Topical Index of Opinions of the
September 1996 Term
TABLE OF CONTENTS
State ex rel. Katherine Anne Hoover,
M.D., v. Honorable Robert K. Smith,
Special Judge of the Circuit Court of
Kanawha County, the West Virginia
Board of Medicine, and Anne Werum
Lambright, No. 23613 (W. Va.,
December 13, 1996)(McHugh, C.J.):
Moulding a writ of prohibition requested
by petitioner, the respondent in a medical
disciplinary proceeding below, to
challenge the refusal of the hearing
examiner to issue subpoenas for discovery
depositions, the Court held while there is
no constitutional or statutory right to
discovery depositions in administrative
proceedings, where it would be
fundamentally unfair to refuse to allow a
physician in medical disciplinary
proceedings to conduct discovery prior to
the contested hearing, such as where the
Board of Medicine impedes the
physician's ability to adequately address
the charges being investigated, due process
may require the issuance of subpoenas for
pre-hearing discovery purposes, and
prohibited the hearing examiner from
proceeding with the administrative hearing
without determining whether such
circumstances exist in this case.
The Daily Gazette Company, Inc., etc., v.
The West Virginia Development Office
and its Director, Thomas C. Burns, No.
23560 (W. Va., December 13,
1996)(McHugh, C.J.):
Reversing a ruling refusing plaintiff
newspaper's request for documents
relating to proposed construction of a pulp
mill under the Freedom of Information
Act, W. Va. Code, 29B-1-1 et seq., as
exempt from disclosure as internal
memoranda or letters received or prepared
by a public body under W. Va. Code, 29B-1-4(8), the Court ruled that (1) when an
agency claims an exemption under section
4(8), it must file a Vaughn index,
providing a relatively detailed justification
as to why each document is exempt,
specifically identifying the reasons that the
statutory exemption is relevant and
correlating the claimed exemption with the
particular part of the withheld document to
which the claimed exemption applies and
(2) the statute specifically exempts only
those written internal government
communications consisting of advice,
opinions and recommendations which
reflect a public body's deliberative,
decision-making process, written advice,
opinions and recommendations from one
public body to another, and written advice,
opinions and recommendations to a public
body from outside consultants or experts
obtained during the public body's
deliberative, decision-making process; it
does not exempt from disclosure written
communications between a public body
and private persons or entities which do
not consist of advice, opinions or
recommendations to the public body from
outside consultants or experts obtained
during the public body's deliberative,
decision-making process. The Court
remanded for a determination of whether
the documents are exempt from disclosure
under section 4(8).
State ex rel. Judson White v. Larry F.
Parsons, Administrator, South Central
Regional Jail, No. 23542 (W. Va.,
December 9, 1996)(Albright, J.):
Granting a moulded writ of prohibition
preventing enforcement of an absolute ban
on tobacco products at all regional jails,
the Court concluded that administrative
regulations promulgated by the Jail and
Correctional Facility Standards
Commission were unenforceable where
the Commission failed to conduct a good
faith review of substantial objections to the
tobacco ban made by the Commissioner of
Corrections, an interested party, and to
reflect the substance of such review on the
rule-making record. The Court stated that
appropriate replacement regulations might
be proposed and adopted provided the
Commission gives adequate consideration
to favorable and adverse comments, to the
status of pretrial detainees, to constraints
on disparate treatment of similarly situated
parties, and to other appropriate factors,
including legitimate penological
objectives.
State ex rel. Katherine Anne Hoover,
M.D. v. Hon. Irene Berger, Judge, etc.,
the West Virginia Board of Medicine, et
al., No. 23737 (W. Va., November 15,
1996)(Cleckley, J.):
Granting a writ of prohibition to prevent
enforcement of a subpoena duces tecum
issued by the Board of Medicine and
requiring production of a transcript by a
court reporter hired by petitioner to record
a meeting of the Board at which petitioner
appeared, the Court ruled that the Board
had no authority to issue the subpoena
where its purpose was not to further the
Board's investigation or any other proper
statutory purpose, but merely to guarantee
the accuracy of the Board's minutes of the
meeting.
Chandra K. Parkulo v. West Virginia
Board of Probation and Parole and the
West Virginia Division of Corrections,
No. 23366 (W. Va., November 15,
1996)(Albright, J.):
Reviewing summary judgment and
dismissal of an action against the Division
of Corrections and the Parole Board for
injuries plaintiff received when attacked
by a parolee on grounds of sovereign
immunity, the Court held (1) the Parole
Board, being a quasi-judicial body, is
entitled to absolute immunity from tort
liability for acts or omissions which are
covered by liability insurance purchased
by the State pursuant to W. Va. Code, 29-12-5, and which are performed in the
exercise of its judicial function, unless
such immunity is expressly waived by the
applicable insurance contract; and (2) the
"public duty doctrine" and the "special
relationship" exception thereto apply to
the Parole Board and the Division of
Corrections unless coverage for the acts or
omissions complained of is expressly
provided in the insurance coverage issued
pursuant to W. Va. Code, 29-12-5.
Because the insurance contract was not
included in the record on review, the Court
reversed and remanded the case to the
circuit court for a determination of the
liability of the defendants under the
policy; however, the Court held that in
future, dismissal of suits brought against
the State under W. Va. Code, 29-12-5 and
Pittsburgh Elevator v. W. Va. Board of
Regents, 172 W. Va. 743, 310 S.E.2d 675
(1983), will not be reviewed on appeal
unless the complaint limits the recovery
sought to the applicable insurance
coverage, and the scope of the coverage is
apparent from the record.
Bernard Thomas Hanson v. Mineral County Board of Education, No. 23176 (W. Va., November 14, 1996)(Recht, J.):
___ W. Va. ___, 479 S.E.2d 305
Reversing an order requiring the Board of
Education to credit plaintiff with sick and
vacation leave that would have accrued
between his discharge and reinstatement
and to pay $500 in attorney fees pursuant
to a settlement made after the Board
appealed an adverse ruling of the circuit
court in the grievance proceedings, the
Court held that the appeal and subsequent
order of this Court dismissing the case due
to the settlement deprived the circuit court
of any jurisdiction over the grievance
between the parties, and its previous
orders were unenforceable against the
parties.
William E. Smith, D. Ray Smith, and
Smith Company, a corporation v. Charles
B. Stacy, dba Spilman, Thomas &
Klostermeyer, a law firm, No. 23196 (W.
Va., December 19, 1996)(Workman, J.):
Reversing summary judgment for
defendants in a legal malpractice action
and remanding for further proceedings, the
Court ruled that evidence defendants
breached a contract for specific services
was sufficient to warrant application of the
ten-year statute of limitations applicable to
contract actions and adopted the
continuous representation doctrine through
which the statute of limitations in an
attorney malpractice action is tolled until
the professional relationship terminates
with respect to the matter underlying the
malpractice action. The Court held that the
continuous representation doctrine does
not apply where (1) the attorney's role is
only tangentially related to representation
provided after the malpractice; (2) there
are no clear indicia of an ongoing,
continuous, developing and dependent
attorney-client relationship; and (3) the
attorney's involvement after the
malpractice is for the performance of the
same or related services and is not merely
a continuation of a general professional
relationship.
Lawyer Disciplinary Board v. Phillip B.
Allen, John P. Coale, and Greta Van
Susteren, No. 22700 (W. Va., November
15, 1996)(Albright, J.): ___ W. Va. ___,
479 S.E.2d 317
Reluctantly dismissing ethics charges
against out-of-state lawyers for improper
solicitation of clients in West Virginia, the
Court held that while the evidence clearly
supported the Disciplinary Board's finding
that the respondents' conduct violated the
Rules 7.1(c), 7.3(a), 7.3(b)(1), and 8.4(a)
of the Rules of Professional Conduct, the
Court did not have jurisdiction to
discipline them because the misconduct
occurred at a time when only persons
"regularly engaged in the practice of law"
in West Virginia were subject to
professional discipline under Article VI,
4 of the West Virginia State Bar
Constitution and By-Laws.
Public Citizen, Inc. v. First National
Bank in Fairmont, No. 23282 (W. Va.,
December 5, 1996) (Cleckley, J.): ___ W.
Va.___, 480 S.E.2d 528
Reversing a bench judgment in favor of
defendant bank in an action pursuant to the
Uniform Commercial Code to recover
sums embezzled by plaintiff's employee in
1989 by depositing in his personal account
checks made out to plaintiff, "Attn" of the
employee, the Court ruled, inter alia, that
(1) in reviewing findings and conclusions
of the circuit court in a bench trial, the
final order and the ultimate disposition are
reviewed under an abuse of discretion
standard, while the circuit court's
underlying factual findings are reviewed
under a clearly erroneous standard; (2) the
circuit court erred in applying W. Va.
Code, 46-3-110(d)(1993), specifying that
checks are payable in the alternative where
the language of the instrument is
ambiguous, retroactively to the 1989
transactions; and (3) the bank did not act
according to "the reasonable commercial
standards" of the banking business in
allowing corporate checks to be deposited
in an individual account without first
inquiring as to the employee's authority,
so as to bar plaintiff's claim for
contributory negligence under W. Va.
Code, 46-3-406.
Lucia Blais v. Allied Exterminating
Company, et al., No. 23160 (W. Va.,
December 13, 1996)(Recht, J.):
Reversing summary judgment for
defendant in an action for injuries resulting
from application of insecticides to
plaintiff's Virginia residence and
remanding for further proceedings, the
Court ruled that (1) the doctrine of
equitable estoppel is a substantive rule of
law, requiring application of lex loci
delicti, the law of the jurisdiction in which
the cause of action arose and (2) the circuit
court erred in not considering Virginia law
in applying the doctrine of equitable
estoppel as a defense to defendants'
assertion that the statute of limitations
barred plaintiff's cause of action.
Public Citizen, Inc. v. First National
Bank in Fairmont, No. 23282 (W. Va.,
December 5, 1996) (Cleckley, J.): ___ W.
Va. ___, 480 S.E.2d 538
Reversing a bench judgment in favor of
defendant bank in an action pursuant to the
Uniform Commercial Code to recover
sums embezzled by plaintiff's employee in
1989 by depositing in his personal account
checks made out to plaintiff, "Attn" of the
employee, the Court ruled, inter alia, that
(1) in reviewing findings and conclusions
of the circuit court in a bench trial, the
final order and the ultimate disposition are
reviewed under an abuse of discretion
standard, while the circuit court's
underlying factual findings are reviewed
under a clearly erroneous standard; (2) the
circuit court erred in applying W. Va.
Code, 46-3-110(d)(1993), specifying that
checks are payable in the alternative where
the language of the instrument is
ambiguous, retroactively to the 1989
transactions; and (3) the bank did not act
according to "the reasonable commercial
standards" of the banking business in
allowing corporate checks to be deposited
in an individual account without first
inquiring as to the employee's authority,
so as to bar plaintiff's claim for
contributory negligence under W. Va.
Code, 46-3-406;.
Bernard Thomas Hanson v. Mineral
County Board of Education, No. 23176
(W. Va., November 14, 1996)(Recht, J.):
___ W. Va ___, 479 S.E.2d 305
Reversing an order requiring the Board of
Education to credit plaintiff with sick and
vacation leave that would have accrued
between his discharge and reinstatement
and to pay $500 in attorney fees pursuant
to a settlement made after the Board
appealed an adverse ruling of the circuit
court in the grievance proceedings, the
Court held that the appeal and subsequent
order of this Court dismissing the case due
to the settlement deprived the circuit court
of any jurisdiction over the grievance
between the parties, and its previous
orders were unenforceable against the
parties.
