State v. Hummel

236 W.Va. 142

778 S.E.2d 591

STATE of West Virginia, ex rel. AIRSQUID VENTURES, INC. (d/b/a Amphibious Medics), and Travis Pittman, Petitioners

v.Honorable David W. HUMMEL, Jr., Judge of the Circuit Court of Marshall County, Mita Sengupta, as Personal Representative of the Estate of Avishek Sengupta, Tough Mudder, LLC, Peacemaker National Training Center, LLC, General Mills, Inc., and General Mills Sales, Inc., Respondents

State of West Virginia ex rel. Tough Mudder, LLC, Peacemaker National Training Center, LLC, General Mills, Inc., and General Mills Sales, Inc., Petitioners.

v.Honorable David W. Hummel, Jr., Judge of the Circuit Court of Marshall County, Mita Sengupta, as Personal Representative of the Estate of Avishek Sengupta, Respondents.

Nos. 15–0098

15–0102.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 2015.

Decided Sept. 24, 2015.

David L. Shuman, Esq., David L. Shuman, Jr., Esq., Roberta F. Green, Esq., Shuman, McCuskey & Slicer, P.L.L.C., Charleston, WV, Robert C. Morgan(Pro Hac Vice), Morgan, Carlo, Downs & Everton, P.A., Hunt Valley, MD, for Airsquid Ventures, Inc.

Karen Kahle, Esq., Steptoe & Johnson PLLC, Wheeling, WV, Charles F. Johns, Esq., Denielle Stritch, Esq., Steptoe & Johnson PLLC, Bridgeport, WV, for Travis Pittman.

Robert P. Fitzsimmons, Esq., Clayton J. Fitzsimmons, Esq., Fitzsimmons Law Firm PLLC, Wheeling, WV, Robert J. Gilbert(Pro Hac Vice), Edward J. Denn(Pro Hac Vice), Gilbert & Renton LLC, Andover, MA, for Mita Sengupta.

Robert P. O'Brien(Pro Hac Vice), Jennifer M. Sullam(Pro Hac Vice), Niles, Barton & Wilmer, LLP, Baltimore, MD, Robert N. Kelly(Pro Hac Vice), Michele L. Dearing, Esq., Jackson & Campbell, P.C., Washington, D.C., Kathryn A. Grace. Esq., Camille E. Shora, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, McLean, VA, Alonzo D. Washington, Esq., Christopher M. Jones, Esq., Flaherty Sensabaugh Bonasso PLLC, Morgantown, WV, for Tough Mudder, Peacemaker and General Mills.

Opinion

LOUGHRY, Justice:

Through this consolidated action, Airsquid Ventures, Inc. d/b/a Amphibious Medics (“Airsquid”), Tough Mudder, LLC,¹Peacemaker National Training Center LLC (“Peacemaker”), General Mills, Inc., and General Mills Sales, Inc. (collectively referred to as “Tough Mudder Defendants” or “Defendants”) seek a writ of prohibition to prevent enforcement of the January 9, 2015, order of the Circuit Court of Marshall County, through which the court ruled that Marshall County was a proper venue for the underlying wrongful death action. As grounds for relief, the Tough Mudder Defendants argue that the circuit court misconstrued the language in an agreement which addressed “Venue and Jurisdiction” and failed to apply the statutory factors set forth in West Virginia Code § 56–1–1(2012)—this state's general venue statute. Had the circuit court employed the proper factors, the Tough Mudder Defendants maintain that venue can be found to exist only in Berkeley County—the situs of the event during which the drowning death that is at the center of the underlying action occurred. Upon our review of the subject agreement that the decedent executed prior to his drowning death and pursuant to the controlling statutory principles of venue which govern this matter, we find that the Tough Mudder Defendants have demonstrated the requisite grounds for issuance of a writ of prohibition.

I. Factual and Procedural Background

The decedent, Avishek Sengupta, was a participant in the Tough Mudder Mid–Atlantic event (the “Event”) that took place on April 20, 2013, in Gerrardstown, Berkeley County, West Virginia. Mr. Sengupta drowned while attempting to complete an obstacle known as “Walk the Plank” that was part of the Event. Following Mr. Sengupta's death,²Mita Sengupta, his mother and personal representative, instituted a civil action³in Marshall County in which she avers that her son's wrongful death was the result of gross negligence and the negligent failure to either follow basic safety precautions or effectuate a minimally competent rescue.⁴

Included in the complaint is a request for declaratory judgment⁵as to the enforceability of the document entitled “Assumption of Risk, Waiver of Liability, and Indemnity Agreement Mid–Atlantic Spring—2013” (the “Agreement”) that the decedent executed prior to his participation in the Event. The Tough Mudder Defendants filed a motion to dismiss the complaint based on the general venue statute, West Virginia Code § 56–1–1, as well as the venue provisions set forth in the Agreement. As an alternative to dismissal, the Defendants requested that the matter be transferred to Berkeley County. On August 22, 2014, the circuit court heard arguments on the venue-related issues.⁶

