ABUSE & NEGLECT

+ Procedural requirements

IN RE: EDWARD B., et al., No. 28732 (Albright, J.)(November 9, 2001). Reversing and remanding for further proceedings, and setting forth requirements for orders terminating parental rights, as well as procedural requirements for dispositional orders.

+ Termination should have been granted

IN RE: BRANDON LEE B., No. 29701 (Per Curiam)(Starcher, J. and Albright, J., concurring in part and dissenting in part)(December 7, 2001). Reversing an order of the Circuit Court of McDowell County that dismissed a child abuse and neglect petition and directed that the child be returned to his mother. Holding that clear and convincing evidence establishes that the child's mother has neglected him and is unfit for custody. Remanded for termination of parental rights.

ADMINISTRATIVE LAW

+ Review by circuit court

ADKINS v. WV DEPT. OF EDUCATION, No. 29066 (Per Curiam)(Starcher, J. and Albright, J., dissenting)(Davis, J., concurring)(October 31, 2001). Reversing a decision by the circuit court (Stucky, Judge) to reduce by one year a two-year disciplinary suspension imposed against an employee by the Department of Education. Holding that imposition of the two-year penalty was within the authority of the Department of Education and cannot be characterized as arbitrary, capricious, or an abuse of discretion.

+ DMV must give substantial weight to results of related criminal proceedings

CHOMA v. WV DIV. Of MOTOR VEHICLES, No. 28890 (Starcher, J.)(Maynard, J., concurring)(November 28, 2001). Reversing a decision by the Circuit Court of Monongalia County in an appeal from an administrative decision to revoke a driver's license for six months pursuant to W.Va. Code 17C-5A-2(i), despite the fact that appellant had been acquitted on criminal charges for DUI. Holding that the commissioner's discussion and evaluation of the evidence was so one-sided and selective as to rise to the level of arbitrariness and capriciousness. Further holding that the commissioner must give substantial, but not dispositive, weight to the results of related criminal proceedings.

+ Judicial review by writ of certiorari

SCOTT v. STEWART, et al., No. 29772 (Albright, J.)(Davis, J., dissenting)(December 12, 2001). Reversing an order of the Circuit Court of Kanawha County that denied a petition for writ of certiorari to review an administrative decision that revoked professional teaching and administration certificates. Holding that absent a specific statutory provision to the contrary, judicial review under the APA is not the sole means of achieving judicial review of agency actions; a party can seek review of an administrative decision by means of an extraordinary writ. Holding further that the state superintendent, rather than a panel, must conduct a hearing prior to terminating a license to teach.

APPELLATE LAW and PROCEDURE; TORTS

+ Precedential value of per curiam opinions; Hamric v. Doe not retroactive

WALKER v. DOE, No. 29290 (Albright, J)(McGraw, C.J. and Starcher, J., concurring in part and dissenting in part)(October 26, 2001). Affirming decision by circuit court (Hatcher, Judge), to apply the principles of a per curiam opinion in granting summary judgment in favor of an insurance company appearing in the name of an unidentified motorist. Holding that the Court will continue to use signed opinions and syllabus points to articulate new points of law, as required by the constitution; that per curiam opinions have precedential value as an application of settled principles of law to facts necessarily differing from those at issue in signed opinions; and that per curiam opinions "may be cited as support for a legal argument."

CIVIL PROCEDURE

+ Default judgment set aside

CONNER v. POUND, CONNER, LUCAS, ANDREOZZI, INC., No. 29180 (Per Curiam)(October 5, 2001). Reversing circuit court's grant of default judgment. In light of defense counsel's special appearance at the default judgment hearing to argue that the defendant never received a copy of the complaint, the trial court (Merrifield, Judge) abused its discretion by entering default judgment. Remanding for further proceedings.

+ Post-verdict judgment as a matter of law

TAYLOR, et al. v. ELKINS HOME SHOW, Inc., et al., No. 28891 (Maynard, J.)(McGraw, C.J., dissenting)(October 31, 2001). Affirming circuit court's (Henning, Judge) entry of post-verdict judgment on behalf of the defendant below. Holding that plaintiffs failed to present sufficient evidence on their claims against the defendant. Holding further that prior to entry of a final order, a trial judge has the authority to reconsider prior rulings, including an order granting a new trial.

+ Reinstatement after dismissal for failure to prosecute

ANDERSON v. KING, No. 29286 (Per Curiam)(November 28, 2001). Reversing an order by the Circuit Court of Calhoun County that denied a motion to reinstate an action previously dismissed for failure to prosecute. Holding that under the circumstances, the delays were not flagrant, and that appellant did show good reasons for failure to prosecute. Remanded for reinstatement of the case.

HOWERTON v. TRI-STATE SALVAGE, No. 29640 (Per Curiam)(November 28, 2001). Reversing an order by the Circuit Court of Raleigh County that denied a motion to reinstate an action previously dismissed for failure to prosecute. Holding that under the circumstances, dismissal was unwarranted. Remanded for reinstatement of the case.

+ Dismissal for failure to effect timely service

KELLEY v. TOYOTA, Nos. 29337 and 29338 (Per Curiam)(November 30, 2001). Reversing an order entered in the Circuit Court of Mingo County that refused to reinstate two civil actions previously dismissed for failure to effect timely service pursuant to R.Civ.P. 4(k). Holding that under the circumstances, plaintiffs demonstrated good cause for the failure to effect timely service.

+ Dec. judgment action improper means for collateral attack

WILLARD v. WHITED, No. 29327 (Per Curiam)(McGraw, C.J. and Albright, J., dissenting)(Starcher, J., concurring)(December 3, 2001). Affirming order of the Circuit Court of Jackson County that dismissed a declaratory judgment action that sought to settle an estate. Holding that declaratory judgment is an inappropriate method to collaterally attack a final judgment in a civil case.

