CHARLESTON – Chief Justice Robin Davis and Justice Spike Maynard of the West Virginia Supreme Court of Appeals want their colleagues to reconsider an appointment of a dead woman's sister to administer her estate for her daughter.
Justice Joseph Albright, Justice Larry Starcher and Judge Thomas Evans had sought in a Nov. 15 decision to end a family feud, but according to Davis and Maynard they blew it.
Davis wrote a dissent calling the decision "legally wrong and grossly unsound."
She wrote, "This decision sets horrendous precedent."
Judge Evans substituted for Justice Brent Benjamin, who disqualified himself.
The majority chose Diana Savilla to administer the estate of her sister, Linda Sue Good Kannaird, who drowned in a flood.
The decision, however, did not count as victory for Savilla. The majority tried to give something to each side and take something away from each side
Savilla had proposed to obtain a judgment of wrongful death and divide the proceeds among Kannaird's eight brothers and sisters.
Kannaird's daughter, Eugenia Moschgat, argued that no one could collect damages but her. She asked for appointment to administer the estate.
Savilla argued that Moschgat could not collect damages because she and her mother had been estranged many years.
The Court majority ruled that the brothers and sisters could not collect damages but Moschgat could. Then they put Savilla in charge of Moschgat's claim.
In the process they cancelled a settlement Moschgat had reached with her mother's employer, a Speedway convenience store in Charleston.
That stunned Davis and Maynard. Davis wrote, "Ms. Moschgat's potential recovery now rests in the hands of a plaintiff who does not want her to have a single penny."
She wrote that the majority "forced Speedway to endure a trial with a party who has absolutely no interest in the action against it."
She asked, "Where is the logic in this situation?"
She raised the specter of sabotage, writing that the record demonstrated Savilla's hostility toward Moschgat.
She wrote, "This hostility may very well cause Ms. Savilla to adversely compromise the action in order to limit the amount of damages Ms. Moschgat could recover."
The accident that killed Kannaird happened almost seven years ago.
Her employers called her to the store as flood waters threatened it, so she could help in hauling merchandise to higher ground.
When the flood trapped the workers, the Charleston Fire Department sent a rescue boat.
The workers climbed into the boat but it capsized.
The Kanawha County Commission appointed Moschgat as administratrix. Through attorney Michael Ranson, she sued Speedway and the city.
Kannaird's brothers and sisters, through attorney Margaret Workman, petitioned to remove Moschgat. Circuit Judge Paul Zakaib granted the petition and appointed Savilla.
In 2003 Moschgat and Speedway reached a settlement agreement, contingent on Moschgat's reinstatement as administratrix.
According to Davis, the decision to keep Savilla as administratrix could lead to "three extreme scenarios."
First, she wrote, it permits lawyers to intervene in valid litigation against an employer on behalf of parties who have no interest in the litigation.
Second, she wrote, it permits an intervenor to oust the only party who has an interest against an employer.
She wrote, "Third, and most importantly, the majority opinion allows the intervenor to control the destiny of the litigation."
If the Court stands by its decision, Speedway will not face trial alone. The suit against the city remains active, though the feud has kept the city in the background for years.