Supreme Court of Appeals of West Virginia

      Argument Docket    

West Virginia Law School - Morgantown

March 23, 1999

1. Wanda Sue Bower, et al. v. Westinghouse Electric Corp., et al. - 25338 - Certification order from The Honorable Irene M. Keeley, Northern District of West Virginia,  in Bower et al. v. Westinghouse Electric Corporation, et al., Civil Action No. 1:97-CV-179, certifying the following question of law:   In a case of negligent infliction of emotional distress absent physical injury, may a party assert a claim for expenses related to future medical monitoring necessitated solely by the fear of contracting a disease from exposure to toxic chemicals?

2.  Luann E. Klettner, et al. v. State Farm Mutual Automobile Insurance Co. - 25436 - This is a certified question from U.S. District Court for the Northern District of West Virginia.  In the underlying claim, the Klettners brought suit against State Farm under the Unfair Claim Settlement Practices Act, W.Va. Code section 33-11-4(9) as well as claiming common law bad-faith and intentional infliction of emotional distress.  The question is:  Whether the one-year statute of limitations for alleged unfair claim settlement practices under W.Va. Code section 33-11-4(9) is tolled until the appeals period has run and/or all appeals in the underlying tort litigation have been exhausted?

3.  Daily Gazette Company, Inc. v. W. Va. Development Office, et al. - 25437 - The West Virginia Development Office appeals the award of attorney's fees to The Daily Gazette Company in the underlying WVFOIA case, claiming the award should be reduced because the court created a new principle of law and because the fees should be apportioned based on the limited degree of success achieved.

4.  Julie K. McCammon, M.D., FACOG  v. Bradley R. Oldaker, Esquire, et al.  - 254443 - Defendants request the docketing of three certified questions regarding a medical malpractice countersuit against the attorneys for the plaintiff in the underlying medical malpractice action. The following questions have been answered in the negative and certified to the Supreme Court:
a) Whether the applicable W. Va. statute of limitation bars claims for malicious prosecution and the tort of outrage where the jury verdict was entered in the underlying medical malpractice action more than 2 1/2 years prior to suit but the final decision on appeal of the underlying action was entered within one year of the filing of this suit and the plaintiff's earlier action for malicious prosecution and tort of outrage had been brought and voluntarily dismissed pending the decision on appeal.
b) Whether, a medical malpractice countersuit against the attorneys for the plaintiff in the underlying medical malpractice suit fails to state a claim in W. Va. based upon malicious prosecution and the tort of outrage, particularly where: a) the malicious prosecution claim cannot be maintained in the absence of the essential element that the medical malpractice claim was brought without probable cause, and the medical malpractice court, in the underlying case, found that a prima facie medical malpractice case had been proven therein and denied the motion for a directed verdict therein; and b) the mere initiation and pursuit of a medical malpractice action provides no basis for a claim that the attorney defendants engaged in extreme and outrageous conduct, as a matter of law.
c) Whether the defendant attorneys had an absolute right and duty to pursue the underlying medical malpractice case on behalf of their client in the underlying medical malpractice action, thereby precluding the plaintiff herein from maintaining a medical malpractice countersuit. 

5. State of West Virginia v. Banner Catlett - 25404 - Defendant appeals order of placement with the Department of Corrections rather than the Department of Health and Human Resources.

6. State of West Virginia v. Marc Scott - 25442 - The petitioner challenges his conviction in the Circuit Court of Monongalia County of second degree murder.  The petitioner's defense was that the shooting death of the victim was accidental.