CIVIL PROCEDURE - CONSUMER CREDIT/PROTECTION

+ Appeal from order remanding for new trial - implied warranties for used cars

WOLFE v. WELTON, No. 29696 (Albright, J.)(McGraw, C.J., concurring)(Davis, J., and Maynard, J., concurring)(December 12, 2001). Reversing an order of the Circuit Court of Grant County that remanded for further proceedings a civil matter that had been tried to a jury in magistrate court. Holding that the Supreme Court has jurisdiction to hear an appeal from a circuit court judgment reversing a judgment of the magistrate court and remanding for further proceedings, overruling Ritchie County Bank v. Ritchie County Commission, 65 W.Va. 208 (1909), and its progeny to the extent in conflict. Further holding that W.Va. Code 46A-6-107 renders void any attempt to limit implied warranties or legal remedies for breach of warranties arising from sales of goods to consumers, whether those goods are new or used.

CIVIL PROCEDURE; TORTS

+ Default judgment, negligence, and vicarious liability

STILLWELL, et al. v. CITY OF WHEELING, et al., No. 28663 (Davis, J.)(McGraw, C.J., dissenting)(October 26, 2001). Reversing order granting new trial in wrongful death/personal injury action in which vicarious liability was asserted. Holding that the trial court (Recht, Judge) erred in determining that the default judgment entered against an independent contractor acted as a determination of negligence. Concluding that default judgment is not a proper foundation for the application of offensive collateral estoppel.

CRIMINAL LAW AND PROCEDURE

+ Citations must contain time to appear

STATE v. JEFFREY GASKINS, No. 29285 (Albright, J.)(October 26, 2001). Vacating conviction and sentence order entered by the circuit court (Bedell, Judge), which revoked defendant's supervised probation under the provisions of W.V. Code 60A-4-407. Holding that the citation charging the offense was fatally flawed due to the omission of a time within which the defendant was to appear to answer charges, and that magistrates "are required to dismiss such facially flawed citations without prejudice . . . ."

+ Officer's safety concerns justify pre-arrest pat down search

STATE v. PHILLIP DON WILLIAMS, No. 29002 (Per Curiam)(October 26, 2001). Affirming conviction and one-to-fifteen year sentence for possession with intent to deliver a controlled substance following a jury trial (Frazier, Judge). Holding that the frisk or pat down of the defendant prior to his arrest was justified under the circumstances, where the defendant's conduct reasonably gave rise to safety concerns.

+ Failure to disclose prior inconsistent statement

STATE v. KEARNS, No. 29104 (Per Curiam)(November 26, 2001). Reversing a decision by the Circuit Court of Harrison County not to grant a new trial. Holding that State's failure to produce a prior inconsistent statement of the primary prosecution witness warranted granting a new trial.

+ Recidivist life sentence

STATE v. CAVALLARO, No. 29635 (Per Curiam)(November 28, 2001). Affirming conviction and sentence for unlawful wounding entered in the Circuit Court of Greenbrier County, but reversing subsequent sentence of life imprisonment imposed under the state's recidivist statute. Holding that the recidivist proceeding was invalid because the appellant was not requested to answer the recidivist information prior to the term of court in which he was convicted, as mandated by W.Va. Code 61-11-19.

+ Admission of prior DUI convictions is plain error

STATE v. EVANS, No. 29642 (Per Curiam)(November 28, 2001). Reversing convictions for third offense DUI and third offense driving while suspended for DUI entered in the Circuit Court of Mingo County. Holding that the admission of appellant's prior convictions was plain error. Remanded for new trial.

+ Sufficiency of indictments for larceny and destruction of property

SER DAY v. SILVER, et al., No. 29836 (Maynard, J.)(November 28, 2001).
Granting a writ of prohibition to prevent the Circuit Court of Morgan County from proceeding to trial on a defective indictment. Holding that the indictment for misdemeanor larceny and destruction of property was insufficient, and specifically defining the elements required to be set forth in indictments for those offenses.

+ Foreign license revocation can support WV charge

STATE v. EUMAN, No. 29700 (Per Curiam)(McGraw, C.J., concurring)(November 30, 2001). Affirming order of the Circuit Court of Wood County that denied a motion to dismiss a citation for driving while revoked for DUI. Holding that two prior DUI convictions and revocation in Ohio can support a WV citation for driving while revoked for DUI.

+ Sufficiency of evidence; self-defense

STATE v. HEADLEY, No. 29065 (Per Curiam)(November 30, 2001). Vacating a conviction entered in the Circuit Court of Wood County for involuntary manslaughter. Holding that appellant sufficiently raised issue of self-defense as to shift the burden of proof to the State, and that the State failed to meet its evidentiary burden. Remanded for entry of judgment of acquittal.

+ Prosecutor's conflict of interest - remedy

SER KEENAN v. HATCHER, No. 29837 (McGraw, C.J.)(Davis, J. and Maynard, J., concurring in part and dissenting in part)(November 30, 2001). Granting relief in an original jurisdiction proceeding seeking the dismissal of a recidivist information based upon the fact that the prosecuting attorney who obtained the information had previously acted as defense counsel in one of the predicate crimes. Defining the scope of what constitutes a substantially related matter under R.Prof.Resp. 1.9(a), and holding that dismissal of the information, rather than appointment of a special prosecutor, is the appropriate remedy.

+ Gruesome photos; prior convictions; statement

STATE v. CAREY, No. 29325 (Per Curiam)(Starcher, J. and Albright, J., dissenting)(November 30, 2001). Affirming a conviction for first degree murder without a recommendation of mercy obtained in the Circuit Court of Jefferson County. Rejecting allegations that the circuit court erred by admitting certain gruesome photographs; by allowing prior convictions to be used for impeachment purposes; by allowing the jury to listen to a recording of the appellant's statement; and by improperly instructing the jury.

+ Competence to enter guilty plea

STATE v. CHAPMAN, No. 29633 (Per Curiam)(November 30, 2001). Affirming entry of guilty plea to two counts of malicious wounding. Rejecting allegations that circuit court failed to establish appellant's competency prior to accepting the plea and failed to provide an adequate fact-finding process to ensure competency.

