1. Norma K. Bowyer, OD, MS, MPH, FAAO v. University of West Virginia Board of Trustees; West Virginia Education and State Employees Grievance Board; and Sue Keller, Administrative Law Judge, No. 010101. Plaintiff appeals from the circuit court’s order dismissing her complaint for a writ of mandamus seeking to correct a procedural defect in the administrative proceedings below.

Refuse 3-2
[Starcher, J., McGraw, C.J.]

 

2. David Anthony Warren v. Arch Coal, Inc. and Hobet Mining Company, Inc., No. 010236. Petitioner appeals from the circuit court’s order denying its motion for judgment as a matter of law, its motion for new trial and its motion for remittitur in this action for workers’ compensation discrimination in which the jury awarded plaintiff $795,000.00.

Refuse 5-0

 

3. Mountain Lodge Association v. Crum & Forster Indemnity Co., and United States Fire Ins. Co., No. 010060. Plaintiff appeals from the circuit court’s order awarding summary judgment in favor of defendants in this action to recover under a business insurance policy.

Grant 3-2
[Maynard, J., Davis, J.]

 

 

4. Raymond Lewis, Renee Winkler, and Amber Fraser, an infant by Renee Winkler, her mother v. Wanda Hayney and Donnetta Hill, No. 010257. Petitioner, defendant and cross-claimant Wanda Hayney, appeals from the circuit court’s order refusing to set aside the jury’s verdict rendered in favor of plaintiff, Raymond Lewis, although the circuit court set aside the jury’s verdict as to petitioner’s personal liability on her cross-claim due to the insufficiency of the evidence.

Refuse 5-0

 

5. Raymond Lewis, Renee Winkler, and Amber Fraser, an infant by Renee Winkler, her mother v. Wanda Hayney and Donnetta Hill, No. 010259. Defendant Donnetta Hill appeals from the circuit court’s order denying her motion for a new trial as to the damages of the plaintiff, Raymond Lewis, and from the circuit court’s denial of her motion to alter or amend the circuit court’s order awarding defendant and cross-claimant, Wanda Hayney, a new trial as to liability and damages on Hayney’s cross-claim.

Refuse 5-0

 

6. Gary Bowman, individually and as class representative v. Capitol Cement Corp. and James E. Alexander, No. 010046. Plaintiff appeals from the circuit court’s order awarding summary judgment in favor of defendant Capitol Cement Corp. on the basis that plaintiff was unable to establish a prima facie case of sex discrimination and his invasion of privacy claim was preempted by federal labor law.

Refuse 5-0

 

7. Lala A. Wooten v. James R. Wooten, No. 010120. In this divorce action, the petitioner, Lala Ann Wooten, appeals from an order entered in the Circuit Court of Mercer County adopting and affirming the recommended decision of the Family Law Master which, in effect, allowed the respondent husband, James Richard Wooten, to keep a social security back award which had been designated by the Social Security Administration for the parties’ two children. The petitioner contends that the Circuit Court committed error in that regard because the back award was solely for the benefit of the children and was never the property of the respondent.

Refuse 4-1
[Davis, J.]

 

8. Stonewall Jackson Memorial Hospital v. American United Life Insurance Company, No. 010131. The petitioner, American United Life Insurance Company, appeals from an order entered in the Circuit Court of Lewis County directing it to pay $451,072.25 in legal fees to the respondent, Stonewall Jackson Memorial Hospital Company. In the underlying action, the respondent Hospital recovered $292,980.25 for breach of contract and $10,000 for future economic costs from the petitioner. The petitioner contends, inter alia, that the amount of the legal fees awarded was unwarranted since the respondent Hospital failed to "substantially prevail" against the petitioner in the underlying action.

Refuse 4-1
[Albright, J.]

 

9. Irene Walker v. John Doe, No. 010034. This is an uninsured motorist action, wherein the petitioner, Irene Walker, filed a complaint in the Circuit Court of Fayette County against an unknown driver, John Doe. The respondent, Allstate Indemnity Company (the petitioner’s insurer), defended the action. Inasmuch as the motor vehicle accident in question did not involve physical contact between the vehicles operated by the petitioner and John Doe, the Circuit Court entered summary judgment in favor of respondent Allstate. The Circuit Court’s decision was based upon Dalton v. Doe, No. 26437 (W.Va. - June 16, 2000), which held that Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997), which substantial limited the physical contact rule, should not be applied retroactively. The petitioner contends, inter alia, that, since Dalton was a per curiam case, the Circuit Court should not have relied upon it.

