Tuesday, October 31, 2000

1. West Virginia Fire & Casualty Co. v. David Matthews, et al. - 27711 - No summary available. 

2. Cincinnati Insurance Co. v. Hugh N. Mills, Jr., et al. - 27805 - Plaintiff insurer seeks a reversal of the circuit court's declaratory judgment finding first-party coverage under a general liability policy for a claim made by the insured without any third-party claim.

3. Christopher Wayne Taylor v. Barbara D. Hoffman, Admx, et al. -  27777- Plaintiff appeals from the circuit court's order granting summary judgment in favor of defendant, Barbara Hoffman, in plaintiff's action to establish paternity and share in the intestate Estate of Barry Hoffman, deceased. - Continued to January 9, 2001. 

4. State Automobile Mutual Insurance Co. v. Alpha Engineering Services, Inc., et al. 27713 - Defendant appeals from the circuit court's award of summary judgment in favor of plaintiff in this declaratory judgment action. The circuit court determined that the subject insurance policy clearly and unambiguously precluded coverage for the defense and indemnification of defendant.

5. Kevin M. Lee v. The Gentlemen’s Club, Inc., dba Silk Stockings  - 27806 - The petitioner, The Gentlemen's Club, Inc., appeals from an order of the Circuit Court of Harrison County refusing to set aside a default judgment entered against the petitioner and in favor of the respondent, Kevin M. Lee. Although the Secretary of State sent a copy of the summons and complaint to the petitioner's managing officer by certified mail, the managing officer contends that he was not aware of the lawsuit until after a default judgment was entered. - Continued to November 1, 2000.

6. Nina R. Harbaugh, Admx. v. Christopher Coffinbarger, et al.  - 26557- The petitioner, representing the estate of an 18 year old killed by way of a handgun while attending a party, appeals from an order entered in the Circuit Court of Berkeley County granting summary judgment in favor of the respondents. The respondents include the parents of the individual who brought the handgun to the party and the owners of the home where the party took place.

7. SER One-Gateway Associates, LLC v. Hon. Gary L. Johnson, Judge, et al.  - 28205 - Petition for a writ of prohibition, to prohibit the circuit court from enforcing an injunction requiring the Division of Highways (DOH) to close an access road which permits public access to commercial property owned by Gateway on which stands a Super Wal-Mart and other businesses. The same issue was presented to the Court at such time as the DOH sought to appeal an injunction order which this Court refused 3-2 (Chief Justice Maynard and Justice Scott). Gateway and DOH had a contract under which the DOH agreed, if necessary, to condemn a small portion of property owned by Retail Designs, Inc. (RDI) to construct the access road. Upon the denial of the condemnation petition, DOH opened what had been a temporary construction entrance to provide the access road. RDI brought injunction proceedings and the court found there was burden or servitude upon RDI property by additional traffic and congestion which was constitutionally defective as a State taking of private property for a private use. 

8. SER Mitsubishi Caterpillar Forklift America, Inc. v. Hon. Arthur M. Recht, et al. -  28206 - Petition for Writ of Prohibition of circuit court order substituting Mitsubishi for Caterpillar, Inc. in personal injury suit involving industrial accident. After case was removed to federal court, it became known that perhaps Mitsubishi was a proper defendant rather than Caterpillar which was one of several defendants named in the Complaint. A standard pretrial order in federal court required parties to confer with regard to a discovery plan. Regional counsel for Mitsubishi was contacted and he sought at least to monitor that conference. Counsel for plaintiffs agreed that Mitsubishi could participate on the express condition that if it was determined that Mitsubishi was a proper defendant, there would be an agreed substitution of parties. Following the discovery plan telephone conference in which Mitsubishi's counsel participated, a report was sent by plaintiff's counsel to the federal court. The report referenced the agreement and no objection was raised thereto. Following remand to the state court, Mitsubishi's counsel admits he agreed to accept service of an amended complaint but disagreed that discovery could continue against Caterpillar. Pending a motion for sanctions against Mitsubishi, plaintiffs have filed a separate suit against Mitsubishi which has been removed. Judge Recht found no party contested that there was to be an agreed order substituting Mitsubishi and the only issue was how that was to be accomplished. The court ordered substitution. - Dismissed.

9. SER Brenda Kay Patton v. Hon. Kendrick King, Judge, et al.  - 28207- Petitioner seeks to direct Judge King to enter an order requiring ex-husband to make payments in divorce matter. In her divorce proceeding Petitioner was awarded: 9a) $312 per month for house payments; (b) $550 per month for child support; and (c) $150 per month for alimony. There was a subsequent downward modification of the child support in the amount of $209 representing the father's social security award that was paid to the child. Petitioner states her ex-husband (a) has filed to make the house payments since October 1995; (b) has failed to pay all of the child support obligations; and (c) has failed to pay all of the alimony obligations. - To be presented on briefs only without oral argument.

10. SER Clifton W. Hanshaw v. Hon. A. Andrew MacQueen, III, Judge  - 28208 - Hanshaw, pro se, asserts that Judge MacQueen has neglected to rule on his petition for a writ of habeas corpus for one year and four months. Hanshaw requests that the Court issue an Order compelling Judge MacQueen to rule upon his pending motion for habeas corpus relief. - To be presented on briefs only without oral argument.

11. SER Keith Willis Norman v. Milton Ferguson, Circuit Clerk  - 28210 - Norman, pro se, seeks a writ of mandamus seeking to compel the Circuit Court to provide him with a complete story of his plea proceedings, and all of his transcripts needed to file a post conviction habeas corpus petition. - Dismissed.

12. State of W. Va v. James Allen Baylor  - 27771 - The petitioner, James Allen Baylor, appeals from his conviction of malicious assault returned by a jury in the Circuit Court of Preston County. The petitioner contends that the evidence was insufficient to support the verdict and that the Circuit Court erred in admitting the medical records of the alleged victim, absent any medical witness.

13. Estate of Berthold Stollings v. Division of Environmental Protection, et al.  - 27757 - The petitioner, Berthold Stollings, appeals from an order entered in the Circuit Court of Logan County upholding a Level IV grievance decision that the petitioner, an employee of the West Virginia Division of Environmental Protection, was entitled to an Engineer III classification ( rather than an Engineer I classification ) but was not entitled to back pay and attorney fees. This appeal concerns the back pay and attorney fee issues. - Continued to January 9, 2001.