West Virginia Injury Lawyer Blog

For some West Virginia legislators, sponsoring a mine safety bill wasn't just about preventing a repeat of the 2010 Upper Big Branch mine tragedy: it was also about something personal. Two legislators had lost fathers in coal mining accidents.

House Speaker Rick Thompson lost his father in 1952, when he fell off the mine roof -- before Thompson was even born. Delegate Charlene Marshall lost two fathers -- her biological father when she was six years old, and later her stepfather. Marshall emphasized that she never wanted any child to feel what she felt. As a result, she and 11 other legislators have sponsored a bill that would not only increase training and increase sanctions for violations, but would also improve the role of miners' families during investigations. Miners' families or their representatives would be permitted to sit in on investigator interviews. This would prevent situations like the one Marshall experienced. During a routine canvassing for the vote, she learned that the details of her father's death were different from what her family had been told.

In addition, the bill would require a review of the three reports that were issued by Upper Big Branch investigators. The goal is to identify problems and then alter safety standards to ensure that disaster never strikes again. The three reports, as well as a federal report issued by the Mine Safety and Health Administration, faulted Massey Energy Company for allowing safety lapses that led to the accident, as well as Massey's efforts to conceal these problems.

If the bill is passed, changes will include a whistleblower hotline for mine safety violations, double the penalties for lying to investigators, and triple the penalties for safety violations. Mining machines would shut off automatically if methane levels were too high. Mine workers would be permitted to leave areas that they believed to be unsafe.

We at the Wolfe Law Firm applaud West Virginia legislators and Governor Tomblin for taking sensible steps to end the safety abuses routinely found in coal mines. While the 2011 death toll was much lower than in 2010, more than a dozen people still died in coal mining accidents. The numbers may rise if something is not done to prevent them. Fortunately something is being done, and it will be up to inspectors and whistleblowers to ensure that mining companies don't successfully evade the new regulations.

Continue reading "West Virginia Legislators Sponsor a Bill That Would Improve Mine Safety" »

An Iraq War veteran and West Virginia Air National Guardsman died in a tragic plane crash in Marysville, Ohio. Michael Lakin, 42, of Charleston, West Virginia, lost control of his plane while performing aerobic maneuvers for the purpose of recertification and crashed near the airport. He was taken to the hospital, where he later died of his injuries.

The cause of the crash is unclear, whether due to a mechanical problem or due to Lakin's error. Following the accident, many took time to remember the man who had been passionate about flying since the age of 10. Lakin flew for both the United States Marines and West Virginia's Air National Guard in a C-130 aircraft. Part of Lakin's piloting duties included flying state officials, including West Virginia's governor. Members of the 130th Airlift Wing mourned Lakin's loss.

Frequently, when accidents happen with small planes, it is due to an inexperienced pilot's error. A pilot with too little training may attempt big maneuvers and end up paying a tragic price. This was not the case with Lakin. While Lakin's tragic death may have been the result of pilot error, it is worth asking whether the cause of death could have been mechanical. In a situation like this, a West Virginia wrongful death attorney could investigate to see what the cause of death truly was. If the death was the result of a mechanical error, the deceased person's loved ones could file a wrongful death suit against the one responsible -- such as the manufacturer or the company responsible for maintenance. Wrongful death suits can be filed against both individuals and companies. They hold appeal for many people because wrongful death suits require less proof than criminal trials -- a "preponderance of the evidence" versus "beyond a reasonable doubt."

In a wrongful death suit, you would charge that the entity -- whether the manufacturer or the maintenance company, or both -- had a duty to produce and/or maintain as safe a plane as was reasonably possible. The manufacturer breached this duty by producing a plane with a design defect or an assembly line defect, or the manufacturing company breached this duty by putting an inexperienced mechanic on the plane, or by not following available safety standards, resulting in failure to correct a mechanical problem. This breach caused your loved one's injury, and the damage was your loved one's death.

If you are successful in your suit, you will receive damages, a money award, for lost wages, emotional distress, medical bills (if any), and loss of companionship. West Virginia also permits punitive damages for extreme cases, but only if it could be shown that the defendant's conduct was intentionally or grossly negligent. We at the Wolfe Law Firm have represented countless families who have filed wrongful death lawsuits. If you lost a loved one through tragic circumstances and suspect that another party was responsible, don't hesitate to find an attorney who will listen to you, get to the truth of what happened, and will work to bring you justice.

