______________
EDITH NEZAN, in her capacity as personal representative of the Estate of
Margaret O'Brien,
Plaintiff Below, Appellant,
v.
ARIES TECHNOLOGIES, INC., and SHASHI SANWALKA, in his capacity as
Legal Representative of the Estate of Aditya Roy Sanwalka,
Defendant Below, Appellee,
______________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Louis H. Bloom, Judge
Civil Action No. 08-C-3451
REVERSED AND REMANDED
_____________________________________________________
Submitted: September 8, 2010
Filed: November 17, 2010
| Scott S. Segal, Esq. Mark R. Staun, Esq. Deborah L. McHenry, Esq. Victor S. Woods, Esq. The Segal Law Firm Charleston, West Virginia Michael A. Sullivan, Esq. Pro hac vice Atlanta, Georgia Attorney for Appellants |
Ted Kanner, Esq. Charleston, West Virginia Robert D. Finkel, Esq. Pro hac vice Pittsburgh, Pennsylvania Attorneys for Appellee |
3. “In order to obtain personal jurisdiction over a nonresident defendant, reasonable notice of the suit must be given the defendant. There also must be a sufficient connection or minimum contacts between the defendant and the forum state so that it will be fair and just to require a defense to be mounted in the forum state.” Syllabus Point 2, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991).
4. “To what extent a nonresident defendant has minimum contacts with theforum state depends upon the facts of the individual case. One essential inquiry is whether the defendant has purposefully acted to obtain benefits or privileges in the forum state. ” Syllabus Point 3, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991).
5. “ 'It is the duty of a court to construe a statute according to its true intent, and
give to it such construction as will uphold the law and further justice. It is as well the duty
of a court to disregard a construction, though apparently warranted by the literal sense of the
words in a statute, when such construction would lead to injustice and absurdity.' Syllabus
Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).” Syllabus point 2, Conseco
Finance Servicing Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d 641 (2002).
6. The broad language of West Virginia's long-arm statute, W. Va. Code 56-3-
33 (2005) authorizes service of process upon the personal representative of a non-resident's
estate.
Benjamin, Justice:
This appeal arises from the dismissal of a civil action by the Circuit Court of
Kanawha County, for lack of personal jurisdiction over the defendant as well as for forum
non conveniens. After careful review of the pleadings, the record, the briefs and arguments
of the parties, we find that the lower court erred in dismissing the case. Therefore, we
reverse and remand this action to the circuit court.
The appellant's claims arise from a crash of the Mooney M20C Ranger on
March 16, 2008, in the State of Virginia, 20 miles from the border of West Virginia. Piloting
the airplane was Roy Sanwalka, who possessed a Canadian private pilot's license. This
license did not include an instrument rating. (See footnote 2) The sole passenger in the airplane at the time
of the crash was Margaret O'Brien, Roy Sanwalka's girlfriend. Both Roy Sanwalka and
O'Brien were killed when the airplane crashed in or near the Jefferson National Forest in
Atkins, Virginia.
The events leading up to the crash were as follows: On March 14, 2008, Roy
Sanwalka and O'Brien left Canada en route 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 Kanawha County, West Virginia. Roy
Sanwalka and O'Brien stayed overnight in Charleston and returned to Yeager Airport on
March 16, 2008. While at the airport, Roy Sanwalka refueled the airplane, and despite not
being certified with an instrument rating, filed an Instrument Flight Rules (IFR) (See footnote 3) plan
documenting his intention to travel to Florida on his way to the Bahamas.
The pair took off from Yeager Airport. Eighteen minutes into the trip, 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, Roy Sanwalka contacted the air traffic controllers stating his airplane
was going down. Shortly after that conversation the airplane in which Roy Sanwalka and
O'Brien were traveling crashed in Atkins, Virginia, killing both occupants instantly.
Subsequently, the appellant, Edith Nezan, as Margaret O'Brien's estate, filed
a wrongful death action against Roy Sanwalka, through his estate, in Kanawha County
Circuit Court. The appellant alleged that “[d]efendant 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.”
The complaint also contained an allegation that the defendants were subject to the
jurisdiction of the court “by virtue of defendants' tortious acts and/or omissions in the State
of West Virginia that were the direct and proximate cause of the injuries and death of
Margaret O'Brien, as described below.”
