Edith Nezan v. Aries Technologies, Inc., et al.

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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2010 Term No. 35495 FILED November 17, 2010 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA 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, ______________________________________________________ Appeal from the Circuit Court of Kanawha County The Honorable Louis H. Bloom, Judge Civil Action No. 08-C-3451 REVERSED AND REMANDED _____________________________________________________ Submitted: September 8, 2010 Filed: November 17, 2010 Scott S. Segal, Esq. Mark R. Staun, Esq. Deborah L. McHenry, Esq. Victor S. Woods, Esq. The Segal Law Firm Charleston, West Virginia Michael A. Sullivan, Esq. Pro hac vice Atlanta, Georgia Attorney for Appellants Ted Kanner, Esq. Charleston, West Virginia Robert D. Finkel, Esq. Pro hac vice Pittsburgh, Pennsylvania Attorneys for Appellee JUSTICE BENJAMIN delivered the opinion of the Court. CHIEF JUSTICE DAVIS DISQUALIFIED. JUDGE HUSTEAD, sitting by temporary assignment. 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' actions satisfy our personal jur s isdiction 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 fo rum state satisfy federal due process. Syllabus Point 2, Abbott v. Owens-Corning Fiberglass 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 nonr sident defendant. This due process lim e itation requires a state court to have personal jurisdiction over th nonresident defendant. Syllabus Point 1, Pries e 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 m ust 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 i forum state depends upon the facts of the individual case. One essential inquiry is whether the defendant has purposefully acted to obtain be nefits 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 cour to construe a statute according to its true intent, and t 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 consruction, though apparently warrant d by the literal sense of the t e 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 ofprocess upon the personal repr sentative of a non-resident s e estate. ii 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 erred in dism issing 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. Th e defendants below and appellees are Shashi Sanwalka, a Canadian resident and citizen who is the father of Aditya Roy Sanwalka (hereinafter referred to as RoySanwalka) and the representative of his son s 1 estate; and Aries Technologies,Inc., a Canadian corporation a part-owner of the airplane nd 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 resid ents and citizens of Canada. 1 The airplane was Mooney M20C Ranger, with the tail number C-FRSK. 1 The appellant s claim s 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 poss essed a Canadian private pilot s license. This license did not include an instrum rating.2 The sole passenger inthe airplane at the time ent of the crash was Margaret O Brien, Roy Sanw alka s girlfriend. Both Roy Sanwalka and O Brien were killed when the airplane crashe d in or near the Jefferson National Forest in Atkins, Virginia. The events leading up to the crash wereas follows: On March 14, 2008, Roy Sanwalka and O Brien left Ca nada en route to the Baham as. The airplane stopped in Buffalo, New York. The next day, Roy Sa nwalka 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, We st 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 2 An instrum ent rating is a certification showing that the pilot has the additiona l training to fly using navigational instrum as well as using his vision alone. A pilot whose ents license does not include an instrument rating must file a Visual Flight Rule (VFR) plan. A pilot whose license includes an instrument rating can file an Instrument Flight Rules (IFR) plan. Specifically, a pilot flying without an instrum rating does not have the ability to rely ent on navigational instrum ents to fly in clouds and through weather system s or in other conditions that would limit the pilot s visibility. 2 being certified with an instrum ent 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 Sanwalk contacted air traffic controllersrequesting permission a to drop to a lower altitude because of airframe icing on his airplane. Eleven minutes after that radio conversa tion, 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 allegatio n that the defendants we re subject to the jurisdiction of the court by virt e of defendants tortious acts and/or omissions in the State u of West Virginia that were the direct and proximate cause of the injuries and death of Margaret O Brien, as described below. 3 See footnote two for the different types of flight plans available to pilots flying a private, non-commercial aircraft. 