Fuller

MADISON – A Hattiesburg, Miss., law firm details 12 counts in a wrongful death suit against Advocate, Inc., and others and is seeking jury trial in Boone Circuit Court.

Michael J. Fuller Jr., of McHugh Fuller Law Group, PLLC, filed the complaint Oct. 22 on behalf of Earnest Johnson, individually, and on behalf of the Estate and Wrongful Death Beneficiaries of Kathryn Clay.

Decedent, then age 73, was admitted to Boone Nursing & Rehabilitation Center in late May 2010, and she died Sept. 3, 2011.

The complaint claims Clay suffered personal injuries and damages while residing in the Danville skilled nursing facility.

Defendants are headed by Advocate, Inc., a Delaware corporation with principal location at Brentwood, Tenn. Others named include: Diversicare Leasing Corp.; Diversicare Management Services Co.; Sterling Health Care Management, Inc.; Omega Healthcare Investors, Inc.; Steven Gardner, administrator of accused nursing home; John Does 1 through 10; and Unidentified Entities 1 through 10 (as to Boone Nursing & Rehabilitation Center).

The suit says, “Defendants owned, operated, managed and/or controlled Boone Nursing & Rehabilitation Center…and are therefore directly liable for all the care provided.”

Fuller’s complaint “package,” measuring some inch-and-a-quarter thick, spells out 12 counts, mentioning accusations such as negligence for non-lethal and lethal injuries, violations of state nursing home requirements, medical malpractices, willful, wanton, or reckless disregard for Clay’s safety, fraud and breach of fiduciary duty.

The complaint prays for a jury to determine damages exceeding the minimum jurisdictional amount and adequate to compensate for all injuries and damage sustained, litigating costs, punitive damage sufficient to punish Defendants for egregious conduct and deter repeating such atrocities, plus all other legally entitled relief.

Counsel for Defendants, Steptoe & Johnson Attorney Michael D. Mullins of Charleston, responds by listing 13 defenses. Included is a motion to stay proceedings pending resolution of arbitration requested in U.S. District Court for Southern District of West Virginia. Mullins presents that “On May 21, 2010, Plaintiff executed and contractually agreed to arbitrate on any and all claims…on behalf of his mother, Kathryn Clay.”

No trial date is projected for Boone Circuit Court and Judge William S. Thompson.

Boone Circuit Court case number: 12-C-221

MADISON – A routine road patrol stop developed information about crack cocaine trafficking, according to court records.

Last August, State Trooper G.S. Walter, II, observed a small pickup truck traveling north on US 119 near Low Gap Road that had no visible inspection sticker.

Driver Monte Bowen of Mingo County, according to Walter, was “acting very nervous, sweating profusely, and unable to consistently answer or replay to requests.” There was a female passenger, Angel Ruth Bowen, seated between the driver and Sherman D. Johnson, the report noted. Monte Bowen was asked to exit vehicle, with suspicion of driving under the influence.

The two passengers were asked to get out of the vehicle, Walter reported, and Johnson became uncooperative and Angel Bowen seemed very nervous.

During a safety search, $1,580 was found in Johnson’s pants pocket. While interviewing Monte Bowen, Walter says he was advised Johnson was being driven to Cleveland to purchase crack. Another $2,100 in currency turned up in the woman’s purse.

Trooper Sgt. A.S. Perdue of the US Route 119 Drug Task Force was called to assist with conducting additional drug investigation when the trio was transported to the Madison State Police Detachment.

The police report says the Bowens gave a statement that said they had driven Johnson, also known as “Young,” to Ohio three times to obtain crack cocaine for sale.

Assistant Boone Prosecutor Justin Marlowe filed case Number 12-C-236 Nov. 27 as a Petition For Forfeiture of the $3,680 discovered by Walter as property subject to seizure in commission of a crime.

Boone Circuit Court Judge William S. Thompson scheduled a hearing for Jan. 9 on the petition.

Boone Circuit Court case number: 12-C-236

Oct. 10
Ronald D. Nelson, on behalf of Helen Dillon, an Adult, seeking approval of a certain Special Supplemental Needs Trust
PA- Larry L. Rowe; J- William S. Thompson
* Nelson filed petition on behalf of his sister, who sought net insurance settlement proceeds payable for injuries received in September 2010 when she says a shelf collapsed on her arm while reaching for a can of soda in the Kroger store at Danville. Helen Dillon, 58 years old when the alleged accident happened and single with no children, receives Supplemental Security Income and Medicaid benefits. Judge William S. Thompson approved Petition and Trust Nov. 5.
Case number: 12-C-213

Oct. 15
Merita Selbe vs. Pamela D. Atkins, John Doe
PA- Maureen Conley; J- William S. Thompson
* Selbe seeks declaratory and injunctive relief to locate and regain possession of a mobile home she says she owns that was situated on land owned by Atkins. Petitioner’s daughter and respondent’s son cohabitated some 11 years in the mobile home, according to complaint, then separated last April. Atkins named Selbe’s daughter in a Wrongful Occupation Petition in Magistrate Court and an ensuing order directed the woman to remove the mobile home by July. Selbe contends she was never named as a party or served with process in that action. A phone message said the trailer was sold, but Selbe says she is the legal owner and should be awarded immediate possession and informed of the name of a “John Doe” buyer.
Case number: 12-C-216