Despite the improvements in mining safety, there have still been more than a dozen mining fatalities this year. Just as a settlement has been reached concerning the 2010 Upper Big Branch mine explosion, lawmakers in Washington are hoping that a final investigative report on the tragedy that killed 29 people will renew interest in mine safety legislation.

West Virginia's Senator Jay Rockefeller is a key supporter of the Robert C. Byrd Mine and Workplace Safety and Health Act. The Act would increase penalties for significant safety violations, aim to protect whistleblowers, and shutdown "problem" mines. Senator Rockefeller called the legislation commonsense and said that there is "no excuse" for not supporting it. He and Senator Joe Manchin introduced the bill after a similar one failed the previous year in the House of Representatives. At the time, critics claimed that it was premature since the investigation was not yet complete. Now, with the federal Mine Safety and Health Administration (MSHA) claiming that Massey Energy Company (previous owner of the Upper Big Branch mine) used "systematic, intentional, and aggressive efforts" to conceal problems that were life threatening, the legislation may get a more serious look.

Meanwhile, Alpha Natural Resources, Inc., the company that bought Massey Energy Company, has agreed to pay $200 million to resolve various civil and criminal penalties linked to the Upper Big Branch mine disaster. The global settlement will not only resolve civil fines issued by MSHA, but will also serve as restitution to families of the miners killed. Some of the money is also expected to be used for mine safety research.

Although the settlement would resolve Alpha's corporate criminal liability, many believe that prosecutors would still be able to pursue individual Massey former employees and officers. The families' attorneys also claim that the settlement will have no effect on attempts to mediate wrongful death suits filed for 18 miners.

If your loved one is injured in a mining accident, you have options. If the mining company has workers compensation, you must accept workers compensation payments in place of filing suit against your employer. You will receive fixed payments until you recover from the accident, even if you were partially to blame for it occurring. However, you could also hire a West Virginia personal injury lawyer and file a lawsuit against a third party if it was partially responsible for the accident -- such as the manufacturer of faulty equipment.

Continue reading "As Final Report On Upper Big Branch is Released, Alpha Settles and West Virginia Senators Pursue Tough Mining Legislation" »

The U.S. Bureau of Labor Statistics released its preliminary report on workplace deaths in 2010. It found that 95 people were killed at West Virginia worksites, up from 54 in 2009.

In some ways, the leap sounds more problematic than it is. The 54 figure in 2009 represents the second-lowest amount of accidents on record, while the 95 figure is inflated by the explosion at Upper Big Branch mine, which killed 29 mine workers. Overall, the mining industry saw the highest number of deaths at 37. This was followed by construction industry deaths at 10. Of those killed, 94% were men, and 96% of the men were white, non-Latino males. Fire was the greatest cause of death, though that might also have been distorted by the Upper Big Branch mine accident.

While 95 deaths in 2010 is a high figure, it does not even come close to the number of workplace injuries, including serious injuries that leave a worker partially disabled. No one should have to fear coming to work every day. Yet while certain jobs carry natural dangers -- like coal mining, construction, and police and firefighting -- their dangers may be exacerbated by employers who ignore safety regulations in order to save money. Even a job not normally considered dangerous can be if your employer fails to keep the workplace reasonably safe.

If you are injured in a workplace accident, you have options for relief. If your employer has workers compensation insurance, you can receive fixed monthly payments for your injury until you (hopefully) recover. The bad news is that you have no choice but to accept workers compensation because the law does not allow you to elect a lawsuit instead. The good news is that you can receive payment regardless of fault, whereas you might not receive anything if you sue. In cases where your employer does not have workers compensation insurance, you could hire an experienced West Virginia personal injury lawyer and file a suit against the employer and/or a third-party manufacturer of any faulty equipment you used.

With your employer, you would argue that it had a duty to provide as safe a work environment as reasonably possible. Your employer breached that duty by failing to follow reasonable safety standards. The breach resulted in your injury and you suffered damage in the form of a broken leg, or damaged disc in your spinal column, or some other serious damage. Your argument against the third-party manufacturer would be similar, except that you would argue that the manufacturer created equipment that was either poorly designed or flawed on the assembly line, and the flaw caused your injury and bodily damage. One thing to watch out for: West Virginia has modified comparative negligence, which means that you cannot collect a monetary award unless you are less than 50% at fault.