3 The complaint further contains an a llegation that Roy Sanwalka m ade 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 m ade allegations that the corporation is jointly and severally liable forthe 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 cor oration. As such, any neglig p ence on the part of Roy Sanwalka would be imputed to Aries Technologies. The appellee, Shashi Sanwalka, as the re presentative 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 affidavitfrom an attorney an licensed to practice law in Canada, Bruce Garro Also submitted wasthe preliminary report w. of the National Transportation Safety Board (NTSB) investigation into the crash that gave rise to this proceeding. Sanwalka s affidavit confirm ed that Aries was owned in part by Roy Sanwalka. The affidavit also stated that Roy Sanwalka s estate was being administered in 4 Canada; that Roy Sanwalka s private pilot s license was obtained in Canada; that neither Shashi Sanwalka nor Roy Sanwalka owned property in West Vi ginia or regularly engaged r in business, solicited business or engaged in any other persistent course of conduct or derived substantial revenues fromgoods used or consum or services rendered in this state. ed 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 m any of the necessary witnesses reside in Canada. Counsel for Sanwalka accepted servic e of the Sum mons and Complaint on behalf of Aries. Counsel then filed a m otion to dismiss. Aries relied upon the pleadings and memorandum of law filed by Sanwalka in s upport of its m otion to dism iss the wrongful death action against the Estate of Roy Sanwalka.In addition, the sam attorneys represented e both Sanwalka and Aries. 5 Both appellees argued that the case should be dism issed in West Virginia because neither West Virginia s long-arm st atute nor notio ns o f federal due process authorized the Circuit Court of Kanawha C ounty to assert jurisd iction over the Canadian corporation or the Canadian citizen, Roy Sanwalka or his estate. In response to the m otions to dismiss by Sanwalka and Aries, the appellant submitted the affidavit of Richard P. Burgess, an aviation con sultant who was a certified flight instructor. Burgess opined that ha d Roy Sanwalka filed a VFR flight plan in accordance with his license, he would have been told by air traffic controllers that this type of flight was not recommended because of the AIRMETS 4 in effect at the time, including a low cloud ceiling, the mountain obscuration nd adverse layers ofclouds up to 15,000 feet a above ground level. At the time of Roy Sanwalka s filing of anIFR flight plan, the weather conditions in West Virginia indicated that th e base of the clouds in the sky were at 2,500 feet, with the tops at 15,000 feet, with th e freezing level at a pproximately 4,000 feet. Burgess also detailed that at some point while Roy Sanwalka was still in West Virginia airspace, he could have returned to Yeager Air port. Instead, he continued his flight until the airplane went down just outside of West Virginia. 4 AIRMET is an abbreviation for the Airm en s Meteorological Inform ation. According to a publication by the Aviation Weather Center in Kansas City, Missouri, an AIRMET advises of weather that m be hazardous to single engine, other light aircraft, and ay Visual Flight Rule (VFR) pilots. 6 By order entered Septem 16, 2009, he circuit court dismissed the complaint ber t of the appellant. In its order of dismissal, the circuit court first concluded that there was no jurisdiction ove r t he r espondents unde r t he We st Vi rginia l ong-arm s tatute, a s we ll a s insufficient minimum contacts for the court to act even if this state had jurisdiction. The court reasoned that the long-armstatute does not specifically au thorize service of process on the administrator, administratrix, executor or executrix of a non-resident, as opposed to the clear specific language in the non-resident m otorist long-arm statute 5 an d the statute governing non-resident bail bondsmen6. The circuit court found that two alternate forums existed in which to bring the claims of the appellant; first, the state of Virginia, where the airplane crash happened; and second, in Canada, where all of the parties reside. The circuit court reasoned that Virginia s wrongful death statute was similar to West Virginia s statute, and that Virginia has a similar long-arm statute for jurisdiction. The lower court s order stated [t]here can be no question that an act or omission occurred in the state of Virginia, as that is where the W.Va. Code §56-6-31 specifically states, in subparagraph (c) that a nonresident operating a motor vehicle in this state, either personally or through an agent, is considered acknowledge the appointm ent of th e secretary of state, or as the case m ay be, his or her automobile insuran ce co mpany, as his or her agent or atto rney-in-fact, or the agent or attorney-in-fact of his or her administrator, administratrix, executor or executrix... 5 6 W.Va. Code §56-3-34 in subparagraph (e) states that [ s]ervice of process upon a nonresident defendant shall be ma de by leaving the original and two copies of both the summons and com plaint...with the secretary of state...and said service shall be sufficient upon the nonre sident defendant or, if a natural person, his or her adm inistrator, administratrix, executor or executrix... 7 airplane crash actually occurred. Thus, under the Virginia long-arm statute, one that the circuit court noted was similar to West Virginia s, the altern ate forum of Virginia could exercise jurisdiction over all the parties. The lower court also found that the cause of action in this case accrued when the airplane piloted by the appe llee s decedent crashed in Virg inia. The sole contact the appellee s decedent had with West V irginia, according to the circuit court, was the unplanned stop. Once the airplane was refueled, the planned trip to the Baham continued. as Thus, reasoned the circuit court, Virginia, notWest Virginia, is the state where the cause of action accrued. The lower court s dism issal order alsocontained findings that even if theWest Virginia court had jurisdiction,the appellants did not allege sufficient minimum contacts for the exercise of jurisdiction. The court stated: Even viewing all allegations in the Plaintiff s Complaint in the light most favorable to the Plaintiff, the connection of the Defendants to West Virginia, as related to the airplane