Oct. 17
Angela Searls, Personal Representative of Estate of Susie K. Thompson, deceased, Petition For Approval And Confirmation Of Settlement
PA- Thomas G. Wilson; J- William S. Thompson
* Susie Thompson died Nov. 9, 2010, during pendency of a products liability lawsuit that claimed hormone therapy products caused her to develop terminal breast cancer. Suit was settled in Arkansas. The 65-year-old resident of Danville was survived by a spouse, three daughters and two sisters. Searls, a daughter, determined that the daughters and widower Jerry Thompson each receive $30,000, with each sister getting $9,546 from the net settlement amount of $139,092.
Case number: 12-C-217

Oct. 25
James B. Hudson, as Administrator of Estate of Pauline D. Hudson, Petitions For Approval And Confirmation Of A Confidential Settlement
PA- J. Robert Rogers; J- William S. Thompson
* Pauline Hudson died Nov. 26, 2010, while a patient in Boone Nursing & Rehabilitation Center. Six sons and a daughter consented to a confidential settlement agreement with the Danville facility and are entitled shares of her estate. Judge William S. Thompson entered his sealed order Nov. 7 approving confidential settlement and distribution.
Case number: 12-C-223

Bruce Mitchell vs. Brady Mining, LLC
PA- J. Kristofer Cormany, Pamela A. Lambert; J- William S. Thompson
* Mitchell accuses defendant employer of allowing underground mantrip to be operated at dangerously high speed when transporting personnel throughout its Number One Mine in Boone County. Late in October 2010, according to the complaint, Mitchell was thrown into the mantrip canopy because of a forman’s operation at high speed and he suffered severe permanent injuries to his lumbar, thoracic and cervical spine. He wants a jury to determine an amount for past, present and future economic and non-economic damages; general and compensatory damages, pre- and post-judgment interest, court costs, and other relief deemed proper and just.
Case number: 12-C-224

Oct. 26
Robert M. Belcher vs. Alpha Natural Resources and Elk Run Coal Co.
PA- Todd S. Bailess, Joy B. Mega; J- William S. Thompson
* Belcher demands a jury trial for damages, charging coal company employers with terminating him last August because of his age. Suit says he was 36 years old when hired and 46 when terminated in violation of the West Virginia Human Rights Act. He says he was wrongly accused of violating company policy for which another employee took responsibility. He wants remedies afforded under WVHRA, with punitive damages, lost wages and benefits, back and front pay, pre- and post-judgment interest, court costs, and such other relief deemed just and equitable.
Case number: 12-C-225

Nov. 2
Branch Banking & Trust Co vs. Suzanne Kessler
PA- Norman T. Daniels; J- William S. Thompson
* BB&T says Kessler defaulted on a contract and security agreement financing a 2007 Ford Mustang by failing to keep up monthly installment payments. Bank wants possession of the vehicle, plus “full payment of the unpaid balance of the amount originally financed…”
Case number: 12-C-229

Nov. 7
Deborah and Harold Powell vs. Westfield Insurance Co., Donna Cutwright and John Doe
PA- Matthew M. Hatfield; J- William S. Thompson
* Complaint wants jury to affirm couple’s entitlement of $200,000 single limits uninsured motorist coverage from Westfield relative to October 2011 rear-end collision in which unknown driver of trailing vehicle, “John Doe,” fled scene near Alum Creek. Cartwright is described as “a servant, agent and employee” of Westfield. Deborah Powell was operating a 2004 model vehicle on US 119 from her Danville residence to place of employment in Charleston when the alleged accident took place. The insurer offered $12,500 to settle “uninsured motorist bodily injury claim,” the suit says. Westfield says it later offered $22,500, but Powells seek $200,000 award, plus litigation expenses, compensatory and punitive damages, pre-judgment interest, and such other just and proper relief.
Case number: 12-C-230

Nov. 16
Peachtree Settlement Funding, LLC Petition for Approval of a Transfer of Structured Settlement Payment Rights by Destiny Malcolm
PA- Jason L. Long, Michael R. Proctor; J- William S. Thompson
* Funds involved stem from insurance settlement agreement and release of personal injury claim. Hearing on petition before Judge William S. Thompson held Dec. 12.
Case number: 12-C-233

Nov. 26
Vanderbilt Mortgage & Finance, Inc. vs. Roger W. Reed
PA- Marc B. Lazenby; J- William S. Thompson
* Suit says Seth resident is past due from last July on payments for a $39,725 loan to purchase a mobile home. Vanderbilt seeks immediate possession of unit in curing loan default.
Case number: 12-C-234

Oleta Ruth and Darrell Spurlock vs. Richard Smith and Boone County Ambulance Authority
PA- Harry M. Hatfield; J- William S. Thompson
* Danville couple’s personal injury suit says Smith was at fault fast April when ambulance he was driving struck their van on US 119, causing guest passenger Oleta “serious and permanent bodily injuries.” Spurlocks seek jury judgment, joint and severally, for an amount in excess of jurisdictional limits, as well as general damages, their court costs, pre- and post-judgment interest, and further proper and just relief.
Case number: 12-C-235

Nov. 28
Catherine A. Bail vs. Kroger Limited Partnership I
PA- Gerald R. Lacy, Gara Hoke Lacy; J- William S. Thompson
* Personal injury complaint says Ball fell while shopping at Danville Kroger store because “of a slippery substance in the aisle floor.” She claims store’s negligence and carelessness caused her to incur medical expenses for injuries, some permanent. Suit seeks jury judgment in an amount in excess of jurisdictional limits to include general and special damages, pre-judgment interest, litigation expenses, and such other relief deemed just and proper.
Case number: 12-C-237

MADISON – A personal injury suit in Boone Circuit Court claims an unsupported roof in an Elk Run Coal Co. mine cause Clyde P. Holsten to lose his leg.

