State Supreme Court sends Ohio plaintiff packing

By John O'Brien | Sep 30, 2008


CHARLESTON - Having a West Virginia-based attorney who received communications from an insurance company does not mean an out-of-state plaintiff can file suit in West Virginia, the state Supreme Court recently ruled.

Frank Savarese, of Yorkville, Ohio, and his Wheeling lawyer argued that their suit against Allstate Insurance Co. could be filed in Wheeling, even though Savarese's original suit, filed over an automobile accident, was filed in Ohio.

Savarese sued Allstate for compensatory and punitive damages in 2006 because it allegedly failed to make payments for his medical treatment. During the first suit, Allstate routinely e-mailed his attorney, David Jividen.

"The claim was adjusted in offices located in Hudson, Ohio, and Birmingham, Ala. Any decisions involving whether to pay or to deny benefits under the policy were made at these locations," Justice Brent Benjamin wrote.

"The decisions were then simply communicated to the plaintiff's attorney, but they were already finalized before they were communicated.

"A mere communication to an attorney that a decision has been made, without more, cannot confer subject matter jurisdiction. To find differently would put the Defendants in a situation where they would either have to 1) submit to jurisdiction anywhere a claimant hires an attorney simply because they have a duty to communicate with the attorney, or 2) refuse to send correspondence to a claimant's attorney in order to preserve their jurisdictional defenses, but possibly give rise to additional bad faith claims for failure to communicate."

Justice Larry Starcher dissented and reserved the right to file an opinion of his own.

The Ohio County Circuit Court in Wheeling also sided with Allstate.

Savarese claimed that because communications between his attorney and Allstate occurred primarily in Wheeling, that the part of West Virginia law that says a suit can be filed there when "all or a substantial part of the acts or omissions giving rise to the claim" was satisfied.

"(W)e now hold that the retention by Mr. Savarese, an Ohio resident, of a West Virginia attorney to pursue medical payment claims under an Ohio insurance contract for an injury sustained in Ohio is insufficient to establish venue under W. Va. Code § 56-1-1(c) for a cause of action governed by Ohio law arising from the denial of payment of such medical claims where no party to the action is a West Virginia resident," Benjamin wrote.

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