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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/clerk.htm
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January 15, 2010 Issue #103
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This issue covers the remaining 40 opinions issued in cases argued in the September 2009 term of court.

The January 2010 term began this week, with two argument sessions and one conference session. The next argument sessions are scheduled for January 26 and 27:
http://www.state.wv.us/wvsca/calendar/jan26_10ad.htm
http://www.state.wv.us/wvsca/calendar/jan27_10ad.htm

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Clerk of Court


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APPELLATE PROCEDURE, INSURANCE :: Error not preserved is waived

WANG-YU LIN v. LIN and ENTERPRISE RENT-A-CAR OF KENTUCKY, No. 34596 (Per Curiam)(November 25, 2009). Affirming an order of the Circuit Court of Kanawha County in a declaratory judgment action. The circuit court concluded that a supplemental liability insurance policy purchased by the plaintiff, at the time he rented a vehicle, provides coverage to him for injuries he suffered in an accident involving the rental vehicle. Holding that the appellants waived their argument that WV Code 33-12-32 precludes coverage by failing to raise the issue before the circuit court. Affirming the circuit court's decision in the absence of error properly preserved for this Court's review, but explicitly not holding that W.Va. Code 33-6-31(a) is applicable to automobile rental insurance policies.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34596.htm


ANTITRUST, CORPORATIONS :: Concerted action requirement not met

PRINCETON INS. AGENCY v. ERIE INS. CO., et al., No. 34498 (Per Curiam)(November 18, 2009). Reversing a Circuit Court of Mercer County jury verdict, where the jury found that Erie's termination of an agency agreement was an unreasonable restraint of trade in violation of state antitrust law. The jury awarded 1.4 million dollars in compensatory damages and an equal amount in punitive damages. The circuit court vacated the punitive damages award, but trebled the compensatory damages award, and entered judgment against Erie for just over 4.2 million dollars. Concluding that the trial court did not fully examine the facts of Erie's corporate structure to determine whether the various Erie companies were sufficiently independent of each other to prevent them from serving a unified corporate interest. Holding that because all of Erie's employee's were employed by Erie Indemnity, the requisite plurality of actors necessary to create an actionable conspiracy under WV Code 47-18-3(a) is missing, and the companies were therefore legally incapable of conspiring with each other. Further concluding that the appellees failed to prove an antitrust injury, having attempted to prove injury to competition solely by loss of income, which is insufficient. The circuit court therefore erred in failing to grant judgment as a matter of law.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34498.htm


ARBITRATION, PROCEDURE :: Unilateral withdrawal from arbitration not appropriate

CRIHFIELD v. BROWN, et al., No. 34593 (WORKMAN, J.)(November 2, 2009). Reversing an order of the Circuit Court of Kanawha County that denied summary judgment, which was reviewable on appeal under the collateral order doctrine because the order conclusively determined whether the case is subject to arbitration, an issue separate from the merits that is not otherwise reviewable on appeal. Holding, in the single syllabus, that: "A party to a binding, irrevocable arbitration cannot unilaterally withdraw from participation in the arbitration after it has begun. If a party to a binding, irrevocable arbitration unilaterally withdraws from the arbitration, the claims or issues raised by the withdrawing party are abandoned, thereby precluding them from being pursued in any subsequent arbitration or civil action."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34593.htm


ATTORNEYS, PROCEDURE :: Rule 11 sanctions affirmed

WARNER v. WINGFIELD, No. 34495 (Per Curiam)(November 3, 2009). Affirming an order of the Circuit Court of Raleigh County that imposed monetary sanctions under Rule 11 of the Rules of Civil Procedure in the amount of $12,263.33 for filing a frivolous complaint. Concluding that filing the complaint was an abuse of the legal system through the prosecution of essentially baseless claims, that no mitigating circumstances existed, and that the attorney's conduct was of a continuing nature throughout the litigation.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34495.htm


CONTRACTS, TORTS, PROCEDURE :: Construing a forum-selection clause; retroactivity

CAPERTON, et al. v. A.T. MASSEY COAL CO., et al., No. 33350 (DAVIS, J.)(Benjamin, C.J., disqualified)(Holliday, Senior Status Judge, by temporary assignment)(Workman, J., dissenting)(November 12, 2009). In an opinion issued following remand from the Supreme Court of the United States, reversing an order of the Circuit Court of Boone County that denied defendants' post-trial motions in response to the entry of judgment of more than 50 million dollars following a jury verdict in favor of the plaintiffs below. Undertaking a de novo review of the applicability and enforceability of a forum-selection clause, and holding that the circuit court erred in failing to grant a motion to dismiss based upon the existence of a forum-selection clause in a contract directly related to the dispute at issue. Setting forth extensive guidance for construing and applying a forum-selection clause, both to signatories and non-signatories. Setting forth factors to be applied when determining whether a new principle of law that does not overrule a prior precedent should be applied retroactively, and applying the forum-selection clause principles adopted by the opinion to the parties to the instant proceeding.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/33350.htm


