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No. 32266 -        State ex. rel. Nancy Vedder v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; and Nationwide Mutual Insurance Company


Benjamin, Justice, concurring:


            I concur with the majority's decision to deny the requested writ of mandamus in the instant matter and agree that Petitioner was dilatory in filing her motion to amend her complaint. I write separately to point out timing issues related to Petitioner's initiation of suit against other defendants in this matter which I find troubling.

            The automobile accident underlying Petitioner's initial complaint occurred on March 16, 2001. Shortly thereafter, Petitioner retained counsel who, by letter dated April 19, 2001, requested that Respondent store the subject Toyota vehicle until Petitioner's counsel could have an expert examine the same. Notwithstanding this request, and apparently unknown to Petitioner, Respondent sold the vehicle to a salvage yard in May 2001. After a contact by Petitioner's counsel in January 2002, Respondent informed Petitioner's counsel, by letter dated January 11, 2002, that the vehicle had been sold to a salvage yard. Within one week, on January 17, 2002, Respondent provided Petitioner's counsel with documents identifying the vehicle's purchaser. Petitioner, therefore had actual knowledge of the disposition and location of the subject vehicle by mid-January 2002. It perhaps goes without saying that had Petitioner acted at this point, the outcome on this appeal would arguably be different from that reached by the Court.

            More than one year after receiving the information regarding the vehicle's sale and disposition, and nearly two years after the subject accident, Petitioner filed a complaint in the Circuit
Court of Kanawha County, on March 14, 2003, naming as defendants Toyota Motor Sales, U.S.A., Inc., Toyota Motors Distributors, Inc. (hereinafter collectively “Toyota”), and Respondent, among others. Petitioner's complaint against Toyota asserted claims for negligence and products liability; yet no attempt was made by Petitioner to examine the vehicle prior to the filing of this pleading.

            As part of its discovery, Toyota itself sought to inspect the subject vehicle. On January 27, 2004, Toyota, accompanied by Petitioner's counsel, inspected the vehicle at the salvage yard and found the vehicle to be substantially altered. It appears from the limited record before this Court and the admissions of Petitioner's counsel at oral argument, that the January 27, 2004 inspection was the first viewing of the vehicle by Petitioner or her representatives after the March 16, 2001 accident. It further appears that this observation was simply a viewing and not a true inspection by Petitioner. Indeed, Petitioner's counsel sent a letter to Respondent's counsel indicating that he was attending the Toyota inspection to observe and would, based upon the results of the Toyota inspection, seek to have the vehicle inspected by Petitioner's expert at a later date. It is unclear when such a supposed later involvement of an expert by Petitioner would finally occur. It is, however, abundantly clear from the record in this alleged products liability case that as of almost three years after Petitioner's underlying accident, Petitioner had yet to even schedule an expert to examine the subject vehicle. More importantly, despite this failure to examine and inspect the vehicle, Petitioner, with the actual knowledge that the disposition of the subject vehicle was a salvage company proceeded to file a cause of action against Toyota which made factual claims of product defect.

            It seems clear now from the limited record before this Court and the admissions of counsel at oral argument that a complaint was filed by Petitioner against Toyota asserting claims based upon negligence and product defect despite Petitioner never inspecting, nor even attempting to inspect the subject vehicle to determine if a valid basis for such a claim existed. This initiation of a product liability claim without as much as an inspection or examination by Petitioner to establish evidentiary support for such a claim is disturbing. The fact that an accident occurred does not presuppose the existence of a product defect. Here, a reasonable and timely inquiry by Petitioner would not only have likely preserved her own rights vis-a-vis Nationwide, but also would have revealed the profound evidentiary problems with her product liability claim against Toyota prior to its filing.