Reported Decisions of Martin & Seibert, L.C.
The firm has a long history of a successful appellate and litigation firm with reported
decisions dating from the firm’s inception. Clients routinely turn to Martin & Seibert, L.C.
for resolution of cases of first impression or to take on added responsibilities of appellate
counsel through all state and federal courts. The firm’s founders made routine
appearances before the Supreme Court of the United States and several members of the
firm continue as members of the Supreme Court Bar with several petitions for writs of
certiorari filed before the Court. Members of the firm also routinely appear before the
Fourth Circuit Court of Appeals and the West Virginia Supreme Court of Appeals as well
as other courts of record throughout the country.
Dorsey v. Progressive Classic Ins. Co., 2013 W. Va. LEXIS 1286:
Where a West Virginia motor vehicle insurance policy includes within the definition
of an insured person "any other person while occupying a covered vehicle," a guest
passenger is a first-party insured under the medical payments section of the policy.
State Farm Fire & Cas. Co. v. Prinz, 743 S.E.2d 907 (2013)
Because it addresses evidentiary matters that are reserved to and regulated by
the Supreme Court pursuant to the Rule-Making Clause, the Dead Man’s Statute,
W.Va. Code §57-3-1, is invalid as it conflicts with the paramount authority of the
West Virginia Rules of Evidence.
In actions, suits or proceedings by or against the representatives of deceased
persons, witness testimony and documentary evidence pertaining to any
statement of the deceased, whether written or oral, shall not be excluded solely on
the basis of competency.
Davis v. State Farm Fire & Cas. Co., 2013 W. Va. LEXIS 769:
Loss Settlement Provision language in a Personal Articles Policy is clear and
unambiguous. Therefore, the doctrine of reasonable expectations does not apply.
Because State Farm waived any right to salvage, the issue is moot without meeting
any exception to the mootness doctrine; furthermore, the law of the case doctrine
will apply.
Dan Ryan Builders, Inc. v. Nelson, 508 Fed. Appx. 207 (4th Cir. 2013)and 682
F.3d 327 (4th Cir. 2013)
Upon the West Virginia Supreme Court of Appeals answering a previously certified
question: Does West Virginia law require that an arbitration provision, which
appears as a single clause in a multi-clause contract, itself be supported by mutual
consideration when the contract as a whole is supported by adequate
consideration, the Court reversed a contrary conclusion of the U.S. District Court
for the Northern District of West Virginia.
Bowles, et al. v. Massey Energy Co., et al., 2012 U.S. Dist. LEXIS 179187
(S.D.W.Va. 2012):
Mandatory abstention under 28 U.S.C.S. § 1334(c)(2) will be applied where: (1)
the third party plaintiffs timely filed a motion to remand: (2) federal law was not
implicated by the third-party complaint; (3) the third party plaintiffs' causes of action
for declaratory relief and breach of contract were non-core; (4) the one-year
limitation on removal of diversity cases, 28 U.S.C.S. § 1446, precluded diversity
jurisdiction, and thus, the action could not have been commenced in federal court
absent jurisdiction under 28 U.S.C.S. § 1334; and (5) the case was capable of
timely adjudication in state court.
Schatken v. State Farm Mut. Auto. Ins. Co., 230 W.Va. 201, 737 S.E.2d 229
(2012):
A "non-duplication" of benefits provision in an underinsured motorist policy which
permits an insurer to reduce an insured's damages by amounts received under
medical payments coverage does not violate the "no sums payable" language of
W. Va. Code § 33-6-31(b), insofar as it does not serve to reduce the underinsured
motorist coverage available under the insured's policy.
Courts are not constituted for the purpose of making advisory decrees or resolving
academic disputes. The pleadings and evidence must present a claim of legal right
asserted by one party and denied by the other before jurisdiction of a suit may be
taken.
Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 737 S.E.2d 550 (2012):
The formation of a contract with multiple clauses only requires consideration for
the entire contract, and not for each individual clause. So long as the overall
contract is supported by sufficient consideration, there is no requirement of
consideration for each promise within the contract, or of "mutuality of obligation,"
in order for a contract to be formed.
A court in its equity powers is charged with the discretion to determine, on a caseby-case basis, whether a contract provision is so harsh and overly unfair that it
should not be enforced under the doctrine of unconscionability.
In assessing whether a contract provision is substantively unconscionable, a court
may consider whether the provision lacks mutuality of obligation. If a provision
creates a disparity in the rights of the contracting parties such that it is one-sided
and unreasonably favorable to one party, then a court may find the provision is
substantively unconscionable.
Jenkins v. City of Elkins, et al., 230 W.Va. 335, 238 S.E.2d 1 (2012):
Uninsured motor vehicle coverage is triggered when a person sustains an
automobile injury or loss that is caused by a tortfeasor who is immune from liability.
An uninsured motor vehicle policy exclusion for a government owned vehicle is
against West Virginia public policy and is therefore void and unenforceable.
An employer's insurance policy that excludes coverage for medical payment
benefits to an employee who sustains an injury arising out of and in the course of
employment is only enforceable to exclude medical payment coverage for that part
of a claim that exceeds the amount subrogated by the employer's workers'
compensation carrier.
Toothman v. Jones, 2012 W. Va. LEXIS 832:
The Supreme Court refused to change a longstanding evidentiary rule prohibiting
the introduction of a defendant’s insurance coverage into evidence at trial.
Evidence of future pain ng future pain and suffering in a personal injury action must
be proven to a reasonable degree of medical certainty.
Carter v. Allstate Ins. Co., U.S. Dist. LEXIS 117288 (N.D.W.Va. 2012):
Plaintiff's motion for remand of a class action suit was denied. The trial court had
subject matter jurisdiction under CAFA as plaintiff’s spreadsheets in a prior, similar action,
estimated compensatory damages of over $5.8 million for about 80 putative class
members. Thus, it was more likely than not that the CAFA amount in controversy
requirement was met. The prior spreadsheets were relevant as the prior suit was
substantially identical, and mirrored the putative class period although the present
putative class was more broadly defined and contemplated a larger putative class.
Thereafter, defendant’s motion to strike class allegations was granted.
Small v. Ramsey, 280 F.R.D. 264, 2012 U.S. Dist. LEXIS 29035 (N.D.W.Va. 2012):
Plaintiff’s request for a Medical Protective Order granted as moulded by the Court.
Absent some present evidence plaintiff is the subject of fraudulent activity or is
engaged in fraudulent activity, or upon Plaintiff’s consent, Plaintiff’s medical
records produced in discovery will not be permitted to be disseminated to foreign
private entities.
Cumptan v. Allstate Ins. Co., 2011 U.S. Dist. LEXIS 88491 (N.D.W.Va. 2011):
Applying the “two dismissal rule” or Rule 41 of the Federal Rule of Civil
Procedure, the District Court found two prior dismissals in state court barred a
third civil action by the doctrine of res judicata.
Nationwide Agribusiness Ins. Co. v. DeGasperin, 2011 U.S. Dist. LEXIS
75050 (N.D.W.Va. 2011):
A liability insurance policy with an intentional acts exclusion will be applied as
written to preclude coverage for an intentional killing. The insured’s suit for
collateral relief via habeus corpus of his criminal conviction still proceeds, but the
conviction is long since final and completes the coverage inquiry.
Geiser v. Simplicity, Inc., et al., 2011 U.S. Dist. LEXIS 61948 (N.D.W.Va. 2011):
Summary judgment to insurer upheld pursuant to “Recalled Products Exclusion.”
Thus, no duty to defend or indemnify a wrongful death action arising from the
manufacture and sale of an allegedly defective crib.
State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell (Bedell II), 228 W.Va.
252, 719 S.E.2d 722 (2011), cert. denied, 132 S.Ct. 761 (2011):
Appellate review of whether a claimant has demonstrated good cause for the
issuance of a Medical Protective Order is under an abuse of discretion standard.
The term “medical information” in a Medical Protective Order suggests the term is
used interchangeably with the phrase “medical records.”
A medical protective order is not intended to be a vehicle for improper intrusion
into a party's documents that have been prepared in anticipation of or in
preparation for litigation or in the course of representing a client
HIPAA sets forth the baseline for the release of health information. Because HIPAA
calls for the return of documents at the conclusion of litigation, a certification clause
in a Medical Protective Order concerning return, destruction or redaction of
medical records or medical information is not an abuse of discretion.
CACV of Colorado, LLC v. Haynes, 2011 W. Va. LEXIS 194 (2011):
Because the Circuit Court could not determine the amount of monthly payments
debtor made on three separate judgments, the Court was warranted in releasing
debtor from two judgments. Any subsequent request for relief under Rule 60(b) of
the West Virginia Rules of Civil Procedure is within the discretion of the Circuit
Court.
Maxum Indem. Co. v. Westfield Ins. Co., 2011 U.S.Dist. LEXIS 7230
(N.D.W.Va. 2011):
Contract language requiring indemnification for all claims arising from a
construction incident includes deliberate intent claims.
Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351 (4th Cir. 2011):
The use of 50% multiplier on hours worked in excess of 40 is the correct method
of computing employees’ overtime compensation under the Fair Labor Standards
Act. The issue of whether the employer’s misclassification of employees as exempt
was willful is a fact question.
Standiford v. Rodriguez, 2010 U.S. Dist. LEXIS 96743 (N.D.W.Va. 2010):
A request for injunctive relief does not constitute an independent cause of action;
rather, the injunction is merely the remedy sought for the legal wrongs alleged in
the substantive counts.
Because the Plaintiff failed to prove that State Farm shares confidential or medical
information with an indexing bureau, the plaintiff has not made a clear showing
that he is likely to succeed on the merits. The plaintiff seeks to prevent
dissemination of his personal information to third parties not privy to the case, but
he has made no showing that he faces an imminent threat of actual harm if
personal information is shared. In addition, the plaintiff has offered no evidence
that his private medical information is not adequately protected by existing law.
The plaintiff has failed to show that these existing protections are insufficient to
secure his privacy interests, thus, he has failed to establish that he is likely to suffer
irreparable harm in the absence of injunctive relief.
State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell (Bedell I), 226
W.Va. 138, 697 S.E.2d 730 (2010):
In a case of first impression, a Circuit Court may not impose protective Orders
directing an insurance company to return or destroy a claimant’s medical records in
contravention of Insurance Commissioner record retention regulations. Additionally,
insurers may utilize electronic claim files. Finally, claimants are required to present
particular and specific facts to demonstrate good cause in order to obtain a
protective Order under Rule 26 of the West Virginia Rules of Civil Procedure.
Wolfe v. Greentree Mortg. Corp., 2010 WL 391629 (N.D.W.Va. 2010):
A district court must abstain from hearing “non-core, related matter” if the action
can be timely adjudicated in state court.
Princeton Ins. Agency, Inc. v. Erie Ins. Co., 225 W.Va. 178, 690 S.E.2d 587
(2009):
Insurance company and agent were legally incapable of conspiring with one
another, as required, to demonstrate restraint of trade. Evidence was insufficient to
support a finding that the agency sustained the type of injury that antitrust laws are
designed to protect against. $4.2 million verdict reversed. (Amicus brief filed in
support of Erie).