The complaint further contains an allegation that Roy Sanwalka made a
decision while in Charleston, West Virginia, 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.
In regard to Aries Technologies, the complaint made allegations that 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. As such, any negligence on the part of Roy Sanwalka
would be imputed to Aries Technologies.
The appellee, Shashi Sanwalka, as the representative of Roy Sanwalka's estate,
was personally served in Toronto, Ontario, with a copy of the summons and complaint.
Through counsel he filed a motion to dismiss, along with a memorandum of law in support
of the motion to dismiss, containing his own affidavit as well as an affidavit from an attorney
licensed to practice law in Canada, Bruce Garrow. Also submitted was the preliminary report
of the National Transportation Safety Board (NTSB) investigation into the crash that gave
rise to this proceeding.
Sanwalka's affidavit confirmed that Aries was owned in part by Roy
Sanwalka. The affidavit also stated that Roy Sanwalka's estate was being administered in
Canada; that Roy Sanwalka's private pilot's license was obtained in Canada; that neither
Shashi Sanwalka nor Roy Sanwalka owned property in West Virginia or regularly engaged
in business, solicited business or engaged in any other persistent course of conduct or
derived substantial revenues from goods used or consumed or services rendered in this state.
Sanwalka also stated that Roy Sanwalka had, to the best of his recollection, never been in
West Virginia except for on the final ill-fated trip that gave rise to this action. Likewise,
Shashi Sanwalka averred that he had no prior connection to West Virginia.
Canadian attorney Bruce Garrow's affidavit detailed the remedies available
to the appellant in Canada, as well as a statement that counsel had already been retained in
Canada to pursue a claim under Canadian law. Garrow also concluded that the case could
be tried quicker and easier in Canada, because many of the necessary witnesses reside in
Canada.
Counsel for Sanwalka accepted service of the Summons and Complaint on
behalf of Aries. Counsel then filed a motion to dismiss. Aries relied upon the pleadings and
memorandum of law filed by Sanwalka in support of its motion to dismiss the wrongful
death action against the Estate of Roy Sanwalka. In addition, the same attorneys represented
both Sanwalka and Aries.
Both appellees argued that the case should be dismissed in West Virginia
because neither West Virginia's long-arm statute nor notions of federal due process
authorized the Circuit Court of Kanawha County to assert jurisdiction over the Canadian
corporation or the Canadian citizen, Roy Sanwalka or his estate.
In response to the motions to dismiss by Sanwalka and Aries, the appellant
submitted the affidavit of Richard P. Burgess, an aviation consultant who was a certified
flight instructor. Burgess opined that had Roy Sanwalka filed a VFR flight plan in
accordance with his license, he would have been told by air traffic controllers that this type
of flight was not recommended because of the AIRMETS (See footnote 4) in effect at the time, including
a low cloud ceiling, the mountain obscuration and adverse layers of clouds up to 15,000 feet
above ground level. At the time of Roy Sanwalka's filing of an IFR flight plan, the weather
conditions in West Virginia indicated that the base of the clouds in the sky were at 2,500
feet, with the tops at 15,000 feet, with the freezing level at approximately 4,000 feet.
Burgess also detailed that at some point while Roy Sanwalka was still in West Virginia
airspace, he could have returned to Yeager Airport. Instead, he continued his flight until the
airplane went down just outside of West Virginia.
By order entered September 16, 2009, the circuit court dismissed the complaint
of the appellant. In its order of dismissal, the circuit 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 reasoned that the long-arm statute does not specifically authorize service of process on
the administrator, administratrix, executor or executrix of a non-resident, as opposed to the
clear specific language in the non-resident motorist long-arm statute (See footnote 5) and the statute
governing non-resident bail bondsmen (See footnote 6) .
The circuit 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 circuit court reasoned that
Virginia's wrongful death statute was similar to West Virginia's statute, and that Virginia
has a similar long-arm statute for jurisdiction. The lower court's order stated “[t]here can
be no question that an act or omission occurred in the state of Virginia, as that is where the
airplane crash actually occurred.” Thus, under the Virginia long-arm statute, one that the
circuit court noted was similar to West Virginia's, the alternate forum of Virginia could
exercise jurisdiction over all the parties.
