WEST VIRGINIA RECORD

Argument Docket
Tuesday, Feb. 9

1. Guy R. Cunningham, et al. v. Walter Lee Hill, et al. - 34861 - Petitioner insurance company files this petition for appeal asking this Court to accept the certified question from the circuit court and to answer that question in the affirmative.

CERTIFIED QUESTION: When two insurers issue separate automobile liability insurance policies upon different vehicles containing underinsured motorists coverages which provide coverage for the same loss, is policy language which provides that the limit of underinsured motorist coverage available from all policies shall not exceed the liability limits of the policy with the highest limit of underinsured motorist coverage valid and enforceable? The circuit court answered this question in the negative and found that the language in the Erie insurance policy was ambiguous.

Guy R. Cunningham, et al. v. Walter Lee Hill, et al. - 34862 - Petitioner insurer asks this Court to accept its petition upon the certified question from the circuit court and to answer that question in the affirmative.

CERTIFIED QUESTION: When two insurers issue separate automobile liability insurance policies upon different vehicles containing underinsured motorists coverages which provide coverage for the same loss, is policy language which provides that the limit of underinsured motorist coverage available from all policies shall not exceed the liability limits of the policy with the highest limit of underinsured motorist coverage valid and enforceable?

The circuit court answered this question in the negative and found that the language in the Erie insurance policy was ambiguous.

2. Heather Ruckdeschel, Admx. v. Falcon Drilling Company, L.L.C., et al. - 34865 - Petitioners, Halliburton Energy Services, appeals the lower court's dismissal of petitioner's cross-claim through the granting of Texas Keystone's Motion to Dismiss. The Tyler County Circuit Court found that a contract existed between the parties, but that the claim for indemnification was to be arbitrated.

3. Lloyd's Inc. v. Charles R. Lloyd - 34866 - Petitioner, Lloyd's, Inc., appeals from a February 11, 2009, Order of the Braxton County Circuit Court which denied petitioner's Motion to Amend its Complaint. Petitioner had brought an action for unjust enrichment and conversion against Charles R. Lloyd.

4. Paul E. Nesselroad v. State of WV Consolidated Public Retirement Board - 34885 - The Consolidated Public Retirement Board appeals from the circuit court's order overturning the Board's administrative decision denying respondent's request for reclassification of 6.592 years of service credit from the statutorily salary capped higher education years to full salary years (non-higher education years) and a corresponding recalculation of his annuity benefits.

5. Estate of Christopher P. Bastien v. Elizabeth A. Bastien, et al. - 34886 - Petitioner, Lane and Young, attorneys for Maxwell H. Bastien, a minor, appeal from the circuit court's order denying the petition for additional attorney's fees in this action for declaratory relief to determine the rights of all parties in the Estate of Christopher P. Bastien, deceased.

6. James G. Clay, et al. v. State of WV Consolidated Public Retirement Board - 34944 - Petitioners James Clay and Michael Corbett appeal the circuit court's order affirming the decision of the Consolidated Public Retirement Board on the issue of loans from each petitioner's Teachers Retirement System Account.

James G. Clay, et al. v. State of WV Consolidated Public Retirement Board - 34945 - Petitioner Katherine Hoopengarner appeals the circuit court's order affirming the decision of the Consolidated Public Retirement Board on the issue of a loan from petitioner's Teachers Retirement System Account.

Argument Docket
Wednesday, Feb. 10

1. Brian M. Powell v. Steven L. Paine, State Superintendent of Schools - 34946 - Petitioner, Brian M. Powell, appeals from a Kanawha County Circuit Court Order dated September 17, 2008, which denied petitioner's Motion for Entry of Proposed Order providing for remedies under his West Virginia Code §18A-2-2(c) continuing contract case, as well as reasonable attorney's fees. The lower court reasoned that the proposed order was beyond the scope of this Court's remand order in Powell v. Paine I.

2. Brandy Pingley, et al. v. Huttonsville Public Service District - 34969 - Plaintiffs appeal the circuit court's order granting summary judgment for the defense in their lawsuit asserting damages resulting from a sewer system failure. They argue that the court should have permitted them some discovery.

3. John Brian Harrison v. Commissioner, Department of Transportation - 34970 - The DMV Commissioner appeals the circuit court's order which modified the penalty in a driver's license revocation based upon criminal DUI conviction. The court ruled that the revocation period could not be enhanced by an earlier DUI that occurred during a time period when the DMV did not consider "no contest" dispositions to be convictions for administrative purposes.

Kenneth E. Reese, Jr. v. Commissioner, Department of Transportation - 34971 - The DMV Commissioner appeals the circuit court's order which modified the penalty in a driver's license revocation based upon criminal DUI conviction. The court ruled that the revocation period could not be enhanced by an earlier DUI that occurred during a time period when the DMV did not consider "no contest" dispositions to be convictions for administrative purposes.

4. SER Stephen P. Bowers v. Tom Scott, Administrator, Southwestern Regional, et al. - 34972 - The State appeals the circuit court's order granting Stephen P. Bowers petition for habeas corpus with prejudice, prohibiting the State from a retrial. In 2003 Mr. Bowers was convicted of three counts of sexual abuse by a custodian, one count of sexual abuse in the first degree, and two counts of sexual abuse in the third degree. In the habeas order, the circuit court found that Mr. Bowers was prejudiced by receiving ineffective assistance of trial counsel and by improper comments of the prosecutor.

5. State of West Virginia v. Raymond Lee Elswick - 35014 - Petitioner Raymond Elswick appeals his conviction for one count of voluntary manslaughter, a lesser included offense, and one count of conspiracy. He asserts multiple errors including that the prosecutor failed to timely disclose discoverable evidence, violation of his right to a speedy trial, and a double jeopardy violation.

6. Ronald D. and Deborah Harrald Cobb v. Thomas S. and Christina A. Daughterty - 35015 - Defendants appeal from an adverse jury verdict in this case involving an easement claimed by plaintiffs over the property of defendants. The jury found against plaintiffs on the issue of easement by equitable estoppel, but found in favor of plaintiffs on the theory of implied easement. Defendants seek a reversal and the award of a new trial or a verdict in their favor as a matter of law.

7. Lawyer Disciplinary Board v. John M. Cavendish - 34259

8. Lawyer Disciplinary Board v. William C. Martin - 34734 - Harrison County Commission found Respondent did not properly administer the Estate of Anna Lee Hornor. Respondent misappropriated funds (approximately $13,831.40) from the estate by paying cash to himself and others, and refused to refund money to the estate and refused to provide an accounting to the estate's beneficiaries. Petitioner violated the Rules of Professional Conduct by not acting with reasonable diligence; safekeeping of property, declining or terminating representation; fairness to opposing party and counsel; and misconduct.

9. State of West Virginia v. Glenn Tanner - 07-153 - Pre-Petition matter. - To be presented on briefs only without oral argument.

10. In Re: Bryanna H. and Skylar H. - 35306 - Father appeals circuit court dispositional order placing children with Mother.

11. State of West Virginia ex rel. Jay M. Potter v. Office of Disciplinary Counsel - 35337 - Pro se Petitioner seeks issuance of a writ of prohibition to bar the Office of Disciplinary Counsel (ODC) from retaining a file with certain private communications that the ODC acquired without Petitioner consent.