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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/clerk/recent/
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September 26, 2006 Issue #86
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This issue covers 40 opinions, and completes summaries of all opinions issued in the January 2006 term of court.

No opinions have been issued for the September 2006 term.


Best regards,

Rory Perry Clerk of Court

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ATTORNEYS :: Conflict of interest

STATE EX REL. BLACKHAWK ENTERPRISES, INC., et al. v. BLOOM, et al., No. 33050 (Per Curiam)(June 16, 2006). Denying a writ of prohibition sought to disqualify plaintiff's counsel in an action alleging corporate waste, where plaintiff's counsel had drafted corporate documents. Holding that the circuit court was correct to deny the defendants' motion to disqualify, in light of counsel's express statements to defendants that he was not representing them in any way and that they needed to retain their own counsel.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/33050.htm


CRIMINAL :: Detainers and probation revocation

STATE v. GARY INSCORE, No. 32855 (STARCHER, J.)(June 26, 2006). Affirming an order of the Circuit Court of Mercer County that revoked probation and imposed the original sentence, where the revocation hearing took place after the defendant's original probation term had expired, because the defendant had been incarcerated in Virginia on other charges. Holding that neither the Interstate Agreement on Detainers nor the three-term rule contained in W. Va. Code 62-3-21 have any application to probation revocation proceedings. Setting forth guidelines for the exercise of reasonable diligence in such circumstances, including issuance of bench warrants and bringing the defendant before the West Virginia court for a probation revocation hearing within a reasonable time following conclusion of sentence in another state.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32855.htm


CRIMINAL, EVIDENCE :: Statements from unavailable witnesses

STATE v. MECHLING, No. 32873 (STARCHER, J.)(Maynard, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(June 30, 2006). Reversing a misdemeanor conviction for domestic battery. The conviction was obtained following a bench trial at which the victim did not testify, but the officer who responded to the scene testified to statements the victim had made to him. In light of recent United States Supreme Court decisions holding that the Sixth Amendment right of confrontation is violated when "testimonial" statements are admitted as evidence where there has been no opportunity for cross examination, reversing the conviction, and clarifying West Virginia law to follow new precedent.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32873.htm


CRIMINAL, EVIDENCE :: Bolstering victim credibility through evidence of religious belief was plain error

STATE v. MATTHEW BOLEN, No. 32887 (Per Curiam)(Maynard, J., dissenting)(June 16, 2006). Reversing a conviction obtained in the Circuit Court of Cabell County for two counts of first degree sexual assault. Holding that the circuit court committed plain error in allowing the State to offer evidence of the victim's religious beliefs in order to bolster the victim's credibility. Remanded for retrial.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32887.htm


CRIMINAL, EVIDENCE :: Rule 404(b) error

STATE v. DAMIEN RICKETTS, No. 32896 (Per Curiam)(June 8, 2006). Reversing a conviction for misdemeanor battery. Holding that admission of testimony regarding a prior conviction for felony delivery of a controlled substance was error, where the circuit court had ruled pre-trial that the evidence was inadmissible, no character issue was raised by the defendant and the state inquired anyway, whereupon the defendant's objection was overruled and the jury was later instructed to disregard.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32896.htm


CRIMINAL, EVIDENCE :: Inconsistent defenses, corroborative evidence

STATE v. EARL RAY McCOY, No. 32860 (DAVIS, C.J.)(May 24, 2006). Reversing a conviction for first degree murder, without mercy, obtained following a jury trial in the Circuit Court of Lincoln County. Holding that the circuit court erred in preventing the defendant from asserting the defense of self-defense and the defense of insanity, solely on the basis that self-defense was inconsistent with the insanity defense. Further holding, in syllabus point 3, that: "The admissibility of corroborative evidence is largely within the trial court's discretion. However, a trial court abuses that discretion when it excludes the testimony of witnesses who would corroborate relevant facts, the veracity of which has been challenged by the prosecutor, when those facts have been relied upon by the defendant's expert in rendering an opinion pertaining to the defendant's defense." Remanding for a new trial.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32860.htm


