January 28, 2010
1. State Auto Property and Casualty Insurance Company, a South Carolina Corporation v. Eastern Data Systems, Incorporated; EPS Network Solutions, Incorporated and Federal Insurance Company - No. 091723. The United States Court of Appeals for the Fourth Circuit files its "Order of Certification to the Supreme Court of Appeals of West Virginia" certifying the following questions:
"1. When two corporate entities have merged, does W.Va. Code §31D-11-1107(a)(3) operate on its face to avoid (or void) an otherwise applicable non-assignment clause in a business auto insurance policy, issued pre-merger to the non-surviving corporation?"
If the Supreme Court of Appeals of West Virginia answers the above-stated question in the negative, the Fourth Circuit Court of Appeals respectively requests that the Court proceed to answer the following question:
"Would W.Va. Code §31D-11-1107(a)(3) apply nonetheless if the insurable risks under the business auto insurance policy did not increase post-merger?"
The Fourth Circuit Court of Appeals states that an affirmative answer to the first question is outcome determinative in the appeal pending before it. The Court further states that in its view, there is no controlling appellate decision, constitutional provision, or statute of West Virginia which answers the question. Accordingly, the Fourth Circuit Court of Appeals believes that both questions are appropriate for certification under W.Va. Code §51-1A-3. Grant 5- 0
2. Erie Insurance Property and Casualty Company v. Robert C. Leftwich, et al. - No. 091695. The U.S. District Court for the Southern District of West Virginia, Charleston Division, presents the following certified question:
"Is an insurance company, which has accepted timely payments on an insurance policy for over several years, estopped from invoking W.Va. Code section 33-6-3 to challenge the enforceability of the policy?" Grant 5- 0
3. In re: The Marriage of: Mary J. Smith and John F. Smith- No. 091637. Petitioner husband appeals from the rulings of the lower courts awarding judgment against him in favor of respondent wife in an amount in excess of $41,000. The family court found that when petitioner began receiving military disability benefits, those benefits were reduced because of the offset of his disability payments, which thereby reduced the monthly dollar amount that respondent wife received. The circuit court affirmed the family court on appeal. Petitioner seeks a reversal and asserts that the ruling is clearly erroneous and contradicts federal law. Refuse 5- 0
4. Patricia Hobart and Eugene Hobart v. Wheeling Island Gaming, Inc. d/b/a Wheeling Island Racetrack & Gaming Center, et al. - No. 091640. Plaintiffs appeal from an adverse jury verdict in this personal injury action. Plaintiffs allege that the circuit court erred by failing to give a negative inference instruction to the jury on spoliation of evidence and by refusing to allow the testimony of plaintiff concerning an unknown, unavailable declarant. Plaintiffs seek a new trial. Refuse 5- 0
5. In the matter of K. G., a minor alleged to be a delinquent child - No. 091651. Petitioner juvenile appeals from the circuit court’s order granting the State’s motion to transfer petitioner to adult jurisdiction of the court. Petitioner seeks a reversal of that transfer order and directions that he remain in the juvenile jurisdiction of the circuit court. Refuse 5- 0
6. Meredith D. Williams v. The West Virginia Division of Motor Vehicles and Joseph Cicchirillo, Commissioner - No. 091655. The DMV appeals from the circuit court’s order reversing an order of revocation on the basis that the DMV’s second order of revocation, after rescinding its initial order of revocation, was contrary to W.Va. Code §17C-5A-1a(d). The DMV seeks a reversal of the circuit court’s order. Accept to Motion Docket
7. Rodney A. Myers and Diane M. Myers v. West Virginia Consolidated Public Retirement Board - No. 091663. The Consolidated Public Retirement Board seeks a reversal of the circuit court’s order finding that the Board’s application of a pension statute to respondents was clearly wrong in view of the reliable, probative, and substantial evidence on the whole record. Respondents claim that the Board’s application of a pension statute constitutes a violation of the State’s constitutional protections against impairment of contracts. Grant 5- 0
