WEST VIRGINIA RECORD

Argument Docket
Tuesday, March 9
West Virginia University College of Law

1. Barbara K. Mott v. Frank P. Kirby, Sr., LLC, Frank Kirby and Frank Kirby, Jr. - 34947 - Defendants appeal from the circuit court's order entered in favor of plaintiff in this action to partition real estate following a bench trial. Defendants assert that the circuit court committed clear legal error and abused its discretion in the entry of its final order.

2. State of West Virginia v. Kevin B. Payne - 34889 - Defendant, convicted of two counts of Second Degree Sexual Assault, one count of First Degree Sexual Abuse, and one count of Third Degree Sexual Abuse by jury, appeals circuit court order sentencing him to serve consecutively two terms of 10-25, 1 term of 1-5 years in prison and 90 days in jail.

3. Debbie L. Ullom v. Joseph Cicchirillo, Commr., WV Div. of Motor Vehicles - 34864 - The DMV Commissioner appeals the circuit court's order which reversed the Commissioner's revocation of respondent's driver's license for six months for DUI.

4. State of West Virginia v. William Georgius, III - 34807 - Petitioner, William Georgius, III, appeals from a July 1, 2008, Order of the Berkeley County Circuit Court denying petitioner's Motion for Reconsideration of Sentence. On appeal, petitioner states that the lower court failed to properly apply the law as set forth in State v. Arbaugh.

5. Eric Carper v. Chad Watson and Burkharts, Inc. - 34750 - Plaintiff appeals circuit court order granting costs to Defendants pursuant to WVRCP 68 (1) (c) offer of judgment.

Motion Docket
Wednesday, March 10

1. Darrell McGraw Jr., Attorney General v. Johnson & Johnson and Janssen Pharmaceutica Products - 091273 - Johnson & Johnson and Janssen Pharmaceutica Products L.P. appeal the circuit court's adverse partial summary judgment order, bench trial order, and order on post-trial motions in a case brought by the W.Va. Attorney General pursuant to the W.Va. Consumer Credit and Protection Act. The court imposed $4,475,000 in civil penalties after finding, inter alia, that petitioners made false and misleading communications about two drugs that Janssen manufactures. - Justice McHugh disqualified. Judge Aboulhoson sitting by temporary assignment.

2. State of WV v. Rodney Jason Berry - 091826 - Petitioner was convicted by a Raleigh County jury of First Degree Murder and Murder by Lying in Wait. Mr. Berry was sentenced to serve two life sentences without mercy by the Raleigh County Circuit Court. On appeal, petitioner alleges prosecutorial misconduct and court error in arguing that he is entitled to a new trial.

3. John G. Chapman v. Louise C. Millikan - 091810 - Louise G. Millikan appeals the Circuit court's order which affirmed the Family Court's rulings on Millikan's Motion for Contempt and Motion for Reconsideration. This case concerns the division of pension and survivorship benefits in a divorce.

Argument Docket
Wednesday, March 10

1. State of West Virginia v. David Harold Eilola - 35140 - David Harold Eilola appeals his conviction for attempted first degree murder, malicious assault, fourth degree arson, violation of a domestic violence protective order, and domestic battery. He asserts that the convictions for attempted first degree murder and malicious assault violated his right against double jeopardy; that there was insufficient evidence to support the attempted murder conviction; and that the trial court's refusal to give him credit for pre-trial time served on his parole eligibility violates his right to equal protection.- To be presented on briefs only without oral argument.

2. Bernard Boggs v. Camden-Clark Memorial Hospital - 35223 - Certified Questions: QUESTION (1): Do allegations of a malicious prosecution suit against the insured, an attorney, by a client's former opponent in a previous action defended by the insured fall within the scope of a commercial general liability policy of personal umbrella liability policy issued to the attorney wherein the term "personal injury" is defined to include "malicious prosecution"? ANSWER: Yes.

QUESTION (2): Under a liability insurance policy wherein the term "personal injury" is defined to include "malicious prosecution," is a malicious prosecution suit against the insured, an attorney, by a client's former opponent in a previous action defended by the insured excluded by policy language that states that "This insurance does not apply to...'personal injury'... due to rendering...professional services unless professional liability coverage has been endorsed hereon or stated in the Declarations. This includes but is not limited to: (1) Legal, accounting or advertising services"? ANSWER: Yes.

QUESTION (3): Under a personal umbrella liability insurance policy wherein the term "personal injury" is defined to include "malicious prosecution" is a malicious prosecution suit against the insured, an attorney, by a client's former opponent in a previous action defended by the insured excluded by policy language that states that "This insurance does not apply to...'personal injury' arising out of any act, malpractice, error or omission committed by any 'insured' in the conduct of any profession or 'business,' even if covered by 'underlying insurance'"? ANSWER: Yes

QUESTION (4): Do the "professional services" exclusion of the business owners package policy and/or the "professional liability" exclusion of the personal umbrella liability policy apply when the claim asserted against the policyholder for which coverage is sought in not made by a person or entity to whom the policyholder rendered professional services, but by a third-party to whom no professional services were rendered? ANSWER: Yes

3. SER Lincoln Stuart Taylor v. Hon. David R. Janes, Judge - 35287 - Petitioner seeks a writ of prohibition and a writ of mandamus related to criminal charges pending against him. - Justice McHugh disqualified. Judge Young sitting by temporary assignment. THIS CASE WILL BE CALLED FIRST.