Monongalia Court affirmed in denying Westfield Insurance trial motions

By Nathan Bass | Nov 28, 2012



CHARLESTON – The West Virginia Supreme Court affirmed the Circuit Court of Monongalia County’s denials of Westfield Insurance Co.’s motions to substitute a witness and to continue a trial.

The high court also affirmed a subsequent judgment as a matter of law for the defendant in the suit Westfield had brought against a former renter of a property the insurance company had insured.

The memorandum opinion was concurred in by all members of the Court: Chief Justice Menis E. Ketchum and Justices Robin Jean Davis, Brent D. Benjamin, Margaret L. Workman and Thomas E. McHugh.

According to background information in the case, defendant Michael Azumah rented an apartment from Dean and Karen Starkey and in January of 2009, while Azumah was out of the country, the pipes in the apartment burst and the property flooded.

Westfield Insurance insured the property for the Starkeys and the insurance company filed suit against Azumah in an attempt to recover the costs of repairing the damage. The Starkeys filed a related breach of contract suit against Azumah and the cases were consolidated - but the Starkeys and Azumah  settled their contract dispute on the first morning of trial.

“Also that morning, prior to the commencement of trial, the circuit court denied petitioner’s motion to substitute a witness and motion to continue," court documents state. "Following the presentation of petitioner’s case-in-chief, respondent moved for judgment as a matter of law, which the circuit court granted.”

Petitioner Westfield then appealed to the Supreme Court on the denial of the two motions and the judgment as a matter of law.

On the denial of the motion to substitute witnesses, the Court wrote, “Petitioner sought to replace one Westfield representative with a second Westfield representative who was going to testify to business records, including the subject policy and payments petitioner made to its insured.

"Respondent argues that the witness was unavailable despite knowledge of the trial date several months in advance. According to respondent, it would be inherently unfair to allow petitioner to substitute a witness on the morning of trial when he was fully prepared to defend the case”

The circuit court noted that it denied petitioner’s motion because it failed to file a pre-trial memorandum, a final witness and exhibit list, and that the motion to substitute was not filed in a timely fashion, court records show.

The circuit court also noted that it was “simply unwilling to allow a party to announce a change of witnesses, quite literally on the eve of trial, when that party’s witness (an employee) decides to spend vacation time in Myrtle Beach during trial," according to the ruling.

Westfield also argued that the circuit court was wrong not to allow a continuance of the trial in light of the denial of the motion to substitute witnesses. 

“According to petitioner, the circuit court could have considered sanctions or other remedies against petitioner’s counsel in regard to the motion to substitute instead of denying the motion to continue,” the opinion states.

"Respondent argues that he expended considerable sums in airfare, lodging, food, and other travel from Texas just to attend the trial … petitioner was not prejudiced by the circuit court denying the motion to continue, as petitioner lost a relatively small sum of money in relation to its overall revenue.

"In denying this motion, the circuit court noted that respondent 'traveled from Texas, at considerable cost, to defend [petitioner’s] action . . .,' and further relied on the same factors related to petitioner’s non-compliance with the pre-trial order as outlined above."

Lastly, Westfield argued that the trial court should not have granted Azumah “judgment as a matter of law” because the testimony of property owner Karen Starkey and others supported their proposition that Azumah was negligent.

“Respondent argues that petitioner failed to offer even one piece of evidence to support its claim for damages, despite the requirement that a plaintiff must prove by explicit calculation allegations of damages that are a 'sum certain'… petitioner simply failed to offer into evidence any receipt, invoice, canceled check, or bill proving its claim that it paid out money to the Starkeys, despite its affirmative duty to produce the same,” the opinion states.

"In short, the circuit court found that petitioner failed to introduce any evidence (1) that it was obligated to pay the Starkeys for damage to the property, (2) that is was entitled to reimbursement from respondent, or (3) upon which a jury could determine compensatory damages with reasonable certainty.”


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