+ Pre-trial disclosure

SER SUTTON v. MAZZONE, et al., No. 29958 (Per Curiam)(December 7, 2001). Granting a moulded writ of prohibition in matter regarding criminal defendant's obligation to produce information prior to trial, where defendant did not request mandatory discovery under R.Crim.P. 16. Holding that circuit court abused its discretion by requiring the production of witness lists four days in advance of trial, rather than on the first day of trial. Holding further that circuit court's disclosure requirements for forensic witnesses could not be structured as to require the defendant to reveal his forensic expert's findings.

+ Insufficient indictment - driving while revoked for DUI

STATE v. PALMER, No. 29636 (Per Curiam)(Starcher, J., concurring)(Davis, J., and Maynard, J., dissenting)(December 10, 2001). Reversing an order of the Circuit Court of Berkeley County that denied defendant's motion for reconsideration of his motion for correction of sentence filed pursuant to R.Crim.P. 35(a). Holding that indictment merely alleging prior convictions for driving with a revoked license -- without any express or implied reference to such convictions having been predicated upon DUI-related revocations -- did not state the essential elements of the offense. Remanded for resentencing.

+ Sex Offender Registration Act

HENSLER v. CROSS, et al., No. 29563 (Maynard, J.)(Starcher, J., concurring)(December 10, 2001). Affirming an order of the Circuit Court of Kanawha County that denied a writ of prohibition and ordered an individual to comply with the provision of the Sexual Offender Registration Act, W.Va. Code Sections 15-12-1 to 10. Rejecting appellant's argument that the Act violates ex post facto principles as applied to him.

+ Victim statement; 404(b) evidence

STATE v. JOHNSON, No. 28665 (Per Curiam)(December 12, 2001). Affirming a conviction of five counts of incest and five counts of second degree sexual assault obtained in the Circuit Court of Cabell County. Rejecting arguments that the trial court erred in admitting a statement of the victim, in admitting prior bad acts evidence in the absence of a McGinnis hearing, and other alleged errors.

+ Interstate Agreement on Detainers

STATE v. GAMBLE, No. 29562 (McGraw, C.J.)(December 12, 2001). Affirming a decision of the Circuit Court of Nicholas County that limited the amount of good time credit given for time served in an out of state facility for out of state crimes. Setting forth principles for application of the Interstate Agreement of Detainers in such situations.

+ Admission of hearsay statements from unavailable witnesses

!! Note to legislators !! This case sets forth guidance for trial courts in applying the exemption from court appearances set forth in W.Va.Code 4-1-17. (See Syl.pt. 15).

STATE v. ROBIN LADD, No. 28853 (Maynard, J.)(December 12, 2001). Reversing convictions for first degree murder and two counts of conspiracy to commit murder obtained in the Circuit Court of Jackson County. Holding that admission of out-of-court statements of two witnesses, who were not available because they were represented by state legislators exempt from court appearances at the time, was plain error warranting reversal of one of the counts of conspiracy, and error of sufficient magnitude as to warrant reversal of the other two counts as well. Remanding for new trial, with guidance to the trial court regarding gruesome photographs, the admission of prior bad acts, and the applicability of the "independent source rule" and the "inevitable discovery rule" to a warrantless search of the defendant's residence.

+ Delay in seeking trial by jury in magistrate court

SER CALLAHAN v. SANTUCCI, No. 29103 (McGraw, C.J.)(December 14, 2001). Reversing an order of the Circuit Court of Jefferson County that denied a request for extraordinary relief to compel a jury trial in magistrate court. Holding that when a defendant alleges unavoidable cause for the failure to request a jury trial within twenty days of an initial appearance, the magistrate court is obliged to hold a hearing on whether the delay in requesting a jury trial was due to unavoidable cause, in order to determine whether the constitutional right to trial by jury was knowingly, voluntarily, and intentionally waived.

DEFAMATION

+ Standards governing public official causes of action

PRITT v. REPUBLICAN NATIONAL COMMITTEE, et al., No. 29326 (Davis, J.)(Albright, J., concurring)(Maynard, J., disqualified)(Madden, Judge, by temporary assignment)(December 12, 2001). Reversing a grant of summary judgment in favor of the defendant in a public official libel action entered in the Circuit Court of Fayette County. Holding that genuine issues of material fact regarding falsity and malice remain for disposition by a jury, and setting forth standards of proof governing a public official's cause of action for defamation.

DISCOVERY

+ Hospital credentialing protected by peer review privilege

SER CHARLES TOWN GENERAL HOSPITAL, et al. v. SANDERS, et al., No. 29770 (Davis, J.)(November 9, 2001). Granting a writ of prohibition to prevent the enforcement of the circuit court's order (Sanders, Judge) requiring a portion of documents produced during a hospital's review of a staff doctor to be disclosed during discovery in a malpractice suit against the doctor. Holding that a hospital committee responsible for considering applications and issuing privileges or credentials to staff is a "review organization" entitled to avail itself of the health care peer review privilege codified in W. Va. Code 30-3C-3. Documents available from sources extraneous to the credentialing process are not privileged.

DISCRIMINATION

+ Use of service dogs by tenants

IN RE: KENNA HOMES COOPERATIVE CORPORATION, No. 29644 (Maynard, J.)(December 10, 2001). Affirming order by the Circuit Court of Kanawha County in a dispute regarding a rule prohibiting pets, with certain exceptions. Construing provisions of the Federal Fair Housing Act and the West Virginia Fair Housing Act regarding use of service animals by tenants, and the duties imposed upon landlords and tenants in that regard.

