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

2.  Sharon A. Bolyard and Patricia One-Bull, individually, and on behalf of all others similarly situated v. Nationwide Mutual Insurance Company, Nationwide Assurance Company, Michael Higgins, Raymond Little, and Mary Shafer - No. 062305. Petitioners seek to docket the certified questions from the circuit court as follows:

1.  Whether an insurance company can violate the West Virginia Unfair Trade Practices Act or the administrative regulations promulgated thereunder by using, in compliance with West Virginia Code of State Rules §114-14-7.4, the CCC Valuescope valuation product if the Insurance Commissioner approved the CCC Valuescope product as an "Official Used Car Guide" pursuant to West Virginia Code § 33-6-33, and as defined by West Virginia Code of State Rules §114-14-7.2(d)?

ANSWER OF COURT: Yes.

2.  Can an insurance company be found to commit common law bad faith, fraud, or constructive fraud for using, in compliance with West Virginia Code of State Rules §114-14-7.4, the CCC Valuescope valuation product if the Insurance Commissioner approved the CCC Valuescope product as an "Official Used Car Guide" pursuant to West Virginia Code §33-6-33, and as defined by West Virginia Code of State Rules §114-14-7.2(d)?

ANSWER OF COURT: Yes.

Refuse 3 - 2
[ Maynard, J.,  Benjamin, J. ]

3.  Mary Ann Kominar, as administratrix of the Estate of Jason Kominar, deceased v. Health Management Associates of West Virginia, Inc., d/b/a Williamson Memorial Hospital, Inc., and Pelagio P. Zamora, Inc.; Mingo County Emergency Medical Services Authority, a West Virginia statutory organization; Mingo County Ambulance Service, Inc., a corporation; and Critical Link Ambulance Service - No. 062094. Plaintiff appeals from the circuit court’s order denying her motion to set aside the verdict or for a new trial following an adverse jury verdict in this wrongful death malpractice case.

Grant  5 - 0 

4.  State of West Virginia v. John William Woody - No. 062100. Defendant appeals from his conviction for delivery of Oxycontin following a jury trial. Defendant was sentenced to 1 to 15 years in the penitentiary. Defendant raises evidentiary errors. 

Refuse 5 - 0 

5.  Charles R. Short, Jr. and Margaret J. Short v. Wendy M. Short, in her own right and Wendy M. Short as Administratrix of the Estate of Charles R. Short, III, Deceased - No. 062101. Plaintiffs appeal from circuit court’s order granting summary judgment in favor of defendant in this action involving the interpretation of West Virginia Code §42-3-3a, entitled "Waiver of Right to Elect: Other Rights" and the interpretation of a marital separation and settlement agreement. 

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

6.  State of West Virginia v. Jesse Lynch - No. 062102. Defendant appeals from his conviction on four counts each of sexual assault in the first degree, incest, and sexual abuse by a parent. Defendant asserts evidentiary errors. 

Refuse 5 - 0 

7.  Bernard J. Folio, an individual, and Grandeotto, Inc., a corporation v. City of Clarksburg- No. 062107. Plaintiffs appeal from the circuit court’s order awarding summary judgment in favor of the defendant municipality in this action for specific performance and enforcement of right-of-way interests. 

Accept To Motion Docket

8.  United Bank, Inc., James Paul Estes, Joseph D. Stever, Bonnie M. Stever, Gary Lowther, Toni J. Poster, Dallas M. McNab, Jay S. Stevens, III, and Vickie Lynn Martin Stephens v. Stonegate Homeowners Assoc., et al. - No. 062157. Plaintiffs, Joseph and Bonnie Stever, appeal from the circuit court’s order denying their requests for costs and attorney’s fees under West Virginia Code §36B-3-116(f).

