State ex rel. Third-Party Defendant Health Plans v. Nines

Full title: State ex rel. Third-Party Defendant Health Plans, et. al. v. The Honorable…

Court: STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

Date published: Nov 25, 2020

852 S.E.2d 251 (W. Va. 2020)

Opinion

No. 20-0296 No. 20-0297

11-25-2020

STATE of West Virginia EX REL. THIRD-PARTY DEFENDANT HEALTH PLANS, et al., Petitioners v. The Honorable Shawn D. NINES, Presiding Judge Business Court Division, and MedTest Laboratories, LLC, Respondents State of West Virginia ex rel. Blue Cross and Blue Shield of Kansas, Inc., and HealthNow New York, Inc. d/b/a BlueCross BlueShield of Western New York, and BlueShield of Northeastern New York, Petitioners v. The Honorable Shawn D. Nines, Presiding Judge Business Court Division, and MedTest Laboratories, LLC, Respondents

Andrew B. Cooke, Esq., Thomas Combs & Spann, PLLC, Charleston, West Virginia, James C. Martin, Esq., Pro Hac Vice, William J. Sheridan, Esq., Pro Hac Vice, Gregory D. Vose, Esq., Pro Hac Vice, Reed Smith LLP, Pittsburgh, Pennsylvania, Martin J. Bishop, Esq., Pro Hac Vice, Bryan M. Webster, Esq., Pro Hac Vice, Daniel J. Hofmeister Jr., Esq., Pro Hac Vice, Reed Smith LLP, Chicago, Illinois, Counsel for Petitioners, Health Care Service Corporation, A Mutual Legal Reserve Company (operating as Blue Cross and Blue Shield of Texas; Blue Cross and Blue Shield of Illinois; Blue Cross and Blue Shield of Montana; Blue Cross and Blue Shield of Oklahoma; and Blue Cross and Blue Shield of New Mexico); Blue Cross and Blue Shield of Alabama; Premera Blue Cross; Highmark Inc.; Highmark BCBSD Inc. d/b/a Highmark Blue Cross and Blue Shield of Delaware; Blue Cross of Idaho Health Service, Inc.; Blue Cross and Blue Shield of Kansas City; Blue Cross and Blue Shield of Nebraska, Inc.; Noridian Mutual Insurance Company d/b/a Blue Cross Blue Shield of North Dakota; Blue Cross Blue Shield of Tennessee, Inc.; Blue Cross & Blue Shield of Wyoming. Benjamin L. Bailey, Esq., Samuel A. Hrko, Esq., Bailey & Glasser LLP, Charleston, West Virginia, Patrick J. Sheehan, Esq., Pro Hac Vice, Henry C. Quillen, Esq., Pro Hac Vice, Whatley Kallas, LLP, New York, New York, Counsel for Respondent, MedTest Laboratories, LLC. Melissa Foster Bird, Esq., Marc E. Williams, Esq., Nelson Mullins Riley & Scarborough LLP, Huntington, West Virginia, N. Thomas Connally, III, Esq., Pro Hac Vice, Hogan Lovells U.S. LLP, Tysons, Virginia, Counsel for Anthem, Inc.; Blue Cross of California d/b/a Anthem Blue Cross; Rocky Mountain Hospital and Medical Service, Inc. d/b/a Anthem Blue Cross and Blue Shield, Anthem Blue Cross and Blue Shield; Anthem Blue Cross and Blue Shield; Anthem Health Plans, Inc. d/b/a Anthem Blue Cross and Blue Shield of Connecticut; Blue Cross and Blue Shield of Georgia, Inc.; Anthem Insurance Companies, Inc. d/b/a Anthem Blue Cross and Blue Shield of Indiana; Anthem Health Plans of Kentucky, Inc. d/b/a Anthem Blue Cross and Blue Shield of Kentucky; Anthem Health Plans of Maine, Inc. d/b/a Anthem Blue Cross and Blue Shield of Maine; HMO Missouri, Inc. d/b/a Anthem Blue Cross and Blue Shield of Missouri; Anthem Blue Cross and Blue Shield of Nevada; Anthem Health Plans of New Hampshire, Inc. d/b/a Anthem Blue Cross and Blue Shield of New Hampshire; Empire HealthChoice Assurance, Inc. d/b/a Empire BlueCross BlueShield; Community Insurance Company d/b/a Anthem Blue Cross and Blue Shield of Ohio; Anthem Health Plans of Virginia, Inc. d/b/a Anthem Blue Cross and Blue Shield of Virginia, Inc.; Blue Cross Blue Shield of Wisconsin d/b/a Anthem Blue Cross and Blue Shield of Wisconsin. Eric W. Iskra, Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Counsel for Blue Cross Blue Shield of Michigan; and Capital Blue Cross. Michael J. Joyce, Esq., Saul Ewing Arnstein & Lehr LLP, Pittsburgh, Pennsylvania, Counsel for Capital Blue Cross. Thomas J. Hurney, Jr., Esq., Laurie M. Miller, Esq., Chelsea Creta, Esq., Jackson Kelly PLLC, Charleston, West Virginia, Covert J. Geary, Esq., Pro Hac Vice, Jones Walker LLP, New Orleans, Louisiana, Counsel for USAble Mutual Insurance Company d/b/a Arkansas Blue Cross and Blue Shield; Blue Cross and Blue Shield of Florida, Inc.; Louisiana Health Service and Indemnity Company, PAC d/b/a Blue Cross and Blue Shield of Louisiana; Blue Cross and Blue Shield of Massachusetts, Inc.; Blue Cross & Blue Shield of Mississippi, A Mutual Insurance Company; Blue Cross and Blue Shield of North Carolina; Blue Cross & Blue Shield of Rhode Island; Blue Cross Blue Shield of South Carolina; California Physicians’ Service, Inc. d/b/a Blue Shield of California; Excellus Health Plan, Inc. d/b/a Excellus BlueCross BlueShield; Cambia Health Solutions, Inc.; Regence BlueShield of Idaho, Inc.; Regence BlueCross BlueShield of Oregon; Regence BlueCross BlueShield of Utah; Regence BlueShield. Andrew B. Cooke, Esq., Thomas Combs & Spann, PLLC, Charleston, West Virginia, Coppersmith Brockelman PLC, Phoenix, Arizona, Counsel for Blue Cross and Blue Shield of Arizona, Inc. Paula L. Durst, Esq., Don C.A. Parker, Esq., Spilman Thomas & Battle PLLC, Charleston, West Virginia, Honor R. Costello, Esq., Pro Hac Vice, Crowell & Moring LLP, New York, New York, Rochelle-Leigh Rosenberg, Esq., Pro Hac Vice, Crowell & Moring LLP, Washington, D.C., Counsel for Blue Cross and Blue Shield of Kansas, Inc. and HealthNow New York Inc. d/b/a BlueCross BlueShield of Western New York and BlueShield of Northeastern New York.

ARMSTEAD, Chief Justice

Andrew B. Cooke, Esq., Thomas Combs & Spann, PLLC, Charleston, West Virginia, James C. Martin, Esq., Pro Hac Vice, William J. Sheridan, Esq., Pro Hac Vice, Gregory D. Vose, Esq., Pro Hac Vice, Reed Smith LLP, Pittsburgh, Pennsylvania, Martin J. Bishop, Esq., Pro Hac Vice, Bryan M. Webster, Esq., Pro Hac Vice, Daniel J. Hofmeister Jr., Esq., Pro Hac Vice, Reed Smith LLP, Chicago, Illinois, Counsel for Petitioners, Health Care Service Corporation, A Mutual Legal Reserve Company (operating as Blue Cross and Blue Shield of Texas; Blue Cross and Blue Shield of Illinois; Blue Cross and Blue Shield of Montana; Blue Cross and Blue Shield of Oklahoma; and Blue Cross and Blue Shield of New Mexico); Blue Cross and Blue Shield of Alabama; Premera Blue Cross; Highmark Inc.; Highmark BCBSD Inc. d/b/a Highmark Blue Cross and Blue Shield of Delaware; Blue Cross of Idaho Health Service, Inc.; Blue Cross and Blue Shield of Kansas City; Blue Cross and Blue Shield of Nebraska, Inc.; Noridian Mutual Insurance Company d/b/a Blue Cross Blue Shield of North Dakota; Blue Cross Blue Shield of Tennessee, Inc.; Blue Cross & Blue Shield of Wyoming.