Continue reading "Labor Statistics Show That 95 People Died in West Virginia Workplace Accidents in 2010" »

A Danbury, Connecticut man was killed after his kit-built, single-engine plane crashed as he was about to take off from a West Virginia airfield. The recently completed Arion Lightening reportedly careened off the runway at the Green Landings airfield and struck a nearby house. While the occupants of the house fortunately escaped harm, Harry Weber, a 70-year old retired pilot, died at the plane's controls.

So far, the reason for the crash is unknown. It is being investigated by the National Transportation Safety Board and the Federal Aviation Administration. Some naturally speculate that there was a flaw in the plane, either in its construction or its design. "[Weber] was an excellent pilot," said Frank Giumarra of Danbury. "I can't believe he did anything stupid."

Weber used to fly commercial jets for Pan Am, logging over 100,000 hours since becoming a pilot 50 years ago. As a member of the Experimental Aircraft Association, he was also an enthusiast about building and restoring his own aircraft. Weber traveled frequently to West Virginia to build the Lightening, a project that took seven months. Weber had completed one flight on the new plane prior to his latest attempt. His neighbors remembered him fondly and with sadness.

We at the Wolfe Law Firm understand that flying a private plane is an exciting hobby for many people. As with any exciting hobby, it carries several dangers. Many people with private planes lack Harry Weber's experience and attempt maneuvers that quickly go out of control. They believe that just because they have a license, they are capable of handling a plane in all conditions. At the same time, Weber's case shows that plane crashes can happen under any circumstances, even when the plane is guided by a seasoned hand. The sad question for the deceased person's family members is whether pilot error caused the crash or a defect in the plane.

If evidence reveals that a defect in the plane caused the crash, the family might consider hiring a West Virginia product liability attorney and filing a product liability lawsuit against the plane's manufacturer. To be successful, the family would need to show that the plane had a manufacturing or design defect. This defect made the plane unreasonably dangerous, which caused the accident that resulted in your loved one's death. It might be difficult to prove a manufacturing defect -- where the one plane has serious flaws coming off of the assembly line -- if the plane crash leaves few remains. However, records from the manufacturer or elsewhere might reveal problems with the plane that went uncorrected.

Continue reading "Connecticut Man Killed in West Virginia After His Plane Crashes Into a House" »

A 51-year old man from Shenandoah Junction, West Virginia was killed after being struck by a CSX freight train. The accident happened early in the morning at a location east of Ridge Road and Potomac Avenue. By 6:15 am, the man was pronounced dead by a Jefferson County medical examiner on the scene. Cause of death: blunt force trauma.

Before the accident, the man was reportedly walking east on the north side of the tracks -- as he did every morning to Duffields station, before catching a train into Maryland for work. This time, although the train blew its horn to alert him of its approach, the man did not step off of the tracks. Law enforcement officials state that they do not view the accident as a suicide. Instead, they viewed it as a tragedy and hastened to emphasize that walking alongside or inside of railroad property is illegal.

We at the Wolfe Law Firm express condolences to the man's loved ones and hope that future tragedies like this can be avoided. Sadly, too many people lose their lives to collisions with trains -- either through suicide or through tragic errors. In some cases, train tracks run through busy metropolitan areas, where car drivers may misread signs and end up stuck between the crossing gates. In other cases, inattention on the part of the train operator may result in a tragedy.

If your loved one was struck and killed by a train, you have the option of hiring a West Virginia wrongful death attorney to get relief. An attorney would know how to obtain the facts to help you understand what went wrong. If the tragedy was a suicide, or entirely due to lack of attention on your loved one's part, you could not expect to collect any monetary relief. However, in the case of an inattentive train operator or a poorly designed intersection, you may be successful if you argued that your loved one's death was the result of negligence. To prove negligence against the train conductor, you would need evidence that the conductor's failure to take the necessary safety precautions resulted in the accident. Sometimes the evidence is circumstantial -- "X, Y, and Z would never have happened if the driver had been paying attention." Sometimes direct evidence can be obtained from sources such as cell phone records showing that the driver was chatting or texting shortly before the tragedy occurred. Witnesses to the event -- either on the train or outside -- can be helpful in establishing what happened.