Blake v. State Farm Mut. Auto. Ins. Co., 224 W.Va. 317, 685 S.E.2d 895 (2009):
Auto policy excluding coverage for borrowed trailers was not contrary to nor more
restrictive than property damage liability coverage required by statute.
Desmond v. PNGI Charles Town Gaming, LLC, 661 F.Supp.2d 573, 158
Lab.Cas. P 35,649 (N.D.W.Va. 2009):
Upon remand from the Fourth Circuit Court of Appeals, the “fluctuating work week
method” of compensation does not require a mutual understanding concerning
how overtime premiums are calculated. One way to compute overtime is to divide
an official’s salary by hours worked to determine the “regular rate,” then award
half-time for hours worked beyond 40 hours.
Caruso v. Pearce, 223 W.Va. 544, 678 S.E.2d 50 (2009):
The Supreme Court reviews a circuit court’s order dismissing a civil action for
inactivity under Rule 41(b) of the West Virginia Rules of Civil Procedure under an
abuse of discretion standard.
Boniey v. Kuchinski, 223 W.Va. 486, 677 S.E.2d 922 (2009):
Vehicles, such as ATVs, which are not required to carry liability insurance are
beyond the purview of the uninsured motorist statute. A policy provision excluding
ATVs from the definition of an uninsured motor vehicle does not violate the intent
or the purpose of the UM statute.
Desmond v. PNGI Charles Town Gaming, L.L.C., 564 F.3d 688, 157 Lab.Cas.
P 35,573, 14 Wage & Hour Cas.2d (BNA) 1449 (4th Cir. 2009):
Racing officials are not subject to Fair Labor Standards Act’s administrative
exemptions. Summary Judgment reversed and remanded.
State ex rel. Nationwide Mut. Ins. Co. v. Marks, 223 W.Va. 452, 676 S.E.2d
156 (2009):
A trial court’s Order compelling discovery did not exceed the court’s judicial
authority necessary to entitle the insurer to a writ of prohibition where the Order
directed the insurer to submit confidential materials, not necessarily privileged, to
the trial court for an in camera review with a protective order in place concerning
confidential settlement agreements.
Smoot ex rel. Smoot v. American Elec. Power, 222 W.Va. 735, 671 S.E.2d
740 (2008):
Even though a child is a trespasser on the property of a third party, he is not a
trespasser as to one who maintains electric [or guy] wires either on or in such
proximity to the lands of the third person that the child while on such lands or
objects on such lands may come in contact with the wires.
Carter v. U.S., 957 A.2d 9 (2008):
Error in trial court's jury instruction on aiding and abetting was not plain error with
respect to defendant’s conviction for attempt to commit robbery while armed as an
aider and abettor; any error in trial court's decision to allow jury to hear recording
of phone call that witness made to police to report a gunshot was harmless.
Fauble v. Nationwide Mutual Fire Ins. Co., 222 W.Va. 265, 664 S.E.2d 706
(2008):
Insureds were entitled to reasonable attorney fees from insurer as a result
of litigation imposed on insureds to successfully obtain reduction of
reimbursement that insurer was entitled to for funds it had paid insureds
under policy, and remand was appropriate for circuit court to determine
amount of reasonable attorney fees to which insureds were entitled.
Massey Coal Services, Inc. v. Victaulic Co. of America, 249 F.R.D. 477
(S.D.W.Va. 2008):
Documents evidencing defendants’ internal efforts, taken prior to initiation of suit
and in response to customers’ complaints and warranty claims, to determine the
cause of failures of a product did not constitute confidential commercial information
and thus protective order would be denied.
State ex rel. Nationwide Mut. Ins. Co. v. Kaufman, 222 W.Va. 37, 658 S.E.2d
728 (2008):
Circuit courts must conduct in camera reviews of privileged information in an
insurer’s claim file, even while underlying claim against insured is pending.
Strum v. Swanson, 221 W.Va. 205, 653 S.E.2d 667 (2007):
The West Virginia Supreme Court held, as a matter of first impression, that
wrongful death beneficiaries may not recover emotional distress damages under
their individual UIM policies.
State ex rel. Taylor v. Nibert, 220 W.Va. 129, 640 S.E.2d 192 (2006):
Court held that the insureds' suits did not arise out of the same transaction or
occurrence as the class action and therefore individual claims of those who
objected should not have been transferred. Court also held that insureds should
have received notice of the proposed transfers and an opportunity to object before
the transfer into the class action.
State ex rel. State of West Virginia Dept. of Transp., Div. of Highways v.
Cookman, 219 W.Va. 601, 639 S.E.2d 693 (2006):
The WV Department of Transportation cannot be compelled to produce appraisal
reports and other evaluations prepared by persons or firms who had been
retained by the Department of Transportation but not designated as testifying
expert witnesses.
Stroman v. U.S., 905 A.2d 194 (2006):
Court of Appeals held that evidence was sufficient to show the defendant had
custody of dogs in question so as to support convictions for cruelty to animals as
charged.
Adams v. Insurance Co. of North America, 426 F.Supp.2d 356 (S.D.W.Va.
2006):
Amendments to complaints filed by insureds against insurers in state court action,
which putatively added parties in order to correct errant references to similarly
named entities, related back to the original complaints filed prior to the effective
date of the Class Action Fairness Act (CAFA) and therefore were not subject to
removal pursuant to CAFA. Even if removal jurisdiction existed on grounds that the
cases were “related to” bankruptcy cases, equitable remand to state court was
appropriate.
Banks v. U.S., 902 A.2d 817 (2006):
Evidence may be deemed sufficient to support conviction, even if it does not
exclude
every
reasonable
hypothesis
other
than
guilt.
Aluise v. Nationwide Mut. Fire Ins. Co., 218 W.Va. 498, 625 S.E.2d 260 (2005):
Homeowners’ alleged failure to disclose structural and water seepage problems
when selling their home was not an “occurrence” within the meaning of a
homeowners’ policy.
Lombard Canada, Ltd. v. Johnson, 418 F.3d 392 (4th Cir. 2005):
Upon certified question, a settling party is not permitted to assert an inchoate right
of contribution against an additional tortfeasor through an independent cause of
action.
Griffin v. U.S., 878 A.2d 1195 (2005):
Defendant was not in custody for Miranda purposes, even though police officer
grabbed defendant by his shirt, escorted him out of hotel, and questioned him while
officer and second officer stood on either side of him, each holding one of his arms;
minutes before, it appeared that defendant was running from first officer, officers
restrained defendant to prevent him from running again while they investigated.
State ex rel. Vedder v. Zakaib, 217 W.Va. 528, 618 S.E.2d 537 (2005):
Court held that insured was dilatory in asserting potential claim and, thus, she was
not entitled to amend her complaint to add the claim two years and three months
after learning of insurer's sale of her vehicle to salvage yard.
Lombard Canada, Ltd. v. Johnson, 217 W.Va. 437, 618 S.E.2d 446 (2005):
West Virginia Supreme Court held that subrogee, as the settling party, was not
permitted to assert an inchoate right of contribution against an additional tortfeasor
through an independent cause of action.
Webster County Solid Waste Authority v. Brackenrich & Associates,
Inc., 217 W.Va. 304, 617 S.E.2d 851 (2005):
Allegedly negligent or faulty workmanship in design, engineering, and inspection
is not an “occurrence” in a commercial general liability policy and, thus, there is no
duty to defend or indemnify such claims made against an insured engineering firm.
Holloman v. Nationwide Mut. Ins. Co., 217 W.Va. 269, 617 S.E.2d 816 (2005):
A prior finding that an insurer’s handling of single claim indicated a general
business practice of violating the Unfair Trade Practices Act had no collateral
estoppel effect. The right to offensively invoke collateral estoppel is not automatic
and rests in the discretion of the trial court. (Amicus on behalf of multiple insurers).
Hicks ex rel. Saus v. Jones, 217 W.Va. 107, 617 S.E.2d 457 (2005):
An award of damages should be based upon the plaintiff's gross earnings or
earning capacity and should not be reduced because of any income tax or other
paycheck-type deduction; a “fair and equitable settlement” within the meaning of
the Unfair Trade Practices Act (UTPA) is a settlement made by an insurer
impartially, honestly, and free from prejudice, self-interest, or other improper
influence; and question of insurer's violation of the UTPA was for jury. (Amicus on
behalf of West Virginia Chamber of Commerce).
Glucksberg v. Polan, 107 Fed.Appx. 363 (4th Cir. 2004):
A District Court acts within its discretion in imposing sanctions against a party.
General Motors Corp. v. Smith, 216 W.Va. 78, 602 S.E.2d 521 (2004):
Neither the Employee Retirement Income Security Act (ERISA) nor the Labor
Management Relations Act (LMRA) preempt a disability discrimination claim under
the West Virginia Human Rights Act.
State ex rel. Allstate Ins. Co. v. Madden, 215 W.Va. 705, 601 S.E.2d 25 (2004):
The traditional attorney-client privilege and work product doctrines are applicable
in first-party bad faith actions. As to the attorney-client privilege, the crime-fraud
exception can apply in delineated circumstance in a bad faith claim.
Rose ex rel. Rose v. St. Paul Fire and Marine Ins. Co., 215 W.Va. 250, 599
S.E.2d 673 (2004):
An insurer cannot be held liable for violations of the Unfair Trade Practices Act
solely as a result of alleged litigation misconduct by the insured’s defense counsel.
For UTPA liability to attach, the insurer must encourage, direct or ratify the
attorneys' misconduct. (Amicus on behalf of Progressive Paloverde Insurance
Company).
U.S. ex rel. Werner v. Fuentez Systems Concepts, Inc., 319 F.Supp.2d 682
(N.D.W.Va. 2004):
Court held that False Claims Act’s scienter requirement was negated by Coast
Guard directions to defendant companies to fully bill for labor expenses for certain
type of time not worked.
Martino v. Barnett, 215 W.Va. 123, 595 S.E.2d 65 (2004):
In a case of national first impression, the West Virginia Supreme Court held that
the judicial process exception to the Gramm-Leach-Bliley-Act and the State
Privacy Rule require an insurer to disclose nonpublic personal information
concerning its insured to a third-party claimant. However, an insurer may object
and seek in camera review of the information which requires the claimant to
establish good cause for seeking the information from the insurer.
Lombard Canada, Ltd. v. Johnson, 356 F.3d 507 (4th Cir. 2004):
Court held that certification of question to West Virginia Supreme Court of Appeals
was appropriate, as to whether tortfeasor who was strictly liable to State and who
settled its liability before suit by obtaining release from “all claims whatsoever
which could arise from the damages or any other damages of [the State] which
could be based on the incident,” had cause of action for contribution under West
Virginia law against joint tortfeasor.