State ex rel. School Building Authority of
West Virginia v. Dr. Henry R. Marockie,
President, School Building Authority of
West Virginia, No. 23675 (W. Va.,
December 13, 1996)(Cleckley. J.):
Moulding a writ of mandamus requested
by petitioner to compel respondent to issue
refunding bonds to discharge bonds issued
prior to this Court's decision in Winkler v.
State School Building Authority, 189 W.
Va. 748, 434 S.E.2d 420 (1993), the Court
ruled that (1) this Court will entertain
mandamus actions to test the legitimacy of
a proposed government issue only when
this Court's prior decisions are not
adequate to provide proper guidance for
meaningful legal evaluation; (2) petitioner
may issue bonds to refund pre-Winkler
bonds even though they were not
specifically mentioned in the Winkler
opinion; (3) the school building capital
improvements fund is not a special fund
which may be used to finance new school
construction projects, but it may be used to
finance refunding bonds issued to redeem
pre-Winkler bonds; (4) petitioner may
issue refunding bonds in a principal
amount greater than the principal amount
of the pre-Winkler bonds to be refunded,
but only in the additional amount required
to establish and maintain an escrow
account for the repayment of those pre-existing bonds not presently due and
payable; (5) petitioner may not issue
alleged refunding bonds for the
redemption of pre-Winkler bonds which
have the practical effect of generating cash
at closing in order to make immediately
available the anticipated debt service
savings from such "refunding".
State ex rel. the Charleston Building
Commission, a public corporation v.
Walter B. Dial, Jr., Chairman Pro Tem,
etc., No. 23582 (W. Va., December 11,
1996)(Cleckley, J.): ___ W. Va. ___, 479
S.E.2d 695
In granting a writ of mandamus to compel
the chairman pro tem of the Commission
to execute an agreement to employ a
financial advisor and to issue bonds to
finance the State's lease-purchase of a
vacant building, the Court held (1)
respondent, as chairman pro tem of the
Commission, has the same duties and
responsibilities as the duly elected
chairman of the Commission, including the
authority to execute the agreement on
behalf of the Commission; (2) under W.
Va. Code, 8-12-5 and the city charter, the
Commission has the authority to acquire
and renovate a building and lease it to the
State under a lease-purchase agreement;
(3) neither the Commission's issuance of
revenue bonds, certificates of participation
or other financial obligations to finance the
acquisition and renovation of the building,
nor the proposed lease-purchase agreement
violates W. Va. Const, art. X, 8,
prohibiting the municipality from incurring
excessive debt; and (4) use of rental
payments to retire the bonds issued by the
Commission does not violate W. Va.
Const, art X, 4, prohibiting the State
from contracting debt, or W. Va. Const.,
art. X, 6, prohibiting pledging the credit
of the State to an individual or public
body.
Wheeling Park Comm'n v. Hotel and
Restaurant Employees, International
Union, etc., et al., No. 23448 (W. Va.,
November 18, 1996)(McHugh, C.J.): ___
W. Va. ___, 479 S.E.2d 876
Reversing an injunction restricting
leafleting, picketing, and other union
organizing activities at Oglebay Park, the
Court ruled that while the standard used in
evaluating the constitutionality of
restrictions in a statute, ordinance, or
regulation on content-neutral speech in a
public forum under W. Va. Const., art III,
7, is whether the time, place, and manner
of the restrictions were narrowly tailored
to serve a significant government interest
and leave open ample alternative channels
of communication, the constitutionality of
such restrictions in an injunction is tested
by a more stringent standard, i.e., whether
the restrictions burden no more speech
than necessary to serve a significant
government interest.
Charles A. Porter v. Michael Kenneth
McPherson, No. 23309 (W. Va.,
November 15, 1996)(Workman, J.): ___
W. Va. ___, 479 S.E.2d 668
Reversing a ruling that because plaintiff
was not fully compensated by a settlement
with the defendant tortfeasor, under Kittle
v. Icard, 185 W. Va. 126, 405 S.E.2d 456
(1991), a medical provider's claims for the
cost of medical services provided plaintiff
were extinguished, the Court held that the
medical provider's claim was not for
subrogation, dependent upon the plaintiff's
ability to obtain a recovery for medical
expenses from a tortfeasor, as in Kittle;
instead the claim arose from a contract
with the plaintiff to reimburse the provider
for medical services rendered, placing the
plaintiff and the provider in a debtor-creditor relationship, and such claim
cannot be extinguished or barred by the
doctrine of subrogation. The Court also
held that the circuit court's finding that the
provider had not proven that plaintiff's
medical care and treatment were
reasonable or necessary or proximately
caused by the accident giving rise to the
tort action did not preclude the provider
from bringing a separate action to enforce
its contract rights against plaintiff.
Dieter Engineering Services, Inc., a
Florida corporation v. Parkland
Development, Inc., William Abruzzino,
Rebecca Abruzzino, Center Designs, Inc.,
and Plaza Management, Inc., No. 23330
(W. Va., December 16, 1996)(McHugh,
C.J.):
Affirming a $94,367 verdict for plaintiff in
a breach of contract action to recover
compensation for engineering services
performed for defendants in conjunction
with construction of a shopping center, the
Court ruled that (1) pursuant to W. Va.
Code, 31-1-66, which states, in relevant
part, that "[n]o foreign corporation which
is conducting affairs or doing or
transacting business in this State without a
certificate of authority shall be permitted
to maintain any action or proceeding in
any court of this State until such
corporation shall have obtained a
certificate of authority", such corporation
may maintain an action or proceeding in
any court in this State after obtaining a
certificate of authority even though the
corporation did not have the certificate at
the time it instituted the action or
proceeding; (2) the assignment to plaintiff
of defendants' accounts receivable was not
void on the ground that plaintiff did not
exist at the time of the assignment
agreement; and (3) the stockholders of
defendant corporation could be held
individually liable under Laya v. Erin
Homes, Inc., 177 W. Va. 343, 352 S.E.2d
93 (1986).
State ex rel. Truong Van Nguyen v. Hon.
Irene Berger, Judge of the Circuit Court
of Kanawha County, and William C.
Forbes, Prosecuting Attorney for
Kanawha County, No. 23614 and State of
West Virginia v. Steve A. Rife, No. 23655
(W. Va., December 16, 1996)(Recht, J.):
Denying a writ of prohibition to force
dismissal of an indictment and reversing
dismissal of another indictment against
corporate officers for violations of W. Va.
Code, 23-1-16(a), the Court held that
corporate officers, along with the
corporation, may be criminally responsible
for the corporation's failure to pay
workers' compensation premiums and to
file quarterly workers' compensation
reports required by the statute under the
common law rule that officers, agents and
directors of a corporation may be
criminally liable if they cause the
corporation to violate the criminal law
while conducting corporate business.
State of West Virginia v. Dominique
Rahman, No. 23329 (W. Va., December
20, 1996)(Workman, J.):
Remanding defendant's conviction of four
felony counts of possession of heroin with
intent to deliver for a hearing under Batson
v. Kentucky, 476 U.S. 79 (1986), the Court
held , inter alia, that (1) the fact that a
black juror remained on the jury panel did
not preclude defendant from claiming
racial discrimination in jury selection
under Batson arising from a preemptive
strike of another black juror, and (2) in
resolving defendant's claim of racial
discrimination under Batson, the circuit
court should have considered defendant's
assertion that a similarly situated white
juror was not challenged and should have
required the State to articulate a credible
reason for disparate treatment of similarly
situated black and white jurors.
State of West Virginia v. Dennis Macri, et
al., No. 23468 (W. Va., December 19,
1996)(Workman, J.):
Granting a moulded writ of prohibition to
prevent dismissal of multiple indictments,
the Court held (1) the State may appeal
dismissal of an indictment under W. Va.
Code, 58-5-30 as bad or insufficient only
when the dismissal is predicated the
indictment's failure to contain the
elements of the offense to be charged so as
to sufficiently apprise the defendant of the
charges against him or her or to contain
sufficient accurate information to permit a
plea of former acquittal or conviction, and
(2) a circuit court exceeds its jurisdiction
in dismissing an indictment on grounds
that it was procured by an assistant
prosecuting attorney who is not a resident
of West Virginia because an assistant
prosecuting attorney is not a public officer
required to be a citizen of this State under
W. Va. Const., art. IV, Section 4.
State of West Virginia v. Betty Jane
Smith, No. 23312 (W. Va., December 19,
1996)(Workman, J.):
Affirming a circuit court order releasing
defendant from confinement in a mental
facility but retaining jurisdiction over her
for 18 years following her acquittal of
second-degree murder due to mental
illness, the Court held that (1) W. Va.
Code, 27-6A-3 (1995), requiring the
circuit court to retain jurisdiction over a
defendant found not guilty by reason of
mental illness for the maximum period to
which the defendant could have been
sentenced but for the mental illness, does
not violate due process or equal protection
principles where W. Va. Code, 27-6A-4
allows the circuit court flexibility to
terminate retained jurisdiction prior to the
end of the maximum sentence period in
consideration of the acquittee's mental
condition; (2) because W. Va. Code, 27-6A-3 (1995) is not punitive or criminal in
nature or purpose, ex post facto principles
do not prohibit the application of the 1995
statute to an offense which occurred in
1994; and (3) the circuit court did not err
in continuing the proceedings past the
effective date of W. Va. Code, 27-6A-3
(1995), in order to obtain a copy of the
new legislation.
State of West Virginia v. Julie Wyatt, No.
23260 (W. Va., December 12,
1996)(Albright, J.):
Reversing defendant's conviction of
murder of a child by failure to provide
medical care and remanding for a new
trial, the Court held (1) W. Va. Code, 61-8D-2(b), defining the crime charged, is not
unconstitutionally vague; (2) the
instructions defining the offense charged
were inaccurate, misleading and
confusing; and (3) the circuit court did not
err in excluding defendant's expert
testimony on battered woman syndrome to
negate defendant's intent to commit the
crime.
State of West Virginia v. Leeman Jarvis,
No. 23086 (W. Va., December 12,
1996)(Albright, J.):
Affirming defendant's conviction of
second-degree murder in the death of his
daughter-in-law, the Court held, inter alia,
(1) instructions on lesser included offenses
were warranted by the evidence,
notwithstanding the fact that the court
initially had ruled that lesser included
offense instructions would not be allowed;
and (2) the circuit court did not err in
allowing decedent's divorce attorney to
testify when her estranged husband
invoked the attorney-client privilege as
representative of decedent's estate
State of West Virginia v. Michael Head,
No. 23404 (W. Va., November 14,
1996)(Recht, J.): ___ W. Va. ___, 480
S.E.2d 507
Reversing the circuit court's denial as
untimely of defendant's motion for
reduction of his 60-year sentence for
aggravated robbery, the Court held (1)
once a motion for reconsideration of
sentence under W. Va.R.Crim.P. 35(b) is
timely made, the failure of the defendant
to remind the circuit court that the motion
is pending does not constitute an
abandonment of the motion; (2) what
constitutes a "reasonable period" for a
court to rule on a Rule 35(b) motion must
be determined based on the facts of each
case; (3) where a court fails to rule on a
Rule 35(b) motion due to administrative
error, any resultant delay in disposing of
the motion cannot be considered an
unreasonable delay barring a ruling on the
motion; and (4) while in considering Rule
35(b) motions the circuit court should
generally consider only those events that
occur within the 120-day filing period, as
long as the court does not usurp the role of
the parole board, it may consider matters
beyond the filing period to serve the ends
of justice.