If the accident was caused by an unsafe crossing area, you might succeed in filing a lawsuit against officials of the municipality. Your chance of success is greatest if there is evidence of other tragedies, or "near misses," at this crossing area, and that it was reported to officials. That would demonstrate that these officials were put on notice that a tragic event would occur if nothing were changed. If these officials continued to not act, without a justifiable reason, you could make the case that they were negligent. If you succeed in your suit, the relief awarded by the jury usually includes money for loss of support and services and medical bills (if necessary). It will never bring your loved one back, but it might help you obtain justice and move on with your life.

One day after a terrible Reno, Nevada air crash, a Martinsburg, West Virginia air show cancelled its second day of events after a stunt pilot was killed in a crash. The pilot was to perform a maneuver with a second pilot as part of a six-plane T-28 Warbird Aerobatic Formation Demonstration Team, which has performed stunts around the country. The two planes were supposed to pass each other laterally, then pull up and perform a roll. The entire routine was supposed to last for 15 minutes, but instead the crash occurred five minutes in. No one on the ground was injured.

National Transportation Safety Board investigators are trying to learn the cause of the crash. As in Nevada, the plane was an antique, a 1958 fixed-wing, single-engine T-28. The identity of the pilot has not been released, though ownership records trace the plane to Jack Mangan, a former Air Force fighter pilot and flight instructor.

We at the Wolfe Law Firm express our sincere condolences to the pilot's family. The only fortunate thing is that the tragedy in Reno, Nevada, where nine people on the ground were killed, was not repeated here. Still, when you experience such a tragedy, you wonder what your options are. If it turns out your loved one was not responsible for the events that led to the crash, and the plane was owned or maintained by a third party, such as a mechanic, you might sue for wrongful death. You would argue that the mechanic owed a duty to your loved one to properly maintain the plane; that the mechanic breached the duty by not maintaining the plane and was therefore negligent; that the breach led to your loved one's injury; and the result was his or her death. If you hire a West Virginia wrongful death attorney and succeed with your suit, you would likely collect a money award for loss of support and services, loss of wages, funeral and possible medical expenses, and more. You might even be able to collect punitive damages if you could prove that the mechanic's actions were intentional or grossly negligent.

The same would hold true for mechanics of cars, boats, or other vehicles. Their work is extremely important and can be the difference between life and death. On the other hand, what if your loved one were someone on the ground, injured or killed by a plane crash? You could still sue the mechanic for negligence or wrongful death if he or she is found to be at fault. You could also sue the pilot (or the pilot's estate) if pilot error contributed to the crash. Frequently, multiple parties are sued in "joint and several" manner, meaning that they might all be at least partially at fault and any one of them can be forced to pay the entire amount of the money award.

A wrongful death situation is always tragic and can cause families terrible pain. A good attorney can ease the pain a little by helping families obtain relief that will get them through this difficult time.

For a change, some welcome news has come from the coal mining industry. Ever since the disaster at the Upper Big Branch mine in West Virginia that killed 29 people, coal mines have been growing safer. That had previously been the case for two decades, but the industry reached a troubling plateau in 2010. Then came the Upper Big Branch mine explosion, the deadliest in 40 years.

Yet so far in 2011, the data has been improving. Measured by hours of inspection time, there has been a 12% drop in the number of serious mining accidents during the first three quarters of the year. This came after the Mine Safety and Health Administration (MSHA) got involved, closing down some of the biggest offenders and shutting some mines temporarily until improvements could be made. Then there are efforts like those of the National Mining Association, which will be launching a program in which mining companies with poor safety records can collaborate with and learn from the companies with strong records. If the effort is successful, the number of accidents will continue to decrease. Of course, there is still work to do. As many as 14 people have died in coal mining accidents this year. Some people have noted that fewer violations does not mean that mining companies are obeying safety regulations. Phil Smith of the United Mine Workers for America noted: "There are still many mines out there which are not following the law and appear not to care to do so."

Coal mining has a long, proud history in West Virginia, as this recent article illustrates. It is definitely not a job for the faint hearted: spending most of the day in dark underground tunnels that can be as narrow as 42 inches. Coal mining companies should be doing everything possible to ensure they don't add to the danger. We at Wolfe Law Firm are pleased to see members of the industry taking safety measures more seriously.

