Starcher

CHARLESTON – To the end, the old West Virginia Supreme Court of Appeals worked hard at making decisions. And former Justice Larry Starcher worked hard at disagreeing.

Starcher filed seven dissents on Dec. 30, the last day of his 12-year term, all celebrating his conviction that judges should keep rewriting laws.

"I have dedicated my career to tailoring the law to an ever growing, ever advancing society," he declared in one of his dissents.

His dedication took him where few dared to follow. No one joined his dissents.

In one dissent, he argued that a lawyer has the right to pursue the same suit in state and federal courts.

In another, he argued that an employer with workers compensation insurance should lose immunity from negligence suits when immunity produces a cruel result.

In another, he argued that a patient who cancelled exploratory surgery can sue a doctor for failing to diagnose his problem.

In another, he argued that a driver can save his license by beating a drunk driving charge, even if the Division of Motor Vehicles and everybody else knows he was drunk.

In another, he argued that if teens get drunk at a home and suffer injuries in a car crash, the insurer of the home should cover the cost of the crash.

Last of all, he argued that bad federal law should not pre-empt good state law.

(One of Starcher's dissents is detailed in a separate West Virginia Record story.)

Three of the last-minute dissents disputed decisions that the majority published in a flood of opinions from Dec. 10 to 15. The others responded to opinions from September and November.

Beahm v. 7-Eleven

In 2000, owners of a 7-Eleven store in Ranson received notice of an underground gasoline leak. Their insurers paid to remediate the site and adjacent properties.

In 2002, plaintiff Proctor and seven other property owners sued 7-Eleven in Jefferson Circuit Court. They claimed damages from groundwater contamination.

7-Eleven removed the suit to federal court.

Charles and Kathryn Beahm and other neighbors filed a new suit in Jefferson County naming a local defendant, with the same lawyers asserting the same claims.

Circuit Judge David Sanders stayed the case pending the outcome of the Proctor case.

The judge in the Proctor case granted summary judgment to 7-Eleven in 2005, ruling that the statute of limitations ran out and plaintiffs suffered no damages that they could recover under West Virginia law.

The U.S. Fourth Circuit appeals court affirmed the decision in 2006.

Sanders lifted the stay and granted summary judgment to 7-Eleven, ruling in 2007 that the Proctor decision rendered the state suit "res judicata" -– a thing adjudged.

The Supreme Court of Appeals agreed. "All appeals have been exhausted, and the Proctor judgment is final," the Justices wrote in an unsigned opinion on Sept. 26.

They wrote that the case seemed to fit an example of "deliberate maneuvering or manipulation in an effort to avoid the effects of a prior judgment."

Although different plaintiffs brought the suits, they wrote, their interests were the same.

In dissent, Starcher wrote that the Beahms were not parties to the Proctor litigation.

He wrote that "while the gasoline leak from the 7-Eleven tank was discovered in February 2000, monitoring wells did not find pollution on the plaintiff's land until February 2002."

"The majority opinion was wrong to conclude that the plaintiffs' case was barred by the statute of limitations through operation of the doctrine of res judicata, merely because the federal district court decided that the Proctor plaintiffs' cases were barred by the statute of limitations," he wrote.

Falls v. Union Drilling

Union Drilling supervisor Donald Roach had worked three shifts in two days when he and worker Daniel Falls left a Marshall County job and headed home to Spelter.

On U.S. 250, in Cameron, Roach lost control and crashed. Falls died.

Antoinette Falls, his mother, sued Roach and Union Drilling in Harrison County. She claimed Roach fell asleep at the wheel because Union Drilling overworked him.

Separately she recovered $100,000 under Roach's auto policy.

Union Drilling answered that state law immunized it from a wrongful death suit.

The law states that an employer with workers compensation coverage is not liable at common law or by statute for the injury or death of an employee, "however occurring."

Circuit Judge Thomas Bedell granted summary judgment to Union Drilling in 2007.

On appeal, Falls argued that Bedell violated her right to seek redress.

Four Justices found her argument "wholly unconvincing."

In an unsigned opinion on Dec. 10 they wrote, "Under the laws of West Virginia, a claim seeking workers compensation benefits could have been filed."

Falls is pursuing a negligent entrustment theory against Roach's girlfriend, who owned the car, they wrote.

They found no reason to believe that Falls would be left without any form of redress.

In dissent, Starcher wrote that "in the past this Court has cruelly said that if a working decedent is young, unmarried and without children –- as was Mr. Falls –- then his mother is entitled to nothing more from the workers compensation system than payment of a portion of his funeral costs."

He wrote, "So to criticize Mr. Falls's mother for attempting to recover reasonable compensation for his death by way of a lawsuit is to add insult to injury."

Forshey v. Jackson

Left-handed locksmith Paul Forshey developed carpal tunnel syndrome, a wrist injury. Physician Theodore Jackson performed surgery in 1995.

Forshey's pain continued and a knot formed under his thumb. Jackson set exploratory surgery but cancelled it four days ahead of time.

Jackson rescheduled it, but Forshey cancelled it four days ahead of time.

In 2005, Forshey injured his left index finger. An X-ray revealed a piece of knife blade.

In 2006, Forshey sued Jackson in Kanawha Circuit Court.

Jackson moved to dismiss, relying on state law that sets an absolute limit of ten years on a medical malpractice claim.

Forshey argued that the statute didn't start running in 1995. He argued that it started running in 1997, when Jackson cancelled the exploratory surgery.

Circuit Judge Jennifer Bailey Walker dismissed the suit, and on Nov. 25 the Justices affirmed her.

Justice Robin Davis wrote that in order to beat the statute of limitations, Forshey had to show repetitious wrongful conduct.