The lower court also found that the cause of action in this case accrued when
the airplane piloted by the appellee's decedent crashed in Virginia. The sole contact the
appellee's decedent had with West Virginia, according to the circuit court, was the
unplanned stop. Once the airplane was refueled, the planned trip to the Bahamas continued.
Thus, reasoned the circuit court, Virginia, not West Virginia, is the state where the cause of
action accrued.
The lower court's dismissal order also contained findings that even if the West
Virginia court had jurisdiction, the appellants did not allege sufficient minimum contacts for
the exercise of jurisdiction. The court stated:
Even viewing all allegations in the Plaintiff's Complaint in the light most favorable to the Plaintiff, the connection of the Defendants to West Virginia, as related to the airplane crash giving rise to the above cause of action, is tenuous at best. Although the decedent Roy Sanwalka landed the airplane at Yeager Airport in Charleston, West Virginia, and then the next day, before taking off, refueled the airplane and filed a flight plan, it is unlikely that these brief and minimal contacts with West Virginia satisfy federal due process. Furthermore, the airplane crash occurred in Virginia, not West Virginia, and thus, Virginia is where the above cause actually accrued. Also, it [is] unlikely that the decedent's brief contact with West Virginia made it foreseeable that he could be haled into court in West Virginia. Thus, under federal due process, and based upon the tenuous contacts of the decedent with West Virginia giving rise to the action, it would be unfair and unjust to require the Defendants to defend the above action in this State.
As a second ground for dismissal of the appellant's complaint, the lower court
further found that “[e]ven if this Court does have personal jurisdiction over the Defendants
under the West Virginia long-arm statute, dismissal of the above action is still proper under
the doctrine of forum non conveniens.” The circuit court stated that under West Virginia
Code §56-1-1a, a circuit court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the action, if it finds that in the interest of
justice and the convenience of the parties a claim would be more properly heard in another
forum, other than in the state. (Emphasis in original). The circuit court's order
acknowledged that the plaintiff's choice of forum is entitled to great deference, but “if the
plaintiff is a nonresident and the cause of action did not arise in this state, this preference
may be diminished under West Virginia Code §56-1-1a(a).” (Emphasis in original).
The appellant filed an appeal to the circuit court's order. On March 4, 2010,
this Court accepted the appeal for further consideration.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution operates to limit the jurisdiction of a state court to enter a judgment affecting the rights or interests of a nonresident defendant. This due process limitation requires a state court to have personal jurisdiction over the nonresident defendant.
Syllabus Point 1, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991)
We have previously addressed the framework for situations where the lack of
jurisdiction is raised as a defense. In Syllabus Point 4 of State ex rel Bell Atlantic-West
Virginia, Inc., v. Ranson, 201 W. Va. 402, 497 S.E.3d 755 (1997), we stated:
When a defendant files a motion to dismiss for lack for personal jurisdiction under W. Va. R. Civ. P. 12(b)(2), the circuit court may rule on the motion upon the pleadings, affidavits and other documentary evidence or the court may permit discovery to aid in its decision. At this stage, the party asserting jurisdiction need only make a prima facie showing of personal jurisdiction in order to survive the motion to dismiss. In determining whether a party has made a prima facie showing of personal jurisdiction, the court must view the allegations in the light most favorable to such party, drawing all inferences in favor of jurisdiction. If, however, the court conducts a pretrial evidentiary hearing on the motion, or if the personal jurisdiction is litigated at trial, the party asserting jurisdiction must prove jurisdiction by a preponderance of the evidence.
At the time of the instant dismissal, the lower court had not held an evidentiary hearing on the motion and the jurisdiction issue was not litigated at trial.
We have also held that:
In order to obtain personal jurisdiction over a nonresident defendant, reasonable notice of the suit must be given the defendant. There also must be a sufficient connection or minimum contacts between the defendant and the forum state so that it will be fair and just to require a defense to be mounted in the forum state.
Syllabus Point 2, Pries v. Watt, 186 W. Va. 49, 410 S.E.3d 285 (1991).
Thus, for the purposes of our review of the lower court's dismissal of this case
for lack of personal jurisdiction over Roy Sanwalka's estate, we must look to the allegations
contained in the complaint to ascertain whether the appellant made a prima facie showing
of personal jurisdiction and then determine whether the contacts satisfy federal due process
requirements.
