January 2003 Term
_____________
No. 31321
_____________
APRIL L. KING and DAVID A. KING,
as parents and natural guardians of
EMILY KING, a minor,
Plaintiffs Below, Appellants
v.
DAVID HEFFERNAN, M.D.;
CABELL HUNTINGTON HOSPITAL, INC.,
a West Virginia corporation; and
THE UNIVERSITY OF WEST VIRGINIA
BOARD OF TRUSTEES,
Defendants Below, Appellees.
______________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 01-C-3328
REVERSED AND REMANDED
_____________________________________________________
Submitted: October 8, 2003
Filed: December 3, 2003
|
William S. Druckman, Esq. Madonna C. Estep, Esq. The Law Offices of William S. Druckman Charleston, West Virginia Attorneys for Appellants
David L. Shuman, Esq. |
Thomas L. Craig, Esq. Rebecca C. Brown, Esq. Todd A. Biddle, Esq. Bailes, Craig & Yon Huntington, West Virginia Attorneys for Appellee Cabell Huntington Hospital, Inc.
Stephen Burchette, Esq. |
JUSTICE McGRAW delivered the Opinion of the Court.
1. “'Appellate review of a circuit court's
order granting a motion to
dismiss a complaint is de novo.' Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syl. pt. 1, Bradshaw v. Soulsby,
210 W.Va. 682, 558 S.E.2d 681 (2001).
2. “The
exclusive venue provision of W.Va. Code §14-2-2 is not applicable to a cause
of action wherein recovery is sought against the liability insurance coverage
of a state agency. ” Syl. pt. 3, Pittsburgh Elevator Co. v. W.Va. Bd. of Regents, 172
W.Va. 743, 310 S.E.2d 675 (1983).
3. Because W.Va. Code §14-2-2 does not exclusively govern claims in
which recovery is sought against the liability insurance coverage of a state agency, venue for
such claims is proper under either W.Va. Code §14-2-2 or W.Va. Code §56-1-1.
McGraw, Justice:
This case is before this Court on appeal by April L. King and David A. King,
as the parents and natural guardians of their daughter, Emily King, a minor (“Appellants”),
from an order of the Circuit Court of Kanawha County, which dismissed for lack of venue
Appellants' medical negligence claim against Appellees David Heffernan, M.D., Cabell
Huntington Hospital, Inc., and the University of West Virginia Board of Trustees
(hereinafter collectively referred to as “Appellees”).
For the reasons discussed herein, the order of the circuit court, entered
October 3, 2002, is reversed and this case is remanded for further proceedings.
On February 14, 2002, the circuit court entered an Agreed Order Amending the
Complaint, which ordered the complaint be amended to include specific language indicating
that Appellants seek recovery from the West Virginia Board of Trustees “under and up to the
limits of the state liability insurance coverage as acquired under the authority of West
Virginia Code §29-12-5.” Agreed Order Amending the Complaint, entered February 14,
2002.
Subsequently,
Appellee University of West Virginia Board of Trustees filed a motion to
dismiss, or in the alternative, for a transfer of venue, arguing
that University
of West
Virginia Board of Trustees “no longer exists as an entity and did not exist at the time
of the filing of the Plaintiffs' Complaint and Amended Complaint,” and that “[a]ll duties and
obligations of [The University of West Virginia Board of Trustees] had been transferred by
statute to another state entity, the Marshall University Board of Governors, prior to the filing
of Plaintiffs' Complaint and Amended Complaint.”
(See footnote 2) Defendant, The University of West Virginia Board of Trustees' Motion to Dismiss, or in the Alternative, for a Transfer of Venue,
filed June 12, 2002. Appellee University of West Virginia Board of Trustees argued further
that “[v]enue is not proper in Kanawha County as all the Defendants, including the Marshall
University Board of Governors (improperly sued as [University of West Virginia Board of
Trustees]) are residents of Cabell County.” Id.
By order entered October 3, 2002, the circuit court dismissed the instant action, finding that
The University of West Virginia Board of Trustees has been
statutorily abolished, and that the same has been replaced by the
individual institutional boards of governors for various colleges
and universities, including the Marshall University Board of
Governors. For purposes of the instant lawsuit, the Marshall
University Board of Governors has the statutory right to sue and
be sued. This body governs Marshall University only, and,
while it is a state agency for immunity purposes, is not such a
'state agency' as to confer venue to Kanawha County.
Order, entered October 3, 2002.
The circuit court concluded that, therefore, venue was improper in the Circuit
Court of Kanawha County, but, instead, properly lies in the Circuit Court of Cabell County.
Id. It is from this order that Appellants now appeal.
“'Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.' Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syl. pt. 1, Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681 (2001).