CRIMINAL, FAMILY, PROCEDURE :: Prosecution for non-payment of support

STATE EX REL. SHEPHARD v. HOLLAND, et al., No. 32903 (Per Curiam). Denying a writ of prohibition sought to prevent further proceedings in a felony prosecution for non-payment of child support. Rejecting the defendant's contention that the indictment was insufficient, and further denying relief in light of the Court's resolution of the related civil appeal, HAYHURST v. SHEPARD, No. 32902 (STARCHER, J.)(June 16, 2006), which brought finality to the amounts owed.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32903.htm


CRIMINAL, PROCEDURE :: Interstate Agreement on Detainers

PETHEL V. McBRIDE, No. 32784 (BENJAMIN, J.)(Starcher, J., and Albright, J., dissenting)(Maynard, J., concurring)(June 8, 2006). Reversing an order of the Circuit Court of Ohio County that granted habeas corpus relief and set aside multiple convictions because of a violation of the Interstate Agreement on Detainers (IAD). Holding that the IAD is not a jurisdictional statute, and an IAD violation does not deprive a trial court of jurisdiction over criminal charges, nor is an IAD violation cognizable in post-conviction habeas corpus proceedings. Moreover, a guilty plea waives all rights under the IAD. Further addressing the guidelines for dismissal due to IAD violations and other matters.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32784.htm


EMPLOYMENT :: Insufficient evidence of age discrimination

JOHNSON v. KILMER, No. 31871 (Per Curiam)(June 15, 2006). Affirming an order of the Circuit Court of Raleigh County that granted summary judgment to the employer in a wrongful discharge action alleging age discrimination. Holding that the circuit court correctly determined that there was insufficient evidence of age-based harassment and stating that: "Ms. Johnson's evidence established office pettiness, not age-based harassment."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/31871.htm


EMPLOYMENT, PROCEDURE :: Former employees lack standing to file grievances

BLETHEN, et al. v. WEST VIRGINIA DEPT. REVENUE, et al., No. 32962 (Per Curiam)(Davis, C.J., disqualified)(Kirkpatrick, Judge, by temporary assignment)(June 29, 2006). Affirming an order of the Circuit Court of Kanawha County that in turn affirmed an order of the grievance board. Holding that the circuit court correctly determined that three of the grievants lacked standing because they were no longer employees when the grievances were filed, and that the equal pay for equal work claims of twenty of the twenty-nine grievants were barred by the doctrine of res judicata.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32962.htm


EMPLOYMENT, RETIREMENT BENEFITS :: Lump-sum payments and final average salary

WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD v. CARTER, et al., No. 32849 (BENJAMIN, J.)(June 14, 2006). Reversing an order of the Circuit Court of Wood County that allowed lump-sum payments for accrued vacation leave to be included in the final average salary used to calculate retirement benefits. Holding that the term "final average salary" as used in the applicable statute, plainly limits the calculation of retirement benefits to an annual salary and does not permit the inclusion of payments for unused, accrued vacation days.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32849.htm


EMPLOYMENT, RETIREMENT BENEFITS :: Effect of social security disability award

MAYHORN v. WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, No. 32850 (MAYNARD, J.)(June 9, 2006). Reversing an order of the Circuit Court of Kanawha County that affirmed an administrative decision to deny a former school cook's application for disability retirement benefits. Holding that the administrative tribunal failed to follow an applicable regulation that required medical evidence to rebut the presumption of incapacity for service that arises when a member of the retirement system has been awarded disability benefits by the Social Security Administration.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32850.htm


FAMILY :: Modification of accrued support or alimony

HAYHURST v. SHEPARD, No. 32902 (STARCHER, J.)(June 16, 2006). Affirming an order of the Circuit Court of Ritchie County that affirmed a family court order. Holding that the family court properly refused to retroactively modify and eliminate a substantial portion of the parent's unpaid child support obligation, and also properly refused to give the parent credit against that unpaid obligation for health insurance premiums that covered his children. Specifically holding, in syllabus point 2: "The authority of a family court to modify a spousal support or child support award is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a family court is without authority to modify or cancel accrued alimony or child support installments."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32902.htm


