WEST VIRGINIA RECORD

Motion Docket
Tuesday, March 28
1. Dianna Mae Savilla, Admx. of the Estate of Linda Sue Good Kannaird v. Speedway Super-America, LLC, dba rich Oil Co., LLC, et al. - 052519 - Plaintiff appeals from the circuit court's order granting defendant Speedway SuperAmerica, LLC, d/b/a Rich Oil's motion to dismiss in this wrongful death and deliberate intent action.

2. Jerrill Davis and Virginia Davis v. Eagle Coal & Dock Co., et al. AND Glen Moore & Irene Moore v. J. H. Fletcher, & Co., et al. - 052480 - Defendant J. H. Fletcher & Company files its petition for appeal pursuant to an order certifying questions to this Court. The Order of Certification has been entered in seven civil actions pending before the circuit court.
THE CIRCUIT COURT HAS CERTIFIED THE FOLLOWING QUESTIONS:
1. Whether a determination of liability predicated on a roof bolter dust collection system design that has not been heretofore deemed permissible by MSHA/Secretary of Labor is subject to preemption by virtue of the conflict between such a judicial determination and 30 U.S.C.A. § 844 and/or the occupation of the field of roof bolter dust collection system design by Federal regulatory authorities. ANSWER: YES.
2. Whether a determination of liability predicated on a failure to warn relating to a roof bolter's dust collection system via a warning not specifically prescribed by MSHA/Secretary of Labor is subject to preemption by virtue of the conflict between such a judicial determination and 30 U.S.C.A. § 844 and/or occupation of the field of roof bolter dust collection system and dust control warnings by Federal regulatory authorities. ANSWER: YES

3. Larry R. George & Carolyn E. George v. Daimlerchrysler Corporation and Nitro Dodge, Inc.- 052701 - Defendants appeal the circuit court's order awarding plaintiffs $143,026.66 in attorneys' fees and costs. The jury awarded plaintiffs $6,950 in compensatory damages [$8,750 with prejudgment interest] on one of the plaintiffs' claims, breach of the implied warrant of merchantability.

4. State of W. Va. v. T. Y., Jr., et al. - 052871 - Petitioner, T. Y., Jr., an infant, appeals from his convictions for the offense of assault on a school employee and brandishing. Petitioner seeks a reversal of his convictions, a new trial, and a release on bond pending the new trial.

5. Margaret McClurken v. STG, Inc. - 052730 - Defendant appeals from an adverse jury verdict in this action brought under the West Virginia Human Rights Act.

6. David L. Adkins, Adm. of the Estate of Michael David Adkins v. Charles Ross Brunty, Charles Brunty & State Farm Mutual Automobile Insurance Co. - 052934 - Plaintiff David Adkins appeals the circuit court's order granting summary judgment to defendant State Farm in a declaratory judgment action concerning the validity of a waiver of underinsured motorist coverage.

Argument Docket
Tuesday, March 28

1. Harold Petry, II v. Commissioner, WV Division of Motor Vehicles - 32886 - Continued to May 10.

2. Carolyn Jenkins, Admx. v. State Farm Mutual Automobile Insurance Co. - 32895 - Plaintiff Carolyn Jenkins appeals the circuit court's order granting summary judgment in favor of defendant State Farm. She asserts that where there are multiple State Farm underinsurance policies which all covered her insured decedent, as administratrix she should be entitled to recover under the single policy which has the highest limits.

3. Dale Patrick Donahoe v. Victoria Diane Donahoe - 32763 - Mr. Donahoe appeals the family court's 03/04/04 Civil Contempt Order ordering that "on or before 03/20/04, Plaintiff Dale Patrick Donahoe shall pay unto Defendant Victoria Diane Donahoe the $1500.00 support arrears payment previously Ordered by the Court, as well as $2934.00 in support arrears accumulated since the 02/26/03 hearing in order to purge himself of Civil Contempt [or face sixty days of incarceration at the South Central Regional Jail] (pp. 5-6)." The court found that Mr. Donahoe owes Mrs. Donahoe $49,821.00 "in unpaid child support and mortgage payments, not including interest, through and including 02/26/03, and a decretal judgment is granted Defendant in that amount (p. 5)." Mr. Donahoe argues that he does not owe Ms. Donahoe for back mortgage payments "through and including 02/26/03" because the marital home was sold several years before.

4. SER Fred L. Buck v. Hon. David W. Nibert, Judge - 32972 - Defendant seeks issuance of a writ of mandamus arguing that the circuit court has not ruled upon pending motions in regard to his underlying habeas corpus petition.

5. Warren Carter, et al. v. WV Consolidated Public Retirement Board - 32849 - The Retirement Board appeals from the circuit court's order reversing the Board's final administrative decision that respondents are not entitled to have lump sum payments for unused leave included as "salary" for the PERS final average salary calculation purposes.

Argument Docket
Wednesday, March 29

1. SER City of Martinsburg v. Hon. David H. Sanders, Judge, et al. - 32868 - City seeks to prohibit the circuit court from exercising any further jurisdiction in a tort action asserted by the city firefighters alleging injury from exposure to diesel fumes.

2. Jeremiah "Bart" Morris v. Crown Equipment Corp, et al. - 32751- Plaintiff appeals the circuit court's orders dismissing his case without prejudice for lack of venue under W.Va. Code § 56-1-1(c).

3. Heartland, L.L.C., et al. v. McIntosh Racing Stable, L.L.C. - 32894 - Plaintiffs appeal from the circuit court's order granting summary judgment in favor of defendant in this action for breach of an oral contract for the sale of real property in which plaintiffs sought specific performance and monetary damages.

4. SER Brittney Mullins, et al. v. Gregory Burton, Comm'r, WCC - 32973

5. SER Joseph Cooper Cox v. Hon. James A. Matish, Judge - 32982 - Dismissed.