8. Michael J. O’Dell v. Robert Stegall and Virginia Stegall - No. 091667. Defendants appeal from an adverse jury verdict in this action brought by plaintiff seeking to establish a prescriptive easement. The jury found that plaintiff had established the existence of a prescriptive easement and, on plaintiff’s claim that defendants had interfered with his easement, the jury awarded compensatory damages in the amount of $5,300 and punitive damages in the amount of $4,700. Defendants seek an independent review and reversal of the punitive damage award; a reversal of the compensatory damages award; and a definition of plaintiff’s use of the prescriptive easement and limiting such use to egress from plaintiff’s house to the highway by an existing 12 foot gravel lane situated in the center of a 25-foot right-of-way. Defendants do not seek a new trial. Accept to Motion Docket
9. Joseph M. Brown v. The City of Fairmont, West Virginia; NICK L. FANTASIA, individually and as Mayor, City of (Fairmont) West Virginia and Chairperson, Board of Trustees, City of Fairmont Fireman’s Pension Relief Fund; JAMES EMERICK, individually and as Secretary/Treasurer, Board of Trustees, City of Fairmont Fireman’s Pension Relief Fund; ROBERT STARN, individually and as past Secretary/Treasurer, City of Fairmont Fireman’s Pension Relief Fund; RICHARD BOWERS, individually and as Member, City of Fairmont Fireman’s Pension Relief Fund; BRUCE MCDANIEL, individually and as City Manager, City of Fairmont; RICHARD STARN, individually and as Fire Chief, Fireman’s Pension Relief Fund; and EILEEN LAYMAN, individually and as Finance Director, City of Fairmont, West Virginia- No. 091678. Plaintiff appeals from the circuit court’s order denying his request for attorney’s fees following the Court’s remand of this action in Brown v. The City of Fairmont, 221 W.Va. 541, 655 S.E.2d 563 (2007). Plaintiff contends that the circuit court erred on remand by failing to place him in the same economic position he was in prior to the improper disbursement of a portion of his pension by denying his request for attorney’s fees. Refuse 4- 1, (Davis, J.)
10. State ex rel. Anthony Pfeffer v. Thomas McBride, Warden, Mount Olive Correctional Center - No. 091566. Anthony Pfeffer appeals the circuit court’s denial of his petition for post-conviction habeas corpus. He argues, inter alia, that he was entitled to the benefit of a plea agreement that would have run his 30 year sentence for Aggravated Robbery concurrent with a sentence imposed in another court. Refuse 4- 0, (McHugh, J., disqualified)
11. State of West Virginia v. David Wayne Doyle - No. 091368. David Wayne Dolye files a "Combined Petition for Appeal and Petition for Writ of Prohibition." He asserts, inter alia, double jeopardy and equal protection violations, as well as incorrect credit for time served before conviction. Refuse 5- 0
12. State of West Virginia v. Benny Ray Roberts - No. 091481. Benny Ray Roberts appeals his conviction for felony murder with a recommendation of mercy. He asserts fourteen assignments of alleged trial and constitutional error. Refuse 5- 0
13. Sheryl Cupp, individually and on behalf of all others similarly situated v. Tower Management Company, Boggs Steele Investment, LLC d/b/a Blue Spruce Community- No. 091694. The circuit court certifies the following question: "Do the debt collection provisions of the West Virginia Consumer Credit Protection Act, W.Va. Code § 46A-2-122, et seq., apply to a management company of mobile home parks seeking to collect delinquent payments from tenants?" Circuit Court’s Answer: No. Refuse 3-2 (Davis, J., McHugh, J.)
14. Trampus R. Burdette v. Joseph Cichirillo - No. 091681. Trampus R. Burdette appeals the circuit court’s order affirming the DMV Commissioner’s Final Order revoking Burdette’s driver’s license for 6 months for DUI and a concurrent 1 year for refusing the secondary chemical test. Refuse 5- 0
15. Fonda Holehouse, Alex Holehouse, her minor son, Olivia Holehouse, her minor daughter, and Christian Holehouse, her minor son v. AIG Domestic Claims, Inc., a Delaware corporation licensed to do business in the State of West Virginia; National Union Fire Insurance Co. of Pittsburgh, PA, a Pennsylvania corporation licensed to do business in the State of West Virginia; and Marion County Board of Education - No. 091683. Plaintiffs Fonda Holehouse and her children appeal after an adverse partial summary judgment order and an adverse jury verdict in their negligence suit against the Defendant Marion County Board of Education. Refuse 4- 1, (Workman, J.)
