal malpractice.

Chittum, through attorney Hatfield, argued that he handled the case properly and Venezia did not.

Hatfield wrote that Sells signed a release that urged her in bold print and big letters to seek counsel for any other claims before the statute of limitations ran out.

He wrote, "Ms. Sells hired Frank Venezia, Esq., to pursue her claim prior to the running of the statute of limitations on her personal injury claim but he failed to do so."

He wrote that she could have refused to sign the release and cash the check.

He wrote, "Samantha Sells weighed the risk of the Court granting State Farm's motion for summary judgment and settled her claim as evidenced by her signing the applicable release and cashing the checks."

He argued that Swope committed no error in granting summary judgment before Chittum could depose Watson.

He wrote, "It is up to the discretion of the Defendant and the Defendant's counsel whether or not the defense wishes to take the deposition of the Plaintiff's expert."

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