CRIMINAL :: Murder conviction affirmed

STATE v. CHARLES M. BIEHL, No. 34701 (Per Curiam)(November 23, 2009). Affirming a Circuit Court of Jackson County jury conviction for the offense of first degree murder with a sentence of life without mercy. Holding that the evidence was sufficient to support the conviction, and that admission of the fact that the defendant hit the victim in the nose was intrinsic evidence, not evidence of other bad acts under Rule 404(b). Finally concluding that the circuit court properly refused to give a lesser included offense instruction, because the evidence presented at trial did not support it.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34701.htm


CRIMINAL :: Witness conversation with jurors results in new trial

STATE v. RONNIE ALLEN RUSH, No. 34721 (Per Curiam)(November 18, 2009). Reversing jury convictions in the Circuit Court of Jackson County on two counts of voluntary manslaughter, one count of robbery, one count of burglary, and one count of conspiracy. A state trooper who served as the lead investigator and who sat beside the prosecuting attorney for the duration of the trial had conversations with four jurors. After an in camera inquiry by the circuit court, two of the jurors were excused, and the circuit court denied a motion for mistrial. Holding that the circuit court erred in denying the motion for new trial considering the length and degree of contact between jurors and a key witness for the State.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34721.htm


CRIMINAL, CONSTITUTIONAL, MOTOR VEHICLES :: Police checkpoint roadblocks

STATE v. LINDA S. SIGLER a/k/a LINDA S. MULLINS, No. 34741 –AND- STATE v. JOHN R. MULLENS, No. 34584 (BENJAMIN, C.J.)(November 25, 2009). Reversing orders in two consolidated cases arising from the Circuit Court of Fayette County involving DUI cases that arose as the result of police vehicular checkpoints. Holding that any stoppage of a motor vehicle by the police is an intrusion which constitutes a warrantless seizure under the state and federal constitutions. Overruling the case of STATE v. DAVIS, 195 W.Va. 79, 464 S.E.2d 598 (1995)(per curiam). Setting forth a balancing test for evaluating the lawfulness of a police checkpoint. Syl. Pt. 6. When evaluating the degree of interference with individual liberty, the courts "must consider not only the subjective intrusion determined by the potential of the checkpoint to generate fear and surprise in motorists, but also the objective intrusion into individual freedom as measured by the duration of the detention at the checkpoint and the intensity of the inspection." Syl. Pt. 7. The court has an obligation "to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Syl. Pt. 8. Concluding that "[s]uspicionless checkpoint roadblocks are constitutional in West Virginia only when conducted in a random and non-discriminatory manner within predetermined written operation guidelines which minimize the State's intrusion into the freedom of the individual and which strictly limits the discretion vested in police officers at the scene." Because neither of the encounters at issue complied with these standards, reversing the circuit court's orders.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34741_34584.htm


CRIMINAL, EVIDENCE :: Improper testimony as to witness credibility

STATE v. MICHAEL E. MARTIN, No. 34709 (Per Curiam)(November 23, 2009). Reversing an order of the Circuit Court of Raleigh County denying post-trial motions following a jury conviction of the offense of first degree murder with a sentence of life without mercy. Holding that expert testimony as to witness credibility should not have been admitted because character evidence was not placed at issue by the defendant and, more importantly, the testimony invaded the fact finding province of the jury. In this prosecution for murder of an undercover police officer where the defendant alleged entrapment as his defense, concluding that credibility of witnesses was critical, and it was error to permit a state trooper to testify as an expert regarding the credibility of the State's two key witnesses. Remanding for new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34709.htm


CRIMINAL, EVIDENCE :: Discarded investigative field notes; intrinsic evidence

STATE v. EDWARD C. GRIMES, No. 34735 (KETCHUM, J.)(November 16, 2009). Affirming a conviction for second degree murder obtained following a jury trial in the Circuit Court of Berkeley County. Rejecting a contention that the conviction should be set aside because one of the arresting officers, during the course of subsequently preparing a formal police report concerning the shooting, discarded or destroyed his field notes taken at the scene. Holding that the missing notes do not meet the materiality requirement of BRADY and YOUNGBLOOD. Further holding that an officer's testimony to the grand jury, though inartfully worded, did not support a conclusion that the indictment should have been dismissed, especially upon review of the entire record. Further concluding that the circuit court properly admitted evidence that the defendant beat another victim earlier in the evening. The circuit court correctly determined that the beating was not 404(b) evidence, but was rather intrinsic evidence necessary to complete the story that resulted in the victim's death. Deeming other errors to be without merit or not adequately briefed.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34735.htm


