Larry E. Alkire v. First National Bank of Parsons, a national banking association v. Mosler, Incorporated, a Delaware corporation, No. 23125 (W. Va. July 15, 1996) (Recht, J.):
Reversing vacation of a $1.05 million punitive damages award and remanding for further proceedings, the Court held (1) the amount of a punitive damages award must be reviewed by both the trial and appellate courts in accordance with the requirements of Garnes and TXO; (2) punitive damages review pursuant to Garnes and TXO should not include the "really mean/really stupid" dichotomy mentioned in TXO; and (3) punitive damages review pursuant to Garnes and TXO follows a two-step process: (i) determining whether "any" award of punitive damages was warranted under the circumstances of the case and (ii) whether the "amount" of punitive damages awarded was warranted.
Danny Reed and Sonya Reed v. Kathy L. Wimmer, No. 22705 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 199, 465 S.E.2d 199:
Reversing the future medical expenses portion of a jury award in the absence of any evidence regarding the necessity of such expenses, the Court held that before a verdict may be reversed as excessive, the trial court must make a detailed appraisal of the evidence on such damages, to which an appellate court should defer as long as the award is supported by some competent, credible evidence addressing all of the essential elements of the award.
Carol Sue Bullman v. D & R Lumber Company, No. 22729 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 129, 464 S.E.2d 771:
Affirming an award of both treble and punitive damages in a wrongful removal of timber case, the Court held (1) the treble damage award available under W. Va. Code § 61-3-48a is to provide compensatory damages to landowners for damaged or removed timber and (2) because W. Va. Code § 61-3-48a states that treble damages shall be in addition to and notwithstanding any other penalties provided by law, a plaintiff may recover punitive damages in addition to such treble damages.
Sandra Bressler v. Mull's Grocery Mart, No. 22343 (W. Va. July 19, 1995) (Workman, J.): 194 W.Va. 618, 461 S.E.2d 124:
Reversing an additur of allegedly insufficient future medical expenses, but where the necessity of all such expenses was challenged on cross-examination of the plaintiff's expert, the Court held that an award of additur is appropriate only where the facts of the case demonstrate that the jury has made an error in calculating its award of damages and the failure to correct the amount awarded would result in a reduction of the jury's intended award.
Sandra K. Michael, as Administratrix and Personal Representative on Behalf of the Estate of Randi Nichole Michael v. Francisco D. Sabado, Jr., M.D., No. 22032 (W. Va. December 21, 1994) (Cleckley, J.): 192 W.Va. 585, 453 S.E.2d 419:
Affirming a defense verdict in a medical malpractice case, the Court found that refusal to instruct on punitive damages was appropriate under the circumstances, holding that punitive damages instructions should be given only where there is evidence that the defendant acted wantonly, intentionally, or in reckless disregard to the rights of others or where the legislature has specifically authorized the recovery of punitive damages.
Mark Capper, Anita M. Lefevre, et al., dba Mauser Hall Partnership v. Fred Gates, dba Gates Associated, No. 21996 (W. Va. December 8, 1994) (Neely, J.): 193 W.Va. 9, 454 S.E.2d 54:
Affirming a $130,000 verdict, including an award of prejudgment interest on the compensatory damages portion, in a professional negligence case involving a land developer, the Court held that in a contract or tort action, prejudgment interest is available to a litigant as part of compensatory damages if there is an ascertainable pecuniary loss.
William E. Wehner, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau v. Brett Barry Weinstein; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Bossio Enterprises, Inc., dba Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon, a national fraternal organization and association; Sigma Phi Epsilon Building Association, Inc., a corporation; and the West Virginia University Board of Trustees, Nos. 21911, 21912, 21913, and 21914 (W. Va. April 20, 1994) (Miller, J.): 191 W.Va. 149, 444 S.E.2d 27:
Where defendants sought to reduce plaintiff's wrongful death award by the amount the decedent would have consumed over the course of her life, the Court held that W. Va. Code § 55-7-6(c)(1)(B)(i) allows as part of the elements of damages in a wrongful death case compensation for reasonably expected loss of income of the decedent and does not require that such amount be reduced for estimated personal consumption.
Carolyn Liston and Daley Liston v. The University of West Virginia Board of Trustees on Behalf of West Virginia University, No. 21546 (W. Va. December 13, 1993) (Miller, J.): 190 W.Va 410, 438 S.E.2d 590:
With respect to the manner of proof of lost earning capacity, the Court held that there must be expert testimony establishing (1) the permanency of the injury; (2) the injury's effect on the plaintiff's vocational skills; and (3) the monetary loss over the plaintiff's work-life expectancy reduced to present value.
