Robin J. Davis

This case involved two consolidated petitions by the West Virginia Department of Transportation, Division of Highways (DOH), seeking writs of prohibition to block circuit court orders in eminent domain proceedings. The orders required DOH to produce appraisal reports prepared for its South Mineral Wells highway project to property owners and lessees (Jones and the Pannells) during discovery. The Supreme Court of Appeals granted the writs, holding that federal regulations (49 C.F.R. § 24.9) adopted by state law mandate confidentiality of such appraisals and bar their disclosure. The court expressly overruled its prior decision in Cookman for failing to apply these mandatory federal confidentiality rules to condemnation discovery disputes.

propertyprocedurefederal power

This case arose from a construction dispute at the Merritt Creek Farms Development in West Virginia, where general contractor J.A. Street & Associates sought to recover 2003 remediation costs for settlement damage at the Shops A buildings from geotechnical firm S&ME, Inc., alleging improper fill placement; the claims were asserted as cross-claims in ongoing litigation brought by the property owners against multiple parties. The circuit court granted partial summary judgment to S&ME, ruling that Street's independent claims for those costs were barred by the statute of limitations and that W. Va. Code § 55-2-21 did not toll the limitations period. The Supreme Court of Appeals of West Virginia reversed, holding that the lower court erred in its application of the tolling statute to the cross-claims and in rejecting the possibility that the discovery rule preserved the claims based on disputed facts about when the cause of the damage was known.

propertyproceduretorts & liability

This case arose from a construction dispute at the Merritt Creek Farms Development in West Virginia, where general contractor J.A. Street & Associates incurred remediation costs in 2003 to address settlement damage at the Shops A area and sought recovery through cross-claims against geotechnical firm S&ME, Inc. The circuit court granted partial summary judgment to S&ME, dismissing Street's claims as time-barred under the statute of limitations and finding that W. Va. Code § 55-2-21 did not toll the period because the claims were independent rather than true cross-claims. On appeal, the Supreme Court of Appeals of West Virginia reversed the ruling, determining that the tolling statute could apply to preserve the cross-claims and that disputed facts regarding the discovery rule created genuine issues preventing summary judgment. The court remanded the case for further proceedings on the timeliness of Street's claims for the 2003 costs.

procedurepropertybusiness & regulatorytorts & liability

This case involved a dispute between BrickStreet Mutual Insurance Company and its policyholder Summit Point Raceway Associates over coverage for a deliberate-intent lawsuit brought by an injured employee. Summit Point had requested defense and indemnification under its workers’ compensation and employers’ liability policy, but BrickStreet denied the claim based on an intentional-injury exclusion; the circuit court granted partial summary judgment to Summit Point, ruling that West Virginia Code § 23-4C-6 imposed a duty on the insurer to offer commercially reasonable deliberate-intent coverage and that the policy language was ambiguous. BrickStreet appealed the resulting money judgment. The Supreme Court of Appeals reversed, concluding that the statute created no affirmative obligation on the insurer and that the policy unambiguously excluded deliberate-intent claims.

labor & employmentbusiness & regulatorytorts & liability

The case concerned the proper application of a West Virginia statute governing the Telecommunications Tax, under which the Public Service Commission issues an annual list of competitive services exempt from tax on a provider's gross income. Frontier sought a refund for 2004 based on the PSC's December 2004 list, while the Tax Commissioner maintained that a clarifying legislative rule made the list applicable only to the following calendar year. The circuit court held the statute unambiguous and the rule invalid, ruling that the 2004 list governed 2004 taxes and awarding Frontier over $9 million. The Supreme Court affirmed the finding that the statute is plain and unambiguous but reversed the invalidation of the rule, holding that the PSC list defines exempt income for the succeeding year and reinstating the Office of Tax Appeals' denial of the refund.

taxesbusiness & regulatory

In this appeal, the West Virginia Supreme Court of Appeals reviewed a circuit court's order imposing monetary sanctions on Joseph Casaccio and National Indemnity Company for their conduct during court-ordered mediation in a wrongful death action arising from a 2003 vehicular accident. The central issue was whether West Virginia Trial Court Rule 25.10 authorizes sanctions against an insurance carrier that fails, without good cause, to appear at mediation with a representative possessing full settlement authority. The court held that the rule does permit such sanctions on insurance carriers, but concluded that no sanctionable conduct occurred here, as the carrier's representative participated adequately under the circumstances and any limitations on authority were not improperly concealed, resulting in reversal of the sanctions order.

procedure

The case involved Thomas and Alice Loudin suing their auto insurer and related claims handlers after the company paid the medical payments limit but initially denied a liability coverage claim stemming from an accident in which Thomas was injured by his brother, a permissive user of the insured truck. The Loudins asserted claims including common law bad faith, breach of contract and implied duties, violations of the West Virginia Unfair Trade Practices Act, and the tort of outrage. The circuit court granted summary judgment for the defendants on the grounds that the Loudins were third-party claimants barred from bringing bad faith claims and had not shown extreme conduct to support outrage. The Supreme Court of Appeals of West Virginia reversed and remanded, holding that the Loudins were first-party claimants under the policy who could pursue the claims.

