Wednesday, June 6
Rule 20 argument
1. Clayton Brown v. Genesis Healthcare Corporation, et al., No. 35494 - Plaintiff Clayton Brown appeals the circuit court's August 25, 2009 order dismissing Defendants Marmet Health Care Center, Inc. and Robin L. Sutphin pursuant to a mandatory arbitration provision in a contract; and (2) the circuit court's May 15, 2009, order dismissing Defendant Canoe Hollow Properties, Inc. Plaintiff argues, inter alia, that the arbitration provision is not enforceable and that the court failed to accept as true the allegations in the plaintiff's Amended Complaint.
Jeffrey Taylor v. MHCC, Inc., et al., No. 35546 - Plaintiff appeals from the circuit court's order granting defendant's motion to dismiss and compelling arbitration in this action brought for violations of Nursing Home Act, a professional liability/medical malpractice case, and a wrongful death claim concerning the care and treatment that plaintiff's decedent received from defendant.
Sharon A. Marchio v. Clarksburg Nursing Rehabilitation Center, et al., No. 35635 - The circuit court certifies the following question:
Is West Virginia Code § 16-5C-15(c), which provides in pertinent part that "[a]ny waiver by a resident of his or her representative of the right to commence an action under this section, whether oral or in writing, shall be null and void as contrary to public policy," preempted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., when a nursing home resident's representative has executed an arbitration agreement as part of the nursing home's admission documents and the arbitration agreement contains the following terms and conditions: a. the arbitration agreement applies to and binds both parties by its terms; b. the arbitration agreement contains language in upper case typescript stating as follows: "THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING THIS ARBITRATION AGREEMENT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN COURT OF LAW BEFORE A JUDGE AND A JURY."; and c. the resident's representative is specifically advised that she has the right to seek legal counsel concerning the arbitration agreement, the execution of the arbitration agreement is not a pre-condition to admission to the nursing home facility, and the arbitration agreement may be rescinded by the resident through written notice to the facility within thirty (30) days of signing the arbitration agreement.
Circuit Court's Answer: Yes.
Justice Benjamin disqualified. Judge Gaujot sitting by temporary assignment.
ABOVE -- CONSOLIDATED ARGUMENT
2. In the Matter of: Carol Fouty, Magistrate for Kanawha County, No. 12-0446 - The Court will hear argument on the sole issue of whether the Court's April 9, 2012 order suspending Magistrate Carol Fouty without pay was properly entered.