EMPLOYMENT LAW

+ Payment for unused sick leave

HOWELL, et al. v. CITY OF PRINCETON, et al., No. 29332 (Per Curiam)(McGraw, C.J. and Starcher, J., concur in part and dissent in part)(October 5, 2001). Reversing circuit court's decision to dismiss employee's complaints against former employers seeking payment of unused sick leave benefits. Holding that under Meadows v. Wal-Mart Stores and Ingram v. City of Princeton, the trial court (Knight, Judge) erred by dismissing the complaints at the pleading stage, and should have developed facts to determine whether the employer had an unwritten policy of never paying sick leave an, if so, whether or not each employee knew about the unwritten policy.

+ Seniority for substitute teachers

MERCER COUNTY BD. of ED. v. TOWNSEND, No. 29838 (Per Curiam)(November 30, 2001).
Reversing an order of the Circuit Court of Mercer County, upon remand from a previous appeal, that denied seniority credit to substitute teacher. Holding that circuit court should have awarded seniority.

+ Self-defense is substantial public policy exception to at-will employment doctrine

FELICIANO v. 7-ELEVEN, INC., No. 29564 (Davis, J.)(Maynard, J., dissenting)(November 30, 2001). Answering a certified question from the United States District Court for the Northern District of West Virginia regarding a self defense exception to the at-will employment doctrine. Holding that the exercise of self-defense in response lethal imminent danger constitutes a substantial public policy exception to the at-will employment doctrine and will sustain a cause of action for wrongful discharge. Employee's prima facie case may be rebutted by demonstrating that the employer had a plausible and legitimate business reason to justify the discharge.

+ Remedy for denial of pre-termination hearing

WHITE v. BARILL, No. 29100 (Per Curiam)(December 5, 2001). Reversing an order by the Circuit Court of Monongalia County that limited an employee's remedy to back pay and benefits from the date of termination to the date of the post-termination hearing. Remanded for a substitute pre-termination hearing and other further proceedings.

+ Workers' compensation discrimination

NESTOR v. BRUCE HARDWOOD FLOORS, L.P., No. 29328 (Per Curiam)(Maynard, J., dissenting)(December 12, 2001). Reversing a grant of summary judgment entered in the Circuit Court Tucker County in favor of defendant employer in a workers' compensation discrimination action. Holding that the employee set forth a prima facie case that should have been submitted to the jury.

FAMILY LAW

+ Paternity; review of child's best interests to determine visitation

SER JEANNE U. v. CANADY, et al., No. 29706 (Albright, J)(October 5, 2001). Granting a moulded writ of prohibition and remanding for further proceedings in paternity action by putative biological father seeking to obtain visitation. Holding that the putative father's "special relationship" should be evaluated by the trial court in determining whether visitation is in the best interests of the child.

+ Modification of divorce decree

HICKMAN v. HICKMAN, No. 29331 (Per Curiam)(October 26, 2001). Granting mixed relief in appeal from circuit court's order (Zakaib, Judge) that adopted a family law master final recommendation regarding sale of residence, reduction in child support, termination of alimony and health insurance premium payments, but also assessed an "overpayment" judgment of $18,131.40 against Ms. Hickman. Affirming modification of divorce decree, but reversing the circuit court's assesment of an "overpayment," and remanding for development of a record as to what, if any, financial hardship will result from payment of the judgment.

+ Reimbursement of AFDC support

SER DHHR, BUREAU of CHILD SUPPORT ENF. V. SINCLAIR, No. 29101 (Albright, J.)(Davis, J. and Maynard, J., dissenting)(November 9, 2001). Reversing a circuit court's decision (Miller, Judge) to require a child support obligor to reimburse the State for an amount of AFDC benefits paid on behalf of his minor children. Because the reimbursement order was based upon a 1993 default judgment, without the hearing required by SER DHHR v. Huffman, 174 W.Va. 401, 332 S.E.2d 866 (1985), remanding for hearing with appropriate findings as to obligor's ability to pay.

BOARMAN v. BOARMAN, No. 28855 (McGraw, C.J.)(November 21, 2001). Granting mixed relief in an appeal from a decision by the Circuit Court of Berkeley County that required the appellant to pay a judgment to his ex-wife's former counsel or face incarceration for contempt. Holding that a judgment for attorney fees is assignable, but relief by way of contempt is not assignable to a private third party.

+ Child custody

BOWMAN v. BLEVINS, No. 29096 (Per Curiam)(November 28, 2001). Affirming a decision by the Circuit Court of McDowell County that two grandchildren may choose to live with their grandparents.

+ Establishment of paternity without blood testing

SER WV DHHR, BUREAU for CHILD SUPPORT ENF. v. WAVEY GLENN G., No. 29683 (Per Curiam)(November 28, 2001). Reversing a decision by the Circuit Court of Kanawha County establishing paternity in the absence of a blood test. Remanding to allow genetic testing to occur.

+ Attributed income

SER WV DHHR, BUREAU for CHILD SUPPORT ENF. v. BAKER, No. 29775 (Albright, J.)(November 28, 2001). Granting mixed relief in appeal from an order of the Circuit Court of Kanawha County that directed payment of past and current child support. Affirming lower court's inclusion of stock options as gross income in calculating child support. Reversing lower court's decision as to attributed income. Holding that an involuntary termination from employment, absent a showing of intent to avoid child support, does not come within the statutory purview of voluntary action required to invoke the specific provisions of W.Va. Code 48A-1A-3(b) concerning attribution of income based upon an obligor's prior level of income.

+ 60(b) reconsideration based upon fraud

HAGER v. HAGER, No. 29688 (Per Curiam)(Davis, J., dissenting)(November 30, 2001). Reversing an order entered by the Circuit Court of Boone County that denied a motion to alter a judgment in a divorce case on the ground that fraud was used to obtain the judgment. Holding that circuit court should have set aside the alimony award and reconsidered it, in light of the fact that the appellee is capable of working.