torts & liabilityprocedurebusiness & regulatory

The case involved Larry S. White II's conviction for first-degree murder and conspiracy to commit a felony after he killed the husband of his romantic partner using a hammer during a planned attack at a park. White appealed the conviction, raising issues including the trial court's refusal to strike certain jurors, sufficiency of the evidence for premeditation, admission of cell phone evidence obtained via search warrant, use of out-of-court statements by a co-conspirator, and alleged Brady violations regarding undisclosed records. The Supreme Court of Appeals of West Virginia affirmed the convictions and sentences, holding that the trial court committed no errors in its evidentiary rulings, jury selection, or denial of post-trial motions after reviewing the record and applicable legal standards.

criminal lawprocedure

This case involved State Farm Mutual Automobile Insurance Company seeking a writ of prohibition to block enforcement of a circuit court's protective order that limited how the insurer could use the medical records of Carla Blank and her deceased husband in defending a personal injury and wrongful death lawsuit arising from a 2008 car accident. The circuit court had issued the order to protect the confidentiality of the records during discovery in the underlying tort action against the at-fault driver's estate. State Farm argued that the restrictions improperly interfered with its obligations under West Virginia insurance regulations to maintain claims files. The Supreme Court of Appeals denied the writ, concluding that the protective order did not exceed the circuit court's authority and that the insurer had not shown it was entitled to extraordinary relief.

proceduretorts & liabilitybusiness & regulatory

The case involved William and Connie Huston suing Mercedes-Benz USA and a West Virginia dealer in state circuit court to enforce repair and warranty terms from a prior federal class action settlement agreement covering engine sludge and oil consumption issues in their 1999 SUV. The Hustons had joined the class settlement rather than opting out, but the defendants declined additional repairs. The Supreme Court of Appeals of West Virginia held that the state court lacked jurisdiction over the enforcement suit. The court reasoned that the federal district court had expressly retained continuing jurisdiction in both the settlement agreement and its final approval order, so disputes must be presented there under precedents such as Kokkonen v. Guardian Life Insurance Co.

procedurefederal power

The case involved a consumer, Linda Barr, who sued a bank and a professional debt collector, NCB Management Services, alleging that the collector violated the West Virginia Consumer Credit and Protection Act (WVCCPA) through aggressive and misleading debt collection practices related to a deficiency on a motorcycle loan. The U.S. District Court certified a question to the West Virginia Supreme Court of Appeals on whether the WVCCPA provides consumers a private right of action against non-creditor professional debt collectors. The court reformulated and answered the question in the affirmative, holding that W. Va. Code § 46A-5-101(1) permits such suits because the statutory term "creditor" encompasses professional debt collectors as "persons" under the Act's definitions. The reasoning centered on the plain language of the statute, its structure allowing consumers to recover damages from violators, and the inclusion of organizations within the definition of persons subject to liability.

business & regulatory

In Sims v. Miller, the West Virginia Division of Motor Vehicles revoked Edward Sims' driver's license for six months after his arrest for driving under the influence, based on field sobriety tests, a preliminary breath test, and an Intoximeter test showing a blood alcohol content of .091. The circuit court reversed the revocation, finding errors in the timing of the secondary chemical test, failure to reconcile conflicting evidence, improper weight given to the dismissal of the related criminal charges, and lack of an adverse inference from the officer's failure to produce a videotape. On appeal, the Supreme Court of Appeals of West Virginia reversed the circuit court and reinstated the revocation order. The court held that the Intoximeter test results were admissible, the evidence was sufficient to support the revocation even without the criminal case outcome or videotape, and the administrative findings were not clearly wrong.

criminal lawprocedure

The case concerned Timothy Davies, a millwright who developed work-related carpal tunnel syndrome and received a 2% permanent partial disability award after surgery. Davies appealed, contending that a proper application of the AMA Guides to the Evaluation of Permanent Impairment entitled him to a 6% award rather than the reduced amount imposed by an administrative rule. The Supreme Court of Appeals of West Virginia reversed the Board of Review's decision and reinstated the 6% award originally granted by the Office of Judges. The court determined that W. Va.C.S.R. § 85-20-64.5 was invalid as applied because its language did not authorize the restrictive interpretation that had lowered the impairment rating from 6% to 2% based on subjective severity categories. The ruling relied on the statutory standard of review allowing reversal when a Board decision violates applicable law or lacks evidentiary support.

