WV Chamber’s CourtWatch gives good grade to WV Supreme Court - Beckley, Bluefield & Lewisburg News, Weather, Sports

WV Chamber's CourtWatch gives good grade to WV Supreme Court

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The West Virginia Supreme Court received high marks from the West Virginia Chamber of Commerce's CourtWatch panel, which analyzes whether the court's decisions were good for Mountain State businesses or not.

For its fall 2012 term, the state's highest court received five "really good" grades for its decisions, two "really bad" ratings and two neutral. For the spring 2013 term, the panel said 16 decisions were good for business, five were bad and three were neutral.

The panel delivered the grades during the West Virginia Chamber of Commerce Annual Meeting and Business Summit, taking place Aug. 28-30 at The Greenbrier.

One of the decisions the panel deemed bad for business was a case that determined the common law powers of the attorney general.

This case asked whether former Attorney General Darrell McGraw had the power to hire special outside counsel under the West Virginia Consumer Credit and Protection Act and if he could appoint such private counsel to prosecute government civil penalty actions on a contingent fee basis.

In their June 4 opinion, justices ruled the attorney general did have the authority to appoint special assistant attorneys general and had the common law authority to provide compensation to be paid to these assistant attorneys general through a court-approved award of attorneys fees taken from the losing side.

Henry Jernigan, a partner in Dinsmore & Shohl's Charleston office and panel moderator, called the decision a surprise.

The panel's concern stemmed from what members called uncertainty in the decision. Members said the decision did not define the attorney general's broad common law powers, saying it would be addressed on a "case by case basis." Jernigan said the fee shifting, or loser-pays system, was "equally disturbing."

A case deemed neutral to business is REM Community Options v. Cane. A memorandum decision was issued in this case, where the state's highest court upheld an award of punitive damages to the plaintiff.

In this case, Laura Cain, a therapeutic consultant with REM, got into a car wreck while working.

She later filed a workers compensation claim but continued to work until she said her physical limitations were enough to prevent her from working.

After hearing that she could return to work, REM sent her a form letter, saying she must return to work within six days or respond by Dec. 29, 2008, according to the CourtWatch book.

However, Cain said she didn't receive the letter until Jan. 6 and it was too late.

The jury found in favor of Cain, awarding her $76,000 in lost wages, $100,000 in emotional distress damages and $450,000 in punitive damages.

REM appealed the punitive damage award, saying there wasn't enough evidence to merit such an award.

The panel said the appeal did not return "any novel issue of employment law. It did not make law— good or bad," but was limited to its facts.

A case the panel said was good for business was one that defined what "surface" means.

Justices overturned a previous syllabus point under Ramage v. South Penn Oil Co., which determined the word "surface" as being ambiguous when used in conveyance of a deed and thus subject to modern interpretation, according to the opinion.  

The June 13 opinion, delivered by Justice Menis Ketchum, defined surface in this context of conveyance as "the exposed area of land, improvements on the land, and any part of the underground actually used by a surface owner as an adjunct to surface use (for example, medium for the roots of growing plants, groundwater, water wells, roads, basements or construction footings.)"

Stuart McMillan, an attorney with Bowles Rice McDavid Graff & Love, said this is a very important decision for the business community.

"Now, when you have a deed that says surface only, you only get the surface. You don't get oil and gas," McMillan said. "That's a big deal. It's very good for business." 

Overall, the panel determined the court's two most recent terms to be "generally positive."

"Where the problems were was where it created uncertainty where none had existed before," Jernigan said.