Johnson ex rel. Estate of Johnson v. Acceptance Ins. Co., 292 F.Supp.2d
857 (N.D.W.Va., 2003):
Under West Virginia law, a claimant who enters into a consent judgment with an
insured can only collect up to the policy limits of insured’s liability policy when the
insured was provided a covenant not to execute and, thus, personal assets were
never at risk. The Court also held that a one-year statute of limitations governs
first-party claims under West Virginia Unfair Claims Settlement Practices Act which
begins to accrue when the insurer denied coverage. Thus, claim alleging improper
denial of coverage was time-barred.
McKibben v. Eastern Hospitality Management, Inc., 288 F.Supp.2d 723
(N.D.W.Va. 2003):
Court held that equity required that claimants’ action be deemed timely filed on
next day that county courthouse was open to public based on closing of courthouse
on previous date due to inclement weather.
Vosburgh v. Indemnity Ins. Co. of North America, 217 F.R.D. 384 (S.D.W.Va.
2003):
Court held that in considering whether opposing party will suffer legal prejudice if
leave is granted to voluntarily dismiss, court may consider: (1) opposing party’s
effort and expense in preparing for trial; (2) excessive delay or lack of diligence on
the part of movant; (3) insufficient explanation of need for dismissal; and (4)
present state of litigation.
Phares v. Brooks (Phares II), 214 W.Va. 442, 590 S.E.2d 370 (2003)
Transcripts of voir dire and hearing on remand established plaintiff's right to new
trial based on juror's failure to respond to question whether any juror was familiar
with road where automobile accident occurred; juror admitted at remand hearing
that she was familiar with the road, but testified that she simply did not remember
whether she heard the question when asked, nothing indicated that she heard the
question and answered while being overlooked, and the plaintiff thus established
that juror failed to respond or responded falsely.
State ex. rel. Medical Assurance of WV, Inc. v. Recht, 213 W.Va. 457, 583
S.E.2d 80 (2003):
Insurers owe no common law duty of good faith and fair dealing nor a fiduciary
duty to third parties. Fact work product, not attorneys' opinion work product, was
discoverable in unfair claim settlement practices action if plaintiff made a showing
of substantial need and an inability to secure the substantial equivalent of the
materials by alternate means without undue hardship. Opinion work product
enjoys a nearly absolute immunity and can be discovered in only very rare and
extraordinary circumstances. (Amicus on behalf of Nationwide Mut. Ins. Co.,
Progressive Paloverde Ins. Co. and American Insurance Association).
Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807
(2002):
The Court prospectively overruled prior decisions of the West Virginia Supreme
Court requiring insurers to establish line item premium discounts or rate
adjustments corresponding to any exclusion, condition, definition, term, or
limitation in an insurance policy. The Court also upheld the filed rate doctrine.
Phares v. Brooks(Phares I), 211 W.Va. 346, 566 S.E.2d 233 (2002):
Court held that plaintiff plausibly showed that a juror failed to respond or falsely
responded to material voir dire questions, and thus was entitled to a post-trial
hearing as to the juror’s conduct.
Millville Quarry, Inc. v. Liberty Mut. Fire Ins. Co., 31 Fed.Appx. 116, 2002 WL
429365 (4th Cir. 2002):
Insurer, as owner and operator of quarry that flooded, brought suit against its
property insurer to recover costs associated with pumping water out of the quarry.
Court held that: (1) cost of floating pump barge was not covered as “cost of
replacement” of insured’s permanent pumps; (2) cost of pumping water out of
quarry, conducting water inflow investigations, and grouting underground conduits,
which insured alleged amounted to over $10 million, was not covered as “additional
expenses” to covered property; and (3) “period of recovery,” during which
additional expenses could be recovered, ended when the first pump barge was
floated, which was time that pumps identical to insured’s permanent pumps should
have been operational.
Wise v. Travelers Indem. Co., 192 F.Supp.2d 506 (N.D.W.Va. 2002):
Court held that exercise of removal jurisdiction was not warranted based upon
diversity of parties.
Morris v. Slack, 188 F.Supp.2d 645 (N.D.W.Va. 2002):
Motor vehicle accident victim brought personal injury action against tortfeasor
driver and his automobile liability insurer. Tortfeasor’s insurer filed third-party
action against lessor of vehicle driven by tortfeasor at time of accident, seeking
declaration that self-insured lessor was obligated to extend automobile insurance
coverage to tortfeasor and that such coverage was primary over tortfeasor’s
insurer’s coverage. Both lessor and insurer moved for summary judgment. Court
held that lease agreement effectively shifted liability for insurance coverage to
tortfeasor’s insurer.
Kanawha Valley Radiologists, Inc. v. One Valley Bank, N.A., 210 W.Va.
223, 557 S.E.2d 277 (2001):
An insured must be “made whole” before an insurer can assert its right to
subrogation.
Hessami v. Corporation of Ranson, 170 F.Supp.2d 626 (N.D.W.Va. 2001):
Court held that lawful arrest did not support claim for intentional infliction of
emotional distress claim under West Virginia law, and that even if arrestee was
unlawfully arrested, he failed to establish he suffered emotional distress that would
support intentional infliction of emotional distress claim.
Wheeling-Pittsburgh Corp. v. American Ins. Co., 267 B.R. 535, 46 Collier
Bankr.Cas.2d 1428 (N.D.W.Va. 2001):
District court had authority, once it decided to abstain from hearing removed action,
to remand the action to state court.
Zaeno Intern., Inc. v. State Farm Fire and Cas., 152 F.Supp.2d 882 (E.D.Va.
2001):
A nonsuit tolling provision, which tolled statute of limitations and permitted insured
to refile within six months after voluntary nonsuit, applied to an insurance contract
that contained a statutorily required contractual limitations period for actions, even
though the tolling provision was not referenced in the Virginia statute containing
the limitations period.
Sheetz, Inc. v. Bowles Rice McDavid Graff & Love, PLLC, 209 W.Va. 318,
547 S.E.2d 256 (2001):
Court held that the advice of counsel defense is not an absolute bar to a claim for
punitive damages in wrongful termination cases. The Court also held that expert
testimony is admissible in legal malpractice actions.
Fox v. General Motors Corp., 247 F.3d 169, 11 A.D. Cases 1121 (4th Cir. 2001):
Court held that as a matter of first impression, cause of action for a hostile work
environment is cognizable under the American with Disabilities Act.
Harbaugh v. Coffinbarger, 209 W.Va. 57, 543 S.E.2d 338 (2000):
Court held that guest’s act, whether characterized as intentional suicide or a tragic
consequence of playing Russian Roulette, constituted an intervening cause as a
matter of law for purposes of negligence action against the homeowner who hosted
the party where decedent engaged in the game.
Fox v. General Motors Corp., 94 F.Supp.2d 723, 18 NDLR P 74 (N.D.W.Va. 2000):
Court held that finding of hostile work environment in violation of the Americans
with Disabilities Act was supported by evidence where supervisors referred to
employee as “cripple,” stated that employee did not want to work, and that his light
duty section was “911 crew.”
CMC Enterprise, Inc. v. Ken Lowe Management Co., 206 W.Va. 414, 525
S.E.2d 295 (1999):
Record supported trial court's finding that remodeling contractor and building
owner orally modified their contract to provide for performance of additional work
that was not called for in original contract, which did not contain provision for written
change orders, and thus, fact that no written change order was prepared did not
preclude contractor's recovery for such additional work.
Dunn v. Doe, 206 W.Va. 684, 527 S.E.2d 795 (1999):
Court expanded the requirements of physical contact in John Doe claims
permitting testimony of independent third-party eyewitnesses to demonstrate that,
but for insured’s evasive action to avoid physical contact with unknown unidentified
vehicle, a collision would have occurred.
Oak Cas. Ins. Co. v. Lechliter, 206 W.Va. 349, 524 S.E.2d 704 (1999):
A trial court may not require settling parties to sign releases in an interpleader
action when the funds placed into court may be insufficient to satisfy all claims
against the tortfeasor.
Gallagher v. Allstate Ins. Co., 74 F.Supp.2d 652 (N.D.W.Va. 1999):
It is not an act of bad faith for a liability insurer to insist upon a release of its insured
as a condition of settlement.
AmTote Intern., Inc. v. PNGI Charles Town Gaming Ltd. Liability Co., 66
F.Supp.2d 782 (N.D.W.Va.1999):
Provider of computerized pari-mutuel (tote) services at race track brought action
against track owner for breach of contract. On cross-motions for summary
judgment, the court held that: (1) contract to provide tote services at race track
was extended when referendum passed; (2) plaintiff did not breach agreement by
assigning portions of contract; and (3) release of plaintiff’s assignee from obligation
to make payments under contract also released plaintiff.
Frederick Business Properties Co. v. U.S., 55 F.Supp.2d 524 (N.D.W.Va.
1999):
Lessor and its property insured sued United States under Federal Tort Claims Act
to recover for fire damages to offices leased by government for use by IRS, based
on government’s alleged delay in responding to fire alarm at offices. Court held
that government owed no duty to lessor to conform to certain standard of conduct
in responding to an alarm.
Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676, 6 Wage &
Hour Cas.2d (BNA) 1409 (1999):
Court held that whether fringe benefits have accrued to employee under
separation, and thus are required to be paid under the Wage Payment Collection
Act, is determined by terms of employment. The Court will construe any ambiguity
in the terms of employment in favor of employees. (Amicus on behalf of West
Virginia Manufacturer’s Association and West Virginia Retailer’s Association).
Conrad v. Charles Town Races, Inc., 206 W.Va. 45, 521 S.E.2d 537, 137
Lab.Cas. P 58,502, 4 Wage & Hour Cas.2d (BNA) 1752 (1998):
Court held that time limitations governing payment of wages in the Wage Payment
Collection Act did not apply to payments made by employer pursuant to the WARN
Act.
Bowers v. Town of Smithsburg, 173 F.3d 423 (4th Cir. 1999):
Court held that the Mayor of Smithsburg, MD, did not violate the Due Process
Clause when she fired the Chief of Police. The Court found that the express
powers granted municipalities implying that municipalities have the power to hire
and fire employees, combined with well-settled Maryland law recognizing that
municipalities have powers not expressly granted, supported the Mayor’s actions.
Potomac Edison Co. v. Jefferson County Planning and Zoning Com'n,
204 W.Va. 319, 512 S.E.2d 576 (1998):
Court held that utility was subject to commission’s land use regulations, and
commission did not have nondiscretionary duty to find that utility was in compliance
with county planning and zoning ordinances.
State ex rel. United Asphalt Suppliers, Inc. v. Sanders, 204 W.Va. 23, 511
S.E.2d 134 (1998):
Court held that supplier, which did not sign agreement containing arbitration
clause, could not be directed to participate in arbitration.
A & M Properties, Inc. v. Norfolk Southern Corp., 203 W.Va. 189, 506 S.E.2d
632 (1998):
Court held that railroad track is to be considered a public highway, in which no
party may establish an interest through adverse possession, prescriptive
easement or equitable estoppel.
