October 6, 2005 (Continued from September 22, 2005)

1.  Horace Mann Insurance Company v. Charles W. Adkins, Jr. No. 051790. Petitioner requests that the Court answer the following certified question:

For the purpose of the underinsured motorists insurance claim of the Administrator of the estate of Joseph Corey Adkins against Horace Mann Insurance Company whether the Circuit Court of Fayette County should attribute, in light of the doctrine of constructive exhaustion, unexhausted liability coverage under the existing policies of insurance to the Estate of Joseph Corey Adkins, the only remaining potential claimant, or whether the court should attribute unexhausted liability coverage pro rata to each of the estates of the four minors killed in the matter at issue?

The circuit court answered this question stating that unexhausted liability coverage should be attributable pro rata.

Refuse 3 - 2
[ Davis. J., and Maynard, J. ]

2.  Horace Mann Insurance Company v. Charles W. Adkins, Jr. No. 051110. Defendant appeals seeking an affirmation of the circuit court’s answer to the following certified question:

For the purpose of the underinsured motorists insurance claim of the Administrator of the estate of Joseph Corey Adkins against Horace Mann Insurance Company whether the Circuit Court of Fayette County should attribute, in light of the doctrine of constructive exhaustion, unexhausted liability coverage under the existing policies of insurance to the Estate of Joseph Corey Adkins, the only remaining potential claimant, or whether the court should attribute unexhausted liability coverage pro rata to each of the estates of the four minors killed in the matter at issue?

The circuit court answered this question stating that unexhausted liability coverage should be attributable pro rata.

Refuse 3 - 2
[ Davis, J., and Maynard, J. ]

3.  SER Martin D. Coleman v. Warden, St. Mary’s Correctional Center - No. 051243. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus.

4.  In the Marriage of: Wendell W. Evans v. Virginia E. Evans  - No. 051244. Petitioner appeals from the circuit court’s order affirming the final order of the family court reducing alimony from $1,500 a month to $250 a month and dismissing her petition for contempt.

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

5.  State of West Virginia v. Rodger D. Mitchell - No. 051259. Defendant was convicted by jury on four counts of sexual abuse by a custodian and eight counts of physical abuse creating a risk of injury. Six of the physical abuse counts were subsequently dismissed. In total, defendant was sentenced to an indeterminate term of 22 to 50 years and fined $26,000.

6.  Helen L. Porter and Eston Porter v. Grant County Board of Education - No. 050893. The circuit court certifies two questions regarding any immunity the Grant County Board of Education may enjoy under the WV Tort Claims and Insurance Reform Act or the public duty doctrine in a personal injury case.

Grant  3 - 2
[ Albright, C. J., and Starcher, J. ]

7.  In re: Adoption of an Infant Female Child Born on December 21, 2002, Named Kristy Danielle G. - No. 051674. Biological parents appeal from a final order granting the adoption of a minor child. They assert that the court erred in finding that a "Relinquishment and Consent For Adoption" is not defective or obtained by misrepresentation, and that the court erred in finding that the biological father had no parental rights.

8.  State ex rel. Baylis Mason Green v. Warden, Western Regional Jail - No. 051190. Petitioner appeals the denial of his omnibus petition for habeas corpus. He was previously convicted upon a conditional guilty plea of two counts of aggravated robbery.

Refuse  5- 0

9.  Lusk Disposal Service, Inc., a West Virginia Corporation v. Director, Division of Water and Waste Management, Department of Environmental Protection - No. 051273. The Director of the Division of Water and Waste Management of the WV Department of Environmental Protection ["DEP"] appeals the circuit court’s order which partially reversed an order of the WV Environmental Quality Board ["EQB"]. The circuit court ruled that the EQB erred when finding that an operation of Lusk Disposal Service, Inc., falls under the definition of "transfer station," thus the circuit court dismissed a citation issued by the DEP.

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

10.  William L. Sedgmer, Jr., Personally and as next friend of his natural children, Jacob A. Sedgmer, Lucas D. Sedgmer and Elizabeth A. Sedgmer and William L. Sedgmer, III, Individually v. McElroy Coal Company, Consolidation Coal Company, Consol, Inc., Eugene L. Saunders, Individually and as agent of the aforementioned corporations - No. 051309. Plaintiffs appeal an adverse summary judgment order in a deliberate intent case.

