WEST VIRGINIA RECORD

CHARLESTON – By a single vote, the West Virginia Supreme Court of Appeals on July 12 denied a petition to stop a class action trial over Daewoo autos.

The decision gave Kanawha County Circuit Judge Paul Zakaib a green light to conduct the trial of auto dealer C&O Motors starting Monday, July 17.

C&O Motors had asked the Court for a writ of prohibition to keep the trial from starting. The Justices turned the dealer down, three to two.

Supreme Court of Appeals spokeswoman Jennifer Bundy said Chief Justice Robin Davis and Justices Joseph Albright and Larry Starcher denied the writ. She said Justices Brent Benjamin and Spike Maynard would have granted the writ.

At trial, attorneys from the Charleston law firm of Bell & Bands will aim to convince jurors that C&O Motors sold Daewoos in 2002 though the dealer knew Daewoo would go bankrupt.

Buyers suffered damages by paying more than they would have paid if C&O Motors had told the truth about Daewoo, according to the suit.

Attorney Harry Bell sued C&O Motors in 2002 on behalf of Darryl Smith. Bell moved to certify Smith as representative of at least 1,000 Daewoo buyers.

C&O Motors responded that it sold 91 Daewoos. The dealer argued that it honored warranty claims on every one.

Zakaib said at a hearing in February 2005 that he would certify a class action. He signed a certification order last October.

He ordered the parties to try mediation, but that effort broke down April 12.

C&O Motors attorney Mark Swartz moved in May to continue the trial and decertify the class action.

Bell responded that Smith would be deployed to active military duty in the fall.

Bell wrote, "... it is abundantly clear that defendants intend to attempt to delay trial in this action until such time as plaintiff returns from active military duty."

Zakaib denied the motions of C&O Motors on June 23.

Swartz filed his petition at the Supreme Court of Appeals on June 29. Bell opposed it July 3.

The Court had finished its spring term on June 30, but spokeswoman Bundy said the Justices were in vacation, not on vacation. She said they decide petitions that come up between terms as this one did.

Jurors will consider claims of 81 buyers. The Postal Service could not locate seven buyers, and three buyers "opted out" to preserve their claims as individuals.