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Opinions

The Southern District of West Virginia offers a database of opinions starting in the year 2001, listed by year and judge. For a more detailed search, enter the keyword or case number in the search to the right or sort using the drop-downs below.

2:02-cv-00078

Memorandum Opinion and Order

This civil action is a so-called "first party bad faith claim"1 that Defendant and its counsel engaged in unfair trade practices in connection with Plaintiff's claim for underinsured motorist insurance coverage benefits following a 1999 fatal accident. For the purpose of this Memorandum Opinion and Order, the court assumes to be true the allegations that Plaintiff's son, Charles Mordesovitch, a pedestrian, was killed when he was struck by a vehicle operated by a drunk driver who had become intoxicated at a bar. Plaintiff, represented by Christopher Heavens, was insured by Defendant. In the underlying action, Plaintiff sued the driver, the bar, and Defendant (which was represented by the law firm of Kesner, Kesner & Bramble) . Plaintiff and Defendant executed a settlement agreement in which Defendant paid the $300,000 limits of its underinsured motorist coverage to Plaintiff, and Plaintiff signed a "Release, Settlement and Subrogation Agreement." The Agreement provided that "Westfield shall be subrogated to the extent of its payment of underinsurance and medical payments to [Plaintiff]." Plaintiff continued his action against the bar and ultimately recovered the full limits of the liability insurance coverage available to the bar. Plaintiff established that the estate had not been made whole by the settlement with the bar's insurer, and Defendant ultimately waived its subrogation claim. Plaintiff then filed the instant action, alleging that Defendant, acting through its adjuster Eric Sikorski and the Kesner law firm, engaged in unfair trade practices by improperly seeking subrogation from the proceeds of the settlement with the bar. Plaintiff contends "that Westfield illegally sought subrogation from the plaintiff and his family, and then attempted in bad faith to delay the plaintiff's settlement with another tortfeasor as a way of pressuring the plaintiff to pay money to Westfield." (Plaintiff's Response, # 66, at 2.)

Author:
Mary E. Stanley
5:02-cv-01151

Memorandum Opinion and Order

Pending is Plaintiff’s motion to remand this civil action, removed from the Circuit Court of Greenbrier County, West Virginia, based on diversity jurisdiction.  The Court GRANTS the motion.

Author:
Charles H. Haden II
2:02-cv-00872

Memorandum Opinion and Order

Pending before the court is a motion by Appellee H. Lynden Graham Jr., trustee of the bankruptcy estate of Shawnee Hills, Inc., to dismiss the appeal filed by Appellant Huntington National Bank.  Graham argues that the appeal should be dismissed because it is both legally and equitably moot.  After a hearing and full briefing from the parties, the court GRANTS Graham’s motion to dismiss [Docket 5] and DISMISSES the appeal as equitably moot.

Author:
Joseph R. Goodwin
2:02-cv-00800

Judgement Order

This is an action alleging unauthorized use of communications in violation of 47 U.S.C. § 605. Plaintiff, Entertainment by J&J, Inc., alleges that the Defendants, Gridiron, Inc., a West Virginia corporation d/b/a/ Gridiron Sports Bar, Tina Runyon, and Donny Kyle, unlawfully and willfully intercepted and exhibited the closed-circuit telecast of the September 18, 1999, championship boxing match between Oscar De La Hoya and Felix Trinidad for commercial gain. Plaintiff filed a motion for entry of default as to Defendants and an entry of default was entered by the Clerk on March 7, 2001. On April 11, 2001, the Court ordered a hearing set for Wednesday, May 2, 2001 for a determination of Plaintiff's request for the maximum amount in statutory damages totaling $170,000 pursuant to 47 U.S.C. §§ 553 and 605. On May 2, 2001, at the aforesaid damages hearing, the Court was informed that Defendants had not been served with notice of hearing. Therefore, the Court ordered that the hearing be continued until Defendants could be served with notice of the damages hearing. The Court rescheduled the damages hearing for June 19, 2001. For administrative reasons, the Court again rescheduled the damages hearing, moving the date of said hearing from June 19, 2001 to June 21, 2001.