Benjamin L. Bailey, Esq., Samuel A. Hrko, Esq., Bailey & Glasser LLP, Charleston, West Virginia, Patrick J. Sheehan, Esq., Pro Hac Vice, Henry C. Quillen, Esq., Pro Hac Vice, Whatley Kallas, LLP, New York, New York, Counsel for Respondent, MedTest Laboratories, LLC.

Melissa Foster Bird, Esq., Marc E. Williams, Esq., Nelson Mullins Riley & Scarborough LLP, Huntington, West Virginia, N. Thomas Connally, III, Esq., Pro Hac Vice, Hogan Lovells U.S. LLP, Tysons, Virginia, Counsel for Anthem, Inc.; Blue Cross of California d/b/a Anthem Blue Cross; Rocky Mountain Hospital and Medical Service, Inc. d/b/a Anthem Blue Cross and Blue Shield, Anthem Blue Cross and Blue Shield; Anthem Blue Cross and Blue Shield; Anthem Health Plans, Inc. d/b/a Anthem Blue Cross and Blue Shield of Connecticut; Blue Cross and Blue Shield of Georgia, Inc.; Anthem Insurance Companies, Inc. d/b/a Anthem Blue Cross and Blue Shield of Indiana; Anthem Health Plans of Kentucky, Inc. d/b/a Anthem Blue Cross and Blue Shield of Kentucky; Anthem Health Plans of Maine, Inc. d/b/a Anthem Blue Cross and Blue Shield of Maine; HMO Missouri, Inc. d/b/a Anthem Blue Cross and Blue Shield of Missouri; Anthem Blue Cross and Blue Shield of Nevada; Anthem Health Plans of New Hampshire, Inc. d/b/a Anthem Blue Cross and Blue Shield of New Hampshire; Empire HealthChoice Assurance, Inc. d/b/a Empire BlueCross BlueShield; Community Insurance Company d/b/a Anthem Blue Cross and Blue Shield of Ohio; Anthem Health Plans of Virginia, Inc. d/b/a Anthem Blue Cross and Blue Shield of Virginia, Inc.; Blue Cross Blue Shield of Wisconsin d/b/a Anthem Blue Cross and Blue Shield of Wisconsin.

Eric W. Iskra, Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Counsel for Blue Cross Blue Shield of Michigan; and Capital Blue Cross.

Michael J. Joyce, Esq., Saul Ewing Arnstein & Lehr LLP, Pittsburgh, Pennsylvania, Counsel for Capital Blue Cross.

Thomas J. Hurney, Jr., Esq., Laurie M. Miller, Esq., Chelsea Creta, Esq., Jackson Kelly PLLC, Charleston, West Virginia, Covert J. Geary, Esq., Pro Hac Vice, Jones Walker LLP, New Orleans, Louisiana, Counsel for USAble Mutual Insurance Company d/b/a Arkansas Blue Cross and Blue Shield; Blue Cross and Blue Shield of Florida, Inc.; Louisiana Health Service and Indemnity Company, PAC d/b/a Blue Cross and Blue Shield of Louisiana; Blue Cross and Blue Shield of Massachusetts, Inc.; Blue Cross & Blue Shield of Mississippi, A Mutual Insurance Company; Blue Cross and Blue Shield of North Carolina; Blue Cross & Blue Shield of Rhode Island; Blue Cross Blue Shield of South Carolina; California Physicians’ Service, Inc. d/b/a Blue Shield of California; Excellus Health Plan, Inc. d/b/a Excellus BlueCross BlueShield; Cambia Health Solutions, Inc.; Regence BlueShield of Idaho, Inc.; Regence BlueCross BlueShield of Oregon; Regence BlueCross BlueShield of Utah; Regence BlueShield.

Andrew B. Cooke, Esq., Thomas Combs & Spann, PLLC, Charleston, West Virginia, Coppersmith Brockelman PLC, Phoenix, Arizona, Counsel for Blue Cross and Blue Shield of Arizona, Inc.

Paula L. Durst, Esq., Don C.A. Parker, Esq., Spilman Thomas & Battle PLLC, Charleston, West Virginia, Honor R. Costello, Esq., Pro Hac Vice, Crowell & Moring LLP, New York, New York, Rochelle-Leigh Rosenberg, Esq., Pro Hac Vice, Crowell & Moring LLP, Washington, D.C., Counsel for Blue Cross and Blue Shield of Kansas, Inc. and HealthNow New York Inc. d/b/a BlueCross BlueShield of Western New York and BlueShield of Northeastern New York.

ARMSTEAD, Chief Justice: In this original jurisdiction proceeding, Petitioners, out-of-state Blue Cross Blue Shield Plans ("Blues"),¹ ask this Court to prevent the enforcement of the circuit court's March 27, 2020, order, and to grant the requested writ of prohibition dismissing them from the underlying civil action for lack of personal jurisdiction. The Blues contend that there is no allegation or evidence showing that they developed or maintained a substantial relationship with West Virginia or purposefully engaged in any forum-related conduct that gave rise to the claims asserted by Respondent MedTest Laboratories ("MedTest"). Therefore, the Blues argue, "any attempt to exercise specific jurisdiction violates the limits due process imposes."

1 Petitioners in case no. 20-0296 are Blue Cross and Blue Shield of Alabama; Anthem, Inc.; Health Care Service Corporation, A Mutual Legal Reserve Company; Cambia Health Solutions, Inc.; CareFirst, Inc.; Premera Blue Cross; Blue Cross and Blue Shield of Arizona, Inc.; USAble Mutual Insurance Company d/b/a Arkansas Blue Cross and Blue Shield; Blue Cross of California d/b/a Anthem Blue Cross; California Physicians’ Service, Inc. d/b/a Blue Shield of California; Rocky Mountain Hospital and Medical Service, Inc. d/b/a Anthem Blue Cross and Blue Shield; Anthem Blue Cross and Blue Shield; Anthem Health Plans, Inc. d/b/a Anthem Blue Cross and Blue Shield of Connecticut; Highmark Inc.; Highmark BCBSD Inc. d/b/a Highmark Blue Cross Blue Shield Delaware; Group Hospitalization and Medical Services, Inc. d/b/a CareFirst BlueCross BlueShield; Blue Cross and Blue Shield of Florida, Inc.; Blue Cross and Blue Shield of Georgia, Inc.; Blue Cross of Idaho Health Service, Inc.; Regence BlueShield of Idaho, Inc.; Blue Cross and Blue Shield of Illinois, Inc.; Anthem Insurance Companies, Inc. d/b/a Anthem Blue Cross and Blue Shield of Indiana; Wellmark, Inc. d/b/a Wellmark Blue Cross And Blue Shield of Iowa; Anthem Health Plans of Kentucky, Inc. d/b/a Anthem Blue Cross and Blue Shield of Kentucky; Louisiana Health Service and Indemnity Company, PAC d/b/a Blue Cross and Blue Shield of Louisiana; Anthem Health Plans of Maine, Inc. d/b/a Anthem Blue Cross and Blue Shield of Maine; CareFirst of Maryland, Inc. d/b/a CareFirst BlueCross BlueShield; Blue Cross and Blue Shield of Massachusetts, Inc.; Blue Cross Blue Shield of Michigan; BCBSM, Inc. d/b/a Blue Cross and Blue Shield of Minnesota; Blue Cross & Blue Shield of Mississippi, A Mutual Insurance Company; HMO Missouri, Inc. d/b/a Anthem Blue Cross and Blue Shield of Missouri; Blue Cross and Blue Shield of Kansas City; Caring for Montanans, Inc. f/k/a Blue Cross Blue Shield of Montana, Inc.; Blue Cross and Blue Shield of Nebraska, Inc.; Anthem Blue Cross and Blue Shield of Nevada; Anthem Health Plans of New Hampshire, Inc., d/b/a Anthem Blue Cross and Blue Shield of New Hampshire; Horizon Healthcare Services, Inc. d/b/a Horizon Blue Cross Blue Shield of New Jersey; Blue Cross and Blue Shield of New Mexico Insurance Company; Empire HealthChoice Assurance, Inc. d/b/a Empire BlueCross BlueShield; Excellus Health Plan, Inc. d/b/a Excellus BlueCross BlueShield; Blue Cross and Blue Shield of North Carolina; Noridian Mutual Insurance Company d/b/a Blue Cross Blue Shield of North Dakota; Community Insurance Company d/b/a Anthem Blue Cross and Blue Shield of Ohio; Blue Cross and Blue Shield of Oklahoma; Regence BlueCross BlueShield of Oregon; Capital Blue Cross; Independence Hospital Indemnity Plan, Inc.; Triples Salud, Inc.; Blue Cross & Blue Shield of Rhode Island; Blue Cross Blue Shield of South Carolina; Wellmark of South Dakota, Inc. d/b/a Wellmark, Blue Cross and Blue Shield of South Dakota; BlueCross BlueShield of Tennessee, Inc.; Blue Cross and Blue Shield of Texas; Regence BlueCross BlueShield of Utah; Blue Cross and Blue Shield of Vermont; Anthem Health Plans of Virginia, Inc. d/b/a Anthem Blue Cross and Blue Shield of Virginia, Inc.; Regence BlueShield; Blue Cross Blue Shield of Wisconsin d/b/a Anthem Blue Cross and Blue Shield of Wisconsin; and Blue Cross & Blue Shield of Wyoming. Petitioners in case no. 20-0297 are Blue Cross and Blue Shield of Kansas, Inc.; and HealthNow New York, Inc. d/b/a Blue Cross and Blue Shield of Western New York; and BlueShield of Northeastern New York. For ease of the reader, we refer to, and attribute arguments made by, Petitioners in case nos. 20-0296 and 20-0297 collectively as the "Blues."

