Point Pleasant council still taking a wait-and-see approach to settling, fighting lawsuits

By Lawrence Smith | Jul 17, 2007

POINT PLEASANT – Despite the election being over, several newly election members of the Point Pleasant city council remain mum or non-committal on whether the city should settle or fight three lawsuits that were initiated during the previous administration.

Prior to the May 19 municipal election, The Record sent a questionnaire to all 23 candidates seeking office. Only two candidates, incumbent Mayor Jim Wilson, a Democrat, and Joe Supple, a Republican candidate for one of the at-large council seats, replied.

Supple and his GOP colleagues, including mayoral hopeful Marilyn McDaniel and incumbent City Clerk Brian Billings, swept the election, winning nine out of the 10 seats on council. The only seat they didn't win was in the 4th Ward.

There, the party decided not to pit a challenger to incumbent councilman William Park.

The new Republican-dominated council, which officially took office July 1, will enjoy an extra year in power as voters approved a change to the city charter moving the municipal election to coincide with the state primary in 2012.

In following up on the issue of lawsuits, only two council members replied, Supple and Sam Juniper. Several other council members, including Robert Doeffinger and Leota Sang, as well as Mayor McDaniel, were either unavailable for comment or did not return repeated telephone calls.

Personal injury, code enforcement

Since the last municipal election in 2003, the city has been sued three times. Two suits involve personal injury, and the other pertains to a dispute over enforcement of the city code.

Both personal injury suits were filed in 2005. One case alleges the city was negligent in a fall a woman sustained as a result of an open water meter hole while the other alleges a woman sustained damage to her person and vehicle as a result of the reckless driving of a city employee.

In the first case, Ashely Jones of Henderson alleges that on Feb. 7, 2003, she was walking along the street in Henderson when "she stepped on the water meter cover located on the middle of the sidewalk and fell through the hole." As a result of the fall, Jones alleges she sustained injuries to her feet, leg, hip and back.

In her suit, Jones maintains she incurred $20,000 of medical expenses as a result of the fall. Also, the fall caused her lost wages, and "extreme emotional and physical pain and suffering; and past and present loss of capacity to enjoy life."

In addition to the city's water system, Jones named the Mason County Public Service District and the town of Henderson as co-defendants. Records show MCPSD was dismissed from the suit on Dec. 21, 2005, and Henderson on May 18, 2006.

Also, records show that prior to its dismissal, Henderson via its attorney R. Carter Elkins with the Huntington law office of Campbell, Woods, Bagley, Emerson, McNeer and Herndon incorporated Jones' complaint into a cross claim against Point Pleasant on Dec. 22, 2005.

About six months after Jones' accident, Gena Griggs of Point Pleasant was involved in hers. She alleges a collision with a 1993 Ford F-150 driven by John W. Burton caused her "past and future physical pain and suffering, mental pain and suffering, loss of enjoyment of life, doctor, hospital and medical bills and future loss of earning capacity."

According to court records, on Aug. 25, 2004, Burton was driving his truck in the northbound lane on Viand Street. After changing into the center lane, Burton abruptly changed back into the northbound lane "whereby striking Gena S. Griggs."

In her suit, Griggs, though her attorney Donald J. Tennent Jr. of Wheeling, maintains Burton was acting in the course of his employment at the time of the accident. Because he was "negligently trained, supervised and/or instructed" the suit names both he and the city as defendants.

In its reply dated Oct. 26, 2005, both Burton and the city, though their attorney David F. Nelson with the Charleston law office of Schumacher, Francis and Nelson, admit Burton "was working within the scope of his employment at the time of the motor vehicle accident." However, they denied Burton's actions resulted in Griggs pain and suffering and "demand[ed] strict proof thereof."

On Nov. 16, 2006, Burton was dismissed as a defendant.

In the third suit, Howard Yeager asked Mason Circuit Judge Thomas C. Evans III on Feb. 7 to prohibit Wilson from presiding as judge in the city's case against Yeager in municipal court for failing to comply with its distressed property ordinance. Though Jeremy Vickers, the city's regular municipal judge, recused himself because of his involvement in the case as assistant city attorney, Yeager said Wilson, too, should have recused himself because of his role in the negotiations.

In West Virginia, state law allows for a mayor to hear municipal cases when the judge is absent or has a conflict.

Because Wilson was defeated for re-election, it was not immediately clear if Yeager's case becomes moot.

Settlement always on the table

In his reply to the campaign questionnaire, Supple, a Point Pleasant attorney, said that settlement of any lawsuit should remain an option if both parties believe it to their advantage. However, he declined to say specifically if the lawsuits involving the city should be settled, as he was not aware of their details.

Now as a councilman, Supple says he's reluctant to comment on the cases until he receives more information from the city attorney.
"I don't think it would be fair to put him in a bad situation," Supple said.

Like Supple, Juniper, who represents the 7th Ward, says settlement should always an option. From personal experience, Juniper, a retired chemical worker, says he knows how frustrating litigating a case can be.

"If they can be settled reasonably, then I'm in favor of it rather than a long drawn out court battle," Juniper said.

Attempts to get further details on the cases, including their status and how much the city has spent to-date on attorney's fees, was unavailable as James Casey, Point Pleasant's city attorney, did not return repeated telephone calls for a comment.

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