Benjamin

CHARLESTON -- The West Virginia Supreme Court of Appeals has found that a lower court erred in dismissing a case in which two Canadian residents died in a 2008 plane crash in Virginia, 20 miles from the West Virginia border.

In an opinion filed Wednesday, the Court reversed the decision of the Kanawha Circuit Court and remanded the action to the lower court.

The appeal arose from the dismissal of a wrongful death action by the circuit court, for lack of personal jurisdiction over the defendant and for forum non conveniens.

The plaintiff in the case is Edith Nezan, a resident and citizen of Canada and the mother of Margaret O'Brien, one of the two people killed in the plane crash.

The defendants listed are Shashi Sanwalka, also a resident and citizen of Canada and the father of Aditya Roy Sanwalka, the other victim of the crash; and Aries Technologies, Inc., a Canadian corporation and part-owner of the airplane that crashed in this case. Roy Sanwalka was the other part-owner.

Roy Sanwalka was piloting the Mooney M20C Ranger when it crashed on March 16, 2008 in or near the Jefferson National Forest in Atkins, Va. According to Court documents, he possessed a Canadian private pilot's license, but the license did not include an instrument rating.

Two days before the crash, on March 14, Roy Sanwalka and his girlfriend, O'Brien, left Canada, heading to the Bahamas. The airplane stopped in Buffalo, New York.

The next day, Roy Sanwalka and O'Brien took off from Buffalo International Airport. While in the air, Roy Sanwalka encountered adverse weather and made an unplanned stop at Yeager Airport in Charleston.

The two stayed overnight and returned to the airport on March 16. While at the airport, Roy Sanwalka refueled the airplane, and despite not being certified with an instrument rating, filed an Instrument Flight Rules, or IFR, plan, documenting his intention to travel to Florida on his way to the Bahamas.

Just 18 minutes after departing the airport and while still over West Virginia, Roy Sanwalka contacted air traffic controllers requesting permission to drop to a lower altitude because of airframe icing on his airplane.

Eleven minutes after that radio conversation, he contacted the air traffic controllers again, saying his airplane was going down. Shortly after, the airplane in which Roy Sanwalka and O'Brien were traveling crashed, killing both occupants instantly.

Following the crash, Nezan, on behalf of her daughter, filed a wrongful death suit against Roy Sanwalka, through his estate, in Kanawha Circuit Court

In it, she alleged that Aries Technologies, Inc., and Roy Sanwalka "caused tortious injury by acts and/or omissions in the State of West Virginia, including the acts which directly and proximately caused the death of Margaret O'Brien."

Nezan alleged Roy Sanwalka made a decision while in Charleston to resume the flight toward the Bahamas in adverse weather despite his knowledge of the airplane's propensity to have difficulty when its wings became iced. This decision resulted in the death of both pilot and passenger, she claimed.

In regard to Aries Technologies, the complaint alleged the corporation is jointly and severally liable for the negligent acts of the pilot under the theory that the airplane was owned by Aries Technologies and that Roy Sanwalka was at all times acting as the agent of the corporation.

By order entered Sept. 16, 2009, the Kanawha court dismissed the complaint of the appellant.

The court first concluded that there was no jurisdiction over the respondents under the West Virginia long-arm statute, as well as insufficient minimum contacts for the court to act even if this state had jurisdiction.

The court found that two alternate forums existed in which to bring the claims of the appellant; first, the state of Virginia, where the airplane crash happened; and second, in Canada, where all of the parties reside.

The lower court also found that the cause of action in this case accrued when the airplane crashed in Virginia. The sole contact the appellee's decedent had with West Virginia, according to the court, was the unplanned stop. Once the airplane was refueled, the planned trip to the Bahamas continued. Thus, the court reasoned, Virginia, not West Virginia, is the state where the cause of action accrued.

The appellant filed an appeal to the circuit court's order. On March 4, 2010, the Supreme Court accepted the appeal for further consideration.

Justice Brent Benjamin, who authored the Court's opinion, wrote that while the pilot's time in West Virginia "was brief," it was "not fleeting."

"It was here where the cause of action arose," the justice wrote.

"On top of availing himself of West Virginia's airport facilities, he made certain decisions while in West Virginia that, when considered in the light most favorable to the plaintiff, led directly to the death of himself and Ms. O'Brien," Benjamin wrote for the Court. "He filed a flight plan that, in the eyes of the appellant's expert, was ill-advised and was perhaps unlawful."

Roy Sanwalka, the Court said, departed from the airport and chose not to return to Charleston when the plane's airframe became iced.

In regards to Aries, the Court said it is "undisputed" that the company never did business in the state. However, Benjamin wrote, "it did own the airplane that was being used by its alleged agent and employee Roy Sanwalka, who at the very least is a part-owner of the corporate entity and who was alleged to have been negligent in his operation of said aircraft."

The Court said it is not unreasonable to conclude that Aries "had sufficient minimum contacts" to warrant West Virginia's assertion of jurisdiction.

"Although Roy Sanwalka was in West Virginia for less than a day, what transpired in that time resulted in sufficient minimum contacts to support an assertion of jurisdiction over this matter by West Virginia," the Court concluded.

The Court also ruled that the circuit court "abused its discretion" in finding that West Virginia was not the appropriate forum for the civil action.

"We find that the Circuit Court of Kanawha County erred by dismissing this complaint for forum non conveniens. The appellant is entitled to be heard in Kanawha County," it concluded.




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