After reviewing all matters of record, including the parties’ briefs, oral arguments, and the pertinent authorities, we grant the requested writ of prohibition.

I. FACTUAL AND PROCEDURAL BACKGROUND

This litigation began in October of 2018 when Highmark West Virginia, Inc. ("Highmark"), the Blue Cross Blue Shield health plan operating in West Virginia, sued MedTest, a laboratory testing company located in West Virginia. Highmark alleged that these "Defendants² billed Highmark WV for independent laboratory and diagnostic services that MedTest did not perform." Highmark sought to recover "more than $6 million because of the billing scheme" it alleged MedTest carried out. Highmark set forth seven counts in its complaint: 1) fraudulent misrepresentation and inducement; 2) breach of contract; 3) unjust enrichment; 4) civil conspiracy; 5) joint venture; 6) negligence; and 7) "Piercing the MedTest LLC veil."

2 Highmark named certain individuals along with MedTest in its complaint.

MedTest filed an answer, and counterclaimed with breach of contract and negligence claims against Highmark, alleging that

Highmark WV has breached the Network Agreement by refusing to compensate MedTest for laboratory testing services provided to subscribers of health insurance plans insured or administered by Highmark WV's fellow Blues through their National Networks, including but not limited to, their "Blue Card" networks,³ despite the fact that the Network Agreement requires it. Highmark WV's breaches of contract have caused MedTest millions of dollars in damages. MedTest therefore brings its Counterclaim for breach of contract to remedy these breaches.

3 According to MedTest, "the BlueCard Program ... gives members with BlueCard benefits access to medical providers nationwide."

(Footnote added).

MedTest's counterclaim named the Blues as third-party defendants. It asserted four causes of action against Highmark and the Blues: 1) fraudulent misrepresentation and inducement; 2) civil conspiracy; 3) joint venture; and 4) unjust enrichment. These claims are alleged in the alternative, that is, MedTest seeks relief from the Blues only if it cannot recover against Highmark. MedTest's complaint provides:

In the alternative, at all relevant times, Highmark and its fellow Blues have misrepresented to MedTest, other health care providers and members of their health insurance

plans that MedTest was an in-network provider of laboratory testing services, causing those health care providers and members to obtain laboratory testing services from MedTest for which Highmark and its fellow Blues have refused to provide compensation, causing MedTest to incur millions of dollars in losses attributable to laboratory testing services it provided without compensation.

MedTest asserted that the Blues entered into "a series of contracts" that require healthcare providers in West Virginia, including MedTest, to provide services to the Blues’ members, and for Highmark to process and pay claims for those services. MedTest explains that when a healthcare provider in West Virginia provides a service to an out-of-state member of the Blues, Highmark is responsible for processing the claim. Highmark, in turn, pays the provider, and is then reimbursed by one of the out-of-state Blues.

MedTest states that this contractual agreement is incorporated by reference in the "Network Agreement" between MedTest and Highmark. The "Network Agreement" provides:

To the extent that Highmark WV participates in national or interregional networks, Provider shall provide services as defined by said program to persons who have coverage under such programs. Compensation for such services ... shall be obtained from Highmark WV upon submission of a properly submitted claim form or electronic record/format documenting the services provided.

Additionally, MedTest alleged that Highmark and the Blues listed MedTest as an in-network provider on their respective websites. According to MedTest, it "relied on these listings in performing laboratory services to members of health insurance plans insured or administered by Highmark WV's fellow Blues."

MedTest asserted that the circuit court had jurisdiction over "the Defendants" (Highmark and the Blues) for several reasons. First, "all Defendants have significant business in and contacts with West Virginia through national Blue Cross and Blue Shield programs, including the Blue Card Program, in that their members receive laboratory services and other health care services performed in West Virginia." Next, MedTest provided laboratory services to "one or more of each of the Defendants’ members under these national programs." Finally, MedTest asserted that "all of the [Blues] have conspired with Highmark WV."⁴

4 Regarding the conspiracy allegations, MedTest contends that

Highmark WV and its fellow defendants [the Blues] combined, through concerted action, to accomplish an unlawful purpose by devising and perpetrating a fraudulent scheme to induce MedTest to provide laboratory testing services to their health insurance plan members without paying for them, carrying out that scheme by representing to MedTest, other health care providers and their health insurance plan members that MedTest was an in-network provider of laboratory testing services but refusing to compensate MedTest for the provision of such services.

The Blues filed a motion to dismiss for lack of personal jurisdiction, asserting that they had no relevant jurisdictional contacts with West Virginia.⁵ The circuit court⁶ denied the motion to dismiss. It noted that "[i]t has been pled that each of the Blues entered into a series of contracts that require performance in West Virginia by Highmark WV and MedTest." Accordingly, it ruled that in order to participate in the national program described in the pleadings, "the Blues have made a contract to be performed in whole [or] in part, by any party thereto in this state." (Internal quotation omitted). Therefore, the circuit court concluded that MedTest's claims against the Blues satisfied West Virginia's long-arm statutes, W. Va. Code §§ 31D-15-1501(d)(1) (2008), and 31E-14-1401(d)(1) (2008).

5 This motion was filed pursuant to Rule 12(b)(2) of the West Virginia Rules of Civil Procedure, which provides

[e]very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (2) lack of jurisdiction over the person[.]

6 This matter was referred to the Business Court Division by an administrative order entered by this Court on July 22, 2019.

The circuit court next considered whether the Blues "have minimum contacts with West Virginia for the purposes of federal due process." It determined that the Blues purposefully availed themselves of the privilege of conducting business in West Virginia by listing MedTest as an in-network provider on their website, which the circuit court described as an "online version of the paper directory of providers." The circuit court noted that "it is claimed that [the Blues] held out and advertised to insureds/subscribers that they could send samples to MedTest, a West Virginia Limited Liability Company, and that they would pay for MedTest's services[.]" The circuit court found the foregoing was not random or fortuitous, rather, it was built into the design of the Blues’ health plans. Further, it reasoned that because the Blues represented to their subscribers that they could use MedTest's services, the Blues should have been reasonably aware that they could be haled into court in West Virginia.

The circuit court also rejected the Blues’ argument that "any connection with West Virginia is not established by the Blues themselves":

The [circuit] [c]ourt considers the Blues’ argument ... that any connection with West Virginia is not established by the Blues themselves, but only because of their members, or their health care provider, chose to seek medical care in West Virginia or had their laboratory samples sent to MedTest, the West Virginia company at issue here. The [circuit] [c]ourt, however, concludes that these instances of contact with West Virginia could have occurred when a member or their health care provider relied on the Blues’ representations in online directories and lists of covered providers that indicated instances of contact with West Virginia would be covered health services.... Therefore, the Third-Party Defendants [the Blues] would have created the connection with West Virginia, by putting MedTest on their online directory and/or lists.

