CATCHING UP: Berger rules for DOT in coal truck case

By The West Virginia Record | Jul 9, 2007

CHARLESTON - Kanawha Circuit Court Judge Irene Berger ruled in favor of the defendants in the case of Coal River Mountain Watch against the Department of Transportation.

The case, which Coal River Mountain Watch filed, said coal transport trucks are being allowed to exceed the Department of Transportation weight restrictions on bridges and roads, and causing them damage.

Berger granted summary judgment to the Department of Transportation.

"The court finds that no genuine issue of material facts exists with respect to the plaintiff's claims," Berger's decision said.

Berger also said the Legislature's designation of roadways in certain parts of the state that could be included within the CRTA was rational and reasonably related to legitimate governmental purposes.

The decision ends the case filed by Coal River Mountain Watch on Feb. 10, 2006. The Public Service Commission was also named as a defendant. West Virginia Coal Association and West Virginia Natural Resources Transporters Association also intervened in the suit.

Charles Burkhamer v. Robert Ore, individually and in his capacity as Mayor of the Town of Clendenin et al
PA – Henry Wood III; J – Bloom
Case number: 06-C-1176

Judge Louis Bloom dismissed the case of a fired Clendenin police officer, which made it's way to federal court before it was remanded back to Kanawha County.

Bloom closed the case May 29, 2007, ordering each party to pay their own fees.

Charles Burkhamer filed a lawsuit June 19, 2006, in Kanawha Circuit Court, against Clendenin Mayor Robert Ore, alleging he was fired in retaliation for filing a complaint with a Kanawha County magistrate that led to Ore turning himself in to police.

Burkhamer has previously tried to determine that his firing was outside Ore's authority, but Kanawha Circuit Court Judge Tod Kaufman determined that state law gives a mayor control of his town's police department.

Burkamer's complaint in magistrate court, filed June 5, 2006, claims Ore was guilty of obstruction. Burkhaner claiming he was attempting to execute an arrest warrant on Clendenin residents Terry Peck and Misti Sexton on April 20, 2006, which Peck answered the door and handed him a phone.

Ore was on the other end of the call, and told him that he did not approve of serving warrants so late at night and instructed him not to arrest the couple.

After Burkhamer filed the complaint in magistrate court and when Ore learned about it, he turned himself it.

The civil suit claimed Burkhamer was wrongfully fired later that day by Ore.

When the case was in federal court, Judge David Faber decided the issue was created by state law and the claim did not depend upon a substantial question of federal law.

Reverend Eual Toler v. Dr. Robert Ovington, et al
PA – Belinda S. Morton; J – Walker
Case number: 06-C-1507

The doctor in a case filed by a Wyoming County reverend has filed his own countersuit. Robert Ovington, M.D., filed the suit against Eual Toler, claiming Toler did not properly serve the papers in ways directed by the West Virginia Rules of Civil Procedure.

Toler filed the suit against Ovington, seeking $600,000 in punitive and compensatory damages. Toler claims that during a trip to Ovington's office, his leg gave way and he fell on a waiting room table.

The suit says an employee of Ovington's entered the waiting room and stated in a loud voice that Toler was "over-drugged." Toler, a reverend by profession, claims he was embarrassed and humiliated when the receptionist accused him of falling because of drug use.

Ovington seeks to have the case dismissed, which is to be heard by Judge Jennifer Bailey Walker in October 2007.

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