Glenn M. Wilt and Sandra B. Wilt v. Robert Buracker, Sheriff as Successor in Interest to Roy E. Thompson, Administrator of the Estate of Charles W. Nickelson, Jr., No. 21708 (W. Va. December 13, 1993) (Miller, J.): 191 W.Va. 39, 443 S.E.2d 196:
In addition to holding that loss of enjoyment of life is not subject to economic calculation, the Court held that (1) prejudgment interest, pursuant to W. Va. Code § 56-6-31, may be awarded in damages for expenditures for household services, and (2) when liability is clearly established and the jury has made an erroneous calculation of damages, a remittitur may be directed on remand, but if the plaintiff declines to accept the remittitur, a new trial will be awarded solely on the issue of damages.
Ellen Roxanna Linville, Administratrix of the Estate of Jack K. Linville v. John W. Moss, III, and Guest Trucking Company, Inc., No. 21263 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 570, 433 S.E.2d 281:
Overruling, in part, the Court's inadequate verdict analysis in Freshwater v. Booth, 160 W. Va. 156, 233 S.E.2d 312 (1977), the Court affirmed the vitality of Type 1 cases, where the evidence of liability is clear, and Type 4 cases, where the evidence of liability is strong, but dismissed, in light of the Court's adoption of the concept of comparative fault, the value of Type 2, where the evidence of liability is strongly contested, and Type 3, where the evidence of liability is weak.
Eddie Bowling, et al. v. Ansted Chrysler-Plymouth-Dodge, Inc., and David Akers, No. 20994 (W. Va. December 11, 1992) (Miller, J.): 188 W.Va. 468, 425 S.E.2d 144:
In a case where the plaintiffs charged a dealership and its president with fraudulently misrepresenting rental cars as "factory cars," the Court held that where it can be shown, by clear and convincing evidence, that a defendant has engaged in fraudulent conduct which has injured the plaintiff, reasonable attorney fees may be awarded in addition to compensatory and punitive damages.
Cell Inc., a West Virginia corporation v. Ranson Investors, a West Virginia limited partnership; George W. Bushey, individually; and Vernon L. Tetlow, individually, No. 20858 and Cell, Inc., a West Virginia corporation v. Ranson Investors, a West Virginia limited partnership; George W. Bushey, individually; and Vernon L. Tetlow, individually, No. 20861 (W. Va. December 9, 1992) (Neely, J.): 189 W.Va. 13, 427 S.E.2d 447:
Rejecting an attempt by a prospective tenant to recover damages for lost profits after a proposed shopping center was never built, the Court held that (1) a new business may recover lost profits in a breach of contract action, but only if the plaintiff establishes the lost profits with reasonable certainty and (2) under the facts presented, the evidence of lost profits were too speculative to support an award of damages.
Sara W. Slack v. Kanawha County Housing and Redevelopment Authority, etc., et al., No. 20725 (W. Va. July 9, 1992) (Miller, J.): 188 W.Va. 144, 423 S.E.2d 547:
Where trial court refused to give punitive damages instruction based upon the plaintiff's failure to introduce evidence of the defendants' net worths, the Court reversed, holding that the defendant, not the plaintiff, bears the burden of introduce financial information in mitigation of a punitive damage award.
Ronald Davis, Executor of the Estate of Jennings Davis v. The Celotex Corporation, No. 20651 (W. Va. June 12, 1992) (Miller, J.): 187 W.Va. 566, 420 S.E.2d 557:
Affirming an award of punitive damages of $40,000 in an asbestos case, the Court held (1) when an asbestos manufacturer has actual or constructive knowledge of severe health hazards associated with its product, but continues to manufacture and distribute the product, the manufacturer may be found liable for punitive damages; (2) a successor corporation can be held liable for the predecessor's debts if there was an express or implied assumption of liability, if the transaction was fraudulent, if some element of the transaction was not in good faith, if the successor corporation was formed through a consolidation or merger, or if the successor corporation is a mere continuation or reincarnation of the predecessor; and (3) when a successor corporation has actual or constructive knowledge that a predecessor corporation manufactures a product that is know to create serious health standards, and the successor corporation continues to manufacture the product, it may be found liable for punitive damages for liabilities incurred by the predecessor company in the manufacture of such product.
Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, an Ohio corporation, Central Operating Company, a West Virginia corporation; and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio corporation, No. 20264 (W. Va. May 15, 1992) (Miller, J.): 187 W.Va. 292, 418 S.E.2d 738:
Affirming a $6.2 million verdict in a wrongful death case against a power plant and a general contractor arising from the electrocution of the employee of a subcontractor, the Court held that the factors to be considered in determining whether a verdict is excessive include (1) whether the defendant actively cross-examined the plaintiff's damages witnesses; (2) whether the defendant introduced its own damages evidence; and (3) whether the defendant sought to ensure that the jury was properly instructed on damages. With respect to the calculation of prejudgment interest, the Court further held that future wage loss is not a prejudgment loss or special damage under W. Va. Code § 56-6-31.
TXO Production Corp., a Delaware corporation licensed to do business in West Virginia v. Alliance Resources Corp., etc., et al., No. 20281 (W. Va. May 14, 1992) (Neely, J.): 187 W.Va. 457, 419 S.E.2d 870:
Affirming a verdict of $19,000 in compensatory damages and $10 million in punitive damages, the Court held that (1) appeals from punitive damage awards made prior to December 5, 1992, should address the factors set forth in Syllabus Points 3 and 4 of Garnes v. Fleming Landfill, 186 W.Va. 656, 413 S.E.2d 897 (1991), summarizing the evidence presented to the jury or to the trial court at the post-judgment review stage; (2) when a defendant has acted without malice, a punitive to compensatory damages ratio of approximately 5:1 is the most that would be appropriate; and (3) when a defendant has acted with malice, a punitive to compensatory damages ratio of more than 5:1, as in the instant case, may be appropriate.
Boyd Thurman Beard and Mary F. Beard v. Romeo Y. Lim, John A. B. Holt and the Eye and Ear Clinic of Charleston, Inc. v. Ethicon, Inc., and Hospital and Physicians Supply Co., Inc., No. 19670 (W. Va. July 18, 1991) (Workman, J.): 185 W.Va. 749, 408 S.E.2d 772:
Where over 13 years of prejudgment interest was calculated on a general verdict, the Court reversed, holding that failure of a defendant to submit a special interrogatory will not necessarily justify an award of prejudgment interest on the entire general verdict where the amount of special damages is readily ascertainable.
Larry Schartiger and Donna Schartiger, his wife, et al. v. Land Use Corporation, a West Virginia corporation, et al., No. 19482 (W. Va. July 11, 1991) (Neely, J.): 187 W.Va. 612, 420 S.E.2d 883:
In a suit brought by landowners whose water wells were rendered unproductive by the defendants' mining activities, but where the defendants' offered to connect the plaintiffs to the local public water system and to pay damages of $30,000, which was rejected by the plaintiffs in favor of a jury trial, which resulted in an award of restored water but no compensatory damages, the Court held that, under W. Va. Code § 22A-3-25(f), an award of attorney fees to the "prevailing" party may only be made where the plaintiff demonstrates that the litigation effected a "material alteration of the legal relationship of the parties in a manner which the legislature sought to promote in the fee statute." Moreover, the Court stated that attorney fees may be limited to those incurred prior to the rejection of a reasonable offer of settlement.
George W. Bostic v. Mallard Coach Company, Inc., No. 19790 (W. Va. June 27, 1991) (Neely, J.): 185 W.Va. 294, 406 S.E.2d 725:
Discussing the damages available under the West Virginia "lemon law," W.Va. Code § 46A-6A-4(b), the Court held that the trier of fact may award one or more of the following: (1) refund of the purchase price; (2) diminished value; (3) cost of repair; (4) loss of use; (5) annoyance; (6) inconvenience; and (7) reasonable attorney fees. On another issue, the Court granted an additur in order to compensate the plaintiff for the cost of his expert witness, which was initially awarded by the jury, but was not included in its final award after it was instructed to recalculate its verdict, holding that when an initial jury verdict specifying the payment of certain expenses is not included in its final verdict calculated after instructions to award a sum certain, it is appropriate for the trial court to enter an additur or, at the election of the defendant, to award a new trial on the issue of damages alone.