16. Donna McKneely v. West Virginia Consolidated Public Retirement Board - No. 091685. Donna McKneely appeals the circuit court’s order affirming the decision of the Consolidated Public Retirement Board that she is not eligible for duty-related disability retirement benefits from the State Trooper’s Retirement Plan A. She was previously awarded non-duty related disability benefits. Grant 4- 1, (Ketchum, J.)
17. State of West Virginia v. Donald L. Longerbeam- No. 091698. Donald L. Longerbeam appeals his conviction for one count of Sexual Abuse by a Parent, Guardian, Custodian, or Person in a Position of Trust of a Child. He argues that he was not the custodian of or person in a position of trust with the alleged victim as those terms are defined by statute, and that the alleged victim was not in his care, custody or control on the date of the alleged conduct. Grant 4- 1, (Workman, J.)
18. State of West Virginia v. Robert McFarland - No. 091701. Robert McFarland appeals his 70 year sentence for his conviction upon guilty plea to one count of Attempted First Degree Robbery. He asserts that he should have been sentenced as a youthful offender, that 70 years is unconstitutionally disproportionate to his crime and to the sentence of his co-defendant, and the court violated his right to equal protection by taking his residency into consideration. Refuse 4- 1, (Ketchum, J.)
19. Mary A. Rose, Executrix of the Estate of Richard L. Rose, Deceased v. Henry L. Kettler, M.D., and Valley Radiologists, Inc., a West Virginia Corporation - No. 091706. Plaintiff Mary A. Rose, Executrix of the Estate of Richard L. Rose, appeals after a defense jury verdict in a medical malpractice suit. She asserts error regarding jury selection. Defer
20. State of West Virginia ex rel. Ronald R. Cloud v. David Ballard, Warden, Mount Olive Correctional Center- No. 091721. Ronald R. Cloud appeals the circuit court’s order denying his petition for post-conviction habeas corpus. He asserts ineffective assistance of trial defense counsel and prior habeas counsel. In the underlying criminal case, he was convicted of Kidnaping, Sexual Assault in the First Degree, Malicious Assault, and Conspiracy and was sentenced to life without the possibility of parole plus a consecutive sentence of 18 to 40 years in prison. Refuse 4- 1, (Benjamin, J.)
21. State of West Virginia v. Gregg Dulaney Smith- No. 091727. Petitioner Gregg Dulaney Smith appeals his convictions of Malicious Assault (hammer); Malicious Assault (shotgun); Wanton Endangerment Involving a Firearm; and Attempted First Degree Murder. On April 8, 2009, the Ritchie County Circuit Court sentenced petitioner to a combined 12 years to 35 years of consecutive sentences. Accept to Motion Docket
22. Raymond A. Surratt, et. al. v. Estate of Lillie D. Lindsey (Surratt) - No. 091730. Petitioner Raymond A. Surratt, as well as other heirs of Lillie D. Surratt, appeal from a March 19, 2009, Order of the Circuit Court of Wyoming County which granted Respondents’ Motion to Dismiss. The Circuit Court found that Billie Ray Surratt and James D. Surratt are not the legal heirs at law and therefore have no standing to pursue their claims. Refuse 5- 0
23. Ann L. Nicely v. Monongahela Valley Association of Health Centers, Inc. - No. 091734. Petitioner Ann L. Nicely appeals from a July 15, 2009, Order of the Marion County Circuit Court which ruled that there were no issues of material fact and that Monongahela Valley Association of Health Centers, Inc. was entitled to judgment as a matter of law on petitioner’s claim for tortious interference with her contract. On appeal, petitioner argues that material issues of fact existed and that the Court erred in granting summary judgment in favor of the defendant. Refuse 5- 0
24. Smith v. Montgomery General Hospital - No. 091557. Samuel G. Smith appeals the W.Va. Human Rights Commission’s Order affirming the decision of its administrative law judge. Petitioner asserted that he was subjected to an adverse employment decision because of racial discrimination, but the ALJ concluded that petitioner did not prove that his employer’s and local union’s proffered reasons were pretextual. Refuse 5- 0
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