State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75
(1998):
Court created the quasi attorney-client privilege to protect communications
between defense counsel and the liability insurer contained in a claim file sought
in discovery in a third-party “bad faith” suit. The Court also held that an inadvertent
disclosure of privileged material in discovery is not in and of itself a waiver of the
attorney-client privilege.
State ex rel. Oak Cas. Ins. Co. v. Henning, 202 W.Va. 505, 505 S.E.2d 424
(1998):
Writ of prohibition granted to insurer to bifurcate and stay discovery of a “bad faith”
claim while underlying subrogation claim proceeded.
Elmore v. State Farm Mut. Auto. Ins. Co., 202 W.Va. 430, 504 S.E.2d 893
(1998):
A third party has no cause of action against a liability insurance carrier for common
law bad faith and also refused to impose a fiduciary duty between insurers and
third parties.
Kelly v. Painter, 202 W.Va. 344, 504 S.E.2d 171 (1998):
Court upheld an insurance policy’s clear and unambiguous liquor liability exclusion.
Nelson v. Allstate Indem. Co., 202 W.Va. 289, 503 S.E.2d 857 (1998):
Court held that Maryland, not West Virginia, law governed an insurer’s right to
offset which, therefore, reduced underinsured motorist benefits by the amount of
liability proceeds.
McDaniel v. Kleiss, 202 W.Va. 272, 503 S.E.2d 840 (1998):
Court held that UIM carrier had no subrogation right to the liability insurance
proceeds, and liability insurer’s payment by depositing policy limits with the court
discharged and satisfied subsequent tort judgment for less than policy limits.
Farm Family Mut. Ins. Co. v. Thorn Lumber Co., 202 W.Va. 69, 501 S.E.2d
786 (1998):
Court held that amount sought by insurer was not “sum certain,” and thus
evidentiary hearing on damages was required.
Bowers v. Town of Smithsburg, Md., 990 F.Supp. 396 (D.Md. 1997):
A Maryland statute authorizing city council to remove an appointed municipal
official from office, but also requiring city council to provide prior notice and
hearing, did not supplant the mayor's power to remove appointed municipal
officials from office. Town’s chief of police was not constitutionally entitled to notice
and hearing before removal.
Jones v. Allstate Ins. Co., 120 F.3d 261 (4th Cir.1997):
Court held that because there was no demand by the insureds outstanding
immediately prior to the filing of suit by the insureds, the insureds did not
substantially prevail on their claim against their auto insurer.
Payne's Hardware & Bldg. Supply, Inc. v. Apple Valley Trading Co. of
WV, 200 W.Va. 685, 490 S.E.2d 772 (1997):
Circuit court did not abuse its discretion in denying motion to reconsider grant of
summary judgment in action where hardware store sued homeowners for unpaid
price of supplies for construction of home and where circuit court granted hardware
store’s motion for summary judgment.
State ex rel. McMahon v. Hamilton, 198 W.Va. 575, 482 S.E.2d 192 (1996):
Court held that trial court should not have ordered disclosure of contents of mental
examination report to other parties to underlying action prior to receiving report and
determining whether information in report was sufficiently relevant to the
underlying action so as to outweigh any importance in maintaining the plaintiff’s
confidentiality.
McDaniel v. Kleiss, 198 W.Va. 282, 480 S.E.2d 170 (1996):
Evidence rule barred the trial court from altering a verdict based upon a proffer of
alleged juror confusion.
Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996):
Court held that before a trial court may dismiss an action with prejudice for failure
to prosecute claim, notice and an opportunity to be heard must be given to all
parties of record.
In re Genovese, 96 F.3d 1438 (4th Cir. 1996):
Court held that collateral estoppel precluded a separate and independent
examination by the Bankruptcy Court of the findings of a New York court regarding
whether attorney’s fees awarded are in the nature of support and maintenance in
a domestic case.
Shade v. Panhandle Motor Service Corp., 91 F.3d 133 (4th Cir. 1996):
District court properly found that when employer terminated its group health plan
with Blue Cross and implemented a self-insured plan providing stop-loss coverage,
it had a fiduciary duty to enroll all of its employees in the new plan so they had
continued medical coverage.
Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996):
Trial courts retain jurisdiction to impose sanctions after a verdict, pending appeal,
so long as the motion was pending at the time the appeal was taken. A trial court
is deprived of jurisdiction only over matters upon which it has entered a final order
and the final order has been properly appealed. Although evidence of similar
conduct in other cases may show absence of mistake or accident of a party, a trial
court cannot sanction a party for conduct exhibited in cases not before court
Costello v. Costello, 195 W.Va. 349, 465 S.E.2d 620 (1995):
Court held that trial court committed reversible error in failing to instruct on the
reasonable expectations doctrine with respect to a tort claim against an insurance
agent for alleged negligence in failing to include wife’s name on an auto insurance
policy.
Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995):
A supervisory employee can state a claim for relief against employer on basis of
hostile work environment created by one or more subordinate employees.
Miller v. Whitworth, 193 W. Va. 262; 455 S.E.2d 821 (1995):
Under the common law of torts, a landlord does not have a duty to protect a tenant
from the criminal activity of a third party. However, there are circumstances which
may give rise to such a duty, and these circumstances will be determined by this
Court on a case-by-case basis. A landlord's general knowledge of prior unrelated
incidents of criminal activity occurring in the area is not alone sufficient to impose
a duty on the landlord. However, a duty will be imposed if a landlord's affirmative
actions or omissions have unreasonably created or increased the risk of injury to
the
tenant
from
the
criminal
activity
of
a
third
party.
McMahon v. F & M Bank-Winchester, 45 F.3d 426 (4th Cir. 1994):
Court held that district court properly imposed a pre-filing injunction against
McMahon. In light of McMahon’s vexatious conduct over nine years and the
repeated warning by various courts that persistence with meritless litigation could
result in sanctions, the Court found that the monetary sanction against McMahon
in the amount of $42,378 was not excessive.
U.S. v. Lewis, 53 F.3d 29 (4th Cir.1995):
District court committed reversible error when it failed to give defendant’s proposed
instruction requiring jury to acquit him of a conspiracy count if it found he did not
have an illegal agreement with anyone other than a government agent.
Fox v. General Motors Corp., 863 F.Supp. 302, 2 Wage & Hour Cas.2d (BNA)
589, Pens. Plan Guide (CCH) P 23906L (S.D.W.Va. 1994):
Court held that ERISA did not preempt application of West Virginia Wage Payment
and Collection Act to employer’s deduction from employee’s regular compensation
to recoup past overpayments to employee from ERISA welfare plan.
State ex rel. Hamrick v. LCS Services, Inc., 193 W.Va. 111, 454 S.E.2d 405
(1994):
Statutes requiring site approval by the county prior to construction or operation of
a new landfill expressly stated that existing landfills with valid permits were exempt
from county approval requirement, which supported conclusion that statutes were
not to be applied retroactively to facilities with valid permits at time of the statutes'
enactment.
Rich v. Allstate Ins. Co., 191 W.Va. 308, 445 S.E.2d 249 (1994):
A family exclusion in a homeowner’s policy does not violate West Virginia public
policy.
U.S. v. Ellis, 21 F.3d 425 (4th Cir.1994):
Court held there was substantial evidence to support the jury’s verdict that the
defendant was involved in the sale of crack to undercover agents.
Fox v. General Motors Corp., 859 F.Supp. 216, 2 Wage & Hour Cas.2d (BNA) 586
(S.D.W.Va. 1994):
Employee brought action against employer alleging that it violated state statute by
deducting from his wages alleged overpayments of sick leave benefits. Employer
removed action and employee moved to remand. Court held that ERISA
preempted employee’s claim.
Francis O. Day Co., Inc. v. Director, Div. of Environmental Protection of
WV Dept. of Commerce, Labor and Environmental Resources, 191 W.Va.
134, 443 S.E.2d 602 (1994):
It was improper for Circuit Court to conduct a de novo review and substitute its
opinion of credibility of technical evidence and expert witnesses. The proper
standard of review required the decision of the Department of Environmental
Protection (DEP) be upheld unless the decision was clearly erroneous or clearly
an unwarranted exercise of discretion. A statute exempting limestone surface
mining from bonding and reclamation requirements applied only after a mining
permit was granted. Prior to granting of a permit to surface mine, the Director of
DEP retained authority to refuse to grant limestone mining permits based on any
of the criteria found in the statute.
Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied 511 U.S. 1129
(1994):
In a case of first impression, Court held that hedonic damages are not recoverable
in West Virginia. Rather, loss of enjoyment of life resulting from permanent injury
is to be considered a part of general damages flowing from the injury and is not
subject to economic calculation. The Court also held that a Daubert analysis
should be followed in analyzing admissibility of expert testimony under Rule 702
of the West Virginia Rules of Evidence.
State ex rel. Chaparro v. Wilkes, 190 W.Va. 395, 438 S.E.2d 575 (1993):
Court held that statements made or records kept by those with knowledge of facts
of case were protected from disclosure to defendants by the work product doctrine,
however, names and addresses of persons giving statements are not protected.
McMahon v. F & M Corp., 8 F.3d 819 (4th Cir. 1993):
Memorandum opinion whereby Court held that upon review of the record, the
appeal was without merit.
State ex rel. Allstate Ins. Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 (1993),
cert. denied 510 U.S. 1194 (1994):
Court held that tortfeasor’s liability carrier, having primary coverage, should
ordinarily control litigation on behalf of a tortfeasor; thus, an underinsured motorist
insurer does not have a due process right to assume independent control of the
litigation when the tortfeasor is represented and defended by a liability insurer.
McClay v. Mid-Atlantic Country Magazine, 190 W.Va. 42, 435 S.E.2d 180
(1993):
Court held that service of process on a lawyer who wrote a collection letter for
defendant was invalid. Attempted service by mailing a copy of the Complaint to
defendant’s corporate address was also insufficient.
Carney v. Erie Ins. Co., Inc., 189 W.Va. 702, 434 S.E.2d 374 (1993):
Court upheld an exclusion in an auto policy for injuries sustained while working in
a business that sells, repairs, services or parks autos.
State ex rel. Tinsman v. Hott, 188 W.Va. 349, 424 S.E.2d 584 (1992):
Court held that evidence of employer’s earlier sexual harassment of other
employees was properly excluded on the issue of liability but was admissible on
the issue of punitive damages.
Bear v. Oglebay, 142 F.R.D. 129 (N.D.W.Va. 1992):
Actions alleging securities fraud and common-law fraud are not generally
amenable to class certification due to requirement of proving individual reliance
upon allegedly fraudulent behavior. “Fraud on the market” doctrine dispenses with
requirement of proving individual reliance in situation where defendants have
made material misrepresentations regarding security traded on open and
developed market; individual reliance may be presumed because investors are
presumed to rely on the integrity of the market, and if market has been defrauded
then so have individual investors.
