November 13, 2002 Argument Docket, WV Supreme Court

Supreme Court of Appeals of West Virginia

  Argument Docket
                 Wednesday, November 13, 2002

1. SER WV Dept. of Health & Human Resources, CAO, et al. v. Harry O. Lambert - 30104 - Defendant appeals from the circuit court's order summarily denying his petition for review of the recommended decision of the family law master in this action involving the calculation of child support arrearage.

2. Robert L. Hively, M.D. v. John V. Merrifield, M.D., et al. - 30437 - The petitioner, Robert L. Hively, M.D., appeals from an order entered in the Circuit Court of Kanawha County dismissing his claims against the respondent, Anthem Health Plan of West Virginia d/b/a Primeone. The petitioner and certain other physicians were partners in Dunbar Medical Associates and participated in the insurance plan of respondent Anthem. The petitioner alleged that his partners violated his rights during the dissolution of Dunbar Medical Associates. - To be submitted on briefs only without oral argument.

3. SER Michael Clifford, Pros. Atty. v. Hon. James Stucky, Judge, et al. - 30739 - No summary available.

4. SER David Appleby v. Hon. Arthur M. Recht, Judge - 30737 - No summary available.

5. SER Reynolds Memorial Hospital, Inc. v. Hon. Mark A, Karl, Judge, et al. - 30728 - Dismissed.

6. SER Jennifer Ann Kinle v. WV Department of Corrections - 30738 - No summary available. - Dismissed.

7. Robert C. Carter, et al. v. Monsanto Company, et al. - 30651- CERTIFIED QUESTION: Does a common law cause of action exist in West Virginia for the recovery of the cost of future inspection and monitoring of real estate for the presence of toxic substances where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant's tortious conduct in creating and maintaining a chemical dump and permitting toxic substances placed in said chemical dump to enter the waterways of this State to be deposited down stream upon the land of others through flooding thus exposing such land and its owner to toxic contamination?
ANSWER: The circuit court answered this question in the negative.

8. * Ann Tierney Smith, Exex., et al. v. First Community Bancshares, Inc., et al. - 30623 - Plaintiffs appeal from the circuit court's order denying their motion for summary judgment and finding that the invasion of the corpus of a marital trust was authorized by the Will creating the Trust. Plaintiffs also appeal from the circuit court's directed verdicts in favor of defendants on plaintiffs' claims for breach of fiduciary duty and fraud.

* Ann Tierney Smith, Exex., et al. v. First Community Bancshares, Inc., et al. - 30624 - Defendants appeal from the circuit court's order dismissing their claim for legal fees and costs in relation to defending against the plaintiffs' claim of fraud.

9. Lincoln Beatty v. Ford Motor Company - 30622 - In this action, concerning a single vehicle accident, the petitioner and plaintiff below, Lincoln Beatty, appeals from a summary judgment entered in the Circuit Court of Monongalia County in favor of the respondent and defendant below, Ford Motor Company. The petitioner contends that the Circuit Court committed error in concluding that the petitioner failed to make a sufficient showing upon his theories of strict liability and res ipsa loquitur.

10. David Stanley, dba L & D Contractors v. Linn Mining Co., et al. - 30629 - Plaintiff, a judgment creditor, seeks a reversal of the circuit court's order which found that the intervenor bank's perfected security interest in proceeds derived from the mining of coal had priority over plaintiff's security interest.

11. Charles William Hewitt, Ph.D. v. State of WV Dept. of Health & Human Resources - 30621 - The petitioner, West Virginia Department of Health and Human Resources, was granted leave by a vote of 3-2 (Justices McGraw and Albright would refuse) to file this second petition for appeal of the order entered in the Circuit Court of Ohio County granting mandamus relief to the respondent, Dr. Charles William Hewitt, and directing the DHHR to pay Dr. Hewitt in excess of $71,000, plus interest, for services as a court-appointed expert in various juvenile delinquency and child abuse and neglect cases.

12. Duane E. Drennen v. Pamella L. Drennen - 30628 - Petitioner appeals from the circuit court's order in this divorce action. She asserts that the circuit court erred in refusing to award her alimony, ownership of the marital home, and adequate attorney fees and costs. She also challenges certain credits, which the circuit court gave to respondent in equitable distribution.

13. Ronald L. Matheny, et al. v. Fairmont General Hospital, Inc., et al. - 30256 - Plaintiffs appeal from the circuit court's order denying their motion for a new trial after an adverse jury verdict in this medical malpractice action.

14. SER Steven Michael English v. WV Department of Corrections - 30767 - Criminal defendant seeks the issuance of a writ of mandamus so that he might be moved from the Southwestern Regional Jail to a Department of Corrections facility for needed dental work which cannot be performed at the Southwestern Regional Jail. - To be submitted on briefs only without oral argument.

15. SER Donna S. Myers v. Robert J. Smith, Comm’r, WC Employment Bureau - 30768 - No summary available. - To be submitted on briefs only without oral argument.

16. Laura A. Findley, et al. v. State Farm Mutual Automobile Insurance Co. - 30842 - This appeal arises from a class action instituted against automobile insurers, and involves the retroactivity of certain amendments to West Virginia's Uninsured Motorist Law that followed the Court's 2000 decision in Mitchell v. Broadnax . Nationwide Mutual Insurance Company has been given leave to intervene and participate in oral argument. Also participating in oral argument will be a representative of several business and insurance industry associations who filed a joint brief amici curiae. - This case will be argued tomorrow, Nov. 14, at 10:00 a.m

   * This case will be heard at 10:00 a.m.
       Justice McGraw disqualified.
       Judge Matish sitting by temporary assignment.

Wednesday, November 13, 2002