Attorneys of Ranson Law Offices in Charleston brought Holsten’s suit Jan. 14 against Elk Run and parent company Alpha Natural Resources, Inc.

Holsten was employed by Elk Run from Jan. 1, 2003, until Jan. 29, 2011, the complaint says, when injured by a “rib roll on an improperly supported roof.” According to Holsten, he was working in the mine’s No. 2 pillar section that day. As he and a miner helper checked a leaking boom swing hose, a rib rolled and struck his lower left leg, he says.

The contends the coal company knew of the specific unsafe working condition, which violated state or federal safety regulations. Holsten expended large sums of money for medical and hospital treatment, the suit says, including leg amputation and he requires future care because his injuries are permanent and lasting.

Jury trial before Judge William S. Thompson will demand compensatory, general and punitive damages, along with litigation costs and any other relief the Court finds allowable by law.

Case number 13-C-3

Dec. 6
Earl F. and Dianna E. Waddell vs. Performance Coal Co.; Alpha Natural Resources, Inc.; Alpha Appalachia Services, Inc.; Alpha Appalachia Holdings, Inc.; Alpha Natural Resources Services, LLC; Consolidation Coal Co.; Mountain Energy, LLC; Mountain Edge Mining, Inc.; Lightening Contract Services, Inc.; and Westmoreland Coal Co.
PA- Allan N. Kariin; J- William S. Thompson
* Veteran disabled coal miner, age 66, directs his personal injury suit against companies that employed him underground. Waddells say Earl worked “in positions that regularly exposed him to substantial amounts of respirable dust, including coal dust and crystalline silica, which are known to cause respiratory disease including simple coal workers’ pneumoconiosis… bronchitis, emphysema, simple silicosis, complicated silicosis, and other respiratory diseases.” He complains he was “exposed to dangerous levels of respirable dust” in excess of levels permitted under applicable law and industry standards. Suit seeks compensatory damages for loss of consortium and services, punitive damages, litigation costs, pre- and post-judgment interest and such other relief from discovery at trial.
Case number: 12-C-240

Dec. 7
Justin A. Smith vs. David Stanley Consultants, LLC; Elk Run Coal Co., Inc.; Alpha Natural Resources Services, LLC; and Alpha Natural Resources, Inc.
PA- John J. Polak, Paul Frampton Jr., Matthew M. Hatfield, Harry M. Hatfield; J- William S. Thompson
* Defendants willfully, maliciously and unlawfully terminated Smith following two months employment at Black King Mine because he suffered “a compensable injury” and attempted to receive workers’ compensation benefits, the complaint alleges. The plaintiff seeks lost wages and benefits, back and front pay, personal and punitive damages, pre-judgment interest, court expenses and such other relief deemed just and equitable.
Case number: 12-C-242

Dec. 11
Josh D. Chafin vs. Brody Mining, LLC
PA- Mark A. Atkinson, Paul L. Frampton; J- William S. Thompson
* The complaint says Chafin was injured last April working at a Brody mine in Boone County, then filed a workers’ compensation claim ruled compensable. On or about Aug. 2, he was terminated by “unlawful retaliatory discharge,” he claims. Chafin seeks jury judgment for lost wages and benefits, back and front pay, personal and punitive damages, pre-judgment interest, court costs and such further relief deemed just and equitable.
Case number: 12-C-244

Dec. 14

Green Tree Servicing, LLC vs. Dean and Penny Olson
PA- Jason S. Long, Michael Proctor; J- William S. Thompson
* Sylvester couple is accused of defaulting their July 1999 installment contract in principal amount of $41,242 for a manufactured home. Green Tree asks court to grant right of immediate possession of the unit as contracted collateral.
Case number: 12-C-247

Vanderbilt Mortgage and Finance, Inc. vs. Patricia G. Meeks
PA- Marc B. Lazenby; J- William S. Thompson
* Vanderbilt cites a December 2008 Deed of Trust on file conveying property at Nellis by Defendant to Casie McGee to secure Plaintiff’ss loan of $50,753. Meeks, also known as Patricia Dotson, subsequently defaulted on loan payments to Vanderbilt, the complaint says, and a foreclosure sale’s high bid of $31,500 conveyed Ridgeview Road property to Plaintiff. Defendant allegedly refuses to vacate and Vanderbilt seeks Court order requiring her to leave, plus obtain such further appropriate relief.
Case number: 12-C-248

MADISON – A Boone County couple are alleging they were harmed by people paid to help them.

The Boone County Ambulance Authority is named as a co-defendant in a personal injury suit filed by Oleta Ruth and Darrell Spurlock. In their complaint filed Nov. 26 in Boone Circuit Court, the Spurlocks, residents of Danville, allege they were sent to the hospital last year after an ambulance collided with their van.

According to the suit, about 4:30 p.m. on April 18, Darrell, 79, was driving their Dodge van on U.S. 119 near the four-way intersection at Danville Mountain. Oleta, 76, was a passenger in the front seat.

Around the same time, the suit maintains, an ambulance driven by Richard Smith, who is named as co-defendant, came through the intersection, and struck the Spurlock’s van. Though no specifics are provided where the ambulance struck the van, the suit claims it the impact was with “such great force and violence” that it “did cause serious and permanent bodily injuries to [Oleta] Spurlock.”