Cook v. Gall, 186 W.Va. 189, 411 S.E.2d 844 (1991):
When a settlement is entered into between a nonparty and a claimant prior to
institution of litigation, a defendant may not implead the nonparty so long as the
settlement was entered into in good faith and the amount of settlement was
disclosed to the trial court for verdict reduction. Such a pre-suit settlement also
discharges the settling nonparty from any further contribution regardless of the
jury's allocation of percentages of negligence.
Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991):
Court held that utility company did not establish deliberate intent on part of an
independent contractor so as to trigger the deliberate intent exception to the
workers’ compensation system. Utility’s contract with property owner which
contained an indemnification agreement was an unenforceable contract of
adhesion.
Hutson v. Henry, 184 W.Va. 692, 403 S.E.2d 435, 55 Fair Empl.Prac.Cas. (BNA)
1485 (1991):
Court held that consolidation of former employees’ suits to recover commissions
and damages for sexual harassment would create a potential conflict of interest,
would prejudice employees, and was an abuse of discretion.
Semler v. Hartley, 184 W.Va. 24, 399 S.E.2d 54 (1990):
Court held that reformation of a deed which expressly and unambiguously
conveyed an easement was reversible error.
Abbott v. Nichols, 905 F.2d 1528 (4th Cir. 1990):
Court held there was no evidence that homeowner breached any duty of care owed
to guest. Although homeowner warned guest that pool was only four feet deep,
guest dove head first into pool and suffered permanent paralysis. Court held there
was no evidence that homeowner engaged in any intentional act designed to inflict
injury upon guest.
Geo-Tech Reclamation Industries, Inc. v. Hamrick, 886 F.2d 662, 58 USLW
2195, 30 ERC 1468, 20 Envtl. L. Rep. 20,182 (4th Cir. 1989):
A provision authorizing the director of Department of Natural Resources to reject
applications for landfill operating permits that were significantly adverse to public
sentiment did not bear substantial or rational relationship to state’s interest in
promoting general public welfare.
Abbott v. Nichols, 869 F.2d 593 (4th Cir. 1989):
Court held that district court properly granted summary judgment and found that
plaintiff’s argument he had insufficient time to discover what entity was responsible
for his injuries to be without merit.
Stull v. Graco, Inc., 865 F.2d 1259 (4th Cir.1988):
Court affirmed district court’s holding that, as a matter of law, Stull, an experienced
operator of high pressure paint spraying equipment, assumed the risk of using a
spray gun that had a sawed off nozzle guard, thereby precluding his recovery.
McMahon v. Aschmann, 852 F.2d 566 (4th Cir. 1988):
On appeal of dismissal of action from the Eastern District of Virginia, Court held
appeal alleging due process violations was without merit.
Rodgers v. Corporation of Harpers Ferry, 179 W.Va. 637, 371 S.E.2d 358
(1988):
Court held that claims filed in state court pursuant to 42 U.S.C. § 1983 are personal
injury actions governed by state’s two-year statute of limitations.
Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988):
Implied warranties of habitability and fitness for use as a family home may be
extended to second and subsequent purchasers for a reasonable length of time
after construction, but such warranties are limited to latent defects which are not
discoverable by the subsequent purchasers through reasonable inspection and
which become manifest only after purchase.
Orlando v. Finance One of WV, Inc., 179 W.Va. 447, 369 S.E.2d 882
(1988):
Clause in a secured loan agreement purporting to waive homestead and
exemption rights to the extent permitted by law was not unconscionable so as to
entitle borrowers to civil penalties against a lender under the Consumer Credit and
Protection Act. Although the clause may be an unfair credit practice, absent an
attempt to enforce the clause, borrowers could not recover damages for such
practice.
Jones v. Tri-County Growers, Inc., 179 W.Va. 218, 366 S.E.2d 726, 28 Wage &
Hour Cas. (BNA) 1590, 110 Lab.Cas. P 55,946 (1988):
Court held that suits brought under the Wage Payment and Collection Act are
governed by a five-year contract statute of limitations, and grower failed to comply
with requirements of the Act in attempting to assign wages of foreign workers in a
master contract which was not signed by individual workers as required by the Act.
Baylor v. Norfolk and Western Ry. Co., 177 W.Va. 674, 355 S.E.2d 924 (1987):
Court held that evidence of other accidents at the same railroad crossing was
properly excluded.
Feller v. Brock, 802 F.2d 722, 105 Lab.Cas. P 34,854, 6 Fed.R.Serv.3d 43 (4 th Cir.
1986):
District court abused its discretion in issuing preliminary injunction which directly
conflicted with permanent injunction issued by another federal district court. Denial
of intervention as of right was reversible error.
Calvert Fire Ins. Co. v. Bauer, 175 W.Va. 286, 332 S.E.2d 586 (1985):
Court found a genuine issue of material fact, precluding summary judgment or
judgment on the pleadings because at least one affirmative defense was pled.
National Fruit Product Co., Inc. v. Baltimore and Ohio R. Co., 174 W.Va.
759, 329 S.E.2d 125 (1985):
Court held that an employer may not maintain an action to recover damages from
a tortfeasor for loss of services of its employee when such action is based on
negligent injury of the employee by the tortfeasor.
Cavanaugh v. Western Maryland Ry. Co., 729 F.2d 289, 38 Fed.R.Serv.2d 1403
(4th Cir. 1984):
Federal Employers’ Liability Act did not bar railroad’s assertion of counterclaim for
property damage in suit brought by its employee under the Act to recover for
injuries sustained in a train collision.
Cook v. Duncan, 171 W.Va. 747, 301 S.E.2d 837 (1983):
W.Va. Code §11A-3-24 requires a county clerk to use “due diligence” in
determining whether a property owner is an in- or out-of-state resident before
notification of the right to redeem property.
Crawford v. Roeder, 169 W.Va. 158, 286 S.E.2d 273 (1982):
Exclusion of testimony of one plaintiff’s former wife that plaintiffs had not stopped
before entering crossing and had been drinking was reversible error even though
testimony had not been disclosed in defendants’ response to interrogatories.
Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981):
Court held that jury may determine probable earnings of deceased in a wrongful
death action by considering his age, earning capacity, experience and habits,
during his probable lifetime.
Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271
S.E.2d 335 (1980):
A proprietor is under a duty of ordinary care to render aid to an invitee after he
knows or has reason to know the invitee is ill or injured. Where this is conflicting
evidence, a jury must determine whether this standard of care was met.
Whitehurst v. Charles Town Hospital, 626 F.2d 357 (4th Cir. 1980):
Court held that though physician against whom judgment was recovered was
obstetrician who treated pregnant woman for abdominal cramps while the instant
defendants were hospital where she gave premature birth shortly thereafter and
physician who treated her at that hospital, common injury caused by concurrence
of respective alleged negligent acts established joint liability of tortfeasors.
Board of Ed. of Berkeley County v. W. Harley Miller, Inc., 160 W.Va. 473,
236 S.E.2d 439 (1977):
Court held that where parties to a contract agree to arbitrate either all disputes or
particular limited disputes arising under a contract and where the parties bargained
for the arbitration provision, arbitration is mandatory and specifically enforceable
on a motion for summary judgment. Any causes of action arising under the contract
which, by the contract terms, are arbitrable, are merged, in the absence of fraud,
with the arbitration award.
Broy v. Inland Mut. Ins. Co.,160 W.Va. 138, 233 S.E.2d 131 (1977):
Where an additional insured under an automobile liability policy caused an injury
to the named insured, the named insured may, in the absence of any exclusionary
language to the contrary, maintain a direct action against the insurance company
to recover the amount of judgment rendered against the additional insured.
The doctrine of inter-spousal immunity did not apply where one spouse sues an
insurance company to recover a judgment obtained against an additional insured
under the insurance policy, where such additional insured is not a spouse and even
though both spouses are named insureds on the policy.
Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732
(1976):
Court held that evidence warranted a finding that defendant had right to a
prescriptive easement over plaintiff’s tract for purpose of obtaining access to
defendant’s tract.
Johnson v. Continental Cas. Co., 157 W.Va. 572, 201 S.E.2d 292 (1973):
Court held that policy which purported to exclude coverage to an owner or operator
of a motor vehicle on account of harm to any guest passenger in such motor
vehicle conflicted with statute and, where the policy was issued subsequent to the
enactment of the statute, the policy must yield.
Lancaster v. Potomac Edison Co. of West Virginia, 156 W.Va. 218, 192
S.E.2d 234 (1972):
Court held that evidence was for jury on questions of negligence, contributory
negligence, and assumption of risk.
In re Siler's Estate, 155 W.Va. 743, 187 S.E.2d 606 (1972):
Court held that evidence that would overcome presumption of revocation of will,
which was found in maker’s possession at time of his death, with signature thereon
mutilated, or that would show any revival of will was not sufficient for jury
consideration.
Anderson v. Turner, 155 W.Va. 283, 184 S.E.2d 304 (1971):
The court held that a genuine issue of material fact existed as to whether defendant
motorist was negligent in striking pedestrian standing at the edge of the road, and
a material issue of fact existed as to whether pedestrian was contributorily
negligent.
Western Auto Supply Co. v. Dillard, 153 W.Va. 678, 172 S.E.2d 388 (1970):
Court held that setting aside of a verdict and prior judgments on verdict and
entering judgment against plaintiff in favor of defendant constituted reversible
error. The judgment of a foreign jurisdiction was valid and entitled to full faith and
credit.
Butler v. Poffinberger, 49 F.R.D. 8 (N.D.W.Va., 1970):
Court held that where defendant was allowed to amend his answer, the rule
providing that an amendment relates back to the date of original pleading was
applicable.
Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969):
Court held that where voters were permitted to vote after hour prescribed by statute
as time polls “shall” close, and such illegal votes had been commingled with valid
votes received in precinct making it impossible to purge illegal votes, and 50 to 75
votes illegally cast were sufficient to affect, or leave in doubt, result of election,
entire vote of precinct was required to be rejected.
State ex rel. Sangster v. Sencindiver, 153 W.Va. 548, 170 S.E.2d 673 (1969):
The phrase ‘at any stage of the cause,’ within the statute governing misjoinder and
nonjoinder of parties, means that if parties become misjoined during litigation, even
though necessary at its inception, it is the duty of the judge, upon such showing
being made, to dismiss such parties.
Adams v. Grogg, 153 W.Va. 55, 166 S.E.2d 755 (1969):
A personal representative of a deceased wife cannot maintain an action under a
wrongful death statute against her surviving husband for damages arising from the
wife’s death caused by a wrongful act by the husband, even though there is a
beneficiary of deceased wife who is not related to husband.
Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165
S.E.2d 113 (1968):
Court held that use of explosives in blasting operations renders contractor liable,
without negligence on its part, for damages proximately resulting to property from
such blasting.
Berkeley County Public Service Dist. v. Vitro Corp. of America, 152 W.Va.
252, 162 S.E.2d 189 (1968):
Court held that a contract for water service providing that water district shall furnish
industrial water to customer “as it shall require” was a requirement contract, and
provision for payment for such water was subservient or incidental. Per such
contract, if customer required no water, there could be no charge, minimum or
otherwise.