CRIMINAL, EVIDENCE, DISCOVERY :: Disclosure of identity of confidential informants

STATE EX REL. STATE OF WEST VIRGINIA v. ALSOP, et al., No. 35035 (Per Curiam)(November 17, 2009). Denying a writ of prohibition sought by the county prosecutor to prevent enforcement of an order of the Circuit Court of Webster County that ordered disclosure of the names and addresses of confidential informants in the State's initial discovery responses, prior to the conclusion of plea negotiations. Holding that Rule 16 of the Rules of Criminal Procedure imposes a nondiscretionary duty to provide disclosure, absent a motion to the circuit court seeking to maintain confidentiality, which was not made in this case. Further, the State has forty days before disclosure is required. Underscoring that the circuit court, not the State, should control the progression of the case and the timing of any necessary disclosure of witnesses.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/35035.htm


CRIMINAL, PROCEDURE :: Pre-indictment delay, preserving error via pre-trial motions

STATE v. WALTER JESSIE, No. 34589 (McHUGH, J.)(November 24, 2009). Affirming a Circuit Court of Mingo County jury conviction for unlawful assault. As a threshold matter, holding that the speedy trial error was preserved for appeal, despite not having been raised in post-trial motions. "Although this Court has held that a defendant may not assign an error for the first time on appeal that could have been presented initially for review in a post-trial motion, failure to raise an issue in a post-trial motion will not prevent this Court from entertaining that issue on appeal where it is clear that the trial court carefully and completely considered that specific issue in a pre-trial motion." Syl. Pt. 4. Clarifying the terms of analysis for evaluating delay in syllabus point 8: "In an effort to clarify the precise triggering event critical to an analysis of Fifth and Sixth Amendment rights of an accused with regard to allegedly prejudicial delays in prosecution, the events occurring within the defendant's chronology should be characterized as pre-accusatory or post-accusatory. Pre-accusatory delays, encompassing the time period before the moment of accusation whether by arrest or indictment, are evaluated under the Due Process provision of the Fifth Amendment. Post-accusatory delays, encompassing the time period after the moment of accusation whether by arrest or indictment, are evaluated under the speedy trial provision of the Sixth Amendment." After evaluating each of the applicable factors, concluding that no Fifth or Sixth Amendment violation occurred.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34589.htm


DISCRIMINATION :: Burden of proof not met

CHARLESTON TOWN CENTER CO. v. HUMAN RIGHTS COMM'N, et al., Nos. 34739 and 34740 (Per Curiam)(November 17, 2009). Reversing final orders of the Human Rights Commission that adopted ALJ decisions finding that Charleston Town Center discriminated against the appellees based upon race. Holding that the evidence relied upon was insufficient to prove unlawful discrimination, because the appellees failed to meet their burden to prove that the nondiscriminatory reason provided (that the complained-of action was based upon the mall's code of conduct) was a pretext. Finding that the ALJ's decision was clearly wrong and "tainted by a hostility and sarcasm . . . that casts doubt on the ALJ's fairness in deciding the instant case."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34739_34740.htm


FAMILY, ATTORNEYS :: Presumption of valid prenuptial agreement requires independent counsel

WARE v. WARE, No. 34720 (WORKMAN, J.)(November 23, 2009). Reversing an order of the Circuit Court of Harrison County that, in pertinent part, reversed the family court's determination that the prenuptial agreement is null and void. Holding that one attorney may not represent, or purport to counsel, both parties to a prenuptial agreement. Syl. Pt. 4. Re-examining the presumption of validity and burden of proof, and concluding in syllabus point 5: "For the presumption of validity to apply to a prenuptial agreement, both parties to that agreement must be represented by independent counsel. Moreover, where one party to a prenuptial agreement is represented by counsel while the other is not, the burden of establishing the validity of that agreement is on the party seeking its enforcement. To the extent that GANT v. GANT, 329 S.E.2d 106, 174 W. Va. 740 (1985), and its progeny hold otherwise, they are overruled." The agreement in question was procured in an invalid manner because one attorney acted for both parties in such a way as to interfere with Ms. Ware's opportunity to consult with independent counsel, and is therefore unenforceable. Remanding for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34720.htm


FAMILY, DOMESTIC VIOLENCE :: Physical act not always a statutory requirement for DVP