The complaint filed by the appellant alleged certain acts or omissions on the
part of Roy Sanwalka, in this state. In paragraph 9, the appellant alleges that while in West
Virginia, the defendants, through Roy Sanwalka, chose to continue to operate the airplane
toward inclement weather. In paragraph 10, the appellant alleges that Roy Sanwalka “acted
negligently in the flight plan that he made and implemented in Charleston, West Virginia,
to consciously ignore those dangers and to proceed on his intended course from Charleston
across West Virginia.” In paragraph 11, the appellant's complaint avers that “Defendant's
airplane operated by Roy Sanwalka proceeded across the State of West Virginia on this
danger course, before reporting airframe icing. Defendant's airplane, operated by Roy
Sanwalka, nonetheless continued onward, rather than turning back.”
We next examine these allegations in light of the statute regarding this state's
jurisdiction over non-residents. West Virginia Code §56-3-33(2008), the long-arm statute,
addresses “actions by or against nonresident persons having certain contacts with this state”
and establishes a mechanism for the secretary of state to accept service on their behalf. (See footnote 7)
As noted, this statute details seven circumstances through which a non-resident
may be subjected to the jurisdiction of the West Virginia courts, and secondly, may be
served through the secretary of state's office. Since the appellant need only make a prima
facie showing of personal jurisdiction at the time that this case was dismissed, we review the
appellant's original complaint in that light.
The appellant's complaint alleged that Roy Sanwalka made a series of
negligent decisions while in the state of West Virginia. These decisions included the filing
of an improper flight plan, and initiating and continuing the flight toward the Bahamas in the
face of adverse weather. The appellant further alleges once the flight from Yeager Airport
continued until the airplane began icing, Roy Sanwalka “nonetheless continued onward,
rather than turning back.”
Based upon the appellant's complaint, we believe that the circuit court erred
in dismissing this case for lack of personal jurisdiction. The appellant alleged sufficient facts
to show that Roy Sanwalka caused “a tortious injury by an act or omission within this State,”
which would suffice under the long-arm statute as grounds for the West Virginia court to
have jurisdiction. Thus, there were sufficient allegations contained in the appellant's
complaint to support the assertion that West Virginia had jurisdiction over the matter.
However, the Supreme Court and this Court have held that personal
jurisdiction over a non-resident defendant is alone not enough to support a state's exertion
of authority. There must further be a showing of minimum contacts “by which the defendant
purposefully avails [him]self of the privilege of conducting activities within the forum state.” Pries, supra, at 51, 287. The evolution of the notion of minimum contacts was noted by
Justice Workman in a decision involving use of the long-arm statute to effectuate jurisdiction
over a non-resident father in a child support proceeding. In Lozinski v. Lozinski, 185 W.Va.
558, 408 S.E.2d 310 (1991), we held:
Prior to the enactment of the West Virginia long-arm statute in 1978, plaintiffs attempting to hale nonresidents into this state's tribunals were required to successfully clear the “minimum contacts” hurdle first enunciated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Id. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102. In International Shoe, the United States Supreme Court ruled that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' ” Id. ( citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940), reh'g denied Milliken v. Meyer, 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941)). Applying the “minimum contacts” rule proved difficult, however, because the standard's inherent vagueness left it subject to continuous and varying interpretation. See Harman v. Pauley, 522 F.Supp. 1130, 1136 (S.D.W.Va.1981) (noting that International Shoe “minimum contacts” rule failed to establish any “clear-cut parameters ... and thus courts were left to a case by case determination whenever the issue was presented”). When “minimum contacts” was the prevailing test for exercising extraterritorial jurisdiction, we think it is fair to suggest that many prospective plaintiffs may have been discouraged from instigating a cause of action against a nonresident given the uncertainty of convincing a given tribunal that the requisite “minimum contacts” with the forum state had been established.
Lozinski at 313, 561.
Here, the appellees argue that there were insufficient minimum contacts
between West Virginia, Roy Sanwalka and Aries to warrant the establishment of personal
jurisdiction. In terms of Aries, the appellees argue that there is no connection whatsoever
between this state and the Canadian corporation. There remains a factual dispute as to
whether Roy Sanwalka was in fact an employee of Aries. The appellees note that the
appellant's claim against Aries is on a theory of vicarious liability based upon the actions of
Roy Sanwalka. The appellees contend that the single incident of landing an airplane in West
Virginia while en route to the Bahamas, across part of Canada and several states within the
United States, does not establish the level of activity necessary to comport with federal due
process requirements.