The extent of Oleta’s injuries are not specified in the suit. However, Spurlock maintains she has to “spend great sums of money for her medical care and attention” and has sustained both “great physical pain and mental suffering” and “a loss of enjoyment of life.”

In addition to his, the suit says Darrell has had to cope with Oleta’s injuries. This includes furnishing her with in-home nursing services.

The Spurlocks seek unspecified damages, courts costs, attorneys and interest. They are represented by Madison attorney Harry M. Hatfield.

The case is assigned to Judge William S. Thompson.

MADISON – A Vietnamese woman is seeking injunctive relief enjoining the sale of Danville Nail & Spa.

Plaintiff Arlene Pham is a native of Vietnam and family in California. Complaint represents that she married Ut Ngoc, also Vietnamese, in May in Westminster, Calif., and her family members “advanced certain funds… for purposes of starting a nail salon.”

The couple met in Hawaii in November 2011.

Attorney Peter A. Hendricks, of Madison, filed the woman’s complaint Jan. 17 in Boone Circuit Court, giving her address as South Charleston, with Ngoc listed on Mall Road in Danville, where the contested business is located.

The Phams returned to West Virginia in late May, says the complaint, beginning interior construction for a nail salon.

The plaintiff’s family advanced money, the complaint continues, reliant upon the “parties’ marriage as well as their representations… and endeavors to establish and maintain a partnership in a nail salon operation at Danville.”

Licenses and leases were placed in Ngoc’s name, according to the complaint, after remodeling and product costs amounted to more than $30,000. With “all of the monies… loans from various family members of Plaintiff in reliance upon the marital ceremony with the understanding that the parties were married and further induced by the representations and acknowledgment… they were to engage in a partnership in a nail salon business.”

The complaint says the nail salon flourished before “Defendant began to remove funds from the business to pursue a gambling habit.”

A situation developed wherein the defendant removed Pham from the business “under a pretense of a domestic violence petition, then declared that they were not married because no marriage license (was) executed… The parties were never married and there was no business partnership,” the complaint relates.

Pham contends she was forced to work away from the Danville salon and then was fired from a Charleston position when Defendant led friends to believe she would “steal (from) employees and patrons” where she was employed.

She complains that being removed from the Danville business and losing her Charleston job financially devastated her, forcing her to leave West Virginia and join her family in California.

Included in Plaintiff’s prayer is that the court declare “a partnership in fact or by equity exists,” then dissolve it by selling all assets and good will, with proceeds divided. She seeks general, compensatory and punitive damages with interest and litigation expenses.

Judge William S. Thompson scheduled a hearing for Feb. 5 on the woman’s motion for injunctive relief.

Boone Circuit Court case number: 13-C-12

Jan. 22
Harvey Trucking, Inc. vs. CSX Transportation, Inc., and John Doe, an unidentified driver
PA- Daniel R. Schuda; J- William S. Thompson
*The plaintiff seeks a jury award to compensate it for damages to its loaded coal truck from a September 2011 collision that Harvey Trucking claims was caused by a CSX truck. The complaint says its driver notified other potential users of a narrow, steep coal mine haul road near Ashford by CB radio not to come uphill until he completed his downhill trip. That was done, Harvey Trucking says, as a standing communication procedure. CSX failed to furnish Doe with a CB radio, according to the suit, which caused the trucks to collide in a steep curve, resulting in truck damages, lost profits and injuries. Plaintiff also wants court costs and any other appropriate relief.
Case number: 13-C-13

Jan. 23
Dwayne Johnston vs. Parsley Enterprises, Inc., and Newhall Contracting, Inc.
PA- Kendal E. Partlow; J- William S. Thompson
*The Logan County resident says his one-month employment was ended in February 2011 by unlawful retaliatory discharge because he filed for and received Workers’ Compensation benefits following a work-related injury in Boone County. Johnston complains his injury on Feb. 7, 2011, prevented him from working, and when he contacted his employer approximately 10 days later to go back to the job, he was terminated. He says state common law and the Human Rights Act were violated, prompting him to seek jury judgment for lost wages and benefits; back and front pay; general and punitive damages; pre-judgment interest; court expense; and such further relief just and equitable.
Case number: 13-C-14

Jan. 28
Vanderbilt Mortgage & Finance, Inc. vs. Claude Hunter
PA- Jason S. Long, Denise M. Spatafore; J- William S. Thompson
*The Tennessee-based financial firm complains Hunter defaulted on his $23,930 retail installment contract on a 1998 manufactured home and wants assistance to repossess the unit as security interest collateral.
Case number: 13-C-16

Feb. 7
Grove Jerace vs. Brody Mining, LLC and Newhall Contracting, Inc.
PA- Pamela A. Lambert; J- William S. Thompson
* Logan County resident’s personal injury suit alleges he was working keeping the continuous miner cable out of the way of other underground equipment when in February 2011, the roof bolter struck him, resulting in severe and permanent injuries. Jerace was employed by Newhall at Brady’s mine near Wharton in Boone County. He accuses the defendants of failing to follow proper state and federal safety regulations and demands judgment, jointly and severally, for a jury award in excess of the court’s minimum jurisdiction. Jerace also seeks pre- and post-judgment interest, court costs and all other relief deemed proper and just.
Case number: 13-C-25

