CHARLESTON – The West Virginia Supreme Court of Appeals has issued a ruling saying that Berkeley Circuit Court rightfully dismissed a lawsuit for failure to state a claim.
“Petitioner argues that the circuit court erred in dismissing the complaint because the circuit court, in applying the litigation privilege to petitioner’s claims, failed to consider the exceptions to that privilege and erred in concluding that petitioner could not assert a third-party bad faith cause of action under the West Virginia Human Rights Act,” the Sept. 5 memorandum decision states.
The Supreme Court affirmed that the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.
On Nov. 20, 2010, an accident occurred in which John Anthony Ottaviano ran over and killed Mark Anthony Ottaviano with his vehicle. State Farm Automobile Insurance Company insured the vehicle John Ottaviano was operating.
Mark Ottaviano’s estate filed a wrongful death action against John Ottaviano and State Farm. A jury returned a verdict in the amount of $190,000 to Mark Ottaviano’s estate. State Farm paid Mark Ottaviano’s estate the bodily injury policy limits of $100,000, plus costs.
Following the trial and resolution of the underlying lawsuit, Alexandra Ottaviano filed suit against Tiffany Durst, the attorney who represented John Ottaviano, and State Farm, alleging they were liable for damages under the West Virginia Human Rights Act.
Alexandra Ottaviano claimed that Durst and State Farm engaged in discriminatory practices by failing to competently investigate the underlying case and make a reasonable offer of settlement.
Durst moved to dismiss the petitioner’s complaint against her for failure to state a claim and, on May 27, 2016, the circuit court granted Durst’s motion to dismiss. Alexandra Ottaviano then appealed.
“The circuit court dismissed petitioner’s complaint against respondent upon finding that the litigation privilege barred suit against her because petitioner’s complaint failed to allege any conduct unrelated to the underlying lawsuit,” the decision states. “Petitioner asserts that the circuit court erred in dismissing the complaint on this ground because it failed to consider the exceptions to the litigation privilege.”
The exceptions to this privilege are claims of fraud and malicious prosecution, according to the Supreme Court decision. The petitioner’s complaint, however, contains no cause of action for fraud or malicious prosecution.
W.Va. Supreme Court of Appeals case number: 16-0714