Rory Perry: Topics-CivilInformation about recent WV Supreme Court cases and opinions involving civil matters.PROPERTY, TRUSTS :: Mistake in trust formation- February 1, 2008 PARKER v. ESTATE OF BEALER, et al., No. 33339 (Per Curiam)(November 21, 2007)(Rehearing denied, January 10, 2008). Reversing an order of the Circuit Court of Hampshire County, and holding that the appellant estate should have been granted summary judgment in a dispute over the status of a Hampshire County farm. Applying Florida law to conclude that there was a mistake in the formation of a charitable trust intended to hold the farm; the trust was intended to preserve the farm, but the...http://www.state.wv.us/wvsca/Clerk/Topics/Civil/2008/02/01.html#a1295 TORTS :: Continuing tort rule clarified- February 1, 2008 ROBERTS v. WEST VIRGINIA AMERCIAN WATER CO., et al., No. 33326 (ALBRIGHT, J.)(Starcher, J., dissenting)(November 8, 2007). Affirming an order of the Circuit Court of Kanawha County that granted summary judgment to defendants on statute of limitations grounds in a property damage action. Holding that neither the discovery rule nor the continuous tort doctrine tolled the statute of limitations, where the plaintiff claimed damages for the single, discrete act of constructing and installing the...http://www.state.wv.us/wvsca/Clerk/Topics/Civil/2008/02/01.html#a1294 TORTS :: Facts determine applicability of MPLA, not type of claim asserted; dismissal too harsh- February 1, 2008 BLANKENSHIP, et al. v. ETHICON, Inc., et al., No. 33224 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(October 12, 2007). Granting mixed relief from an order of the Circuit Court of Kanawha County that dismissed an action alleging damages from implantation of contaminated sutures, upon the circuit court's determination that the plaintiffs failed to comply with the pre-suit requirements of the Medical Professional Liability Act. Holding, in...http://www.state.wv.us/wvsca/Clerk/Topics/Civil/2008/02/01.html#a1293 TORTS, CONTRACTS :: Counterclaims partially reinstated- February 1, 2008 HIGHMARK WEST VIRGINIA v. JAMIE, No. 33309 (Per Curiam)(November 20, 2007). Granting mixed relief from an order of the Circuit Court of Wood County that dismissed a second amended counterclaim pursuant to Rule 12(b)(6), in a dispute between a physician and an insurer over certain billing items and alleged overpayments. Holding that the circuit court properly dismissed several counts, but that the circuit court erred in dismissing three counts in the nature of breach of contract claims, and a..http://www.state.wv.us/wvsca/Clerk/Topics/Civil/2008/02/01.html#a1292 TORTS, EVIDENCE :: Scientific evidence at summary judgment stage- February 1, 2008 SAN FRANCISCO v. WENDY'S INTERNATIONAL, INC., No. 33284 (STARCHER, J.)(Davis, C.J., concurring)(Benjamin, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Kanawha County that granted summary judgment to defendant in a case alleging food poisoning. Holding that the circuit court improperly excluded the testimony of two experts. "Because the summary judgment process does not conform well to the discipline and analysis that DAUBERT v. MERRELL DOW PHARMACEUTICALS,...http://www.state.wv.us/wvsca/Clerk/Topics/Civil/2008/02/01.html#a1291 |