FAMILY :: Visitation modified

MARY R. v. BILLY D., No. 32901 (Per Curiam)(June 15, 2006). Reversing an order of the Circuit Court of Randolph County that adopted a modified parenting plan allowing visitation between a daughter and her mother, where the mother and stepfather were admitted nudists and an improper touching between daughter and stepfather had been alleged. Holding that visitation with the mother should be supervised, and that the stepfather should have no visitation whatsoever.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32901.htm


HABEAS CORPUS, CRIMINAL PROCEDURE :: Habeas review of post-Zain serology claims

IN THE MATTER OF: RENEWED INVESTIGATION OF THE STATE POLICE CRIME LABORATORY, SEROLOGY DIVISION, No. 32885 (MAYNARD, J.)(June 16, 2006). Adopting, as moulded, findings of a special judge appointed to oversee a renewed investigation of the Serology Division of the State Police Crime Laboratory. Adotping the report to the extent that it finds insufficient evidence of intentional misconduct by assistant serologists to warrant invalidation of serology evidence and systematic review of each case in which serology evidence was offered. However, in light of the frequent and recurring errors identified in the work of assistant serologists, setting forth a special habeas corpus procedure to be utilized by those prisoners against whom serologists, other than Fred Zain, offered evidence.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32885.htm


HABEAS CORPUS, PROCEDURE :: Abuse of process, limiting access to the courts

MATHENA, et al. v. HAINES, No. 32769 (STARCHER, J.)(Maynard, J., concurring in part and dissenting in part)(June 26, 2006). Granting mixed relief from orders of the Circuit Court of Randolph County relating to claims regarding prison conditions and medical care issues, including orders enjoining one inmate from filing any communication to the circuit court or the circuit clerk unless such communications were signed by an attorney licensed to practice law in West Virginia. Holding that Article III section 17 of the West Virginia Constitution gives prisoners a constitutional right to meaningful access to courts subject to reasonable limitations imposed to protect courts from abuse. Setting forth specific guidelines for circuit courts to follow if it becomes necessary to consider issuing an order limiting access to the courts. Affirming the circuit court's dismissal of the underlying allegations relating to prison conditions as having been previously and finally adjudicated.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32769.htm


MOTOR VEHICLES, ADMINISTRATIVE, PROCEDURE :: Time delay presumptively prejudicial

PETRY v STUMP, COMM'R, No. 32886 (Per Curiam)(May 24, 2006). Reversing an order of the Circuit Court of Kanawha County that refused to grant extraordinary relief in a case where an original revocation hearing was held in February 1999, no decision was issued, the record of the hearing was lost by the agency through no fault of Mr. Petry, and the Commissioner sought to schedule a second hearing in March 2005. Holding that the time delay was presumptively prejudicial, and that the appellant's due process rights were violated. Revocation proceedings dismissed.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32886.htm


MOTOR VEHICLES, ADMINISTRATIVE, EVIDENCE :: Statement of arresting officer

CROUCH v. WEST VIRGINIA DIV. MOTOR VEHICLES, No. 32843 (DAVIS, C.J.)(May 24, 2006). Reversing an order of the Circuit Court of Raleigh County that reversed an administrative license revocation, where the arresting officer's testimony did not clearly establish jurisdiction. Holding that the Statement of Arresting Officer, as a required agency document, is admissible under W. Va. Code 29A-5-2(b), and is an acceptable means to demonstrate jurisdiction to make an arrest. Although the statement is admissible, its accuracy is still subject to challenge in a revocation hearing.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32843.htm


OIL & GAS :: Ambiguous lease language precludes royalty deductions for transport and marketing

