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.
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.,
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.,
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.
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.
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.,
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.
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.
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.
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.,
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.,
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,
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.
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,
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,
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
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.,
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.,
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.
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,
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.,
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.,
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.,
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,
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.,
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.
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,
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.
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.
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.
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.,
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.
ex rel. Sangster v. Sencindiver,
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.
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.
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.
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.
v. Hawker, 278
F.Supp. 834 (N.D.
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.
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
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.
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).
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.
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.
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.
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,
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.
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.
Edward M. Rude Carrier Corp.,
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.
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.
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.
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.
ex rel. Watson v. Rodgers,
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.
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.
& 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.
Musselman Co v. Alderson,
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.
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.
Baking Co. v. Virginia,
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,
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.
ex rel. Hicks v. Langford,
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,
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
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.
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.
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.
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
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.
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.,
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.
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.