labor & employment

The case concerned the Foster Foundation's attempt to recover $457,386.79 in certification fees paid to the West Virginia State Auditor to redeem property that had become tax-delinquent during a multi-year dispute over the Foundation's ad valorem tax exemption status. After the Foundation lost its exemption challenge in circuit court, the Auditor required payment of the fees upon redemption because the sheriff had certified the property to the Auditor under W.Va. Code § 11A-3-8. The Court of Claims denied reimbursement, and the Supreme Court of Appeals denied the requested writ of certiorari. The court held that the fees were properly charged because the property had been lawfully transferred to the Auditor's control after the sheriff's sale process, and the Foundation's failure to pay taxes during litigation did not prevent certification or the resulting statutory fees.

taxespropertyprocedure

In State v. White, the defendant was convicted of first-degree murder and conspiracy to commit a felony after evidence showed he killed the husband of his romantic partner by striking him with a hammer at a park, following discussions about the murder with the victim's wife. The defendant appealed, arguing errors including failure to strike jurors, insufficient evidence for the convictions, admission of evidence from a warrant-based cell phone search, admission of co-conspirator statements, and a Brady violation related to undisclosed records. The West Virginia Supreme Court reviewed the claims under applicable standards for new trial motions and evidentiary rulings, finding no merit in any of the arguments after examining the trial record, including the defendant's confession and phone records. The court therefore affirmed the convictions and consecutive sentences of life with mercy and one to five years.

criminal lawprocedure

The case involved Rodney Jason Berry's appeal from his convictions in the Circuit Court of Raleigh County for two counts of first-degree murder and two counts of firearm use, stemming from the December 2006 shooting deaths of his ex-girlfriend Martha Mills and her new partner Zachary Worthington outside her home. Berry raised five errors on appeal, including the trial judge's failure to recuse himself due to a prior marriage to the prosecutor, improper exclusion of mitigating evidence, insufficiency of the evidence to support a lying-in-wait theory, erroneous admission of photographs, and prosecutorial misconduct. The Supreme Court of Appeals of West Virginia affirmed the convictions and sentences of two consecutive life terms without parole, holding that the recusal claim was waived for not being raised at trial, that the evidence was sufficient under applicable precedents, and that the remaining claims lacked merit.

criminal lawprocedure

In Lawyer Disciplinary Board v. Smoot, the case concerned disciplinary proceedings against attorney Douglas A. Smoot for his actions while representing an employer in a federal black lung benefits claim filed by a pro se claimant, Mr. Daugherty. Smoot had arranged for a medical examination and received a full report from Dr. Zaldivar that included a narrative summary diagnosing complicated pneumoconiosis, but he submitted only selected portions of the report to the administrative law judge and the claimant while withholding the narrative. The court rejected the Hearing Panel Subcommittee's recommendation to dismiss the matter and instead found violations of Rules 3.4, 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct because federal regulations required disclosure of the entire medical report. The court suspended Smoot's law license for one year and imposed additional sanctions, reasoning that the partial submission breached duties of fairness, candor, and professional conduct in the administrative proceeding.

labor & employmentprocedure

This case involved two consolidated appeals from workers' compensation claimants who sought temporary total disability (TTD) benefits after injuries sustained at work, despite also receiving Social Security disability benefits. The Workers' Compensation Board of Review had denied the claims, interpreting regulations to preclude TTD benefits when claimants receive Social Security benefits or have no wages to replace. The Supreme Court of Appeals of West Virginia reversed these decisions, ruling that receipt of Social Security disability benefits alone does not disqualify injured workers from TTD benefits under W. Va.C.S.R. § 85-1-5.2, and remanded the cases for further proceedings to award benefits or determine eligibility based on whether the claimants had retired.

labor & employment

The case concerned a dispute in an underlying child abuse and neglect proceeding over responsibility for paying the fees and expenses of an expert witness retained by the minor child's mother to contest allegations regarding the child's injuries. The circuit court initially directed payment by the Public Defender Corporation according to its fee schedule but later ordered the DHHR to reimburse the mother's attorney for those costs. On appeal, the Supreme Court of Appeals of West Virginia affirmed the circuit court's ruling that the DHHR must cover the mother's expert witness costs in the abuse and neglect matter but reversed the portion requiring use of the Public Defender Corporation's fee schedule, instead directing application of the DHHR's own schedule under W. Va. Code § 49-7-33, and remanded for recalculation of the allowable fees.

family lawprocedure

This case involved claims of personal injury and wrongful death brought by the personal representative of a patient's estate against a hospital for alleged medical malpractice during and after hip replacement surgery. The circuit court granted summary judgment to the hospital, finding the claims barred by the two-year statute of limitations. The Supreme Court of Appeals of West Virginia affirmed, holding that the limitations period began running on the date of the patient's death and had expired before the complaint was filed, rejecting arguments for tolling based on the discovery rule or the patient's mental incapacity.

healthcareproceduretorts & liability