Virginia Lawyers Weekly VA Lawyers Weekly
Where the site of the decedent’s electrocution was the city of Galax in Carroll County, Va., a defense motion to change venue from the city of Richmond to Carroll County is denied.
The inconvenience of witnesses traveling from Carroll County to Richmond is outweighed by the inconvenience to three other defendants, plaintiff and plaintiff’s five witnesses.
Overview
Plaintiff’s decedent was electrocuted in Galax while working in a metal silo. Plaintiff alleges that low-hanging power lines caused the accident.
Plaintiff has sued two power companies and three Southern States (SS) entities: SS Galax, SS Carroll and SS Coop. SS Galax and SS Carroll have moved to change venue from the city of Richmond to Carroll County.
Locations
“The Power Company Defendants were incorporated in the state of Ohio and are authorized to conduct business in the Commonwealth of Virginia. The registered office for service of process for both Power Company Defendants is located in Glen Allen, Virginia. Further, the Power Company Defendants have maintained, at all times pertinent to this action, a regulatory and external affairs office in the City of Richmond. Defendant Southern States Coop, Inc. is headquartered in Richmond, Virginia. …
“In oral arguments at the hearing on March 17, 2023, counsel for the Southern States Defendants represented that the entities Defendant Southern States Coop, Inc., and SS Carroll and SS Galax should be considered separate entities as SS Carroll maintains its own board which controls the local stores, including the one maintained in the town of Galax located within Carroll County, Virginia.
“As such, any witnesses which would be appearing from Defendant Southern States Coop, Inc. would be unlikely to be domiciled in Carroll County.
“Defendants SS Carroll and SS Galax are located in Carroll County, Virginia, but maintain either registered agents in the City or Richmond or an office in Henrico County, Virginia.”
“Defendants SS Carroll and SS Galax presented to the Court evidence of multiple factual witnesses they asserted they would call at trial who are domiciled in and around Carroll County, including Brent Lundy and local law enforcement officers who responded to the scene.
“However, SS Carroll and SS Galax responded to discovery on March 6, 2023, 143 days after discovery was served on them by the Plaintiff. In the discovery responses, SS Carroll and SS Galax identified a single witness, Brent Lundy.
“The Plaintiff asserts necessary witnesses for their case related to the Southern States Defendants include Charles Payne; Steven Becraft; William Thomas Didlake, Jr.; Christopher Franklin; Ashley S. Brooks; and corporate representatives of Southern States.
“The Plaintiff further asserts that these witnesses all live within an easy distance of Richmond. This assertion by the Plaintiff was not rebutted by the Defendants.
“Further, the Power Company Defendants, incorporated in Ohio, would face substantial inconvenience in traveling to Carroll County as it is not conveniently located near an airport, unlike Richmond. Similarly, this assertion was not rebutted by the Defendants.
‘Williams’
“The authority for the Motion to transfer venue cited by Defendants SS Carroll and SS Galax is Norfolk and Western Ry. Co. v. Williams, 239 Va. 390 (1990). In Williams, the action involved a simple case of employer liability for a chair that fell backwards.
“Williams filed suit against a single defendant, his employer, for his fall and injury that occurred in Roanoke, Virginia, where he worked for the defendant employer. Williams brought suit in Portsmouth,
Virginia despite the fact that ‘no connection exists between said accident or cause of action and any business of’ the defendant within the jurisdiction of the City of Portsmouth and all known witnesses were from Roanoke or the surrounding area except a single witness for Williams from Richmond, Virginia. There were no witnesses located in Portsmouth.
“The Supreme Court of Virginia reversed the decision of the Circuit Court denying the Defendant’s Motion to Transfer Venue because there was ‘sufficient information to show good cause to transfer, including substantial inconvenience to the parties and witnesses, as well as indications of a forum originally selected for not simply justice, but perhaps justice blended with some harassment.’”
‘Williams’ distinguished
“These facts are substantially different than the facts in the present case. The present action involves five named defendants, each of whom are differently situated in terms of the convenience of their relative witnesses.
“Unlike in Williams, the Plaintiff in the present case plans to call more than five witnesses from the Southern States Defendants who live in the Richmond metro area. Further, the Defendants SS Carroll and SS Galax only named one potential witness in their responses to the Plaintiffs discovery, Mr. Brent Lundy. While Mr. Lundy testified that he lives in Carroll County, the inconvenience of a single witness cannot outweigh the inconvenience to the more than five witnesses listed by the Plaintiff.
“While the Defendants SS Carroll and SS Galax presented to the Court additional potential witnesses who would be inconvenienced by traveling to Richmond for trial, the fact that these potential witnesses were not disclosed in discovery strongly weighs against their consideration as a basis to transfer venue. …
“Not only do the Defendants maintain offices and receive service of process in Richmond, but the Plaintiff asserts, without rebuttal by the Defendant, that decisions central to the case were made by corporate representatives in and around the Richmond area.
Sole witness
“The sole witness for Defendants SS Carroll and SS Galax at the motions hearing … was Brent Lundy. Mr. Lundy was unable to testify as to who installed the silos or chose the location of the silos on the property as the silos were already affixed to the realty prior to him being employed at the Galax store location.
“Further, Mr. Lundy was unable to fully testify about the management agreement that would govern the relative responsibilities of Defendants SS Carroll, SS Galax, and Southern States Coop, Inc. …
“[T]he only factors addressed by Defendants SS Carroll and SS Galax are the inconvenience to some of the witnesses they represent they will call at trial and the mere possibilities that a party may, at some time in the future, file a motion requesting a scene view.
“Further, the fact that a motion is filed does not mean one will be granted.”
The motion to transfer venue is denied.
Thompson v. American Electric Power Service Corp., et al., Case No. CL22-3694, March 22, 2023. (Order) City of Richmond Circuit Court (McClenney). VLW 023-8-019, 8 pp.