"Merely establishing the continuation of the ill effects of an original wrongful act will not suffice," Davis wrote.

In dissent Starcher wrote, "The injury in this case wasn't just the scalpel blade left in the plaintiff's hand."

He wrote, "It was that the defendant doctor screwed up and committed malpractice by failing to properly diagnose the error in two years of trying."

He wrote that Walker should have let Forshey pursue the action, "which most likely would have resulted in a speedy settlement."

He wrote that "this Court will do whatever it takes to protect doctors and lawyers from malpractice claims -– no matter how meritorious those claims might be."

Lowe v. Cicchirillo

Steven Lowe, passing a car on old Route 50 near Salem, hit another car.

Harrison County deputy Greg Scolapio found Lowe in an ambulance and observed glassy eyes, slurred speech, unsteady feet and an odor of alcoholic beverage.

Weeks later, deputy Shaun Fleming took a statement from Lowe admitting he consumed alcoholic beverages that night.

Fleming obtained medical records from United Hospital Center, showing Lowe's blood alcohol content at 0.33 percent an hour after the crash.

Fleming filed a criminal charge of drunk driving.

In 11 days, the Division of Motor Vehicles revoked Lowe's license for six months.

Lowe requested a hearing. The DMV granted it and stuck with a six month suspension.

Lowe appealed to Harrison Circuit Court. He had won acquittal on the criminal charge, and he argued that the DMV must defer to that judgment.

Circuit Judge John Marks ruled in Lowe's favor, but the Justices reversed him.

In an unsigned opinion on Nov. 7 they wrote that Lowe offered no evidence to undermine the authenticity of the blood test.

They wrote that "even without the blood test results, there remained a preponderance of the evidence to uphold the revocation of the appellee's license."

They wrote that "acquittal must be considered if entered into evidence at the administrative hearing, but it is not dispositive."

In dissent Starcher wrote that "the only evidence we have of the blood test's reliability is the majority's determination that it was stapled to the 'Statement of Arresting Officer' by Deputy Fleming."

He wrote, "As a teetotaler, I certainly know that drunk drivers are a menace on our highways and I do not approve of drinking and driving."

He wrote, "But that doesn't allow this Court to throw to the wind rules of evidence allowing only reliable, authenticated evidence to be considered."

American Modern Home Insurance v. Corra

Jeff Corra burned brush in his yard while his 19 year old daughter threw a party in his house. After midnight four of his daughter's friends drove away in a car.

The vehicle crashed and two teens died.

Corra was convicted on four counts of knowingly providing alcohol to underage persons. An appeal of his conviction remains pending at the Supreme Court.

The estates of the dead teens notified Corra that they would seek recovery from American Modern Home Insurance under his homeowner policy.

American Modern Home sued in federal court for a declaration that the policy didn't cover the accident.

U.S. District Judge Joseph Goodwin asked the Supreme Court of Appeals if Corra's conduct constituted an "occurrence" within the meaning of the policy.

Four Justices agreed that it didn't.

Chief Justice Spike Maynard wrote on Dec. 15 that "conduct engaged in knowingly is not an 'accident' and thus not an 'occurrence' under Mr. Corra's homeowner's policy."

In dissent Starcher wrote that the majority "injected its own standards of morality into the interpretation of an insurance contract."

He wrote, "Mr. Corra bought and paid for homeowner's liability insurance to protect himself, and to protect others, when his carelessness causes injury to those others."

Turner v. Turner

Charles Turner Jr., driving in Berkeley County with his three children, struck a utility pole. A son suffered severe injuries and the other two children suffered lesser injuries.

An insurer for Charles Turner Sr. paid $5,000 for each child.

The mother of the children, Diane Turner, covered the rest of the medical bills through health insurance on her job at City Hospital.

She then settled with the father's insurer, Westfield, and her insurer, Nationwide.

The settlement precluded City Hospital from asserting a lien on the proceeds.

West Virginia law requires court approval of settlements negotiated on behalf of minors, so the mother petitioned Berkeley Circuit Judge Christopher Wilkes.

City Hospital, as fiduciary of its employee benefit plan, intervened to assert its right of subrogation under the Employee Retirement and Income Security Act, or ERISA.

Wilkes decided he lacked jurisdiction to limit or enforce City Hospital's subrogation rights. He held that ERISA pre-empted state law and City Hospital could seek relief only in federal court.

Four Justices agreed. Maynard wrote on Dec. 15 that City Hospital asserted a lien not against the mother's general assets but against a share of the settlement.

Reimbursement of an employee benefit plan from settlement proceeds is the type of relief Congress clearly provided for in ERISA, he wrote.

That flipped Starcher into a final frenzy.

"I dissent because, in my 12 years on the appellate bench, I have too often seen arcane procedural decisions like this one flow forth from this Court," he wrote.

"These kinds of decisions may be technically correct, but they wholly miss the public policy waves that will ripple from the Court's decision," he wrote.

Citizens must now weave through a maze of subrogation liens from insurers, hospitals, doctors, Medicare and Medicaid, he wrote.

"Let me put it another way: the majority's decision is one more brick in a wall designed to keep injured plaintiffs from seeking justice in the court system," he wrote.

"The use of the word 'pre-emption' in today's courtroom is an obscenity," he wrote.

"Parties who seek to preempt the effect of state law through the application of federal law are oftentimes not looking for justice or fairness –- they are looking to avoid responsibility," he wrote.

"I cannot accept that Congress intended for most federal laws, including ERISA, to be vessels of absolution for wrongdoers," he wrote.

He concluded, "I firmly believe that laws and institutions are not set in stone, but should be continuously interpreted and reformed to keep pace with the times."

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