Feb. 8
Corey Lovejoy and Connie Lovejoy vs. Caterpillar, Inc. and Cecil I. Walker Machinery Co.
PA- Edward G. Atkins; J- William S. Thompson
* Product liability suit alleges an October incident at Black Castle Mining Co. location in Boone County in which Lovejoy was using a lifting aid known as a “sling” on a bulldozer blade component. The complaint says Caterpillar manufactured the sling, which was distributed by Walker and used with a crane that separated, allowing the dozer to fall and cause injury to Lovejoy’s right foot. Defendants are accused of furnishing and marketing a defective and dangerous sling. Lovejoy seeks jury judgment for an amount sufficient to compensate for his injuries, pre-judgment interest, and all court costs. His wife Connie also demands the same awards.
Case number: 13-C-26

Kimberly Stewart vs. Lowe’s Home Centers, Inc. and Lowe’s HIW, Inc.
PA- Matthew M. Hatfield; J- William S. Thompson
* Stewart brings personal injury suit because, as a customer at Lowe’s South Charleston store in late March 2011, she was struck by a piece of fencing and/or lumber being loaded by a John Doe, she says. The Alum Creek resident claims she suffered serious and permanent bodily injuries because of “carelessness, recklessness and negligence.” She seeks judgment, jointly and severally, for an amount in excess of court jurisdictional limits for compensatory, special and general damages, together with litigation expenses, pre- and post-judgment interest and just and proper further relief. Total amount awarded, under no circumstances, is not to reach or exceed the federal jurisdictional $75,000, the complaint requests.
Case number: 13-C-27

Feb. 12
Donna J. Moore vs. Boone County Board of Education and Vanessa D. Kinchen
PA- Marvin W. Masters, April D. Ferrebee; J- William S. Thompson
* Moore demands a jury trial to determine personal injury awards resulting from an alleged head-on collision with a school bus driven by Kinchen in March 2011 on Middle White Oak Road at Peytona. She charges defendants with “negligence, carelessness, recklessness and lack of due care” in causing the accident, leaving her with temporary and permanent injuries. Moore expects judgment for award in excess of jurisdictional amount, together with pre- and post-judgment interest, court costs and any other relief deemed just and fair.
Case number: 13-C-28

Feb. 14
Carlos Privett and Melinda Privett vs. Mine Safety Appliances Co., Persinger Supply Co., Raleigh Mine and Industrial Supply Co. and Eastern States Mine Supply Co.
PA- G. Todd Houck; J- William S. Thompson
* Hidden defects and inadequate warnings with use of respirators for protection against harmful dust are blamed for Privett developing the occupational disease known as “black lung.” He worked approximately 42 years for numerous coal-producing companies that used respirators manufactured by MSA and marketed and distributed by co-defendants named in his product liability suit. The Beckley couple seek jury awards, jointly and severally, for compensatory damages, punitive damages only against MSA, court expenses, pre- and post-judgment interest and all further relief to which they’re entitled. The complaint says Melinda Privett is entitled to recover damages for loss of affection, care, society, companionship and consortium.
Case number: 13-C-30

Grubb

MADISON – Bryan Angel contends he was wrongfully discharged from his coal mining job because of his disability status.

Charleston attorneys David Grubb and Kristina Thomas Whiteaker filed Angel’s suit Feb. 1 in Boone County Circuit Court seeking jury trial. The defendant is Frasure Creek Mining, LLC, d/b/a Trinity Coal Corp.

Angel represents that an X-ray and pulmonary function test on Sept. 13, showed a lymph node abnormality “compatible with borderline occupational pneumoconiosis,” although further testing would be necessary to rule out sarcoidosis or nonspecific interstitial disease.

Angel began employment with Frasure Creek about Sept. 14 and worked three days, according to complaint.

On Sept. 17, the complaint says, Angel’s superintendent told him he needed to have a CT scan follow up on “something” found in his pre-employment lab work. Also, he would need a release from his doctor to return to work. A scan was done that same day and a work release given, Angel relates.

A pulmonary specialist examined him Sept. 20, the complaint continues, and advised that a medastinoscopy would be beneficial to obtain a tissue sample. A follow-up appointment was scheduled and the doctor provided a return to work slip. Angels says he returned to his surface maintenance crew work Sept. 21-23.

He received a phone call while driving to work the next day, Angel says, from a company human resources representative, Ty Coleman, informing him the work release turned in was “not good enough” and he needed a different kind of document.

According to the complaint, Coleman was quoted as saying “that’s not a risk we’re taking” in reference to Angel’s medical test results.

Following additional procedures, Plaintiff’s doctor diagnosed him with mild sarcoidosis, prescribed oral steroids and “provided a letter indicating that Plaintiff was medically cleared for work as a coal miner, without limitations,” Angel says.

After he worked about an hour-and-a-half on Oct. 5, the complaint continues, Coleman told him to leave the premises because he “never worked here.”

After explaining he had received two paychecks, Angel was still ordered to leave, it is alleged.

Angel contends that at no time did he have any symptoms related to his lung condition and his pre-employment pulmonary function test was normal.

He accuses Frasure Creek Mining of disability discrimination under the West Virginia Human Rights Act, among other things, and seeks jury awards of compensatory and punitive damages, litigation costs, pre- and post-judgment interest, plus further appropriate relief.

He also asks for a permanent injunction ordering Defendant “to establish an ongoing training program for their employees on the subject of unlawful employment discrimination.”

The case has been assigned to Judge William S. Thompson.