State of West Virginia v. Charles Rhea
Hinkle, No. 23424 (W. Va., October 31,
1996)(Cleckley, J.):
Reversing the defendant's conviction for
involuntary manslaughter while driving a
motor vehicle in an unlawful manner, the
Court held (1) unconsciousness (or
automatism) is not part of the insanity
defense, but a separate defense which may
eliminate the voluntariness of a criminal
act, rather than negating the mental
element of a crime, and requires a separate
instruction; (2) an instruction on the
defense of unconsciousness is warranted
where the defendant alleges that he was
rendered unconscious at the time of the
crime by reason of a then-undiagnosed
brain disorder affecting the reticular
activating system of his brain; and (3) an
instruction on the defense of
unconsciousness should charge the jury
that even if it believes there is a reasonable
doubt about the consciousness of the
defendant at the time of the crime, a
defendant who voluntarily operates a
motor vehicle with knowledge of a pre-existing condition which may result in loss
of consciousness or of prior recurring
episodes of loss of consciousness may be
guilty of reckless disregard for the safety
of others.
State of West Virginia v. Randy L. Thornton, No. 23345 (W. Va. October 15, 1996) (Albright, J.): 478 S.E.2d 576:
___ W. Va. ___, 478 S.E.2d 576
Reversing a judge's decision not to
entertain a motion for reduction of
sentence filed within 120 days of the
denial by the Supreme Court of a
prisoner's petition for post-conviction
habeas corpus, the Court noted such ruling
was compelled by the language of R.
Crim. P. 35(b), but also held that under the
revised version of R. Crim. P. 35(b),
which became effective on September 1, a
motion for reduction of sentence must be
filed only within 120 days after sentence is
imposed, probation is revoked, entry of an
order dismissing or rejecting an appeal
from a conviction or probation revocation,
or entry of a mandate affirming a judgment
of conviction or probation revocation.
State of West Virginia v. Eugene Blake,
No. 23458 (W. Va. October 11, 1996)
(Cleckley, J.): 478 S.E.2d 550: ___ W.
Va. ___ 478 S.E.2d 550
Reversing a murder conviction where the
trial court excluded evidence that a key
prosecution witness failed to disclose
during the witness's earlier polygraph
examination an allegedly inculpatory
statement made by the defendant, but
rejecting the defendant's claim of a right to
reversal under Neuman, the Court held (1)
in order for a prior inconsistent statement
by a witness to be admissible (i) the
statement must be inconsistent, but is not
required to be diametrically opposed to the
witness's testimony, (ii) if the statement is
presented in the form of extrinsic
evidence, rather than through cross-examination of the witness, the area of
impeachment must be sufficiently relevant
and the requirements of R. Evid. 613(b),
including notice and an opportunity to
respond, must be satisfied, and (iii) the
jury must be instructed that the evidence is
admissible only for impeachment purposes
and not as evidence of a material fact; (2)
although a witness may not ordinarily be
impeached by his or her prior failure to
disclose a material fact, such impeachment
should be permitted where the failure to
disclose occurred under circumstances
where it would have been incumbent on
the witness or natural for the witness to
disclose the material fact; (3) although
evidentiary rulings do not automatically
warrant reversal of a conviction, where the
improper exclusion of evidence places the
underlying fairness of the trial in doubt or
where the exclusion adversely affect the
substantial rights of the defendant, reversal
is warranted; (4) the factors to be
considered in determining the retroactivity
of a new constitutional rule of criminal
procedure are (i) the purposes served by
the new rule, (ii) the extent of reliance by
police on the old rule, and (iii) the effect
of retroactive application of the new rule
on the administration of justice; and (5) a
judicial decision in a criminal case is to be
given prospective application only if (i) it
establishes a new principle of law, (ii) its
retroactive application would retard its
operation, and (iii) its retroactive
application would produce inequitable
results.
State of West Virginia v. James L.
Crabtree, No. 23408 (W. Va. October 11,
1996) (Cleckley, J.):
Affirming a defendant's conviction of
malicious wounding, battery, and
recidivism, the Court held that (1) a
statement or conduct by a declarant that is
inconsistent with a hearsay statement
admitted under R. Evid. 806 is not subject
to the requirement that the declarant be
afforded an opportunity to explain or deny
the inconsistency; (2) testimony not
responsive to the question posed may be
stricken upon motion of the examiner,
particularly where such testimony is
otherwise inadmissible; (3) where there
has been waiver, which is the intentional
relinquishment or abandonment of a
known right, the "plain error" doctrine
under R. Crim. P. 52(a) does not apply; (4)
a criminal defendant's right to inspect
tangible objects under R. Crim. P.
16(a)(1)(C) includes the right to have an
expert examine objects the prosecution
contends were used or possessed by the
defendant at the time of the commission of
the crime; (5) a criminal defendant who
desires expert inspection of a tangible
object in the prosecution's possession
should file a motion (i) setting forth the
circumstances of the proposed analysis,
(ii) identifying the expert who will
perform the analysis, and (iii) describing
the expert's qualifications and scientific
background; and (6) a trial court granting
a criminal defendant's motion for expert
inspection of evidence in the prosecution's
possession may provide for appropriate
safeguards, including the performance of
any testing at the State laboratory under
the supervision of the State's analyst.
State of West Virginia v. Larry Potter,
No. 23406 (W. Va. October 11, 1996)
(Cleckley, J.): 478 S.E.2d 742: ___ W.
Va. ___, 478 S.E.2d 742
Affirming the first-degree sexual assault
and sexual abuse by a custodian
convictions of a church pastor where the
defendant confessed to a police officer
and later to a minister, the Court held (1)
a suspect must make some affirmative
indication that he or she desires to speak
with an attorney or wishes to have counsel
appointed in order to assert the right to
counsel during a police interrogation; (2)
when a suspect voluntarily goes to the
police station for question at the request of
an investigating officer and gives
inculpatory statements despite the officer's
warnings regarding the severity of the
allegations against the suspect, the
statements are admissible as a voluntary
confession unless the suspect can show he
or she was in custody or that the
statements were otherwise involuntary;
and (3) a communication between a person
and a clergyman will be privileged under
W. Va. Code 57-3-9 if (i) the
communication was made to a clergyman,
(ii) the communication was in the form of
a confidential confession or other
communication, (iii) the confession or
confidential communication was made to
the clergyman in his or her professional
capacity, and (iv) the confession or
confidential communication was made in
the course of a religious discipline
enjoined by the rules of practice of the
clergyman's denomination.
State ex rel. Joseph Suriano, Jr., and the
Ohio County Education Association v.
Hon. Martin J. Gaughan, Judge of the
Circuit Court of Ohio County, and
Thomas J. Romano, M.D., No. 23555
(W. Va., December 5, 1996)(Cleckley,
J.): ___ W. Va. ___, 480 S.E.2d 548
In granting a writ of prohibition preventing
the respondent judge from conducting
further proceedings in a libel action arising
from comments by representatives of a
local teacher's union on defendant
doctor's withdrawal from participation in
state insurance programs following
enactment of the Omnibus Health Care
Act of 1989 (the Act), W. Va. Code, 16-29D-1 et seq., the Court ruled (1)
defendant, by writing letters to
newspapers, professional journals and
organizations, fellow physicians and
government officials in opposition to the
Act, became a limited purpose public
figure, required to prove by clear and
convincing evidence that petitioner's
comments were made with actual malice
or recklessness showing a total disregard
for the truth and (2) petitioner's statements
were substantially true, that is, they would
not have had a different effect on the mind
of the reader from that which the pleaded
truth would have produced, and were not,
therefore, actionable.
Katrina Rae Carter v. Henry Denzil
Carter, No. 23253 (W. Va., November
18, 1996)(McHugh, C. J.): ___ W. Va.
___, 479 S.E.2d 681
Reversing an order reducing a $16,800
child support arrearage by $4000 to punish
the mother for preventing visitation, the
Court ruled that even though a custodial
parent has interfered with or discouraged
visitation between a noncustodial parent
and the parties' children, a circuit court
does not have authority to reduce the
amount of accrued child support arrearages
owed by the noncustodial parent in order
the punish the custodial parent for such
interference with or discouragement of
visitation.
Scott E. Petruska v. Brigitte I. Petruska,
No. 22981 (W. Va., November 15,
1996)(Recht, J.):
Affirming, in part, and reversing, in part,
an alimony award in a divorce action, the
Court held that the circuit court (1) erred
in terminating rehabilitative alimony
during the dependency of the parties'
daughter without considering the disparity
in the incomes of the parties and
defendant's role as a stay-at-home mother;
(2) did not abuse its discretion in not
allowing plaintiff ex-husband credit for
temporary support payments which
exceeded the amount of the final support
awarded; and (3) did not err in not
requiring plaintiff to pay $850 per month
in additional child support to support his
daughter's swimming training.
Jacqueline Page v. Columbia Natural
Resources, Inc., and R. Neal Pierce, No.
23469 (W. Va., December 6, 1996)
(Albright, J.): ___ W. Va. ___, 480
S.E.2d 817
Affirming a $95,0000 judgment for the
plaintiff in a Harless retaliatory discharge
action arising from plaintiff's testimony in
another wrongful discharge action on
behalf of the former employee, the Court
ruled that (1) it is against the substantial
public policy of West Virginia to
discharge an at-will employee because
such employee has given or may be called
to give truthful testimony in a legal action;
(2) once the plaintiff in a wrongful
discharge action has established that
discharge was motivated by an unlawful
factor contravening a substantial public
policy, the defendant will be liable unless
it proves by a preponderance of the
evidence that the same result would have
occurred even in the absence of the
unlawful motive; (3) plaintiff's
unsuccessful prosecution of an
unemployment compensation claim did not
bar her Harless action.
David J. Hosaflook v. Kathryn Hosaflook
v. The Consolidation Coal Company,
Ronald Stovash and Thomas Simpson,
No. 23045 (W. Va., December 10,
1996)(Albright, J.):
On rehearing, the Court reversed summary
judgment for the defendant employer in an
action for handicap discrimination,
wrongful discharge, and the tort of outrage
and remanding for further proceedings,
ruling that (1) there was sufficient
evidence of handicap discrimination under
the West Virginia Human Rights Act, W.
Va. Code, 5-11-1, et seq., to warrant trial
where plaintiff's participation in the
employer's salary continuation plan was
terminated when his employment was
terminated because of his loss of vision;
(2) where the discriminatory conduct
complained of was prohibited by the
Americans with Disabilities Act (ADA),
42 U.S.C. 12101, et seq., then the
Employment Retirement Income Security
Act (ERISA), 29 U.S.C. 1001, et seq.,
did not pre-empt an action for the same
conduct under the West Virginia Human
Rights Act, W. Va. Code, 5-11-1, et seq.;
and (3) on remand plaintiff should also be
allowed to adduce evidence as to his claim
for the tort of outrage.
Belinda Conrad v. ARA Szabo, the West
Virginia Regional Jail and Correctional
Facility Authority and Edward Rudloff,
No. 23304 (W. Va., December 5,
1996)(Cleckley, J.): ___ W. Va. ___, 480
S.E.2d 801
Affirming, in part, and reversing, in part
the dismissal of the Jail Authority and an
individual correctional officer and
summary judgment for plaintiff's
employer, a food services contractor, in an
action for hostile environment sexual
harassment, retaliatory discharge and
breach of contract arising from termination
of plaintiff's employment as a cook
supervisor at the Eastern Regional Jail,
the Court ruled (1) the evidence
established a prima facie case of hostile
environment sexual harassment against
plaintiff's employer, precluding summary
judgment; (2) there was sufficient
evidence that plaintiff's employer knew of
her complaints about sexual harassment
and that they were connected to her
discharge to warrant submission to the jury
of her claim for retaliatory discharge
against the employer; (3) the correctional
officer was not an "employer" under W.