Grant 5-0

 

10. Cole D. Grimm (a minor); Kelly Jo Grimm v. Chrysler Corp.; and Bill Forbes Chevrolet - Consolidated Coal Co. (third-party plaintiff) v. The West Virginia Division of Highways, No. 010048. The petitioner, Department of Health and Human Resources, appeals from an order entered in the Circuit Court of Marshall County dividing $825,000 in tort litigation settlement proceeds payable by defendants Chrysler Corporation and Bill Forbes Chevrolet, Inc., as follows: $2,000 to respondent Kelly Jo Grimm, who was rendered incompetent following a single car accident, and $823,000 to Kelly’s infant son, respondent Cole Dale Grimm, who was not involved in the accident. The petitioner contends that the division of the settlement proceeds by the Circuit Court violated the petitioner’s right of subrogation with regard to the petitioner’s payment of Medicaid benefits.

Refuse 5-0

 

11. Laurel Proudfoot v. Dan’s Marine Service, Inc., and Shore-Masters, Inc., No. 010053. The petitioner, Dan’s Marine Service, Inc., appeals from an order entered in the Circuit Court of Taylor denying the petitioner post-judgment relief, even though it was discovered after trial that a member of the jury was a convicted felon who concealed that fact on the Juror Qualification Form and during voir dire. The jury returned a verdict in favor of the respondent, Laurel Proudfoot, in the amount of $140,956.45 for personal injuries. The petitioner contends that, because of the participation of the juror in question, a new trial should have been awarded without requiring the petitioner to make a specific showing of prejudice.

Grant 5-0

 

 

12. State of West Virginia v. Victor L. Nutter, No. 010056. The petitioner, Victor Lewis Nutter, appeals from his convictions in the Circuit Court of Wirt County of the 1st degree sexual abuse and the 1st degree sexual assault of a 10 year old girl. The petitioner raises a number of assignments of error.

Refuse 3-2
[Starcher, J., Albright, J.]

 

 

13. Diana L Slider and Randy Slider v. State Farm Mutual Automobile Ins. Co.; Charles Noffsinger; Erie Insurance Group; and Nationwide Mutual Insurance Company, No. 010057. The petitioners, Diana L. Slider and Randy Slider, appeal from an order entered in the Circuit Court of Ohio County holding that, because the petitioners did not prevail in a previous action upon certain Marshall v. Saseen damage claims the petitioners asserted against various insurance carriers, the petitioners’ bad faith settlement practices claims in this action were barred by the doctrine of res judicata. The petitioners contend that the two sets of claims alleged were sufficiently distinct to preclude the application of res judicata.

Grant 5-0

 

 

14. Theresa E. Valine and Gordon H. Valine v. Sanjay Chaudhry, M.D., d/b/a Digestive Disease Center, No. 010058. The petitioners, Theresa and Gordon Valine, challenge a jury verdict returned in the Circuit Court of Marshall County in favor of the respondent, Dr. Sanjay Chaudhry, d/b/a Digestive Disease Center. The jury found that the respondent did not deviate from the standard of care in recommending and performing a diagnostic operation known as an ERCP upon Mrs. Valine, even though Mrs. Valine suffered post-operatively from pancreatitis, a known complication of an ERCP. The petitioners contend, inter alia, that the Circuit Court erred in giving to the jury the respondent’s "error in judgment" and "alternative courses of action" instructions.

Defer

 

15. State of West Virginia v. Sterlin Eugene Williamson, No. 010275. Petitioner seeks to appeal his conviction of manufacturing a controlled substance.

Refuse 4-1
[Starcher, J.]

 

 

16. State of West Virginia v. Richard Lee Hunt, Jr., No. 010282. Defendant who was convicted of sexual abuse seeks to appeal based on several incidents at trial.

Refuse 5-0

 

17. State of West Virginia v. Ralph McClure, No. 010033. Criminal defendant seeks to appeal conviction of unlawful assault for three incidents at trial.

Refuse 5-0

 

18. Affiliated Construction Trades Foundation, a division of the West Virginia Building and Construction Trades Council, AFL-CIO v. The University of West Virginia Board of Trustees, et al. - Docket No. 010284. Petitioner seeks to appeal grant of summary judgment to defendants and denial of petitioner’s motion to alter or amend judgment asserting the lower court failed to consider all relevant facts and circumstances and failed to apply the prevailing wage, competitive bidding, and architectural services procurement statutes to the construction of a public office building for West Virginia University.