April 9, 2014

Federal Judge Grants in Part, Denies in Part Ford Motor Company's Motion to Dismiss

ford-escort-3-291948-m.jpgRecently, a federal judge in Huntington, West Virginia granted in part and denied in part Ford Motor Company's motion to dismiss a class-action lawsuit. The lawsuit had been filed by consumers who claimed that the Ford models they purchased were vulnerable to sudden and unintended acceleration. Chief Judge Robert C. Chambers's decision will bar those who bought their Fords used from arguing that Ford experienced unjust enrichment, but will otherwise leave the lawsuit intact.

The situation began when owners of Ford vehicles purchased between 2002 and 2010 filed two class-action lawsuits against the company over the issue of sudden acceleration problems. In both lawsuits, consumers argued that their Ford vehicles lacked an adequate override system to protect drivers in situations of sudden, unintended acceleration. While not every injured party experienced a collision due to this problem, each one argued that had they been informed of the problem, they never would have purchased the vehicle. Ford sought to have at least one of the lawsuits dismissed.

In response, the federal court determined that one of Ford Motor Company's arguments had merit, but that the others were not enough to merit dismissal of the lawsuit. Regarding unjust enrichment, the court agreed that claims for unjust enrichment should be dismissed for consumers who bought their Fords used because their purchase did not bestow any benefit on Ford, and they could not prove that they paid more for their Ford vehicles than they were worth.

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April 1, 2014

West Virginia Supreme Court Affirms Decision to Permit Workers' Compensation Claim

cement-mixer-118250-m.jpgRecently, the West Virginia Supreme Court upheld a decision by the Workers' Compensation Board of Review to grant the claim of an injured worker, David Shofstahl. Shofstahl had suffered his workplace injury in May 2011.

Shofstahl was a laborer and mason foreman for EIN Management. In May 2011, he was lifting a mortar mixer from one of the trucks when he felt a pop in his back. Shofstahl first sought treatment at the Lewis Gale Allegheny Hospital, where he indicated that he had a pre-existing history of intervertebral disc disease. Shofstahl was also treated separately by Dr. Karl Smith, who ordered an MRI that revealed a disc extrusion and a disc protrusion. Shofstahl then filled out a workers compensation application based on Dr. Smith's findings.

Two weeks later, the claims administrator denied Shofstahl's application, claiming that he had a history of back problems that went back to 2004. The claims administrator also noted that Shofstahl had seen Dr. Smith for back problems in April 2011 for degenerative disc disease. Shofstahl appealed, and in March 2012, the Office of Judges reversed the claims administrator's decision and found that Shofstahl was eligible for compensation. The pre-existing degenerative changes in his lower black did not prevent him from filing a successful workers compensation claim. Shofstahl worked despite the condition, and experienced a new onset of pain, including a disc bulge that had not appeared in earlier MRIs. The Office of Judges found that EIN Management had not refuted any of Shofstahl's evidence, including conclusions by Dr. Smith that the recent disc bulge was work related.

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March 24, 2014

West Virginia Supreme Court Upholds Jury Verdict of $50,500 in Car Accident Case

road-1289757-m.jpgRecently, the West Virginia Supreme Court upheld a jury award that had been given to a driver injured by a car accident in 2009.

In Arthurs v. Pownell, in 2009, Lindsey Arthurs's car struck Eilene Pownell's while at an entrance ramp to Interstate 79 in Westover, Monongalia County. Pownell's car was stopped at the end of the entrance ramp due to heavy traffic, and the impact of Arthurs's car forced Pownell's car into the lane, where it faced the oncoming traffic. Pownell suffered a shoulder injury and was later taken by ambulance to Ruby Memorial Hospital. When the shoulder injury did not heal on its own, Pownell had surgery in February 2010, followed by a prescribed physical therapy regiment. Even so, Pownell continued to experience pain and a limited range of arm motion, and ended up having a follow-up procedure in October 2010 to remove scar tissue.

Pownell later filed a lawsuit against Arthurs, who denied that Pownell's shoulder injury was a direct and proximate result of the vehicle accident. Instead, Arthurs argued that Pownell had a pre-existing shoulder injury and that Pownell's actions amounted to contributory negligence. Pownell presented evidence that she had suffered damage specifically caused by the accident and that treatment for the damage amounted to $62,236.21, as well as lost wages in the amount of $5,710.43 due to her taking so much time off of work to recuperate.