John Fullmer, M.D. and Marlene Fullmer v. Swift Energy Co., Inc., No. 19630 (W. Va. April 22, 1991) (Neely, J.): 185 W.Va. 45, 404 S.E.2d 534:
Affirming a jury award of $2,500 in punitive damages, but no compensatory damages, to property owners whose riparian rights were violated when, over several years, the defendant's gas wells caused mud to flow into a stream running through the plaintiffs' property, the Court held that unless damages are so inadequate under the facts that reasonable persons cannot differ regarding their inadequacy, a jury verdict should not be set aside.
Charles R. Miller v. Monongahela Power Company, No. 19640 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 663, 403 S.E.2d 406:
Even though the defendant failed to submit a special damages interrogatory under the decision in Grove ex rel. Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989), the Court held that because the matter had not been deliberately obfuscated or the error invited by defense counsel, and because plaintiff's counsel admitted prejudgment interest had been included in his expert's calculation of special damages, the Court reduced the judgment by the amount of prejudgment interest erroneously included in the special damage award.
Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773 (W. Va. February 22, 1990) (Miller, J.): 182 W.Va. 597, 390 S.E.2d 796:
In a suit to recover damages, for alleged flaws in the design and construction of a school building, grounded both in tort and in contract, the Court held that prejudgment interest should have been awarded, calculated from the date of the cause of action and reduced by the amount of settlements.
Mark A. Robinson, individually and Julia A. Robinson, individually and as parent and natural guardian of Mark A. Robinson, II, an infant v. Charleston Area Medical Center, Inc., a West Virginia corporation, and Kanoj K. Biswas, M.D., No. 20109 (W. Va. December 20, 1991) (McHugh, J.): 186 W.Va. 720, 414 S.E.2d 877:
Reducing a $15.25 million verdict to $11.75 million for the family of an infant who suffered permanent brain damage as the result of an obstetrician's alleged malpractice, the Court upheld the constitutionality of W. Va. Code § 55-7B-8, which imposes a $1 million cap on noneconomic damages in medical malpractice actions, which it further held applies as the maximum amount that can be awarded for the aggregate claims of all plaintiffs against a health care provider as defined in the statute.
Buckhannon-Upshur County Airport Authority v. R & R Coal Contracting, Inc., etc., Continental Casualty Company, etc., et al., No. 20211 (W. Va. December 17, 1991) (Workman, J.): 186 W.Va. 583, 413 S.E.2d 404:
Rejecting a claim against an insurance company for prejudgment interest in excess of the stated policy limits, the Court held (1) prejudgment interest is not a cost, but a form of compensatory damages, and (2) absent a bad faith claim or policy language to the contrary, prejudgment interest may not be awarded in excess of stated policy limits.
Desco Corporation, dba Colliers Industries v. Harry W. Trushel Construction Company and Fire Foe Corporation v. Industrial Risk Insurers, No. 19993 (W. Va. December 6, 1991) (Miller, C.J.): 186 W.Va. 430, 413 S.E.2d 85:
Rejecting an attempt by an insured to recover damages from sprinkler system installer for loss of inventory in a fire, the Court held that (1) two categories of damages are available in a breach of contract action: direct damages for which there is no requirement that the parties actually anticipated them and consequential damages for which the plaintiff must show that at the time of the contract the parties could reasonably have anticipated would be a probable result of a breach, and (2) although whether contract damages are direct or consequential is a question of law, whether special circumstances exist to show that consequential damages are within the reasonable contemplation of the contracting parties is a question of fact.
Julian Garnes and Sharon Garnes v. Fleming Landfill, Inc., and John T. Fleming, No. 20284 (W. Va. December 5, 1991) (Neely, J.): 186 W.Va. 613, 413 S.E.2d 879:
In an landmark case, the Court redefined the area of punitive damages, holding that (1) punitive damages may not be awarded in the absence of compensatory damages; (2) punitive damages must bear a reasonable relationship to the potential of harm caused by the defendant's actions; (3) there must be a reasonable constraint on jury discretion in the award of punitive damages; (4) there must be meaningful review of punitive damage awards by trial courts; and (5) there must be meaningful review of punitive damage awards by appellate courts. The Court further established that the factors to be considered by a jury in awarding punitive damages are (1) the reasonableness of the punitive damages awarded in light of the actual or potential harm resulting from the defendant's actions; (2) the knowledge of the defendant; (3) the intentional character of the defendant's acts; (4) the existence of prior acts of similar conduct by the defendant; (5) the alacrity with which the defendant took remedial measures; (6) the promptness of an offer of fair settlement; (7) the necessity of removing a profit motive for the defendant's conduct; (8) the need to punish the defendant to deter similar acts in the future; (9) the reasonableness of punitive damages in light of the amount of compensatory damages awarded; and (10) the defendant's financial position. In addition to these factors, the Court finally established that reviewing trial and appellate courts should consider (1) the costs of litigation; (2) the imposition of criminal sanctions on the defendant; (3) the litigation of similar cases against the defendant; and (4) the cost of litigation to the plaintiff.
Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (W. Va. November 22, 1991) (Miller, C.J.): 186 W.Va. 195, 411 S.E.2d 850:
With respect to the mitigation of damages where the insurance company's inaction allegedly delayed final resolution of a fire loss claim on a piece of commercial equipment, the Court held that, in a contract action, where a defendant has refused to perform and had the same opportunity to mitigate damages as the plaintiff by taking some action, the defendant is foreclosed from asserting that the plaintiff failed to mitigate damages.
Phyllis Belcher and Stephanie L. Belcher v. Sherry L. Goins, No. 19566 (W. Va. December 19, 1990) (McHugh, J.): 184 W.Va. 395, 400 S.E.2d 830:
Overruling Wallace v. Wallace, 155 W. Va. 569, 184 S.E.2d 327 (1971), the Court held that a minor or handicapped child physically, emotionally, and financially dependent upon his or her parent, may maintain a cause of action for loss of parental consortium, which is the intangible, nonpecuniary benefits arising from the relationship between a child and a parent, including society, companionship, comfort, guidance, kindly offices, advice, protection, care, and assistance, but not including the value of nursing, domestic or household services provided by the child to the injured parent. Ordinarily joined with the injured parent's action against the alleged tortfeasor, the amount of damages for parental consortium depend upon (1) the child's age; (2) the nature of the relationship between child and parent; (3) the child's emotional characteristics; and (4) the existence of other consortium-giving relationships. On related issues, the Court further held (1) because of the derivative nature of a parental consortium claim, any recovery will be reduced by the amount of comparative contributory negligence of the injured parent; (2) with respect to the issue of retroactivity, that parental consortium actions must be brought no later than thirty days after the filing of the opinion where the parent's action has been brought for injuries inflicted no more than two years prior to the opinion.
Martha J. Rice, Administratrix of the Estate of Joyce Gail Rice v. Larry E. Ryder and Steven W. Ryder, No. 19386 (W. Va. December 6, 1990) (Brotherton, J.): 184 W.Va. 255, 400 S.E.2d 263:
Where an unmarried, childless woman was killed in an automobile accident, the Court held that, pursuant to W. Va. Code § 55-7-6, financial dependency is not a prerequisite to a wrongful death recovery, but that her parents and siblings could receive "compensation for reasonably expected loss of income of the decedent, and services, protection, care and assistance provided by the decedent." Moreover, with respect to distribution of the wrongful death proceeds, the Court held that, pursuant to the wrongful death statute, damages shall be distributed in accordance with the decedent's will or, if there is no will, in accordance with the laws of descent and distribution.
Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (W. Va. December 6, 1990) (Miller, J.): 184 W.Va. 237, 400 S.E.2d 245:
With respect to mitigation of damages, the Court held that the defendant bears the burden of proving lack of diligence by demonstrating (1) substantially equivalent positions were available, and (2) the complainant failed to exercise reasonable diligence in seeking such positions.
Tom Ellis and Mara Ellis, his wife v. Honorable Charles E. King, Judge of the Circuit Court of Kanawha County; JMI Transport, Inc., an Arkansas corporation, and Hamilton M. Potter, No. 19792 (W. Va. December 5, 1990) (Brotherton, J.): 184 W.Va. 227, 400 S.E.2d 235:
Where new Volvo was damaged in an accident three days after its purchase, the Court held that if the owner could show a decrease in value due to structural damage existent after its repair, then recovery beyond the cost of repair would be permitted.
Richard W. Adams and Sandra Adams v. Nissan Motor Corporation in U.S.A., No. 19041 and Richard W. Adams and Sandra Adams v. Nissan Motor Corporation in U.S.A., No. 19130 (W. Va. November 3, 1989) (Brotherton, C.J.): 182 W.Va. 234, 387 S.E.2d 288:
Where buyers sought post-verdict damages because they were required to make payments, during pendency of appeal, on a vehicle determined to be a "lemon," the Court held that post-judgment interest adequately compensated such loss and no additional recovery was available. The Court further held that because of the comprehensive nature of the lemon law statute, attorney fees were not recoverable under a "private attorney general" theory.