+ Power to enter final orders

SER WV DHHR, BUREAU for CHILD SUPPORT ENF. V. WERTMAN, et al., No. 29687 (Albright, J.)(December 10, 2001). Answering a question certified by the Circuit Court of Berkeley County. Holding that family law masters serving through December 31, 2001 have no judicial power to enter a final and binding order, such as an order of incarceration for indirect contempt.

HABEAS CORPUS

+ Scheduling omnibus hearing

SER TERRY GILL v. HILL, et al., No. 29704 (Per Curiam)(Albright, J., disqualified)(Burnside, Judge, by temporary assignment)(October 10, 2001). Denying a prisoner's application for mandamus and habeas corpus relief arising out of an alleged delay in holding hearings.

INSURANCE

+ CGL policy

CORDER V. SMITH EXCAVATING CO., et al., No. 29006 (Albright, J.)(November 9, 2001). Reversing a circuit court’s (King, Judge) grant of summary judgment to insurer based upon conclusion that there was no coverage under a commercial general liability policy and no duty to defend the contractor, in an action by a property owner in connection with sewer line repair work. Holding that CGL policies are not designed to cover poor workmanship. Remanding for consideration whether the sewer pipe’s alleged failure resulted from "sudden and accidental physical injury," thereby entitling the appellant to coverage.

+ Made-whole doctrine

KANAWHA VALLEY RADIOLOGISTS, INC. v. ONE VALLEY BANK, N.A., et al., Nos. 29689 and 29690 (Davis, J.)(November 28, 2001). Granting mixed relief in an appeal from an order of the Circuit Court of Kanawha County in an insurance subrogation action. Affirming circuit court's conclusion that the policy at issue embraced the made-whole doctrine, thereby prohibiting the insurer from exercising its subrogation rights where the insured had not been made whole. Reversing the circuit court's award of attorney's fees, in light of the fact that the insurer did not have the opportunity to dispute the award. Remanding for reconsideration of attorney's fees following a proper hearing.

+ Factual issues for jury in declaratory judgment action

MOUNTAIN LODGE ASSOC. v. CRUM & FORSTER INDEMNITY CO., et al., No. 29289 (Albright, J.)(Davis, J., and Maynard, J., dissenting)(December 10, 2001). Reversing an order by the Circuit Court of Pocahontas County that granted summary judgment in favor of insurers in a declaratory judgment action regarding coverage for employee dishonesty under a CGL policy. Holding that the factual issue of whether an individual was an employee of the insured or an independent contractor precluded summary judgment, and that such issue must be submitted to a jury, unless both parties consent to a trial of the issue by the court.

+ Construction of intentional acts exclusion

FARMERS AND MECHANICS MUTUAL INS. CO. v. COOK, Nos. 29841 and 29842 (Starcher,
J.)(December 12, 2001). Reversing an order of the Circuit Court of Hardy County that denied homeowners the right to coverage and a defense in a situation where a wife, in the defense of her husband, shot and killed a third-party aggressor. Holding that when an individual acts in self defense or defense of another, an insurance company may not rely upon an intentional acts exclusion to deny coverage or a legal defense, and setting forth guidelines for construing intentional acts exclusions.

JUDGMENTS

+ Invested workers' comp. benefits are not protected

FELICIANO v. McCLUNG, No. 29639 (Per Curiam)(Davis, J. and Maynard, J., dissenting)(Starcher, J., concurring)(November 21, 2001). Reversing a decision by the Circuit Court of Greenbrier County that denied a judgment creditor the right to recover funds from a judgment debtor that originated from a workers' compensation award. Holding that placement of funds in an interest bearing certificate of deposit effectively stripped the funds of their character as workers' compensation benefits.

JURIES

+ Convicted felon on jury - new trial

PROUDFOOT v. DAN'S MARINE SERVICE, Inc., et al., No. 29291 (Maynard, J.)(Starcher, J. and Albright, J., concurring)(October 31, 2001). Reversing the circuit court's order refusing a motion for new trial. Following a personal injury verdict favorable to the plaintiff, defendant below moved for new trial on the basis that a convicted felon participated as a juror. The circuit court (Moats, Judge) refused the motion, on the basis that the defendant failed to show adequate prejudice. Holding that where a convicted felon conceals a felony conviction during voir dire, and the felony is undiscoverable by reasonable diligence, no showing of prejudice is necessary to obtain a new trial. Overruling Flesher v. Hale, 22 W.Va. 44 (1883) and its progeny on this point.

LABOR and CONSTRUCTION

+ Wage and bidding requirements for public improvements

AFFILIATED CONSTRUCTION TRADES FOUNDATION v. THE UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, et al., No. 29330 (Albright, J.)(Maynard, J., concurring in part and dissenting in part)(December 12, 2001). Affirming a decision by the Circuit of Kanawha County granting summary judgment in favor of university foundation and others in a dispute over whether the construction of a major building was a public improvement subject to various state laws concerning wages, bidding, and procurement of professional services. Despite technical mootness, given the completion of construction, addressing a variety of issues of interest regarding the application of state wage and bidding laws to public improvements.

MINERALS

+ Unexcused cessation - termination of lease - measure of damages

BRYAN v. BIG TWO MILE GAS CO., No. 29641 (Starcher, J.)(Albright, J., disqualified)(Hrko, Judge, by temporary assignment)(December 12, 2001). Affirming a jury's verdict on termination of a gas lease for cessation of production, and reversing the measure of damages used by the Circuit Court of Cabell County. Setting forth guidelines for determining whether a temporary cessation of production is excusable, and for determining the measure of damages. Holding that lessee whose lease has terminated due to an unexcused cessation of production must pay to the property owner the value of the gas that was produced after the lease termination, less a portion of the reasonable costs of production.

MUNICIPAL LAW

+ Decisions by Bd. Of Zoning Appeals

AMERICAN TOWER CORP. v. COMMON COUNCIL OF THE CITY OF BECKLEY, No. 29177 (Davis, J.)(McGraw, C.J., dissenting)(Starcher, J., concurring in part and dissenting in part)(October 10, 2001). Granting mixed relief in case involving whether a conditional use permit should be issued to build a commercial radio tower. Holding that the trial court (Burnside, Judge) correctly determined that the city ordinance improperly vested decision-making authority in the city council rather than the Board of Zoning Appeals. In light of the Board's failure to make written findings when the conditional use permit was issued, however, the Court remanded for further proceedings.