Boone Circuit Court case number: 13-C-23

Feb. 14
Milton and Darlene Kincaid vs. Mine Safety Appliances Co.; Persinger Supply Co.; Raleigh Mine and Industrial Supply, Inc.; and Eastern States Mine Supply Co.
PA- G. Todd Houck; J- William S. Thompson
* A coal miner for 35 years, Kincaid says the defendants manufactured, sold and distributed defective respirators that exposed him to harmful dust leading to advanced lung disease. His product liability suit includes wife Darlene’s claim of loss of consortium. The suit says MSA respirators that were used leaked substantial amounts of harmful dust “undetectable by the human senses” and caused his black lung disease. Kincaid wants a jury to award compensatory damages, jointly and severally, punitive damages only from MSA, court costs, pre- and post-judgment interest and further relief to which Plaintiffs are entitled.
Case number: 13-C-31

Daniel and Donna Toler vs. Mine Safety Appliances Co.; Persinger Supply Co.; Raleigh Mine and Industrial Supply, Inc.; and Eastern States Mine Supply Co.
PA- G. Todd Houck; J- William S. Thompson
*Oceana resident Toler worked some 26 years in coal mines, saying he developed black lung disease caused by hidden defects with inadequate warnings in MSA respirators provided.
Case number: 13-C-32

Sammy and Wanda Mendez vs. Mine Safety Appliances Co.; Persinger Supply Co.; Raleigh Mine and Industrial Supply, Inc.; and Eastern States Mine Supply Co.
PA- G. Todd Houck; J- William S. Thompson
* Mendez alleges he developed black lung disease because of the defendants’ actions.
Case number: 13-C-33

Dreama Adkins vs. T & C Excavating, Inc. and President Jason Moore
PA- Harry M. Hatfield; J- William S. Thompson
* Adkins claims she stopped her car, preparing to make a left turn from W.Va. Route 85 onto Benjamin Price Bridge in Madison when she was struck from behind by Moore’s pickup truck. Her personal injury suit says she suffered serious and permanent injuries from the alleged collision in October 2011 that totaled her vehicle. The complaint seeks jury judgment against Moore and his company for an amount in excess of jurisdictional limits, with compensatory, special and general damages, her court expenses, pre- and post-judgment interest, plus other proper relief.
Case number: 13-C-34

Feb. 15
Larry and Tomma Johnson vs. Mountain Edge Mining, Inc.
PA- William M. Tiano; J- William S. Thompson
* Bloomingrose couple wants a jury to determine adequate compensation awards for May 2011 injuries Larry Johnson allegedly suffered in Mountain Edge’s Dorothy No. 3 Mine, when the drive shaft broke on a mantrip he was riding and the machine’s brakes failed to work. The personal injury suit says Johnson “traveled approximately 200 feet backwards and hit the rib of the mine to get stopped.” Wife Tomma has been deprived of consortium, the complaint contends. Couple asks for pre- and post-judgment interest and litigation expenses along with other general relief deemed applicable.
Case number: 13-C-36

Fenwick

MADISON – A defense verdict was reached recently in a lawsuit against Frontier West Virginia Inc. in which a former employee was claiming he was wrongfully terminated from his employment.

Frontier Communications Corporate Services Inc., Frontier Communications ILEC Holdings Inc., Frontier Communications of America Inc. and Dempsey Dickson were also named as defendants in the suit.

Matthew A. Montali was employed by the defendants for approximately 14 months until his employment was terminated on Aug. 3, 2011, according to a complaint filed Jan. 23, 2012, in Boone Circuit Court.

Montali claimed the defendants terminated his employment in retaliation for his attempt to receive Workers’ Compensation benefits and because of his disability and/or perceived disability and/or the defendants’ failure to accommodate his disability.

Montali was seeking $3.6 million in lost wages, benefits, back pay, front pay and punitive damages. He was represented by Mark A. Atkinson of Atkinson & Polak and Harry M. Hatfield of Hatfield & Hatfield.

Frontier was represented by J. David Fenwick and Ben Ware of Goodwin & Goodwin.

After the six-day trial, a jury returned a defense verdict, stating that they believed the defendants did not wrongfully terminate Montali’s employment and that they believed Montali’s attempt to receive Workers’ Compensation benefits was not a substantial factor in the defendants’ decision to terminate his employment, according to a verdict form filed March 18 in Boone Circuit Court.

“The plaintiff was overreaching with what he was asking in damages,” Fenwick said. “This defense verdict was fair and was rewarding.”

The case was presided over by Circuit Judge William S. Thompson.

Boone Circuit Court case number: 12-C-11

Preston

CHARLESTON – Ally Financial and West Asset Management have won summary judgment in a class action lawsuit brought by the wife of a Boone County man who shot himself after a standoff with police.

On May 2, U.S. District Judge Joseph R. Goodwin granted both defendants’ motion for summary judgment in a lawsuit that alleged they were continuing to contact Sadie White over the debts of her and her late husband, Jessie, even after they were notified she was represented by counsel.

The lawsuit alleged violations of the West Virginia Consumer Credit and Protection Act.

“It bears noting that the WVCCPA — and particularly, the claim at issue — involves attempts from the defendants to collect on a debt owed,” Goodwin wrote.

“The language in § 46A-2-128(e) reflects this by stating ‘[n]o debt collector shall use unfair or unconscionable means to collect or attempt to collect any claim.’ W. Va. Code § 46A-2-128(e) (emphasis added).

“The plaintiff’s representation by an attorney for her personal bankruptcy has no bearing on whether she appears to be represented by an attorney with respect to the debt at issue.

“Even if Ally and West both knew that the plaintiff was represented by counsel for her personal bankruptcy, neither defendant would violate § 46A-2-128(e) by communicating with her if it did not appear that she was represented by an attorney with respect to the debt at issue.”