Accept To Motion Docket

11.  State of West Virginia v. William Brian Neff - No. 051310. Petitioner entered a conditional guilty plea to driving under the influence, second offense. He reserved the right to appeal the denial of his motion to suppress evidence resulting from a sobriety checkpoint.

12.  Jerry L. Shaffer v. Tanyia & Raymond M. - No. 051348. Petitioners appeal a circuit court’s order which affirmed a family court’s order. The family court found that a putative biological father has standing to pursue a paternity action and ordered the parties to undergo paternity testing.

13.  U.S. Steel Mining Company, Inc., U.S. Steel Mining Company, L.L.C., Coastal Coal - West Virginia L.L.C., Kingston Resources, Inc., Mid-Vol Leasing, Inc., Paynter Branch Mining, Inc., Pioneer Fuel Corporation, Peabody Holding, Inc., Brooks Run Mining Co., L.L.C., and Elk Run Coal Company, Inc. v. Rebecca Melton Craig - No. 051345. The State Tax Commissioner appeals the circuit court’s order which denied the Commissioner’s motion for leave to file appeal out of time and granted the Taxpayers’ motion to dismiss appeal. The court held that the 60 day statutory deadline for filing an appeal from a decision of the Office of Tax Appeals to circuit court is jurisdictional, and additionally, that the Commissioner failed to show excusable neglect for missing the deadline by 10 days.

Accept To Motion Docket

14.  Committee To Stop Discrimination Against Rural Children, Save Harts High, Nancy Ramey, Dinah Hager, Alvin Goodwyn, and Denise Frye v. Dr. David Stewart, in his official capacity as State Superintendent of Schools, The West Virginia State Board of Education, and William Grizzell, in his official capacity as Superintendent of Lincoln County Schools - No. 051361. Plaintiffs appeal an adverse summary judgment order in a case involving the closure and consolidation of four schools and a career center in Lincoln County.

15.  C & O Motors, Inc., Love Imports of St. Albans, Inc., Love Nissan, Inc., and Saint Albans Imports v. Bell & Bands, PLLC v. James F. Love, III and Gene Walker - No. 051362. Plaintiffs filed suit against defendants alleging tortious interference with existing and future business relationships, which resulted from two targeted direct mail advertisements sent to plaintiffs’ customers. The Court granted a Motion to Dismiss submitted by the Respondent.

Accept To Motion Docket

16.  State of West Virginia v. Matthew Bolen  - No. 051364. Petitioner seeks reversal of his conviction and sentence for first degree sexual assault. Petitioner requests a new trial on the matters at issue or a granting of the petitioner’s Motion for Judgment of Acquittal.

Accept To Motion Docket

17.  Frank A. Whitacre v. County Commission of Hampshire County, Hampshire Board of Canvassers, Leslie Shoemaker, President, O. Grady Bradfield and Donald P. Cookman, Commissioners and David R. Parker, Candidate - No. 051395. This appeal involves the contested November 2, 2004 Election results of the Hampshire County Assessor race. The Circuit Court, after reviewing the record, disqualified 25 provisional ballots which made Whitacre the winner by a three vote margin. Parker, the person initially declared the winner by the County Commission, was removed from office.

Refuse 4 - 1
[  Benjamin, J. ]

18.  Edgar Neff v. Value-Tech Auto Service Center, Inc.  - No. 051393. Petitioner appeals the granting of summary judgment against him by the lower court. Petitioner had alleged that the respondent failed to properly repair his vehicle by allowing a non-certified technician to test the electrical system.

19.  Charles Allen, William Ising and Gregg Anthony v. West Virginia Internet, Inc., Ntelos Corporation and Timothy Davis - No. 051397. This civil proceeding was commenced by petitioners who had entered into a so-called "life-time" contract for internet services for a one-time, fixed price with West Virginia Internet, Inc., a privately owned, start-up, internet service provider. In 1999, the company announced its intention to discontinue the life-time contracts. Petitioners alleged that the company breached its contract in violation of the West Virginia Consumer Protection Act.