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West Virginia's Legal Journal

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  • 05/22/09--00:10: THIS JUST IN: Boone County
  • May 4
    Brandy Jo Burnside v. Sharon Evans, executrix of the estate of Archie Donald Kuhn, et al
    PA – Joel Baker: J – William Stewart Thompson
    * The plaintiff is seeking a portion of her late grandfather’s estate.
    Case number: 09-C-105

    May 5
    Roger Green v. EQT Gathering Equity
    PA — Roger D. Forman: J – William Stewart Thompson
    * The plaintiff is seeking $20,000 from an agreement with the defendant relating to pipeline installation on his property.
    Case number: 09-C-106

    May 6
    Charles Hawks II v. Ed Coal Inc. and JMAC Leasing
    PA — Jamie F. Little: J – William Stewart Thompson
    * The plaintiff says he was improperly fired from his job as a “greaser” at a mine operated by the defendant company after a fall and injury. He’s seeking compensatory and punitive damages.
    Case number: 09-C-107

    May 7
    Wesley Webber v. Bucyrus Field Services, Inc., Independence Coal Co. et al
    PA — Anthony J. Majestro: J – William Stewart Thompson
    * The plaintiff is seeking damages over burns he suffered at a mine operated by the defendants. The plaintiff, a welder, says a spark ignited mineral spirits and caught his clothes on fire. He says he tried to put out the fire with an extinguisher, but it was defective.
    Case number: 09-C-108

    May 8
    West Virginia Division of Highways v. Federal Coal Company et al
    PA — Eric B. Hudnall: J – William Stewart Thompson
    * The plaintiff is seeking to condemn five acres of land for a road project from Seth to Williams Mountain.
    Case number: 09-C-109

    May 11
    Rhonda McCormick, individually and as parent and guardian of Joshua and Allison McCormick v. Massey Energy Co., et al
    PA — John E. Sutter, Roger A. Decanio and John R. Mitchell: J — William Stewart Thompson
    * The plaintiffs are seeking to be compensated over allegedly toxic well water caused by the operations of the defendants.
    Case number: 09-C-110


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    The Jarrell Family Cemetery. Photo courtesy of Vivian Stockman/www.ohvec.org. Flyover courtesy of SouthWings.org.

    The Jarrell Family Cemetery. Photo courtesy of Vivian Stockman/www.ohvec.org. Flyover courtesy of SouthWings.org.

    MADISON – A lawsuit was filed on Aug. 22 in Boone Circuit Court by the family members of the deceased buried in the Jarrell Family Cemetery above Lindytown.

    The lawsuit is aimed at repairing and protecting the cemetery from further desecration, according to a press release issued by the Ohio Valley Environmental Coalition.

    The family members worked with the West Virginia Department of Environmental Protection and coal companies to try to obtain the protections the Surface Mining Control and Reclamation Act affords, according to the press release.

    The operation, known as the Twilight Surface Mine complex, was once owned by Massey Energy and is now owned by Alpha Natural Resources.

    As the Twilight operation grew bigger, the community of Lindytown vanished, the press release states.

    “This mountaintop removal mine forced people away from their beloved town in the hollers of Boone County,” Nada Cook-White said in the press release. “This cemetery is some of the only remaining evidence that Lindytown ever existed. This is a place of vital importance to our cultural heritage. The people buried there tell the history of the town and its families.”

    Despite the years of efforts the families made to protect the cemetery, damage continues, according to the press release.

    In mid-summer, several family members made official arrangements with Alpha Natural Resources and Independence Coal Company to be allowed access to the cemetery.

    By law, mining is not to be done within 100 feet of the cemetery’s boundaries, the press release stated.

    To visit family cemeteries in the midst of mountaintop removal operations, family members must put in a request with the mine’s safety coordinator, they say.

    The company has 10 days to respond by offering a date on which it will allow the visit.

    On that day, family members undergo safety training at the mine’s guard shack. In order to meet the qualifications listed on the safety training form, which people must sign, visitors are supposed to have steel-toed boots that meet Mine Safety and Health Administration standards, as well as a hard hat and safety-stripes vest.

    The company does not supply these items; those without the safety gear can be asked to leave, the press release said.