If you or your loved one are injured in a coal mining accident, you might consider hiring a West Virginia personal injury attorney to get relief for medical expenses, lost wages, and pain and suffering. You can sue the employer directly for negligence if it does not carry workers compensation insurance. If your employer does carry workers compensation insurance, you must accept workers compensation payments in place of a lawsuit. Workers compensation provides fixed payments to take the place of your wages until you recover. It is provided when a worker is injured on the job regardless of whether the worker was at fault. You may still be able to sue for negligence if your injury were caused by a third party, such as the manufacturer of faulty equipment.

If your loved one died in a workplace accident, especially a coal mine, you could sue for wrongful death. You would argue that the employer was negligent for failing to follow safety regulations and the employer's violations resulted in your loved one's death. If you succeed, you could get a money award ("damages") just as you could if your loved one were injured. It would cover medical and funeral expenses, loss of earnings, and mental anguish. In West Virginia, you could also get punitive damages, but only if you could prove that the employer's actions were intentionally or grossly negligent.

The widow of a man who died two years ago after being in a West Virginia jail has filed a wrongful death suit. Tina Cline filed suit in Berkeley County Civil Court against individuals and groups that included the Berkeley County Commission, the Sheriff's Deputy, an Eastern Regional Jail nurse, and the West Virginia Regional Jail and Correctional Facility Authority. She accused them of negligence in allowing her husband, Donald Cline, to be admitted to jail without first receiving a medical evaluation from a physician. Had he received one, she believes that he would be alive today.

On July 21, 2009, Donald Cline was arrested on charges of driving under the influence after being involved in a traffic accident. While in custody, Cline was allegedly unable to keep his eyes open, had slurred speech, and repeatedly fell to the ground. The Sheriff's Deputy, Chris Cocchran, claimed that he smelled strongly of alcohol and that a 24-ounce can was found on the floorboard of his truck, with a puddle of beer. Yet the suit alleges that when Cline's blood alcohol level was tested, it was far below the legal limit.

Three hours after his arrest, Cline was transferred to the Eastern Regional Jail, where he was medically screened by a nurse. The next morning, he was found in a fetal position in his cell with no pulse. Cline was pronounced dead at City Hospital in Martinsburg, the cause of death ruled to be intoxication by a combination of drugs. The autopsy revealed traces of methadone, carisoprodol, diazepine, and butalbital in his system.

The Bureau of Justice Statistics reports that roughly 1,000 people died each year in local jails between 2000 and 2007. More than 1,100 died in 2007, with most (566) dying because of illness and 79 dying of drug/alcohol intoxication. While it is easy to condemn people whose actions result in jail time, we should keep in mind that jailers still have a responsibility to keep those in their custody safe. Yet too often, jails and prisons don't provide the level of health care needed to prevent serious illness or death. While Donald Cline may have violated the law, he did not deserve to die for it.

In a wrongful death suit, a West Virginia wrongful death attorney tries to ensure that the plaintiff can collect a money award for loss of support and services, medical expenses, and other types of injury. You might also be able to collect punitive damages if you could show that the defendant's behavior was intentionally or grossly negligent. One issue in the Cline case is whether the jury will be convinced that the jail workers' negligence was mostly to blame for Cline's death. West Virginia operates under a system of "modified comparative negligence": if you are partially to blame for an accident, you can still collect a money award in a lawsuit if your level of fault does not reach 50%. If you are 50% or more responsible for the accident, you are not eligible to collect. It is possible that a jury in the Cline case may decide that Cline's decision to take drugs and drink alcohol makes him equally responsible for his death. An experienced attorney would make sure that the tragic details of the jail's neglect were made known before the jury made its decision. At the very least, the Wolfe Law Firm hopes that this serves as a cautionary tale to jail workers to take their responsibility to those in their custody seriously.

In more bad news from the coal mining industry, another miner lost his life in a West Virginia coal mine. Charles M. Hall, a miner with nearly six years of experience, died from being hit by a falling rock at the Moutaineer II Mine in Logan County, owned by Arch Coal Inc. Hall had been installing roof supports when the accident occurred. He was later pronounced dead at the hospital.

Hall's death marks the thirteenth this year from coal mine accidents, five in West Virginia alone. Last year, Arch Coal Inc. was fined $320,000 for more than 300 federal safety citations in the Mountaineer II mine, although its injury rate was lower than the national average. The federal Mine Safety and Health Administration (MSHA) has kept a record of the coal mining deaths, finding the cause of death to range from machinery accidents to power haulage accidents to falling.

