West Virginia Record

Thursday, April 2, 2020

Justices say attorney must face malpractice claim

By Steve Korris | Nov 22, 2006

CHARLESTON – Attorney Kenneth Chittum must defend himself against a claim of legal malpractice, the West Virginia Supreme Court of Appeals decided Nov. 9.

The Justices reversed Circuit Judge Derek Swope of Mercer County, who last year granted summary judgment in Chittum's favor.

The Justices unanimously gave former Chittum client Samantha Sells an opportunity to prove that she suffered loss due to Chittum's negligence.

In 2000, Sells rode as a passenger on a motorcycle that Billy Ray Lewis drove on Route 102 in Mercer County.

The bike crashed when a pickup truck driven by Arnold Thomas cut in front of it.

Sells suffered many injuries. The accident left her limping for life.

She retained Chittum to represent her in claims against Lewis and Thomas.

In a meeting with Chittum and an adjuster for Thomas's insurer, Nationwide Insurance, Sells said she was covered by her father's policy with State Farm Insurance.

Next, a State Farm representative told Chittum that Sells was entitled to medical payments under her father's policy.

Sells also qualified for $75,000 of coverage under a provision in her father's policy for accidents with underinsured motorists, but Chittum did not realize that.

Sells settled her claim with Nationwide for $24,300. Other parties exhausted the $50,000 liability limit.

Sells then fired Chittum and retained Frank Venezia of Madison.

Venezia filed suit for Sells against Chittum, charging professional negligence.

The suit included a claim against State Farm, seeking payment under the provision for underinsured motorists.

State Farm moved for summary judgment, arguing that Sells violated a policy exhaustion clause when Chittum settled her claim with Nationwide.

State Farm then settled Sells's claim for $50,000.

Venezia pursued the claim against Chittum, arguing that his negligence forced her to settle with State Farm at a disadvantage.

Swope threw out her claim. He found that Sells could not prove she suffered a loss as a result of Chittum's actions.

Swope wrote that he would not speculate about whether a jury would have awarded her the policy limit.

Sells appealed. Venezia represented her before the Justices. Gregory Matney of Tazewell, Va., represented Chittum.

In oral arguments, Justices described the State Farm settlement as almost a gift, noting that the insurer did not have to pay anything.

In their decision the Justices wrote, "... it is undisputed that the settlement with Nationwide was in violation of State Farm's policy exhaustion clause."

They wrote, "Such action necessarily affected a later settlement with State Farm due to the fact that Ms. Sells was in violation of State Farm's policy ..."

They disagreed with Chittum's argument that Sells could not prove a loss.

They wrote that Sells was seriously injured. They wrote, "She demonstrated approximately $35,000 in medical expenses and was left with a permanent limp."

They wrote that she may have been able to convince State Farm that her claim was worth $75,000, but Chittum's conduct denied her the opportunity.

The Justices remanded the case to Swope for further proceedings.

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West Virginia Supreme Court of Appeals