+ Voter initiative and referendum

BURNELL, et al. v. CITY OF MORGANTOWN, et al., No. 28850 (McGraw, C.J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Davis, J., disqualified)(Kaufman, Judge, by temporary assignment)(November 14, 2001). Reversing a grant of summary judgment entered by the Circuit Court of Monongalia County in favor of the city in an action seeking to compel the city to place a proposed ordinance on the ballot. The ordinance would require, among other things, that the city engage in collective bargaining with representatives of its uniformed and civilian employees. Holding that courts have authority to undertake pre-election judicial review of a proposed voter initiative or referendum only in limited circumstances. Remanding with directions that the city be compelled to submit the proposed ordinance to the voters.

PROFESSIONAL DISCIPLINE

+ Public censure and one-year suspension

IN THE MATTER OF: BONNIE L. RIFFLE, MAGISTRATE FOR MORGAN COUNTY, No. 26729 (Per Curiam)(October 26, 2001). In judicial disciplinary proceeding, finding that Ms. Riffle violated several canons of judicial conduct by making false statements and filing untrue reports with the Department of Public Safety, and by fraudulently attempting to collect workers' compensation benefits. Imposing public censure and one-year suspension. Disagreeing with judicial hearing board's recommendation of a $5,000 fine, in light of the fact that Ms. Riffle was, in fact, suspended for nearly two years without pay, and was further punished for her acts in a separate criminal proceeding.

+ Alteration of public defender payment orders

LAWYER DISCIPLINARY BOARD v. ANSELL, No. 27950 (Per Curiam)(November 14, 2001). Concurring with a disciplinary recommendation made by a Hearing Panel Subcommittee in a case involving alteration of court orders submitted to the public defender services for payment. In light of respondent's previously unblemished record, the fact that he did not seek to obtain financial gain by double payment or overpayment, and the circumstances of his practice at the time of the offense, imposing as sanctions a 60-day suspension, 12 hours CLE in ethics and payments of costs of the proceeding.

+ Scope of administrative subpoena

FEATHERS v. WV BD. OF MEDICINE, No. 29634 (Starcher, J.)(November 30, 2001). Affirming order entered in the Circuit Court of Kanawha County that refused to quash an administrative subpoena. Holding that a finding of probable cause is not a necessary prerequisite for the issuance of an administrative subpoena for fee and billing records, in connection with an investigation of alleged excessive fees.

PROFESSIONAL LICENSING

+ Admission to practice of law denied

IN RE: McMILLIAN, No. 27866 (Per Curiam)(Starcher, J., concurring)(Davis, J., and Maynard, J., disqualified)(Hoke, Judge and Frazier, Judge, by special assignment)(November 30, 2001). Concurring with a recommendation by the Board of Law Examiners to deny an application for admission to practice law. [On rehearing from a prior opinion of December 5, 2000.] Holding that, in light of the applicant's felony conviction, and all other circumstances, the application for admission should be denied.

PROPERTY

+ Contract for sale of lands - statute of frauds

MESSER v. RUNION, No. 29162 (Per Curiam)(October 31, 2001). Affirming final order of circuit court (Hoke, Judge) in dispute over conveyance of a parcel of land. Holding that circuit court was correct to enter summary judgment based on the statute of frauds.

+ Easement and nuisance

QUINTAIN DEVELOPMENT v. COLUMBIA NATURAL RESOURCES, INC. No. 29163 (Davis, J.)(Maynard, J., dissenting)(McGraw, C.J., concurring in part and dissenting in part)(Albright, J., concurring)(November 9, 2001). Granting mixed relief in appeal by gas company who held an easement for a gas line. The circuit court (Thornsbury, Judge) held that the easement holder was required to relocate its pipeline, at its own expense, in order to facilitate removal of coal from the property. Affirming the circuit court's decision that the pipeline must be relocated, but reversing the holding insofar as it required the gas company to pay the expenses of relocation.

+ Conflicting surveys in boundary dispute preclude summary judgment

M-B LIMITED PARTNERSHIP v. LONGACRE, et al., No. 29698 (Per Curiam)(November 14, 2001). Reversing summary judgment entered by the Circuit Court of Webster County in a boundary line dispute. In light of the fact that conflicting opinions of the surveyors created genuine issues of material fact, the circuit court erred in granting summary judgment. Remanded for a trial on the merits.

+ Restrictive covenants

CARR, et al. v. MICHAEL MOTORS, INC., No. 29334 (Davis, J.)(November 28, 2001). Reversing orders entered by the Circuit Court of Braxton County that granted summary judgment to commercial land developer. Holding that material questions of fact exist as to who is entitled to benefit from the restrictive covenants at issue, therefore summary judgment was erroneously granted. Construing a covenant prohibiting the erection of "modular" homes.

+ Right-of-way determination

STOVER v. MILAM, Nos. 29762 and 29763 (Per Curiam)(December 7, 2001). Granting mixed relief in appeal from an order of the Circuit Court of Raleigh County in a right-of-way dispute. Affirming circuit court's adoption of a metes and bounds description of the subject right-of-way, but vacating portion of the order that limited the servient estate owner's ability to erect markers on his property to denote the easement's borders.

+ Determination of easement

LAW v. MONONGAHELA POWER CO., et al., No. 29179 (Per Curiam)(Davis, J., and Maynard, J., dissenting)(December 12, 2001). Reversing an order of the Circuit Court of Upshur County that denied a motion for reconsideration of summary judgment in favor of the defendants below in this dispute over a property owner's right of way or easement to his property through a locked access road. Holding that genuine issues of material fact exist, making summary judgment inappropriate. Remanded for further proceedings.