Next, the circuit court found five "reasonableness" factors weighed in MedTest's favor.⁷ Finally, the circuit court concluded that "because MedTest has pled a claim for conspiracy, it has undoubtedly established jurisdiction here." Following entry of the circuit court's March 27, 2020 order, the Blues filed the instant writ.⁸

7 The circuit court concluded that: 1) there is no burden on the Blues because they "[chose] to do business with companies headquartered in" West Virginia "while building a national network;" 2) West Virginia has an interest in allowing companies located in West Virginia to litigate claims against out-of-state defendants in West Virginia; 3) MedTest has an interest in obtaining relief in West Virginia because it would otherwise have to file suits all across the country; 4) it is more efficient for the judicial system to have these claims heard in one court; and 5) it furthers no substantive social policy to make recovery difficult for MedTest by forcing it to litigate in dozens of jurisdictions. These factors are contained in syllabus point ten of SER Ford Motor Co. v. McGraw , 237 W. Va. 573, 788 S.E.2d 319 (2016). We discuss this syllabus point in the "Analysis" section of this Opinion.

8 Petitioners in case no. 20-0297 filed a renewed motion to dismiss after the circuit court entered its March 27, 2020, order. The circuit court denied the renewed motion to dismiss "[f]or the reasons contained within the Court's March 27, 2020, Order" on April 14, 2020.

II. STANDARD OF REVIEW

This Court has provided that "[a] writ of prohibition lies as a matter of right whenever the inferior court (a) has [no] jurisdiction or (b) has jurisdiction but exceeds its legitimate powers[.]" State ex rel. Farber v. Mazzone , 213 W. Va. 661, 664, 584 S.E.2d 517, 520 (2003) (Internal citation and quotation omitted). Further, "[w]hen a court is attempting to proceed in a cause without jurisdiction, prohibition will issue as a matter of right regardless of the existence of other remedies." Syl. Pt. 10, Jennings v. McDougle , 83 W. Va. 186, 98 S.E. 162 (1919).

The issue in this case is whether the Blues are subject to the jurisdiction of this State. "Where a court lacks jurisdiction over a nonresident defendant, prohibition is the appropriate remedy to prevent further prosecution of the suit." Pries v. Watt , 186 W. Va. 49, 53, 410 S.E.2d 285, 289 (1991). We have held the following with respect to a nonresident defendant's motion to dismiss for lack of personal jurisdiction:

When a defendant files a motion to dismiss for lack of personal jurisdiction under W. Va. R. Civ. P. 12(b)(2), the circuit court may rule on the motion upon the pleadings, affidavits and other documentary evidence or the court may permit discovery to aid 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 motion to dismiss. In determining whether a party has made a prima facie showing of personal jurisdiction, the court must view the allegations in the light most favorable to such party, drawing all inferences in favor of jurisdiction. If, however, the court conducts a pretrial evidentiary hearing on the motion, or if the personal jurisdiction issue is litigated at trial, the party asserting jurisdiction must prove jurisdiction by a preponderance of the evidence.

Syl. Pt. 4, State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson , 201 W. Va. 402, 497 S.E.2d 755 (1997).

Finally, this Court has held, "[t]he standard of jurisdictional due process is that a foreign corporation must have such minimum contacts with the state of the forum that the maintenance of an action in the forum does not offend traditional notions of fair play and substantial justice." Id. , Syl. Pt. 6 (Internal citation and quotation omitted).

With these standards as guidance, we consider the parties’ arguments.

III. ANALYSIS

The Blues seek to prohibit enforcement of the circuit court's March 27, 2020, order denying their motion to dismiss for lack of personal jurisdiction. We note at the outset that we find the dispositive issue to be whether the Blues’ contacts with West Virginia satisfy federal due process. In reviewing this issue, we will examine personal jurisdiction in the context of due process, including a discussion of specific jurisdiction. We will also address the parties’ arguments on whether MedTest's conspiracy claim establishes jurisdiction over the Blues.

To establish personal jurisdiction, a plaintiff must show that "the defendant's actions satisfy [West Virginia's] personal jurisdiction 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. While the Blues contest both of the circuit court's conclusions, we focus mainly on the second part of the test—whether the exercise of jurisdiction over the Blues is consistent with federal due process.¹⁰ In reviewing whether the exercise of jurisdiction over the Blues is consistent with federal due process, we begin by noting that

9 See Syl. Pt. 3, SER Ford Motor Co. v. McGraw , 237 W. Va. 573, 788 S.E.2d 319 (" ‘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 [2015] and W. Va. Code, 56-3-33 [2012]. The second step involves determining whether the defendant's contacts with the forum state satisfy federal due process.’ Syllabus point 5, Abbott v. Owens-Corning Fiberglas Corp. , 191 W.Va. 198, 444 S.E.2d 285 (1994), superseded by statute on other grounds as stated in State ex rel. Ford Motor Co. v. Nibert , 235 W.Va. 235, 773 S.E.2d 1 (2015).").

10 The circuit court found that MedTest satisfied W. Va. Code § 31D-15-1501(d)(1) ("A foreign corporation is deemed to be transacting business in this state if: (1) The corporation makes a contract to be performed, in whole or in part, by any party thereto in this state;"), and W. Va. Code § 31E-14-1401(d)(1) ("A foreign corporation is to be deemed to be conducting affairs in this state if: (1) The corporation makes a contract to be performed, in whole or in part, by any party thereto, in this state;"). It found these statutes were satisfied based on its conclusion that in order to participate in the national program described in the pleadings, "the Blues have made a contract to be performed in whole [or] in part, by any party thereto in this state." The Blues contend this ruling was erroneous because the circuit court did not identify any specific contract and "erred in finding that a nebulous ‘series of contracts’ was sufficient to establish personal jurisdiction when MedTest did not allege that [the Blues were] a party to any contract requiring performance by a party in West Virginia." Because we conclude that the exercise of jurisdiction over the Blues is not consistent with federal due process, we need not engage in a lengthy discussion of the circuit court's ruling that MedTest satisfied these statutes.

[t]he 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.

Syl. Pt. 1, Pries v. Watt , 186 W. Va. 49, 410 S.E.2d 285.¹¹

11 See World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980) (the Due Process Clause of the Fourteenth Amendment constrains a State's authority to bind a nonresident defendant to a judgment of its courts.).

As set forth in the seminal case on "minimum contacts," a state may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has "certain minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ " International Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (Citation omitted). The due process standard for determining whether a court may exercise personal jurisdiction over a nonresident involves an examination of the defendant's contacts with the forum state.

Personal jurisdiction may be either general¹² or specific. There is no dispute in the present matter that specific jurisdiction applies. The United States Supreme Court has described specific jurisdiction as follows: "Specific or case-linked jurisdiction depends on an affiliatio[n] between the forum and the underlying controversy (i.e., an activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation)." Walden v. Fiore , 571 U.S. 277, 283 n. 6, 134 S.Ct. 1115, 1121, n. 6, 188 L.Ed.2d 12 (2014) (Internal citation and quotation omitted).

12 See Syl. Pt. 5, State ex rel. Ford Motor Co. v. McGraw, 237 W. Va. 573, 788 S.E.2d 319 ("A court may assert general personal jurisdiction over a nonresident corporate defendant to hear any and all claims against it when the corporation's affiliations with the State are so substantial, continuous, and systematic as to render the nonresident corporate defendant essentially at home in the State.").

