Argument
Docket
West Virginia University College of Law
Morgantown, West Virginia
Supreme Court of Appeals of West Virginia
Argument
Docket
West Virginia University College of Law
Morgantown, West Virginia
Tuesday, March 8, 2005
The question, as presented by the circuit court is: “In a public building project in West Virginia, does a ‘pay if paid’ condition precedent clause violate West Virginia public policy, as articulated in the West Virginia
Public Bond Statute (W. Va. Code §38-2-29), so as to entitle a subcontractor to proceed with a claim against a contractor’s surety bond, despite the terms of its subcontract that the contractor itself is not liable for payment
to the subcontractor because of the failure of the same ‘pay if paid’ condition precedent clause?” The circuit court answered the question in the affirmative. The Dick Corp. provided construction management services under an
agreement with the project owner, WVU. Wellington Power Corp. and W.G. Tomko, Inc. entered into a subcontract agreement with Dick Corp. to provide electrical, mechanical and plumbing work on the project. The two subcontractors on
this project, Wellington Power Corp. and W.G. Tomko, Inc. assert that the clause does violate public policy and that the circuit court has correctly answered the certified question in the affirmative. CNA Surety Group contends, as
surety on the project, that public policy requires a court to enforce a “pay if paid” clause as a condition precedent where it is clear from the contractual language that this was the intent of the parties, and denies any
liability. (Wellington Power Corp. and W.G. Tomko, Inc. are represented by James B. Edwards, Cranston & Edwards, Morgantown, WV and Roy S. Cohen and John A. Greenhall, Cohen, Seglias, Pallas, Greenhall & Furman,
Philadelphia, PA. CNA Surety Group is represented by Billie Atkins, Atkins & Oblak, PLLC,Morgantown, WV.)
1. Wellington Power Corp., et al. v. CNA Surety Corp., dba CNA Commercial Ins., et al. - 31869 -
These cases arise out of construction of the Life Sciences Building located on the West Virginia University Campus, and present a certified question from the Circuit Court of Monongalia County. The cases involve whether a “pay
if paid” condition precedent clause in a contract for a public building project violates West Virginia public policy.
2. Garrett M. Hicks, a minor, et al. v. Todd A. Jones, et al. - 31754 - This is an appeal by Liberty Mutual Fire Insurance Co. from an order the Circuit Court of Ohio County holding that payment of net lost wages rather than payment of gross wages violates the Unfair Claims Settlement Practices Act. Liberty Mutual Fire Insurance Co. insured a vehicle that struck Garrett Hicks. Garrett Hicks was unable to work for a period of time after the accident and Liberty Mutual initially paid him eighty percent of his lost wages, taking into account the twenty percent reduction as income tax consequences. Respondents argue that a lost wage claim cannot be reduced for taxes and payment of only net wages violates the Unfair Claims Settlement Practices Act. (Liberty Mutual Fire Insurance Co. is represented by Ancil G. Ramey, Steptoe & Johnson, Charleston, WV. Garrett M. Hicks and Donna J. Saus are represented by Robert P. Fitzsimmons, Fitzsimmons Law Offices, Wheeling, WV and Michael W. McGuane, Wheeling, WV and Carl S. Kravitz, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, Washington, DC. Amicus curiae briefs were filed by Clarence E. Martin, III, and Susan R. Snowden, Martin & Seibert, Martinsburg, WV on behalf of the West Virginia Chamber of Commerce.)
3. Tina Burch v. Paul Smarr, Next Friend & Guardian, etc - 31855 - This matter is on appeal by Tina Burch from an order of the Circuit Court of Clay County denying her custody of the minor child. The biological mother of the child died June 1, 2002. The child resided with Tina Burch and the biological mother before her death. After the death of the biological mother the maternal grandparents took physical custody of the child and the maternal grandfather gained guardianship of the child. Appellant sought custody of the infant in family court as the psychological parent of the child. The family court awarded custody of the child to Appellant. On appeal to the circuit court, custody was transferred to the maternal grandfather. The circuit court held that a surviving gay or lesbian partner does not have standing to assert the right of custody by advancing the law of a psychological parent. In the order granting the petition for appeal, this Court returned the child to the custody of Tina Burch, pending a final ruling of the Court. (Tina Burch is represented by James Wilson Douglas, Sutton, WV. Paul Smarr is represented by Donald K. Bischoff Summersville, WV. The Guardian ad litem of the child is Jeffrey L. Hall. Amicus curiae briefs were filed by Terri S. Bauer, Charleston, WV on behalf of American Civil Liberties Union of West Virginia Foundation and by Mary M. Downey, Charleston, WV on behalf of LAMBDA Legal Defense and Education Fund, Inc. and National Center for Lesbian Rights.)
4. Robert D. Fortner, II v. Kanawha Stone Company, Inc. - 31940 - Three certified questions from the Circuit Court of Logan County are presented in this trespass action. The first question is: “In an action for trespass over a corner of an unmarked parking lot by trucks hauling coal and other material for a highway construction contractor for the State of West Virginia, is the owner of real estate entitled to damages in the form of wheelage?” The second question is: “In an action for trespass over a corner of an unmarked parking lot by trucks hauling coal and other material for a highway construction contractor for the State of West Virginia, is the owner of an unmarked parking lot entitled to damages for unjust enrichment or mesne profits?” The third and final question presented is: “Does the intermittent, non-exclusive crossing of an unmarked parking lot by trucks for a highway construction project fall within the purview of a continuing trespass?” The circuit court answered all three questions in the negative. (Kanawha Stone Co., Inc. is represented by Marey Casey, Brian J. Headley and Mary H. Sanders, Huddleston, Bolen Beattey, Porter & Copen, Charleston, WV. Robert D. Fortner, Ii is represented by Bernard L. Spaulding, Logan, WV.) - Justice Davis disqualified. Honorable Robert B. Stone sitting by temporary assignment.
5. Columbia Casualty Co. v. Westfield Insurance Co. - 31941 - Continued to May 24.
The briefs and other filings are provided in PDF format.
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Wednesday, February 23, 2005