crash giving rise to the above cause of action, is tenuous at best. Although the decedent Roy Sanwal ka landed the airplane at Yeager Airport in Charleston, West Virginia, and then the next day, before taking off, refueled the airplane and filed a flight plan, it is unlikely that these brief and minimal contacts with West Virginia satisfy federal due process. Furtherm ore, the airplane crash occurred in Virgin not West Virginia, and thus, ia, Virginia is where the above causeactually accrued. Also, it [is] unlikely that the decedent s br ief contact w ith West Virginia made it foreseeable that he coul d be haled into co urt in West 8 Virginia. Thus, under federal due process, and based upon the tenuous contacts of the decedentwith West Virginia giving rise to the action, it would be unf air and unjust to require the Defendants to defend the above action in this State. As a second ground for dism issal of the a ppellant s complaint, the lower court further found that [e]ven if this Court does have personal jurisdiction over the Defendants under the West Virginia long-arm statute, dism issal of the above action is still proper under the doctrine of forum non conveniens. The circuit court stated that under West Virginia Code §56-1-1a, a circuit court shall decline to exercise juri sdiction under the doctrine of forum non conveniens and shall stay or dismiss the action, if it finds that in the interest of justice and the convenience of the parties a claim would be more properly heard in another forum, other than in the state. (Emphasis in original). T he circuit court s order acknowledged that the plaintiff s choice of forum is entitled to great deference, but if the plaintiff is a nonresident and the cause of action did not aris e in this state, this preference may be diminished under West Virginia Code §56-1-1a(a). (Emphasis in original). The appellant filed an appeal to the circuit court s order. On March 4, 2010, this Court accepted the appeal for further consideration. II. STANDARD OF REVIEW 9 This appeal d eals with three questions ; first, whether the circuit court s dismissal of the appellant s complaint for lack of personal jurisdiction was proper; second, whether for the purposes of the State s long-arm statute a personal representative of an estate may be served; and third, whether the lower court s finding that West Virginia was forum non conveniens for the adjudication of this wrongful death action was appropriate. This Court has held that [a]ppellate review of a circuit court s order granting a motion to dismiss a co mplaint is de novo. Syllabus Point 2, SER McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 462 S.E.2d 516 (1995). On the issue of forum non conveniens, we have held that the standard of review of this Court is an abuse of discretion. We stated as follows in Syllabus Point 3 of Cannelton Industries, Inc. v. Aetna Cas. & Sur. Co. of America, 194 W. Va. 186, 460 S.E.2d 1(1994): A circuit court's decision to invoke the doctrine of forum non conveniens will not be reversed unless it is found that the circuit court abused its discretion. III. DISCUSSION a. Personal Jurisdiction 10 The circuit court s dismissal of the appellant s action was based in part upon the lack of personal jurisdiction over Roy Sawalka and Aries Tec n hnologies, both Canadian citizens and/or entities, under both our long- arm statute and on grounds o f federal due process. After determining that the long-arm statute did not provide a service mechanism for a non-resident estate, the lower court found that the contacts between the state of West Virginia, Roy Sanwalka and Arie Technologies were lim s ited. Thus, it reasoned, an exercise of West Virginia jurisdiction over the Canadian estate and corporation would run afoul of due process protections afforded the non-resident appellees. The circuit court correctly applied a tw o-step analysis of whether there was jurisdiction in West Virginia for this wrongful death action. As we have stated, [a] court must use a two-step approach when analyzing whether pers onal jurisdiction exists over a foreign corporation or other nonresident. The first step i nvolves determining whether the defendant's actions satisfy our personal jurisd iction statu tes 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 foru state satisfy federal due process. Syllabus m Point 2, Abbott v. Owens-Corning Fiberglass Corp., 191 W. Va. 198, 444 S.E.2d 285 (1994). In terms of satisfying federal due process requirements, we have held: 11 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 judgm affecting the rights or interests ent of a nonresident defendant. Thisdue process lim itation 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) We have previously addressed the framework for situations where the lack of jurisdiction is raised as a d efense. In Syllabus Point 4 of State ex rel Bell Atlantic-West Virginia, Inc., v. Ranson, 201 W. Va. 402, 497 S.E.3d 755 (1997), we stated: When a defendant files a m otion to dismiss for lack for personal jurisdiction under W. Va. R. Civ. P. 12(b)(2), the circuit court may rule on the m otion upon the pleadings, affidavits and other documentary evidence or the cour may permit discovery to aid t in its decision. At this stage, the party asserting jurisdiction need only make a prima facie showing of personal jurisdiction in order to survive the mo tion to dismiss. In determining whether a party has m ade a pr ima facie showing of personal jurisdiction, the court must viewthe allegations in the light most favorable to such p arty, draw ing all inferences in favor of jurisdiction. If, however, th e court conducts a p retrial evidentiary hearing on the motion,or if the personal jurisdiction is litigated at trial, the party asserting jurisdiction must prove jurisdiction by a preponderance of the evidence. At the time of the instant dismissal, the lower courthad not held an evidentiary hearing on the motion and the jurisdiction issue was not litigated at trial. 