Nezan v. Aries Technologies Inc., No. 35495.

CourtSupreme Court of West Virginia
Writing for the CourtBENJAMIN, Justice:
Citation704 S.E.2d 631,226 W.Va. 631
PartiesEdith 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.
Docket NumberNo. 35495.
Decision Date17 November 2010

226 W.Va. 631
704 S.E.2d 631

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.

No. 35495.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 2010.Decided Nov. 17, 2010.


[704 S.E.2d 633 , 226 W.Va. 633]

Syllabus by the Court

1. “A court must use a two-step approach when analyzing whether personal jurisdiction exists over a foreign corporation or other nonresident. The first step involves determining whether the defendant's actions satisfy our personal jurisdiction statutes set forth in W. Va.Code, 31–1–15 [1984] and W. Va.Code, 56–3–33 [1984]. The second step involves determining whether the defendant's contacts with the forum state satisfy federal due process.” Syllabus Point 2, Abbott v. Owens–Corning Fiberglas Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994).

2. “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).

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 the forum 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.

Scott S. Segal, Esq., Mark R. Staun, Esq., Deborah L. McHenry, Esq., Victor S. Woods, Esq., The Segal Law Firm, Charleston, WV, Michael A. Sullivan, Esq., Pro hac vice, Atlanta, GA, for Appellants.Ted Kanner, Esq., Charleston, WV, Robert D. Finkel, Esq., Pro hac vice, Pittsburgh, PA, for Appellee.

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

[226 W.Va. 634 , 704 S.E.2d 634]

erred in dismissing the case. Therefore, we reverse and remand this action to the circuit court.

I.
PROCEDURAL AND FACTUAL BACKGROUND

The plaintiff below and appellant herein, Edith Nezan, is a resident and citizen of Canada, and is the mother of Margaret O'Brien. She was appointed both in Canada and in West Virginia the representative of her daughter's estate. The defendants below and appellees are Shashi Sanwalka, a Canadian resident and citizen who is the father of Aditya Roy Sanwalka (hereinafter referred to as Roy Sanwalka) and the representative of his son's estate; and Aries Technologies, Inc., a Canadian corporation and part-owner of the airplane 1 that crashed in this case. Roy Sanwalka was the other part-owner of this airplane. Margaret O'Brien and Roy Sanwalka were at the times of their deaths residents and citizens of Canada.

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.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) 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

[226 W.Va. 635 , 704 S.E.2d 635]

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...

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13 practice notes
  • State ex rel. Third-Party Defendant Health Plans v. Nines, No. 20-0296
    • United States
    • Supreme Court of West Virginia
    • November 25, 2020
    ...statutes" and that the exercise of jurisdiction is consistent with "federal due process." Nezan v. Aries Techs., Inc. , 226 W. Va. 631, 637, 704 S.E.2d 631, 637 (2010).9 The circuit court applied this two-part inquiry and determined that MedTest satisfied both requirements. W......
  • Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., Nos. 16-0401, 16-0402.
    • United States
    • Supreme Court of West Virginia
    • September 14, 2017
    ...injury plaintiff is involved, "the plaintiff's choice of forum should rarely be disturbed." Nezan v. Aries Techs., Inc. , 226 W.Va. 631, 644, 704 S.E.2d 631, 644 (2010) (quoting Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ). The same holds true of ......
  • State v. Chafin, No. 13–0897.
    • United States
    • Supreme Court of West Virginia
    • March 27, 2014
    ...conveniens. In 2007, the Legislature codified this doctrine. Our standard of review remains the same. See Nezan v. Aries Techs., Inc., 226 W.Va. 631, 637, 704 S.E.2d 631, 637 (2010) (“On the issue of forum non conveniens, we have held that the standard of review of this Court is an abuse of......
  • State Va. Ex Rel. Mylan Inc. v. the Hon. Paul Zakaib, Nos. 11–0392
    • United States
    • Supreme Court of West Virginia
    • June 23, 2011
    ...non conveniens will not be reversed unless it is found that the circuit court abused its discretion.”); Nezan v. Aries Techs., Inc., 226 W.Va. 631, 637, 704 S.E.2d 631, 637 (2010) (“On the issue of forum non conveniens, we have held that the standard of review of this Court is an abuse of d......
  • Request a trial to view additional results
13 cases
  • State ex rel. Third-Party Defendant Health Plans v. Nines, No. 20-0296
    • United States
    • Supreme Court of West Virginia
    • November 25, 2020
    ...statutes" and that the exercise of jurisdiction is consistent with "federal due process." Nezan v. Aries Techs., Inc. , 226 W. Va. 631, 637, 704 S.E.2d 631, 637 (2010).9 The circuit court applied this two-part inquiry and determined that MedTest satisfied both requirements. W......
  • Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., Nos. 16-0401, 16-0402.
    • United States
    • Supreme Court of West Virginia
    • September 14, 2017
    ...injury plaintiff is involved, "the plaintiff's choice of forum should rarely be disturbed." Nezan v. Aries Techs., Inc. , 226 W.Va. 631, 644, 704 S.E.2d 631, 644 (2010) (quoting Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ). The same holds true of ......
  • State v. Chafin, No. 13–0897.
    • United States
    • Supreme Court of West Virginia
    • March 27, 2014
    ...conveniens. In 2007, the Legislature codified this doctrine. Our standard of review remains the same. See Nezan v. Aries Techs., Inc., 226 W.Va. 631, 637, 704 S.E.2d 631, 637 (2010) (“On the issue of forum non conveniens, we have held that the standard of review of this Court is an abuse of......
  • State Va. Ex Rel. Mylan Inc. v. the Hon. Paul Zakaib, Nos. 11–0392
    • United States
    • Supreme Court of West Virginia
    • June 23, 2011
    ...non conveniens will not be reversed unless it is found that the circuit court abused its discretion.”); Nezan v. Aries Techs., Inc., 226 W.Va. 631, 637, 704 S.E.2d 631, 637 (2010) (“On the issue of forum non conveniens, we have held that the standard of review of this Court is an abuse of d......
  • Request a trial to view additional results

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