McGraw, Justice, dissenting: I disagree with the majority
that the evidence presented in this case is not sufficient to produce a genuine
issue as to a material fact.
In Barrett v. Fields,
et al., 924 F.Supp. 1063 (Kan. 1996), where a claim was brought against
the county sheriff and other department officials alleging conspiracy to restrain
wrecker business, the court dismissed a motion for judgment as a matter of
law based on evidence suggesting the sheriff's department dispatched approximately
50% of all calls for towing services. The plaintiff's evidence indicated that
during a four-year period, two particular wrecker services received 85% of
the calls from the sheriff's department while the other four towing companies
divided the remaining 15% among them. The court held “the jury could
easily determine the defendants restrained competition for tow services...and
that the restraint substantially injured competition in the market with little
or no legitimate business justification.” Id. at 1075. Although I recognize summary
judgment as a valuable litigation tool that promotes judicial economy, it
is no substitute for a jury trial, and should only be used in the proper circumstances.
“[T]he inquiry the court must make is 'whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.'” Williams, 194 W.Va.
at 61. The evidence present here is not so one-sided, therefore, I respectfully
dissent.
In Williams v. Precision
Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), Justice Cleckley noted
“This Court will reverse summary judgment if we find, after reviewing
the entire record, a genuine issue of material facts exists or if the moving
party is not entitled to judgment as a matter of law. In cases of substantial
doubt, the safer course of action is to deny the motion and to proceed to
trial.” (emphasis added) Id. at 59. It was further stated
that “we must draw any permissible inference from the underlying facts
in the most favorable light to the party opposing the motion...as credibility
determinations, the weighing of evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.” (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L.
Ed. 2d 202, 216 (1986)). Id.
In the instant case, I believe
Allstate Wrecker presented sufficient evidence to support its claim. The evidence
put forth indicates Abbott's received a significantly higher percentage of
calls from the 911 Emergency Service, which appears to contradict the Sheriff's
Department's self-proclaimed, longstanding practice of calling whichever towing
service was geographically closer. Additionally, further evidence was submitted
by Allstate challenging the City of St. Albans' contention that the city alternated
calls between the two companies. City records obtained by Allstate Wrecker
indicated Abbott's received almost twice as many calls as Allstate. This evidence
alone could lead a reasonable jury to find that appellees have significant
control over the relevant market in Kanawha County, and therefore, the case
should not have been dismissed on summary judgment.