THOMAS v. MORRIS, No. 35141 (McHUGH, J.)(November 23, 2009). Reversing an order of the Circuit Court of Clay County that affirmed the family court's denial of a domestic violence protective order. Concluding that "[t]he act of domestic violence defined in West Virginia Code 48-27-202(5) (2001) as '[h]olding, confining, detaining or abducting another person against that person's will' does not require proof of some overt physical exertion on the part of the alleged offender in order to justify issuance of a protective order." Syl. Pt. 5. Furthermore, "[t]he act of domestic violence defined in West Virginia Code 48-27-202 (3) (2001) as '[c]reating fear of physical harm by harassment, psychological abuse or threatening acts' provides that fear of physical harm may be established with (1) proof of harassment, (2) proof of psychological abuse, or (3) proof of overt or covert threatening acts." In light of these clear statutory provisions, it was error to require proof of an overt physical act, where the record amply established that the petitioner had reason to fear that the respondent may physically harm her. Remanding for entry of a final protective order.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/35141.htm


FAMILY, PROCEDURE :: Continuing jurisdiction of family court

ALLEN v. ALLEN, No. 34628 (KETCHUM, J.)(November 16, 2009). Granting mixed relief from an order of the Circuit Court of Roane County that reversed a portion of the family court's order regarding child support on the basis that the family court had no subject matter jurisdiction while the parties' domestic relations case was pending in the supreme court. Holding that the circuit court erred in part and declaring, in syllabus point 5, that: "A family court has continuing jurisdiction to enter, modify or reconsider a child support order in a domestic relations case, notwithstanding the fact that another order in the same case has been appealed to a higher court." Accordingly, "[t]o the extent that this Court's prior decision in RAY v. RAY, 216 W.Va. 11, 602 S.E.2d 454 (2004) (per curiam), and its progeny are inconsistent with this holding, they are expressly overruled." Syl. Pt. 4.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34628.htm


FAMILY, PROCEDURE :: Enterprise goodwill

HELFER v. HELFER, No. 34703 (Per Curiam)(November 2, 2009). Affirming an order of the Circuit Court of Ohio County that refused a petition for appeal from a family court decision. Holding that the Court's decision in HELFER I did not require an additional evidentiary hearing on remand, and further concluding that the family court properly determined that in the absence of excess earnings, there is no enterprise goodwill to be included in the valuation of a chiropractic business.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34703.htm


HABEAS CORPUS, EVIDENCE :: Post-conviction DNA testing

STATE EX REL. BURDETTE v. ZAKAIB, No. 34857 (WORKMAN, J.)(November 2, 2009). Denying a writ of mandamus in the context of an interlocutory review under W.Va. Code 15-2B-14(j) of the circuit court's order denying a request for post-conviction DNA testing. Holding that in order to have the right to additional DNA testing under ZAIN III, 219 W.Va. 408, 633 S.E.2d 762 (2006), "the evidence sought to be tested must likely produce an opposite result if a new trial were to occur, and the evidence cannot be such that its purpose is merely to impeach or discredit a State's witness." Syl. Pt. 6. Further holding that: "In accordance with West Virginia Code 15-2B-14 (2004), the West Virginia Legislature provides a defendant the absolute right to ask for DNA testing; however, it does not provide a defendant the absolute right to have DNA testing conducted." Syl. Pt. 7. Determining that the circuit court correctly concluded that even without the evidence sought to be tested, the State still had overwhelming evidence to convict the petitioner. Rather than comply with the statutory prerequisites for post-conviction DNA testing, the petitioner makes unsupported blanket assertions.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34857.htm


HABEAS CORPUS, PROCEDURE :: Motion to add ZAIN III claim properly denied

STATE EX REL. FARMER v. McBRIDE, No. 34157 (Per Curiam)(November 2, 2009). Affirming an order of the Circuit Court of Jefferson County that denied a habeas corpus petition. Holding that the circuit court properly denied the petitioner's motion to amend his habeas petition to assert a ZAIN III claim, 219 W.Va. 408, 633 S.E.2d 762 (2006), insofar as the petitioner's case was one of ten cases specifically reviewed in ZAIN III and found to lack any probative error and further because there was no forensic evidence linking the petitioner to the crime scene. Holding that several ordinary trial error do not sufficiently raise constitutional errors as to be reviewable in habeas. Further concluding that admission of statement the petitioner gave while incarcerated in New Jersey was harmless error, and that the circuit court properly concluded that the other grounds asserted are without merit.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34157.htm


INJUNCTION, JUDGMENTS :: Injunction without bond is void

STATE EX REL. LLOYD'S INC. v. FACEMIRE, et al., No. 34948 (Per Curiam)(November 18, 2009). Granting moulded relief in prohibition from an order that enjoined the petitioner from transferring, dissipating or wasting assets in the context of an action to collect a judgment. First holding that the circuit court's failure to require the posting of an injunction bond, or to specifically state why an injunction bond is not required, renders the injunction void. Further holding that granting the injunctive relief was premature. Finally concluding that the circuit court's appointment of a commissioner in aid of execution was within its discretion.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34948.htm