12 We have also held that: In order to obtain personal jurisdiction over a nonresident defendant, reasonable notice of the suit m ust be given the defendant. There also m ust be a sufficient connection or minimum contacts between the defendant and the forum state so that it will be fair and just torequire a defense to be mounted in the forum state. Syllabus Point 2, Pries v. Watt, 186 W. Va. 49, 410 S.E.3d 285 (1991). Thus, for the purposes of our review of lower court s dismissal of this case the for lack of personal jurisdiction over Roy Sanwal estate, we m look to the allegations ka s ust contained in the complaint to ascertain whether the appellant made a prima facie showing of personal jurisdiction and then determine whether the contacts satisfy federal due process requirements. The complaint filed by the appellant alleged certain acts or omissions on the part of Roy Sanwalka, in this state. In paragraph 9, the appellant alleges that while in West Virginia, the defendants, through Roy Sanwalka, chose to continue to operate the airplane toward inclement weather. In paragraph 10, the appellant alle that Roy Sanwalka acted ges negligently in the flight plan that he made and implemented in Charleston, West Virginia, to consciously ignore those dangers and to proceed on his in tended course from Charleston across West Virginia. In paragraph 11, the appellant s complaint avers that Defendant s airplane operated by Roy Sanwal ka proceeded across the State of West Virginia on this 13 danger course, before reporting airframe ici ng. D efendant s airp lane, operated by Roy Sanwalka, nonetheless continued onward, rather than turning back. We next examine these allegations in lightof the statute regarding this state s jurisdiction over non-residents. West Virginia Code §56-3-33(2008), the long-arm statute, addresses actions by or againstnonresident persons having certain contacts with this state and establishes a mechanism for the secretary of state to accept service on their behalf.7 W.Va. Code §56-3-33 states: a) The engaging by a nonresiden or by his or her duly ( t, authorized agent, in any one or m of the acts specified in subdivisions (1) through (7) of ore this subsection shall be deem ed equivalent to an appointment by such nonresident of the Secretary of State, or his or her successor in o ffice, to be his or her true and lawful attorney upon whom may be served all lawf l process in any action orproceeding against him or her, u in any circuit court in this state, includi g an action or proceeding brought by a nonresident n plaintiff or plaintiffs, for a cause of action arising from or growing out of such act or acts, and the engaging in such act oracts shall be a significationof such nonresident's agreement that any such process against himor her, whic is served in the ma ner hereinafter provided, h n shall be of the sam e legal force and valid ity as though such nonres ident were personally served with a summons and complaint within this state: 7 (1) Transacting any business in this state; (2) Contracting to supply sevices or things in this r state; (3) Causing tortious injury by an act or omission in this state; (4) Causing tortious injury in this state by an act or om ission outside this state if he or she 14 (continued...) 7 (...continued) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consum ed or services rendered in this state; (5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he or she might reasonably have expected such person to use, consume or be affected by t he goods i n this state: Provided, That he or she also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or cons med u or services rendered in this state; (6) Having an interest in using or possessing real , property in this state; or (7) Contracting to insure any person, property or risk located within th is state at the time of contracting. (b) When jurisdiction over a nonr esident is based solely upon the provisions of this section, only a cause of action arising from or growing out of one or more of the acts specified in subdivisions (1) through (7), subsection (a) of this section may be asserted against him or her. (c) Service shall be m by leaving the original and two copies ade of both the summons and the complaint, and the fee required by section two, article one, chapter fifty-nine of this code with the Secretary of State, or in his orher office, and such service shall (continued...) 15 7 (...continued) be sufficient upon such nonresid ent: Provided, That notice of such service and a copy of the summons and complaint shall forthwith be sent by registered or certified mail, return receipt requested, by a means which may in clude electronic issuance and acceptance of electronic returnreceipts, by the Secretary of State to the defendant at his or her nonresident address and the defendant's return receipt signed by himself or herself or his or her duly authorized agent or the registered or certified m ail so sent by the Secretary of State wh is refused by the addressee ich and which registered or certif ied mail is returned to the Secretary of State, or to his or her office, showing thereon the stamp of the post-office departm ent that delivery has been refused. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk' office s of the court from which the process, notice or dem and was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State sh all return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. If any defendant served with su mmons an d complaint fails to appear and defend within thirty days of service, judgm ent by default m ay be rendered agai nst him or her at any tim e thereafter. The court m ay order such continuances as m ay be reasonable to afford the defe ndant opportunity to defend the action or proceeding. (d) The fee remitted to the secretary of state at the time of service shall be taxed in the costs of the action or proceeding. The secretary of state shall keep a record in his or her office of all such process and the day and hour of service thereof. (e) The following words and phrases when used in this section, , shall for the purpose of this sec tion and unless a different intent be apparent from the context, have the following meanings: (continued...) 16 7 (...continued) (1) Duly authorized agent means and includes among others a person who, at the direction of or with the knowledge or acquiescence of a nonresident, engages in such act or acts and includes among others a member of the family of such nonresident or a person who, at the residence, place of business or post office of such nonresident, usually receiv and receipts for m es ail addressed to such nonresident. (2) Nonresident means any person, other than voluntary unincorporated associations, who is not a resident of this state or a resident who has moved from this state subsequent to engaging in such act or acts, and am ong others includes a nonresident firm, partnership or corporation or a firm, partnership or cor oration which has m p oved from this state subsequent to any of said such act or acts. (3) Nonresident plaintiff or plaintiffs m eans a nonresident of this state who institutes an action or proceeding in a circuit court in this state having jurisdiction against a nonresident of this state pursuant to the provisions of this section. (f) The provision for service of pr ocess herein is cumulative and nothing herein contained shall be construed as a bar to the plaintiff in any action or pr oceeding from having process in such action served in any othe mode or manner provided by the r law of this state or by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction. (continued...) 17 As noted, this statute details seven circumstances through which a non-resident may be subjected to the jurisdiction of the West Virginia courts, and secondly, m ay be served through the secretary of state s office. Since the appellant need only make a prima facie showing of personal jurisdiction at the tim that this case was dismissed, we review the e appellant s original complaint in that light. The ap pellant s complaint alleged th at Roy Sanwalka m ade a series of negligent decisions while in the state of West Virginia. These decisions included the filing of an improper flight plan, a d initiating and continuing the fli toward the Bahamas in the n ght face of adverse weather. The appellant further alleges once the flight from Yeager Airport continued until the airp lane began icing, Roy Sanwalka nonetheless continued onward, rather than turning back. 7 (...continued) (g) This section shall not be retroactive and the p rovisions hereof shall not be available to a plaintiff in a cause of action arising from or growing out of any of said acts occurring prior to the effective date of this section. 18 Based upon the appellant s complaint, we believe that the circuit court erred in dismissing this case for lack of personal juri sdiction. The appellant alleged sufficient facts to show that Roy Sanwalka caused a tortious in by an act or om jury ission within this State, which would suffice under the l ong-arm statute as grounds for the West Virginia court to have jurisdiction. Thus, there were suffici ent allegations contai ned i n t he a ppellant s complaint to support the assertion that West Virginia had jurisdiction over the matter. However, the Supreme Court and this Court have held that personal jurisdiction over a non-resident defendant is alone not enough to support a state s exertion of authority. There must further be a show of minimum contacts by which the defendant ing purposefully avails [him] of the privilege of conducting activities within the forum state. self Pries, supra, at 51, 287. The evolution of the notion of minimum contacts was noted by Justice Workman in a decision involving use of thlong-arm statute to effectuate jurisdiction e over a non-resident father in achild support proceeding. InLozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310 (1991), we held: Prior to the enactment of the West Virginia long-arm statute in 1978, plaintiffs attempting to hale nonresidents into this state's tribunals were required to su ccessfully clear the m inimum contacts hurdle first enunciated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, L.Ed. 95 (1945). Id. 90 at 316, 66 S.Ct. at 158, 90 L.Ed. at 102. In International Shoe, the United States Suprem e Court ruled that due process requires only that in order to subject a defendant to a judgment in personam , if he be not pres ent within the territo ry o f the 19 forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Id. ( citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940), reh'g denied Milliken v. Meyer, 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941)). Applying the minimum contacts rule proved difficult, however, becau se the standard' s inherent vagueness left it subject to continuous and varying interpretation. See Harman