Ordinarily, W.Va. Code §14-2-2 exclusively governs the issue of venue when a state agency is named as a party defendant. See Syl. pt. 5, State ex rel. W.Va. Bd. of Educ. v. Perry, 189 W.Va. 662, 434 S.E.2d 22 (1993) (“'Actions wherein a state agency or official is named, whether as principal party or third-party defendant, may be brought only in the Circuit Court of Kanawha County.' Syllabus Point 2, Thomas v. Bd. of Educ., County of McDowell, 167 W.Va. 911, 280 S.E.2d 816 (1981).”); West Virginia Bd. of Medicine v. Spillers, 187 W.Va. 257, 259-60, 418 S.E.2d 571, 573-74 (1992) (“jurisdiction of writs of mandamus and prohibition against [a state agency or official] is appropriate only in the Circuit Court of Kanawha County in accordance with . . . W.Va. Code §14-2-2.”); Syl. pt. 5, Shobe v. Latimer, 162 W.Va. 779, 253 S.E.2d 54 (1979) (“When a state officer is properly made a party defendant in a civil action, venue is controlled and determined by W.Va. Code §14-2-2.”). (See footnote 4) W.Va. Code §14-2-2 provides, in pertinent part:
(a) The following proceedings shall be brought and prosecuted
only in the circuit court of Kanawha County:
(1) Any suit in which the governor, any other state officer, or a
state agency is made a party defendant, except as garnishee or
suggestee.
In the instant case, however, Appellees argue that the exclusive venue
provision of W.Va. Code §14-2-2 does not apply because Appellants seek to recover under
the state's liability insurance policy. Pittsburgh Elevator Co. v. W.Va. Bd. of Regents, 172
W.Va. 743, 310 S.E.2d 675 (1983). Appellees argue that, instead, venue should be
determined solely under the general venue provisions of W.Va. Code §56-1-1,
(See footnote 5)
which, in this
case, would confer venue only in the Circuit Court of Cabell County.
(See footnote 6)
In Pittsburgh Elevator, the plaintiffs instituted an action for damages in the
Circuit Court of Monongalia County against, among others, the West Virginia Board of
Regents, a state agency, and sought recovery against the State's liability insurance coverage.
The Circuit Court of Monongalia County dismissed the complaint against the Board of
Regents on the ground that a proceeding against a state agency may only be brought in the
Circuit Court of Kanawha County, under W.Va. Code §14-2-2.
On appeal in Pittsburgh Elevator, this Court declined to apply W.Va. Code §14-2-2 as the exclusive venue provision because the claim in that case was, in essence, against the Board of Regents' insurance carrier. We explained the “'manifest purpose'” of W.Va. Code §14-2-2
'is to prevent the great inconvenience and possible public
detriment that would attend if functionaries of the state
government should be required to defend official conduct and
[the] state's property interests in sections of the commonwealth
[sic] remote from the capital.' Thus, where the real party in
interest is the insurance carrier which is obliged to defend the
action brought against the Board of Regents, there is no rational
justification for application of W.Va. Code §14-2-2.
Pittsburgh Elevator, 172 W.Va. at 757, 310 S.E.2d at 689 (quoting Davis v. W. Va. Bridge
Comm., 113 W.Va. 110, 113, 166 S.E. 819, 821 (1932).). Accordingly, in syllabus point 3,
we held:
The exclusive venue provision of W.Va. Code §14-2-2 is not
applicable to a cause of action wherein recovery is sought
against the liability insurance coverage of a state agency.
Id.
Appellees herein argue that because the medical negligence claim did not arise
and none of the Appellees reside in Kanawha County and because Appellants seek to recover
under the State's liability insurance policy, syllabus point 3 of Pittsburgh Elevator dictates
that Appellants are precluded from suing Marshall University Board of Governors in the
Circuit Court of Kanawha County.
(See footnote 7)
We decline to construe Pittsburgh Elevator so narrowly.
It is clear from syllabus point 3 of Pittsburgh Elevator that W.Va. Code §14-2-2
does not exclusively govern the question of venue where, as in the instant case, recovery is
sought against the liability insurance carrier of a state agency. By the same token, however,
this Court will not foreclose a plaintiff from prosecuting a claim against a state agency in the
circuit court of the county in which the seat of state government is located simply because
the state's liability insurance coverage is implicated. Rather, under such circumstances,
venue properly lies under the venue provisions of either W.Va. Code §14-2-2 or W.Va. Code
§56-1-1; of course, the choice of venue belongs to the plaintiff. See State ex rel. Riffle v.
Ranson, 195 W.Va. 121, 127-28, 464 S.E.2d 763, 769-70 (1995)
(explaining that “it has been
the policy in this State and country that, unless a statute provided otherwise, the plaintiff's
choice of forum should rarely be disturbed.” (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947).).
To clarify our holding in Pittsburgh Elevator, we hold that because W.Va. Code
§14-2-2 does not exclusively govern claims in which recovery is sought against the liability
insurance coverage of a state agency, venue for such claims is proper under either W.Va.
Code §14-2-2 or W.Va. Code §56-1-1. In the instant case, venue properly lies in the Circuit
Court of Kanawha County. Therefore, it was reversible error for the circuit court to dismiss
this case on the ground of improper venue.