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March 17, 2014

West Virginia Supreme Court Rules Homeowner Cannot Sue Construction Company For Negligence Due to Arbitration Clause

house-demolition-1424903-m.jpgRecently, the West Virginia Supreme Court affirmed that two homeowners could not sue the construction companies that built their house for negligence due to an existing arbitration clause in their contract.

Back in March 2009, Wayne and Joyce Kirby entered into a written agreement with Bastian Homes to have a new house constructed in Fairmont. This agreement included an arbitration clause. Bastian Homes then subcontracted with Ed Dwire of Dwire Plumbing to provide plumbing services to the house. However, before construction was completed, there was a water leak that allegedly caused damage to significant portions, resulting in a delay lasting as long as 10 months. The Kirbys then sued Bastian Homes and Dwire Plumbing jointly for negligence, and Bastian Homes moved to dismiss the complaint due to the arbitration clause, which required either party to submit the matter to arbitration rather than file in court. The Kirbys responded that because the arbitration clause was never "bargained for," it was invalid. Wayne Kirby noted that he had objected to the clause at the time of contract, but was told not to worry because Bastian Homes was bonded, and that the company would correct or repair any defects in workmanship if they were discovered within a year of construction.

Despite this, the trial court judge found that the Kirbys still needed to go through the arbitration process and the West Virginia Supreme Court affirmed. The Court considered the respective bargaining positions of the Kirbys and Bastian Homes, and also the contract itself. The Court noted that as long as the contract as a whole was supported by an offer, acceptance, and sufficient consideration, the entire contract was valid and it did not matter if the arbitration clause was not independently bargained for. Since there was valid offer, acceptance, and consideration, the contract between the Kirbys and Bastian Homes was valid.

The only way the Court could invalidate the arbitration clause was if it found a case of "unconscionability" - that the parties' bargaining positions were so unequal, the contract had to be nullified. The Court noted that the circuit court had failed to do a proper analysis of unconscionability, and therefore the case should be remanded to trial court to be weighed and decided on that issue. Therefore, while the Court affirmed the lower court's ruling on "bargained for," it disagreed that the lower court had properly considered every aspect of the case.

Arbitration clauses have been becoming more popular over the past decade or so, finding their way into contracts ranging from employment to consumer products to even nursing home care. Companies appear to favor them due to the fact that arbitration is (generally, not always) cheaper than court litigation. It also does not hurt that many companies specify certain arbitration companies in their contracts, and those arbitrators naturally favor the companies that pay them. Even though the United States Supreme Court had been very strict about the Federal Arbitration Act overriding the law of individual states concerning arbitration clauses, state courts have managed to find a loophole through the determination of whether a case of "unconscionability" -- grossly unequal bargaining power or unfair surprise -- existed at the time of contract negotiations.

The Wolfe Law Firm has been providing legal services for nearly 25 years. Located in Elkins, West Virginia, the firm provides services in the areas of personal injury, criminal defense, bankruptcy, and mediation. If you are looking for an experienced West Virginia personal injury attorney, contact us today.

Related Posts:

West Virginia Circuit Court Dismisses Marshall University From "Bottle Rocket" Case

Guest at Marshall University Fraternity Party Sues After a Fellow Guest's Drunken Prank Goes Awry

Family of Man Who Died After Falling During a Youth Baseball Game Files a Lawsuit in West Virginia Court

March 10, 2014

West Virginia House of Delegates Unanimously Passes Legislation Intended to Strictly Regulate Above-Ground Chemical Storage Tanks

freight-train-1304806-m.jpgAfter the chemical spill into the Elk River that contaminated the drinking water of 300,000 West Virginians, the state legislature took unprecedented action. The House of Delegates unanimously passed, 95-0, legislation that creates a new slate of state regulations, requiring the state Division of Environmental Protection to inspect and license storage tanks that are above ground, such as the Freedom Industries tank that leaked 10,000 gallons of chemicals into the Elk River.

Among other provisions, the legislation will require that water utilities that use surface water identify possible contamination sources located near the water intake valve; that all above-ground storage tanks be registered with the state Division of Environmental Protection, with regular inspections being made by the Division; that the Division determine which storage tanks above ground are already regulated by a different agency and thus did not need a second review; and that by July 2015, all water utilities have a source water protection plan in the event of another spill that could contaminate the water.

In addition, the House passed an amendment 83-10 that requires the West Virginia Bureau of Public Health to gather and store medical information on people exposed to the chemicals in order to determine the possible long-term health effects.