INSURANCE, PROCEDURE :: Scope of remand, policy non-renewal hearing procedures

ZALESKI v. WEST VIRGINIA MUTUAL INSURANCE CO., No. 34620 (Per Curiam)(November 17, 2009). Granting mixed relief from an order of the Circuit Court of Ohio County entered upon remand following the Court's decision in ZALESKI I, 220 W.Va. 311, 647 S.E.2d 747 (2007). Discussing the scope of the remand, and holding that the circuit court did not err in denying the Mutual's motion to dismiss. Further holding, however, that the circuit court exceeded its jurisdiction on remand by requiring the parties to submit proposed hearing procedures and by amending the procedures prior to allowing the non-renewal hearing directed in ZALESKI I even to take place. Remanding for conduct of the non-renewal hearing, with any due process review to be conducted after the hearing process has concluded.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34620.htm


INSURANCE, TORTS :: No coverage for damage to borrowed trailer

BLAKE, et al. v. STATE FARM MUTUAL AUTO. INS. Co., No. 34725 (Per Curiam)(November 2, 2009). Reversing an order of the Circuit Court of Marshall County that granted partial summary judgment to the appellees and required State Farm to defend and indemnify a driver against property damage claims arising out of the loss of a trailer that was borrowed by the driver. Holding that the unambiguous insurance policy excluded coverage, and the loss is outside the coverage that is mandated by W. Va. Code 17D-4-12(e).

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34725.htm


PROCEDURE, PRISONS :: Venue and transfer of prison litigation

CHANCE v. HILL, SUP'T, WV CORRECTION INDUSTRIES, No. 34627 (Per Curiam)(November 2, 2009). Affirming an order of the Circuit Court of Fayette County that dismissed, without prejudice, an action filed under the Prison Litigation Reform Act, W.Va. Code 25-1A-1 to -8, based upon a determination that the proper venue for the action is the Circuit Court of Kanawha County. The case had previously been transferred from Fayette County to Kanawha County, and the Kanawha County Circuit Court dismissed the action as frivolous and failing to state a claim. This Court summarily reversed that determination, and remanded the case to the Kanawha County Circuit Court with directions to reinstate the complaint and issue process. Subsequently, the Kanawha County Circuit Court transferred the action back to Fayette County. Holding that transfer of the case back to Fayette County was contrary to this Court's prior order, and that venue is appropriate in Kanawha County under W.Va. Code 14-2-2.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34627.htm


PROFESSIONAL DISCIPLINE, CONTEMPT :: Suspension for failure to comply with prior disciplinary order

STATE EX REL. OFFICE OF DISCIPLINARY COUNSEL v. DAVID A. BARNEBEI, No. 34707 (Per Curiam)(November 25, 2009). Finding the respondent to be in contempt of a prior disciplinary order that reprimanded the respondent and imposed several conditions upon his practice. In view of the respondent's failure to promptly and fully obey the Court's prior disciplinary order, the respondent's license to practice law in West Virginia is suspended until such time as he is in full compliance with the Court's order.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34707.htm


PROFESSIONAL DISCIPLINE, CONTEMPT :: Suspension for failure to comply with prior disciplinary order, suspension stayed

STATE EX REL. OFFICE OF DISCIPLINARY COUNSEL v. JOSEPH P. ALBRIGHT, JR., No. 34973 (Per Curiam)(November 25, 2009). Finding the respondent to be in contempt of a disciplinary order issued January 10, 2007 that reprimanded the respondent and directed him to complete the matter involving an estate, to report to the Office of Disciplinary Counsel every three months until the estate was completed, and to pay the costs of the disciplinary proceedings. In view of the respondent's failure to promptly and fully obey the Court's prior disciplinary order, the appropriate sanction is suspension. However, because the underlying estate matter begs for an immediate resolution, the suspension is stayed for 120 days so that the estate matter may be fully and finally resolved. Upon receipt of a report by the respondent, the Court will take such action with regard to the respondent's license as deemed appropriate under the circumstances.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34973.htm


PUBLIC RECORDS :: Personal e-mail of a public official

ASSOCIATED PRESS v. CANTERBURY, No. 34768 (DAVIS, J.)(Workman, J., dissenting)(November 12, 2009). Granting mixed relief from an order of the Circuit Court of Kanawha County that ordered the disclosure of five out of thirteen e-mail communications between Justice Elliot E. Maynard and Donald L. Blankenship sought under the WV Freedom of Information Act. Holding that the circuit court properly required actual production of the e-mails for in camera review. Concluding that under the clear language of the statute, "a personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public's business, is not a public record subject to disclosure under FOIA." Syl. Pt. 3, in part. Determining whether a communication by a public official or employee is a public record "is restricted to an analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record." Syl. Pt. 4, in part. Applying these holdings to conclude that none of the thirteen e-mails were subject to disclosure, because none of the messages involved the official duties, responsibilities or obligations of Justice Maynard as a member of this Court.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34768.htm