Va. Code, 5-11-9(3), so as to be liable to
plaintiff for sexual discrimination, but was
subject to liability for unlawful retaliation
pursuant to W. Va. Code, 5-11-9(7) to the
extent that he aided and abetted plaintiff's
employer in sexual discrimination; and (4)
the Jail Authority, though not plaintiff's
employer, was liable for sexual
discrimination and retaliatory discharge to
the extent that it knew of the sexual
harassment she suffered and that the
correctional officer acted as its agent in
unlawfully recommending termination of
her employment.
Phyllis Barlow v. Hester Industries, Inc.,
et al., No. 23305 (W. Va., November 15,
1996)(Cleckley, J.): ___ W. Va. ___, 479
S.E.2d 628
Affirming a judgment for the defendant
employer in an action for age and sex
discrimination under the West Virginia
Human Rights Act and for retaliatory
discharge, the Court held (1) the circuit
court did not abuse its discretion in not
bifurcating for trial under R.Civ.P. 42
plaintiff's discrimination and retaliatory
discharge claims from defendants'
counterclaim for breach of contract; (2) the
court did not abuse its discretion in
excluding evidence of the individual
defendants' drinking habits and sexual or
romantic relationships with employees; (3)
the court did not err in admitting evidence
of misconduct by plaintiff not discovered
by defendants until after plaintiff was fired
where the evidence was admitted for the
limited purpose of determining the
remedies available to plaintiff and not to
show that defendant would have had a
justified reason to discharge plaintiff
separate and apart from the alleged
discriminatory firing; and (4) the jury
instructions covering "at-will"
employment, burden of proof, defendant's
reasons for dismissal, and pretext were
either proper or any error therein was
waived by plaintiff's failure to object at
trial.
State ex rel. Latta Boan v. Andrew
Richardson, Workers' Compensation
Commissioner, and Songer Construction
Corp., No. 23667 (W. Va., December 13,
1996)(Albright, J.):
Granting a writ of prohibition to prevent
enforcement of an order by the respondent
Workers' Compensation Commissioner
reducing petitioner's permanent total
disability benefits due to petitioner's
receipt of old age Social Security benefits
pursuant to W. Va. Code, 23-4-23(b), the
Court held that the statute violates the
equal protection provisions of W. Va.
Const., Art. III, Sec. 10, insofar as it
creates a classification of "old age social
security recipients" which, as applied,
bears no reasonable relationship to the
proper governmental purpose of avoiding
duplication of benefits and treats persons
within the class who receive permanent
total disability benefits differently from
those within the class who receive
permanent partial disability benefits.
William A. Wilkinson and Tereca
Wilkinson v. Dick Bowser and Barbara
Bowser, dba Bowser Construction, No.
23295 (W. Va., December 19,
1996)(Workman, J.):
Affirming a $23,525 verdict for plaintiffs
in an action for breach of contract to
perform home improvements, the Court
ruled that evidence of defendant's
conviction of a misdemeanor, obstruction
of justice, was admissible under W. Va. R.
E. 609(a)(2)(B) to impeach defendant's
credibility where the underlying facts
showed that the crime involved dishonesty
or false statement.
State of West Virginia v. Julie Wyatt, No.
23260 (W. Va., December 12,
1996)(Albright, J.):
Reversing defendant's conviction of
murder of a child by failure to provide
medical care and remanding for a new
trial, the Court held (1) W. Va. Code, 61-8D-2(b), defining the crime charged, is not
unconstitutionally vague; (2) the
instructions defining the offense charged
were inaccurate, misleading and
confusing; and (3) the circuit court did not
err in excluding defendant's expert
testimony on battered woman syndrome to
negate defendant's intent to commit the
crime.
Phyllis Barlow v. Hester Industries, Inc.,
et al., No. 23305 (W. Va., November 15,
1996)(Cleckley, J.): __ W. Va. ___, 479
S.E.2d 628
Affirming a judgment for the defendant
employer in an action for age and sex
discrimination under the West Virginia
Human Rights Act and for retaliatory
discharge, the Court held (1) the circuit
court did not abuse its discretion in not
bifurcating for trial under R.Civ.P. 42
plaintiff's discrimination and retaliatory
discharge claims from defendants'
counterclaim for breach of contract; (2) the
court did not abuse its discretion in
excluding evidence of the individual
defendants' drinking habits and sexual or
romantic relationships with employees; (3)
the court did not err in admitting evidence
of misconduct by plaintiff not discovered
by defendants until after plaintiff was fired
where the evidence was admitted for the
limited purpose of determining the
remedies available to plaintiff and not to
show that defendant would have had a
justified reason to discharge plaintiff
separate and apart from the alleged
discriminatory firing; and (4) the jury
instructions covering "at-will"
employment, burden of proof, defendant's
reasons for dismissal, and pretext were
either proper or any error therein was
waived by plaintiff's failure to object at
trial.
Wheeling Park Comm'n v. Hotel and
Restaurant Employees, International
Union, etc., et al., No. 23448 (W. Va.,
November 18, 1996)(McHugh, C.J.): ___
W. Va. ___, 479 S.E.2d 876
Reversing an injunction restricting
leafleting, picketing, and other union
organizing activities at Oglebay Park, the
Court ruled that while the standard used in
evaluating the constitutionality of
restrictions in a statute, ordinance, or
regulation on content-neutral speech in a
public forum under W. Va. Const., art III,
7, is whether the time, place, and manner
of the restrictions were narrowly tailored
to serve a significant government interest
and leave open ample alternative channels
of communication, the constitutionality of
such restrictions in an injunction is tested
by a more stringent standard, i.e., whether
the restrictions burden no more speech
than necessary to serve a significant
government interest.
Sandra Michael, as Executrix of the
Estate of Donald Kelly Michael, and
Sandra Michael , Individually v. Marion
County Board of Education, No. 23113,
and Allen Ayersman v. John Pyles,
Florence Merow, and Elizabeth Martin,
in their capacities as Commissioners
constituting the County Commission of
Monongalia County, and Joseph Bartolo,
in his capacity as Sheriff of Monongalia
County, No. 23320, and Shawn McKemy
v. City of Charleston, a municipal
corporation, and City of Charleston, a
municipal corporation, d/b/a Metro-911,
No. 23362 (W. Va., December 9,
1996)(Workman, J.):
Affirming dismissal of plaintiffs'
Mandolidis actions against a county board
of education, a county commission, and a
municipality, the Court held that the
Governmental Tort Claims and Insurance
Reform Act, W. Va. Code, 29-12A-5(a)(11), extends governmental immunity
to political subdivisions of the State from
deliberate intent actions brought by injured
employees under the Worker's
Compensation Act, W. Va. Code, 23-4-2(c)(2).
Scott Hutchinson v. City of Huntington,
No. 23332 (W. Va., November 15,
1996)(Cleckley, J.): ___ W. Va.__, 479
S.E.2d 649
Reversing a $25,000 judgment for plaintiff
landowner in an action raising state and
federal claims against the City for damages
plaintiff sustained due to a four-month
delay in issuing a building permit, the
Court held that, with regard to the state
claims, the City was immune from suit for
loss occasioned by the exercise of its
licensing power under W. Va. Code, 29-12A-5(a), and that plaintiff failed to
demonstrate that the delay resulted in
deprivation of a constitutional right which
would support recovery under Title 42,
U.S.C.A. 1983 (1979).
Jeffrey L. Marlin, Sr., et al. v. Bill Rich
Construction, Inc., et al., No. 23121 (W.
Va., November 15, 1996)(Albright, J.):
Reversing summary judgment in favor of
the Wetzel County Board of Education in
a civil action brought by construction
workers and their families for emotional
distress resulting from the workers'
exposure to asbestos during renovation of
a high school, the Court held that a claim
of emotional distress resulting from fear of
contracting an occupational disease in the
future does not entitle a claimant to
recover benefits under the Workers'
Compensation Act; consequently the
emotional injury is not "covered" by the
workers' compensation law within the
meaning of W. Va. Code, 29-12A-5(a)(11)
such as to render the Board immune from
tort liability in a civil action in circuit
court.
In re Jonathan G., No. 23465 (W. Va.,
December 18, 1996)(Workman, J.):
Affirming the circuit court's order
restoring custody of an abused/neglected
child to his natural parents, but remanding
for further proceedings on whether the
child's foster parents should have
visitation, the Court ruled (1) under W.
Va. Code, 49-6-2(c) and Bowens v.
Maynard, 174 W. Va. 184, S.E.2d 145
(1984), foster parents may have a limited
right to participate in abuse and neglect
proceedings, provided that their
involvement is separate and distinct from
the fact-finding portion of the proceedings
and is structured to provide pertinent
information about the child; (2) the level
and type of participation by foster parents
in abuse and neglect proceedings is left to
the sound discretion of the circuit court,
with due consideration of the length of
time the foster parents had physical
custody and the relationship that has
evolved between them and the child; (3)
the proceedings were properly dismissed
after the State and DHHR withdrew the
petition and agreed that there evidence that
the conditions leading to the abuse could
be corrected; (4) the circuit court's
removal of DHHR as the child's case
manger for its failure to prepare a
reunification case plan did not absolve the
Department duty to formulate such a plan;
(5) the role of the prosecuting attorney vis-a-vis DHHR in abuse and neglect cases is
that of attorney-client, and the prosecutor
has no independent right to formulate and
advocate positions separate from those of
DHHR; and (6) a child has a right to
continued association with individuals
with whom he has formed a close
emotional bond, including foster parents,
where continued contact is in the best
interests of the child.
State ex rel. West Virginia Department of
Health and Human Resources, Legal
Custodian of Stephen B. and Justin B.,
Juveniles, v. Honorable John R. Frazier,
Judge of the Circuit Court of Mercer
County, No. 23530 (W. Va., December
17, 1996)(Workman, J.):
Denying a writ of prohibition sought by
DHHR to prevent placement of status
offender juveniles in specific facilities,
the Court held that (1) W. Va. Code, 49-5-13(b)(1996) expressly grants the circuit
court authority to make facility-specific
placements of juveniles; (2) under W. Va.
Code, 49-5B-7, DHHR has a mandatory
duty to prepare and submit to the
Legislature, the Governor, and this Court,
an annual report analyzing and evaluating
the effectiveness of Department programs
and services; (3) notwithstanding Facilities
Review Panel v. Coe, 187 W. Va. 541, 420
S.E.2d 532 (1992), stating that a juvenile
facility cannot be forced to accept
juveniles beyond its licensed capacity, a
circuit court has authority to order
placement in a facility at capacity for
several days to allow DHHR to decide
whether to grant a waiver or relocate
juveniles at the facility to avoid
overcrowding; (4) DHHR has a
responsibility to construct or establish
necessary in-state facilities for juvenile
care and treatment; and (5) while a circuit
court should give preference to in-state
placement of juveniles, if no in-state
facility can provide the services and/or
security necessary to deal with the
juvenile's specific problem, the court may,
after making supporting findings on the
record, order out-of-state placement.
State ex rel. East End Association, J.
Michael Mollohan and Carter Zerbe v.
Eli McCoy, Director of the Department of
Environmental Protection, Gretchen
Lewis, Secretary, Department of Health
and Human Resources, and Charleston
Area Medical Center, No. 23746 (W. Va.
December 16, 1996)(McHugh, C.J.):
Granting a moulded writ of mandamus and
injunctive relief preventing the operation,
but not the construction, of a medical
waste incinerator by CAMC, the Court
ruled that (1) CAMC was not required to
obtain a construction permit under the
Solid Waste Management Act, W. Va.
Code, 22-15-10(b) in addition to the
construction permit it obtained pursuant to
the Air Pollution Control Act, W. Va.
