On October 9, 2008, the Court approved four rule changes related to mass litigation that become effective immediately. Those changes are:

1. Amendments to Trial Court Rule 26: These amendments relate to the Mass Litigation Panel, referral of cases, and conduct of business before the Panel, among other changes. An engrossed version of TCR 26 is also available.
2. New Trial Court Rule 15: This is a new rule that will allow the implementation of electronic filing and service in cases referred to the Mass Litigation Panel under Trial Court Rule 26. Electronic filing and service will not be used to initiate cases, and implementation will be triggered by entry of an order by the Panel (See TCR 15.02).
3. Amendment to Trial Court Rule 16.05(a): This amendment adds mass litigation to a list of exceptions from time standards otherwise applicable in civil litigation.
4. Amendment to Rule of Civil Procedure 5(e): This amendment enables electronic filing and service for post-complaint filings, following the model used to enable filing by facsimile.

In addition, the Court approved an amendment to Rule of Civil Procedure 3(a) that becomes effective on November 10, 2008. The amendment adds a second sentence to the existing rule, as follows: "(a) Complaint. [~] A civil action is commenced by filing a complaint with the court. For a complaint naming more than one individual plaintiff not related by marriage, a derivative or fiduciary relationship, each plaintiff shall be assigned a separate civil action number and be docketed as a separate civil action and be charged a separate fee by the clerk of a circuit court." For additional background on this rule, see syllabus points 3 and 4 of CABLE v. HATFIELD, 202 W.Va. 638, 505 S.E.2nd 701 (Davis, C.J.)(July 7, 1998).

Summaries of the first seven opinions issued in the September 2008 term of court were posted today. One opinion, Savarese v. Allstate, resolved a case that was argued in the January term of court. Unless otherwise stated, in all opinions issued this term, Justice Albright is not participating and Senior Status Justice McHugh is sitting by temporary assignment.

The final day of arguments in the September term of court is Tuesday, October 29.

IN RE: SAMANTHA S. AND HOPE S., No. 33713 (Per Curiam)(Sept. 26, 2008). Granting mixed relief from an order of the Circuit Court of Mingo County that terminated parental rights and awarded physical custody to the paternal grandparents. Holding that the circuit court correctly terminated parental rights and awarded custody to the paternal grandparents. Holding that the circuit court erred in granting unsupervised visitation to the maternal grandparents, and remanding for entry of an order terminating the visitation rights of the maternal grandparents.

SAVARESE v. ALLSTATE INSURANCE CO., et al., No. 33443 (BENJAMIN, J.)(Starcher, J., dissenting)(McHugh, S.S.J., not participating)(September 26, 2008). Affirming an order of the Circuit Court of Ohio County that dismissed a first-party bad faith action, pursuant to W.Va. Code 56-1-1(c), for lack of subject matter jurisdiction. Holding, in syllabus point 2, that: "Pursuant to West Virginia Code 56-1-1(c) (2003), a nonresident plaintiff must establish that all or a substantial part of the acts giving rise to his or her claims occurred in West Virginia in order to establish that venue is appropriate in this state where no claims are asserted against a West Virginia resident. In an action arising from the failure to pay a nonresident plaintiff's medical payment claims arising under a contract of insurance entered into and governed by the law of another state, the nonresident plaintiff's retention of a West Virginia attorney and communications to that attorney in West Virginia that the medical payment claims have been denied are insufficient, standing alone, to satisfy the requirements of West Virginia Code 56-1-1(c)(2003)." (Note: This case was argued in the January 2008 term of court.)

EASTHAM v. CITY of HUNTINGTON, No. 33807 (Per Curiam)(Benjamin, J., concurring)(McHugh, S.S.J., not participating)(Sept. 30, 2008). Reversing an order of the Circuit Court of Cabell County. Holding that a city ordinance requiring city employees to be residents of the city did not conflict with constitutional and statutory protections provided to civil service employees, and construing the ordinance to require a pre-disciplinary hearing that comports with constitutional and statutory requirements.

LAWYER DISCIPLINARY BOARD v. MARK A. BLEVINS, No. 33281 (Per Curiam)(Starcher, J., concurring)(September 26, 2008). Imposing harsher discipline than recommended by the Hearing Panel Subcommittee, after concluding that "the magnitude of respondent Blevins' actions, which included, at a minimum, recklessly encouraging a convicted felon to intimidate, by violence or the threat of violence, certain former clients who owed the respondent money, warrants the annulment of the respondent's license to practice in this State." Imposing additional conditions to be satisfied prior to reinstatement.

WEST VIRGINIA PUBLIC RETIREMENT BOARD v. JERRY ALLEN WEAVER, No. 33864 (DAVIS, J.)(October 10, 2008). Affirming an order of the Circuit Court of Kanawha County that held a public retiree had forfeited retirement benefits because the employee had rendered "less than honorable service" pursuant to W.Va. Code 5-10A-1 and 5-10A-2(e)(2). Holding that the circuit court properly determined that the appellant's conviction for felony conspiracy to buy votes was sufficiently related to his public office as Assessor of Lincoln County so as to render him ineligible to receive retirement benefits.  [Permanent Link]  Google It! 

DAVIS MEMORIAL HOSPITAL v. WEST VIRGINIA STATE TAX COMM'R, No. 33862 (DAVIS, J.)(McHugh, S.S.J., disqualified)(Hutchison, J., by temporary assignment)(October 14, 2008). Affirming an order of the Circuit Court of Randolph County that affirmed an administrative denial of a claim for refund of West Virginia consumer sales tax and use tax paid for the year 2002. Holding that the circuit court properly included the hospital's receipts from patient revenues, also known as "exempt purpose income", in the definition of "support" as contained in West Virginia Code 11-15-9(a)(6)(F)(i)(II), thereby disqualifying the hospital from receiving an exemption from sales and use tax.

BEAHM, et al. v. 7-ELEVEN, INC. and MELISSA SPINKS, No. 33833 (Per Curiam)(Starcher, J., dissenting)(McHugh, S.S.J., not participating)(September 26, 2008). Affirming an order of the Circuit Court of Jefferson County that granted summary judgment to defendants in an action related to gasoline release from underground storage tanks. Applying the doctrine of virtual representation to conclude that privity exists between the appellants and plaintiffs in a prior action adjudicated on the merits. The prior action was sufficiently similar, and therefore the circuit court properly granted summary judgment on the basis of claim preclusion.