 Grant  5 - 0 

9.  Donna Joan Blankenship, an individual; Denae Williams, an infant, by Lynn Williams, Mother and Guardian of Denae Williams; Robert B. Adams, an individual; Albert Shaffer, an individual; Danny Kinder an individual; and Kenneth Fisher, an individual v. Ethicon, Inc., a New Jersey corporation; Johnson & Johnson, a New Jersey corporation; Johnson & Johnson Hospital Services, Inc., a New Jersey corporation; Johnson & Johnson Health Care Systems Inc., a New Jersey corporation; Seneca Medical, Inc., an Ohio corporation; Skyland Hospital Supply, Inc., a Tennessee corporation; Amerisource Medical Supply, Inc., a Tennessee corporation; Baxter Healthcare Corporation, a Delaware corporation; McKesson Medical-Surgical Medimart Inc., a Minnesota corporation; Owens & Minor, Inc., a Virginia corporation; Charleston Area Medical Center, Inc., a West Virginia corporation; and Herbert J. Thomas Memorial Hospital Association, a West Virginia corporation - No. 062117. Plaintiffs appeal from the circuit court’s order granting defendant hospital’s motion to dismiss holding that all of plaintiffs’ claims are barred by the West Virginia Medical Professional Liability Act and that West Virginia common law does not permit product liability claims to be made against healthcare providers as the distributor or seller of products. The circuit court’s order was entered following this Court’s remand for reconsideration of the circuit court’s initial ruling in light of Boggs-Camden Clarke Mem. Hosp. Corp., 216 W.Va. 656, 609 S.E.2d 917 (2004). 

Accept To Motion Docket

10.  Jean Tupta, n/k/a Jean Kennedy v. Michael Joseph Tupta, Jr.- No. 062118. Petitioner mother appeals from the circuit court’s order affirming the family court’s order denying her request for a protective order for her 3-year-old daughter. 

Refuse 5 - 0 

11.  Philip J. Graziani, Jr. v. Virgil P. Broughton and West Virginia Human Rights Commission - No. 062083. Philip J. Graziani, Jr. appeals the Human Rights Commission’s final order which adopted the final decision of its administrative law judge and dismissed his retaliation complaint. 

Accept To Motion Docket

12.  Holly Taylor v. Board of Education of the County of Pocahontas - No. 062119. Holly Taylor appeals the circuit court’s order which affirmed the Education & State Employees Grievance Board’s order denying her grievance. Petitioner asserts that her employer, the Pocahontas Board of Education, improperly terminated her employment via a reduction in force. 

Refuse 5 - 0 

13.  Rosa Moore v. Board of Education of the County of Lincoln - No. 062123. Rosa Moore appeals the circuit court’s order which denied her petition for mandamus. She asserts that the Lincoln County Board of Education failed to comply with an order of the Education and State Employees Grievance Board. 

Refuse 5 - 0 

14.  State of West Virginia v. Michael Marks - No. 062127. Michael Marks appeals his conviction for petit larceny. He entered a conditional guilty plea, reserving the right to appeal the issue of whether the three term rule was violated. 

Refuse 5 - 0 

15.  Mary Jane Price, Plaintiff v. Riverside Energy Company, LLC, a West Virginia Corporation, Defendant and Third-Party Plaintiff v. West Virginia Department of Transportation, Division of Highways, Third-Party Defendant - No. 062128. The defendant Riverside appeals the circuit court’s order which dismissed all claims against the third-party defendant, the West Virginia Department of Transportation’s Division of Highways. 

Refuse 5 - 0 

16.  Arthur R. Wills v. Cowin & Company, Inc., Mining Engineers and Contractors, an Alabama corporation, and Earl Brendle, individually - No. 062135. Plaintiff Arthur R. Wills appeals the circuit court’s order dismissing his deliberate intent lawsuit under Rule 12(b)(6). The court ruled that plaintiff cannot have a cause of action for the deliberate intent exception to WV Workers’ Compensation, W.Va. Code § 23-4-2(c), because plaintiff is receiving his workers’ compensation benefits from Kentucky and not West Virginia. 

Accept To Motion Docket

17.  State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Johnson & Johnson, Janssen Pharmaceutica Products, L.P., and Janssen Pharmaceutica Inc.  - No. 062154. Johnson & Johnson and Janssen, L.P. appeal the circuit court’s order dismissing their counterclaim against Attorney General McGraw. The counterclaim sought to enjoin the Attorney General from appointing private counsel as Special Assistant Attorneys General to initiate and prosecute this action to recover civil penalties for alleged violations of the WV Consumer Credit Protection Act. 