v. Pauley, 522 F.Supp. 1130, 1136 (S.D.W.Va.1981) (noting that International Shoe min imum contacts rule failed to establis h any clear-cut param eters ... and thus courts were left to a case by case determ ination whenever the issue wa presented ). When min s imum contacts was the prevailing test fo exercising extraterritorial jurisdiction, r we think it is fair to suggest that many prospective plaintiffs may have been discouraged from instigating a cause of action against a nonresident given the uncertainty of convincing a given tribunal that the requisite minimum contacts with the forum state had been established. Lozinski at 313, 561. Here, the appellees argue that ther e were in sufficient min imum co ntacts between West Virginia, Roy Sanwalka and Aries to warrant the establishment of personal jurisdiction. In terms of Aries, the appellees argue that there is no connection whatsoever between this state and the Canad ian co rporation. There rem ains a factual dispute as to whether Roy Sanwalka was in fact an em ployee of Aries. The appellees note that the appellant s claim against Aries is on a theoryof vicarious liabilitybased upon the actions of Roy Sanwalka. The appellees contend that thesingle incident of landi g an airplane in West n Virginia while en route to the Bahamas, across part of Canada and several states within the 20 United States, does not establish the level of activity necessary to comport with federal due process requirements. Examining all the connections of Ariesand Roy Shanwalka to West Virginia, we note that the initial contacts between Roy Shanw alka and West Virginia were not fleeting. While his time here was brief, it was he where the cause of action arose. On top re of availing himself of West Virginia s airport facilities, he made certain decisions while in West Virginia that, when considered in the light most favorable to the plaintiff, led directly to the death of him self and Ms. O Brien. He f iled a flight plan that, in the eyes of the appellant s expert, was ill-advi sed and w as p erhaps unlawful. After he departed from Yeager Airport, Roy Sanwalka chose not to retu rn to C harleston when the airplane s airframe became iced in West Virginia. These were, in the final measure, significant not fleeting contacts with West Virginia. In terms of exercising jurisdiction over Aries, the appellants argue that Aries is culpable for the acts of R Sanwalka because he was acti g as their agent and em oy n ployee, was acting within the course a d scope of his em n ployment with Aries, and was operating the airplane with the authorization, perm ission and direction of Aries. Itis undisputed that Aries Technologies never transacted bus iness within West Virginia s borders, never traveled here on business or pleasure other than on the ill-fated occasion giving rise to this litigation or otherwise derived any benefits from West Virginia. However, it did own the airplane that 21 was being used by its alleged agent and employee Roy Sanwalka, who at the very least is a part-owner of the corporate entity and who wa s alleged to have been negligent in his operation of said aircraft. Moreover, we are unaware of any argum ent by Aries that Roy Sanwalka had improperly, or unlawfully, taken the airplane in question. In view of these circumstances, we believe it is not unreasonable to conclude that Aries had sufficient minimum contacts to warrant West Virginia s assertion of jurisdiction. Thus, we disagree with the circuit court s conclusion that there were insufficient minimum contacts to support a finding that West Virginia has jurisdiction over this matter as well as over Roy Sanwalkaand Aries Technologies. Although Roy Sanwalka was in West Virginia for less than a day, what transpired in that time resulted in sufficient minimum contacts to support an assertion of jurisdiction over this matter by West Virginia. b. Whether the long-arm statute authorizes service upon a non-resident s estate representative? Having established that the appellant s complaint did state sufficient grounds for the invocation of West Virginia jurisdiction over a wrongful death action, and that the appellees have sufficient minimum contacts for this assertion of jurisdiction, we must now determine whether service of process agai nst the appellees, first as the personal representative of the estate of the deceased pilot, Roy S anwalka, and against the foreign corporation partially owning the aircraft being piloted by the Roy Sanwalka, was properly 22 accomplished. We must resolve whether our st tutory language authorizes the effectuation a of service upon the personal repres entative of an estate. In th instant case, the respondents e argue that the long-arm statute does not au thorize service of process on a non-resident representative of an estate. As set forth above, West Virginia s long-arm statute, contained in W. VaCode . §56-3-33, details seven circum stances through which a non-residentmay be subjected to the jurisdiction of the West Virgin ia courts, and then be serv ed. W. Va. Code §56-3-33(e)(3) defines nonresident as anyperson, other than voluntary unincorporated associations, who is not a resident of this state or a reside nt who has m oved from this state subsequent to engaging in such act or acts. The definiti on includes a nonresident firm, partnership or corporation or a firm partnership or corpora , tion which has m oved from this state subsequent to any of said such act or acts. There is no explicit mention of jurisdiction or service upon the adm inistrator, administratrix, executo r, executrix or other personal re presentative for a deceased non resident whose action may fit within the seven detailed activities included in the long-arm statute. In the final order, the circuit court compared and contrasted this general long-arm statute to two other specific statutes dealing with actions against non-resident drivers8 and 8 W.Va. Code §56-3-31 (2008). 