Code, 22-5-11, but was required to obtain
separate operation permits under the Solid
Waste Management Act and the Medical
Waste Act, W. Va. Code, 20-5J-5(b) to
operate the facility; and (2) the Medical
Waste Act, W. Va. Code, 20-5J-6(a)(9),
requires the DHHR to promulgate
regulations implementing the Act,
including, but not limited to, procedures
for public participation in the permit
application process for noncommercial
infectious medical waste management
facilities.
Jon R. Goodwin and Diana L. Goodwin
v. Robert and Florence Hale, No. 23265
and Patwil Homes, Inc., etc., v. Robert
Smith, dba R&S Construction, No. 23266
(W. Va., December 13, 1996)(Recht, J.):
Reversing a $330,000 verdict against
defendant contractor for injuries received
by plaintiff employee of an independent
contractor, the Court held that the circuit
court's erroneous instructions on the
heightened standard of care in deliberate
intention actions, rather than the ordinary
duty of care in negligence actions, so
confused the jury that the case must be
remanded for a new trial under the correct
legal standard.
Betty Cordial v. Ernst & Young, et al., v.
Hanley Clark, No. 23088 (W. Va.,
December 13, 1996)(Albright, J.):
Reversing a judgment for defendant
accounting firm in an action for fraud,
breach of contract and negligent
representation brought by the deputy
receiver for an insolvent insurance
company and remanding for a new trial,
the Court held, inter alia, (1) plaintiff,
appointed by the Insurance Commissioner
as a special deputy commissioner for the
purposes of carrying out the
Commissioner's duties as receiver under
W. Va. Code, 33-27-10, has standing to
bring an action to vindicate the rights of
interested parties; (2) the fraud instructions
were confusing and misleading insofar as
they required the jury to find that
defendants knew their statements as to the
financial condition of the insurer were
false at the time they were made; and (3)
instructions allowing the jury to presume
that the Insurance Commission relied its
own investigation in not acting to protect
policyholders, creditors and shareholders,
rather than on the representations of
defendants were incorrect, confusing and
misleading.
State of West Virginia v. Scott
Blankenship, No. 23114 (W. Va.,
December 10, 1996)(Recht, J.):
Reversing defendant's conviction of third
offense DUI and remanding for a new
trial, the Court held, inter alia, that an
instruction allowing a jury to convict a
defendant charged with driving under the
influence in violation of W. Va. Code,
17C-5-2(d)(1)(A)(2), based on a finding
that the defendant drove with a blood
alcohol concentration of ten hundredths of
one percent or more, by weight, in
violation of W. Va. Code, 17C-5-2(d)(E)(2), improperly informs the jury
that they may return a verdict of guilty for
acts not charged in the indictment.
State of West Virginia v. Charles Rhea
Hinkle, No. 23424 (W. Va., October 31,
1996)(Cleckley, J.):
Reversing the defendant's conviction for
involuntary manslaughter while driving a
motor vehicle in an unlawful manner, the
Court held (1) unconsciousness (or
automatism) is not part of the insanity
defense, but a separate defense which may
eliminate the voluntariness of a criminal
act, rather than negating the mental
element of a crime, and requires a separate
instruction; (2) an instruction on the
defense of unconsciousness is warranted
where the defendant alleges that he was
rendered unconscious at the time of the
crime by reason of a then-undiagnosed
brain disorder affecting the reticular
activating system of his brain; and (3) an
instruction on the defense of
unconsciousness should charge the jury
that even if it believes there is a reasonable
doubt about the consciousness of the
defendant at the time of the crime, a
defendant who voluntarily operates a
motor vehicle with knowledge of a pre-existing condition which may result in loss
of consciousness or of prior recurring
episodes of loss of consciousness may be
guilty of reckless disregard for the safety
of others.
Stevie Ray Trent and Pamela E. Trent,
his wife v. Tammy L. Cook and
Continental Casualty Co, No. 23077 (W.
Va., December 17, 1996)(Workman, J.):
On rehearing, the Court reversed a verdict
against the county's underinsured motorist
carrier for injuries received by plaintiff
deputy when he was struck by a car while
investigating an auto accident, holding that
underinsured motorist coverage was not
available to plaintiff where he was not
occupying the covered county vehicle at
the time of the accident and where plaintiff
failed to rebut a presumption that the
county's underinsured motorist coverage
was a custom-designed policy properly
excluding coverage for any other "use" of
the vehicle and for injuries covered by
workers' compensation, such presumption
arising from the fact that the issue was not
raised prior to rehearing and the policy
was substantially similar to that of the
custom-designed policy in Cook v.
McDowell County Emergency Ambulance
Service Authority, 191 W. Va. 256, 445
S.E.2d 197 (1994)
Alton E. Dodrill v. Nationwide Mutual
Insurance Company, No. 23090 (W. Va.
October 15, 1996) (Albright, J.):
The Court affirmed a judgment of $5,000
in attorney fees, $2,000 for annoyance and
inconvenience, and $5,000 for punitive
damages, against an insurer in a bad faith
settlement practices case, holding that in
order to maintain a private cause of action
under W. Va. Code 33-11-4(9) in the
settlement of a single insurance claim, the
evidence must establish (i) the conduct
constitutes more than a single violation of
W. Va. Code 33-11-4(9), (ii) the
violations arise from separate and discrete
acts or omissions in the settlement of the
claim, and (iii) the violations arise from a
habit, custom, usage, or business policy of
the insurer, such that the finder of fact is
able to conclude, viewing the conduct as a
whole, that the practice or practices are
sufficiently pervasive or sanctioned by the
insurer that the conduct can be considered
a "general business practice."
State of West Virginia v. Dominique
Rahman, No. 23329 (W. Va., December
20, 1996)(Workman, J.):
Remanding defendant's conviction of four
felony counts of possession of heroin with
intent to deliver for a hearing under Batson
v. Kentucky, 476 U.S. 79 (1986), the Court
held , inter alia, that (1) the fact that a
black juror remained on the jury panel did
not preclude defendant from claiming
racial discrimination in jury selection
under Batson arising from a preemptive
strike of another black juror, and (2) in
resolving defendant's claim of racial
discrimination under Batson, the circuit
court should have considered defendant's
assertion that a similarly situated white
juror was not challenged and should have
required the State to articulate a credible
reason for disparate treatment of similarly
situated black and white jurors.
State ex rel. West Virginia Department of
Health and Human Resources, legal
custodian of Stephen B. and Justin B.,
juveniles, v. Honorable John R. Frazier,
Judge of the Circuit Court of Mercer
County, No. 23530 (W. Va., December
17, 1996)(Workman, J.):
Denying a writ of prohibition sought by
DHHR to prevent placement of status
offender juveniles in specific facilities,
the Court held that (1) W. Va. Code, 49-5-13(b)(1996) expressly grants the circuit
court authority to make facility-specific
placements of juveniles; (2) under W. Va.
Code, 49-5B-7, DHHR has a mandatory
duty to prepare and submit to the
Legislature, the Governor, and this Court,
an annual report analyzing and evaluating
the effectiveness of Department programs
and services; (3) notwithstanding Facilities
Review Panel v. Coe, 187 W. Va. 541, 420
S.E.2d 532 (1992), stating that a juvenile
facility cannot be forced to accept
juveniles beyond its licensed capacity, a
circuit court has authority to order
placement in a facility at capacity for
several days to allow DHHR to decide
whether to grant a waiver or relocate
juveniles at the facility to avoid
overcrowding; (4) DHHR has a
responsibility to construct or establish
necessary in-state facilities for juvenile
care and treatment; and (5) while a circuit
court should give preference to in-state
placement of juveniles, if no in-state
facility can provide the services and/or
security necessary to deal with the
juvenile's specific problem, the court may,
after making supporting findings on the
record, order out-of-state placement.
State of West Virginia v. Brian Keith
Hosea, No. 23674 (W. Va., December 16,
1996)(Recht, J.):
Affirming juvenile defendant's conviction
of second degree murder as an adult
following a conditional guilty plea, the
Court held (1) before accepting a
conditional plea under W. Va. R. Crim. P.
11(a)(2), the circuit court and the
prosecutor must assure that the pretrial
issues reserved for appeal are case
dispositive and are capable of being
reviewed by this Court without a full trial
by making specific findings on the record
of the issues to be resolved on appeal and
a further specific finding that those issues
would effectively dispose of the
indictment or suppress essential evidence
which would substantially affect the
State's ability to prosecute the defendant
as charged in the indictment; (2) this
Court's review of whether a confession
was obtained as a result of delay in
presentment of a juvenile to a referee,
circuit judge or magistrate is plenary,
independent, and de novo, while the circuit
court's factual findings upon the question
of admissibility are to be reviewed under
the deferential clearly erroneous standard;
(3) the defendant's confession was
admissible at the juvenile transfer hearing
where the primary purpose of the delay in
presenting him to a judicial officer was not
to obtain a confession; and (4) even in the
absence of defendant's confession, there
was sufficient probable cause to transfer
the defendant to adult jurisdiction.
State ex rel. Larry Warner v. The
Jefferson County Commission, No. 23106
(W. Va., December 13, 1996)(Recht, J.):
Reversing denial of a writ of mandamus to
compel the county commission to award
$95,345 in attorney fees incurred by a
director of the county solid waste authority
in successfully defending criminal charges
associated with the operation of the county
landfill and remanding for further
proceedings, the Court ruled that (1) the
circuit court failed to determine whether
the appellant incurred a loss in the
discharge of his official duties in a matter
in which the county has an interest and
whether he acted in good faith, as required
by Powers v. Goodwin, 170 W. Va. 151,
291 S.E.2d 466 (1982), and (2) the county
commission had a clear legal duty to
subsidize the functions of the solid waste
authority due to the interrelationship of the
two public agencies for the purpose of
disposing of the county's solid waste,
provided that the appellant satisfies the
other requirements of Powers.
State ex rel. the Charleston Building
Commission, a public corporation v.
Walter B. Dial, Jr., Chairman pro tem,
etc., No. 23582 (W. Va., December 11,
1996)(Cleckley, J.): ___ W. Va. ___, 479
S.E.2d 695
In granting a writ of mandamus to compel
the chairman pro tem of the Commission
to execute an agreement to employ a
financial advisor and to issue bonds to
finance the State's lease-purchase of a
vacant building, the Court held (1)
respondent, as chairman pro tem of the
Commission, has the same duties and
responsibilities as the duly elected
chairman of the Commission, including the
authority to execute the agreement on
behalf of the Commission; (2) under W.
Va. Code, 8-12-5 and the city charter, the
Commission has the authority to acquire
and renovate a building and lease it to the
State under a lease-purchase agreement;
(3) neither the Commission's issuance of
revenue bonds, certificates of participation
or other financial obligations to finance the
acquisition and renovation of the building,
nor the proposed lease-purchase agreement
violates W. Va. Const, art. X, 8,
prohibiting the municipality from incurring
excessive debt; and (4) use of rental
payments to retire the bonds issued by the
Commission does not violate W. Va.
Const, art X, 4, prohibiting the State
from contracting debt, or W. Va. Const.,
art. X, 6, prohibiting pledging the credit
of the State to an individual or public
body.
State ex rel. Marie McMahon v.
Honorable John M. Hamilton, Special
Judge of the Circuit Court of Morgan
County, John Adams, et al., No. 23422
(W. Va., December 13, 1996)(McHugh,
C.J.):
Moulding a writ of prohibition requested
by petitioner to prevent enforcement of an
order requiring her to undergo a
psychiatric examination to determine
whether she is mentally competent to
proceed with the underlying pro se civil
action, the Court ruled that a substantial
question existed as to petitioner's mental
competency to understand the meaning
and effect of the multitude of legal
proceedings she has instituted in the last
nine years, constituting good cause for
requiring her to undergo a mental
examination in order to determine whether
a guardian ad litem should be appointed to
protect her interests under W. Va. R. Civ.
