truck

Automobile insurance policies generally cover a wide array of accidents and incidents that may occur while an individual is in a vehicle.  They can cover injuries or damages that result to the driver and passenger of the vehicle that is insured, or the injuries of another individual or driver caused by the malfunction of the vehicle or the negligence of the driver who is covered.  What is less well known is that, in some instances, auto insurance policies even provide coverage for the defense of claims arising out of an automobile accident.  Plaintiffs asserting claims against defendants arising from automobile accidents must be careful to consider whether insurance companies may play a role in finding counsel for a defendant, or if reimbursement for litigation expenses from insurance could have an impact on a defendant’s willingness to settle.

One recent case to look at the scope of litigation defense insurance is Allstate Insurance v. Brady.  In this case, Allstate Insurance sought a declaratory judgment from the Northern District of West Virginia that it was not required to pay for the defense of defendants who killed another individual while using an Allstate insured vehicle.  In that case, Jody Hunt shot and killed two individuals, Jody Taylor and Douglas Brady, after a dispute.  In order to commit the crime, she drove to Brady’s place of business in a truck that was insured by Allstate. She then drove to Taylor’s home, where she shot him while she was sitting in the truck.  The personal representative of Brady and Taylor’s estates later filed wrongful death actions against Hunt, and Allstate sought to determine whether it was required to defend Hunt against these wrongful death claims.

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crashIn many instances, when a plaintiff first files a lawsuit for an injury that he or she has experienced, it may not be clear who the defendant is.  For instance, maybe the plaintiff tripped on a hole left in a sidewalk but isn’t sure who created the hole. Or an individual may be hit in an accident involving a delivery truck, and, while it is clear what the company that owns the truck is, it is not clear who the driver of the truck was.  In these instances, courts will allow plaintiffs to initially plead a case against a “John Doe.”  It is presumed that once discovery begins, and the plaintiff is able to conduct depositions and request documents, the identity of John Doe will become apparent, and the pleadings can be amended to reflect the correct individual. In most circumstances, this is what happens. However, on the rare occasions that John Doe cannot be identified, what happens to the plaintiff’s complaint? A recent case out of the Northern District of West Virginia addresses this question.

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pregnancyWhen a family member or loved one is gravely injured or killed as a result of the negligence of another party, it is natural to want to seek out as many avenues as possible for relief or justice against the party at fault. In most situations, plaintiffs are precluded from bringing multiple rounds of claims against the same defendant.  Thus, for instance, a plaintiff cannot bring a lawsuit for negligence against a defendant and then, after losing, attempt to bring a different negligence claim.  Courts generally hold that plaintiffs are entitled to their day in court, but not to repeatedly drag a defendant into court if they lose.  However, this does not mean that it is impossible to bring multiple personal injury claims when a plaintiff feels that one claim does not adequately cover the harm that they have suffered. A recent case out of the neighboring state of Maryland looks at situations in which both personal injury and wrongful death claims can be brought.

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toxicLegal challenges continue to plague DuPont Chemical in their quest to defend themselves against allegations that they have polluted rivers in Ohio and West Virginia through the release of Teflon chemicals into these waterways. C-8, a chemical substance used to make Teflon cookware non-sticky, was found to be toxic to humans as early as 1961, when studies began to report that C-8 could cause birth defects in unborn children. A continued study of C-8 revealed that it was also responsible for causing various cancers in humans. DuPont continued to use the substance for almost half a century after these studies, failing to disclose to regulators the possible effects of C-8. In addition, the company allowed C-8 to be dumped from its plants into water sources throughout Ohio and West Virginia, ultimately leading to over 3,500 health-related lawsuits.  After years of discovery and ongoing litigation, several of these cases have made their way to juries and verdicts.

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car accident

One of the first steps that any plaintiff must take when bringing a personal injury claim is to determine where the lawsuit should be filed.  Many personal injury claims arise between two individuals, such as two drivers of vehicles that collide.  In these situations, it is relatively easy to determine the correct court, since both individuals will likely live in the same state.  However, sometimes personal injury and product liability claims involve large corporations. While these corporations may have products that reach the state where the injury occurs, they may not have offices or factories in that state, or they may be incorporated in a different state.  In these circumstances, plaintiffs must consider, with the help of their attorney, more complicated personal jurisdiction requirements, which determine where a lawsuit can properly be brought.  A recent case before the Supreme Court of Appeals for West Virginia took a look at a victim’s efforts to bring a lawsuit against Ford Motor Company in the state.

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knee injuryWhen an individual sues for injuries and damages resulting from another party’s negligence, he or she is only entitled to receive compensation for harms actually and proximately caused by the other party’s actions.  In some negligence cases, this may be very straightforward.  For instance, if a doctor performs the wrong surgery, it is usually clear which harms resulted from this error.  However, in other instances, an individual may have preexisting injuries or conditions that existed well before the accident, in addition to new injuries resulting from the accident. It can be difficult to separate the two.  In a recent case before the Supreme Court of West Virginia, the court took a look at a case involving preexisting injuries and new conditions.