SALES/SECURED TRANSACTIONS

+ UCC controls motor vehicle liens perfected out of state

SORSBY, et al. v. WFS FINANCIAL, INC., et al., No. 29697 (Davis, J.)(McGraw, C.J., dissenting)(December 7, 2001). Answering certified question from the United States Bankruptcy Court for the Northern District of West Virginia. Asked to determine the proper treatment of motor vehicle liens perfected in other states in light of conflicting statutes. Holding that where a motor vehicle owned by a West Virginia resident is titled in another jurisdiction, and that jurisdiction requires notation of a security interest on the certificate of title as a condition of perfection, the determination of the continued perfection of any lien so noted is governed by the UCC, as opposed to W.Va. Code Section 17A-4A-14 [1961].

STATUTES

+ Last-enacted version controlling

WILEY v. TOPPINGS, No. 29064 (Starcher, J.)(November 28, 2001).
Answering a certified question from the Circuit Court of Lincoln County regarding the statutory definition of "timbering operations." Holding that the controlling definition of "timbering operations" is the definition contained in the last-enacted version of W.Va. Code 19-1B-3.

STATUTES OF LIMITATION

+ Application of discovery rule

MILLER v. MONONGALIA COUNTY BD. OF ED., et al., No. 29695 (Maynard, J.)(Starcher, J., concurring)(November 14, 2001). Reversing an order of dismissal entered by the Circuit Court of Monongalia County. Holding that the general statute of limitations contained in W.Va. Code 55-2-12(b) is tolled with respect to an undiscovered wrongdoer by virtue of fraudulent concealment when the cause of action accrues during a victim's infancy and the injured person alleges in his or her complaint that the wrongdoer fraudulently concealed material facts. The statute begins to run when the injured person knows, or by exercise of reasonable diligence should know, the nature of the injury, and determining that point in time is a question of fact for the jury. However, pursuant to W.Va. Code 55-2-15, no action may be brought more than twenty years from the time the right accrues.

TAX LAW and PROCEDURE

+ Issuance of certificate of adequate assets

FRANTZ, et al. v. PALMER, Comm'r, No. 29178 (Albright, J.)(Davis, J., dissenting)(October 29, 2001). Reversing circuit court's order (Stucky, Judge) that dismissed taxpayer's appeal from an administrative ruling by the commissioner for failure to secure an adequate appeal bond pursuant to W.Va. Code 11-10-10(d). Holding that Code 11-10-10(d), by reposing exclusive discretion in the tax commissioner regarding bond waiver, violates the open courts provision of article III, section 17 of the West Virginia Constitution. Remanding with specific directions.

TORTS

+ Duty of care

STORY v. WORDEN, et al., No. 29773 (Per Curiam)(November 28, 2001). Reversing a grant of summary judgment by the Circuit Court of Cabell County in favor of property owner and manager. Because the material issue of whether the property manager knew or should have known that a glass storm door was in a defective condition that could cause injury was hotly disputed, summary judgment was erroneously granted.

+ Negligent hiring

KIZER v. HARPER, No. 29694 (Per Curiam)(Davis, J. and Maynard, J., dissenting)(November 28, 2001). Affirming the Circuit Court of Kanawha County's decision to refuse post-trial motions for new trial or judgment as a matter of law. Rejecting appellant's contention that the appellees had failed to prove a prima facie case of negligent hiring against him.

+ Deliberate intention; DOH contractor hiring duties

RUSSELL v. BUSH & BURCHETT, et al., No. 28398 (Starcher, J.)(Maynard, J., concurring in part and dissenting in part)(Davis, J., disqualified)(Thornsbury, Judge, by special assignment)(November 30, 2001). Reversing an order entered by the Circuit Court of Kanawha County that granted summary judgment in a deliberate intention personal injury claim in favor of a bridge construction company and partially dismissed the Division of Highways as a defendant in the case. Holding that a worker injured on the "Kentucky end" of a state-funded bridge construction project is authorized to bring a deliberate intention action under WV law. Holding further that DOH insurance did not exclude a claim for negligent hiring and retention; rejecting argument that "responsible bidder" language imposes a mandatory duty upon DOH to account for worker safety history of a contractor/bidder.

+ Award of new trial to plaintiff in mesothelioma case

LAMPHERE v. CONSOL. RAIL CORP., et al., No. 29691 (Per Curiam)(November 30, 2001). Affirming a decision by the Circuit Court of Putnam County to set aside a jury verdict in favor of the defendants below and award a new trial to the plaintiff in a FELA action. Holding that the circuit court correctly determined that the verdict was against the clear weight of the evidence.

+ Erroneous instruction on comparative negligence of plaintiff

JUDY v. GRANT COUNTY HEALTH DEPT., et al., No. 29637 (Per Curiam)(December 3, 2001). Reversing an order of the Circuit Court of Grant County that denied plaintiff's motion to alter the judgment of the jury finding her 49 percent negligent in a medical malpractice action. Holding that the circuit court erred in permitting a comparative negligence instruction regarding the plaintiff's alleged failure to diagnose her own breast cancer. Remanding for entry of judgment for plaintff in the amount of the full jury verdict.

+ Comparative negligence in medical malpractice actions

ROWE v. SISTERS OF THE PALLOTTINE MISSIONARY SOCIETY, No. 29161 (Starcher, J.)(McGraw, C.J., concurring)(Davis, J. and Maynard, J., concurring in part and dissenting in part)(December 12, 2001). Affirming a judgment order entered in the Circuit Court of Cabell County after a jury awarded damages to the plaintiff in a medical malpractice action. Rejecting hospital's argument that the circuit court erred in refusing to instruct the jury on the principles of comparative negligence, and setting forth guidelines governing the application of comparative negligence principles in such actions.

