June 29,
2006
1. Opha L. Keith by Sharon Buckland v. David W. Keith - No. 060314. Defendant presents his petition for appeal concerning the circuit court’s certified questions as follows:
CERTIFIED QUESTIONS:
1. In the event that certain improvements to real estate in the possession of the life tenant, insured against fire on a policy obtained by the life tenant under which only the life tenant is a beneficiary, are destroyed by fire, does the remainderman have an interest in the insurance proceeds though he is neither a named insured or paid any premiums?
Answer: No. In answering this question, this Court has consulted secondary sources to ascertain the majority rule of law. The authorities disagree as to the rights of remaindermen in the proceeds of insurance when a policy of insurance for the full value of property is taken out by a life tenant for his or her own use, the premises are destroyed, and the full insurance policy is collected by the life tenant. The more prevalent rule is that when a life tenant insures the property in his own name and for his own benefit and pays the premiums from his own funds, the life tenant is entitled to all the insurance proceeds. This rule presumes the absence of a fiduciary relationship with the remainderman apart from the ususal nature and incidents of the tenancy, or of an agreement between them to procure and maintain the insurance.
Various reasons have been advanced by the courts for this rule. It has been said that the contract of insurance is a personal contract, and inures to the benefit of the party with whom it is made and by whom the premiums are paid; thus, the sum paid is in no proper or just sense the proceeds of the property.
Other authorities state that without an express covenant the tenant for life is not liable to rebuild a house destroyed by a fire not his or her fault, and a life tenant is in no sense a trustee for the remainderman. If the life tenant is not bound to rebuild, he or she certainly is not bound to insure for the benefit of the remainderman. Both the tenant for life and the remainderman have insurable interest, and each can insure for himself or herself.
Therefore, in the matter sub judice, and pursuant to the majority rule of law, the proceeds of the insurance policy would be the sole property of the Plaintiff, as the life tenant who bought the policy and paid the premiums thereto.
2. In the event that the remainderman is determined to have an interest in the insurance proceeds, is West Virginia Code §43-2-1. et seq., appropriate to determine the share of the proceeds to be paid to the remainderman?
Answer: In the event that the remainderman is determined to have an interest in the insurance proceeds, the Circuit Court answers that West Virginia Code §43-2-1 is the appropriate statute to determine the interests of the life tenant and the remainderman in the proceeds.
3. If West Virginia Code §43-2-1 et seq., is deemed to be an appropriate method to calculate the remainderman’s share in the insurance from the loss of the structure, is this also applicable to the loss of personal property of the premises?
Answer: In the event that the remainderman is determined to have an interest in the insurance proceeds, the Circuit Court answers that West Virginia Code §43-2-1 is the appropriate statute to determine the interests of the life tenant and the remainderman in the lost personal property.
4. In the event that West Virginia Code §43-2-1 et seq., is determined to be the appropriate method to calculate the remainderman’s share of the insurance proceeds, is the remainderman precluded from pursuing a negligence claim against the life tenant for the loss of the improvements?
Answer: Although West Virginia Code §43-2-1 is the appropriate statute to determine the respective interests of the parties, the statute does not preclude a negligence claim by the remainderman against the life tenant for loss of improvements. Pursuant to Footnote 11 of Keeseckeer v. Bird, 200 W.Va. 667 (1997), a person may be held liable for the negligent loss of a remainderman’s interest in property.
Grant 5 - 0
2. The Committee to Reform Hampshire County Government v. Robert S. Kiss - No. 061460. Petitioners submit their petition for review of certified questions as follows:
CERTIFIED QUESTIONS:
1. Would the reform of a county commission, undertaken pursuant to Article IX, § 13 of the West Virginia Constitution, violate any provision of the Constitution if it provided for commission members to be elected only by the voters within their respective voting districts rather than by at-large county elections?
Circuit Court Answer: No.
2. When a county commission submits to the Legislature, pursuant to Article IX, § 13 of the West Virginia Constitution, a request to submit to the voters of its county a constitutionally valid reform of county government as proposed by a petition signed by ten percent or more of the voters in the county, does the Legislature have a duty to provide for that referendum and, if the voters assent, for the creation of the alternative form of government?