23 non-resident bail bondsmen.9 The specific language of these statutes explicitly names the personal representative of estates and details the role of the secretary of state in service of process. The circuit court concluded that it should not read intothe statute that which it does not say. The circuit court concluded that because the long-arm statute authorizing service of non-residents stood in derogati on of the com mon law, it m ust be strictly construed, citing Syllabus Point 3 ofPhillips v. Larry s Drive-In Pharmacy, Inc., 220 W.Va. 484, 486, 547 S.E.2d 920, 922 (2007) (citing Kellar v. James, 63 W.Va. 139, 59 S.E.2d 939 (1907) ). Furthermore, the circuit court found that statutes inderogation of the com mon law are given effect only to the extent clearly indicated by the language used, [and] as such, nothing may be added unless by necessary im plication arising from such language. Syllabus Point 4, Phillips, (citing Bank of Weston v. Thomas, 75 W. Va. 321, 83 S.E.2d 985 (1914). Finally, the circuit stated that the express mention of one thing implies the exclusions of another, in citing the statutory construction rule of expression unius est exclosuio alterius, as noted in Syllabus Point 6 of Phillips (citing Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984) ). While we acknowledge our previous holdings rega rding statutory interpretation to be s ound, we m ust refrain from creating the irrational situation where a 9 W.Va. Code §56-3-34 (2008). 24 cause of action plainly exists but where ther is no mechanism to se the offending party. e rve As the appellant noted, was there a rational reas n the Legislature meant to restrict the class o of persons subject to the juri sdiction of our c ourts, pa rticularly when it has otherwise provided for the initiation and continuation of actions against the personal representatives of deceased wrongdoers in other st tutory sections. Our wrongfuldeath statute states, in W. a Va. Code §55-7-5, that the right of action forwrongful death shall survive the death of the wrongdoer, and m ay be enforced against the ex ecutor or adm inistrator. Yet under the analysis of the circuit court,there would be no m echanism to serve the nonresident executor of a deceased tortfeasor. In the case sub judice, the appellant could sue in West Virginia but would have great difficulty in obtaining service upon Roy Sanwalka s estate. That would make no sense. We have held that in regard to stat utory construction, this Court should not create situations where a strict interpretation would lead to an unjust, much less senseless, result. We have held: It is the duty of a court to construe a statute according to its true intent, and give to it su ch 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 st atute, 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). 25 Therefore, while acknowledging our ru les of statutory construction and interpretation, we find that the circuit court was clearly wrong in its determination that the long-arm statute does not allow for the service ofa non-resident s estate. We conclude and hold that under the broad languageof West Virginia s long-arm statute, West Virginia Code § 56-3-33 authorizes service ofprocess upon the personal repr sentative of a non-resident s e estate. c. Forum non conveniens As a secondary ground for the dismissal of the petitioner s com plaint, the lower court cited the d octrine of forum non conveniens. We have previously defined the phrase as follows: Thecommon law doctrine offorum non conveniens is simply that a court may, in its sound discretion, decline to exercise jurisdiction to promote the convenience of witnesses and the ends of justice, even when jurisdiction and venue are authorized by the letter of a statute. Syllabus point 1, Norfolk & Western Railway Co. v. Tsapis, 184 W.Va. 231, 400 S.E.2d 239 (1990). This Court specifically adopted this com mon law doctrine in Norfolk & Western Railway Co. v. Tsapis, 184 W.Va. 231, 400 S.E.2d 239 (1990). In Syllabus Point 3 we stated: 26 The common law doctrine offorum non conveniens is available to courts of record in this State. The doctrine accords a preference to the plaintiff's choice of forum, but the defendant may overcome this preference by demonstrating that the forum has only a slight nexus to the subject matter of the suit and that another available forum exists which would enable the case to be tried substantially more in expensively and expeditiously. To the extent that Gardner v. Norfolk & Western Railway Co., 179 W.Va. 724, 372 S.E.2d 786 (1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1132, 103 L.Ed. d 193, (1989), declined to apply this 2 doctrine, it is overruled. The Legislature then codified forum non conveniens in W. Va. Code §56-11(a) in 2007. Amended in 2008, the statute reads, in pertinent part: (a) In any civil action if a c ourt of this state, upon a tim ely written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action would be more properly heard in a forumoutside this state, the court shall decline to exercise jurisdiction under the doctrine of forumnon conveniens and shall stay or dism iss the claim or action, or dismiss any plaintiff: Provided, That the plaintiff's choice of a forum is entitled to great deference, but this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in this state.In