September 20, 2007 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and

Petitions for Appeal

September 20, 2007

1. In Re: D.C., a juvenile - No. 072213. The juvenile defendant appeals the circuit court’s disposition ordering the juvenile to the Children’s Center of Ohio, plus probation until age 20. The juvenile defendant seeks a remand with directions to place him on home confinement and to return him to the physical custody of his mother. - Accept to Motion Docket

2. Fred Mullenax, Debbie Mullenax, James A. Smith, Jr., and Wesley Q. Dobbs v. The Marion County Commission, James E. Sago, Cody A. Starcher, and Alan L. Parks, Commissioners, Sharon Shaffer and Cynthia Toothman - No. 071274. The circuit court presents the following certified question:

Does the one-year statute of limitations set forth in West Virginia Code ง 55-2-12(c) apply to causes of action brought under the West Virginia Wire Tapping and Electronic Surveillance Act, West Virginia Code ง 62-1D-12(a)?

The circuit court answered this question in the affirmative. - Refuse 5- 0

3. Angela Marshall v. Nationwide Mutual Insurance Company - No. 072240. CERTIFIED QUESTIONS

CERTIFIED QUESTION 1:
Does the West Virginia Unfair Trade Practices Act, West Virginia Code งง 33-11-1, et seq. ("Act") apply to insurance claims practices which occur in foreign jurisdictions? Here, where a West Virginia resident makes a claim against an insurance policy purchased in West Virginia, does the Act apply to the conduct of claims adjusters which are located outside of West Virginia? More specifically, in this case, does the Act apply to Nationwide’s investigation, review and denial of Angela Marshall’s personal injury claim, where all the claims handling and investigation activities occurred in the Commonwealth of Virginia?

CIRCUIT COURT’S ANSWER: Yes.

CERTIFIED QUESTION 2:
Where a personal injury claim is brought by a policy holder against an additional insured, under the same insurance policy, is a "bad faith" claim brought by the policy holder pursuant to the Act properly characterized as a first party or a third party "bad faith" claim? Specifically, in this case, is Angela Marshall’s "bad faith" claim relating to the handling of her personal injury claim against Gregory Jonas properly characterized as a first party "bad faith" claim?

CIRCUIT COURT’S ANSWER: Yes. - Accept to Motion Docket

4. In Re: Lesia Comer-Warner - No. 071609. This is an appeal by the petitioner from the Administrative Director’s affirmation of the designee’s recommendations as to petitioner’s dismissal. - Refuse 3- 2 (Starcher, Albright)

5. Theresa D. Messer v. Huntington Anesthesia Group, Inc., Dr. Farouk Abadir, Dr. Hosny S. Gabriel, Dr. Mark Newfeld, Dr. Ricardo Ramos, Dr. Alfredo Rivas, Dr. D. Grant Shy, Dr. Stanislav Striz, and Dr. Michael Vega - No. 071909. Plaintiff appeals from the circuit court’s order granting the employer’s motion for summary judgment in this handicap discrimination case brought under the West Virginia Human Rights Act. - Accept to Motion Docket

6. Andrea L. Santmyer, et al. v. CAMC, Inc., d/b/a Women & Children’s Hospital; Isabel A. Matundan, M.D.; WVU; WV Higher Education Governing Board; Associated Radiologists, Inc. and West Virginia Insurance Guaranty Association - No. 072000. The West Virginia Insurance Guaranty Association appeals the Kanawha County Circuit Court’s Order entered on April 5, 2007, which ordered WVIGA to retain defense counsel for Dr. Matundan and answer on her behalf within 30 days, and lifted the stay on the medical negligence claim. It is from this order that WVIGA petitions for appeal. - Refuse 5- 0

7. State of West Virginia v. Wesley Roger Comer - No. 072004. This is an appeal from an Order of the Circuit Court of Mercer County dated Decameter 5, 2006, denying petitioner’s Motion for Reconsideration of sentence previously filed pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. - Refuse 5- 0

8. State of West Virginia v. James Aaron Cooper, II - No. 072006. Petitioner appeals from the Cabell County Circuit Court’s denial of a Motion in Arrest of Judgment. Petitioner seeks a reversal and argues that the Indictment was insufficient. - Accept to Motion Docket

9. SER Mark Johnson v. Thomas McBride, Warden - No. 072300. Mark Johnson, the defendant below, seeks an appeal and reversal of a February 12, 2007, Order of the Jefferson County Circuit Court which denied Mr. Johnson’s petition for writ of habeas corpus. - Accept to Motion Docket

10. State of West Virginia v. David N. White - No. 071919. David N. White appeals the circuit court’s denial of his motion for reconsideration of sentence. - Refuse as Moot

11. West Virginia Department of Transportation, Division of Highways, a West Virginia Corporation, and Fred Vankirk, West Virginia Commissioner of Highways v. Dodson Mobile Homes Sales and Services, Inc., a West Virginia Corporation - No. 071918. The Department of Transportation appeals challenging the amount of an attorney’s fees award. - Accept to Motion Docket

12. Craig Adkins v. Board of Education of Lincoln County - No. 071979. Craig Adkins appeals the Circuit Court’s order affirming the Grievance Board’s decision denying his employment grievance. He asserts that his compensation is not calculated in a manner uniform with that of other teachers. - Refuse 5- 0

13. Kendra M. Guido (now Gray) v. John S. Guido - No. 071619. John S. Guido appeals the circuit court’s order denying his petition for appeal of a family court decretal judgment order based on petitioner’s failure to comply with the service of process requirement of W.Va. Code ง 51-2A-11(b), and the circuit court’s order denying reconsideration. - Grant 5 - 0