CHARLESTON – In a 3-2 decision, the West Virginia Supreme Court has affirmed the dismissal of a wrongful death claim brought by the personal representative of a Mineral County man.

It also affirmed the court’s denial of motions for a new trial and additur on the negligence claim award.

The majority of the Court consisted of justices Robin Jean Davis, Margaret L. Workman and Thomas E. McHugh. The dissenters to the Nov. 26 memorandum opinion were Chief Justice Menis E. Ketchum and Justice Brent D. Benjamin.

On Oct. 19, 2007, Matthew Collin Everett lost control of his vehicle, crossed the center line and came to rest in the lane of travel of a vehicle driven by Thomas Shoemaker. Shoemaker’s vehicle then collided with Everett’s.

According to the opinion, “No serious injuries were apparent at the scene of the accident. However, Mr. Shoemaker reportedly suffered orthopedic injuries that were caused or aggravated by this collision. Mr. Shoemaker was seventy-nine years old at the time of the collision.

“Twenty-two months after the collision, on Aug. 21, 2009, Mr. Shoemaker died from a heart attack. The cause of death listed on his death certificate was 'acute myocardial infarct' caused by 'years' of 'coronary artery disease.'"

Hilda Grace Shoemaker, as Thomas Shoemaker’s personal representative, filed suit against Everett, asserting (1) negligence for causing the accident and (2) wrongful death.

“With regard to the wrongful death claim, petitioner asserted that the bodily injuries Mr. Shoemaker received during the car accident limited his ability to be physically active, and this lack of physical activity contributed to his subsequent heart attack and death,” the opinion states.

The trial court granted partial summary judgment for Everett on the wrongful death claim, finding “that petitioner failed to produce evidence to rebut the cause of death listed in the death certificate or to present a genuine issue of material fact that could causally link Mr. Shoemaker’s death by heart attack with the orthopedic injuries he allegedly sustained in the auto accident almost two years earlier.”

In the trial for the negligence claim, Everett presented evidence linking the loss of control of his vehicle, going into a curve on a wet road, with a malfunction in his transmission.

“Respondent further argued that Mr. Shoemaker’s alleged pain and suffering, loss of enjoyment of life, and many of his medical bills, were the result of Mr. Shoemaker’s pre-existing medical conditions or his advancing age — not this accident," the opinion says.

The jury found Everett 55 percent negligent and Shoemaker 45 percent negligent and awarded $9,000 for medical expenses. It did not award any damages for pain and suffering, mental anguish and loss of enjoyment of life and it did not find that Everett had engaged in wanton, willful or reckless conduct as had been asserted.

Shoemaker’s 55 percent award calculated at $4,950 and the court added on to the award $1,300.75 in pre-judgment interest.

The circuit court denied Shoemaker’s motions for a new trial and for additur and Shoemaker appealed to the Supreme Court.

After addressing numerous procedural issues related to the appeal of the award of partial summary judgment to the defendant, the Court found that “petitioner simply failed to produce evidence establishing that the automobile accident almost two years earlier was a cause of Mr. Shoemaker’s death by heart attack.”

Petitioner Shoemaker had made several “assignments of error” regarding jury instructions, the judge’s comments on the evidence and counsel for respondent Everett’s closing argument. On these assignments, the Court found nothing improper and at the least “no reversible error.”

Finally, Shoemaker argued that the award of $9,000 for past medical expenses was inadequate and argued that “the parties had stipulated to the authenticity of $16,430.99 in medical bills, and that she authenticated an additional $5,312.50 in medical bills at trial.”

Everett disputed the assertion regarding the stipulated amount and argued that “petitioner failed to submit into evidence any of the underlying medical records that would have shown what medical care had resulted in the bills.”

The Court concluded on this final issue, “After considering the record on appeal and viewing the evidence most strongly in favor of the respondent, we cannot conclude that the jury verdict was so low that, under the facts of this case, reasonable men could not differ about its inadequacy. Accordingly, we reject this assignment of error.”

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