This Court has set forth three main inquiries to consider when examining specific jurisdiction: 1) purposeful availment, that is, whether a defendant has purposefully availed itself of the privilege of conducting activities within the forum; 2) whether the controversy arises out of or relates to the defendant's activities in the forum; and 3) whether the exercise of jurisdiction is reasonable and comports with fair play and justice. This Court discussed these factors in State ex rel. Ford Motor Co. v. McGraw (" Ford "):

The inquiry in specific jurisdiction "focuses on the relationship among the defendant, the forum, and the litigation." Walden v. Fiore , 571 U.S. 277, 282–84, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014). The specific jurisdiction analysis for determining whether a forum's exercise of jurisdiction over a nonresident defendant meets due process standards is multi-pronged. The first prong requires a determination that the nonresident defendant has minimum contacts with the forum. Establishing minimum contacts involves an examination of whether the defendant purposefully availed itself of the privilege of conducting activities within the forum. Two general methods for assessing minimum contacts for purposes of specific personal jurisdiction are stream of commerce and stream of commerce plus. To meet the second prong, it must be determined that the plaintiff's claims arise out of or relate to the defendant's contacts with the forum. Under the third prong, it must be constitutionally reasonable to assert the jurisdiction so as to comport with fair play and justice. The reasonableness factors were identified in Asahi Metal Industry Co. v. Superior Court of California , 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), and include considering "the burden on the defendant," "the interests of the forum State," "the plaintiff's interest in obtaining relief," "the

interstate judicial system's interest in obtaining the most efficient resolution of controversies," and "the shared interest of the several States in furthering fundamental substantive social policies." Id. at 113, 107 S.Ct. at 1033, 94 L.Ed.2d 92 (internal quotations and citation omitted).

Ford , 237 W. Va. at 589, 788 S.E.2d at 335.

The Court in Ford distilled the foregoing analysis into three syllabus points:

A court may assert specific personal jurisdiction over a nonresident defendant to hear claims against the defendant arising out of or relating to the defendant's contacts or activities in the state by which the defendant purposefully avails itself of conducting activities in the state so long as the exercise of jurisdiction is constitutionally fair and reasonable.

The purposeful availment requirement of specific personal jurisdiction ensures that a defendant will not be haled into a jurisdiction as a result of isolated, fortuitous, or random acts.

The specific personal jurisdiction fairness and reasonableness inquiry may, in appropriate cases, include, but is not limited to, considering the burden on the defendant, the interests of the state, the interest of the plaintiff in obtaining relief, the interstate judicial system's interest in obtaining efficient resolution of controversies, and the shared interests of states in furthering fundamental substantive social policies. The analysis is case specific, and all factors need not be present in all cases.

Id. , Syl. Pts. 8, 9, & 10, 237 W. Va. 573, 788 S.E.2d 319.

As noted by this Court in Ford , the United States Supreme Court provided guidance on specific jurisdiction in Walden . The Supreme Court in Walden emphasized two considerations a court should undertake when analyzing whether the exercise of specific jurisdiction is appropriate. First, "the relationship must arise out of contacts that the defendant himself creates with the forum State.... Due process limits on the State's adjudicative authority principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or third parties." 571 U.S. at 284, 134 S.Ct. at 1122 (Internal citation and quotation omitted). The Court in Walden noted that it has "consistently rejected attempts to satisfy the defendant-focused minimum contacts inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State." Id. (Internal citation and quotation omitted). Similarly, the second consideration the Supreme Court emphasized was that "our ‘minimum contacts’ analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." 571 U.S. at 285, 134 S.Ct. at 1122.

The Supreme Court addressed specific jurisdiction in another recent case, Bristol-Myers Squibb Co. v. Superior Court of California , ––– U.S. ––––, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017). It held that "[i]n order for a state court to exercise specific jurisdiction, the suit must aris[e] out of or relat[e] to the defendant's contacts with the forum." Id. ––– U.S. at ––––, 137 S.Ct. at 1780 (Internal citation and quotation omitted). The Court explained,

[i]n other words, there must be "an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Goodyear [Dunlop Tires Operations, S.A. v. Brown], 564 U.S. [915] at 919, 131 S.Ct. 2846 [180 L.Ed.2d 796 (2011)] (internal quotation marks and brackets omitted). For this reason, "specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction." Ibid. (internal quotation marks omitted).

Id.

The Supreme Court in Bristol-Myers noted a variety of interests that must be considered in determining whether personal jurisdiction is present, including the interests of the forum State and the plaintiff in proceeding with the cause of action in the plaintiff's forum of choice. Id. While noting these interests, the Supreme Court provided that "the primary concern is the burden on the defendant." Id. ¹³

13 The Supreme Court described factors to consider when assessing the burden on the defendant:

Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question.... As we explained in World-Wide Volkswagen , "[e]ven if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment." Id. , at 294, 100 S.Ct. 559.

––– U.S. at ––––, 137 S.Ct. at 1780-1781.

With our ruling in Ford , and the Supreme Court's ruling in Walden and Bristol-Myers in mind, we turn to the parties’ arguments on the first prong of our specific jurisdiction test—purposeful availment. The Blues contend that there is no allegation or evidence showing that they developed or maintained a substantial relationship with West Virginia or purposefully engaged in any forum-related conduct giving rise to MedTest's claims. Therefore, the Blues claim any attempt to assert specific jurisdiction over them violates the limits due process imposes. Further, according to the Blues, the circuit court arrived at its ruling by erroneously relying on MedTest's and Highmark's forum contacts, combined with the Blues’ connections to Highmark under their national BlueCard program, and their plan members’ hypothetical connection through their websites. The Blues assert that these connections fall far short of establishing specific jurisdiction over them.

By contrast, MedTest argues that the Blues encourage their members to use healthcare providers in their networks, and advertise that MedTest, a West Virginia company, is in those networks. Further, MedTest asserts that it is required by contract to serve the Blues’ members, and to submit claims for its services to Highmark in West Virginia. Pursuant to its contracts with the Blues, Highmark is required to process those claims in West Virginia, and pay MedTest in West Virginia. Per those same contracts, the Blues reimburse Highmark in West Virginia. MedTest asserts that when Highmark and the Blues decided to stop paying for MedTest's services, MedTest was injured in West Virginia. Thus, MedTest states that "[t]here is nothing random, fortuitous, unexpected, unfair, or unconstitutional about making the [Blues] defend claims by MedTest in West Virginia: a state the [Blues] have chosen to incorporate deeply into their business model, and the state at the heart of the conduct giving rise to Med Test's claims."

After review, we find the circuit court erred by concluding that it was proper to exercise specific jurisdiction over the Blues. Under our ruling in Ford , and the Supreme Court's ruling in Walden and Bristol-Myers , we find that the Blues have not purposefully availed themselves of the privilege of conducting business in West Virginia.

As noted by the Supreme Court in Walden , "it is the defendant, not the plaintiff or third parties, who must create contacts with the forum State." 571 U.S. at 291, 134 S.Ct. at 1126. Stated differently, the question is whether "the defendant's actions connect him to the forum." 571 U.S. at 289, 134 S.Ct. at 1124. None of the Blues have their principal places of business in West Virginia. The Blues have not directly solicited business in West Virginia. They have no offices or employees in West Virginia. "[A]lthough physical presence in the forum is not a prerequisite to jurisdiction, ... physical entry into the State—either by the defendant in person or through an agent, goods, mail, or some other means—is certainly a relevant contact." 571 U.S. at 585, 134 S.Ct. at 1122. (Internal citation omitted). Similarly, as MedTest concedes in its brief to this Court, none of the Blues have a direct contract with MedTest. As counsel for the Blues noted during oral argument, MedTest has not asserted a breach of contract claim against the Blues.

While the Blues have no physical presence in West Virginia, or any direct contracts with MedTest, the circuit court concluded that purposeful availment was satisfied based on: 1) the injury or potential injury MedTest could suffer by being listed as an in-network provider by the Blues; 2) the Blues’ participation in the national BlueCard program; and 3) MedTest being listed as an in-network provider on the Blues’ websites. We find these instances cited by the circuit court do not establish purposeful availment.

The circuit court's order provides:

[The Blues] advertised to their subscribers that they could use MedTest's services and be covered, and [if they] failed to pay for those services, then the [Blues] should have been aware that they could cause injury in West Virginia to the West Virginia corporation and should have reasonably anticipated being haled into court in West Virginia.

We find the potential injury that MedTest could suffer by being listed as an in-network provider is not sufficient to subject the Blues to specific jurisdiction in West Virginia. In Walden , the Supreme Court provided that "mere injury to a forum resident is not a sufficient connection to the forum." 571 U.S. at 290, 134 S.Ct. at 1125. It explained that

[r]egardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State. The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way.

Id. (Emphasis added). Thus, the relevant jurisdictional inquiry is not whether MedTest could suffer an injury because the Blues advertised to their subscribers that they could use MedTest's services. Rather, the relevant jurisdictional inquiry is whether the Blues’ inclusion of MedTest as an in-network provider in their national network creates a sufficient connection between the Blues and West Virginia to satisfy our purposeful availment test. As discussed below, we conclude it does not.