The last major mine safety legislation passed was in 2006, the Mine Improvement and New Emergency Response (MINER) Act. MINER amended the 30-year old Federal Mine Safety and Health Act, requiring prompt notification of accidents, creating steeper civil penalties, and adding regulations for rescue teams and sealing abandoned mines. Though that improved mine safety considerably, it was clear after accidents like the 2010 Upper Big Branch Mine explosion that killed 29 miners that more needed to be done. In January of this year, the MSHA proposed several new mine safety regulations, including stopping mining companies from using appeals of safety regulation citations to avoid tougher sanctions. These new regulations have yet to be enacted, but in the meantime, MSHA has continued to take a firm line against companies that violate safety measures. Recently it fined R&D Mine Coal Company, owner of the Buck Mountain Mine in neighboring Virginia, more than $900,000 for the 2006 death of a coal miner in an explosion.

MSHA regulations have led to a steep decline in the number of mine accidents, but it may be years before we can truly say that unnecessary coal mining deaths have been eliminated. Until then, those who have lost loved ones to coal mine accidents can try to find relief in court. Many families hire a West Virginia wrongful death attorney and institute a wrongful death suit against the employer. The Wolfe Law Firm has years of experience with wrongful death claims and knows how to pursue it under the specific requirements of West Virginia law. One of the most common causes of wrongful death is an accident that occurs during the course of employment.

If your loved one died in a workplace accident, especially a coal mine, you might argue that the employer was negligent for failing to follow safety regulations. The employer's violations resulted in the injury that led to your loved one's death. An experienced attorney would know how to obtain records and expert testimony to provide strong evidence for your case. If you succeed, you could get a money award ("damages") that covers medical and funeral expenses, loss of earnings, and mental anguish. In West Virginia, you could also get punitive damages if you could prove that the employer was intentionally or grossly negligent.

The son of the Chapmanville mayor died in a motorcycle accident on Route 10 in Logan County, West Virginia. Cory Price, a 21-year old firefighter, collided with an oncoming Plymouth Neon that had strayed across the center divide. Price was taken to Saint Mary's Medical Center, where he was later pronounced dead.

The Neon driver Thomas Lee Dillon claimed that he lost control of the car before it crossed the center divide. The cause is not yet known, but the Logan County Sheriff's Department is investigating the accident. Meanwhile, Logan County mourns the loss of a "popular and heralded community servant" who belonged to the Logan Fire Department and the Chapmanville Volunteer Fire Department, and was an EMT with the Logan County Ambulance Authority.

Many people love taking their motorcycles out on winding country roads, but this form of transportation is one of the riskiest in the country. In 2006, the U.S. National Highway Traffic Safety Administration found that per vehicle mile traveled, motorcyclists were 35 times more likely to get into a fatal crash than someone in a passenger car. The State of West Virginia requires motorcycle riders to wear safety helmets and eye protection, and use headlights during the day. Yet even if you operate your motorcycle safely according to the law, your exposure makes you vulnerable to a serious accident. Cory Price did not appear to be responsible for the fatal collision, though there is no evidence of whether he wore a helmet. Several West Virginia counties, such as Harrison, have alarmingly high fatality statistics. Those who don't die may have to live with serious spinal cord or brain injuries for the rest of their lives.

Continue reading "Son of Chapmanville, West Virginia Mayor Dies in a Motorcycle Accident" »

Arbitration has become an increasingly popular way of resolving disputes. Primary reasons for choosing it are that it is supposedly cheaper and faster. However, arbitration has also been used to give a powerful party even more leverage. Employers, auto dealerships, and other entities have slipped arbitration clauses into standard contracts signed by employees and consumers. These clauses prohibit the parties from taking their grievances to court. This is a problem when the weaker party tries to get redress for the other party's negligence or abuse of power. Arbitration claims are heard by an arbitrator who may not be familiar with the law; if the arbitrator makes an error, the losing party cannot appeal; and in arbitration, the awards are often smaller. Those who sought to challenge arbitration clauses (most recently in AT&T Mobility v. Conception) have been unsuccessful because of the Federal Arbitration Act of 1925. The U.S. Supreme Court has held that the FAA supercedes state laws addressing unconscionability in contracts.