STATUTORY CONSTRUCTION :: Effect of short title on scope of statute

L.H. JONES EQUIPMENT CO. v. SWENSON SPREADER LLC, No. 34745 (BENJAMIN, C.J.)(Ketchum, J., dissenting)(November 18, 2009). Answering a certified question from the United States Circuit Court for the Northern District of West Virginia involving the scope of the West Virginia Farm Equipment Dealer Contract Act. Holding, in syllabus point 6, that: "The West Virginia Farm Equipment Dealer Contract Act is not limited in its scope and application to 'dealers' and 'suppliers' of 'farm equipment' only, as might mistakenly be inferred by reference only to the Act's statutory short title. Rather, the protections of the Act extend to 'dealers' and 'suppliers' of 'farm, construction, industrial or outdoor power equipment or any combination of the foregoing,' as provided in the definition of 'dealer,' found in the Act at West Virginia Code 47-11F-2 (1989), consistent with the actual full title of the Act."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34745.htm


TAXATION, HOSPITALS :: Tracking entries were not gross receipts

CHARLESTON AREA MEDICAL CENTER, INC. v. STATE TAX DEPARTMENT of WEST VIRGINIA, No. 34710 (Per Curiam)(McHugh, J., disqualified)(Swope, Judge, by temporary assignment)(November 23, 2009). Reversing an order of the Circuit Court of Kanawha County that affirmed a decision by the state tax department denying the hospital's petition for reassessment. Holding that it was error to conclude that the provision of in-house health care benefits to certain employees should be considered "gross receipts" for the purpose of the West Virginia Health care Provider Tax Act of 1993. Concluding that the circuit court ignored any application of West Virginia Code 11-27-22(c), which mandates that a health care provider's method of accounting for purposes of the Act be consistent with its accounting methods used for federal income tax purposes. Because the accounting entries associated with the self-insurance benefits were not reported as federal income, it was error to treat the entries as gross receipts. Remanding for refund of amount previously paid under protest.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34710.htm


TAXATION, CONSTITUTIONAL, PROCEDURE :: Perfecting an appeal, assessment was proper

MOUNTAIN AMERICA, LLC, et al. v. HUFFMAN, ASSESSOR OF MONROE COUNTY, No. 34426 (BENJAMIN, C.J.)(November 25, 2009). Affirming an order of the Circuit Court of Monroe County that affirmed a decision by the Monroe County Commission to uphold the ad valorem property tax assessments made by the county assessor. As a threshold matter, addressing whether all of the taxpayers perfected an appeal from the Board of Equalization of Review to the Circuit Court. Because no taxpayer other than Mountain America properly perfected an appeal in accordance with W.Va. Code 11-3-35, appeals of other taxpayers are not before the Court. "A petition for appeal which names only one of multiple complainants appeals only the cause of the complainant named and is wholly insufficient as a petition for an appeal by any person other than the person named." Syl. Pt. 3. Rejecting a facial constitutional challenge to the tax assessment and review process, for reasons stated in prior decisions, and holding that the process as applied did not violate due process. Concluding that the assessment did not violate the equal and uniform taxation principles in Article X section 1 of the West Virginia Constitution. The taxpayer did not sufficiently sustain its burden of proof, because it did not offer any evidence of the true and actual value of the residual property. Finally concluding that the circuit court properly concluded that the taxpayer failed to meet its burden to prove that other comparable property was intentionally and systemically undervalued.


To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34426.htm


TORTS, CONSTRUCTION :: Independent contractor defense applies

FRANCE v. SOUTHERN EQUIPMENT CO., et al., No. 34494 (KETCHUM, J.)(Davis, J., dissenting)(Workman, J., dissenting)(November 24, 2009). Affirming an order of the Circuit Court of Logan County that granted summary judgment in favor of the building owner in a personal injury action. The building owner contracted with a roofing manufacturer for installation and removal of a sheet metal roof. Unbeknownst to the building owner, the manufacturer hired a builder to remove and install the roof. Among the eight-person crew employed by the builder was a sixteen-year old boy, who fell from the roof and sustained head injuries. Holding that the circuit court properly granted summary judgment to the building owner, where there was no evidence to support an exception to the independent contractor defense. There was no evidence that the building owner sanctioned, or even knew of, the illegal activity of hiring a sixteen year-old. Because the risk involved with roofing can be eliminated by use of reasonable safety measures, it is not an inherently dangerous activity. The circuit court did not err in holding that the building owner could not be held liable under OSHA as a multi-employer worksite, and the plaintiff's proffered expert testimony improperly usurps the role of the circuit judge to determine the law of the case.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34494.htm