In Harnish v. Corra, Mr. Corra was injured in an accident with Mr. Harnish. Mr. Corra claimed neck and back injuries, as well as a knee injury for which he later needed surgery. Mr. Harnish admitted liability for the accident and for the neck and back injuries, but he denied that the accident had caused the knee injury. Instead, according to Mr. Harnish, Mr. Corra’s knee pain and surgery were the result of preexisting knee conditions.  At trial, Mr. Corra presented evidence from a medical expert that while Mr. Corra had chondromalacia, a knee condition, prior to the accident, he had never before had pain, so the pain he experienced and the surgery he required resulted from the accident.

Conversely, Mr. Harnish presented evidence from a medical expert that Mr. Corra’s knee pain was the result of preexisting conditions and normal wear and tear, rather than the accident. However, he acknowledged that these preexisting conditions were aggravated by the accident.

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fenceWhen an individual or loved one is injured or killed as a result of another’s error or failure, it can be difficult not to want to place blame on the person or entity that is believed to have caused the harm.  It is only human nature that we would want to hold another accountable for the harm that we have suffered and to seek retribution or revenge for the loss that was experienced.  When dealing with claims of negligence, however, it is not enough that the accident or shortcomings of another party led to an injury.  The law requires that a plaintiff also show that the defendant had a duty to prevent the circumstances that led to the injury and that the individual knowingly failed to uphold such a duty.  Without this element, a negligence claim cannot succeed.

In Wheeling Park Commission v. Dattoli, the requirements of duty and knowledge were at the heart of the West Virginia Supreme Court of Appeals’ determination that a park agency should not be held liable for injuries that occurred to a member of the public.  In the case, Joseph Dattoli was injured while visiting a park maintained by the Wheeling Park Commission.  Mr. Dattoli was leaning on a split rail fence when the fence collapsed. He suffered a rotator cuff injury that led to his being out of work for over six months. Mr. Dattoli brought a negligence claim against the Commission.

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elderlyNursing home negligence is an all too frequent topic in the news these days. As the population of the United States grows increasingly older, and young adults find themselves trapped between raising children of their own and taking care of their elderly parents, older individuals are more and more likely to spend time in a nursing home or assisted living facility. While many of these service providers have stellar reputations, quality care, and a genuine consideration for their residents, recent stories have highlighted the darker side of nursing homes.  In some cases, nursing homes prey on the vulnerable elderly members of society, subjecting them to abuse, neglect, and even death.

A recent case before the West Virginia Supreme Court deals with the tragic death of Robert Thompson, an elderly man suffering from Alzheimer’s disease who resided at Nicholas County Nursing & Rehabilitation, which is owned by CMO Management, LLC (“CMO”). Mr. Thompson died in July 2011 from injuries resulting from prolonged abuse and neglect, including hip fractures, malnutrition, and serious pain. In 2013, Wanda Williams filed suit on behalf of Mr. Thompson for negligence and wrongful death. She sought damages not only for what happened to Mr. Thompson but also for systemic problems with the nursing facility during the course of his time there from 2009 to 2011.

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opioidsNews media across the country have been chronicling the consistent rise in opioid use and addiction throughout the United States over the last few years. Whether due to health issues, economic struggles, or general malaise among the public, the use and abuse of opioids has risen to the level of a national health crisis.  Opioids are prescription drugs, requiring that they be prescribed by a doctor and dispensed by a pharmacist.  Thus, as addiction levels have risen, criticism has increasingly turned to the possible contributions of physicians and pharmacists to this growing problem, as well as their liability for the relative ease of access to and misuse of prescription medications.

In response to concerns about the way health care professionals may be negligently contributing to an opioid epidemic, West Virginia Attorney General Patrick Morrisey recently unveiled new draft best practices for physicians and pharmacists who prescribe and dispense opioid medications.  Thus far, the best practices have been met largely with support by the medical community, since they seek to standardize the correct ways for medical professionals to use opioids within their practice, and lessen possibilities of mistakes or misuse within the State.

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operation bladeEvery day, thousands of Americans place their lives and their trust in the hands of the medical professionals who advise them, treat them, and operate on them. We take for granted that doctors and nurses are trained professionals with years of schooling and experience to guide their decision-making and ensure the health and safety of their patients. However, a recent study by researchers at Johns Hopkins University suggests that our optimistic faith in the medical profession may be misleading us, and the rate of medical errors in West Virginia and throughout the country is much higher than many of us have previously believed.

In a study released on May 3 in the BMJ (British Medical Journal), researchers argue that a careful look at the data available shows that medical errors are currently the third-ranking cause of death in the United States.  These include not only medical errors that occur during surgery or other high-risk treatments, but also medical misdiagnoses, erroneous prescriptions, and faulty treatments. In total, the researchers calculate that 250,000 people die from medical errors every year.

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