Upon remand, Appellants should amend their Complaint to substitute Marshall
University Board of Governors as a proper party defendant, under W.Va.R.Civ.P. 15
(“Amended and supplemental pleadings”). Rule 15(a) requires that leave to amend “shall
be freely given when justice so requires.” Id., in relevant part. The purpose of this phrase
'is to secure an adjudication on the merits of the controversy as
would be secured under identical factual situations in the
absence of procedural impediments; therefore, motions to
amend should always be granted under Rule 15 when: (1) the
amendment permits the presentation of the merits of the action;
(2) the adverse party is not prejudiced by the sudden assertion of
the subject of the amendment; and (3) the adverse party can be
given ample opportunity to meet the issue.' Syllabus Point 3,
Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973).
Syl. pt. 5, in part, Brooks v. Isinghood, __ W.Va. __, 584 S.E.2d 531 (2003). See
id.,
__W.Va. at __, 584 S.E.2d at 540 (“The goal behind Rule 15. . . is to insure that cases and
controversies be determined upon their merits and not upon legal technicalities or procedural
niceties.” (Citation omitted)).
According to the Complaint, the alleged negligence in this case occurred in
September 2000. Thus, Appellants will be changing a party against whom the negligence
claim is asserted after the statute of limitations has expired. Rule 15(c) “'expressly provides
that an amendment that changes the parties relates back to the date of the original pleading,
thereby avoiding the effect of the statute of limitations if _ but only if_certain conditions are
satisfied.” Brooks, __ W.Va. at __, 584 S.E.2d at 540 (quoting Peneschi
v. Nat'l Steel Corp.,
170 W.Va. 511, 523, 295 S.E.2d 1, 13 (1982) (emphasis provided).). This Court set forth
those conditions in syllabus points 4, 8 and 9 of Brooks, supra:
4. Under Rule 15(c)(3) of the West
Virginia Rules of Civil
Procedure [1998], an amendment to a complaint changing a
defendant or the naming of a defendant will relate back to the
date the plaintiff filed the original complaint if: (1) the claim
asserted in the amended complaint arose out of the same
conduct, transaction, or occurrence as that asserted in the
original complaint; (2) the defendant named in the amended
complaint received notice of the filing of the original complaint
and is not prejudiced in maintaining a defense by the delay in
being named; (3) the defendant either knew or should have
known that he or she would have been named in the original
complaint had it not been for a mistake; and (4) notice of the
action, and knowledge or potential knowledge of the mistake,
was received by the defendant within the period prescribed for
commencing an action and service of process of the original
complaint.
8. 'Where a plaintiff seeks to change a party defendant by a
motion to amend a complaint under Rule 15(c) of the West
Virginia Rules of Civil Procedure [1998], the amendment will
relate back to the filing of the original complaint only if the
proposed new party defendant, prior to the running of the statute
of limitations, received such notice of the institution of the
original action that he will not be prejudiced in maintaining his
defense on the merits and that he knew or should have known
that, but for a mistake concerning the identity of the proper
party, the action would have been brought against him.'
Syllabus, Maxwell v. Eastern Associated Coal Corp., Inc. 183
W.Va. 70, 394 S.E.2d 54 (1990).
9. Under the 1998 amendments to Rule 15(c)(3) of the West
Virginia Rules of Civil Procedure, before a plaintiff may amend
a complaint to add a new defendant, it must be established that
the newly-added defendant (1) received notice of the original
action and (2) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action
would have been brought against the newly-added defendant,
prior to the running of the statute of limitation or within the
period prescribed for service of the summons and complaint,
whichever is greater. To the extent that the Syllabus of Maxwell v. Eastern
Associated Coal Corp., 183 W.Va. 70, 394 S.E.2d 54
(1990) conflicts with this holding, it is hereby modified.
Additionally, syllabus point 6 of Brooks provides that the form of the
notice to the party affected by the amendment “may be either formal or
informal, and does not require service of the original complaint or summons
upon the party affected by the amendment.”
The instant case is one of misnomer, Appellants having misidentified
the Marshall University Board of Governors as the University of West Virginia
Board of Trustees. It is beyond cavil that the foregoing conditions of Rule
15(c) have been satisfied. Upon remand, Appellants' amendment of the
Complaint to substitute the Marshall University Board of Governors as a party
defendant shall relate back to the date of the filing of the original complaint.
(a) Any civil action or
other proceeding, except where it is otherwise specially provided, may hereafter
be brought in the circuit court of any county:
(1) Wherein any of the defendants
may reside or the cause of action arose, except that an action of ejectment or
unlawful detainer must be brought in the county wherein the land sought to be
recovered, or some part thereof, is. . . .
In all instances when an executive branch or related State entity
is represented by counsel before a tribunal, the Attorney General
shall appear upon the pleadings as an attorney of record[.]”
Id., at syl. pt. 7, in relevant part.
As a practical matter, where the state's liability insurance coverage is involved, counsel for the state agency may include, in addition to counsel provided by the insurance carrier, the Attorney General of the State of West Virginia, whose office and staff of attorneys are located in Kanawha County. The purpose of W.Va. Code §14-2-2 would not be served if this Court were to preclude a plaintiff from bringing such a claim in the Circuit Court of Kanawha County (again, assuming venue would not otherwise be proper in Kanawha County).