WEST VIRGINIA RECORD

WASHINGTON, D. C. – Two corporations have asked the U. S. Supreme Court to review a decision of the West Virginia Supreme Court of Appeals, allowing a Virginia man to sue them in West Virginia over injuries from an accident in Virginia.

Crown Equipment of Ohio and Jefferds Corporation of West Virginia want the Justices in Washington to revive a West Virginia law regulating access to the state's courts.

In June, three of five West Virginia Justices wiped the law off the books, ruling that it violated the U. S. Constitution.

They relied on Article IV, Section 2: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

Their decision would allow Jeremiah "Bart" Morris of Virginia to pursue an injury claim against Crown Equipment and Jefferds Corporation in West Virginia – unless the U. S. Supreme Court steps in.

The defendants petitioned the Justices in Washington for writs that would certify the decision for review.

Crown Equipment attorney Thomas Cullen of Baltimore warned in his petition that due to the decision, plaintiffs in other states would seek out West Virginians to sue.

He wrote, "…a statute which the West Virginia Legislature enacted to protect its citizens and its courts from suits which have no basis for litigation in the state, has become a statute which not only encourages such suits, but also provides an incentive to sue its residents…"

For Jefferds Corporation, attorney Brian Kane of Pittsburgh wrote that the decision allows residents of other states to sue in West Virginia, "as long as they can allege some plausible claim against at least one West Virginia resident."

He wrote, "…plaintiffs will rarely find it difficult to identify some corporation in the stream of commerce that does business in West Virginia."

Morris lived in Virginia and worked in Grottoes, Virginia.

He filed suit in 2004 at Kanawha County courthouse in Charleston, claiming he suffered an injury operating a forklift at work.

He claimed damages from Crown Equipment as the forklift manufacturer and Jefferds Corporation as the distributor responsible for service.

Crown Equipment and Jefferds Corporation moved to dismiss, relying on a law the Legislature passed in 2003.

The law provided that nonresidents could not sue "unless all or a substantial part of the acts or omissions giving rise to the claim asserted occurred in this state."

Circuit Judge Tod Kaufman dismissed the defendants in 2004.

Morris appealed under the Privileges and Immunities Clause.

Chief Justice Robin Davis and Justices Larry Starcher and Joseph Albright agreed that the law violated the clause.

Starcher wrote, "…there is a strong constitutional disfavoring of the categorical exclusion of nonresident plaintiffs from a state's courts under venue statutes when a state resident would be permitted to bring a similar suit."

Justice Brent Benjamin found no constitutional violation but agreed that Morris could pursue his claim in West Virginia.

Justice Spike Maynard dissented, declaring that the majority eviscerated a statutory safeguard against abuse of West Virginia courts.

In Crown Equipment's petition to Washington, Cullen wrote that courts consistently dismiss cases in which the only connection to the state is the location of a defendant's incorporation.

He wrote, "Here, while Jefferds is incorporated in West Virginia, its office in Verona, Virginia was responsible for every activity involving the subject forklift."

He wrote that the forklift has never been in West Virginia.

He wrote that all witnesses were presumably in Virginia, beyond
the subpoena power of a West Virginia court.

He wrote, "Crown's employees, the persons most knowledgeable about the design of Crown's forklift, are located outside of West Virginia."

He told the Justices the Supreme has Court upheld laws of other states restricting nonresidents in access to courts.

He wrote that in 1929 the Court found "manifest reasons for preferring residents in access to often overcrowded courts, both in convenience and in the fact that broadly speaking it is they who pay for maintaining the courts…'

He quoted a 1950 decision that "…if a state chooses to prefer residents in access to often overcrowded courts and to deny such access to all nonresidents, whether its own citizens or those of other states, it is a choice within its own control."

He wrote that 65 circuit judges serve West Virginia's 55 counties. He wrote that in 2004 circuit courts filed 32,299 civil cases.

He wrote that the Legislature passed the 2003 law in response to abuse of the state's open legal borders.

He wrote, "The case presently before the Court is precisely the type of lawsuit which the statute was intended to prevent…"

He wrote that Morris chose to sue in West Virginia because its courts have adopted a system of comparative liability, while Virginia adheres to a stricter doctrine of contributory negligence.

Kane in his petition for Jefferds Corporation deplored "magnet jurisdictions" with liberal tort laws, plaintiff friendly procedures and generous juries.

He called the decision of the Justices in Charleston "an abandonment of all rules of statutory interpretation and judicial restraint."

He wrote that it "creates a clear conflict with decisions by the highest courts of at least eight other states."

Kane replaced Lawrence Morhous of Bluefield as attorney for Jefferds Corporation. Morhous represented the company before the Supreme Court of Appeals.

For Crown Equipment, Michael Farrell of Huntington is counsel of record.

John Cooper of Barboursville represents Morris.