After observing that the issue of venue is a procedural question determined by West Virginia law,⁷the circuit court articulated its reasons for concluding that venue is proper in Marshall County through its order of January 9, 2015. Citing language from the Agreement, the circuit court opined that the Tough Mudder Defendants had “consented to venue in any West Virginia court having subject matter jurisdiction over this case.” Since Tough Mudder was the drafter of the Agreement, the circuit court observed that it easily could have restricted venue to the county in which the Event occurred by utilizing more specific terms. Given the provision of the Agreement which states that “only the substantive laws of the State in which the TM Event is held shall apply,” the circuit court decided there was no need to conduct the venue analysis otherwise required by the provisions of West Virginia Code § 56–1–1.⁸

Airsquid filed the initial petition for a writ of prohibition seeking to prevent enforcement of the January 9, 2015, order. The remaining Defendants subsequently filed a similar petition seeking a writ of prohibition. By order entered on March 23, 2015, this Court consolidated the two matters and allowed Mrs. Sengupta to file a singular response. The Court issued a rule to show cause on April 7, 2015.

II. Standard of Review

As Justice Cleckley sagely exposited in State ex rel. Riffle v. Ranson,195 W.Va. 121, 464 S.E.2d 763 (1995), the inadequacy of appellate relief in matters involving “a substantial legal issue regarding venue” may require the resolution of such issues through the exercise of original jurisdiction.⁹See id.at 124, 464 S.E.2d at 766; accord State ex. rel. Mylan, Inc. v. Zakaib,227 W.Va. 641, 645, 713 S.E.2d 356, 360 (2011). Otherwise, as the former jurist observed, this Court would be sanctioning the “potential of placing a litigant at an unwarranted disadvantage in a pending action.”Riffle,195 W.Va. at 124, 464 S.E.2d at 766(internal quotations omitted). Because the Defendants have averred that the circuit court both failed to consider the provisions of this state's venue statute and misconstrued the language of the venue section of the Agreement, we find it necessary to resolve this matter pursuant to our grant of original jurisdiction. Our review of this matter is plenary. See id.; see alsoSyl. Pt. 2, Caperton v. A.T. Massey Coal Co.,225 W.Va. 128, 690 S.E.2d 322 (2009)(“Our review of the applicability and enforceability of a forum selection clause is de novo.”).

III. Discussion

In ruling on this matter below, the trial court decided the issue of venue based on the following language included in the Agreement:

Venue and Jurisdiction: I understand that if legal action is brought, the appropriatestate or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM¹⁰event is held shall apply. (emphasis supplied and footnote added)

Patently eliding the critical article of speech (“the”) that precedes the term “appropriate,” the trial court interpreted the Agreement as providing that venue is proper in anyWest Virginia court that has subject matter jurisdiction. The Tough Mudder Defendants maintain that the circuit court erred by altering “the” to “any” and thereby improperly rewrote the provision at issue.

As additional support for the extraordinary relief they seek, the Defendants assert that Mrs. Sengupta has failed to identify any venue-determinative event associated with Marshall County. They maintain that all of the acts or omissions relevant to the complaint took place in Berkeley County. Not only do none of the Defendants reside in Marshall County,¹¹but none of them conducts a substantial portion of its business in Marshall County. Responding to Mrs. Sengupta's contention that her selection of forum should be honored, the Defendants refer to this Court's recognition in State ex rel. Thornhill Group, Inc. v. King,233 W.Va. 564, 759 S.E.2d 795 (2014), that a “ ‘plaintiff's choice [of forum] is no longer the dominant factor that it was prior to [the] adoption of [W.Va.Code § 56–1–1.]’ ” 233 W.Va. at 570, 759 S.E.2d at 801(quoting State ex rel. Smith v. Maynard,193 W.Va. 1, 7, 454 S.E.2d 46, 52 (1994)).¹²

In addition to asserting that her forum choice should be strongly favored in deciding venue,¹³Mrs. Sengupta looks to the fact that General Mills sold products in grocery stores located in Marshall County with a specific tie-in to the Event.¹⁴Separate from the tie-in product sales, she argues additionally that the Defendants “deliberately and regularly engage[ ] in commerce in Marshall County.”¹⁵Turning to the Agreement and its venue clause, Mrs. Sengupta posits that a drafter of a forum selection clause cannot avoid reasonable application of the clause's plain meaning. She maintains that the absence of any geographical restriction in the venue clause permits her to bring suit anywhere in West Virginia. Finally, Mrs. Sengupta asserts that the venue clause under scrutiny expressly rejects West Virginia's procedural rules, specifically West Virginia Code §§ 56–1–1, –1a, 56–9–1, given the language which requires application of “only the substantive laws” of the state in which the Event is...