Examining all the connections of Aries and Roy Shanwalka to West Virginia,
we note that the initial contacts between Roy Shanwalka and West Virginia were not
fleeting. While his time here was brief, it was here where the cause of action arose. 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. He filed a flight plan that, in the eyes of the
appellant's expert, was ill-advised and was perhaps unlawful. After he departed from
Yeager Airport, Roy Sanwalka chose not to return to Charleston when the airplane's
airframe became iced in West Virginia. These were, in the final measure, significant not
fleeting contacts with West Virginia.
In terms of exercising jurisdiction over Aries, the appellants argue that Aries
is culpable for the acts of Roy Sanwalka because he was acting as their agent and employee,
was acting within the course and scope of his employment with Aries, and was operating the
airplane with the authorization, permission and direction of Aries. It is undisputed that Aries
Technologies never transacted business within West Virginia's borders, never traveled here
on business or pleasure other than on the ill-fated occasion giving rise to this litigation or
otherwise derived any benefits from West Virginia. However, 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. Moreover, we are unaware of any argument by Aries that Roy
Sanwalka had improperly, or unlawfully, taken the airplane in question. In view of these
circumstances, we believe it is not unreasonable to conclude that Aries had sufficient
minimum contacts to warrant West Virginia's assertion of jurisdiction.
Thus, we disagree with the circuit court's conclusion that there were
insufficient minimum contacts to support a finding that West Virginia has jurisdiction over
this matter as well as over Roy Sanwalka and Aries Technologies. 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.
Having established that the appellant's complaint did state sufficient grounds
for the invocation of West Virginia jurisdiction over a wrongful death action, and that the
appellees have sufficient minimum contacts for this assertion of jurisdiction, we must now
determine whether service of process against the appellees, first as the personal
representative of the estate of the deceased pilot, Roy Sanwalka, and against the foreign
corporation partially owning the aircraft being piloted by the Roy Sanwalka, was properly
accomplished. We must resolve whether our statutory language authorizes the effectuation
of service upon the personal representative of an estate. In the instant case, the respondents
argue that the long-arm statute does not authorize service of process on a non-resident
representative of an estate.
As set forth above, West Virginia's long-arm statute, contained in W. Va. Code
§56-3-33, details seven circumstances through which a non-resident may be subjected to the
jurisdiction of the West Virginia courts, and then be served. W. Va. Code §56-3-33(e)(3)
defines “nonresident” as “any person, other than voluntary unincorporated associations, who
is not a resident of this state or a resident who has moved from this state subsequent to
engaging in such act or acts.” The definition includes a nonresident firm, partnership or
corporation or a firm, partnership or corporation which has moved from this state subsequent
to any of said such act or acts.
There is no explicit mention of jurisdiction or service upon the administrator,
administratrix, executor, executrix or other personal representative for a deceased non-
resident whose action may fit within the seven detailed activities included in the long-arm
statute. In the final order, the circuit court compared and contrasted this general long-arm
statute to two other specific statutes dealing with actions against non-resident drivers (See footnote 8) and
non-resident bail bondsmen. (See footnote 9) The specific language of these statutes explicitly names the
personal representative of estates and details the role of the secretary of state in service of
process.
The circuit court concluded that it “should not read into the statute that which
it does not say.” The circuit court concluded that because the long-arm statute authorizing
service of non-residents stood in derogation of the common law, it must be strictly
construed, citing Syllabus Point 3 of Phillips v. Larry's Drive-In Pharmacy, Inc., 220 W.Va.
484, 486, 547 S.E.2d 920, 922 (2007) (citing Kellar v. James, 63 W.Va. 139, 59 S.E.2d 939
(1907) ). Furthermore, the circuit court found that statutes in derogation of the common law
“are given effect only to the extent clearly indicated by the language used, [and] as such,
nothing may be added unless by necessary implication arising from such language. Syllabus
Point 4, Phillips, (citing Bank of Weston v. Thomas, 75 W. Va. 321, 83 S.E.2d 985 (1914).