    Visitors must also show photo ID, which the company photocopies. Visitors are asked to fill in papers with personal information, such as address, phone number and even social security number.

    Before anyone is allowed to access the cemetery, visitors are asked to give their cameras to the guards to hold, which family members believe is to prevent them from documenting any damages.

    Once all the requirements are met, mine employees escort family members to the cemetery and keep them under surveillance while they visit, allowing them at most only two hours.

    The plaintiffs have each agreed that any proceeds that would come from a potential settlement will go into a fund to repair and maintain the Jarrell Cemetery.

    “People living in communities where extractive industries have desecrated family cemeteries have reached out to OVEC for support and we have networked them with people and resources that can help,” said Robin Blakeman, a faith-based liaison and organizer with the Ohio Valley Environmental Coalition. “While OVEC is never involved in personal lawsuits, we are proud to see that these families are taking a firm stand.”


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    Boone Memorial Hospital

    Boone Memorial Hospital

    MADISON – A Danville woman is suing Boone Memorial Hospital after she claims she was injured while on the hospital’s premises.

    On April 3, Delilah “Janey” Griffis was coming to Boone Memorial Hospital with her brother, who was entering the hospital through the emergency room, according to a complaint filed Nov. 1 in Boone Circuit Court.

    Griffis claims it was nearly 9 p.m. when she was coming from the parking lot adjacent to the area near the emergency room entrance and she slipped, tripped and fell coming down a sloped area with no markings and tripped on an uneven sidewalk that does not meet applicable safety codes.

    Because of the fall, Griffis was severely injured and hospitalized from several weeks, according to the suit.

    Griffis claims the harm was foreseeable and the defendant negligently and carelessly failed to maintain the walkway, causing severe and debilitating injury all without any fault of the part of the plaintiff.

    The defendant’s actions were negligent in failing to maintain its premises in a reasonably safe condition and in failing to exercise due care in maintenance and inspection of the premises, according to the suit.

    Griffis claims the defendant also failed to adequately train its personnel in the appropriate methods to inspect and maintain the premises and failed to warn of the hazards which the defendant knew or should have had knowledge of.

    As a direct and proximate result of the negligence and carelessness of the defendant, Griffis continues to suffer bodily injuries requiring medical treatment and related expenses; physical pain and suffering; mental anguish; emotional distress; a diminution in the ability to enjoy life; lost wages; and general damages, according to the suit.

    Griffis is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Kathy A. Brown of Kathy Brown Law PLLC and Valentina Wheeler of Wheeler Law Firm.

    Boone Circuit Court case number: 13-C-230


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    Brown

    Brown

    MADISON – A Princeton woman is suing Kristi Enterprises LLC after she claims she was subjected to a sexually harassing and hostile working environment.

    Terry Sanders was also named as a defendant in the suit.

    Karie Puffenbarger was employed at Kristi Enterprises as a video lottery attendant from approximately November 2011 until May, according to a complaint filed Nov. 1 in Boone Circuit Court.

    Puffenbarger claims Sanders, who was her supervisor overseeing day-to-day operations at Kristi’s Princeton location, was her direct supervisor.

    Shortly after Puffenbarger began working for the defendants, she was subject to a sexually harassing and hostile environment created by Sanders, according to the suit.

    Puffenbarger claims on multiple occasions, Sanders would gesture, grab and rub on customers, as well as make explicit comments to them and in front of them.

    Kristi’s failed to remediate, correct and/or eliminate the sexually harassing environment created by Sanders, according to the suit.

    Puffenbarger claims Kristi’s knew and/or should have known of the sexual harassing environment, as the main source of the inappropriate behavior originated by its supervisor in charge.

    The environment caused and/or contributed to Puffenbarger feeling disgusted, afraid, ashamed, distressed, upset and confused, according to the suit.

    Puffenbarger claims the defendants violated the West Virginia Human Rights Act and caused her to suffer indignity, embarrassment and mental anguish.

    Puffenbarger is seeking compensatory and punitive damages. She is being represented by Kathy A. Brown of Kathy Brown Law PLLC and Valentina Wheeler of Wheeler Law Firm.