P. 17(c), but that the report of such mental
examination should be provided only to
the circuit court, who may release the
report to the parties only if it is sufficiently
relevant to a proceeding before the court to
outweigh the importance of maintaining
confidentiality under W. Va. Code, 27-3-1(a).
Lonnie Cole, Administrator of the Estate
of Stephen Brant Cole II v. Jack Douglas
Fairchild, Jr., Flat Top Lake Association,
a West Virginia corporation, and Myrleen
B. Fairchild, Executrix of the Estate of
Jack R. Fairchild, No. 23081 and Lonnie
Cole, Administrator of the Estate of
Stephen Brant Cole II v. Jack Douglas
Fairchild, Jr., and Flat Top Lake
Association, a West Virginia corporation,
No. 23111 (W. Va., December 20,
1996)(Workman, J.):
Affirming, in part, and reversing, in part, a
$95,000 verdict in a wrongful death action
arising out of the death of a six-year-old in
a motorcycling accident, the Court held
that (1) decedent, who was invited by
defendant Fairchild to ride on property
owned by Fairchild's father, was a
licensee to defendant homeowner's
association owed only a duty to refrain
from inflicting willful and wanton injuries,
(2) the alleged negligence of Fairchild, an
emancipated adult and social guest on the
property, in not supervising decedent
cannot be imputed to Fairchild's father,
the landowner, under an agency theory in
the absence of evidence that Fairchild's
father had any control over Fairchild or
decedent; (3) the parental immunity
doctrine did not prohibit the jury from
considering the comparative negligence of
plaintiffs, the parents of decedent, in
causing the death of the child, and
remanded for further proceedings.
In re Jonathan G., No. 23465 (W. Va.,
December 18, 1996)(Workman, J.):
Affirming the circuit court's order
restoring custody of an abused/neglected
child to his natural parents, but remanding
for further proceedings on whether the
child's foster parents should have
visitation, the Court ruled (1) under W.
Va. Code, 49-6-2(c) and Bowens v.
Maynard, 174 W. Va. 184, S.E.2d 145
(1984), foster parents may have a limited
right to participate in abuse and neglect
proceedings, provided that their
involvement is separate and distinct from
the fact-finding portion of the proceedings
and is structured to provide pertinent
information about the child; (2) the level
and type of participation by foster parents
in abuse and neglect proceedings is left to
the sound discretion of the circuit court,
with due consideration of the length of
time the foster parents had physical
custody and the relationship that has
evolved between them and the child; (3)
the proceedings were properly dismissed
after the State and DHHR withdrew the
petition and agreed that there evidence that
the conditions leading to the abuse could
be corrected; (4) the circuit court's
removal of DHHR as the child's case
manger for its failure to prepare a
reunification case plan did not absolve the
Department duty to formulate such a plan;
(5) the role of the prosecuting attorney vis-a-vis DHHR in abuse and neglect cases is
that of attorney-client, and the prosecutor
has no independent right to formulate and
advocate positions separate from those of
DHHR; and (6) a child has a right to
continued association with individuals
with whom he has formed a close
emotional bond, including foster parents,
where continued contact is in the best
interests of the child.
Shirley V. Overfield v. Tammy Lynn
Collins, No. 23046 (W. Va., December 6,
1996)(Recht, J.):
Reversing the circuit court's denial of
defendant natural mother's petition to
regain custody of her sons from her
parents with whom the children have
resided since 1991, the Court ruled that (1)
a non-parent attempting to wrest custody
of a child from a natural parent must file a
petition setting forth the reasons for the
change of custody and serve the petition,
together with reasonable notice of the time
and place that the petition will be heard,
on the natural parent - the natural parent
must be afforded the opportunity to
present evidence against changing custody
and to obtain a decision from a neutral,
detached person or tribunal; (2) a natural
parent who seeks to regain custody of a
child transferred to the temporary custody
of a third person has the burden of proving
by clear and convincing evidence that he
or she is a fit parent; thereafter, the burden
shifts to the third person to prove by clear
and convincing evidence that a change of
custody would constitute a significant
detriment to the child, overruling
McCartney v. Coberly, ___ W. Va. ___,
250 S.E.2d 777 (1978); (3) a natural parent
who seeks to regain custody of a child
transferred to the permanent custody of a
third person has the burden of proving by
clear and convincing evidence that he or
she is a fit parent and that transfer of
custody would constitute a significant
benefit to the child, overruling State ex rel.
Harmon v. Utterback, 144 W. Va. 419,
108 S.E.2d 521 (1959); (4) where a
document transferring custody of a child
from a natural parent to a third person fails
to specify whether such transfer of custody
is temporary or permanent, it is presumed
that the transfer is temporary, and the third
person has the burden of proving by clear
and convincing evidence the intention of
the natural parent to transfer permanent
custody. The Court specified that on
remand, the party who is not awarded
custody should be allowed to continue a
relationship with the children and that a
guardian ad litem should be appointed for
the children.
In re: Katie S. and David S., No. 23584
(W. Va., November 14, 1996)(Recht, J.):
___ W. Va. ___, 479 S.E.2d 589
Affirming, in part, and reversing, in part,
an order terminating the mother's parental
rights for her failure to supervise and
provide for the children and referring the
children for adoption, the Court ruled that
(1) when it appears that one parent has
neglected or abused the children and the
other has abandoned them, both
allegations should be included in the abuse
and neglect petition filed under W. Va.
Code, 49-6-1(a); (2) the mother failed to
demonstrate any reasonable likelihood that
her parenting skills would improve so as to
warrant additional improvement periods or
a less restrictive disposition, such as long-term foster care; and (3) the circuit court
erred in not considering the possibility of
post-termination visitation between the
mother and the children.
State ex rel. Judson White v. Larry F.
Parsons, Administrator, South Central
Regional Jail, No. 23542 (W. Va.,
December 9, 1996)(Albright, J.):
Granting a moulded writ of prohibition
preventing enforcement of an absolute ban
on tobacco products at all regional jails,
the Court concluded that administrative
regulations promulgated by the Jail and
Correctional Facility Standards
Commission were unenforceable where
the Commission failed to conduct a good
faith review of substantial objections to the
tobacco ban made by the Commissioner of
Corrections, an interested party, and to
reflect the substance of such review on the
rule-making record. The Court stated that
appropriate replacement regulations might
be proposed and adopted provided the
Commission gives adequate consideration
to favorable and adverse comments, to the
status of pretrial detainees, to constraints
on disparate treatment of similarly situated
parties, and to other appropriate factors,
including legitimate penological
objectives.
State ex rel. William C. Forbes v.
Honorable Gaston Caperton, Governor,
State of West Virginia, and West Virginia
Board of Parole and John Wayne Ford,
No. 23575 and State ex rel. William C.
Forbes, Prosecuting Attorney in and for
Kanawha County v. Honorable Gaston
Caperton, Governor, State of West
Virginia, and West Virginia Board of
Parole, No. 23577, and State ex rel.
William D. Moomau, Hardy County
Prosecuting Attorney v. Gaston Caperton,
Governor, State of West Virginia, and
West Virginia Parole Board and Robert
Meade Leach, No. 23576, and State ex
rel. William D. Moomau, Hardy County
Prosecuting Attorney v. Gaston Caperton,
Governor, State of West Virginia, and
West Virginia Parole Board, No. 23578
(W. Va., December 19, 1996)(Workman,
J.):
Reversing writs of mandamus issued to
prevent the Governor from commuting the
life-without-mercy sentences of two
convicted murderers to life-with-mercy,
making them eligible for parole, the Court
held that under W. Va. Const., art. VII,
sec. 11, granting the Governor the power
"to commute capital punishment and . . . to
grant reprieves and pardons after
conviction . . .", the Governor's general
power to pardon includes the power to
commute punishment in non-capital as
well as capital cases.
Jeffrey McDaniel v. Irene Addair Kleiss,
No. 23115, and Jeffrey McDaniel v. Irene
Adair Kleiss and Aetna, the Standard
Fire Insurance Co., No. 23328 (W. Va.,
December 9, 1996)(Workman, J.):
Reversing a $154,823 verdict for plaintiff
in a personal injury action arising from an
auto accident, the Court held that (1) the
circuit court invaded the deliberative
process of the jury in violation of W. Va.
R. E. 606(b) by increasing the jury award
of $92,893 based on juror testimony or
proffer of evidence that the jury wrongly
deducted the plaintiff's apportionment of
fault from the total amount of damages it
found plaintiff suffered in arriving at its
damage award, and (2) the circuit court's
ruling requiring plaintiff to post bond
before distribution of the award was
interlocutory in nature and not appealable.
Shirman Dimon v. Fahmi Mansy and
Tamam Mansy, No. 23071 (W. Va.,
November 15, 1996)(Cleckley, J.): ___
W. Va. ___, 479 S.E.2d 339
Reversing the circuit court's refusal to
reinstate plaintiff's personal injury action,
dismissed for failure to prosecute under
W. Va.R.Civ.P. 41(b), the Court ruled that
before a court may dismiss an action under
Rule 41(b), all parties of record must be
given notice and an opportunity to be
heard, overruling, in part, Brent v. Board
of Trustees, 173 W. Va. 36, 311 S.E.2d
153 (1983), and announced detailed
guidelines to be followed by the parties
and the court in handling such dismissals.
Phyllis Barlow v. Hester Industries, Inc.,
et al., No. 23305 (W. Va., November 15,
1996)(Cleckley, J.): ___ W. Va. ___, 479
S.E.2d 628
Affirming a judgment for the defendant
employer in an action for age and sex
discrimination under the West Virginia
Human Rights Act and for retaliatory
discharge, the Court held (1) the circuit
court did not abuse its discretion in not
bifurcating for trial under R.Civ.P. 42
plaintiff's discrimination and retaliatory
discharge claims from defendants'
counterclaim for breach of contract; (2) the
court did not abuse its discretion in
excluding evidence of the individual
defendants' drinking habits and sexual or
romantic relationships with employees; (3)
the court did not err in admitting evidence
of misconduct by plaintiff not discovered
by defendants until after plaintiff was fired
where the evidence was admitted for the
limited purpose of determining the
remedies available to plaintiff and not to
show that defendant would have had a
justified reason to discharge plaintiff
separate and apart from the alleged
discriminatory firing; and (4) the jury
instructions covering "at-will"
employment, burden of proof, defendant's
reasons for dismissal, and pretext were
either proper or any error therein was
waived by plaintiff's failure to object at
trial.
State ex. rel. Appalachian Power Co., et
al. v. Hon. A. Andrew MacQueen, III,
etc., et al., No. 23402 (W. Va., November
14, 1996)(Recht, J.): ___ W. Va. ___, 479
S.E.2d 300
Denying a writ of prohibition to prevent
the circuit court from consolidating over
1000 civil actions claiming physical
impairment from exposure to asbestos
and/or asbestos-containing products, the
Court ruled that the circuit court's trial
management plan requiring consolidation
for purposes of presenting to a single jury
the questions of whether the defendant
premises owners had failed to maintain a
reasonably safe workplace and, if so, for
how long, was a creative, innovative trial
management plan, designed to achieve an
orderly, reasonably swift and efficient
disposition of mass liability cases which
did not trespass on the procedural due
process rights of the parties.