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March 3, 2014

West Virginia Supreme Court Affirms Decision to Deny Workers Compensation to Injured Worker

securicam-387604-m.jpgThe West Virginia Supreme Court upheld a decision by the state Workers' Compensation Board of Review that found an employee's injury could not be traced to the workplace, and thus the employee did not have a workers compensation claim.

Melissa Stephen filed a claim for workers compensation in December 2010, claiming that she had been injured during the course of her employment. Stephen claimed to have kneeled down to retrieve a bag from the bottom rack of a shelf. When she rose back up, she hit her head and then fell backwards. Stephen claimed to have lain on the floor for a lengthy period of time until one of her coworkers found her. The coworker allegedly told Stephen that she heard the noise caused by the fall, and that Stephen had been unconscious for roughly 10 minutes. Stephen stated that she did not seek medical attention, but instead finished her shift. She did not seek medical attention for another week because, she claimed, she needed the money. However, she claims to have informed her supervisor, who in turn never offered her a workers compensation application to complete. Stephen's family physician took her off of work, and she then allegedly requested another workers compensation application. The supervisor told her that she would fill it out for her.

Stephen's medical records showed a history of neck pain, headaches, blurred vision, and dizziness. She had also been in a car accident at an undisclosed point in the past. The claims administrator denied Stephen's claim in January 2011. Several months later, Stephen had an independent medical evaluation performed in July 2011. The physician claimed to have reviewed footage from the surveillance video and could not see evidence of Stephen hitting her head. He noted that while Stephen had a history of neck problems, she never reported any on a work-related injury questionnaire.

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February 21, 2014

Family Sues Jimmy John's Franchise, Claims "Freaky Fast" Policy Caused Loved One's Death

crashed-car-921217-m.jpgThe family of a recently killed pedestrian has filed a lawsuit against Jimmy John's Franchise, LLC, claiming that the national sandwich shop chain's motto, "Freaky Fast Delivery," was the reason behind their loved one's death.

J. Robert McClain was walking his dog in Morgantown on August 2013 when he was struck and killed by a Jimmy John's delivery car. The car was being driven by the assistant manager of the Morgantown Jimmy John's branch. McClain's family claims that he was speeding, and so preoccupied with checking his clock that he failed to look for pedestrians. The family attributes his careless driving to an "environment" instilled by the employer: when drivers are encouraged to deliver "freaky fast," serious injury will happen.

McClain's family argues that because the "freaky fast" delivery was among policies developed, taught, encouraged, and promoted by the Jimmy John's franchises, the increased risk of injury to the public was foreseeable and preventable. The employer allegedly had actual knowledge that its policies could and did endanger public safety. Yet despite this, the employer allegedly continued to teach, encourage, promote, mandate, and condone the Jimmy John's "freaky fast delivery" policy to its employees.

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February 14, 2014

Residents File Twenty Lawsuits Against West Virginia American Water Company

water-drop-2-1387351-m.jpgFollowing the chemical spill into the Elk River, several lawsuits were filed against not only Freedom Industries, Inc., the chemical company responsible, but also West Virginia American Water Company. Overall, 20 lawsuits have been filed against the water company, with the injured parties claiming that it did not do enough to ensure that their drinking water was safe to use.

American Water Company's intake facility is just a little over a mile downstream from the Freedom Industries plant that leaked 10,000 gallons of MCHM last month. Although officials have declared the water, used by 300,000 customers, to be safe, many residents are reluctant to do so.

While most of the lawsuits filed against the water company were on behalf of individuals, a few entities were injured parties as well. These included the Town of Buffalo and Desimone Hospitality Services, LLC. The Town of Buffalo sought "significant" amounts of overtime compensation that it had to pay to public safety officials, as well as income and taxes lost from businesses forced to close due to the crisis. Meanwhile, Desimone Hospitality Services restaurants claim to have lost business confidence and goodwill, as well as an undetermined amount of income.

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February 7, 2014

West Virginia Department of Transportation Employee Arrested for Drunk Driving While On Duty

snowcat-428095-m.jpgAn employee of the West Virginia Department of Transportation could face charges of driving a state snowplow while intoxicated.

Thomas Keith Henderson of Elkhorn was arrested in McDowell County during a traffic stop on Burke Mountain near Keystone. According to the criminal complaint, a law enforcement official stopped the snowplow due to the fact that the driver's side headlight was not working. The deputy then allegedly smelled alcohol and noted that Henderson's eyes were bloodshot and glassy. Henderson was arrested and transported to the McDowell County Holding Unit to await arraignment.