Finally, the circuit stated that “the express mention of one thing implies the exclusions of
another,” in citing the statutory construction rule of expression unius est exclosuio alterius,
as noted in Syllabus Point 6 of Phillips (citing Manchin v. Dunfee, 174 W.Va. 532, 327
S.E.2d 710 (1984) ).
While we acknowledge our previous holdings regarding statutory
interpretation to be sound, we must refrain from creating the irrational situation where a
cause of action plainly exists but where there is no mechanism to serve the offending party.
As the appellant noted, was there a rational reason the Legislature meant to restrict the class
of persons subject to the jurisdiction of our courts, particularly when it has otherwise
provided for the initiation and continuation of actions against the personal representatives
of deceased wrongdoers in other statutory sections. Our wrongful death statute states, in W.
Va. Code §55-7-5, that the right of action for wrongful death “shall survive the death of the
wrongdoer, and may be enforced against the executor or administrator.” Yet under the
analysis of the circuit court, there would be no mechanism to serve the nonresident executor
of a deceased tortfeasor. In the case sub judice, the appellant could sue in West Virginia but
would have great difficulty in obtaining service upon Roy Sanwalka's estate. That would
make no sense.
We have held that in regard to statutory construction, this Court should not
create situations where a strict interpretation would lead to an unjust, much less senseless,
result. We have held:
“ 'It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.' Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).”
Syllabus point 2, Conseco Finance Servicing Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d
641 (2002).
Therefore, while acknowledging our rules of statutory construction and
interpretation, we find that the circuit court was clearly wrong in its determination that the
long-arm statute does not allow for the service of a non-resident's estate. We conclude and
hold that under the broad language of West Virginia's long-arm statute, West Virginia Code
§ 56-3-33 authorizes service of process upon the personal representative of a non-resident's
estate.
As a secondary ground for the dismissal of the petitioner's complaint, the
lower court cited the doctrine of forum non conveniens. We have previously defined the
phrase as follows: “The common law doctrine of forum non conveniens is simply that a court
may, in its sound discretion, decline to exercise jurisdiction to promote the convenience of
witnesses and the ends of justice, even when jurisdiction and venue are authorized by the
letter of a statute.” Syllabus point 1, Norfolk & Western Railway Co. v. Tsapis, 184 W.Va.
231, 400 S.E.2d 239 (1990).
This Court specifically adopted this common law doctrine in Norfolk &
Western Railway Co. v. Tsapis, 184 W.Va. 231, 400 S.E.2d 239 (1990). In Syllabus Point
3 we stated:
The common law doctrine of forum non conveniens is available to courts of record in this State. The doctrine accords a preference to the plaintiff's choice of forum, but the defendant may overcome this preference by demonstrating that the forum has only a slight nexus to the subject matter of the suit and that another available forum exists which would enable the case to be tried substantially more inexpensively and expeditiously. To the extent that Gardner v. Norfolk & Western Railway Co., 179 W.Va. 724, 372 S.E.2d 786 (1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1132, 103 L.Ed.2d 193, (1989), declined to apply this doctrine, it is overruled.”
The Legislature then codified forum non conveniens in W. Va. Code §56-1-1a in 2007. Amended in 2008, the statute reads, in pertinent part:
(a) In any civil action if a court of this state, upon a timely written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action, or dismiss any plaintiff: Provided, That the plaintiff's choice of a forum is entitled to great deference, but this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in this state. In determining whether to grant a motion to stay or dismiss an action, or dismiss any plaintiff under the doctrine of forum non conveniens, the court shall consider:
(1) Whether an alternate forum exists in which the claim or action may be tried;
(2) Whether maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;
(3) Whether the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claim;
(4) The state in which the plaintiff(s) reside;
(5) The state in which the cause of action accrued;
(6) Whether the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state. Factors relevant to the private interests of the parties include, but are not limited to, the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; possibility of a view of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Factors relevant to the public interest of the state include, but are not limited to, the administrative difficulties flowing from court congestion; the interest in having localized controversies decided within the state; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty;
(7) Whether not granting the stay or dismissal would result in unreasonable duplication or proliferation of litigation; and
(8) Whether the alternate forum provides a remedy.