White was 66 years old on Sept. 3, 2008, when family members urged the Sheriff’s Department to check on him at his residence. What resulted was a standoff, and White and deputies traded shots at each other during the evening.

The deputies fired tear gas into the building in which White was barricaded, and White apparently shot himself.

In 2010, Sadie White filed a lawsuit on behalf of herself and Jessie White’s estate against Ally Financial, Boone Memorial Hospital, West Asset Management and Cabin Creek Health Systems over their debt collection practices.

She was represented by Brett Justice Preston and Dan R. Snuffer of Preston & Salango in Charleston and L. Lee Javins II of Bucci, Bailey & Javins in Charleston.

The lawsuit sought $4,400 per statutory violation, as well as punitive damages.

West Asset Management removed the case to federal court in 2012, sometime after the plaintiffs amended their complaint to make class action allegations.

The proposed class were all persons from whom the defendants attempted to collect, or actually collected, debts owed by West Virginia decedents outside of the probate process, at any time from within the applicable limitations period through the time of class certification.

That included 9,960 accounts serviced by West that would have been included in the class.

The amount in controversy, multiplying the high end of the penalty for a violation by the amount of accounts, was more than $44 million against West, the company wrote.

“I am mindful of the fact that the WVCCPA should be liberally construed, as the purpose of the statute is to protect consumers from unfair, illegal and deceptive conduct,” Goodwin wrote.

“In the instant matter, however, viewing the underlying facts and inferences in the light most favorable to the plaintiff, I find that she has not offered sufficient admissible ‘evidence from which a reasonable juror could return a verdict in [her] favor.”

Representing West Asset Management were Albert C. Dunn, Jr. of Allen, Kopet & Associates; and James K. Schultz and Allison L. Cannizaro of Sessions, Fishman, Nathan & Israel.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

MADISON – A lawsuit against Unum Life Insurance Company of America alleging it denied a claim for accidental death benefits has been dismissed.

The Dismissal Order was filed Oct. 7, 2011. Katie Hall claimed the matter had been fully compromised and settled.

Katie Hall claimed she was the primary beneficiary of proceeds payable from the accidental death of Brian Keith Hall under Patriot Coal’s plan insured by Unum, according to a complaint filed July 27, 2011, in Boone Circuit Court.

Brian Hall died September 2010 in an accident and Katie Hall said her claim was denied by Unum in November 2010, she said.

Her appeals were refused in February and May of 2011, she claimed.

Katie Hall was seeking recovery of all benefits under terms of the plan as well as pre-judgment interest, court costs and other relief. She was represented by John J. Polak and Matthew M. Hatfield of Hatfield & Hatfield PLLC.

The case was assigned to Circuit Judge William S. Thompson.

Boone Circuit Court case number: 11-C-154

MADISON – A lawsuit involving a former Patriot Coal Corporation employee who was allegedly injured while working at the Coalburg No. 1 Mine was settled and dismissed last year.

Douglas M. Epling and Mountain Edge Mining were also named as defendants in the suit.

Timothy Bevel and the defendants came to the court and jointly announced all matters and differences between the parties have been fully settled, compromised and adjusted, according to a Final Dismissal Order filed July 12 in Boone Circuit Court.

Bevel claimed he was instructed “to stand at an elevated height on top of the canopy of a moving hauler along with a co-worker to hammer and tighten rollers into place using a sledge hammer and hand tools while within close proximity to each other, and without the use of any fall protection,” according to a complaint filed May 6, 2011, in Boone Circuit Court.

The defendant’s instruction resulted in Bevel being “struck in the head with the coworker’s sledge hammer,” according to the suit.

Bevel claimed he fell to the ground unconscious and it took approximately 45 minutes to evacuate him by flight to intensive care in a Charleston hospital.

Bevel had serious head and neck injuries that included skull fracture and traumatic brain injury, according to the suit.

Bevel was seeking compensatory and punitive damages with pre- and post-judgment interest. He was represented by Robert B. Warner and Lynnette Simon Marshall of Warner Law Offices PLLC.

Mountain Edge Mining was represented by Christopher A. Brumley and Eric T. Frye of Flaherty Sensabaugh Bonasso PLLC. Patriot Coal Corporation was represented by Justin C. Taylor of Bailey & Wyant PLLC.

The case was assigned to Circuit Judge William S. Thompson.

Boone Circuit Court case number: 11-C-94

MADISON – A Second Amended Notice of Mediation has been filed in a lawsuit against Independence Coal Co. Inc. and Massey Energy Co.

By agreement of the parties, mediation of the matter has been reschedules to take place July 31 beginning at 10 a.m. at Ranson Law Offices. James D. Lamp will serve as the mediator, according to a notice filed June 13 in Boone Circuit Court.

Benjamin L. Mullens claimed the defendants exposed him to unsafe conditions while working in a coal feeder dump truck “under a rock wall without shield protection,” which is in violation of state or federal safety regulations, according to a complaint filed June 28, 2011, in Boone Circuit Court.

Mullens claimed rocks from above broke loose in June 2009 while he was doing his job and caused serious head and facial injuries that required expenditures of large sums of money for medical and hospital treatment, both past and future.

At the time of the incident, Mullens was doing contract work for Massey Energy, owner of the property mined by Independence Coal, according to the suit.

Mullens is seeking jury judgment jointly and severally to set compensatory damages and award court costs, attorney fees and any other relief the court finds equitable. He is being represented by J. Michael Ranson, Cynthia M. Ranson, George B. Morrone III of Ranson Law Offices; and G. Patrick Jacobs of Jacobs Law Office.