TAWNEY, et al. v. COLUMBIA NATURAL RESOURCES, LLC, et al., No. 32966 (MAYNARD, J.)(Davis. C.J., disqualified)(Benjamin, J., disqualified)(Kaufman, J., and Kirkpatrick, Judge, by temporary assignment)(June 16, 2006). Answering a certified question from the Circuit Court of Roane County relating to whether lease language permits a lessee to deduct post-production expenses from the lessors' royalty payments. Holding that the language in question was ambiguous, and setting forth guidelines for lease language in syllabus point 10: "Language in an oil and gas lease that is intended to allocate between the lessor and lessee the costs of marketing the product and transporting it to the point of sale must expressly provide that the lessor shall bear some part of the costs incurred between the wellhead and the point of sale, identify with particularity the specific deductions the lessee intends to take from the lessor's royalty (usually 1/8), and indicate the method of calculating the amount to be deducted from the royalty for such post-production costs." Further holding that the language at issues was not effective, in syllabus point 11: "Language in an oil and gas lease that provides that the lessor's 1/8 royalty (as in this case) is to be calculated 'at the well,' 'at the wellhead,' or similar language, or that the royalty is 'an amount equal to 1/8 of the price, net all costs beyond the wellhead,' or 'less all taxes, assessments, and adjustments' is ambiguous and, accordingly, is not effective to permit the lessee to deduct from the lessor's 1/8 royalty any portion of the costs incurred between the wellhead and the point of sale."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32966.htm


PROFESSIONAL DISCIPLINE :: Suspension without pay

IN THE MATTER OF: CLARENCE W. "CHARLIE" McCOURT, JR., MAGISTRATE FOR UPSHUR COUNTY, No. 33068 (Per Curiam)(Starcher, J. and Albright, J., concurring in part and dissenting in part)(June 14, 2006). Affirming a previous decision to suspend a magistrate without pay pending the outcome of judicial disciplinary proceedings, in light of sufficient evidence to believe that Magistrate McCourt has engaged in a serious violation of the Code of Judicial Conduct.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/33068.htm


PROFESSIONAL DISCIPLINE :: Reciprocal discipline

LAWYER DISCIPLINARY BOARD v. THOMAS H. McCORKLE, No. 25321 (Per Curiam)(June 8, 2006). Adopting the recommended decision of the Hearing Panel Subcommittee, and annulling the license of a lawyer found to have violated the Rules of Professional Conduct in two separate instances, and in light of the aggravating factors of prior disciplinary actions.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/25321.htm


PROFESSIONAL DISCIPLINE :: Reciprocal discipline

LAWYER DISCIPLINARY BOARD v. DANIEL J. POST, No. 31734 (ALBRIGHT, J.)(May 25, 2006). In a reciprocal disciplinary proceeding, annulling the law license of an attorney who was disbarred in the State of Colorado. Setting forth guidelines for reciprocal disciplinary proceedings and the duties imposed on attorneys in this state to report any discipline imposed elsewhere, and holding that the Colorado procedures did not violate due process, and the remainder of the arguments amount to collateral attacks that were not asserted in the disciplinary actions.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/31734.htm


PROFESSIONAL DISCIPLINE :: Modifying recommended sanctions

LAWYER DISCIPLINARY BOARD v. LARRY E. LOSCH, No. 32554 (Per Curiam)(June 29, 2006). Modifying sanctions recommended by the Board for violations of Rules 8.4(c) and 8.4(d) of the Rules of Professional Conduct, and imposing public reprimand, additional legal education requirements, and payment of the costs of the proceedings.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32554.htm


PROFESSIONAL DISCIPLINE :: Modifying recommended sanctions

LAWYER DISCIPLINARY BOARD v. EUGENE M. SIMMONS, No. 32761 (Per Curiam)(June 29, 2006). Modifying sanctions recommended by the Board for violations of Rules 1.3, 1.4(a) and 1.4(b) of the Rules of Professional Conduct, and imposing twenty-day suspension, additional legal education requirements, supervised practice for one year, restitution, and payment of the costs of the proceedings.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32761.htm