TORTS, DAMAGES, EVIDENCE :: Non-economic damages verdict reduced

KARPACS-BROWN v. MURTHY, No. 34747 (Per Curiam)(Workman, J., concurring in part and dissenting in part)(November 19, 2009). Granting mixed relief from orders of the Circuit Court of Wetzel County following a jury verdict for the plaintiff (in the amount of four million dollars plus pre- and post-judgment interest) in a medical malpractice wrongful death action. Concluding that the trial court's decision to exclude admission of a DNR order was appropriate, because any malpractice the occurred took place before the order was entered. Holding that in the absence of any evidence or jury instructions as to economic loss, the defendant should not be penalized for the reasonable decision not to ask that economic damages be specifically enumerated on the verdict form. Because the entire verdict consists of non-economic damages, the one million dollar statutory limit should have been imposed, and there is also no basis for imposing pre- and post-judgment interest. Finally concluding that the order awarding attorney fees to plaintiff was not sufficiently specific or based upon an evidentiary record, and remanding for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34747.htm


TORTS, IMMUNITY, INSURANCE :: Endorsement No. 7 excludes coverage

WRENN, et al. v. WEST VIRGINIA DEPT. OF TRANSP., DIV. OF HIGHWAYS, No. 34717 (WORKMAN, J.)(Davis, J., dissenting)(November 2, 2009). Affirming an order of the Circuit Court of Wyoming County that granted a motion to dismiss a suit for damages against the DOH following an accident that resulted in two deaths at a bridge the plaintiffs alleged to be a poorly maintained. Holding that Endorsement No. 7 to the State's liability insurance policy excludes coverage for accidents where DOH employees are not present. Further holding that Endorsement No. 7 is not contrary to West Virginia law or public policy, because the policy affords significantly broad protection, and given the latitude that the Legislature has given to BRIM in determining the scope of coverage for the State public roads, highways and bridges. The fact that the State's insurance policy does not cover every function of the DOH does not mean that it violates public policy.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34717.htm


TORTS, IMMUNITY, LOCAL GOVERNMENT :: No liability for slip and fall on black ice

STATE EX REL. CORPORATION OF CHARLES TOWN v. SANDERS, et al., No. 35034 (Per Curiam)(November 16, 2009). Granting a writ of prohibition to prevent enforcement of an order of the Circuit Court of Jefferson County that denied a motion to dismiss a personal injury action brought against Charles Town after the plaintiff slipped and fell on ice in a public parking lot that was leased operated and maintained by the city. Holding that in the absence of affirmative negligent acts, the city is clearly entitled to governmental immunity. Further concluding that governmental immunity was not waived by contracting with a private entity to remove snow and ice because the terms of a lease cannot be inconsistent with governmental immunity.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/35034.htm


TORTS, INSURANCE :: Missing pages in application, reliance and misrepresentation

JENNINGS v. FARMER'S MUTUAL INSURANCE CO., No. 34743 (Per Curiam)(November 24, 2009). Affirming an order of the Circuit Court of Monongalia County that granted summary judgment in favor of an insurance agent who was the defendant in a cross-claim brought by the insurer in a first party bad faith action, seeking contribution and alleging fraudulent misrepresentation. Holding that there was no evidence that the insurer relied on pages that were missing from the insurance application, because the policy was issued even though the pages were missing. Accordingly, there could have been no misrepresentation. Holding that the insurer's settlement with its insured extinguished any liability the agent had for contribution to the insurer.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34743.htm


TORTS, INSURANCE, IMMUNITY :: Validity of policy not clear from record

WEST v. WV DEPT. OF TRANP., DIV. OF HIGHWAYS, et al., No. 34749 (Per Curiam)(Davis, J., concurring in part and dissenting in part)(November 18, 2009). Reversing an order of the Circuit Court of Brooke County that denied a motion for new trial following a jury verdict for the plaintiffs in an amount of over eight million dollars. Because at the time the applicable insurance policy was issued, there was a statutory requirement that all contracts of insurance be signed, remanding for a determination of the threshold issue of whether a properly executed State insurance policy was in effect at the time the accident occurred.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34749.htm


TORTS, PREEMPTION :: Formaldehyde-based negligence claims

HARRISON v. SKYLINE CORP., No. 34706 (McHUGH, J.)(November 13, 2009). Answering certified questions from the Circuit Court of Jackson County regarding the extent to which formaldehyde-based negligence claims are preempted under the provisions of the federal manufactured Home Construction and Safety Act. Holding, in syllabus point 3, that: "Common law negligence claims based on formaldehyde exposure in manufactured homes which seek to establish a standard of performance not covered by the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. 5401-5426, or regulations promulgated thereunder and which pose no challenge to the federally established formaldehyde emission standards, 24 C.F.R. 3280.308 and 3280.309, are not subject to preemption." Further holding in syllabus point 4 that: "Ambient air testing for the presence of formaldehyde in wood products used in the construction of a manufactured home built in accordance with the provisions of the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. 5401-5426, is admissible as evidence in a common law negligence action seeking to establish a standard of performance not covered by the Act or associated regulations as long as the tests are not used to challenge to the formaldehyde emission levels established under the Act."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34706.htm