In the case at bar, the lower court carefully analyzed the eight factors in
determining that this case would be dismissed on the grounds of forum non conveniens. As
the appellant admits, some of these factors standing alone would support the circuit court's
decision. For example, there are clearly other forums in which this dispute could be tried,
and each of those forums provides a remedy to the appellant. As this is a case involving an
international flight, with three potential forums for adjudication of this wrongful death action
(Canada, Virginia and West Virginia), there are similar difficulties presented in all forums.
Regardless of the selection of forum, there are out-of-state and even out-of-country witnesses
whose relevant and pertinent testimony would have to be heard.
The statute provides guidance to the court in determining what factors weigh
more heavily in the determination of whether a case should be heard in an alternate forum.
The statutory forum non conveniens provides a mechanism for the court to weigh the various
factors, and places emphasis on the plaintiff's choice of forum. What diminishes the choice
of forum within the language of the statute is whether the plaintiff is a non-resident and the
cause of action did not arise in this state. The statute states, in pertinent part:
....Provided, That the plaintiff's choice of a forum is entitled to great deference, but this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in this state.
W.Va. Code §56-1-1a.
Prior to the enactment of this statute, the United States Supreme Court
addressed forum non conveniens in two landmark cases. In Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Koster v. Lumbermens' Mutual Cas. Co.,
330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947), the Supreme Court established the
premise that the plaintiff's choice of forum is given great weight. The Court in Gulf Oil held:
If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. (Emphasis supplied).
In the case sub judice the circuit court's order recognized the statutory
significance of the appellant's choice of forum, but the lower court also found that the
appellant's cause of action did not arise within this state. If that in fact were the case we
would have to give due deference to the lower court's decision. However, we do not agree
with the lower court's assessment of whether the appellant's cause of action arose in this
state. When balancing our clearly deferential appellate standard with the statutory
preference for the appellant's choice of forum and the fact that the cause of action being
pursued by the appellant actually arose in this state, we conclude that the circuit court abused
its discretion in finding that West Virginia was not the appropriate forum for this civil action.
Giving the appellant's choice of forum its due deference, 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.
For the foregoing reasons, the order of the Circuit Court of Kanawha County
dated September 8, 2009, is reversed, and this matter remanded with directions to reinstate
the complaint of the appellants.
An instrument rating is a certification showing that the pilot has the additional training to fly using navigational instruments as well as using his vision alone. A pilot whose license does not include an instrument rating must file a Visual Flight Rule (VFR) plan. A pilot whose license includes an instrument rating can file an Instrument Flight Rules (IFR) plan. Specifically, a pilot flying without an instrument rating does not have the ability to rely on navigational instruments to fly in clouds and through weather systems or in other conditions that would limit the pilot's visibility.
See footnote two for the different types of flight plans available to pilots flying a private, non-commercial aircraft.
AIRMET is an abbreviation for the Airmen's Meteorological Information. According to a publication by the Aviation Weather Center in Kansas City, Missouri, an AIRMET advises of weather that may be hazardous to single engine, other light aircraft, and Visual Flight Rule (VFR) pilots.
W.Va. Code §56-6-31 specifically states, in subparagraph (c) that “a nonresident operating a motor vehicle in this state, either personally or through an agent, is considered acknowledge the appointment of the secretary of state, or as the case may be, his or her automobile insurance company, as his or her agent or attorney-in-fact, or the agent or attorney-in-fact of his or her administrator, administratrix, executor or executrix...”
W.Va. Code §56-3-34 in subparagraph (e) states that “[s]ervice of process upon a nonresident defendant shall be made by leaving the original and two copies of both the summons and complaint...with the secretary of state...and said service shall be sufficient upon the nonresident defendant or, if a natural person, his or her administrator, administratrix, executor or executrix...”