The defendants are represented by Christopher D. Pence of Hardy Pence PLLC.

The case has been assigned to Circuit Judge William S. Thompson.

Boone Circuit Court case number: 11-C-114

McGraw

MADISON – Rite Aid of West Virginia has filed a Motion for Summary Judgment in a lawsuit brought by former Attorney General Darrell McGraw.

Rite Aid’s Motion for Summary Judgment and in Opposition to McGraw’s Motion for Partial Summary Judgment or in the Alternative for a Continued Stay was filed Jan. 10 in Boone Circuit Court.

McGraw filed the suit on July 23, 2009, claiming Rite Aid committed violations of state law governing generic drug pricing and the West Virginia Consumer Credit and Protection Act.

The lawsuit was remanded back to state court after U.S. District Judge John Copenhaver decided it was not a federal issue.

McGraw claimed in the complaint that Rite Aid did not pass savings on generic prescription drugs on to consumers.

The lawsuit is now under the control of new Attorney General Patrick Morrisey.

McGraw hired private lawyers to represent the State. They are: Brian A. Glasser, John W. Barrett and Michael L. Murphy of Bailey & Glasser LLP; and Joshua I. Barrett and Sean P. McGinley of DiTrapano, Barrett & DiPiero LLC.

Rite Aid was represented by Webster J. Arceneaux III of Lewis, Glasser, Casey & Rollins PLLC; and Todd A. Hollerman and Robert L. DeJong of Miller, Canfiled, Paddock & Stone.

Boone Circuit Court case number: 09-C-217

MADISON – A lawsuit against Massey Energy Company regarding the Upper Big Branch Mine disaster was settled and dismissed from Boone Circuit Court in October.

AT Massey Coal Co.; Massey Coal Sales Company; Massey Coal Services Inc.; Don Blankenship; and Performance Coal Company were also named as defendants in the suit.

On Oct. 9, both parties came and represented to the Court that the matter in dispute between them had been compromised and settled, according to the dismissal order.

Scott Durwin Halstead was working in Boone County as an employee of Performance Coal Co. when the April 2010 underground explosion occurred at Upper Big Branch Mine, according to a complaint filed Dec. 16, 2011 in Boone Circuit Court.

Halstead claimed the defendants’ “negligent, intentional and reckless conduct…” caused the explosion resulting in 29 fatalities, with safety statutes and regulations violated.

Halstead was completing his shift when the explosion happened and he suffered permanent physical and emotional injuries, including brain injuries, according to the suit.

Halstead and his wife, Leota Cook, were seeking for jury judgment for an amount that would adequately and fairly compensate him and his wife, plus pre- and post-judgment interests, litigation expenses, and such other relief Court deems appropriate, including punitive damages. They were represented by Anthony J. Sparacino.

The case was assigned to Circuit Judge William S. Thompson

Boone Circuit Court case number: 11-C-232

MADISON – A lawsuit involving an hourly miner operator who was injured during the Upper Big Branch Mine explosion was settled and dismissed last year.

AT Massey Coal Co. Inc.; Massey Coal Services Inc.; Massey Coal Sales Co.; Elk Run Coal Co.; Don Blankenship; Gary Frampton; Chris Blanchard; and Jason Whitehead were also named as defendants in the suit.

On June 18, 2012, both parties represented to the Court that the matter in dispute between them had been compromised and settled, according to the dismissal order.

Danny Joe Ferrell worked as an hourly miner operator employed by Performance Coal at the Upper Big Branch Mine location in Boone County, according to a complaint filed Oct. 31, 2011.

Ferrell was riding a mantrip with co-workers when there was a violent underground explosion April 5, 2010.

The mantrip was blown backward and he was shaken, rocked and thrown about, suffering serious permanent physical and mental injuries, according to the suit.

Ferrell and his wife, Barbara K. Ferrell, were seeking compensatory and punitive damages. They were being represented by Harry M. Hatfield.

The defendants were represented by A.L. Emch, Gretchen M. Callas and Ryan Voelker of Jackson Kelley PLLC.

The case has been assigned to Circuit Judge William S. Thompson.

Boone Circuit Court case number: 11-C-219

MADISON – A lawsuit involving a contract worker who was injured during the Upper Big Branch Mine explosion has been settled and dismissed.

Alpha Appalachia Holdings Inc., formerly known as Massey Energy Company; Alpha Appalachia Services Inc., formerly known as Performance Coal Company; James B. Crawford; Robert H. Fogelsong; Richard M. Gabrys; Bobby R. Inman; Dan R. Moore; and Stanley Suboleski were named as defendants in the suit.

On Oct. 9, both parties represented to the Court that the matter in dispute between them had been compromised and settled, according to the dismissal order.

Jason M. Stanley was a contract worker injured at the Upper Big Branch Mine underground explosion on April 5, 2010, according to a complaint filed Oct. 18, 2011, in Boone Circuit Court.

“As a direct and proximate result of their illegal and unlawful conduct, defendants are liable to Jason Stanley for his personal injuries and pain and suffering and mental anguish and distress,” according to the suit.

Stanley was seeking compensatory and punitive damages with pre- and post-judgment interest. He was represented by J. Michael Ranson and Cynthia M. Ranson of Ranson Law Office and G. Patrick Jacobs of Jacobs Law Office.

The defendants were represented by A.L. Emch and Gretchen M. Callas of Jackson Kelly PLLC.

The case was assigned to Circuit Judge William S. Thompson.

Boone Circuit Court case number: 11-C-210