CHARLESTON – Justices of the West Virginia Supreme Court of Appeals carried out a delicate balancing act in a family feud, leaving the tough decisions to Kanawha County Circuit Judge Paul Zakaib.
The Justices on Nov. 15 reversed Zakaib, who in the case of drowning victim Linda Sue Kannaird ruled in favor of her daughter and against her brothers and sisters.
In their balancing act, the Justices barely reached any decision at all.
Justice Larry Starcher delivered the opinion. Justice Joseph Albright concurred but reserved the right to file a separate opinion.
Chief Justice Robin Davis and Justice Spike Maynard dissented.
Justice Brent Benjamin disqualified himself. Fifth Circuit Chief Judge Thomas Evans of Ripley replaced him and sided with Starcher.
The case packs emotional power because Kannaird's daughter, Eugenia Moschgat, seeks compensation though she and her mother were estranged for years.
Kannaird's eight siblings claim they suffered a loss and Moschgat did not.
Moschgat claims a right of recovery as the sole heir, and she denies any right of recovery on the part of her aunts and uncles.
Instead of declaring one way or the other, the Justices directed Zakaib to develop facts that would allow him to make the choice.
Kannaird, of Sissonville, worked at a Speedway store in Charleston. One day a nearby creek flooded. She and other workers had to evacuate.
In 2000, on a day off, she received a phone call to bring her truck to the store so workers could haul groceries away from another flood.
Rising waters stranded them. Charleston Fire Department sent a rescue boat.
Workers scrambled into the boat but it capsized. Kannaird and another worker fell into the flood and drowned.
The Kanawha County Commission appointed Moschgat as her mother's administratrix.
Moschgat retained Michael Ranson of Charleston, who filed a wrongful death suit against Speedway and the city.
Ranson accused Speedway of deliberate intention, the only charge that could remove Speedway's immunity from civil suit under workers compensation law.
The aunts and uncles retained Margaret Workman of Charleston. She petitioned to remove Moschgat as administratrix so the aunts and uncles could pursue the suit.
Under West Virginia wrongful death law, brothers and sisters can be beneficiaries.
Zakaib removed Moschgat, finding hostility between her and the siblings. He wrote that Kannaird and Moschgat had been estranged for a number of years.
He appointed Diana Savilla, a sister of Kannaird, as administratrix.
Speedway then removed the case to federal court.
In 2003, Moschgat and Speedway agreed to settle the case. Speedway promised a sum of money for release of her claims, contingent on a court order dismissing Speedway
In 2004, a federal judge sent the case back to Zakaib.
Speedway moved to dismiss, arguing that workers compensation law limits recovery to widow, widower, child or dependent.
Zakaib dismissed Speedway last year.
At oral arguments in September, Workman told Justices she suspected the agreement between Moschgat and Speedway was "chump change."
In the majority opinion Starcher rejected Speedway's argument that in light of its proposed settlement with Moschgat there were no more claims against it.
Starcher wrote, "... this argument ignores the issues that can and do arise when one potential beneficiary and/or one defendant in a wrongful death case would like to simply settle a claim, and 'go home.'"
He quoted decisions back to 1909, holding that a compromise of a wrongful death suit is not valid without consent of all parties.
He called resolution of such cases "a complex balancing act."
He wrote, "The development of a full record and a careful weighing of all of the applicable law and equity by the court is a necessity."
He wrote that the Justices saw no such record nor any findings and conclusions.
He wrote, "We therefore have no basis to even attempt to decide whether and/or to what degree and upon what conditions Speedway and Ms. Moschgat may be permitted to resolve the cause of action ..."
The city of Charleston remains a defendant in the case, though the family feud has kept the city on the sideline for six years.