W.Va. Code §56-3-33 states:(a) The engaging by a nonresident, or by his or her duly
authorized agent, in any one or more of the acts specified in subdivisions (1) through (7) of
this subsection shall be deemed equivalent to an appointment by such nonresident of the
Secretary of State, or his or her successor in office, to be his or her true and lawful attorney
upon whom may be served all lawful process in any action or proceeding against him or her,
in any circuit court in this state, including an action or proceeding brought by a nonresident
plaintiff or plaintiffs, for a cause of action arising from or growing out of such act or acts,
and the engaging in such act or acts shall be a signification of such nonresident's agreement
that any such process against him or her, which is served in the manner hereinafter provided,
shall be of the same legal force and validity as though such nonresident were personally
served with a summons and complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this
state;
(3) Causing tortious injury by an act or omission
in this state;
(4) Causing tortious injury in this state by an act
or omission outside this state if he or she
regularly does or solicits business, or engages in
any other persistent course of conduct, or derives
substantial revenue from goods used or consumed
or services rendered in this state;
(5) Causing injury in this state to any person by
breach of warranty expressly or impliedly made
in the sale of goods outside this state when he or
she might reasonably have expected such person
to use, consume or be affected by the goods in
this state: Provided, That he or she also regularly
does or solicits business, or engages in any other
persistent course of conduct, or derives
substantial revenue from goods used or consumed
or services rendered in this state;
(6) Having an interest in, using or possessing real
property in this state; or
(7) Contracting to insure any person, property or
risk located within this state at the time of
contracting.
(b) When jurisdiction over a nonresident is based solely upon
the provisions of this section, only a cause of action arising
from or growing out of one or more of the acts specified in
subdivisions (1) through (7), subsection (a) of this section may
be asserted against him or her.
(c) Service shall be made by leaving the original and two copies
of both the summons and the complaint, and the fee required by
section two, article one, chapter fifty-nine of this code with the
Secretary of State, or in his or her office, and such service shall
be sufficient upon such nonresident: Provided, That notice of
such service and a copy of the summons and complaint shall
forthwith be sent by registered or certified mail, return receipt
requested, by a means which may include electronic issuance
and acceptance of electronic return receipts, by the Secretary of
State to the defendant at his or her nonresident address and the
defendant's return receipt signed by himself or herself or his or
her duly authorized agent or the registered or certified mail so
sent by the Secretary of State which is refused by the addressee
and which registered or certified mail is returned to the
Secretary of State, or to his or her office, showing thereon the
stamp of the post-office department that delivery has been
refused. After receiving verification from the United States
postal service that acceptance of process, notice or demand has
been signed, the Secretary of State shall notify the clerk's office
of the court from which the process, notice or demand was
issued by a means which may include electronic notification. If
the process, notice or demand was refused or undeliverable by
the United States postal service the Secretary of State shall
return refused or undeliverable mail to the clerk's office of the
court from which the process, notice or demand was issued. If
any defendant served with summons and complaint fails to
appear and defend within thirty days of service, judgment by
default may be rendered against him or her at any time
thereafter. The court may order such continuances as may be
reasonable to afford the defendant opportunity to defend the
action or proceeding.
(d) The fee remitted to the secretary of state at the time of
service shall be taxed in the costs of the action or proceeding.
The secretary of state shall keep a record in his or her office of
all such process and the day and hour of service thereof.
(e) The following words and phrases, when used in this section,
shall for the purpose of this section and unless a different intent
be apparent from the context, have the following meanings:
(1) “Duly authorized agent” means and includes
among others a person who, at the direction of or
with the knowledge or acquiescence of a
nonresident, engages in such act or acts and
includes among others a member of the family of
such nonresident or a person who, at the
residence, place of business or post office of such
nonresident, usually receives and receipts for mail
addressed to such nonresident.
(2) “Nonresident” means any person, other than
voluntary unincorporated associations, who is not
a resident of this state or a resident who has
moved from this state subsequent to engaging in
such act or acts, and among others includes a
nonresident firm, partnership or corporation or a
firm, partnership or corporation which has moved
from this state subsequent to any of said such act
or acts.
(3) “Nonresident plaintiff or plaintiffs” means a
nonresident of this state who institutes an action
or proceeding in a circuit court in this state
having jurisdiction against a nonresident of this
state pursuant to the provisions of this section.
(f) The provision for service of process herein is cumulative and
nothing herein contained shall be construed as a bar to the
plaintiff in any action or proceeding from having process in
such action served in any other mode or manner provided by the
law of this state or by the law of the place in which the service
is made for service in that place in an action in any of its courts
of general jurisdiction.
(g) This section shall not be retroactive and the provisions
hereof shall not be available to a plaintiff in a cause of action
arising from or growing out of any of said acts occurring prior
to the effective date of this section.
W.Va. Code §56-3-34 (2008).