+ Effect of release

WOODRUM v. JOHNSON, et al., No. 28857 (McGraw, C.J.)(Maynard, J. and Albright,
J., dissenting)(Starcher, J., disqualified)(Stephens, Judge, by temporary
assignment)(December 12, 2001). Answering a certified question from the Circuit Court of Monongalia County regarding whether a plaintiff's release of a primarily liable tortfeasor necessarily releases other parties defendant that may be derivatively or vicariously liable based upon their relationship with the tortfeasor. Holding that a plaintiff's release of a primarily liable defendant should not be permitted to have the potentially unintended affect of releasing other liable parties.

TORTS -- APPELLATE PROCEDURE

+ Order granting new trial appealable; Remarks by counsel during argument

FOSTER v. SAKHAI, No. 29339 (McGraw, C.J.)(Davis, J., concurring in part and
dissenting in part)(Maynard, J., dissenting)(December 12, 2001). Reversing an order of the Circuit Court of Cabell County that granted a new trial to the defendant in a medical malpractice action after the jury awarded damages to the plaintiff. Holding that counsel's remarks during closing argument regarding the non-economic cap in medical malpractice cases were harmless error that did not warrant setting aside the jury's verdict. Further clarifying that an order granting a new trial is an immediately appealable order, overruling James M.B. v. Carolyn M.B., 193 W.Va. 289 (1995) and Coleman v. Sopher, 201 W.Va 508 (1997), to the extent they suggest otherwise.

TORTS - INSURANCE

+ Bad faith claim not precluded by previous request for consequential damages

SLIDER v. STATE FARM, et al., No. 29292 (McGraw, C.J.)(December 14, 2001). Reversing an order of the Circuit Court of Ohio County granting summary judgment in favor of defendants in a bad faith action. Holding that plaintiff's claim under Marshall v. Saseen, 192 W.Va. 94 (1994), for consequential damages in a prior action against the same defendants, did not act as a bar to subsequent bad faith and intentional tort claims under the applicable "same-evidence" test for claim preclusion.

+ State not immune from suit for negligent retention

JOHNSON v. C.J. MAHAN CONSTRUCTION CO., et al., No. 29005 (Per Curiam)(Davis, J., disqualified)(Burnside, Judge, by temporary assignment)(Maynard, J., dissenting)(Burnside, Judge, dissenting)(December 12, 2001). Reversing an order of the Circuit Court of Logan County that dismissed the WV Division of Highways as a party in a personal injury action because it lacked insurance coverage. Holding that the State's liability coverage did extend to alleged negligence in the bidding and retention process, and remanding with directions to reinstate the WVDOH as a party.

TORTS - PROCEDURE

+ Grounds to file amended complaint

McCOY V. CAMC, Inc., et al., No. 29699 (Per Curiam)(December 5, 2001).
Affirming order by the Circuit Court of Kanawha County that refused to reinstate the original complaint in a medical malpractice action and to allow the complaint, once reinstated, to be amended to include additional defendants and causes of action.

TORTS - JURY - EVIDENCE

+ Juror with interest in the cause

DOE v. WAL-MART STORES, INC., et al., Nos. 26012 and 29335 (Davis, J.)(Starcher, J., Maynard, J., and Albright, J., concurring)(December 7, 2001). Reversing a jury verdict in favor of Wal-Mart obtained in the Circuit Court of Raleigh County. Holding that the plaintiff is entitled to a new trial because juror whose husband was employed by and owned stock in Wal-Mart had an "interest in the cause" and should have been stricken, and addressing several other matters, including: the propriety of an "empty-chair" closing argument; circuit court's limitations on discovery; exclusions of plaintiff's expert testimony; and when subsequent remedial measures may be used for impeachment purposes. Remanded for further proceedings.

WILLS and ESTATES

+ Constructive trust not necessary

NAPIER, et al. v. COMPTON, et al., No. 29007 (Per Curiam)(October 26, 2001). Reversing circuit court decision to impose a constructive trust upon the estate of the appellant. Holding that the trial court (Pancake, Judge) erred in imposing the constructive trust, because the appellees failed to establish that the conveyances made by the appellant were invalid.

WORKERS’ COMPENSATION

+ Compensability of injuries sustained in physical agility test

DODSON v. WCD/BROWN & ROOT, No. 29264 (Albright, J.)(Davis, J. and Maynard, J., dissenting)(November 9, 2001). Reversing a final administrative decision to deny the compensability of a back injury. Holding that where an offer of employment is conditioned upon the successful completion of a physical agility test, participation in the test constitutes acceptance of employment and entitlement to workers’ compensation coverage, notwithstanding the absence of renumeration paid to the employee for participation in the test.

+ Death of the claimant does not affect claim; Standard for OP claims

MARTIN v. WORKERS' COMP. DVISION/W-P COAL CO., No. 28516 (McGraw, C.J.)(Maynard, J., dissenting)(November 30, 2001). Reversing an order of the Workers' Compensation Appeal Board that denied a claim for permanent total disability benefits. Holding that a claim for benefits survives the death of the claimant. Any benefits ultimately awarded shall be paid to the dependants of the deceased claimant. [Overruling Wingrove and Hughes, to the extent in conflict.] Further holding that if reliable evidence of OP is presented, the division "must award the claimant benefits based upon the reliable evidence that shows either the existence of occupational pneumoconiosis or the highest degree of impairment. The claimant must be given the benefit of all reasonable inferences the record will allow, and any conflicts in evidence must be resolved in favor of the claimant."

WRONGFUL DEATH

+ Discovery rule applies to wrongful death actions

BRADSHAW v. SOULSBY, et al., No. 29004 (Starcher, J.)(Davis, J., and Maynard, J., dissenting)(December 12, 2001). Reversing an order of the Circuit Court of Kanawha County that dismissed a wrongful death action filed two years and three days after the decedent's death. Holding that the discovery rule applies in wrongful death actions, overruling Miller v. Romero, 186 W.Va. 523 (1991). Setting forth guidelines regarding application of the discovery rule in wrongful death actions.

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