West Virginia Record

Saturday, April 4, 2020

Justices put in middle of family feud

By Steve Korris | Nov 2, 2006

CHARLESTON – Justices of the West Virginia Supreme Court of Appeals must decide whether Eugenia Moschgat suffered any loss when her mother died.

The mother and daughter did not speak to each other and they lived far apart, but Moschgat sued those she held responsible for her mother's death.

Moschgat's nine aunts and uncles, in Sissonville, also sued. They claimed they suffered loss through their sister's death and Moschgat did not.

West Virginia's Justices often hear painful family feuds, but no case could hit closer to the heart than this one.

Linda Sue Good gave birth to her only child, Eugenia, in 1965. The parents split up two years later and the father, Eugene Summers, took primary custody of Eugenia.

Summers and his mother raised her. When she turned 12, Summers took full custody.

Linda Sue Good married Jim Kannaird, and she made a mistake. She took him to Eugenia's high school and introduced her to her stepfather.

Eugenia told her mother to leave. They never communicated again.

Eugenia joined the Army and spent six years in Germany. She served in Desert Storm, the liberation of Kuwait.

She married and bore a son, Bernie. She settled in Fayetteville, North Carolina.

Her mother cleaned houses. To keep health insurance she also worked at a Speedway gas station convenience store in Charleston.

Her boyfriend, Danny Fout, worked there, too.

One day Two Mile Creek flooded and nearly washed Speedway away. Linda Sue Good Kannaird worked that day, and Speedway gave her a plaque for surviving.

On Feb. 18, 2000, she thought she would not have to work, but her phone rang when Two Mile Creek again began to rise.

Store manager Betty Huffman told her to come in and carry merchandise out of the store. She also summoned Fout.

The workers filled trucks with cigarettes and beer, but the water kept coming. Someone called for help.

Charleston Fire Department sent a rescue boat. The Speedway workers climbed into it but the boat capsized.

Kannaird and Fout drowned in Two Mile Creek.

Eugenia Moschgat traveled to West Virginia for the funeral. After it she drove her mother's vehicle home to North Carolina.

A week later, the Kanawha County Commission appointed Moschgat to administer the estate. She retained attorneys Michael Ranson and Cynthia Ranson of Charleston.

Her aunts and uncles retained Margaret Workman of Charleston.

In April 2000, Ranson filed suit for Moschgat against Speedway and the city.

Fout and two flood survivors also sued. The Supreme Court of Appeals consolidated the cases and assigned them to Kanawha County Circuit Judge Paul Zakaib Jr.

For the aunts and uncles, Workman filed a petition for declaratory relief asking Zakaib to remove Moschgat as administratrix.

Zakaib granted the petition in 2001. He found Moschgat too hostile to carry out her fiduciary duty to the aunts and uncles.

He appointed a sister of Kannaird, Dianna Mae Savillla to administer the estate.

In 2001 and 2002, Fout's estate and the other plaintiffs settled their claims.

Zakaib set trial in 2002 for the claim of Kannaird's aunts and uncles, but Speedway forced a delay by challenging their standing and moving to dismiss.

In 2003 Moschgat and Speedway reached a conditional agreement to settle the case, as long as the aunts and uncles did not get anything from Speedway.

Last year Zakaib granted Speedway's motion to dismiss.

For Savilla and the rest of Kannaird's brothers and sisters, Workman appealed.

Workman told the Justices that Kannaird never met her 13 year old grandson and that her daughter never gave her a photo of him.

She wrote, "Yet this same Eugenia Moschgat, who in life refused to have any relationship whatsoever with Linda Kannaird, rushed back to West Virginias to take control of the litigation which ensued as a result of her death."

She wrote that Moschgat and Speedway thumbed their noses at Zakaib by reaching agreement after he removed Moschgat as administratrix.

Responding for Speedway, Joseph Beeson of Charleston branded Workman's appeal as a diatribe and a thinly veiled appeal to sympathy.

He wrote that he would not respond to personal attacks.

He wrote that the aunts and uncles claimed they could represent Moschgat but that they were hostile to her.

He wrote that even if a sister administered the estate she could only collect damages for Moschgat. He wrote, "…and she has already resolved her claim."

He wrote that interpretation of a statute does not depend on "an emotional response to an unusual situation."

Responding for Moschgat, Michael Ranson wrote that she cried and prayed on her flight to her mother's funeral.

He wrote, "…she was greeted with open arms."

He wrote that she took responsibility for all funeral bills, and that none of the aunts and uncles offered to help.

He wrote, "Eugenia Moschgat yearned for a meaningful relationship with her mother."

He wrote that the aunts and uncles said her mother wanted a relationship too. He wrote that her death kept it from occurring.

He wrote that Workman could not get the case to trial or settle it.

Workman responded that, "Speedway is now carrying Moschgat's water." She wrote that revealing the terms of their agreement would make the reason clear.

She wrote that Moschgat could not genuinely claim to have suffered loss.

In oral arguments before the Justices on Oct. 3, Workman said Speedway and Moschgat pulled an "end run" around Zakaib.

She said their agreement was secret and added, "I suspect it is kind of chump change."

Beeson told the Justices Speedway would prevail even if they found that Savilla was the proper plaintiff. He said Moschgat was the only person eligible to recover.

He said the estrangement of mother and daughter had nothing to do with the case.

Michael Ranson rose to argue for Moschgat but before he could speak one of the Justices said, "Is your client a bad daughter?"

Ranson said no. He said the problem was between the parents.

He said Kannaird named Moschgat as beneficiary on a life insurance policy.

He said that for the funeral, "Not one aunt or uncle gave a penny for anything."

A Justice said, "A defendant's delight is when plaintiffs start fighting. What you are doing on both sides is hurting your case."

Ranson said, "It was not smart to get where we are."

When he finished Workman said, "The misrepresentations Mr. Ranson has stood here and made take my breath away."

She said Zakaib sat them down and told them to pursue the claim together. She said, "Mr. Ranson said there is no way we are going to work with these people."

She said, "We have never told Ms. Moschgat that she is out."

She said she believed Danny Fout was the beneficiary on the life insurance policy.

She said Ranson was trying to reshape reality.

She said, "Ms. Moschgat did not pay for that funeral. Speedway did."

The feud has delayed for years any court action on the claim of Kannaird's estate against Charleston. Zakaib will consider that claim after the Justices tell him who represents the eastate.

The city has a motion to dismiss pending before Zakaib.

As of Nov. 1, Justices had not reached a decision.

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West Virginia Supreme Court of Appeals