WEST VIRGINIA RECORD

Argument Docket
Tuesday, March 24
LAWS Program - Lewisburg

1. Jennifer Boniey v. Brian Kuchinski and State Farm Mutual Automobile Ins. Co. - 34152 - This claim for uninsured motorist benefits arise from an all-terrain vehicle accident. The ATV was uninsured and the Respondent sought UM coverage from two auto policies by State Farm Mutual Automobile Insurance Company. The policies contained exclusions for ATVs from the definition of uninsured motor vehicle when the ATV is operated off-road. The Circuit Court of Brooke County found the policy language to be clear and unambiguous but found the exclusion violated the spirit of West Virginia Code §33-6-31. On appeal, State Farm contends that the UM statute is inapplicable to the facts of the present case.

2. State of West Virginia v. Gary Wayne Kent - 34153 - Gary Wayne Kent appeals his 2007 conviction for felony murder with a recommendation of mercy. He asserts double jeopardy, that the prosecutor repeatedly asked improper comparative questions, erroneous admission of prior testimony given by a now unavailable witness, and that scientific opinions about marks on shell casings and gunshot residue should have been excluded under Daubert and its progeny.

3. Ryan Strick v. Commissioner, West Virginia Division of Motor Vehicles - 34135 - The petitioner, Ryan Strick, appeals from a Kanawha County Circuit Court Order upholding the administrative order by the Division of Motor Vehicles suspending Petitioner's privileges to operate a motor vehicle in this state for one year for first offense Driving Under the Influence. On appeal, the petitioner requests that he is issued a full and valid license and that the Order of Revocation be reversed.

4. State of West Virginia v. Paul Newcomb - 34142 - Paul Newcomb appeals his conviction for first degree murder without a recommendation of mercy. He asserts error in the trial court's failure to strike certain jurors for cause, that his statements and the weapon should have been excluded from trial because of Miranda violations, that his statement should have been excluded because of a prompt presentment violation, and error in the admission of 404 (b) evidence regarding an earlier altercation.

Argument Docket
Wednesday, March 25

1. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34333 - Plaintiffs appeal from the circuit court's order granting in part and denying in part defendant DuPont's motion for partial summary judgment in this class action seeking medical monitoring, property remediation, and punitive damages. Plaintiffs assert that there were material questions of fact as to whether the contamination and injuries/damages due to the operation of a zinc smelter were contemplated by the original landowners and whether certain releases and easements executed in the 1920's provide immunity for those claims. Plaintiffs seek a reversal of the circuit court's order granting partial summary judgment in favor of defendants on the Property Class members' claims and request a remand for reinstatement and adjudication of those claims upon their merits. - This case will be heard at 2 p.m. Chief Justice Benjamin and Senior Status Justice McHugh disqualified. Judges Swope and Moats sitting by temporary assignment.

Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34334 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. This is a class-action complaint alleging negligence, recklessness, public and private nuisance, trespass, strict liability, unjust enrichment, medical monitoring and punitive damages based on alleged exposure to arsenic, cadmium and lead. The jury verdicts are reported as the largest toxic tort verdict in the country.

Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34335 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. E. I. du Pont seeks reversal of the circuit court's order ruling that du Pont has no obligation to indemnify T. L. Diamond in connection with Plaintiffs' claims in this case.

2. Catherine I. Smith and John Smith v. Derek Andreini, M.D. and Orthopaedic Surgery, Inc. - 34271 - Continued to April 7.

3. State of West Virginia v. Sheila G. Adkins - 34275 - Sheila G. Adkins appeals her convictions for two counts of Distribution of a Controlled Substance and the circuit court's denial of her motion for new trial. She asserts that pre-trial, in violation of Brady and State v. Youngblood, the State failed to disclose material evidence that would have impeached the State's key witness. - To be presented on briefs only without oral argument.

4. C & O Motors, Inc. v. West Virginia Paving, Inc. - 34330 - Defendant appeals from the circuit court's order awarding summary judgment in favor of plaintiff in this negligence action seeking damages. Defendant asserts that the circuit court's ruling effectively changed this negligence into one of "strict liability." Defendant further asserts that the circuit court erred by not granting defendant's motion to join a necessary party, a subcontractor, who performed the work in question.

5. State of West Virginia v. Tanya Harden - 34268 - Tanya D. Harden appeals her conviction for First Degree Murder with a recommendation of mercy. She alleges several trial errors including the admission of irrelevant and gruesome photographs, failure to excuse a prospective juror for cause, failure to rebut her self-defense claim, admission of speculative evidence, improper instruction regarding lost or destroyed evidence, and her lawyer was improperly ordered not to object to the State's closing argument.

6. SER James L. Knotts v. Hon. Richard Facemire, Judge - 34647 - Petitioner seeks a writ of prohibition to prevent the Respondent from conducting a criminal trial set for January 6, 2009. The indictment contains 129 counts of either sexual assault in the first degree, incest, sexual abuse by a custodian, or sexual assault in the third degree. Petitioner argues the thirteen to seventeen years between the alleged crimes and the indictment places the Petitioner deprives him any opportunity to impose the defense of alibi and violates Right to Due Process. - Justice Workman disqualified. Judge Sadler sitting by temporary assignment.

7. SER Alex Farmer v. Thomas McBride, Warden - 34157 - Alex Farmer appeals the circuit court's denial of his omnibus petition for post-conviction habeas corpus. He was previously convicted of First Degree Murder with a recommendation of mercy, two counts of First Degree Sexual Assault, and Burglary. He asserts several constitutional arguments based upon Zain 1 and Zain 3, the admission of certain evidence and statements, the court's denial of his motion for judgment of acquittal and motion to strike a juror for cause, alleged juror misconduct, and alleged sentencing error.

8. Chad R. Clower v. WV Dept. of Motor Vehicles, Joseph Cicchirillo, Comm'r. - 34329 - The DMV appeals the circuit court's order which reversed the DMV's final order revoking Chad R. Clower's driver's license for six months for DUI. The court found that the arresting trooper lacked the requisite reasonable suspicion to initially stop Mr. Clower's vehicle, but the DMV argues that the exclusionary rule should not be applied to administrative driver's license revocation proceedings.