West Virginia Record

Friday, February 28, 2020

Judge wrongly transferred case, court finds

By Steve Korris | Jan 4, 2007


CHARLESTON – Thomas Taylor escaped at last from somebody else's class action in somebody else's courthouse.

It took almost two years.

The West Virginia Supreme Court of Appeals decided Nov. 30 that Circuit Judge David Nibert improperly transferred Taylor's suit against Nationwide Mutual Insurance from Jefferson County in January 2005.

Justice Spike Maynard wrote, "It is very likely that Mr. Thomas' case would have been resolved by now had it not been transferred to Roane County."

The Justices yanked two other cases from Nibert, sending one back to Marshall County and one to Jefferson County.

Nibert relied on West Virginia civil procedure allowing consolidation of suits from the same transaction or occurrence, but the Justices agreed he made a mistake.

Maynard wrote, "... we are unable to find that the cases are logically related such that it can be said that they arose out of the same transaction or occurrence."

The suits accuse Nationwide of luring customers with fraudulent offers through the mail in 1993 and 1999.

Maynard wrote, "... the fact that all of the plaintiffs received the mailings is simply not a sufficient basis by itself for mandatory transfer."

Taylor, unlike other plaintiffs, was not insured by Nationwide when the mailing reached him. His circuit court declared the mailing irrelevant to his suit.

Given that fact, Maynard wrote, there was no basis for transfer of his suit.

The Justices also freed Jefferson County plaintiffs Melody Johnson and Daryl Johnson and Marshall County plaintiffs Leonard Lucas and Iris Lucas from Nibert's court.

Maynard wrote that their claims involved different car accidents. That wrecked the case for a single transaction or occurrence.

The Justices discovered to their surprise that Taylor and the others received no advance notice of the transfers. The Justices made sure that won't happen again.

Maynard wrote that when anyone moves for transfer in consolidating cases from a single transaction or occurrence, everyone else must receive notice.

Anyone who receives a notice can object and request a hearing, he wrote.

Scott Segal and Victor Woods of Charleston represented all the escapees.

Chief Justice Robin Davis, Segal's wife, disqualified herself. Monongalia Circuit Judge Robert Stone replaced her.

Robert Aitcheson of Charles Town represented Taylor and the Johnsons.

Jay McCamic of Wheeling represented Leonard Lucas and Iris Lucas.

The lead plaintiffs in Nibert's court, George O'Dell and Stacy O'Dell, tried to keep Taylor and the others in their case.

Ralph Troisi of Waverly, Todd Wiseman of Vienna and William Kiger of Parkersburg represented the O'Dells.

Nationwide Mutual sided with the escapees. Walter Jones and Susan Snowden of Martinsburg represented the insurer.

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West Virginia Supreme Court of Appeals