PROFESSIONAL DISCIPLINE, WILLS & ESTATES :: Rule violations in preparing wills

LAWYER DISCIPLINARY BOARD v. JOHN PATRICK BALL, No. 31794 (DAVIS, C.J.)(Starcher, J., disqualified)(Walker, Judge, by temporary assignment)(June 15, 2006). Imposing a harsher sanction than recommended by the Lawyer Disciplinary Board, and annulling the law license of the respondent, with other specific conditions, for several violations of the Rules of Professional Conduct in the context of preparing wills for clients. Clarifying, in syllabus point 3, that: "The Rules of Professional Conduct cannot be waived by a client, so as to permit a lawyer to do that which the Rules prohibit, unless the Rules themselves provide a specific exception allowing waiver. The Rules reflect the high standards by which all lawyers must abide regardless of the wishes of a client." In light of the clear violations of the Rules, holding that total restitution is appropriate, in addition to annulment of the respondent's license. Setting forth the method for enforcement of the restitution order in syllabus point 4: "When this Court, in a lawyer disciplinary proceeding, issues an order that requires an attorney to make restitution to his or her client, the order may be enforced in two ways: (1) by the Office of Disciplinary Counsel seeking a contempt order from this Court, or (2) through the prosecution of a separate lawsuit by the client or a duly authorized representative of the client."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/31794.htm


PROPERTY, COUNTY GOVERNMENT :: Procedure to limit exotic entertainment

T. WESTON, INC v. MINERAL COUNTY, WEST VIRGINIA, and COUNTY COMMISSION OF MINERAL COUNTY, et al., No. 32890 (STARCHER, J.)(Benjamin, J., dissenting)(June 29, 2006). Answering a certified question from the United States District Court for the Northern District of West Virginia. Holding that the county commission, in a county that has created a county planning commission, does not have authority to enact an ordinance limiting the locations of exotic entertainment, in light of W. Va. Code 7-1-3jj(b), which states that "[i]n the event a county has not created or designated a planning commission . . ., a county commission may . . . adopt an ordinance that limits the areas of the county in which a business may offer 'exotic entertainment' . . .."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32890.htm


PUBLIC UTILITIES :: Cable rate regulation

COMMUNITY ANTENNA SERVICE v. PUBLIC SERVICE COMMISSION AND CHARTER COMMUNICATIONS VI, LLC, No. 31767 (BENJAMIN, J.)(June 30, 2006)(Note: This case was submitted on January 18, 2005.) Reversing orders of the Public Service Commission and remanding for further proceedings, in a dispute over special promotional price plans offered by Charter. Holding that the PSC erred in its application of the uniform rate requirement, and that Charter failed to demonstrate that these special pricing plans were universally applied or temporary in nature. After review of applicable federal law, holding that the PSC is permitted to review any of a cable operator's rates in order to prevent rate discrimination in a given franchise area. Further addressing notice requirements.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/31767.htm


PUBLIC UTILITIES, PROCEDURE :: PSC authority to enforce lawful orders

WETZEL COUNTY SOLID WASTE AUTHORITY v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, et al., No. 33036 (Per Curiam)(June 29, 2006). Granting a writ of mandamus to compel the Public Service Commission to enforce its order denying a certificate of need for a sewage sludge composting facility. Holding that the PSC is obliged to take action to force compliance under W. Va. Code 24-2-7(a), and ordering the PSC to issue a cease and desist order forthwith.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/33036.htm


TAXATION, PROCEDURE :: No profit from procedural default in another case

HELTON v. ELK RUN COAL CO., No. 32891 (STARCHER, J.)(Maynard, J., dissenting)(Albright, J., concurring)(Banjamin, J., concurring)(June 13, 2006). Reversing an order of the Circuit Court of Kanawha County that agreed with the taxpayer that its refund petition should have been included in a previous decision favorable to other taxpayers because of a procedural default by the Tax Commissioner. Holding that the taxpayer could not take advantage of the procedural default, and clarifying, in syllabus point 2, that: "He who seeks equity must do equity."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32891.htm