Silvious v. Helmick, 291 F.Supp. 716 (N.D. W.Va. 1968):
The action of a West Virginia county court in appointing a citizen and resident of
Virginia as an estate’s administratrix, who then filed a wrongful death action
against a West Virginia resident, did not of itself constitute a secret or fraudulent
occurrence in a collusive attempt to obtain diversity jurisdiction.
Teets v. Hawker, 278 F.Supp. 834 (N.D. W.Va. 1968):
A Virginia federal court was not without the power to transfer an action to a West
Virginia federal court on the ground that the Virginia court did not have jurisdiction
over defendant's person. The court had this transfer power regardless of whether
the action was transferred under the statute authorizing transfer for the
convenience of parties and witnesses and in the interest of justice, or under the
statute authorizing transfer of case laying venue in wrong district to any district in
which it could have been brought.
State ex rel. Metz v. Bailey, 152 W.Va. 53, 159 S.E.2d 673 (1968):
Court held that statute creating 31st judicial circuit and superimposing it upon the
identical territory which constituted the 23rd circuit was constitutional.
State ex rel. Glass Bottle Blowers Ass'n of U. S. and Canada v. Silver,
151 W.Va. 749, 155 S.E.2d 564 (1967):
The State, as representative of unincorporated associations could maintain a
proceeding to prohibit an injunction on behalf of unincorporated labor associations
to prevent any violation of their rights by enforcement against them of any void
order that may have been issued by a circuit court in an injunction action pending
in that court.
Faith v. Neely, 41 F.R.D. 361 (N.D. W.Va. 1966):
A plaintiff suing for the death of her husband in an automobile accident was not
entitled to a new trial on grounds of juror misconduct, where answers to
questionnaires suggested that such juror had not been so intoxicated as to have
lost control of his faculties, that plaintiff was not prejudiced by such juror's failure
to disclose on voir dire that he had knowledge of the accident, that such juror was
the only member of the panel initially in favor of returning a verdict for the plaintiff,
and that jurors were not influenced in any manner either by the misguided juror's
drawing or by anything he might have said.
Lake v. Potomac Light & Power Co., 150 W.Va. 641, 149 S.E.2d 230 (1966):
Court held that genuine issues of material fact existed precluding summary
judgment in a case where landowners sought declaratory judgment claiming that
power company’s poles and equipment trespassed on their land.
Halltown Paperboard Co. v. C. L. Robinson Corp., 150 W.Va. 624, 148 S.E.2d
721 (1966):
An action to enjoin upper riparian landowner from pumping out such large
quantities of stream water on the ground that it left lower riparian landowner with
insufficient water to operate its paperboard plant. Action was a matter over which
the circuit court was granted original and general jurisdiction by virtue of powers
conferred on it by the Constitution, and such constitutional grant was not subject
to alteration by the Legislature but only by amendment of the State Constitution.
State ex rel. Wheeling Downs Racing Ass'n v. Perry, 148 W.Va. 68, 132
S.E.2d 922 (1963):
A racing association which had operated a horse race track where the average
daily pari-mutuel pool was less than $150,000 during the 1962 calendar year and
which, for 1963, leased another track that had had an average daily pool exceeding
$150,000 in 1962, was not entitled to pay taxes at a rate more favorable than the
5 3/4% applicable to tracks having average daily pool of more than $150,000,
under pari-mutual tax statute.
Butler v. Smith's Transfer Corp., 147 W.Va. 402, 128 S.E.2d 32 (1962):
Court held that jury questions were presented as to negligence, if any, of truck driver
traveling at a speed in excess of legal limit or in excess of that which was proper
under the circumstances, and as to whether the negligence, if any, of the defendant
truck driver contributed to the damage to the plaintiff’s property.
Porter v. Eyster, 294 F.2d 613 (4th Cir.1961):
Court held that steward, in posting a notice upon a bulletin board at race track to
the effect that plaintiff was ruled off the premises for acting in capacity of
veterinarian on the grounds without proper license, and for having on the premises
certain needles and drugs without permission, was absolutely privileged, and even
if he had only a qualified privilege, there was no abuse of such privilege by
excessive publication.
Diamond v. Parkersburg-Aetna Corp., 146 W.Va. 543, 122 S.E.2d 436 (1961):
Under a constitutional amendment and legislation enacted pursuant thereto,
provisions of a corporate charter that holders of preferred stock had the right to
elect at least one member of the board of directors and that holders of common
stock had the right to elect the remaining members of the board, were
constitutional and operative from and after ratification of the amendment and the
effective date of statutes. (Appeared as amicus curiae).
Better Homes, Inc. v. Rodgers, 195 F.Supp. 93 (N.D. W.Va. 1961):
Evidence disclosed that the cause of a roof fire was a question for the jury in a
home owner's state court action against the roofer, and that in the trial of that action
there had been no errors that if corrected would impel a directed verdict in favor of
the roofer. Therefore, the roofer could not recover from his attorney who had failed
to take timely appeal from the judgment against the roofer.
Wallington v. Zinn, 146 W.Va. 147, 118 S.E.2d 526 (1961):
Board of trustees of the hospital was vested with the power to exclude an
osteopathic physician and surgeon, and the board's decision to exclude the plaintiff
in order to regain accreditation which had been withdrawn when the plaintiff had
been allowed to use the hospital was reasonably related to the operation and
management of the hospital. As such, it was not arbitrary, capricious, or
discriminatory.
Commercial and Sav. Bank of Winchester v. Maher, 202 Va. 286, 286, 117
S.E.2d 120 (Va. 1960):
A lawsuit involving the question of liability of banks to plaintiffs under a forged
endorsement on a check where the check was deposited to the credit of the
plaintiff. The defendants bring error. A bank's plea in bar was properly overruled;
the bill as amended was sufficient; the court properly granted a transfer to the law
side; that the evidence established forgery of the endorsement.
Peoples Supply, Inc. v. Vogel-Ritt of Penn-Mar-Va., Inc., 273 F.2d 933 (4th
Cir. 1960):
Where the owner of a flour mill and an exterminator company contracted for the
fumigation of the mill by the exterminator company, and work at the mill was
suspended and it was turned over to the exterminator company for the day, and
two employees who were employed at the mill helped with the fumigation and took
direction from the exterminator company, the employees of the owner of the mill
could be treated as employees of the exterminator company.
Peoples Supply, Inc. v. Vogel-Ritt of Penn-Mar-Va., Inc., 173 F.Supp. 199
(N.D. W.Va. 1958):
Plaintiff was not entitled to recover where it failed to establish that its employees
became the special employees of the defendant under the ‘loaned-servant’
doctrine so as to make the defendant liable for their negligence, and the plaintiff
failed to establish that the servants of the defendant were actionably negligent.
Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294 (1958):
Evidence presented questions for the jury as to whether the codefendant was guilty
of negligence and whether the defendant was guilty of negligence and whether the
negligent acts and omissions of both defendants, operating together, constituted
one single and complete transaction and were the direct and efficient cause of the
collision.
U.S. v. Bd. of Educ. of Mineral County, 253 F.2d 760 (4th Cir. 1958):
Any error in a jury instruction that had the effect of saying that where a portion of
a tract of land is taken and the land so taken has no market value at the time of
the taking, the replacement cost or substitution cost is appropriate for
consideration in reaching a judgment concerning the value which is just
compensation for the taking, was favorable to the United States. The United
States,
on
appeal,
could
not
complain
of
the
instruction.
Gunther v. E. I. DuPont DeNemours & Co., 157 F.Supp. 25 (N.D. W.Va.
1957):
In an action to enjoin testing of explosives manufactured by defendant the
evidence was insufficient to show that a nuisance in fact existed.
Committee on Legal Ethics of West Virginia State Bar v. Pietranton, 143
W.Va. 11, 99 S.E.2d 15 (1957):
Evidence was not sufficient to sustain the burden on the committee to prove any
of the charges contained in its complaint.
Hite v. Hite, 210 Md. 576, 124 A.2d 581 (Md. 1956):
Husband's divorce action wherein husband charged wife with desertion on account
of wife's refusal to accept reconciliation after husband's desertion. Evidence
supported a finding that husband's offers had not been such as a just man ought
to have made.
Cargill, Inc. v. Eastern Grain Growers, 140 W.Va. 666, 86 S.E.2d 569 (1955):
Court held that where defendant resisted efforts of plaintiff to secure judgment
upon foreign judgment from the time the action was instituted until judgment was
rendered, and party sought to be interpleaded was aware of litigation but took no
action to assert his ownership to deposit in bank until after affidavits of interpleader
had been filed, defendant, at time affidavit was filed, was not a “defendant in an
action” and motion to quash affidavit should have been granted.
Goetz v. Old Nat. Bank of Martinsburg, 140 W.Va. 422, 84 S.E.2d 759 (1954):
Court held that a trust created by residuary clause of a will which permitted trustees
in their uncontrolled discretion to use the property for charitable or other purposes
was a mixed trust and, as such, void.
Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953):
A licensed osteopath had the right, in the practice of his profession, to treat any
human ailment or infirmity by any method that physicians and surgeons might do.
State ex rel. Emery v. Rodgers, 138 W.Va. 562, 76 S.E.2d 690 (1953):
Court held that trial court erred in disregarding a mandate of the West Virginia
Supreme Court of Appeals in a subsequent mandamus proceeding by a trust deed
grantor.
Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 75 S.E.2d 584 (1953):
Court held that the mere transportation of dynamite in a motor vehicle upon a public
highway by a licensed contract carrier, as the agent of a manufacturer and shipper,
did not constitute a nuisance.
Emery's Motor Coach Lines v. Mellon Nat. Bank & Trust Co. of
Pittsburgh, 136 W.Va. 735, 68 S.E.2d 370, 30 A.L.R.2d 529 (1951):
Court held that since only two days had elapsed between the publication of notice
and the sale and only one trustee out of the three appointed by the trust-deed had
been personally present at the sale, the sale must be set aside.
Nester v. United Foundation Corp., 136 W.Va. 336, 67 S.E.2d 533, 29 A.L.R.2d
871 (1951):
Court held that no duty exists on the part of a contractor to provide or maintain a
temporary way or detour around an obstruction of a street resulting from
excavation work done by the contractor with permission of the municipality, in the
absence of a contract or special circumstances.
Ringgold v. Carvel, 196 Md. 262, 76 A.2d 327 (Md. 1950):
The rule in Shelley's Case was not applicable. The devise did not violate the Rule
against perpetuities, the devise of the remainder of realty did not fail, and there
was no possibility of reverter so as to render applicable the common law rule that
a possibility of reverter is not devisable or assignable.
State v. C. H. Musselman Co., 134 W.Va. 209, 59 S.E.2d 472 (1950):
Court held that unless an individual working in an industry recognized as seasonal
works 100 days or more during his base period, or has earned wages during his
base period in some other covered employment of $100 or more, he is ineligible
for benefits under Unemployment Compensation Act.