Accept To Motion Docket

18.  State of West Virginia, ex rel. Darrell V. McGraw, Jr., Attorney General v. Warrick Pharmaceuticals Corporation, Schering-Plough Corporation, Schering Corporation, Dey, Inc., Abbott Laboratories and Abbott Laboratories Inc.- No. 062114. The Attorney General appeals the circuit court’s order denying a motion for new trial. The AG unsuccessfully asserted at a jury trial that Warrick Pharmaceuticals Corporation illegally reported inflated prices for certain drugs to a pricing compendium that is relied upon by State agencies to determine prescription drug reimbursement rates. 

Accept To Motion Docket

19.  State of West Virginia v. William Kenneth Moneypenny - No. 062159. William Kenneth Moneypenny appeals his conviction for "Driving Under the Influence, Third or Subsequent Offense" and "Driving While Having an Alcohol Concentration of .10 or Higher, Third or Subsequent Offense." 

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

20.  State of West Virginia ex rel. Michael Maroney v. Thomas McBride, Administrator Mount Olive Correctional Complex - No. 062161. Michael Maroney appeals the circuit court’s denial of his petition for habeas corpus. He was previously convicted upon guilty pleas to two counts Second Degree Sexual Assault, one count First Degree Sexual Abuse, one count Aggravated Robbery, and one count Nighttime Burglary. 

Refuse 5 - 0 

21.  Thorn Hill, LLC, a West Virginia Limited Liability Company v. The Jefferson County Planning Commission, a Public Body, and Paul J. Raco, in his capacity as Zoning Administrator and Executive Director of Planning, Zoning, and Engineering of Jefferson County - No. 062163. The Jefferson County Planning Commission appeals the circuit court’s orders which granted a writ of mandamus requiring the Commission to approve a final subdivision plat submitted by Thorn Hill, LLC, denied the Commission’s motion to alter or amend, and which awarded Thorn Hill its attorney fees. 

Accept To Motion Docket

22.  Clinton San Francisco and Jesse San Francisco v. Wendy’s International, Inc. - No. 061900. Petitioners appeal a lower court order granting summary judgment in favor of the defendant, Wendy’s International. The underlying civil action sought damages for alleged food poisoning following the ingestion of a hamburger sold by the respondent. 

Accept To Motion Docket

23.  State of West Virginia v. Timothy S. Kesecker - No. 062171. Petitioner appeals the circuit court’s order denying his motion to suppress the evidence in his case. Petitioner seeks to have the court’s decision reversed with directions to allow him to withdraw his previously tendered plea of guilty to Count II of the Indictment. 

Refuse 5 - 0 

24.  Molly Underwood v. William Scott Campbell- No. 062198. Petitioner appeals from a Final Order of the Circuit Court of Kanawha County entered by Judge Walker on April 6, 2006, denying petitioner’s Petition for Appeal from a Final Order of the Kanawha County Family Court. 

Refuse 5 - 0 

25.  Davis Memorial Hospital v. Virgil T. Helton, State Tax Commissioner, of West Virginia - No. 062199. This is a civil appeal by the Acting State Tax Commissioner seeking the reversal of the March 21, 2006 Order of the Circuit Court which reversed a December 16, 2004 decision from the West Virginia Office of Tax Appeals and ruled that the Respondent was entitled to a refund of the consumers sales and service tax and use tax it had paid pursuant to its bulk purchases of drugs. 

Accept To Motion Docket

26.  Webster County Lumber Company, Inc. and Minerals and Land, Inc. v. Larry Wayne, Linda Wayne, and Stephen C. Sluss, in his capacity as Deputy Commissioner of Delinquent and Non-entered Lands of Webster County- No. 062201. Petitioners appeal the granting of summary judgment in favor of the Respondents based upon a failure to file an action in State Court within three years as required by statute. Petitioners seek to have the judgment of the Circuit Court set aside for failure to properly apply the West Virginia "savings statute" set forth in West Virginia Code 55-2-18. 

Refuse 5 - 0 

27.  State of West Virginia v. Andrew Scott Perry - No. 062099. Defendant pled guilty to first degree murder as charged in his indictment. The circuit court sentenced defendant to life without mercy. Defendant seeks relief in the form of a new trial, post-conviction bond, and any other relief that this Court deems necessary. 

Accept To Motion Docket