The mere fact that the Blues participate in a national program, the BlueCard program, does not, by itself, constitute purposeful availment. The Blues assert that "even if a health plan is willing to reimburse for services delivered to its members in other states, the members’ choices in seeking that out-of-state treatment do not equate with the health plan directing commercial activity at the other forum." We agree.

As noted in a recent decision from a court outside of our jurisdiction:

Courts throughout the country have addressed similar jurisdictional issues in the healthcare context and have generally held that an insurer or third-party administrator does not avail itself of the privilege of doing business in a particular state simply because the insured chose a medical provider in that particular forum and the insurer or third-party administrator pre-approved treatment or paid medical bills.

Wiegering v. Blue Cross & Blue Shield of Massachusetts, Inc., No. 16-23031-CIV, 2017 WL 1294907, *8 (S.D. Fla. Feb. 2, 2017).

Similarly, the Fifth Circuit held that a Louisiana court lacked personal jurisdiction over an out-of-state insurance company whose insured members sought treatment from the plaintiffs, medical services providers, in Louisiana. Choice Healthcare, Inc. v. Kaiser Found. Health Plan of Colo. , 615 F.3d 364, 366-67 (5th Cir. 2010). The insurance company paid the plaintiff in the forum state for rendering services to the insurance company's insured members. Id. , 615 F.3d at 369. The court held that the insurance company's "payment of a limited number of claims for treatment of [the insurance company's] insureds, based on the unilateral decisions of those insureds who sought treatment in Louisiana , does not establish purposeful contact[.]" 615 F.3d at 369-70 (Emphasis added). The court found that the insurance company "was not attempting to expand sales to Louisiana or otherwise develop commercial activity in Louisiana." 615 F.3d at 370.¹⁴ Consistent with the foregoing cases, we conclude that participating in the BlueCard Program is not a sufficient basis upon which a West Virginia court may exercise specific jurisdiction over the Blues. The BlueCard Program simply does not constitute the type of deliberate, targeted activity directed at West Virginia sufficient to find purposeful availment. The only direct contract accompanying the Blues’ participation in the national program is its agreement to reimburse Highmark for services it provides to Blues’ members. However, a contract alone does not automatically establish minimum contacts in the plaintiff's home forum. Burger King Corp. v. Rudzewicz , 471 U.S. 462, 478, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985). Rather, there must be "actions by the defendant himself that create a ‘substantial connection’ with the forum State." Id. , 471 U.S. at 475, 105 S.Ct. at 2184. We find there are no actions by the Blues in this case that create a "substantial connection" with West Virginia.

14 See also D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd. , 566 F.3d 94, 104 (3d. Cir. 2009) ("[Defendant's] efforts to exploit a national market necessarily included Pennsylvania as a target, but those efforts simply do not constitute the type of deliberate contacts within Pennsylvania that could amount to purposeful availment of the privilege of conducting activities in that state. Rather, any connection of [Defendant] to Pennsylvania merely was a derivative benefit of its successful attempt to exploit the United States as a national market."); Benitez v. JMC Recycling Sys., Ltd. , 97 F. Supp. 3d 576, 583 (D.N.J. 2015) (holding no specific jurisdiction because "the facts here reveal only JMC's intent to serve the U.S. market; there were no marketing or sales efforts directed at the State of New Jersey.").

Next, we find the Blues did not purposefully avail themselves of doing business in West Virginia by listing MedTest as an in-network provider on their websites. The Blues assert that courts have consistently held that "passively providing online information" through a website is not a sufficient basis for a court to exercise specific jurisdiction. The Blues rely on ALS Scan, Inc. v. Digital Serv. Consultants, Inc. , 293 F.3d 707, 713 (4th Cir. 2002), in which the court addressed factors for determining "when it can be deemed that an out-of-state citizen, through electronic contacts, has conceptually ‘entered’ the State via the Internet for jurisdictional purposes," In ALS Scan , the court adopted the approach set forth in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. , 952 F. Supp. 1119 (W.D. Pa. 1997). The court in Zippo determined that

the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed personal jurisdiction principles. At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

Id. , 952 F. Supp. at 1124 (Internal citation omitted).

A recent case examining the sliding-scale approach set forth in Zippo noted that "[r]egardless of where on the sliding scale a defendant's web-based activity may fall, however, [w]ith respect to specific jurisdiction, the touchstone remains that an out-of-state person has engaged in some activity purposefully directed toward the forum state ... creating a substantial connection with the forum state." UMG Recordings, Inc. v. Kurbanov , 963 F.3d 344, 352-53 (4th Cir. 2020) (internal citation and quotation omitted). The Blues’ websites provide a listing of its in-network providers. These websites do not directly or purposefully target West Virginia.

Additionally, MedTest has not alleged that its claims against the Blues stem from interactions between West Virginia residents and the Blues’ websites. While the circuit court placed substantial weight on the Blues’ websites in finding that purposeful availment was satisfied, MedTest's brief to this Court downplays the significance of the websites, stating, "jurisdiction over the Blues springs from the fundamental design of their system, not their websites."¹⁵

15 MedTest's brief also provides that it has "never based its claim to jurisdiction on the availability of the Blues’ websites in West Virginia. In fact, MedTest never based its claim to jurisdiction specifically on the Blues’ websites at all[.]"

The Blues are not actively transacting business in West Virginia via their websites, nor is there an allegation that they are directly contacting West Virginia residents via their websites. We therefore conclude that the Blues did not purposefully avail themselves of the privilege of conducting business in West Virginia based on MedTest being listed as an in-network provider on their websites.

Based on all of the foregoing, we conclude that the circuit court erred by concluding that the Blues purposefully availed themselves of the privilege of conducting business in West Virginia.¹⁶ For this reason, we also reject the circuit court's determination that because MedTest pled a claim for conspiracy, "it has undoubtedly established jurisdiction here." The circuit court's order does not address this issue in depth.

16 Because we find purposeful availment has not been met, we need not examine the remaining two prongs of our specific jurisdiction test—whether the controversy arises out of or relates to the defendant's activities in the forum, and whether the exercise of jurisdiction is reasonable and comports with fair play and justice.

The conspiracy claim does not alter our jurisdictional analysis. Consistent with the Supreme Court's ruling in Walden and Bristol-Myers , our main inquiry involves an examination of the Blues’ contacts with West Virginia. As the Supreme Court in Walden noted, "the relationship must arise out of contacts that the defendant himself creates with the forum State." 571 U.S. at 284, 134 S.Ct. at 1122 (Internal citation and quotation omitted). We have concluded that the Blues have not purposefully availed themselves of the privilege of conducting business in West Virginia. This conclusion is not changed based on the bare allegation that the Blues and Highmark were engaged in a conspiracy. Because we have found an absence of purposeful availment, we find that this would be an especially difficult case to conclude that conspiracy allegations alone can serve as the basis for exercising personal jurisdiction over the Blues.¹⁷

17 The Fourth Circuit has recognized that the "conspiracy theory of jurisdiction" can satisfy the first prong of the specific jurisdiction test. In Unspam Technologies, Inc. v. Chernuk , 716 F.3d 322, 329 (4th Cir. 2013), the court provided:

To succeed on this theory, the plaintiffs would have to make a plausible claim (1) that a conspiracy existed; (2) that the four bank defendants participated in the conspiracy; and (3) that a coconspirator's activities in furtherance of the conspiracy had sufficient contacts with Virginia to subject that conspirator to jurisdiction in Virginia. See Lolavar v. de Santibanes , 430 F.3d 221, 229 (4th Cir. 2005) ; McLaughlin v. McPhail , 707 F.2d 800, 807 (4th Cir. 1983) (per curiam). To satisfy these requirements, the plaintiffs would have to rely on more than "bare allegations." Lolavar , 430 F.3d at 229 (internal quotation marks omitted); see also Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan , 115 F.3d 1020, 1031 (D.C. Cir. 1997) ("[T]he plaintiff must plead with particularity the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy" (internal quotation marks omitted)).