TAXATION :: Use of proceeds from charitable bingo and raffle

LOYAL ORDER OF MOOSE, MARTINSBURG LODGE No. 120 v. STATE TAX COMMISSIONER, No. 32842 (Per Curiam)(Starcher, J., dissenting)(May 18, 2006). Reversing an order of the Circuit Court of Berkeley County that upheld an administrative denial of a license renewal application to hold charitable bingo and raffles. Holding that the circuit court interpreted the applicable statute too narrowly, and that it was unreasonable to allow part of the proceeds not to be used for expenses, in light of W.Va. Code 47-21-15(a) and (b). Further holding that a prior penalty imposed upon the taxpayer was coerced, and should not have formed the basis for a subsequent denial of license renewal application.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32842.htm


TORTS :: Summary judgment for defense affirmed

HAWKINS, et al. v. UNITED STATES SPORTS ASSOCIATION, INC., et al., No. 32869 (Per Curiam)(June 15, 2006). Affirming an order of the Circuit Court of Marion County that granted summary judgment to defendants in a personal injury action involving a buried PVC pipe along the first base line at a softball field. Holding that the circuit court properly determined that no material factual dispute existed, in light of the fact that none of the appellees had knowledge of the buried PVC pipe.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32869.htm


TORTS, IMMUNITY, WORKERS' COMPENSATION :: City immune from common law action

STATE EX REL. CITY OF MARTINSBURG, v. SANDERS, et al., No. 32868 (AKBRIGHT, J.)(Starcher, J., dissenting)(June 29, 2006). Granting a writ of prohibition sought by the City of Martinsburg to prevent enforcement of an order denying its motion to dismiss a negligence action brought by firefighters alleging exposure to diesel fumes and seeking medical monitoring damages. Holding that the employer immunity in W. Va. Code 23-2-6 protects political subdivisions from awards of medical monitoring damages based upon common law tort theories.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32868.htm


TORTS, IMMUNITY :: Immunity for slip and fall at school basketball game

PORTER, et al. v. GRANT COUNTY BD. of EDUCATION, No. 32866 (MAYNARD, J.)(June 16, 2006). Answering certified questions from the Circuit Court of Grant County arising from a personal injury action asserted against the board of education by an individual who slipped and fell on a sidewalk located on school property during an evening basketball game, where school had been cancelled that day throughout the entire county due to the effects of a major snow storm. Holding that the plaintiffs misapprehend the plain language of the exception to statutory immunity in W. Va. Code 29-12A-5(a)(6), which would apply only if the school's negligent act had affirmatively caused the snow or ice conditions on which Mrs. Porter fell.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32866.htm


TORTS, INSURANCE :: Insolvency of primary insurer

GAUZE v. REED, et al., No. 32787 (STARCHER, J.)(Benjamin, J. concurring)(July 5, 2006). Affirming an order of the Circuit Court of Mingo County in a dispute over insurance coverage. Holding, in syllabus point 3, that: "When an insurance company (a) issues a primary liability insurance policy; and (b) has contracted for and received a premium for a risk as though it were a primary insurer; but (c) the insurance company has become a secondary insurer by operation of an 'other insurance' clause in the policy and the existence of another primary insurance carrier, then if that other insurance carrier is declared insolvent, the insurance company is responsible for coverage of the loss as though it were the sole primary liability insurer."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32787.htm


TORTS, INSURANCE :: Multiple policies with underinsured coverage

JENKINS v. STATE FARM MUTUAL AUTOMOBILE INS. CO., No. 32895 (Per Curiam)(Starcher, J., dissenting)(May 18, 2006). Affirming an order of the Circuit Court of State Farm that granted summary judgment in favor of insurer. Holding that the circuit court was correct in determining that where multiple policies are in effect, plaintiff's estate was not entitled to recover under the policy with the highest underinsured limits, where exclusionary language clearly limited recovery to a lower limit policy attached to the vehicle driven when the accident occurred.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32895.htm