Circuit Court Answer: Yes.
3. When a county commission submits to the Legislature, pursuant to Article IX, § 13 of the West Virginia Constitution, a request to submit to the voters of its county a constitutionally valid reform of county government as proposed by a petition signed by ten percent or more of the voters in that county, does the Legislature have the discretion to reject the proposal or to alter its substance?
Circuit Court Answer: No.
4. Whatever duty that Article IX, § 13 of the West Virginia Constitution imposes on the Legislature to enact legislation to provide for a referendum on a proposed reform of county government and, if assented to by the voters, for the creation of the alternative tribunal, does that duty extend beyond the Legislature to whom the request or petition has been submitted?
Circuit Court Answer: Yes.
Refuse 4 - 1
( Starcher, J.)
3. Matthew Wines v. Martha Walker, in her official capacity as Secretary of the West Virginia Department of Health and Human Services - No. 061165. The Department of Health and Human Services appeals from the circuit court’s order reversing a decision of the Board of Review that upheld the denial of Title XIX Home and Community Based Mentally Retarded/Developmentally Delayed Waiver Program services provided through the Bureau for Medical Services.
Refuse 5 - 0
4. In Re: Ciara N. W., juvenile - No. 061234. A juvenile’s mother appeals the circuit court’s order adjudicating her child a status offender in a juvenile proceeding which took place without notice to her.
Deferred
5. Samantha Englehardt, by and through her parents, Pamela Englehardt and Karl Englehardt, and Pamela Englehardt and Karl Englehardt, individually v. Chad Berry, Marsha Berry, Hartford Fire Insurance Company, and Jane L. Cline, Insurance Commissioner of West Virginia - No. 061175. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendant insurance company and ruling that the infant plaintiff was not an insured under the subject insurance policy.
Accept To Motion Docket
6. Carrie L. Collier v. Thomas G. Collier - No. 061192. Petitioner husband appeals from the circuit court’s order denying his request to have the final divorce order set aside on the basis of fraud and a hearing held on equitable distribution.
Accept To Motion Docket
7. Bryan S. Bailes v. Mayflower Vehicle Systems Inc. - No. 061229. Defendant appeals from the circuit court’s order denying its motion for a new trial in this action for wrongful termination.
Refuse 5 - 0
8. State of West Virginia v. Eric Delbert Jett - No. 061231. Defendant appeals from his conviction and sentence for operating or attempting to operate a clandestine drug laboratory under West Virginia Code §60A-4-411.
Accept To Motion Docket
9. State of West Virginia v. Wade C. Davis - No. 060321. Defendant appeals from his conviction and sentence for second degree murder. He seeks a reversal and a new trial.Accept To Motion Docket
10. Sandra Sue Fullen, et al. v. Philips Electronics North America Corporation, et al., Helen Andrysiak, et al. v. Philips Electronics North America Corporation, et al. - No. 060555. The circuit court certifies two questions regarding: 1) whether Workers’ Compensation law bars an employee’s common law claims arising out of workplace exposure against an employer for fraud, medical monitoring, fear of future disease, and punitive damages; and 2) whether an employee may assert in the same lawsuit both a deliberate intent claim for alleged current injuries, and common law claims for fraud, medical monitoring, and fear of disease based on the possibility of future ailments arising out of the same workplace exposures.
Accept To Motion Docket
11. State of West Virginia v. Jason Edward Horne - No. 061226. The circuit court certifies a question regarding application of the "three term rule."
Accept To Motion Docket
12. Freeman Joe Runner v. John L. Bord, Prosecuting Attorney for Taylor County; and David Gobel, President of the County Commission; Anthony Veltri, Commissioner; and Robert Weaver, Commissioner; individually and in their official capacities as Prosecuting Attorney and Members of the Taylor County Commission; and the West Virginia Department of Public Safety and/or the West Virginia State Police, a West Virginia Statutory Corporation - No. 061085. Peabody Holding Company, Inc. appeals the circuit court’s order which reversed the decision of the Office of Tax Appeals regarding coal severance taxation on exported coal.