Tomeka L. Robinson Harrison,
Administratrix of the Estate of Meagan
Lea Robinson, et al. v. Cee Ann Davis,
M.D., et al., No. 23287 (W. Va. October
11, 1996) (Cleckley, J.): 478 S.E.2d 104:
___ W. Va. ___, 478 S.E.2d 104
Affirming the dismissal of a medical
malpractice case instituted more than two
years after the death of the decedent
allegedly because the plaintiff mother did
not discover the malpractice until her
obstetrician reviewed an autopsy report
prepared at the time of the death in
conjunction with the mother's subsequent
pregnancy, the Court held (1) a trial court
may look beyond technical nomenclature
when ruling on a R. Civ. P. 12(b)(6)
motion, particularly where the plaintiff
attempts to orally explain the nature of the
complaint because such explanation may
constitute an admission, and (2) when a
plaintiff opposes a R. Civ. P. 12(b)(6)
motio67n by claiming that additional
discovery is appropriate, the plaintiff must
(i) articulate some plausible basis for the
assertion that specified "discoverable"
material facts likely exist which have not
been discovered, (ii) demonstrate some
realistic prospect that the material facts
can be obtained within a reasonable time,
(iii) demonstrate that the material facts
will, if obtained, be sufficient to create
genuine issues of material fact, and (iv)
demonstrate good cause for the failure to
have conducted the discovery earlier.
State of West Virginia v. Dennis Macri, et
al., No. 23468 (W. Va., December 19,
1996)(Workman, J.):
Granting a moulded writ of prohibition to
prevent dismissal of multiple indictments,
the Court held (1) the State may appeal
dismissal of an indictment under W. Va.
Code, 58-5-30 as bad or insufficient only
when the dismissal is predicated the
indictment's failure to contain the
elements of the offense to be charged so as
to sufficiently apprise the defendant of the
charges against him or her or to contain
sufficient accurate information to permit a
plea of former acquittal or conviction, and
(2) a circuit court exceeds its jurisdiction
in dismissing an indictment on grounds
that it was procured by an assistant
prosecuting attorney who is not a resident
of West Virginia because an assistant
prosecuting attorney is not a public officer
required to be a citizen of this State under
W. Va. Const., art. IV, Section 4.
State ex rel. Larry Warner v. The
Jefferson County Commission, No. 23106
(W. Va., December 13, 1996)(Recht, J.):
Reversing denial of a writ of mandamus to
compel the county commission to award
$95,345 in attorney fees incurred by a
director of the county solid waste authority
in successfully defending criminal charges
associated with the operation of the county
landfill and remanding for further
proceedings, the Court ruled that (1) the
circuit court failed to determine whether
the appellant incurred a loss in the
discharge of his official duties in a matter
in which the county has an interest and
whether he acted in good faith, as required
by Powers v. Goodwin, 170 W. Va. 151,
291 S.E.2d 466 (1982), and (2) the county
commission had a clear legal duty to
subsidize the functions of the solid waste
authority due to the interrelationship of the
two public agencies for the purpose of
disposing of the county's solid waste,
provided that the appellant satisfies the
other requirements of Powers.
Phillip Leon M. and Sharon C., as next
friends of J.P.M., v. Greenbrier County
Board of Education, Stephen Baldwin,
Superintendent, and Bruce Bowling, Jim
Anderson, Sue King, Gordon Hanson
and John Dietz, individually and as
members of the Greenbrier County Board
of Education, No. 23349 (W. Va.,
December 13, 1996)(Recht, J.):
Affirming a writ of mandamus ordering
the defendant county board of education to
provide some form of alternative education
to a student expelled for bringing a firearm
onto school property, the Court held (1) a
circuit court's interpretation of the West
Virginia Constitution is reviewed de novo;
(2) the "thorough and efficient" clause of
Article XII, Section 1 of the State
Constitution requires the creation of an
alternative educational program for
students suspended or expelled from their
regular educational program for a
continuous period of one year for the sole
reason of possessing a firearm or other
deadly weapon at an educational facility;
(3) the board of education deliberately and
knowingly refused to provide J.P.M. with
an alternative education, justifying an
award of attorney fees.
Kevin Louk, Administrator of the Estate
of Deborah L. Louk v. Isuzu Motors,
Inc., a California corporation, General
Motors Corporation, a Delaware
corporation, Harry Green Chevrolet,
Inc., a West Virginia corporation, Wal-Mart Stores, Inc., a Delaware
corporation, and William S. Ritchie,
Commissioner, and/or West Virginia
Department of Highways AND Vicki
Louk v. Wal-Mart Stores, Inc., a
Delaware corporation, Fred Van Kirk,
Commissioner, and/or West Virginia
Department of Highways, No. 23051 (W.
Va., December 6, 1996) (Albright, J.):
___ W. Va. ___, 479 S.E.2d 911
Affirming summary judgment for the
Department of Highways (DOH) and its
Commissioner, but reversing a directed
verdict for Wal-Mart and the designer of
its access to a state highway in a wrongful
death action arising out of an automobile
accident in which Wal-Mart's business
invitee was killed, the Court ruled that
(1) DOH's insurance policy did not
include coverage for negligent design or
approval of a highway access design,
giving DOH, a state entity, sovereign
immunity from suit under W. Va. Const.,
article VI, section 35 of the state
constitution; (2) a cause of action for
negligent design exists against an
independent contractor who claims special
skill or knowledge to plan and design an
access road and encroachment onto a
public highway, either before or after the
plan or design has been accepted by the
owner or employer of the independent
contractor, and regardless of privity; (3)
DOH's approval of the access road design
did not relieve the designer of its liability
for negligent design; and (4) the evidence
was sufficient to warrant submitting to the
jury the questions of the comparative fault
of decedent and of whether the role of
DOH or Wal-Mart in reviewing and
approving the access road plan was an
intervening causes or the sole proximate
cause of death.
Chandra K. Parkulo v. West Virginia
Board of Probation and Parole and the
West Virginia Division of Corrections,
No. 23366 (W. Va., November 15,
1996)(Albright, J.):
Reviewing summary judgment and
dismissal of an action against the Division
of Corrections and the Parole Board for
injuries plaintiff received when attacked
by a parolee on grounds of sovereign
immunity, the Court held (1) the Parole
Board, being a quasi-judicial body, is
entitled to absolute immunity from tort
liability for acts or omissions which are
covered by liability insurance purchased
by the State pursuant to W. Va. Code, 29-12-5, and which are performed in the
exercise of its judicial function, unless
such immunity is expressly waived by the
applicable insurance contract; and (2) the
"public duty doctrine" and the "special
relationship" exception thereto apply to
the Parole Board and the Division of
Corrections unless coverage for the acts or
omissions complained of is expressly
provided in the insurance coverage issued
pursuant to W. Va. Code, 29-12-5.
Because the insurance contract was not
included in the record on review, the Court
reversed and remanded the case to the
circuit court for a determination of the
liability of the defendants under the
policy; however, the Court held that in
future, dismissal of suits brought against
the State under W. Va. Code, 29-12-5 and
Pittsburgh Elevator v. W. Va. Board of
Regents, 172 W. Va. 743, 310 S.E.2d 675
(1983), will not be reviewed on appeal
unless the complaint limits the recovery
sought to the applicable insurance
coverage, and the scope of the coverage is
apparent from the record.
James A. Hardy v. Andrew N.
Richardson, Comm'r, etc., No. 23388(W.
Va., November 15, 1996)(Albright, J.):
___ W. Va. ___, 479 S.E.2d 310
Reversing a declaratory judgment that a
workers' compensation claimant was not
entitled to a permanent partial disability
evaluation under W. Va. Code, 23-4-22
(1993), precluding such evaluations unless
requested prior to the effective date of the
statute or within five years of closure of
the claim, the Court ruled that the statute
was not applicable to claimant's 1985
claim because no order formally closing
the claim had ever been entered by the
Workers' Compensation Commissioner
and that the statute was not effective until
90 days after passage.
William E. Smith, D. Ray Smith, and
Smith Company, a corporation v. Charles
B. Stacy, dba Spilman, Thomas &
Klostermeyer, a law firm, No. 23196 (W.
Va., December 19, 1996)(Workman, J.):
Reversing summary judgment for
defendants in a legal malpractice action
and remanding for further proceedings, the
Court ruled that evidence defendants
breached a contract for specific services
was sufficient to warrant application of the
ten-year statute of limitations applicable to
contract actions and adopted the
continuous representation doctrine through
which the statute of limitations in an
attorney malpractice action is tolled until
the professional relationship terminates
with respect to the matter underlying the
malpractice action. The Court held that the
continuous representation doctrine does
not apply where (1) the attorney's role is
only tangentially related to representation
provided after the malpractice; (2) there
are no clear indicia of an ongoing,
continuous, developing and dependent
attorney-client relationship; and (3) the
attorney's involvement after the
malpractice is for the performance of the
same or related services and is not merely
a continuation of a general professional
relationship.
Tomeka L. Robinson Harrison,
Administratrix of the Estate of Meagan
Lea Robinson, et al. v. Cee Ann Davis,
M.D., et al., No. 23287 (W. Va. October
11, 1996) (Cleckley, J.): 478 S.E.2d 104:
___W. Va. ___, 478 S.E.2d 104
Affirming the dismissal of a medical
malpractice case instituted more than two
years after the death of the decedent
allegedly because the plaintiff mother did
not discover the malpractice until her
obstetrician reviewed an autopsy report
prepared at the time of the death in
conjunction with the mother's subsequent
pregnancy, the Court held (1)
misrepresentations by non-parties will not
operate to toll the running of a statute of
limitations for a personal injury or
wrongful death claim and (2) an extension
of the statutory period for filing a
wrongful death claim requires an
affirmative act of fraud, misrepresentation,
or concealment of material facts by named
defendants.
Charles A. Porter v. Michael Kenneth
McPherson, No. 23309 (W. Va.,
November 15, 1996)(Workman, J.): ___
W. Va. ___, 479 S.E.2d 668
Reversing a ruling that because plaintiff
was not fully compensated by a settlement
with the defendant tortfeasor, under Kittle
v. Icard, 185 W. Va. 126, 405 S.E.2d 456
(1991), a medical provider's claims for the
cost of medical services provided plaintiff
were extinguished, the Court held that the
medical provider's claim was not for
subrogation, dependent upon the plaintiff's
ability to obtain a recovery for medical
expenses from a tortfeasor, as in Kittle;
instead the claim arose from a contract
with the plaintiff to reimburse the provider
for medical services rendered, placing the
plaintiff and the provider in a debtor-creditor relationship, and such claim
cannot be extinguished or barred by the
doctrine of subrogation. The Court also
held that the circuit court's finding that the
provider had not proven that plaintiff's
medical care and treatment were
reasonable or necessary or proximately
caused by the accident giving rise to the
tort action did not preclude the provider
from bringing a separate action to enforce
its contract rights against plaintiff.
Ohio Cellular RSA Limited Partnership
v. The Board of Public Works, No.
23294(W. Va., November 18,
1996)(McHugh, C.J.):
Affirming a summary judgment ruling that
the Board of Public Works wrongly
included in the personal property tax
assessment the value of a cellular
telephone company's FCC license, the
Court ruled that "personal property" which
is defined in W. Va. Code, 11-5-3, as "all
fixtures attached to land . . .; all things of
value, moveable and tangible, which are
the subjects of ownership; all chattels, real
and personal; all notes, bonds, and
accounts receivable, stocks and other
intangible property", does not include an
FCC license which authorizes a person to
provide cellular communication services;
thus, an FCC license is not personal
property which is subject to assessment for
personal property tax purposes under W.
Va. Code, 11-6-7(e) (1986).