determining whether to grant a motion to stay or dism iss an action, or dismiss any plaintiff under the doctrine of forum non conveniens, the court shall consider: (1) Whether an alternate forum exists in which the claim or action may be tried; (2) Whether maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party; 27 (3) Whether the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the d efendants properly joined to the plaintiff's claim; (4) The state in which the plaintiff(s) reside; (5) The state in which th cause of action accrued; e (6) Whether the balance ofthe private interests of the parties and th e p ublic interest of the state predominate in favor of the claim or action being brought in an alternate fo rum, which shall include consideration of the extent to which an injury or death resulted from acts or om issions that occurred in this s tate. Factors relevant to the private interests of the parties include, but are not limited to, the relative easeof access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of willing w itnesses; possibility of a v iew of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Factors relevant to the public interest of the state include, but are not limited to, the administrative difficulties flowing from court congestion; the interest in having localized controversies decided within the state; the avoidance of unnecessary pr blems in conflict o of laws, or in the application of foreign law; and the u nfairness of burdening citizens in an unrelated forum with jury duty; (7) Whether not granting the stay or dism issal would result in unrea sonable duplication or proliferation of litigation; and (8) Whether the alternate forum provides a remedy. 28 In the case at bar, the lower court car efully analyzed the eight factors in determining that this case woul be dismissed on the grounds offorum non conveniens. As d the appellant admits, some of these factors standing alone would support the circuit court s decision. For example, there are clearly other forums in which this dispute could be tried, and each of those forums provides a remedy to th appellant. As this is a case involving an e international flight, with three potential forum for adjudication of this wrongful death action s (Canada, Virginia and West Virginia), there are similar diffi ulties presented in all forums. c Regardless of the selection of forum, there are out-of-state and even out-of-country witnesses whose relevant and pertinent testimony would have to be heard. The statute provides guidance to the court in determining what factors weigh more heavily in the determination of whether a case should be heard in an alternate forum. The statutory forum non conveniens provides a m echanism for the court to weigh the various factors, and places emphasis on the plaintiff s c oice of forum. What diminishes the choice h of forum within the language of the statute iswhether the plaintiff is a non-resident and the cause of action did not arise in this state. The statute states, in pertinent part: ....Provided, That the plaintiff s choice of a forum is entitled to great deference, but this preferen e may be dim c inished when the plaintiff is a nonresident and thecause of action did not arise in this state. W.Va. Code §56-1-1(a). 29 Prior to the enactment of this stat ute, the United States Supreme Court addressed forum non conveniens in two landmark cases. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839,91 L.Ed. 1055 (1947), andKoster v. Lumbermens Mutual Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947), the Suprem e Court established the premise that the plaintiff s choice of foru m is given great weight. The Court in Gulf Oil held: If the com bination and weight of factors requisite to given results are difficult to forecast or state, those to be co nsidered are not difficult to name. An interest to be considered, and the one likely to be m ost pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and thecost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that m ake trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability a jud gment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not , by choice of an inconvenient forum, vex, harass, or oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. (Emphasis supplied). In the case sub judice the circuit court s orde r recognized the statutory significance of the appellant s choice of foru m, but the lower court also found that the 30 appellant s cause of action did not arise within this state. If that in fact were the case we would have to give due deference to the lower court s decision. However, we do not agree with the lower court s assessment of whether the appellant s cause of action arose in this state. When balancing our clearly deferen tial appellate standard with the statutory preference for the appellant s choice of forum and the fact that the cause of action being pursued by the appellant actually ar se in this state, we concludethat the circuit court abused o its discretion in finding that West Virginia was the appropriate forum for this civil action. not Giving the appellant s choice of forum its due deference, we find that the Circuit Court of Kanawha County erred by dism issing this com plaint for forum non conveniens. The appellant is entitled to be heard in Kanawha County. IV. CONCLUSION For the foregoing reasons, the order of the Circuit Court of Kanawha County dated September 8, 2009, is reversed, and this matter remanded with directions to reinstate the complaint of the appellants. Reversed and remanded. 31 32

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