Refuse 5 - 0
13. Virgil T. Helton, Acting West Virginia State Tax Commissioner v. Peabody Holding Company, Inc. - No. 061233. Peabody Holding Company, Inc. appeals the circuit court’s order which reversed the decision of the Office of Tax Appeals regarding coal severance taxation on exported coal.
Refuse 3- 2 14. Richard Lee Young and Tonya Young v. CSX Transportation, Inc., f/k/a
Baltimore & Ohio Railroad - No. 061166. Mr. and Mrs.
Young filed suit after a CSX train struck a vehicle operated by Mr.
Young at a railroad crossing. The jury found that CSX was not liable.
The Young’s appeal asserts several trial errors.
Refuse 3- 2 15. State ex rel Roger Riggs v. Edward Rudloff, Warden - No. 061237. Roger
Riggs appeals the denial of his petition for habeas corpus regarding
eligibility for parole consideration. Refuse 5 - 0
( Maynard, J., Benjamin, J. )
( Starcher, J., Albright, J. )
Accept To Motion Docket
17. Billie R. Brown v. Cabell County Commission - No. 061271. Plaintiff Brown appeals the circuit court’s order denying her a new trial on the issue of damages in a personal injury case.
Refuse 4 - 1
( Starcher, J.)
18. James Wilson Douglas v. Sharon E. Leech - No. 061273. Sharon E. Leech appeals the circuit court’s order granting summary judgment to her former lawyer, James Wilson Douglas, in Mr. Douglas’ suit to collect attorney’s fees. Ms. Leech also appeals orders which imposed sanctions against her on behalf of non-parties with respect to the quashing of subpoenas.
Refuse 5 - 0
19. Helen Star Tresize, Administratrix of the Estate of Helen C. Proudfoot, and Helen Starr Tresize, individually, Sandra Beth White, Jama Lark Stover, William Dale Proudfoot, and Patricia Ann Kelly v. Billie Louise Proudfoot Wolf and Thomas B. Wolf, her husband - No. 061356. Defendants file an interlocutory appeal from the circuit court’s order determining that there are five trustees of a trust and the trustees may act by majority vote.
Refuse 5 - 0
20. U.S. Bank, N.A. v. Jan Owens or Unknown Occupant and Estil D. Owens or Unknown Occupant, and Jan Owens and Estil D. Owens, Third-Party Plaintiffs v. Nathan H. Wasser, Substitute Trustee, Third-Party Defendant - No. 061357. U.S. Bank, N.A. and Nathan H. Wasser, Esq. appeal from the circuit court’s order granting summary judgment in favor of Jan and Estil Owens on the Owens’ counterclaim for distribution of proceeds after a real estate foreclosure.
Refuse 5 - 0
21. Charles E. Canterbury v. William R. Laird, IV, et al. - No. 061245. Petitioner, Charles Canterbury, appeals the December 30, 2005, Order of the Fayette County Circuit Court granting summary judgment on all counts of the complaint in favor of defendants. The petitioner filed suit seeking compensatory and punitive damages against the County Commission and the Town of Mount Hope arising out of an alleged unconstitutional arrest.
Grant 3- 2
( Starcher, J., Albright, J. )
22. State of West Virginia v. David W. Steadman - No. 061358. Petitioner was convicted of the Felony Offense of Burglary. On appeal, petitioner requests that his conviction be reversed and his case remanded with instructions.
Refuse 5 - 0
23. State of West Virginia v. Richard R. "Dicky" Wiseman - No. 061361. Petitioner appeals his conviction of three felony charges of Grand Larceny, Wrongful Injuries to Timber and Conspiracy. On appeal, petitioner seeks a reversal.
Refuse 5 - 0
24. Stanford T. Allen, Jr. v. State of West Virginia and Thomas McBride, Warden - No. 061362. Petitioner appeals the denial of his Writ of Habeas Corpus. Petitioner seeks a remand of the case to the Circuit Court with an Order to grant the Writ.
Refuse 5 - 0
25. State of West Virginia v. Larry G. Thomas - No. 061359. This is an appeal from the trial court’s order sentencing petitioner to life imprisonment without mercy. Petitioner argues that the court erroneously admitted hearsay evidence and that the verdict should be set aside and remanded for a new trial.
Accept To Motion Docket
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