TORTS, PROCEDURE :: Prejudicial closing argument

JONES, ADMINISTRATRIX v. SETSER, et al., No. 34619 (Per Curiam)(Ketchum, J., disqualified)(Gaughan, Judge, by temporary assignment)(November 13, 2009). Reversing an order of the Circuit Court of Cabell County that denied the plaintiff below's motion to set aside an adverse verdict in a medical malpractice case. Holding that the arguments of defense counsel combined with the use of certain demonstrative aids (including a Wizard of Id cartoon) wrongfully injected prejudice into the trial of the case and the circuit court abused its discretion in failing to grant a mistrial. Remanded for new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34619.htm


TORTS, STATUTES OF LIMITATION :: Clarifying application of discovery rule, civil conspiracy

DUNN v. ROCKWELL, et al., No. 34716 (KETCHUM, J.)(Benjamin, C.J., concurring in part and dissenting in part)(Davis, J., concurring in part and dissenting in part)(November 24, 2009). Granting mixed relief from orders of the circuit court of Jefferson County that granted summary judgment to two defendants below, because the circuit court concluded that the statutes of limitation for the various causes of action alleged had expired. Plaintiffs were prospective purchasers of land that included frontage along the Shenandoah River who sued their lawyer, their lawyer's wife (who became the owner of the riverfront parcel), and their lawyer's former law firm. Holding that material questions of fact remain as to whether five of the causes of action had expired, and that there was no statute of limitation applicable to two equitable causes of action. Overruling CART v. MARCUM, 188 W.Va. 241, 423 S.E.2d 644 (1992) and its progeny. Syl. Pt. 1. Clarifying and unifying application of the discovery rule and setting forth a five-step analysis to be applied to determine whether a cause of action is time-barred. Syl. Pt. 5. Holding that civil conspiracy is not a cause of action in and of itself, but is a means to commit an underlying tort, and therefore the statute of limitation applicable to the underlying tort is also applied to a civil conspiracy claim. Remanding for additional fact finding on whether the statute of limitations was tolled under the continuous representation doctrine, in view of the fact that the co-defendant lawyer continued to represent the plaintiffs in their effort to purchase the riverfront property at issue. As an alleged co-conspirator, issues of fact similarly remain as to whether the claims against the lawyer's wife are time-barred.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34716.htm


WORKERS' COMPENSATION :: Injury on lunch break not compensable

WILLLIBY v. WVOIC/FIRST CENTURY BANK, No. 34455 (Per Curiam)(November 2, 2009). Affirming an order of the Workers' Compensation Board of Review that reversed determinations by the Office of Judges that an injury was compensable. Holding that no exception to the going and coming rule was established, where the record is clear that the appellant's fall and injury did not occur in the course of or as a result of her employment. There is no evidence that the appellant was doing any work for her employer in walking across the street to pick up her lunch during her break period when she fell in the street and was injured. The appellant was exposed to the same risk as every other member of the public walking on the street that day.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34455.htm


WORKERS' COMPENSATION, EVIDENCE :: Compensability of CML due to benzene exposure

CASDORPH v. WVOIC/WEST VIRGINIA STATE POLICE, No. 34473 (Per Curiam)(November 19, 2009). Reversing an order of the Workers' Compensation Board of Review that reversed a decision by the Office of Judges, which held that the claimant's condition, chronic myelogenous leukemia, was compensable as an occupational disease. Holding that the medical literature and the expert and fact witness testimony sufficiently established that a causal link existed between the claimant's benzene exposure while serving as a mechanic and his CML, such that the elements of WV Code 23-4-1 were indeed met. Though the case studies cited by the claimant were small, they are valid studies that have been peer reviewed and are entitled to appropriate weight. Remanded with instructions to reinstate the order of the Office of Judges, finding the claim compensable.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall09/34473.htm



CORRECTION:

In Issue #102, the link to the following opinion was incorrect: IN RE: RYAN B., No. 34598 –-AND-- IN RE: CAITLYN M., CARSON M., AND STEVEN M., No. 34704 (KETCHUM, J.)(Benjamin, C.J., concurring)(October 29, 2009).

The correct link is:
http://www.state.wv.us/wvsca/docs/fall09/34598_34704.htm


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