The Court yesterday refused a petition for a writ of prohibition sought by Union Carbide to prevent mass litigation related to asbestos exposure from proceeding in the Circuit Court of Kanawha County. See this post for background. The vote was 4-0 (Justice Davis disqualified).

Summaries of 22 new opinions are now available online. (Review them on one page, or split by category among civil, criminal, and family.) Subscribers to the e-mail opinion summary service will receive all the summaries this morning. Of the 22 opinions covered, twelve are signed opinions that articulate new points of law. For civil practitioners, notable issues include:

• newly-construed limitations period for actions arising from closed-ended credit transactions
• legal representation of county school boards
• further elucidation of attorney-client privilege and work product claims in bad faith litigation; see also Justice Davis' concurring opinion in the Medical Assurance case, discussing the crime-fraud exception in this context
• finality of partial summary judgment in multiple defendant actions, inherent power of courts to reconsider interlocutory orders
• calculation of tax credit for gas storage business
• assignment of legal malpratice claims is void as against public policy
• high school athlete was not a public figure for purposes of defamation action against newspaper; general review of public figure analysis in defamation actions
• requirements for finality of infant settlement

For criminal practitioners, new points of law were announced regarding the offenses of removing signs from property and failing to identify oneself to a law enforcement officer, as well as the process for allocating credit for time served by youthful offenders in certain situations. In addition, the Court revisited and modified the bifurcation and status element holdings previously announced in State v. Nichols.

LONGWELL, et al. v. BOARD OF EDUC. OF MARSHALL COUNTY, No. 30987 (DAVIS, J.)(Starcher, C.J., concurring)(McGraw, J., dissenting)(May 6, 2003). Affirming a judgment of the Circuit Court of Marshall County that rejected a citizen challenge to the practice of hiring private counsel to represent county boards of education. Holding that when a county board of education is in need of legal services, it may exercise its own discretion in determining whether to utilize the services of the county prosecuting attorney, who has a duty to represent it under WV Code 7-4-1, or to hire its own legal counsel pursuant to WV Code 18-5-13(l).

DUNLAP, et al. v. FRIEDMAN'S INC., et al., No. 30839 (ALBRIGHT, J.)(Starcher, C.J., concurring)(Davis, J. and Maynard, J., dissenting)(May 6, 2003). Reversing a ruling of the Circuit Court of Kanawha County that dismissed claims arising under the West Virginia Consumer Credit and Protection Act for failure to file a complaint within the applicable statute of limitations period. Holding that WV Code 46A-5-101(1) is ambiguous, and must be construed in favor of its remedial intentions, to conclude that a consumer who is party to a closed-ended credit transaction, resulting from a sale as defined in WV Code 46A-2-102(d), may bring any necessary action within either the four-year period commencing with the date of the transaction or within one year of the due date of the last payment, whichever is later.

WOUNARIS v. WV STATE COLLEGE, No. 30845 (Per Curiam)(Starcher, C.J. and Davis, J., dissenting)(Albright, J., concurring)(May 7, 2003). Reversing a decision of the Circuit Court of Kanawha County that denied a motion for new trial by plaintiff below, after a jury declined to find that he was fired a second time by the college for filing a grievance, or for any other impermissible reason. Holding that the college's action in firing a public employee who availed himself of the grievance process, while the college's appeal of the order of reinstatement was still pending, violates clear public policy. Remanding for new trial.

SER BRISON, et al. v. KAUFMAN --AND-- SER NATIONWIDE MUTUAL INSURANCE CO., et al. v. KAUFMAN, et al., Nos. 31114 and 31115 (McGRAW, J.)(Davis, J., concurring)(June 13, 2003). Granting a moulded writ of prohibition to prevent the enforcement of an order of the Circuit Court of Kanawha County regarding access to discovery materials at issue in an insurance bad faith action, specifically the attorney's litigation file in the underlying wrongful death action and redacted portions of the insurer's claim file maintained during that action. Holding that the circuit court erred in applying the wrong legal standard to analyze the attorney-client privilege and work product doctrine claims. Holding further that attorneys in captive law firms are subject to the same ethical responsibilities toward their clients and to the legal profession as other attorneys, and therefore have standing to assert privilege claims. Additionally holding that the bringing of a first-party bad faith action by the insured does not automatically result in a waiver of the insurance company's attorneys client privilege regarding the disputed issue.

HUBBARD v. STATE FARM INDEMNITY CO., et al., No. 31031 (DAVIS, J.)(McGraw, J., dissenting)(June 13, 2003). Reversing a decision of the Circuit Court of Ohio County that applied a Rule 60(b) analysis to refuse motions to reconsider partial summary judgment orders entered against the insurers. Holding that partial summary judgment orders as to one defendant in a multi-defendant action are interlocutory in nature, and that the circuit court erred in determining that the orders were final and therefore could only be reconsidered by applying a Rule 60(b) analysis. Holding that the circuit court has broad inherent power to reconsider interlocutory orders; unless certified as final orders under Rule 54(b), such an order remains interlocutory so long as the affected party does not seek an appeal.