Author:
Elizabeth V. Hallanan
2:99-cv-01138

Memorandum Opinion and Order

Currently pending before the Court is Plaintiff and Third Party Defendants' Motion for Summary Judgment_ and Plaintiff and Third Party Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment. In response, Defendant/fhird Party Plaintiff filed its Response to Plaintiff's Motion for Summary Judgment and Plaintiff and Third Party Defendants filed Plaintiff and Third Party Defendants' Reply Memorandum of Law in Support of Their Motion for Summary Judgment. Also currently pending before the Court is Defendant/Third Party Plaintiff's Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment. In response, Plaintiff and Third Party Defendants filed Plaintiff and Third Party Defendants' Memorandum of Law in Opposition to West Virginia's Motion for Summary Judgment and Defendant/Third Party Plaintiff filed its Reply Memorandum in Support of West Virginia's Motion for Summary Judgment. Having reviewed said motions, all memoranda both in support and opposition, as well as all relevant case and statutory law, the Court hereby GRANTS Plaintiff and Third Party Defendants' Motion for Summary Judgment, DENIES Defendant/Third Party Plaintiff's Motion for Summary Judgment, and DISMISSES WITH PREJUDICE the Third Party Complaint.

Author:
Elizabeth V. Hallanan
2:01-cv-01014

Memorandum Opinion and Judgment Order

Currently pending before the Court is Plaintiff's Motion to Remand and Plaintiff's Memorandum of Law in Support of Motion to Remand. In response, Defendant filed a Memorandum of Law in Opposition to Plaintiff's Motion to Remand. Also currently pending before the Court is Defendant's, The Arthur B. Hodges Center, Inc.'s, Motion to Dismiss and Memorandum in Support of Defendant's, The Arthur B. Hodges Center, Inc.'s, Motion to Dismiss. Plaintiff filed Plaintiff's Response to Defendant's Motion to Dismiss and Defendant filed its Reply to Plaintiff's Response to Defendant's Motion to Dismiss. Having reviewed both motions, all memoranda of law both in support and opposition, as well as all relevant case and statutory law, the Court is now prepared to issue its decision.

Author:
Elizabeth V. Hallanan
2:02-cv-01004

Memorandum Opinion and Order

Pending before the court is the plaintiff’s motion to remand, in which the plaintiff contends that the defendants’ notice of removal to this court was premature. [Docket 6].   The defendants argue that their notice of removal was timely, as it was filed in accordance with the language of 28 U.S.C. § 1446(b).  Section 1446(b) allows removal within thirty days of a defendant’s receipt of a document “from which it may first be ascertained that the case . . . has become removable.”  28 U.S.C. § 1446(b) (2002).   For the reasons discussed herein, the court FINDS that a case may not be removed pursuant to the second paragraph of § 1446(b) until a pleading giving rise to federal jurisdiction has been filed.  As the defendants’ notice of removal was filed upon the entry of a state court order granting the plaintiff leave to amend her complaint to assert federal claims, rather than upon the filing of the amended complaint itself, the defendants’ removal was premature. Accordingly, the court GRANTS the plaintiff’s motion to remand.

Author:
Joseph R. Goodwin
3:02-cv-00982

Memorandum Opinion and Order

Pending is defendant Service Wire Company’s motion to transfer venue [Docket 7].  For the following reasons, the court DENIES the defendant’s motion.

Author:
Joseph R. Goodwin
2:02-cv-00958

Order

Pending is plaintiffs’ motion to dismiss the counterclaims of the defendants.  For the following reasons, the court GRANTS the plaintiffs’ motion and DISMISSES the defendants’ counterclaims.

Author:
Joseph R. Goodwin
2:02-cv-00493

Temporary Restraining Order

This matter comes before the court on the motion for temporary restraining order, filed along with the complaint on May 29, 2002, by plaintiff Joseph Tyler Deveney against defendants Kanawha County Board of Education and Dr. Tom Williams (collectively hereinafter “the Board”).  The matter was set for hearing on May 30, 2002, at which time counsel for plaintiff, Alex J. Luchenister and Tom Gillooly, and counsel for defendant, James W. Withrow, appeared.  Upon consideration of the affidavit of plaintiff, exhibits and testimony offered at the hearing of this matter and the stipulation of facts as presented by counsel, the court finds as follows.

Author:
John T. Copenhaver, Jr.

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