TORTS, PROCEDURE :: Limitations on suits by non-residents unconstitutional

MORRIS v. CROWN EQUIPMENT CORP., et al., No. 32751 (STARCHER, J.)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., concurring)(June 29, 2006). Reversing an order of the Circuit Court of Kanawha County that granted motions to dismiss. Holding that W. Va. Code 56-1-1(c) violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, Sec. 2, because application of the statute would impose a categorical bar upon nonresidents of West Virginia in their access to West Virginia courts in cases where an otherwise similarly situated resident of West Virginia would not experience such a bar. Further declining to upset the long-settled doctrine of the venue-giving defendant such cases, and specifically holding in syllabus point 3: "W.Va. Code, 56-1-1(c) [2003] does not require a plaintiff to separately establish venue for each defendant."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32751.htm


TORTS, PROCEDURE :: Retroactivity of LOUK v. CORMIER

RICHMOND v. LEVIN, No. 32877 (Per Curiam)(Maynard, J., and Benjamin, J., dissenting)(June 8, 2006)(Petition for Rehearing refused September 7, 2006). Reversing an order of the Circuit Court of Raleigh County that upheld a non-unanimous jury verdict in favor of the defendant, based upon a provision of the Medical Professional Liability Act that was declared unconstitutional in LOUK v. CORMIER, 218 W.Va. 81, 622 S.E.2d 788 (2005). Applying the BRADLEY retroactivity factors, and determining that the holding in LOUK should have been reasonably foreshadowed, that the decision was procedural and was not a departure from prior decisions, and retroactive application will have a narrow impact only upon cases pending in circuit court or on appeal at the time LOUK was decided. Further rejecting an ex post facto due process challenge.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32877.htm


TORTS, PROCEDURE, WORKERS' COMPENSATION :: Mental-mental injury

BIAS v. EASTERN ASSOC. COAL CORP., No. 32778 (BENJAMIN, J.)(Davis, C.J., and Maynard, J., concurring)(Starcher, J., dissenting)(Albright, J., concurring in part and dissenting in part)(June 8, 2006)(Petition for rehearing refused September 7, 2006). Answering a certified question from the Circuit Court of Boone County regarding whether an employee who sustains a mental injury without a physical manifestation, and is precluded by statute form obtaining workers' compensation benefits, can nevertheless maintain a common-law cause of action against the employer. Holding, in syllabus point 3, that the common-law action is not available: "An employee who is precluded by W.Va. Code ß 23-4-1f (1993) from receiving workers' compensation benefits for a mental injury without physical manifestation cannot, because of the immunity afforded employers by W.Va. Code 23-2-6 (1991), maintain a common law negligence action against his employer for such injury."

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/32778.htm


WILLS & ESTATES, PROCEDURE :: Order removing executor inadequate

STATE EX REL. JOHNSON v. REED, et al., No. 33002 (Per Curiam)(June 14, 2006). Granting a moulded writ of prohibition to prevent the enforcement of an order removing an executor. Holding that the order contained inadequate findings, conclusions and analysis regarding a potential conflict.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/33002.htm


WORKERS' COMPENSATION :: Widow's benefits

STATE EX REL. CRIST, et al., v. JANE CLINE, INSURANCE COMM'R, et al., Nos. 33056, 33057 and 33058 (DAVIS, C.J.)(Maynard, J., concurring)(June 12, 2006). Granting a writ of mandamus to compel the Insurance Commissioner to comply with statute, where death benefits are warded to a surviving widow or widower pursuant to W. Va. Code 23-4-10, such benefits may not be terminated prior to death or remarriage of the widow or widower.

To view the full text of the majority opinion, go to: http://www.state.wv.us/wvsca/docs/spring06/33056.htm

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