Gray v. West Virginia, 338 U.S. 855 (1949):
The U.S. Supreme Court dismissed the appeal for want of a federal question. The
underlying case involved land purchased for the State of West Virginia but that
became unredeemable and subject to sale under the West Virginia Constitution.
The West Virginia Supreme Court of Appeals held that neither Article 9 of the
ordinance adopted by the Wheeling Convention nor provisions of the West Virginia
Constitution limit the right of West Virginia to impose taxes on land and provide for
their collection, so long as the methods of collection employed do not violate other
provisions of the state or federal Constitutions.
Baldwin v. City of Martinsburg, 133 W.Va. 513, 56 S.E.2d 886 (1949):
Court held that the statute permitting cities to impose privilege taxes on businesses
and occupations is a legal delegation of the taxing power.
Henry v. Coffman, 85 F.Supp. 456 (N.D. W.Va. 1949):
The Complaint showed that one owner had safely operated the same equipment
for nine years and that the tenant had done so for two years before a fire.
Therefore, the owners had no knowledge that the use by the tenant would
constitute a nuisance, if any, for which the owners could be held liable.
Tillett v. Rodgers, 85 F.Supp. 356 (N.D. W.Va. 1949):
A partnership purchased realty subject to a vendr's lien; after the partnership
became insolvent, one partner sold a small portion of his interest in the realty,
subject to debts against the realty, to a secretary who had full knowledge of
partnership affairs. The partnership debts far exceeded the value of the realty
which was auctioned for an unpaid price and was purchased by the partner at
auction under a plan protecting partnership creditors. The secretary's assignee
who paid $1 and waited 18 years was barred from asserting a claim to the realty
and would be required to execute a release to the partner.
Baltimore & O. R. Co. v. Deneen, 167 F.2d 799 (4th Cir. 1948):
Court held that an action by motorist for injuries sustained in crossing collision,
issues of contributory negligence, and whether railroad had performed its statutory
duty of maintaining crossing in proper condition was for jury. Court also held that
weight to be given expert testimony in conflict with other testimony was for jury.
State ex rel. Aikens v. Davis, 131 W.Va. 40, 48 S.E.2d 486 (1947):
Court held that under the Unemployment Compensation Act, mandamus lies after
twenty days from the date of the Board’s finding to enforce the Board of Review’s
award of unemployment benefits.
Baltimore & O. R. Co. v. Deneen, 161 F.2d 674 (4th Cir.1947):
Court held that an action by motorist for injuries sustained in crossing collision,
issues of contributory negligence and whether railroad had performed its statutory
duty of maintaining crossing in proper condition was for jury.
Raines v. Faulkner, 131 W.Va. 10, 48 S.E.2d 393 (1947):
Court held that in an action of trespass for assault and battery, damages for
humiliation, shame, dishonor, terror, mental pain and anguish, necessarily flowing
from the nature of the assault and battery complained of, need not be pleaded
specially, and can be recovered under an allegation of general damages.
Pownall v. Cearfoss, 129 W.Va. 487, 40 S.E.2d 886 (1946):
Court held that in the absence of a provision in a contract of joint venture for its
termination upon the death of any party thereto, the death of the party who
contributes real estate used in its development does not terminate such contract.
Deneen v. Baltimore & O. R. Co., 68 F.Supp. 148 (N.D.W.Va.1946):
Court held that a dangerous situation existing at railway crossing requires railway
to operate trains so as to reasonably safeguard the public at the crossing, and
places duty on motorist to use care for his own safety commensurate with the
danger.
State ex rel. Watson v. Rodgers, 129 W.Va. 174, 39 S.E.2d 268 (1946):
An original proceeding in prohibition to prohibit named respondent from proceeding
further in a suit for divorce. The court held that under a statute providing that suit
for divorce or annulment shall mature like other chancery cases and when properly
matured shall be placed on docket for trial, the circuit court, notwithstanding
consent of the parties, exceeded its jurisdiction in setting for hearing a pending suit
for divorce which had not yet matured.
State ex rel. Shenandoah Val. Nat. Bank v. Hiett, 127 W.Va. 381, 32 S.E.2d
869 (1945):
Court held that the damages covered by a bond required under section 14, article
5, chapter 55 of the Code include only such damages as are by section 27 of said
articles required to be awarded by the appellate court upon the dismissal of such
appeal or the affirmation of the decree from which the appeal was taken.
Commercial & Savings Bank of Winchester v. Burton, 183 Va. 133, 31
S.E.2d 289 (Va. 1944):
The court found no question of bad faith and the evidence shows that the fiduciary
exercised a fair discretion in the same manner in which one of reasonable
intelligence and prudence would act in the management of his own affairs in the
light of the conditions with which he was faced.
C H Musselman Co v. Alderson, 315 U.S. 779 (1942):
The plaintiff brought suit alleging the defendant was interpreting a West Virginia
tax statute in a manner that violated the West Virginia and U.S. Constitutions. The
defendant demurred. The Circuit Court of Kanawha County sustained the
demurrer and did not file an opinion. The West Virginia Supreme Court of Appeals
denied the appeal without an opinion and the Supreme Court of the United States
affirmed the judgment of the Circuit Court of Kanawha County, West Virginia.
Emery v. C. D. Beck & Co., 124 W.Va. 766, 22 S.E.2d 458 (1942):
Court held that a nonresident holder of notes secured by a chattel mortgage on
property in possession of the mortgagor in West Virginia, does not, before
foreclosure of such mortgage, have such interest in the mortgaged property as to
make the same subject to attachment as his property.
State ex rel. Berkeley County Court v. Keedy, 124 W.Va. 408, 20 S.E.2d
468 (1942):
The power accorded the county court, under W.Va. Code §3-2-18, to provide for
clerical assistance, when considered with W.Va. Code §7-7-7, contemplated
provision of funds and not appointive power of personnel where clerical assistance
to aid in the administration of registration is a requisite to the accomplishment of
those duties statutorily imposed upon county clerks.
State ex rel. Shenandoah Valley Nat. Bank v. Hiett, 123 W.Va. 739, 17 S.E.2d
878, 137 A.L.R. 1041 (1941):
In a proceeding on supersedeas bonds, it is a prerequisite to a recovery that some
direct causative connection between the breach of the bonds and the alleged
damage must be pleaded and proved.
Caskey Baking Co. v. Virginia, 313 U.S. 117 (1941):
Peddlers at wholesale are not entitled to be licensed and taxed on the same basis
as other vendors, as respects either form or amount. The equal protection clause
of the Fourteenth Amendment does not prevent a state from classifying businesses
for taxation or impose any iron rule of equality. Some occupations may be taxed
though others are not. Some may be taxed at one rate, others at a different rate.
Classification is not discrimination. It is enough that those in the same class are
treated with equality.
Burns v. Reliance Life Ins. Co. of Pittsburgh, 122 W.Va. 708, 12 S.E.2d 509
(1940):
A directed verdict for the defendant is proper when uncontradicted proof shows a
written instrument has been abrogated by a subsequent contract in writing.
Caskey Baking Co. v. Commonwealth, 176 Va. 170, 10 S.E.2d 535 (1940):
Peddling is “domestic commerce” and not “interstate commerce,” and may be
taxed by the state without violating the commerce clause of the U.S. Constitution.
State ex rel. Hicks v. Langford, 122 W.Va. 398, 9 S.E.2d 865 (1940):
The selection of the petitioner and another by the Democratic city executive
committee to fill the vacancies caused by the failure of two of the nominees to
accept nominations was regular under W.Va. Code §3-4-23.
Shenandoah Valley Nat. Bank v. Hiett, 121 W.Va. 454, 6 S.E.2d 769 (1939):
Statutory permission is not needed for employing attachment to aid enforcement
of a judgment obtained in another state.
State v. Chesapeake & Potomac Tel. Co. of W.Va., 121 W.Va. 420, 4 S.E.2d
257 (1939):
Court held that refusal of telephone company to transmit information concerning
result of horse race to poolroom in obedience to mandate of statute would not
constitute “discrimination” within statutes requiring telephone company as public
utility to render service without “discrimination.”
Harrington v. Sencindiver, 173 Va. 33, 3 S.E.2d 381 (1939):
Where deed of assignment for benefit of creditors provided for priority to all creditors
whose bona fide claims were for labor and would have a priority under the
Bankruptcy Act, but where wage claims had not been perfected in manner
prescribed by Virginia statute, determination that claims were not enforceable in
bankruptcy as prior liens on property of corporation was proper.
Lindner v. Daniels, 121 W.Va. 210, 2 S.E.2d 267 (1939):
Unless it is disclosed affirmatively by the record that a trial chancellor in entering
a final decree considered inadmissible testimony, his failure to rule specifically
upon its admissibility will not be regarded as error.
Nine v. Carskadon, 121 W.Va. 87, 1 S.E.2d 481 (1939):
Court held that where several bonds or notes were equally secured by trust deed
containing no provision preserving parity irrespective of times of assignment,
assignees took preference in order of assignments, and all took priority over
assignor respecting unassigned bonds or notes.
Belmont Iron Works v. Boyle, 120 W.Va. 339, 198 S.E. 527 (1938):
Court held that where a new corporation is set up primarily for the purpose of
discharging the indebtedness of an insolvent corporation, the debts whereof are
taken over by the new organization.
Tyler v. Reynolds, 120 W.Va. 232, 197 S.E. 735 (1938):
Court held that where, in the settlement of the estate, an item of indebtedness
asserted against the estate was allowed by the commissioner of accounts and
subsequently approved by the court, and, on writ of error, the court is affirmed, the
allowance of the claims stands res judicata, and the matter cannot, in a later cause,
be reopened on the ground of after-discovered evidence.
Jordan v. Jordan, 119 W.Va. 268, 193 S.E. 338 (1937):
Court construed Last Will and Testament and held that daughter, at age twentyone, became vested with a fee-simple estate, unimpaired by her death later without
issue.
Faulkner v. Magri, 90 F.2d 808 (4th Cir.1937):
Court held that the mere giving of a preference is insufficient of itself to establish
fraud, especially where debtor is solvent at the time. Court also held that proof of
actual fraud is necessary to establish transfer to hinder, delay, and defraud
creditors.
Rinehart v. Hall, 117 W.Va. 383, 185 S.E. 561 (1936):
Court held that it is reversible error to decree the sale of land in satisfaction
of debt without first adjudicating the amounts and priorities of the claims
against it that are properly before the court.
Leatherman v. Sanders, 117 W.Va. 320, 185 S.E. 556 (1936):
Court held that the lien of garnishment served upon a bank as garnishee attaches
to subsequent deposits by the debtor through and in the name of another.
Farmers & Merchants Nat. Bank & Trust Co. of Winchester v. Janney,
117 W.Va. 28, 183 S.E. 685 (1936):
Court held that creditors, or lienors, of a tenant in common, do not, because of that
relation, share co-tenancy.
Bradford v. Fahey, 77 F.2d 992 (4th Cir. 1935):
Rehearing granted because of the recent decision of the Supreme Court of the
United States in Louisville Joint Stock Land Bank v. William W. Radford, Sr., 55 S.
