Starcher files dissent during last days as justice

By John O'Brien | Jan 5, 2009


CHARLESTON - On his way off the state Supreme Court, former Justice Larry Starcher explained why he feels an Ohio man should be able to file a lawsuit against an Illinois-based insurance company in a West Virginia court.

Frank Savarese originally filed suit over a car accident in an Ohio court, but chose Ohio County, W.Va., to submit a second suit. This one alleged Allstate did not make Savarese's medical payments after the accident.

Savarese's attorney, David Jividen, is based in Wheeling, W.Va. The plaintiffs argued e-mail communication and telephone conversations, as well as other methods of exchanging information, between Allstate and Jividen gave the second suit a basis for being heard in West Virginia.

Only Starcher dissented when the justices sided with Allstate.

The scope of subject matter jurisdiction in the state's civil courts is "very broad," Starcher wrote in his dissent, released Dec. 30.

"We would be closing our eyes to the realities of modern business practices were we to hold that a corporation subjects itself to the jurisdiction of another state by sending a personal messenger into that state bearing a fraudulent misrepresentation but not when it follows the more ordinary course of employing the United States Postal Service as its messenger," Starcher wrote.

"Where a defendant knowingly sends into a state a false statement, intending that it should there be relied upon to the injury of a resident of that state, he has, for jurisdictional purposes, acted within that state."

New Chief Justice Brent Benjamin wrote the majority opinion, released in September.

"A mere communication to an attorney that a decision has been made, without more, cannot confer subject matter jurisdiction," Benjamin wrote.

"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."

Starcher, who chose not to run for re-election in 2008, obviously didn't agree. Menis Ketchum and Margaret Workman are taking the spots on the bench previously held by Starcher and Spike Maynard when the Court begins hearing cases this month.

"Of course, I recognize that the communications at issue in this case weren't directed to the appellant, but to the appellant's attorney in West Virginia," he wrote.

"But it was Allstate's communications to the attorney that were both the substance of the appellant's cause of action, and the sole means by which the appellant discovered Allstate's allegedly tortious and wrongful acts, making it fair to ask whether a communication with an attorney is comparable to a communication with the client."

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