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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/clerk/recent/
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August 28, 2007 Issue #93
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CORRECTION: Because of a cut-and-paste error, seven opinion summaries were omitted from Issue #92. The missing summaries are contained in this issue, bringing the corrected total of opinions issued in the January 2007 term to 62. Please accept my apologies for this error and omission.

The 62 opinions were evenly divided among signed and per curiam opinions. A total of 35 opinions, or 56 percent, were unanimous or joined only by concurring opinions, while 27 in opinions, or 44 percent, at least one dissenting opinion was filed.

The first day of argument for the September term will take place on September 11th, with a full motion docket and argument docket.

Best regards,

Rory Perry
Clerk of Court

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CRIMINAL :: Improper comment on defendant's silence was plain error

STATE v. BRIAN DANIEL MURRAY, No. 33193 (Per Curiam)(Davis, C.J., dissenting)(Maynard, J., dissenting)(Benjamin, J., concurring)(June 5, 2007). Defendant appealed following jury conviction in the Circuit Court of Morgan County for the offenses of failing to render aid at an automobile accident involving death and failure to maintain control of his vehicle. Applying plain error analysis to conclude that the prosecution improperly commented on the defendant's failure to testify.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33193.htm


HIGHER EDUCATION, EMPLOYMENT :: Control of salary levels for classified staff

WEST VIRGINIA UNIVERSITY BD. Of GOVERNORS, et al. v. WEST VIRGINIA HIGHER EDUCATION POLICY COMM'N, No. 33208 (ALBRIGHT, J.)(May 24, 2007). Reversing an order of the Kanawha County Circuit Court that granted summary judgment to the Policy Commission and allowed the Commission to exercise authority to require all higher education classified employees to be paid at or above the "zero step" for their pay grade on the salary schedule set forth in WV Code 18B-9-3. Conducting an analysis of the relevant statutes and regulations, and reversing. Holding that the WVU Board of Governors has authority to establish a uniform and equitable salary policy for its classified staff that cannot be overridden by the Commission.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33208.htm


JURIES, TORTS :: Juror should have been excused for cause

BLACK, et al. v. CSX TRANSPORTATION, INC., No. 33218 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., dissenting)(June 6, 2007). Reversing an order of the Circuit Court of Kanawha County that denied a motion for new trial and entered judgment for the defendant below. Holding that the trial court erred in failing to strike a juror for cause, where the juror conveyed a bias against parties claiming to have been injured by exposure to asbestos and against personal injury attorneys. Remanded for new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33218.htm


LIENS :: Conditions upon improver's lien

GENERAL MOTORS ACCEPTANCE CORPORATION v. D.C. WRECKER SERVICE, et al., No. 33192 (STARCHER, J.)(May 25, 2007). Plaintiff appealed from an order of the Circuit Court of Mingo County following a bench trial in this action for declaratory judgment to determine the extent and priority of liens on a 2002 pick-up truck. Reversing, and clarifying the conditions in which an improver's lien may be established. Holding, in syllabus point 2: "While W.Va. Code, 38-11-3 (2001), does provide for an improver's lien against motor vehicles that have been towed and stored, this statute does so only in circumstances where voluntary consent, express or implied, has been given to tow and store a motor vehicle. Consent obtained by fraud, deceit, or other improper or unconscionable means is not voluntary and therefore will not form the basis for an improver's lien under W.Va. Code, 38-11-3 (2001)." Further holding, in syllabus point 3: "An improver's lien under W.Va. Code, 38-11-3 (2001), is not created for storage fees generated when an improver has demanded unreasonable fees as a precondition for release of a stored motor vehicle."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33192.htm


PROCEDURE :: Pre-suit notice is jurisdictional

MOTTO, et al. v. CSX TRANSPORTATION, et al., No. 33205 (BENJAMIN, J.)(Starcher, J., dissenting)(Albright, J., concurring in part and dissenting in part)(May 24, 2007). Certified question arising from the Circuit Court of Kanawha County regarding what discretion a court may have when a plaintiff fails to comply with the pre-suit provisions of W.Va. Code 55-17-1 through 5 before filing suit against a government agency. (1) Is there discretion for the Court to waive the mandatory notice provisions of W.Va. Code 55-17-1 through 5 absent a showing of good cause? CIRCUIT COURT'S ANSWER: Yes. (2) Does the Circuit Court have discretion to stay proceedings for thirty days to allow time to comply with the provisions of W.Va. Code §§ 55-17-1 through 5 after suit has been filed before notice has been given? CIRCUIT COURT'S ANSWER: Yes. Disagreeing with the circuit court's conclusion in both instances and holding, in syllabus point 3, that: "Compliance with the pre-suit notification provisions set forth in W. Va. Code 55-17-3(a) (2002) is a jurisdictional pre-requisite for filing an action against a State agency subject to the provisions of W. Va. Code 55-17-1, et seq. (2002)."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33205.htm


TORTS :: No negligent spoliation

TERRY R. MACE, ET AL. v. FORD MOTOR CO., et al., No. 33080 (Per Curiam)(May 25, 2007). Plaintiffs appealed an order of the Circuit Court of Kanawha County granting summary judgment in favor of the defendant insurance company in this action for the negligent spoliation of evidence. Holding that the circuit court was correct in concluding that at the time plaintiffs conveyed their interest in the vehicle to Liberty Mutual, no suit had been filed, and plaintiffs never informed Liberty Mutual of their intent to file suit against Ford, therefore the insurance company owed the plaintiffs no duty to preserve the vehicle.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33080.htm


TORTS :: Duty and proximate cause

JACKSON v. PUTNAM COUNTY BD. Of EDUCATION, No. 33038 (Per Curiam)(Davis, C.J., concurring)(Maynard, J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(May 24, 2007). Affirming an order of the Circuit Court of Putnam County that granted summary judgment in favor of the defendant school board in a lawsuit brought following the death of a high-school student in a vehicle accident that occurred when returning from a weekend retreat for the school choir. Holding that the material presented to the circuit court during resolution of the summary judgment motion did not establish a duty on the part of the school to provide transportation to the weekend retreat. Even if such a duty existed, the school's failure to provide transportation was not a legal cause of the student's death.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33038.htm


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