OFFICE OF DISCIPLINARY COUNSEL v. ALBERS, No. 31079 (Per Curiam)(May 7, 2003). Granting a petition for suspension of license to practice law; in light of the respondent's incarceration, she is unable to represent the interest of her clients and therefore poses a substantial threat of irreparable harm to the public. Chief Judge of the Circuit Court of Cabell County to maintain appointment of a trustee to protect the interests of the respondent's clients.

CONSOLIDATED NATURAL GAS CO. v. PALMER, No. 30735 (ALBRIGHT, J.)(May 6, 2003). Reversing a judgment of the Circuit Court of Harrison County regarding the calculation of a tax credit against business franchise tax liability. Holding that for gas storage businesses, the figure for gross income to be included in the numerator of the tax credit fraction set forth in WV Code 11-23-17(b) is gross receipts received as compensation for the business of providing all gas reservoir injection, storage and withdrawal services. Holding further that the figure for gross revenue to be included in the denominator of the aforesaid tax credit fraction is all revenue received from all business activity within West Virginia regardless of whether a profit is realized.

DELAWARE CWC LIQUIDATION CORP., et al. v. MARTIN --AND-- GARLETTS, et al. v. AITCHESON, Nos. 30985 and 31113 (McGRAW, J.)(May 22, 2003). Answering certified questions from the Circuit Court of Putnam County and the Circuit Court of Berkeley County regarding whether claims for legal malpractice may be assigned. Holding that such assignments are void as contrary to public policy. Declining to adopt the position of a minority of jurisdictions that have permitted assignability.

WILSON v. THE DAILY GAZETTE CO., No. 31045 (DAVIS, J.)(McGraw, J., and Albright, J., dissenting)(June 13, 2003). Reversing a grant of summary judgment in favor of newspaper in a defamation action, on the basis that the plaintiff below, a high school athlete, constituted a public figure. Reviewing public figure analysis in defamation actions, and holding that the issue of whether the plaintiff is a public figure is an issue of law for the court. Holding further that the appellant did not fall within either of the three categories of public figures that apply. Remanding for further proceedings.

MILLS, et al. v. WATKINS, et al., No. 30694 (MAYNARD, J.)(Starcher, C.J., concurring)(McGraw, J., concurring in part and dissenting in part)(May 22, 2003). Affirming an order of the Circuit Court of Mercer County that declined to grant relief from an earlier order of summary judgment in favor of insurer and others. Holding that when an infant is injured in an automobile accident and the infant's legal guardian enters into a settlement agreement with an insurer by complying with the provisions of WV Code 44-10-14, the settlement is final as to that insurance company at the time the circuit court approved the legal guardian's petition for permission to settle the claim if the insurer is released in the settlement agreement and the insurer is unaware of any misconduct that would constitute substantive grounds for a bad faith action at the time the insurer agrees to the settlement.

ZIRKLE v. WINKLER, et al., No. 30787 (Per Curiam)(May 22, 2003). Reversing a grant of summary judgment to newspaper in suit by person injured in a collision with a motor route newspaper carrier. In light of the facts surrounding the position, holding that reasonable minds could differ regarding whether the independent contractor exception to the doctrine of respondeat superior should apply, remanding for consideration of that question by a jury.

WILLIAMSON v. HARDEN, No. 30751 (Per Curiam)(May 7, 2003). Affirming an order of the Circuit Court of Berkeley County that dismissed, on 12(b)(6) grounds, an action for outrage and abuse of process brought by the plaintiff in a slip-and-fall case against a witness who testified at the personal injury trial. Holding that allegations of false testimony by a witness do not state a claim for abuse of process or the tort of outrage, and the claims were therefore properly dismissed.

GRAHAM v. WALLACE, No. 30846 (Per Curiam)(Davis, J., disqualified; Judge Johnson sitting by special assignment)(Starcher, C.J. and Johnson, Judge, dissenting)(Albright, J., concurring)(May 7, 2003). Reversing a judgment of the Circuit Court of Mercer County, following a second jury trial in a dental malpractice case in which the jury found in favor of the defendant. (The prior verdict in favor of the plaintiff was reversed, following an appeal by the defendant, see Graham v. Wallace I, 208 WV 139, 538 SE2d 730 (2000)). Holding that the trial court erred in admitting irrelevant expert testimony regarding the proper way to perform and read a radiological procedure called an arthrogram.

VERIZON WEST VIRGINIA, INC. et al. v. WEST VIRGINIA BUREAU of EMPL. PROGRAMS, WORKERS' COMPENSATION DIVISION, et al., Nos. 30899, 30900 and 30901 (ALBRIGHT, J.)(Davis, J., and Maynard, J., dissenting)(June 12, 2003). Affirming an order of the Circuit Court of Kanawha County that upheld an administrative decision to impose an assessment on certain self-insured members of the West Virginia worker's compensation system. Rejecting statutory and constitutional arguments that imposition of the premiums were impermissible.