September 13, 2006 Motion Docket, Supreme Court of Appeals of West Virginia

Supreme Court of Appeals of West Virginia

Motion Docket

Wednesday, September 13, 2006

1. Tammy Birchfield, Admx. and Guardian, etc. v. Independence Coal Co., Inc., dba Progress Coal Co., Massey Energy Co., et al. - 060451 - Defendants below seek review of certified questions arising from deliberate intent causes of action, involving whether there was a voluntary assumption of duty to train and comply with safety guidelines.
QUESTION 1: Whether a cause of action exists in WV known or referred to as either "voluntary undertaking" by common law, or by adoption of the Restatment of the Law (2d) of Torts, Section 324A which provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
ANSWER: Yes.
QUESTION 2: if the answer to Question 1 is "yes," whether there may be liability applicable from a corporate parent, subsidiary or co-subsidiary, to employees of a subsidiary, co-subsidiary, or affiliate for its independent acts of negligence in the performance of such voluntary undertakings?
ANSWER: Yes. -- Refuse 4 - 0, Davis Disqualified.

2. State of W. Va. v. Garth Lester - 060350 - Defendant appeals following his conviction for first degree murder without mercy. -- Refuse 3 - 2, Starcher & Albright.

3. Stephen J. Antolini, Roger McClanahan, and Mickey Sylvester v. WV Division of Natural Resources - 060726 - Three state employees appeal from the circuit court's order dismissing their grievance appeal. The court found their claims were barred by res judicata.
- Grant 5 - 0.

4. David R. Kyle v. Dana Transport, Inc., and Ronnie Dodrill - 060991 - Plaintiff appeals from the circuit court's order granting judgment in favor of defendants and ruling that plaintiff was not entitled to present his case under a res ipsa loquitur theory. - Grant 3 - 2, Maynard & Benjamin.

5. Schrader Byrd & Companion, PLLC v. Francis G. Marks, et al. - 061002 - Defendants appeal from the circuit court's order granting summary judgment in favor of the plaintiff law firm in this action to determine whether defendants are under a contingent fee contract for future coal-related income. - Grant 4 - 1, Davis.

6. Carole E. Damron Shortt v. Frederick Cecil Damron - 061164 - Petitioner initially filed a Motion to Vacate an Order dated August 3, 1987, which included a provision requiring petitioner to support the children for "post high school education". The Family Court found that although the Motion to Vacate was granted by virtue of the statute, because the provision for higher education was incorporated in a Separation Agreement, it "survives as an independent contractual obligation." The Circuit Court later affirmed the Family Law Court's decision. - Grant 3 - 2, Davis & Albright.

7. State of W. Va. v. Tracy Haggerty - 061089 - Petitioner appeals jury conviction for murder without mercy. - Refuse 3 - 2, Starcher & Albright.

8. State of W. Va. v. Jason Edward Horne - 061226 - The circuit court certifies a question regarding application of the "three term rule."
CERTIFIED QUESTION PRESENTED
Does the "three term rule" pursuant to West Virginia Code § 62-3-21 require dismissal with prejudice when the defendant was indicted on January 12, 2004 and the trial date was continued without objection through two terms, by agreement in one term and no hearings were requested for over one year after the last continuance?
Circuit Court's Answer: No. The three term rule does not preclude going forward to trial. - Refuse 5- 0.