But apparently the Federal Arbitration Act does not win in every case. Recently, the West Virginia Supreme Court of Appeals found that an arbitration clause in a nursing home contract was "unconscionable and unenforceable." The court determined that the Federal Arbitration Act did not apply to pre-injury situations, where the personal injury occurred after the contract had been signed. The decision was the end result of three court cases in which the parties claimed that nursing home negligence caused the wrongful death of a loved one. The plaintiffs had signed contracts with arbitration clauses before putting their relatives in the nursing home. These clauses stated that any legal disputes over the health care provided would be referred to arbitration.

The plaintiffs had argued that the West Virginia Nursing Home Act nullified the arbitration clause because it stated that "any written waiver by a nursing home resident of his or her right to commence a lawsuit for injuries sustained in a nursing home shall be null and void as contrary to public policy." The defendants argued that the Nursing Home Act was superceded by the Federal Arbitration Act. In finding that the FAA did not supercede the Nursing Home Act, the court also cited the difference in fee between civil litigation and arbitration. Whereas the fee to file a suit in West Virginia civil court is $145, and $260 for filing a medical professional liability suit, the fee for an arbitration claim is $975 for claims below $10,000 and $8,700 for claims worth between $500,000 and $1 million.

We at the Wolfe Law Firm welcome the outcome of this ruling. It will likely be appealed, but at least for today, there are still situations where a person who has suffered from someone else's negligence won't have to be constrained by an arbitration clause. Cases of wrongful death must be treated with the utmost care. Plaintiffs who lose a loved one due to someone else's behavior want the ones responsible to be held accountable. That means records need to be examined; witnesses need to be gathered; experts need to be found. Arbitration usually places limits on discovery, constraining the ability to gather sensitive facts that could help a plaintiff's case. Only a West Virginia wrongful death attorney working within traditional channels of court can really get the most thorough sense of what happened.

Wrongful death lawsuits are very difficult cases for any attorney to prosecute, as they are often more contentious than many other types of litigation due to the high emotional and monetary stakes involved. As a West Virginia wrongful death attorney, it is important to stay as up to date as possible on changes in the law as they happen, and at the Wolfe Law Firm, we pride ourselves on doing so. Our attorneys recently uncovered an interesting wrongful death decision rendered by the US District Court, District of Maryland, and wanted to share it with our readers.

In the Estate of Anderson v. US, Eric Anderson was a passenger in a vehicle that had stopped on the right shoulder of the Baltimore Washington Parkway and turned on its hazard lights due to limited visibility and inclement weather conditions. After the car was stopped, Anderson exited the vehicle, and was struck and killed by a tractor trailer being operated by an employee of United States Postal Service on its way to a mail processing and distribution center. After his death, his siblings filed a wrongful death and survivorship lawsuit for four million dollars in damages against the government, who then filed a Motion for Summary Judgment to dismiss the action.

Plaintiffs alleged that on the night of the accident, the driver remained in the right lane of the road and did not reduce his speed prior to the impact with Mr. Anderson. In contrast, the driver himself testified that he saw Plaintiff's vehicle on the right shoulder, reduced his speed, and "conducted an avoidance maneuver" by steering into the left lane. The driver hit his brakes upon seeing Mr. Anderson in the roadway, but was unable to avoid him, as he claimed to be traveling at fifty miles per hour at the time. Plaintiffs allege that the big rig was traveling in excess of the posted 55 mile per hour speed limit. Both parties agreed that Mr. Anderson was killed instantly, but Plaintiffs assert that the victim suffered pre-impact trauma before he was struck by the Postal Service truck. Defendant's dispute this claim, citing witness testimony that Mr. Anderson had been drinking heavily that night and a toxicology report showing he had a blood-alcohol concentration of 0.21% (more than twice the legal limit).

In evaluating Defendant's Motion for Summary Judgment, the Court first addressed whether the government was immune from the tort claims, and determined that because the suit concerned a government employee acting in the scope of his employment, the action was allowed under the waiver of sovereign immunity clause contained within the Federal Tort Claims Act. Next, the Court evaluated whether Plaintiffs could bring a wrongful death claim under Maryland law, as the statute allows recovery for secondary beneficiaries who are related to the deceased by blood or marriage and are substantially dependent upon them. Because there were no primary beneficiaries (spouse, parent, or child), and Plaintiffs were "in no way dependent" upon Mr. Anderson, the Court granted Defendant's motion for summary judgment on the wrongful death claim.