Later, the sheriff's department stated that Henderson's blood alcohol level was 0.9, or more than twice the 0.4 legal limit for holders of a commercial driver's license. Henderson was arraigned before McDowell County Magistrate Steve Cox and later paid a bond of $500 for release. So far the Department of Transportation has not commented due to it being an ongoing legal matter.

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January 23, 2014

At Least Eight Class Action Lawsuits Have Been Filed in Chemical Spill Disaster

dock-on-river-1434920-m.jpgSince this blog last discussed the chemical spill into the Elk River near Charleston, not surprisingly, a number of class action lawsuits have been filed. So far eight lawsuits have been filed, although that number is likely to rise since the chemicals tainted drinking water used by 300,000 people.

Among the criticisms in the lawsuits are that government agencies did not do their job, which not only put people in danger from exposure to tainted water, but also endangered people in other ways by not allowing them to wash their hands during cold and flu season. One West Virginia personal injury attorney argued that government officials should have been aware of the chemical leak upstream, issued a rationing order, and closed off its intakes until the chemical leak problem was resolved.

The Elk River chemical spill was the third major accident in five years. Yet despite two investigations by the federal Chemical Safety Board and federal recommendations that the state adopt rules that safeguard against chemical accidents, nothing was done. Some believe that it is due to the state's desire for more jobs, which creates an unwillingness to criticize any industry. For example, after one 2008 chemical explosion, a citizens group came up with a plan to contain the chemicals that was modeled after a successful plan in California. They recommended it to the state legislature, and again after a 2010 toxic gas leak in the DuPont plant in Belle, West Virginia, which resulted in a worker's death. Yet the recommendations were never adopted. That is likely to change after this latest disaster -- West Virginia legislators are looking to tighten existing rules governing chemical spills and notification.

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January 16, 2014

Chemical Spill in Elk River Near Charleston Contaminates the Drinking Water for Nine Counties

3mspraymount-138829-m.jpgRecently, there was a major chemical spill in the Elk River in Charleston, causing the drinking water of 300,000 people in nine different counties to become contaminated.

The spill took place when a foaming agent used in coal preparation leaked out of a 48,000 gallon tank at Freedom Industries and through a containment area. The chemicals then spilled directly into the Elk River, as well as a nearby treatment plant. The strong odor, similar to cough syrup, could be smelled throughout Charleston, especially the Charleston Marriott hotel.

The state and federal government declared a state of emergency in the southwest portion of the state. Governor Tomblin told water customers in the counties of Kanawha, Putname, Lincoln, Jackson, Clay, Logan, Boone, and Roane counties to stop using the water for anything other than flushing toilets or putting out fires. They should not drink, cook, wash clothes, or take a bath in the contaminated water. As a result, thousands of residents rushed to area stores to buy bottled water, with one Sam's Club reporting that it sold out 4,200 cases in 1.5 hours. Police had to increase patrols around certain convenience stores due to break ins and theft of water.

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January 9, 2014

Marshall University Student Injured in the "Bottle Rocket" Case Reaches a Settlement

668436_rocket.jpgRecently, a settlement was reached in a rather unique case involving students at West Virginia's Marshall University. The case involved a fraternity party on campus, where one party guest was injured by another guest's decision to place a bottle rocket up his anus.

The case began in May 2011, when both Travis Hughes and Louis Helmburg III attended a late-night house party hosted by the fraternity Alpha Tau Omega. During the party, Hughes became highly intoxicated and, in a "drunken stupor," attempted to shoot a bottle rocket out of his anus. Hughes placed the bottle rocket in his anus and lit the fuse, but instead of the rocket launching, it blew up in Hughes's rectum. The resulting explosion startled Helmburg, who reacted by jumping back and falling off the deck, where he became lodged between the deck and the air conditioning unit.

Helmburg blamed his ensuing injury on the fact that the deck had no railing, even though the deck was three or four feet high. In his negligence lawsuit against Hughes and the fraternity, Helmberg claimed the following: that Hughes's alcohol consumption led to foolish, dangerous activity; that the fraternity was irresponsible for allowing several underage drinkers, like Hughes, to attend the party; that the fraternity breached its duty to have a safe premises by having an unsafe deck; and that the fraternity failed to properly supervise the activities so that actions like Hughes's could be prevented. As a result of the defendants' actions or failure to act, Helmburg claimed to have suffered injuries, pain and suffering, lost time playing for Marshall's baseball team as a catcher, faces lost earning capacity, and accrued medical bills.