716 F.3d at 329 (Emphasis added).

Finally, we note that MedTest has argued that no jurisdictional discovery has taken place and that allowing some discovery would be appropriate if this Court has "doubts about jurisdiction." In Bowers v. Wurzburg , 202 W. Va. 43, 51, 501 S.E.2d 479, 487 (1998), we addressed jurisdictional discovery and provided that "the court generally should permit limited jurisdictional discovery, unless the court's jurisdiction, or lack thereof , is clear." (Emphasis added). Because we conclude that the exercise of specific jurisdiction over the Blues is clearly not appropriate in this case, we decline to remand this matter to the circuit court for jurisdictional discovery.

IV. CONCLUSION

Accordingly, for the reasons stated above, we find that the Blues are entitled to a writ of prohibition to prohibit the enforcement of the circuit court's March 27, 2020, order denying their motion to dismiss for lack of personal jurisdiction. The circuit court's order is vacated and this case is remanded to the circuit court with directions for it to enter an order dismissing the Blues from this case.

Writ Granted.

JUSTICE HUTCHISON dissents and reserves the right to file a dissenting Opinion.

Hutchison, Justice, dissenting:

(Filed November 25, 2020)

I respectfully dissent from the majority's opinion. I believe that sufficient allegations were asserted that the foreign third-party-defendant "Blues" had a contractual arrangement with Highmark of West Virginia ("Highmark"), such that Highmark was acting as the agent of the Blues in West Virginia. The complaint also sufficiently alleged that the Blues were conspiring with Highmark in West Virginia in a manner that caused harm to MedTest in West Virginia. Given that the majority opinion was focused on the lack of evidence regarding whether the Blues purposely availed themselves of West Virginia's jurisdiction through Highmark, they should have sent the case back to the circuit court and allowed the parties to conduct jurisdictional discovery.

The majority opinion is written to produce the impression that this is little more than a West Virginia lawsuit between two West Virginia companies over a contract executed and later breached in West Virginia. That is, Highmark and MedTest entered into a contract, and MedTest breached the contract by overcharging Highmark to the tune of $6.4 million. Highmark is just suing to collect the overcharge.

What the majority opinion does not address is the motivation: why was Highmark suing for the overcharge? The majority opinion paints Highmark as an independent firm; in reality, Highmark is interconnected nationally with the other Blues by way of the BlueCard program. The record shows that Highmark received a notification from the Blues that MedTest was charging too much, and it was action from the Blues and their interconnected BlueCard computer system that compelled Highmark to stop paying MedTest. Using the BlueCard system, Highmark claims it calculated that MedTest had billed the Blues – through Highmark – allegedly excessive amounts. So, the records before this Court show that when Highmark sued, it was only asking for $3,192 for itself; as for the remaining $6.3 plus million, Highmark was acting as a collection agent for the Blues.

As the majority opinion relates, this case is about specific jurisdiction which requires weighing three prongs (purposeful availment, arise or relate, and fairness) to see if "minimum contacts" exist. It tests whether "maintenance of the suit [would] offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Specific jurisdiction focuses on "the relationship among the defendant, the forum, and the litigation." Daimler AG v. Bauman , 571 U.S. 117, 126, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014).

1. Purposeful availment : The defendant must "purposefully avail[ ] itself of the privilege of conducting activities within the forum State," such that the defendant has "clear notice that it is subject to suit there." World-Wide Volkswagen v. Woodson , 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). This is the primary issue challenged by the Blues. The purposeful availment element considers how defendants have structured their affairs and where they reasonably anticipate being sued. "The purposeful availment requirement of specific personal jurisdiction ensures that a defendant will not be haled into a jurisdiction as a result of isolated, fortuitous, or random acts." Syl. pt. 9, State ex rel. Ford Motor Co. v. McGraw , 237 W. Va. 573, 788 S.E.2d 319 (2016).

2. Arise or Relate : The controversy must "arise out of or relate to" defendant's activities in the forum; there must be "an affiliation between the forum and the underlying controversy[.]" Bristol-Myers Squibb Co. v. Superior Court of California , ––– U.S. ––––, 137 S. Ct. 1773, 1780, 198 L.Ed.2d 395 (2017). 3. Fairness : The exercise of jurisdiction must be "reasonable" and comport with "fair play and substantial justice." Asahi Metal Indus. Co. v. Superior Court of California, Solano Cty. , 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).

The central question in this case is the first element, purposeful availment. I believe it was established in MedTest's complaint.

First, this record establishes the Blues purposely conducted activities in West Virginia under the "agency theory of jurisdiction." Under this theory, the acts of an agent acting within the scope of its agency, and the resulting contacts therefrom, are imputable to the principal for determining specific personal jurisdiction of the principal. In effect, the principal may purposefully avail itself of a foreign forum through its agent's actions. The United States Supreme Court acknowledged that an agency relationship may create sufficient in-state jurisdictional contacts:

Agency relationships, we have recognized, may be relevant to the existence of specific jurisdiction. "[T]he corporate personality," International Shoe Co. v. Washington , 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945), observed, "is a fiction, although a fiction intended to be acted upon as though it were a fact." Id. , at 316 . See generally 1 W. Fletcher, Cyclopedia of the Law of Corporations § 30, p. 30 (Supp. 2012–2013 ) ("A corporation is a distinct legal entity that can act only through its agents."). As such, a corporation can purposefully avail itself of a forum by directing its agents or distributors to take action there. See , e.g. , Asahi , 480 U.S. at 112 (opinion of O'Connor, J.) (defendant's act of "marketing [a] product through a distributor who has agreed to serve as the sales agent in the forum State" may amount to purposeful availment); International Shoe , 326 U.S., at 318, 66 S.Ct. 154 ("the commission of some single or occasional acts of the corporate agent in a state" may sometimes "be deemed sufficient to render the corporation liable to suit" on related claims). See also Brief for Petitioner 24 (acknowledging that "an agency relationship may be sufficient in some circumstances to give rise to specific jurisdiction")....

Daimler AG v. Bauman , 571 U.S. at 135 n.13, 134 S.Ct. 746.

The agency theory of jurisdiction is simply stated: "For purposes of personal jurisdiction, the actions of an agent may be attributed to the principal." Daynard v. Ness, Motley , 290 F.3d 42, 55-56 (1st Cir. 2002). Numerous federal courts have adopted this theory. See , e.g. , Sher v. Johnson , 911 F.2d 1357, 1362 (9th Cir. 1990) ("For purposes of personal jurisdiction, the actions of an agent are attributable to the principal."); E.I. duPont de Nemours & Co. v. Rhodia Fiber , 197 F.R.D. 112, 122 (D. Del. 2000) ("Delaware law allows a court to find jurisdiction over a parent corporation for the acts of its subsidiary through either an alter ego theory or the agency theory."); Wessels, Arnold & Henderson v. Nat'l Med. Waste, Inc. , 65 F.3d 1427, 1433 (8th Cir. 1995) (attributing contacts where the principal "supported, accepted, and followed through on the efforts initiated" by the agent, regardless of whether the agent had authority to act on the principal's behalf; "Although contacts for personal jurisdiction are different from a principal's liability for an agent's unauthorized conduct, the same analysis is applicable."); Grand Entm't Grp., Ltd. v. Star Media Sales, Inc. , 988 F.2d 476, 483 (3d Cir. 1993) ("Activities of a party's agent may count toward the minimum contacts necessary to support jurisdiction.").

In the instant case, the Blues entered into an associational contract with Highmark, such that Highmark acted as the agent for the Blues in West Virginia. Highmark routinely processes claims from providers, reviews them, audits them, and pays them on behalf of the Blues. When a provider like MedTest is accused of overbilling the Blues, or of fraudulently billing the Blues, Highmark is responsible for pursuing those billing claims. You might even say that Highmark was acting as a collection agent for the Blues in West Virginia. Because the Blues have directed Highmark to act as its agent in West Virginia, and/or supported and accepted Highmark's actions in West Virginia on behalf of the Blues, the Blues may fairly be haled before a West Virginia court for those acts. For purposes of personal jurisdiction, the actions of Highmark may be attributed to the Blues, and a court may find that the Blues purposely availed themselves of the benefits of West Virginia's jurisdiction.

The second concept that supports personal jurisdiction in West Virginia is the "conspiracy theory of jurisdiction." This concept is nowhere near as nefarious as it sounds. Conspiracy-based jurisdiction is simply a variation on the agency theory.