Next, the court addressed the claims for the survival action, which are limited to compensation for the pain and suffering of the deceased and funeral expenses. Next, the court stated that damages for pre-impact fright are available where there is "great fear and apprehension of imminent death before the fatal physical impact," but in order for plaintiffs to recover, those damages must be objectively determinable. In this case, the court found that Plaintiffs could only speculate that Mr. Anderson experienced such fears before impact, which did not meet the objectivity standard - therefore the court granted summary judgment as to damages for pre-impact fright, but allowed the claim for funeral expenses to proceed.

According to a report by WSAZ, a thirty-seven year old man was killed in an accident that occurred at the Guyan Surface Mine -- that is operated by Apogee Coal, a Patriot Coal subsidiary -- in Logan County, West Virginia this past week. While the man was working on heavy equipment around the mine, he was struck by a piece of machinery at some point. The exact nature of his injuries was not disclosed, but the accident was severe enough to cause wounds that led to his death. Emergency crews from the Buffalo Creek Fire Department and Logan County EMS were called and responded to the accident, but they were unable to save the miner's life. Federal mining inspectors are conducting an investigation into the cause of the accident, and their review of the circumstances that caused the man's death is ongoing. This was the second coal-mining related fatality in the state of West Virginia in 2011.

Coal mining has always been a boon to West Virginia's economy, but WSAZ's story is an all-too-familiar one for many West Virginia families. Mining has become a much safer endeavor than it once was, because safety regulations, equipment, and safety training methods have improved, but such precautions cannot account for every hazard on the job site. Unfortunately, human error will always persist and machine malfunctions or defective equipment failures can neither be predicted nor prevented. That is why, if you or a loved one has been injured or killed in a workplace accident, it is imperative that you speak with a West Virginia wrongful death attorney as soon as possible to determine if a valid legal claim exists. The longer you wait to speak with an attorney, the more difficult it will be for your attorney to gather the evidence needed to accurately evaluate your case and construct the strongest legal arguments possible.

In this case, a coworker may have caused the fatal accident due to his or her negligence, or a piece of machinery may have had a manufacturing defect that caused the man's death. In any event, the decedent's family may be able to bring a lawsuit against any other workers who had a hand in causing the accident, the company who owns and operates the mining operation, and possibly even the manufacturer of the equipment that ended the man's life. Apportioning fault in wrongful death lawsuits is a complicated and difficult task. However, an experienced attorney can help sift through the evidence and determine how best to proceed so that you can be compensated for the loss of your loved one.

When the unthinkable happens and a loved one passes away, the emotional and financial toll on those who survive the decedent are huge. By retaining the services of a trained legal representative, you give yourself a way to help alleviate those financial stresses that the loss of that person's income creates. Every situation is different, but an attorney can evaluate the circumstances that contributed to that person's death and determine if you have a valid legal claim. Should such a claim exist, your attorney can help you recover damages and reduce your financial hardship.

The Martinsburg Journal reports that a woman died last week in a motorcycle accident on Winchester Ave. in Darkesville, West Virginia. According to the West Virginia State Police, the woman was a passenger on the bike and she died when the motorcycle ran off the road and hit a utility pole. The driver of the bike fled the scene after the collision, but was discovered by authorities some time later and was airlifted to the hospital for treatment. State troopers responded to the accident after being notified, but were unable to get there before the woman lost her life. Officers continue to investigate the circumstances and cause of the accident.

The Wolfe Law Firm would like to express our condolences to the family of the victim of this terrible accident. Unfortunately, as West Virginia motorcycle accident attorneys, we know just how dangerous motorcycles can be, and fatalities are not uncommon when such wrecks occur. This accident illustrates not only the dangers of being a passenger on a bike, but also the extreme consequences that can result when a bike operator does not exercise an appropriate standard of care. Of course, the authorities have much investigating to do to determine the cause of the accident, and the driver may have run off the road avoiding a small animal or his bike may have malfunctioned in some way. In cases such as these, it is important to thoroughly inspect what happened to determine who or what was responsible for the accident.

Continue reading "Motorcycle Accident in Darkesville, West Virginia Costs Female Passenger Her Life, State Trooper Investigation Continues to Find the Accident's Cause" »