MADISON - ST. CLAIR RECORD

CHARLESTON, WV - Bart Morris of Virginia suffered an injury on his job in Virginia operating a forklift that an Ohio company made, but the West Virginia Supreme Court of Appeals has decided that he can sue for damages in West Virginia.

Morris hooked his claim to West Virginia by suing the distributor of the forklift as well as the manufacturer.

Kanawha County Circuit Judge Tod Kaufman dismissed the suit in 2004, but four of five Justices agreed that Kaufman should hear the case.

They relied on a declaration in the United States Constitution that, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

They quoted an 1869 decision of the U.S. Supreme Court that, "It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned."

Justice Spike Maynard dissented. He would have applied West Virginia law that bars nonresidents from suing "unless all or a substantial part of the acts or omissions giving rise to the claim asserted occurred in this state ..."

The majority ruled that state law did not apply because the alleged acts and omissions of the forklift distributor, Jefferds Corporation, constituted a substantial part of the case.

Jefferds does business as Homestead Materials Handling Company. A phone book shows numbers for Jefferds in Nitro, St. Albans and Cross Lanes.

Morris named Jefferds as second defendant in a suit he filed in 2004 over a leg injury he suffered at an Alcoa factory in Virginia.

He named Crown Equipment, an Ohio corporation, as first defendant.

He alleged negligence, strict liability, failure to warn, and breach of contract. He asserted a claim for punitive damages.

Crown and Jefferds moved to dismiss. They argued that West Virginia Code 56-1-1 barred claims from nonresidents unless a plaintiff could not obtain jurisdiction in federal or state court where the action arose.

Morris responded that applying 56-1-1 to his claim would violate the U. S. Constitution. He identified Jefferds as a venue giving defendant.

In a second amended complaint Morris directed ten charges at Jefferds. The first two broadly covered warnings, training, tests, disclosures and management decisions.

Seven charges covered the same ground in detail. One stated, "Jeffereds failed, at its office in West Virginia, to properly evaluate and investigate the design of Crown's stand-up forklifts and the associated dangers."

Another stated that Jefferds failed at its office in West Virginia to warn customers and users about Crown's accident history.

The tenth charge stated, "Jefferds engaged in other, as yet unidentified, substantial acts or omissions related to the claims being asserted."

Kaufman signed orders dismissing claims against Crown and Jeffereds. In November 2004, he denied a motion to reconsider.

Morris's attorneys, John Cooper of Parsons and Thomas Pettit of Barboursville, asked the Supreme Court of Appeals to reverse Kaufman.

Lawrence Morhous and Hudson McClanahan of Bluefield represented Jefferds before the Court.

Michael Farrell and Robert Hogan of Huntington represented Crown Equipment. So did Baltimore attorneys Thomas Cullen and Adam Sampson.

In a June 29 decision Chief Justice Robin Davis and Justices Larry Starcher, Joseph Albright and Brent Benjamin reversed Kaufman.

Starcher wrote that, "... a plaintiff cannot be denied the right to bring a products liability lawsuit in this state against a West Virginia corporation and an out-of-state corporation merely because the plaintiff is a resident of another state."

He quoted Paul v. Virginia, an 1869 U. S. Supreme Court decision that the Privileges and Immunities Clause secured to citizens in other states equal protection of their laws.

The Paul decision held that the clause guaranteed free ingress and egress in and out of states and insured freedom to acquire property and pursue happiness in other states.

The Paul decision declared, "It has been justly said that no provision in the Constitution has tended so strongly constitute the citizens of the United States one people as this."

Next Starcher quoted Hague v. CIO, a 1939 decision in which the U. S. Supreme Court held that, "... in any State every citizen of any other State is to have the same privileges and immunities which the citizens of that State enjoy."

The Hague decision held that, "... in any State every citizen of any other State is to have the same privileges and immunities which the citizens of the State enjoy."

The Hague decision held that the Privileges and Immunities Clause prevented a state from discriminating against citizens of other states in favor of its own.

Next Starcher quoted Chambers v. Baltimore and Ohio Railroad, a 1907 decision in which the U. S. Supreme Court held that in an organized society the right to sue and defend in court conserved all other rights.

"It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens," the Chambers decision declared.

Starcher wrote that, "... there is a strong constitutional disfavoring of the categorical exclusion of nonresident plaintiffs from a state's courts under venue statutes when a state resident would be permitted to bring a similar suit."

He wrote that venue was proper for Jefferds and that, "...once venue is proper for one defendant, it is proper for all other defendants ..."

He wrote, "Modern economies operate in complex, multi-jurisdictional networks of designers, manufacturers, distributors, retailers, purchasers and users."

He wrote, "When reasonably possible, legal claims involving these sorts of parties that arise from particular incidents and injuries involving a product should be resolved in a unitary forum."

Maynard wrote in dissent that applying West Virginia law would not violate the Privileges and Immunities Clause.

The state law that bans lawsuits of nonresidents, he wrote, "... is designed to give the residents of this State, who after all pay for our courts, ready access to them when needed."

He wrote, "This can be effectively achieved only by preventing nonresidents from abusing our courts by flooding them with litigation, not because they do not have a forum elsewhere, but simply because they believe they may achieve a better result here."

In another West Virginia case, he wrote, 71 of 79 plaintiffs were involved in actions that they originally filed in Georgia.

He wrote, "These nonresident plaintiffs who may have very legitimate claims are nevertheless expending the time and limited resources of our State court system, to the detriment of resident plaintiffs, when their claims could have been brought elsewhere."

He wrote, "Unfortunately, the majority opinion eviscerates a statutory safeguard against this type of abuse."

Chief Justice Robin Davis concurred with Starcher's opinion.

Justices Larry Albright and Brent Benjamin concurred in reversing Kaufman, but for reasons of their own. They reserved the right to file concurring opinions.