Ct. 854, 79 L. Ed. 1593, holding the Act of June 28, 1934, known as the FrazierLemke Act (11 USCA § 203(s), was void. Thus prior decision was set aside and
the decision of the court below was affirmed.
Bradford v. Fahey, 76 F.2d 628 (4th Cir. 1935), overruled 77 F.2d 992 (4th Cir. 1935):
Bankrupt filed a petition to stay further proceedings in a mortgage foreclosure suit
in the state court, opposed by assignee of the mortgage, and others.
Corporation of Charles Town v. Ligon, 67 F.2d 238 (4th Cir. 1933):
A change in course of a sewer line and other minor changes ordered by town
engineer, especially where authorized by contract, did not take the work outside the
contract.
Hill v. Ringgold, 112 W.Va. 374, 164 S.E. 412 (1932):
A debtor’s promise to pay an account if his creditor would send an itemized bill is
sufficient to remove bar of statute of limitations and revives the original obligation.
Maryland Casualty Co. v. Morgan County Court, 287 U.S.(1932):
Overpayments to highway contractors occasioned by mistake or carelessness
were chargeable against retained percentage due contractors with balance of
overpayments chargeable against a performance bond. The amount of credit
against the contract price to which county court was entitled in settlement with
contractor's surety completing highway construction was not the amount actually
paid to the contractor, but the amount which under the contract should have been
paid after deducting percentage of current estimates which was required to be
retained for county court's and surety's protection. Petition for writ of certiorari
denied.
Gilpin v. Somerville, 163 Md. 40, 161 A. 272 (Md. 1932):
Requested instructions containing various abstract statements constituting the test
to be applied by the jury in determining credibility of witnesses was properly
refused. When a third party claimant intervenes in an attachment suit, the burden
remains on the attaching creditor to show that the property levied on was the
property of the judgment debtor pursuant to Code Pub.Gen.Laws 1924, Art. 9, §
47.
Maryland Casualty Co. v. Morgan County Court, 59 F.2d 414 (4th Cir. 1931):
Court held that overpayments to highway contractors occasioned by
mistake or carelessness chargeable against retained percentage due
contractors with balance of overpayments chargeable against performance
bond.
Cochran Coal & Coke Co. v. Board of Equalization and Review of
Monongalia County, 110 W.Va. 556, 158 S.E. 906 (1931):
Court held that order on appeal from decision of Board of Equalization and Review
will not be reversed when supported by substantial evidence, unless plainly wrong.
South Branch Valley Bank of Moorefield v. Pancake, 109 W.Va. 400, 155
S.E. 117 (1930):
Court held that a plea that signature to note was procured by fraud is not good as
against holder for value without allegation of notice.
Gain v. Gerling, 109 W.Va. 241, 153 S.E. 504 (1930):
A decree for alimony and child support in a fixed sum, payable in monthly
installments, constituted a lien on husband’s land for the entire amount from the
time of the decree.
Leatherman v. Pancake, 108 W.Va. 648, 152 S.E. 325, 68 A.L.R. 851 (1930):
When a person institutes a suit in attachment, on contract, and, in good faith claims
a larger amount in the attachment affidavit than it afterwards develops he is entitled
to recover, should not quash the affidavit and attachment.
National Fruit Product Co. v. Parks, 108 W.Va. 321, 150 S.E. 749 (1929):
Equity has jurisdiction to reform a deed or other written instrument on the ground
of mistake on the part of the plaintiff and fraud or inequitable conduct of the
defendant if clearly and fully established.
Wiggington v. Auburn Wagon Co., 33 F.2d 496 (4th Cir. 1929):
An insolvent corporation’s officers and directors cannot use their positions to
secure an advantage over other creditors, as by obtaining mortgage bonds in lieu
of their stock.
Shepherdstown Light & Water Co. v. Lucas, 107 W.Va. 498, 148 S.E. 847
(1929):
The furnishing of electricity by a public service corporation to another public service
company, which in turn sells the current to the public, is a public use in the
furtherance of which the former corporation may exercise the right of eminent
domain.
Kearns v. Roush, 106 W.Va. 663, 146 S.E. 729 (1929):
Court held that a second will, duly executed by the testator as his last will and
testament, will revoke a prior will without express terms declaring the same
revoked, where the provisions of the second instrument make a different
disposition of the entire estate from that made by the prior will.
Kearneysville Creamery Co. v. American Creamery Co., 103 W.Va. 259, 137
S.E. 217, 51 A.L.R. 938 (1927):
Where all the stockholders and officers of a corporation participate without dissent
in an informal meeting, and thereafter execute an agreement entered into at such
meeting, they, as well as the corporation, are estopped to deny the legality of the
meeting.
Rau v. Krepps, 101 W.Va. 344, 133 S.E. 508 (1926):
An absolute gift made in one clause of a will cannot be taken away or limited in as
subsequent clause, except by provisions which are equally clear and decisive as
the words of the donation.
Martin v. Breckenridge, 14 F.2d 260 (4th Cir. 1926):
Execution of an individual renewal note in the name of a partnership was not an
innovation of original indebtedness or an accord and satisfaction. Recovery
against the bankrupt estate of the individual as well as the partnership was not
barred in view of circumstances and the understanding that the individual was
liable thereon.
Swift & Co. v. Licklider, 7 F.2d 19 (4th Cir. 1925):
Actual, not pretended, change, is necessary to constitute “change of domicile” and
the intention and act must concur.
McKown v. Silver, 99 W.Va. 78, 128 S.E. 134 (1925):
An amended answer, raising new issues, should not be allowed where it appears
that the party tendering the same knew the facts relied on when he filed his first
answer.
Littlestown Sav. Inst. v. Bream, 95 W.Va. 351, 121 S.E. 169 (1924):
Where an attachment issues on the ground that the defendant has property or right
in an action which he conceals, the affidavit must show a fraudulent concealment
of such property or rights of action.
Hays v. Stine, 289 F. 224 (4th Cir. 1923):
The advice of counsel, given in good faith on a full and fair statement of all the
facts, is a complete defense in an action for malicious prosecution; but the
defendant must show that the statements made by him and on which the advice
was given were honestly made, and that nothing of a material character affecting
the situation was purposely withheld.
American Telephone & Telegraph Co. v. Spring, 280 F. 386 (4th Cir.1922):
A telegraph company is not liable for acts of its former employees while engaged
under government control in the operation of its property.
Evans v. Kirson, 88 W.Va. 343, 106 S.E. 647 (1921):
The owner of a building who permits water to remain in the pipes of a vacant
portion of the building in his possession and control, without exercising reasonable
precaution to prevent its freezing, is liable to the tenant whose property is injured
by the freezing and bursting of a water pipe, unless relieved therefrom by the
contributory negligence of the tenant.
Spring v. American Tel. & Tel. Co., 86 W.Va. 192, 103 S.E. 206, 10 A.L.R. 951
(1920):
Courts in West Virginia takes judicial notice of the laws of the United States,
proclamations of the President of the United States, and official acts of the heads
of executive departments of the federal government of public notoriety or general
public interest, but not of departmental acts having no such character.
First Sav. & Banking Co. v. Kilmer, 263 F. 497 (4th Cir. 1919), cert. denied, 251
U.S.56 (1920):
A creditor, claiming a lien on machinery of a bankrupt, which was accordingly
offered for sale in bulk whose proof showed that his lien covered only a part of the
machinery was not estopped to show that his original claim was made in good faith
through error, and to establish his lien on the fund to the value of the property
covered, if he could prove such value with reasonable certainty.
Howie Min. Co. v. McGary, 256 F. 38 (N.D. W.Va. 1919):
Defendants were not entitled to vacation of a default judgment, where the judgment
was entered over a year ago, their nonappearance was apparently due to loss in
the mails of a letter from their attorney to the clerk, no further inquiry was made,
and under the state statute if no declaration was filed within three months the
plaintiff was entitled to nonsuit or dismissal.
Lindamood v. Potomac Light & Power Co., 85 W.Va. 85, 100 S.E. 868 (1919):
Though the injured party is under a duty, before suing for redress, to make a
reasonably diligent effort to ascertain by what wrongful act the injury was inflicted,
he is not required to discover obscure matters or such as cannot be found
otherwise than by a wide, thorough, and minute investigation, and he may rely
upon them in a motion for a new trial, if discovered before entry of judgment.
State v. Haymond, 84 W.Va. 687, 100 S.E. 493 (1919):
Court held that it is proper for the Supreme Court of Appeals of West Virginia, on
application for a writ of mandamus, to construe its own mandate in connection with
its opinion.
Oberman v. Red Rock Fuel Co., 83 W.Va. 531, 99 S.E. 66 (1919):
Court held that a corporation whose principal officers knowingly accept the benefit
of services performed by one who assumes to act as its agent, is presumed to
have employed the person assuming to act for it, as its agent, and is bound by his
acts performed within the legitimate scope of his implied authority.
Klug v. Martinsburg Power Co., 229 F. 861 (N.D.W.Va.1916):
Court held that the powers of an administrator of an estate do not extend beyond
the limit of the state of his appointment. His control over the estate of the decedent
is limited to such property as is in the state of his appointment, and no judgment
against an administrator in one state is binding upon an ancillary administrator and
the assets in the hands of the same decedent in another state.
Williamsport, N. & M. Ry. Co. v. Standard Lime & Stone Co., 76 W.Va. 21,
84 S.E. 908 (1915):
Court held that lands sought to be condemned for rights-of-way by a railroad
corporation will be deemed and treated as intended for public use.
Davis Trust Co. of Elkins, W.Va., v. Smith, 226 F. 410 (4th Cir. 1915):
In a compensation dispute potentially subject to dismissal because of the minority
of one of the parties, when that party reaches the age of majority during the
pendency of the litigation, dismissal is no longer an option. The party who had
reached the age of majority could then bring suit on her own behalf.
State v. Wilson, 74 W.Va. 772, 83 S.E. 44 (1914):
Court held that a witness at a trial for rape who has testified to the existence of
certain physical injuries without any expression of opinion as to what might have
caused them, cannot be cross-examined as to any opinion he may have
concerning the cause thereof.
A.B. Farquhar Co. v. Dehaven, 70 W.Va. 738, 75 S.E. 65, 40 L.R.A.N.S. 956,
Am.Ann.Cas. 1914A,640 (1912):
Court held that a judgment purporting to be by confession of attorneys in fact on a
note, purporting to empower and authorize the payees to appear for the makers
and in their names and confess judgment against them in favor of the payees for
the amount entered by the clerk without process executed on defendant is illegal
and void on its face.
Spurrier v. Hobbs, 68 W.Va. 729, 70 S.E. 760, 761 (1911):
An introductory clause in a will cannot be considered to enlarge an actual
disposition in another clause. If an introductory clause expresses an intention of
the testator to dispose of “such estate as it has pleased God to entrust with” him,
and in the sole disposing clause he plainly and without ambiguity disposes of his
personal and mixed estate only, his real estate is not devised.