Ketchum

CHARLESTON – Like a rookie swinging at every pitch, Justice Menis Ketchum asked about as many questions as the other four Justices combined on the first day of his new job at the West Virginia Supreme Court of Appeals.

"I talk too much," he laughed near the end of oral arguments Jan. 13.

Ketchum and Justice Margaret Workman joined the Court this year after winning the November election, but Workman arrived as a veteran rather than a rookie.

Workman first won election in 1988, and served until 1999.

At oral arguments, Ketchum didn't take the first swing. Justice Robin Davis did, in a suit that Honda dealer Lester Raines Imports filed against Honda American.

Raines claimed Honda broke state law requiring a minimum distance between dealers for the same manufacturer, but Kanawha County Circuit Judge Charles King disagreed.

Davis stopped Raines counsel David Barnette when he said state law required 15 miles and the Legislature increased it to 20.

Davis asked if the increase occurred after the suit was filed.

Barnette said the governor signed the bill after the suit was filed. He said the judiciary committee inserted a grandfather clause.

Ketchum asked if he was supplied with Honda's survey of the distance from Lester Raines Imports to the potential dealership, in Hurricane. Barnette said he was.

Ketchum asked if he agreed that it was outside the 15-mile limit.

"No, that's not the only issue," Barnette said.

When he said he needed discovery, Workman asked what that would show if a survey was already in the record.

Barnette said it would show how their surveyor conducted the survey.

He said Honda's plan for a new dealership was frozen when Raines filed suit. He said the legislature protects dealers from "the immense power of manufacturers."

Ketchum asked if federal judge Robert Chambers ruled against the Moses dealership. Barnette said he did.

"You didn't appeal it," Ketchum said.

For Honda, Michael Schulz said the distance was an objective fact anyone could find.

Davis said Honda sent Raines a letter about a possible new dealer in 2006 and a second letter with a specific location after Raines filed suit.

"What was the purpose of the first letter?" Davis asked. "Why did you even bother to send that letter?"

"As a courtesy, your honor," Schultz said.

Barnette, in rebuttal, said a Honda affiliate bought the property in Hurricane. He said it might be a dealer related manufacturer, against the law.

"If it's outside 15 miles it doesn't matter," Ketchum said.

Next, Paul Detch of Lewisburg pleaded to reverse a Raleigh County jury verdict against Gloria Willett on a charge of possessing a controlled substance with intent to deliver.

Detch said Circuit Judge John Hutchison improperly allowed a "stoolie," Allen Reed, to testify that he bought Oxycodone and Alprazolam painkiller pills from Willett.

Detch said Willett required 12 pills a day due to back surgery in 2002.

Chief Justice Brent Benjamin asked who prescribed them. Detch said two doctors did.

Benjamin asked if the doctors knew about each other.

"I can't say," Detch replied.

"The jury certainly seems to have made a choice," Benjamin said.

Detch said he couldn't establish what day, month or season Reed bought the pills.

"He affirmatively prevented her from giving an alibi defense," Ketchum said.

"The jury believed him, not her," Benjamin said, also asking where Hutchison abused his discretion.

Schulz said he should have found Reed unreliable and kept him from testifying.

"The judge had a job to do that day," he said. "The judge never set out why he believed Allen Reed was credible."

As Raleigh County assistant prosecuting attorney Tom Truman began his argument, Ketchum said, "Is it reliable if he says he bought drugs and he can't say when?"

"The day, the year, the season is irrelevant," Truman said.

"Didn't it eliminate an alibi defense?" Ketchum asked.

Truman said that wasn't relevant. He said she had more than 3,100 pills.

"I understand she's a bad woman, but we have a Constitution in West Virginia," Ketchum said.

Truman said the testimony took up only three pages in the transcript.

"It doesn't matter how many pages," Ketchum said. "It's the impression a witness makes."

Next, the Justices pondered a brain twister from U.S. District Judge Joseph Goodwin.

A Wood County jury has awarded millions in a suit against Camden-Clark Hospital of Parkersburg, and now Goodwin must decide who should pay the judgment.

The hospital says the carrier of its excess insurance policy, St. Paul Fire and Marine Insurance, should pay. St. Paul says the hospital should pay.

Goodwin needs help from the Justices because the plaintiff based the complaint partly on conduct St. Paul's policy covered and partly on conduct it didn't cover.

Goodwin wants to know if Camden-Clark bears the burden of proving liability was based on covered conduct or St. Paul bears the burden of proving it wasn't.

At oral argument, Dino Colombo said Camden-Clark paid St. Paul $2.7 million in premiums over 10 years and St. Paul never paid out a penny.

"Your lawyer forgot to ask for an allocated verdict?" Ketchum asked.

Colombo said an insurer can't ignore its duties.

"They let you pay less so you could have your own lawyer," Ketchum said.

Colombo said an insurer must provide reasonable assistance to a policyholder's lawyer and it was St. Paul's duty to make sure the verdict was allocated.

"It was your lawyer that failed to allocate," Ketchum said.

Colombo said, "That wasn't his job. He had no idea St. Paul would deny coverage."

Ketchum asked if hospital attorney Richard Hayhurst answered a letter about coverage.

Colombo said Hayhurst did. He said St. Paul sent a letter before trial stating it would not cover a claim of spoliation of evidence.

He said the spoliation claim wasn't pursued at trial.

D.C. Offutt, for St. Paul, said the spoliation letter waived no other rights.

He said the conduct behind the verdict of fraudulent misrepresentation was the same as the conduct in the spoliation claim.

Colombo began a rebuttal but Davis stopped him and asked, "Are you saying that while Hayhurst was defending the hospital, St. Paul needed to do the same?"

Colombo said no. He said St. Paul should have written Camden-Clark a letter telling them there was a conflict in coverage.

He said Hayhurst wasn't there as coverage counsel.

Ketchum said, "He's there to protect you for everything," Ketchum said. "It was his job to make sure you had coverage."

Workman said, "Wasn't that a no-brainer for everybody? I can't figure out if Mr. Hayhurst was really smart or really dumb."

Senior status Justice Thomas McHugh asked, "How far does a carrier have to go?"

Colombo said, "Just a letter saying be careful, we need an allocated verdict. Otherwise, they have an incentive to do nothing and deny coverage."

Ketchum said, "Your client gave them that incentive by buying the cheaper policy."

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