WEST VIRGINIA RECORD

CHARLESTON – Attorney Frank Venezia of Madison explained a confusing malpractice suit against attorney Kenneth Chittum of Bluefield to the West Virginia Supreme Court of Appeals, but he would rather not explain it to a jury.

In oral arguments Sept. 6, Justice Larry Starcher asked Venezia if he would try the case before a jury or a judge.

Starcher said, "It is pretty complex for a jury."

Venezia said, "I would not oppose a bench trial."

The complexity of the claim tripped up The West Virginia Record, which scrambled the facts last week in a preview of the hearing.

The Record reported that Chittum negotiated $74,300 in insurance payouts for Samantha Sells, who suffered injuries in a Mercer County traffic accident in 2000.

In fact, Chittum negotiated a $24,300 payout. After Sells fired him, Venezia negotiated a $50,000 payout.

The first payout came from Nationwide Insurance, which covered the driver who caused the crash.

The second came from State Farm, which insured Sells's parents. That policy provided up to $75,000 for accidents caused by underinsured drivers.

After the second payout Sells sued Chittum. She claimed she would have received the full extent of State Farm coverage if not for Chittum's negligence.

Venezia argued that Sells was forced to settle because State Farm had moved for summary judgment against Sells in her claim for coverage.

Mercer County Circuit Judge Derek Swope threw out the malpractice claim, ruling that Sells could not prove any loss due to Chittum's representation.

Sells appealed.

Before the Supreme Court of Appeals, Venezia described the injuries Sells suffered. He said she still walks with a limp.

Chief Justice Robin Davis said, "And she settled."

Venezia said she was forced to settle. He said State Farm's motion for summary judgment made it likely that she would get nothing.

Davis asked if Chittum had malpractice insurance. Venezia said he did not. He said, "That is always a problem."

Justice Brent Benjamin asked if Sells was constrained in her ability to go after a payment under the underinsured coverage. Venezia said yes.

Chittum's attorney, Gregory Matney of Tazewell, Va., told the Justices that trial lawyers always want the full extent of coverage.

He said, "Trial lawyers settle cases all the time. Many times we\ can't get the extent of coverage."

Davis said, "I would have more sympathy if Mr. Venezia had not settled. We have Mr. Chittum held for something Mr. Venezia did."

Matney said, "We are here appealing a settlement." He said Sells wanted State Farm to roll out the extent of coverage.

Justice Spike Maynard said, "The fifty thousand is almost a gift."

Matney said that under Virginia law, it was almost a gift. He said State Farm could have applied Virginia law because Sells's parents lived there and bought the policy there.

Maynard summarized Sells's injuries and said, "There is probably not enough money in the world to make that right."

The Justices will weigh the arguments and issue a written decision.