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
Desmond v. PNGI Charles Town Gaming, LLC, ___ F.3d___, 2011 WL117575 (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.
State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, 226 W.Va. 138, 697 S.E.2d 730 (2010):
A trial court may not issue a protective Order directing an insurance company to return or destroy a claimant’s medical records prior to the time period set forth by the Insurance Commissioner of West Virginia for the retention of such records. A valid legislative rule is entitled to substantial deference by a reviewing court. Furthermore, an insurer may maintain electronic claim files.
State ex
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
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
Blake v. State Farm
Mut. Auto. Ins. Co.,
224
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
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
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
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
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.
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
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
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
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.
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):
Court held that Department of
Transportation could not 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.
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
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.
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
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.
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
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
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.
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
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.
Hicks ex rel. Saus v. Jones, 217
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
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
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
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).
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
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
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,
214
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
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.
Findley v. State Farm Mut. Auto. Ins. Co., 213
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,
211
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.
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.
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
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
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
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
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
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
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
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.
Lessor and its property insured sued
Meadows v. Wal‑Mart Stores, Inc.,
207
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
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
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.
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
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.
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
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
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
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
Court upheld an insurance policy’s
clear and unambiguous liquor liability exclusion.
Nelson v. Allstate Indem. Co., 202
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
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
Court held that amount sought by
insurer was not “sum certain,” and thus evidentiary hearing on damages was
required.
Bowers v.
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
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
Evidence rule barred the trial court
from altering a verdict based upon a proffer of alleged juror confusion.
Dimon v. Mansy, 198
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
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
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
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
A supervisory employee can state a
claim for relief against employer on basis of hostile work environment created
by one or more subordinate employees.
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.
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 n 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
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
A family exclusion in a homeowner’s
policy does not violate
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
In a case of first impression, Court
held that hedonic damages are not recoverable in
State ex rel. Chaparro v. Wilkes, 190
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
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
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
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
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. Stansell, 186
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
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
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
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
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
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.
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
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.
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 (4th 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
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
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
When the county clerk fails to
exercise “due diligence” to determine a delinquent
taxpayer's residence in order to notify taxpayer of her right to redeem
property, the tax deed must be set aside.
Crawford v. Roeder, 169
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
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
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.
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
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
Where an additional insured under an
automobile liability policy caused an injury to the named insured, the named
insured could, 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 the additional insured was not a spouse, but was a
person driving the vehicle with the spouse's permission, even though the
plaintiff as well as the spouse who gave permission to drive vehicle were named
insureds on the policy.
Berkeley Development Corp. v. Hutzler, 159
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
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.
Court held that evidence was for jury
on questions of negligence, contributory negligence, and assumption of
risk.
In re Siler's Estate, 155
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.
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
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.
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
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
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
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
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.
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.
A
State ex rel.
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
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.
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
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
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.
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.
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
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.
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
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
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.
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
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.
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
Gunther v. E. I.
DuPont DeNemours & Co.,
157 F.Supp. 25 (N.D.
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
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
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
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
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
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
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
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
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
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
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.
The U.S. Supreme Court dismissed the
appeal for want of a federal question. The underlying case involved land
purchased for the State of
Baldwin v. City of
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.
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.
A partnership purchased realty subject
to a vendor'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
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
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
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
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
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
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
The plaintiff brought suit alleging
the defendant was interpreting a
Emery v. C. D. Beck & Co., 124
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.
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
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
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
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
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
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
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
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
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
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
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.
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.
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.
Court construed Last Will and
Testament and held that daughter, at age twenty-one, 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
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
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
Court held that creditors, or lienors,
of a tenant in common, do not, because of that relation, share co-tenancy.
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 Frazier-Lemke 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
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.
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
Courts in
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.
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
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
Court held that it is proper for the
Supreme Court of Appeals of
Oberman v. Red Rock Fuel Co., 83
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
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
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
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
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.
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.