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January 3, 2014

Settlement Reached in Case Where High School Student Was Injured By Archery Target

on-target-1234025-m.jpgRecently, a lawsuit against the Putnam County Board of Education, involving an archery injury, was settled. The case involved an incident in September 2010, when the injured party, student Hunter Fitzwater, was seated in a classroom at Hurricane High School. He was located near the back of the room, close to where a classmate was leaning on a stack of archery targets. As a result, the targets fell forward and struck Fitzwater on the head, causing Fitzwater's head to strike the top of his desk.

In the lawsuit, Fitzwater claimed that, because of the two blows, he lost consciousness immediately and then existed in an altered state of consciousness for a period of time. Putnam County Board of Education was named in the lawsuit because it had a duty to supervise students in the classroom, especially around hazardous areas. The Board of Education breached that duty by failing to provide supervision, or otherwise properly stack and maintain the archery targets. As a result of the breach, Fitzwater suffered a traumatic brain injury that has led him to experience short-term and permanent cognitive deficits, as well as emotional deficits. Fitzwater believed that these deficits would reduce his educational opportunities and diminish his future earning capacity. His enjoyment of life was also permanently affected.

Following the filing of the lawsuit, a mediation was held, during which the two sides reached a settlement. The parties then sent a letter informing the Putnam County Circuit Court judge, and the judge dismissed the case with prejudice. Details about the amount of the settlement are unknown.

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December 23, 2013

Ford Motor Company Files Opposition to Preliminary Injunction in Class Action Lawsuit

wheel-1026006-m.jpgThis blog has discussed the ongoing Ford class action lawsuit in federal court in West Virginia. Customers who purchased Ford, Lincoln, and Mercury vehicles made between 2002 and 2010 claim that they would not have purchased their vehicles had they known that they had an issue with sudden and unintended acceleration. While none of the customers were injured, they claimed that they overpaid for their vehicles, given the lack of a safety feature such as a Brake Throttle Override, which would depower the engine in cases where the gas pedal is trapped by a floor mat. Ford Motor Company filed a motion to dismiss back in June, which is still pending.

Recently Ford Motor Company filed an opposition in response to the plaintiffs' attorneys request for a preliminary injunction. The motion for an injunction requested that the judge force Ford Motor Company to issue a consumer advisory that owners of Ford vehicles are at "grave risk" of physical harm due to sudden unintended acceleration. The advisory would consist of three steps: first, the driver should step hard on the brake without pumping it; second, the driver should shift into neutral and navigate the car to a safe location, preferably the side of the road; finally, the driver should turn off the engine. Plaintiffs' attorneys argued that any delay in issuing a consumer advisory would expose current Ford owners to "substantial" risk, including physical injury and property damage. Both represented an "irreparable injury" that could only be addressed through a preliminary injunction.

In response, Ford Motor Company argued in its opposition that, by filing the motion, the plaintiffs were "attempting to bypass several key steps," including the outcome of the motion to dismiss, the discovery process, the class certification process, the Daubert evidence challenges, summary judgment motions, and even the trial. By forcing Ford Motor Company to issue an advisory, the company claimed, the plaintiffs are seeking to impose class-wide relief. The company also argued that the plaintiffs had not identified any actual defects in the vehicle, just that the gas pedal could be caught in the floor mat.

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December 12, 2013

Young Driver Killed in a Car Accident After Car Flips Near West Virginia Route 45

car-accident-1-774604-m.jpgRecently, an 18-year-old man from Jefferson County died after a fiery one-vehicle crash on West Virginia Route 45. The man was driving a 2005 black Dodge, which for some unknown reason veered off to the side of the road and hit an embankment. Although the car then returned to the roadway, it hit the embankment once again and then flipped over onto its top. The Dodge then skidded another 355 feet before finally coming to a stop after it struck a guardrail.

Both occupants of the vehicle were trapped with severe injuries, but the Shepherdstown Volunteer Fire Department's Medic 3 managed to free the passenger, a 23-year-old man. He was then flown by helicopter to Winchester Medical Center in Virginia. However, although the ambulance crew worked to put out the fire and free the driver of the car, they were unsuccessful. The young driver was pronounced dead at the scene.

Authorities are still investigating the cause of the crash, but speed is believed to be a factor. There is no mention of whether the conditions at the time, or drugs or alcohol, played a role as well. Until more information is known, one can only speculate as to what made the Dodge veer out of control -- whether the driver simply lost control, suffered a seizure or other debilitating health problem, or had drugs or alcohol in his system.

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