WEST VIRGINIA RECORD

CHARLESTON -- The West Virginia Supreme Court unanimously has granted an appeal filed by the state Department of Transportation, which argues that it should not have to pay more than $8 million to a man injured in a wreck and the man's wife.

Keith West and Susan West sued the state and one of its contractors, Penn Line Service, over a Jan. 20, 2005 wreck on W.Va. 7 just outside of Star City in Monongalia County. The lawsuit centered around a piece of damaged guardrail.

A jury in Brooke County on March 19, 2008 awarded the plaintiffs $8 million for Keith's injuries and Susan's loss of consortium. Penn Line settled with the plaintiffs before trial.

The state argues that the circumstances surrounding the wreck make it immune from the lawsuit. In the alternative, the state contends that the judge should have reduced the verdict to the limits of its insurance, $1 million.

Keith and his father, Richard West, were headed to a bank in Weirton on the day of the wreck. Richard was driving a Ford F-150 pickup and there was snow falling, court documents say.

Just outside of Blacksville, Richard lost control of the pickup around a curve and traveled through a section of guardrail that had been folded back upon itself from an earlier wreck.

The state argues that Richard testified that he purposely aimed for the open space in the guardrail in order to not damage his truck.

The state says Richard believed he would drive into a meadow and come to a stop, but instead the truck went down a hillside and either rolled over or partially rolled over. Keith was ejected from the truck and broke his upper right arm and hip socket. Richard was unharmed.

The Wests had a kitchen cabinet business they said had to be liquidated because of Keith's injuries.

The lawsuit blamed the state for negligently hiring Penn Line, which had the contract for guardrail work in the district where the wreck occurred. The lawsuit also said the state should have warned motorists of the gap in the guardrail.

The state says it put in a request with Penn Line for the guardrail to be repaired in November 2004, but the structure wasn't fixed until Feb. 7, 2005, after the Wests wrecked.

In its appeal, the state says Circuit Judge James Mazzone was wrong to rule that a certain endorsement in the state's policy with National Union Fire Insurance company that would have limited its liability was null and void because it wasn't signed.

The endorsement said that no one could file a claim over "bodily injury" against the state unless there were DOH workers physically present at the site at the time of the wreck.

The state also faulted Mazzone for failing to allow jurors to consider assigning part of the fault to Richard West and declining to allow the state to bring up that Keith may not have been wearing a seatbelt at the time of the wreck.

Most vigorously, however, the state argues that its liability exposure should be limited to $1 million.

The state points out that even though the Wests in their complaint asked for damages up to the limits of the state's liability insurance, they asked the jury for $4 million. The state at that point moved for a mistrial, but was denied.

An earlier ruling by the state Supreme Court had set out that lawsuits targeting the state's insurance policy aren't constitutionally barred because they don't seek state funds. The state argues that its liability coverage only goes up to $1 million.

The state in its appeal argues that if Mazzone's ruling is allowed to stand, this ruling would be diminished. Mazzone has permitted a phase of discovery in order to determine if the DOT is listed as an "additional insured" on any other liability policies, which is still underway.

"This case shows the drip by drip erosion of the state's constitutional immunity," the appeal says. "By seeking payment of more than the insurance policy coverage, respondents have strayed far from permissible exceptions to immunity.

"This court should return to basics …"

Supreme Court case number: 090112