[A]gency concepts have been used to enlarge long-arm jurisdiction. If a non-resident defendant has directed another person to act for his benefit and under his control in the forum state, the other party's act may supply the minimum contact needed to support jurisdiction over the non-resident in an action arising out of the act....

As a matter of substantive law, a conspirator who performs an act in furtherance of the conspiracy does so as an agent for his co-conspirators.

At a minimum, most courts require a plaintiff to allege facts which, if proven, show: 1) that a conspiracy existed; 2) that the defendant over whom jurisdiction is sought became a member of the conspiracy; and 3) that a co-conspirator committed an act—or a "substantial act"—in furtherance of the conspiracy in the forum state.

Ann Althouse, The Use of Conspiracy Theory to Establish in Personam Jurisdiction: A Due Process Analysis , 52 Fordham L. Rev. 234, 234-35, 243 (1983). One federal court, acknowledging the theory had been adopted in Delaware, described it thusly:

The conspiracy theory subjects a conspirator who is absent from the forum to the jurisdiction of the court if five requirements are met. Specifically, the plaintiff must make a factual showing that:

(1) a conspiracy to defraud existed; (2) the defendant was a member of that conspiracy; (3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state; (4) the defendant knew or had reason to know of the act in the forum state or that acts outside the forum state would have an effect in the forum state; and (5) the act in, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy.

G & G LLC v. White , 535 F. Supp. 2d 452, 464 (D. Del. 2008). See also Charles Schwab Corp. v. Bank of Am. Corp. , 883 F.3d 68, 87 (2d Cir. 2018) (Under the "conspiracy theory of jurisdiction: the plaintiff must allege that (1) a conspiracy existed; (2) the defendant participated in the conspiracy; and (3) a co-conspirator's overt acts in furtherance of the conspiracy had sufficient contacts with a state to subject that co-conspirator to jurisdiction in that state. To allow jurisdiction absent a showing that a co-conspirator's minimum contacts were in furtherance of the conspiracy would be inconsistent with the ‘purposeful availment’ requirement."); In re Blue Cross Blue Shield Antitrust Litig. , 225 F. Supp. 3d 1269, 1302 (N.D. Ala. 2016) ("Under a conspiracy theory, a defendant who otherwise may not be subject to personal jurisdiction might be hailed into court if the plaintiff ‘plead[s] with particularity the conspiracy as well at the overt acts within the forum taken in furtherance of the conspiracy.’ "); Unspam Techs., Inc. v. Chernuk , 716 F.3d 322, 329 (4th Cir. 2013) (Under the "conspiracy theory of jurisdiction," "the plaintiffs would have to make a plausible claim (1) that a conspiracy existed; (2) that the four bank defendants participated in the conspiracy; and (3) that a coconspirator's activities in furtherance of the conspiracy had sufficient contacts with Virginia to subject that conspirator to jurisdiction in Virginia."); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan , 115 F.3d 1020, 1031 (D.C. Cir. 1997) (When asserting conspiracy theory of jurisdiction, "the plaintiff must plead with particularity ‘the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.’ "); Textor v. Bd. of Regents of N. Illinois Univ. , 711 F.2d 1387, 1392 (7th Cir. 1983) ("The ‘conspiracy theory’ of personal jurisdiction is based on the time honored notion that the acts of a conspirator in furtherance of a conspiracy may be attributed to the other members of the conspiracy."); Gemini Enterprises, Inc. v. WFMY Television Corp. , 470 F. Supp. 559, 564 (M.D.N.C. 1979) ("The conspiracy theory of jurisdiction ... seems to be based on the time honored notion that the acts of conspirator in furtherance of a conspiracy may be attributed to the other members of the conspiracy."); Raser Techs., Inc. v. Morgan Stanley & Co., LLC , 449 P.3d 150, 166 (Utah 2019) ("[A] conspiracy theory of jurisdiction can satisfy due process concerns."); Yoost v. Caspari, 295 Mich.App. 209, 813 N.W.2d 783, 792 (2012) ("Under the ‘conspiracy theory’ of jurisdiction, a conspirator not within the forum state may nevertheless be subject to the jurisdiction of the forum state on the basis of the acts a coconspirator committed there. The rationale for this rule is that when one member of a conspiracy inflicts an actionable wrong in one jurisdiction, the other member should not be allowed to escape being sued there by hiding in another jurisdiction." (Cleaned up)); Gibbs v. PrimeLending , 381 S.W.3d 829, 834 (Ark. 2011) ("[W]e find nothing that prohibits the use of the conspiracy theory of jurisdiction."); Mackey v. Compass Mktg., Inc., 391 Md. 117, 892 A.2d 479, 487 (2006) ("[T]he acts of a co-conspirator in furtherance of the conspiracy may be attributed to other co-conspirators if the requirements of the conspiracy theory are met. The attribution principle enables a court to exercise jurisdiction over nonresidents involved in a conspiracy when a co-conspirator performs jurisdictionally sufficient acts in furtherance of the conspiracy.").

Federal district courts in West Virginia, applying West Virginia's long-arm statute, have applied the theory to assess whether a claim of civil conspiracy in a complaint adequately established the court's personal jurisdiction over a corporate agent. See HSBC Bank USA, Nat. Ass'n v. Resh , No. 3:12-CV-00668, 2015 WL 4772524, at *4 (S.D.W. Va. Aug. 12, 2015) ("To prevail using this theory of jurisdiction, a plaintiff must [show] ... that (1) a conspiracy existed, (2) the out-of-state defendant participated in the conspiracy, and (3) a coconspirator's activity in furtherance of the conspiracy created sufficient minimum contacts with West Virginia such that the coconspirator is subject to personal jurisdiction in West Virginia.... A plaintiff must ... make a prima facie case demonstrating that the out-of-state defendant participated in a conspiracy, and that at least one coconspirator is subject to personal jurisdiction in the forum."); Cline v. Hanby , No. CIVA 2:05-0885, 2006 WL 3692647, at *7 (S.D.W. Va. Dec. 13, 2006) ("Under this theory when individuals conspire to do something that they could reasonably expect to have consequences in a particular forum, if one coconspirator who is subject to personal jurisdiction in the forum commits overt acts in furtherance of the conspiracy, those acts are attributable to the other co-conspirators, who thus become subject to personal jurisdiction even if they have no other contacts with the forum."); Southeastern Const., Inc. v. Tanknology-NDE Int'l, Inc. , No. CIV.A. 3:05-210, 2005 WL 3536239, at *9 (S.D.W. Va. Dec. 22, 2005) ("The conspiracy theory of jurisdiction as developed in the cases, holds that when several individuals (1) conspire to do something (2) that they could reasonably expect to have consequences in a particular forum, if one co-conspirator (3) who is subject to personal jurisdiction in the forum (4) commits overt acts in furtherance of the conspiracy, those acts are attributable to the other co-conspirators, who thus become subject to personal jurisdiction even if they have no other contacts with the forum.").

MedTest alleges Highmark and the Blues "conspired to misrepresent to MedTest, other health care providers and their health insurance plan members that MedTest was an in-network provider[.]" MedTest also alleges that Highmark and the Blues "combined, through concerted action, to accomplish an unlawful purpose by devising and perpetrating a fraudulent scheme to induce MedTest to provide laboratory testing services ... without paying for them." Finally, MedTest contends Highmark and the Blues "colluded and combined their property, money, skill, and knowledge to carry out their scheme, misleading MedTest into performing millions of dollars of laboratory testing services for their members without compensation."

I believe these allegations were sufficient to allege a civil conspiracy claim and to support personal jurisdiction, because they indicate the existence of a civil conspiracy between the Blues and Highmark to inflict harm upon MedTest, harm that was caused in West Virginia by acts carried out in West Virginia by Highmark. The Blues should not be allowed to hide in other jurisdictions for harm they caused in West Virginia.

Finally, I am dismayed by the majority opinion's refusal to permit jurisdictional discovery to occur. Our law plainly permits jurisdictional discovery if a court has doubts about jurisdiction. See Bowers v. Wurzburg , 202 W.Va. 43, 51, 501 S.E.2d 479, 487 (1998). The agency and conspiracy theories of jurisdiction are certainly fact-intensive approaches to showing purposeful availment. Without conducting any analysis, the majority opinion brusquely declares that jurisdiction over the Blues is inappropriate. At a minimum, I would have permitted the parties to conduct discovery.

I therefore respectfully dissent.