Supreme Court of Appeals of West Virginia

gavel Argument Docket  
Tuesday, October 28, 2003

1. (*) In Re: West Virginia Asbestos Litigation  - 31237 - The circuit court certifies three questions regarding whether federal law preempts state law asbestos claims against the manufacturers of railroad locomotive parts. Petitioners (certain defendants below) assert the court has incorrectly answered that there is no preemption. 

CERTIFIED QUESTIONS: 

1. Are state law tort claims against manufacturers of parts or components of locomotives used on any railroad, which is engaged in interstate or foreign commerce, preempted by federal law under the Locomotive Boiler Inspection Act, 49 U.S.C. § 20701 et seq.?
Circuit Court Answer: No.

2. Are state law tort claims against manufacturers of parts or components of trains, locomotives, railcars, and similar vehicles used on any railroad, which is engaged in interstate or foreign commerce, preempted by federal law under the Safety Appliance Act, 49 U.S.C. § 2031 et seq.?
Circuit Court Answer: No.

3. Are state law tort claims against manufacturers of parts or components of trains, locomotives, railcars, and similar vehicles used on any railroad, which is engaged in interstate or foreign commerce, preempted by federal law under the Federal Railroad Safety Act, 49 U.S.C. § 20101 et seq.?
Circuit Court Answer: No.

2.  Erica Hager v. Travis Hager - 31325 - The petitioner, Erica Hager, appeals from an order entered in the Circuit Court of Lincoln County adopting the recommendation of the family law master and changing custody of the parties' child from the petitioner to the respondent, Travis Hager. Emphasizing that the respondent went to live with his parents, the petitioner contends, inter alia, that the change in custody was improper because the Circuit Court, in effect, awarded the child to the respondent's mother who, rather than the respondent, would be the caretaker of the child.

3.  Martinka Coal Co. v. WV Division of Environmental Protection, et al. - 31323 - Petitioners appeal from the circuit court's final order denying their request for reasonable attorney's fees and finding that the state regulations promulgated pursuant to the West Virginia Surface Coal Mining and Reclamation Act do not allow citizen litigants to recover such fees for the time spent in successfully defending against a coal company's appeal of a West Virginia Surface Mine Board decision.

4.  Geraldine Toth v. Board of Parks and Recreation Commissioners, aka Boparc, et al. - 31340 -  Plaintiff appeals from the jury verdict returned in favor of defendants in this action alleging age discrimination and constitutional tort. Plaintiff also appeals the circuit court's order granting summary judgment in favor of defendants on her claim that they failed to hire her in violation Art. III, §§ 16 and 17 of the West Virginia Constitution. - To be submitted on briefs only without oral argument.

5.  James Maynard, et al. v. The Aro Corporation, et al. - 31348 - Continued.

6.  Brian Chad McGilton, et al. v. U. S. Xpress Enterprises, Inc. - 31324 - Petitioners appeal the circuit court's dismissal of their deliberate intent workplace injury case. 

7.  State of W. Va. v. Kirk N. - 31315 - This is an appeal from a juvenile delinquency proceeding. After a mistrial due to a deadlocked jury, the juvenile was adjudicated delinquent of second degree sexual assault against a physically helpless victim and of conspiracy to commit a felony. Petitioner seeks a new trial.

8.  State of W. Va. v. Jack W. Hinchman - 31153 - Defendant was convicted of two felony counts of obtaining money by a worthless check in violation of W.Va. Code §61-3-39. He was resentenced following this Court's order which refused, without prejudice, his petition for appeal from the circuit court's order denying his petition for a writ of habeas corpus, and directed the circuit court to resentence him to toll anew the appeal period for filing a petition for appeal with this Court from his underlying convictions. Defendant now appeals the circuit court's resentencing order sentencing him to two (2) indeterminate terms of 1 to 5 years each in the penitentiary. 

9.  Kedron Setser v. Neil Browning - 31342 - Petitioner appeals the granting of an adverse summary judgment in his negligence suit against respondent. Petitioner was the passenger in a jeep which was driven by respondent and which was involved in an accident.

10.  Raleigh General Hospital v. Debra Caudill - 31322 - Plaintiff Hospital appeals from the circuit court's order granting summary judgment in favor of defendant finding that the common law only requires that a husband provide for his wife but did not create a concomitant responsibility for a wife to pay the debts of her husband. The circuit court also found that it could not modify the common law and that neither the former Married Womens' Act or the current statute regarding the financial responsibility of spouses towards each other has applicability to hospital bills. Plaintiff Hospital seeks a reversal of the circuit court's order and a finding that the common law doctrine of necessaries embraces a gender neutral position in West Virginia.

11.  In the Matter of: Robert J. Trozzi v. Board of Review, WVBEP, et al. - 31318 - Petitioner appeals the circuit court's denial of his motion for attorney's fees in connection with his successful petition for a writ of mandamus and prohibition. 

12.  State of W. Va. v. Brenda Katherine Mitchell - 31280  - Petitioner/Defendant appeals her conviction by jury of felony assault and wanton endangerment with a firearm, alleging that substantive evidence was presented by stipulation without any written stipulation being signed by Petitioner/Defendant; abuse of discretion inasmuch as the court refused to allow Petitioner/Defendant to present evidence concerning victim's reputation for being quarrelsome and violent, refused to allow Petitioner/Defendant present evidence from victim's employment records relating to his alcohol abuse, and allowed Petitioner/Defendant to be cross-examined concerning her alleged abuse of prescription medications; denial of effective assistance of counsel; verdicts not supported by the evidence; and abuse of discretion in sentencing. -  To be submitted on briefs only without oral argument.

13. Triad Energy Corporation of West Virginia, Inc. v. Barbara Trunk Renner, et al. - 31243 - Defendant below appeals circuit court order enforcing settlement agreement between Defendant/ landowner and gas pipeline company to allow access to leased gas wells through Defendant's land, arguing that the circuit court erred in enforcing the written agreement which contained terms not in the parties' oral settlement agreement.

(*) Justice Davis disqualified
Judge Stone sitting by temporary assignment

 

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Monday, October 20, 2003