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

    Boone Circuit Court case number: 13-C-231


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    Workman

    Workman

    CHARLESTON – A husband separated from his wife who was living in a camper on their property was not technically “living with” his wife, the state Supreme Court has ruled, and one justice is disappointed in a state agency’s representation by the Attorney General’s Office.

    The court on Nov. 6 ruled for Patricia Hudson, a Boone County woman who was receiving food stamps and classified as a separated spouse in a one-person household. The state Department of Health and Human Resources argued that was not the case and wanted repayment of nearly $2,000 in food stamp benefits received from May 2010 to September 2011.

    “This Court finds that DHHR failed to prove that the petitioner and Mr. Hudson lived together during the 17-month time period of the overpayment claim, and that the claim should have been dismissed at the conclusion of DHHR’s evidence,” Justice Margaret Workman wrote for the majority.

    “Even assuming, arguendo, that the DHHR’s evidence was sufficient to shift the burden of proof to the petitioner, the petitioner’s evidence was overwhelming and established that DHHR’s action was incorrect.”

    In May 2010, Hudson listed on an application for food stamps that she was the sole resident in her home and had no income other than her own. She began receiving $146 per month.

    Previously, Hudson had ordered her husband Harold out of the house because of his drinking, the opinion says. She told him he was welcome back whenever he quit, it adds.

    Harold lived in a camper owned by his brother on Patricia’s property. Though they were married, Harold’s name was not on the deed.

    While living in the camper, Harold ran an extension cord from Patricia’s house for power, the opinion says. He reimbursed her for the amount of electricity he used, and his name wasn’t taken off the utility bills.

    Patricia said Harold never set foot in the house again. He even showered at his daughter’s house.

    Eventually, Harold moved out of the camper and lived with family members, though Patricia drove him to doctor’s appointments.

    A DHHR worker noticed the trips to the doctor and that Harold still had the same physical address as Patricia. He listed the address on his driver’s license when he renewed it, but only because he was not allowed to use his P.O. box.

    The DHHR sent Patricia a notice of overpayment of $1,985, and she requested a hearing. The opinion says her representative attempted to retrieve her file three times unsuccessfully, so Patricia staged a mini sit-in at the DHHR office for several hours until she was given her file.

    At a hearing, Stephen M. Baisden, a state hearing officer, ruled the two shared utilities, the property and liquid assets (a joint bank account).

    After an appeal, the Kanawha County Circuit Court affirmed DHHR’s overpayment claim, ruling it is “logical to conclude that Petitioner and her spouse lived in the same household.”

    The state Supreme Court overturned the decision. It ruled that the notice of overpayment sent to Patricia was inadequate.

    However, that isn’t enough to dismiss the overpayment claim, the court ruled.

    The court also found DHHR obstructed her right of access to the file, but since she was not prejudiced by it, the overpayment claim can’t be dismissed on that argument.

    Workman wrote that no reasonable factfinder could determine that the two lived together during the time period in question.

    “The undisputed evidence was that Mr. Hudson had no access to the petitioner’s home, even during the four months he lived in the camper, and no access to the telephone,” Workman wrote.

    “Only by applying an irrebutable ‘same address’ presumption – which both the hearing examiner and the circuit court appear to have done – could this evidence be deemed sufficient to establish that the petitioner and Mr. Hudson lived together.”

    Justice Allen Loughry authored a concurring opinion. In it, he deems both the investigation of the DHHR and the efforts of its attorney as unsatisfactory.

    DHHR was represented by Attorney General Patrick Morrisey’s office.

    “The case at bar presented this Court with an opportunity to write in an area of the law that had not been previously addressed,” Loughry wrote.

    Loughry

    Loughry

    “Generally, in such a case, one would expect each side to file a well-researched brief containing a thorough discussion of the relevant law as it related to the party’s respective position on the issues to be considered on appeal.

    “For reasons that are not readily, the DHHR chose, instead, to file a three-and-a-half-page summary response.

    “(T)he DHHR’s summary response fails to contain even a single citation to any legal authority or to the record. As a result, the DHHR disappointingly offered very little to support its position in this matter.”

    Patricia Hudson was represented by Bruce Perrone of Legal Aid of West Virginia.

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


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