W.Va. SC reinstates wrongful death suit against rafting business

Jessica M. Karmasek Jun. 8, 2012, 8:30am

Chief Justice Menis Ketchum

CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals this week reinstated a wrongful death lawsuit against a rafting company, its president and three river guides.

On May 17, 2008, Vicki Savard drowned in a whitewater rafting accident in the Cheat River Canyon in Preston County. Kerry Savard, a New York resident, was appointed the personal representative of her estate.

Kerry Savard subsequently filed a lawsuit in Jefferson County Circuit Court, naming as defendants the rafting company, Cheat River Outfitters Inc.; its president, Paul Hart; and the three river guides assigned to Vicki Savard's rafting group, Brent Matthew Everson, Travis Cobb and Simon Buckland.

The circuit court, in a Feb. 8, 2011 order, dismissed the suit for lack of personal jurisdiction and lack of venue.

On appeal, the plaintiff argued that venue is proper in Jefferson County because the rafting company is doing business there as a result of its license for whitewater rafting on the Shenandoah River, and because Cobb -- though working only seasonally in the state -- lists his parents' Jefferson County address as being his place of residence.

In a per curiam opinion filed Wednesday, the state's high court reversed the circuit court's order and remanded the case.

The justices pointed to the record, which contains six state Department of Motor Vehicle applications completed by Cobb.

"Reviewing these applications, we note that Mr. Cobb listed his parents' Jefferson County address as being his own residential address until after his residency became an issue," the Court wrote in its eight-page ruling.

In addition, the justices pointed to a Sept. 9, 2009 DMV application Cobb completed six months before substituted service. Cobb again listed his parents' address as being his own residential address.

It wasn't until six months after service -- and after Cobb's residency became an issue in the case -- that he completed another DMV application, dated Oct. 1, 2010, the Court explained.

"This application left blank his residential address, but stated that there had been no change in his address since his last application," the justices wrote.

Therefore, the circuit court had personal jurisdiction to proceed with the action, the Court ruled.

The court also had venue to hear the action, it said.

"Venue for civil actions is governed by W.Va. Code, § 56-1-1 [2007], which provides, in pertinent part, that: (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...," the justices wrote.

"As we have found, supra, Mr. Cobb was a resident of Jefferson County at least from the date of his 2009 DMV application through the date of his October 1, 2010 application. The petitioner filed her complaint on March 22, 2010, and perfected service in Mr. Cobb on March 24, 2010."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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