September
24, 2009 1.
1. Do allegations of a malicious prosecution suit against the insured, an attorney, by a client’s former opponent in a previous action defended by the insured fall within the scope of a commercial general liability policy of personal umbrella liability policy issued to the attorney wherein the term "personal injury" is defined to include "malicious prosecution"? The Court answers this question in the affirmative.
2. Under a liability insurance policy wherein the term "personal injury" is defined to include "malicious prosecution," is a malicious prosecution suit against the insured, an attorney, by a client’s former opponent in a previous action defended by the insured excluded by policy language that states that "This insurance does not apply to...‘personal injury’...due to rendering...professional services unless professional liability coverage has been endorsed herein or stated in the Declarations. This includes but is not limited to: (1) Legal, accounting or advertising services"? The Court answers this question in the affirmative.
3. Under a personal umbrella liability insurance policy wherein the term "personal injury" is defined to include "malicious prosecution," is a malicious prosecution suit against the insured, an attorney, by a client’s former opponent in a previous action defended by the insured excluded by policy language that states that "This insurance does not apply to...‘personal injury’ arising out of any act, malpractice, error or omission committed by any ‘insured’ in the conduct of any profession or ‘business,’ even if covered by ‘underlying insurance’"? The Court answers this question in the affirmative.
4. Do the "professional services" exclusion of the business owners package policy and/or the "professional liability" exclusion of the personal umbrella liability policy apply when the claim asserted against the policyholder for which coverage is sought is not made by a person or entity to whom the policyholder rendered professional services, but by a third-party to whom no professional services were rendered? The Court answers this question in the affirmative. Grant 4-1 (Ketchum, J.)
2. Michelle Issacs v. Daniel P. Bonner - No. 090960. Plaintiffs appeal an adverse decision of the circuit court following a bench trial in this action for statutory liquidated damages and attorney’s fees under the Wage Payment and Collection Act. Plaintiff seeks a reversal, an order directing defendant to pay liquidated damages, a remand for a determination of attorney’s fees, a reversal of the decision finding plaintiff liable to defendant for fraud, a reversal of the award of punitive damages and attorney’s fees in favor of defendant, and a remand for further consideration. Accept to Motion Docket
3. State of West Virginia v. Eric Lee Loudermilk - No. 090984. Defendant appeals from his convictions on two counts of attempted use of a minor to do or assist in doing sexually explicit conduct following a jury trial. He was acquitted of the sole count of obstruction of a law enforcement officer. Defendant raises various errors, including evidentiary error at trial and ineffective assistance of counsel. He seeks a reversal of his convictions and a new trial. Refuse 5- 0
4. State of West Virginia v. Jason D. Lupton - No. 090985. Defendant appeals following his guilty plea to two counts of sexual abuse by a parent. He was sentenced to serve two concurrent terms of 10 to 20 years. Defendant seeks a reversal and a remand with directions to place him on probation. Refuse 5- 0
5. State of West Virginia v. Jedediah L. Velas - No. 090986. Defendant appeals following his guilty plea to three felony counts surrounding the death of a four-year-old girl. Defendant challenges the admission of certain statements and testimony at his sentencing hearing from individuals not identified as "victims" under West Virginia law. He seeks a reversal of the circuit court’s sentencing and a remand for further proceedings. Refuse 5- 0
6. State of West Virginia v. Carl E. Nelson, II - No. 091011. Defendant appeals his convictions on various sex related crimes related to his minor daughter and minor son. Defendant raises Rule 404(b) issues, as well as several other grounds pursuant to Anders v. California, 386 U.S. 738 (1967). Refuse 5- 0
7. John David Mooney v. Michael Frazier, and Frazier & Oxley, L.C. - No. 091032. The circuit court certifies the following questions:
1. Whether the statute of limitations on a legal malpractice action stemming from the defense of a criminal defendant begins to run when the criminal defendant files a habeas corpus petition claiming that he suffered ineffective assistance of counsel in the underlying proceedings? Circuit Court’s Answer: Yes.
2. Is a criminal defendant collaterally estopped from filing a civil legal malpractice claim against his attorney until the underlying criminal conviction is overturned? Circuit Court’s Answer: No.