Lonnie Cole, Administrator of the Estate
of Stephen Brant Cole II v. Jack Douglas
Fairchild, Jr., Flat Top Lake Association,
a West Virginia corporation, and Myrleen
B. Fairchild, Executrix of the Estate of
Jack R. Fairchild, No. 23081 and Lonnie
Cole, Administrator of the Estate of
Stephen Brant Cole II v. Jack Douglas
Fairchild, Jr., and Flat Top Lake
Association, a West Virginia corporation,
No. 23111 (W. Va., December 20,
1996)(Workman, J.):
Affirming, in part, and reversing, in part, a
$95,000 verdict in a wrongful death action
arising out of the death of a six-year-old in
a motorcycling accident, the Court held
that (1) decedent, who was invited by
defendant Fairchild to ride on property
owned by Fairchild's father, was a
licensee to defendant homeowner's
association owed only a duty to refrain
from inflicting willful and wanton injuries,
(2) the alleged negligence of Fairchild, an
emancipated adult and social guest on the
property, in not supervising decedent
cannot be imputed to Fairchild's father,
the landowner, under an agency theory in
the absence of evidence that Fairchild's
father had any control over Fairchild or
decedent; (3) the parental immunity
doctrine did not prohibit the jury from
considering the comparative negligence of
plaintiffs, the parents of decedent, in
causing the death of the child, and
remanded for further proceedings.
Joy F. King and David L. King, her
husband, and David L. King, natural
parent and next friend of Shannon King,
an infant v. Lens Creek Limited
Partnership, a West Virginia limited
partnership, Long Management
Company, a West Virginia corporation,
Toyota Motor Sales, USA, Inc., a
corporation, Mid-Atlantic Toyota
Distributors, Inc., a corporation, and Bud
Young Toyota, Inc., a West Virginia
corporation, No. 23334, and Joy F. King
and David L. King, her husband, and
David L. King, natural parent and next
friend of Shannon King, an infant v.
Lens Creek Limited Partnership, a West
Virginia limited partnership, Long
Management Company, a West Virginia
corporation, Toyopta Motor Sales, USA,
Inc., a corporation, Mid-Atlantic Toyota
Distributors, Inc., a corporation, and Bud
Young Toyyota, Inc., a West Virginia
corporation, No. 23335 (W. Va.,
December 16, 1996)(Recht, J.):
Answering certified questions arising out
of plaintiffs' attempts to hold a landowner
liable for injuries plaintiff received in an
auto accident involving a logging truck
operated by an independent timber
contractor, the Court held that (1) a
principal may be subjected to liability if he
fails to exercise reasonable care in hiring
a competent and careful contractor who
subsequently injures a third party, but the
financial responsibility of the independent
contractor is not an element to be
considered in determining whether the
independent contractor is competent; (2) a
principal has a non-delegable duty to
exercise reasonable care when performing
an inherently dangerous activity, which
duty the principal cannot avoid by hiring
an independent contractor to undertake the
activity; and (3) operation of an empty
logging truck is not, in and of itself, an
inherently dangerous activity for which the
principal may be held liable; to constitute
an inherently dangerous activity, the work
must be dangerous in and of itself, and not
dangerous simply because of the negligent
performance of the work, and the danger
must be naturally apprehended by the
parties when they contract.
Kevin Louk, Administrator of the Estate
of Deborah L. Louk v. Isuzu Motors,
Inc., a California corporation, General
Motors Corporation, a Delaware
corporation, Harry Green Chevrolet,
Inc., a West Virginia corporation, Wal-Mart Stores, Inc., a Delaware
corporation, and William S. Ritchie,
Commissioner, and/or West Virginia
Department of Highways AND Vicki
Louk v. Wal-Mart Stores, Inc., a
Delaware corporation, Fred Van Kirk,
Commissioner, and/or West Virginia
Department of Highways, No. 23051 (W.
Va., December 6, 1996) (Albright, J.):
___ W. Va. ___, 479 S.e.2d 911
Affirming summary judgment for the
Department of Highways (DOH) and its
Commissioner, but reversing a directed
verdict for Wal-Mart and the designer of
its access to a state highway in a wrongful
death action arising out of an automobile
accident in which Wal-Mart's business
invitee was killed, the Court ruled that
(1) DOH's insurance policy did not
include coverage for negligent design or
approval of a highway access design,
giving DOH, a state entity, sovereign
immunity from suit under W. Va. Const.,
article VI, section 35 of the state
constitution; (2) a cause of action for
negligent design exists against an
independent contractor who claims special
skill or knowledge to plan and design an
access road and encroachment onto a
public highway, either before or after the
plan or design has been accepted by the
owner or employer of the independent
contractor, and regardless of privity; (3)
DOH's approval of the access road design
did not relieve the designer of its liability
for negligent design; and (4) the evidence
was sufficient to warrant submitting to the
jury the questions of the comparative fault
of decedent and of whether the role of
DOH or Wal-Mart in reviewing and
approving the access road plan was an
intervening causes or the sole proximate
cause of death.
State ex rel. Truong Van Nguyen v. Hon.
Irene Berger, Judge of the Circuit Court
of Kanawha County, and William C.
Forbes, Prosecuting Attorney for
Kanawha County, No. 23614 and State v.
Steve A. Rife, No. 23655 (W. Va.,
December 16, 1996)(Recht, J.):
Denying a writ of prohibition to force
dismissal of an indictment and reversing
dismissal of another indictment against
corporate officers for violations of W. Va.
Code, 23-1-16(a), the Court held that
corporate officers, along with the
corporation, may be criminally responsible
for the corporation's failure to pay
workers' compensation premiums and to
file quarterly workers' compensation
reports required by the statute under the
common law rule that officers, agents and
directors of a corporation may be
criminally liable if they cause the
corporation to violate the criminal law
while conducting corporate business.
State ex rel. Latta Boan v. Andrew
Richardson, Workers' Compensation
Commissioner, and Songer Construction
Corp., No. 23667 (W. Va., December 13,
1996)(Albright, J.):
Granting a writ of prohibition to prevent
enforcement of an order by the respondent
Workers' Compensation Commissioner
reducing petitioner's permanent total
disability benefits due to petitioner's
receipt of old age Social Security benefits
pursuant to W. Va. Code, 23-4-23(b), the
Court held that the statute violates the
equal protection provisions of W. Va.
Const., Art. III, Sec. 10, insofar as it
creates a classification of "old age social
security recipients" which, as applied,
bears no reasonable relationship to the
proper governmental purpose of avoiding
duplication of benefits and treats persons
within the class who receive permanent
total disability benefits differently from
those within the class who receive
permanent partial disability benefits.
Sandra Michael, as Executrix of the
Estate of Donald Kelly Michael, and
Sandra Michael , Individually v. Marion
County Board of Education, No. 23113,
and Allen Ayersman v. John Pyles,
Florence Merow, and Elizabeth Martin,
in their capacities as Commissioners
constituting the County Commission of
Monongalia County, and Joseph Bartolo,
in his capacity as Sheriff of Monongalia
County, No. 23320, and Shawn McKemy
v. City of Charleston, a municipal
corporation, and City of Charleston, a
municipal corporation, d/b/a Metro-911,
No. 23362 (W. Va., December 9,
1996)(Workman, J.):
Affirming dismissal of plaintiffs'
Mandolidis actions against a county board
of education, a county commission, and a
municipality, the Court held that the
Governmental Tort Claims and Insurance
Reform Act, W. Va. Code, 29-12A-5(a)(11), extends governmental immunity
to political subdivisions of the State from
deliberate intent actions brought by injured
employees under the Worker's
Compensation Act, W. Va. Code, 23-4-2(c)(2).
James A. Hardy v. Andrew N.
Richardson, Comm'r, etc., No. 23388(W.
Va., November 15, 1996)(Albright, J.):
___ W. Va. ___, 479 S.E.2d 310
Reversing a declaratory judgment that a
workers' compensation claimant was not
entitled to a permanent partial disability
evaluation under W. Va. Code, 23-4-22
(1993), precluding such evaluations unless
requested prior to the effective date of the
statute or within five years of closure of
the claim, the Court ruled that the statute
was not applicable to claimant's 1985
claim because no order formally closing
the claim had ever been entered by the
Workers' Compensation Commissioner
and that the statute was not effective until
90 days after passage.
Jeffrey L. Marlin, Sr., et al. v. Bill Rich
Construction, Inc., et al., No. 23121 (W.
Va., November 15, 1996)(Albright, J.):
Reversing summary judgment in favor of
the Wetzel County Board of Education in
a civil action brought by construction
workers and their families for emotional
distress resulting from the workers'
exposure to asbestos during renovation of
a high school, the Court held that a claim
of emotional distress resulting from fear of
contracting an occupational disease in the
future does not entitle a claimant to
recover benefits under the Workers'
Compensation Act; consequently the
emotional injury is not "covered" by the
workers' compensation law within the
meaning of W. Va. Code, 29-12A-5(a)(11)
such as to render the Board immune from
tort liability in a civil action in circuit
court.
Lonnie Cole, Administrator of the Estate
of Stephen Brant Cole II v. Jack Douglas
Fairchild, Jr., Flat Top Lake Association,
a West Virginia corporation, and Myrleen
B. Fairchild, Executrix of the Estate of
Jack R. Fairchild, No. 23081 and Lonnie
Cole, Administrator of the Estate of
Stephen Brant Cole II v. Jack Douglas
Fairchild, Jr., and Flat Top Lake
Association, a West Virginia corporation,
No. 23111 (W. Va., December 20,
1996)(Workman, J.):
Affirming, in part, and reversing, in part, a
$95,000 verdict in a wrongful death action
arising out of the death of a six-year-old in
a motorcycling accident, the Court held
that (1) decedent, who was invited by
defendant Fairchild to ride on property
owned by Fairchild's father, was a
licensee to defendant homeowner's
association owed only a duty to refrain
from inflicting willful and wanton injuries,
(2) the alleged negligence of Fairchild, an
emancipated adult and social guest on the
property, in not supervising decedent
cannot be imputed to Fairchild's father,
the landowner, under an agency theory in
the absence of evidence that Fairchild's
father had any control over Fairchild or
decedent; (3) the parental immunity
doctrine did not prohibit the jury from
considering the comparative negligence of
plaintiffs, the parents of decedent, in
causing the death of the child, and
remanded for further proceedings.
Kevin Louk, Administrator of the Estate
of Deborah L. Louk v. Isuzu Motors,
Inc., a California corporation, General
Motors Corporation, a Delaware
corporation, Harry Green Chevrolet,
Inc., a West Virginia corporation, Wal-Mart Stores, Inc., a Delaware
corporation, and William S. Ritchie,
Commissioner, and/or West Virginia
Department of Highways AND Vicki
Louk v. Wal-Mart Stores, Inc., a
Delaware corporation, Fred Van Kirk,
Commissioner, and/or West Virginia
Department of Highways, No. 23051 (W.
Va., December 6, 1996) (Albright, J.):
___ W. Va. ___, 479 S.E.2d 911
Affirming summary judgment for the Department of Highways (DOH) and its Commissioner, but reversing a directed verdict for Wal-Mart and the designer of its access to a state highway in a wrongful death action arising out of an automobile accident in which Wal-Mart's business invitee was killed, the Court ruled that (1) DOH's insurance policy did not include coverage for negligent design or approval of a highway access design, giving DOH, a state entity, sovereign immunity from suit under W. Va. Const., article VI, section 35 of the state constitution; (2) a cause of action for negligent design exists against an independent contractor who claims special skill or knowledge to plan and design an access road and encroachment onto a public highway, either before or after the plan or design has been accepted by the owner or employer of the independent contractor, and regardless of privity; (3) DOH's approval of the access road design did not relieve the designer of its liability for negligent design; and (4) the evidence was sufficient to warrant submitting to the jury the questions of the comparative fault of decedent and of whether the role of DOH or Wal-Mart in reviewing and approving the access road plan was an intervening causes or the sole proximate cause of death.