3. Whether, under West Virginia law, an attorney who is court appointed to represent a criminal defendant in a federal criminal prosecution is immune from purely state law claims of legal malpractice stemming from the underlying criminal proceedings? Circuit Court’s Answer: No. Grant 5- 0
8. State of West Virginia v. Ryan Nenigar - No. 091013. Ryan Nenigar appeals the circuit court’s order denying his motion for new trial based upon newly discovered evidence. He was previously convicted of first degree murder without a recommendation of mercy and conspiracy to commit murder. Accept to Motion Docket
9. State of West Virginia v. David M. Martin - No. 091014. David M. Martin appeals his conviction upon guilty plea to one count of Breaking and Entering. Arguing that there are questions about his competency and the State violated his plea agreement, petitioner asks this Court to set aside his guilty plea and remand for further proceedings. Grant 5- 0
10. State of West Virginia v. Angela Nutter - No. 091015. Angela Nutter appeals her sentence for two counts of Uttering and one count of Conspiracy to Commit Uttering. She received an effective sentence of 1 to 10 years in prison. Refuse 5- 0
11. State of West Virginia ex rel. Robert Wayne Decker v. Thomas L. McBride, Warden - No. 091019. Robert Wayne Decker appeals the denial of his post-conviction petition for writ of habeas corpus pertaining to his convictions for Kidnapping and First Degree Sexual Abuse. He asserts ineffective assistance of trial defense counsel and that trial errors violated his constitutional rights. Refuse 5- 0
12. Carol L. Straley (now Ward) v. Joseph M. Straley - No. 091020. Carol L. Straley (now Ward) appeals the circuit court’s order affirming the family court in a divorce case. She asserts errors pertaining to equitable distribution and the failure to award attorney’s fees. Refuse 5- 0
13. State of West Virginia ex rel. Douglas Redleski v. David Ballard, Warden, Mount Olive Correctional Complex - No. 091021. Douglas Redleski appeals the circuit court’s order denying his Motion for Arrest of Judgments. He argues that the circuit court’s orders in his three post-conviction habeas cases were insufficient. Refuse 5- 0
14. State of West Virginia v. Roshawn Pannell - No. 091022. Roshawn Pannell appeals his conviction for three counts of First Degree Robbery and one count of Fleeing from Police. He asserts, inter alia, insufficient evidence to support the convictions and that the trial court coerced a guilty verdict by imposing time constraints on the jury. Grant 4-1 (Benjamin, C. J.)
15. State of West Virginia v. James Dean Olivarri - No. 091025. James Dean Olivarri appeals the circuit court’s order revoking his probation. He asserts a violation of his right of confrontation and evidentiary error. Refuse 5- 0
16. State of West Virginia v. Purcell Anthony Lash, Jr. - No. 091012. Petitioner Purcell Anthony Lash, Jr., appeals from his conviction of one count of Sexual Assault in the Third Degree and one count of Sexual Abuse by a Custodian or Person in a Person in Position of Trust to a Child. Mr. Lash appeals his conviction and the denial of his motion to suppress alleged 404(b) evidence and the subsequent denial of his motion for acquittal based upon insufficiency of evidence to support the convictions. Refuse 3-2, (Ketchum, J., McHugh, J.)
17. Mannington Home Center v. Donna Jean Armstead and Anthony Armstead - No. 091028. Petitioners, Donna Jean Armstead and Anthony Armstead, appeal from an Order denying petitioner’s Motion to Alter or Amend the Judgment entered by the Monongalia Circuit Court on December 16, 2009. The Circuit Court denied the petitioner’s claim to enforce a mechanic’s lien against the Respondent. Refuse 5- 0
18. Ford Motor Credit Company, LLC v. Franklin R. Savage - No. 091033. Petitioner Franklin R. Savage appeals from an Order granting summary judgment in favor of Ford Motor Credit Company, LLC, on March 2, 2009. The Monongalia Circuit Court found judgment in the amount of $7,999.28, plus interest at the rate of 18% per annum from March 14, 2005, until the date of judgment. Refuse 5- 0
19. Grant Carter v. AES Industries, Inc and Theodore Soplinski - No. 091034. Petitioner Grant Carter prevailed at trial on claims of wrongful discharge for workers’ compensation discrimination and a wage payment violation. Petitioner is appealing rulings of law made by the Ohio County Circuit Court concerning mitigation of damages, the award of limited attorney’s fees and costs, the refusal to modify the punitive award; or in the alternative, to grant a new trial due to error. Refuse 5- 0
20. State Ex. E. Danny Baker v. Thomas L. McBride, Warden - No. 091047. Petitioner, Danny Baker, appeals from the denial of his Habeas Corpus petition. Petitioner is currently serving a life sentence for First Degree Murder. On appeal, petitioner argues that he should have been granted an Omnibus Habeas Corpus hearing. Refuse 5- 0
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