Monday, November 25, 2002

Final arguments for grant lawsuit are set for Today
Dominion Post
"Final oral arguments are set for Monday in a case testing the constitutionality of the state's Economic Development Grant Committee." The opponents of the Wheeling Victorian Mall project will argue their case before the Circuit Court of Kanawha County today. The citizens group opposes the methods used by the legislature to dole out $200 million in economic development grants.
W.Va. worst at getting workers back on job
Dominion Post
The AP reports that "West Virginia has the nation's worst record at getting injured workers back on the job."

Thursday, November 21, 2002

EPA seeks comment on new compliance Web site
Charleston Gazette
The EPA has launched its new web site, dubbed "ECHO"-- Enforcement and Compliance History Online ( On the site, the public can search enforcement and compliance data by type of pollution, zip code, or by city and state. The site provides basic information about when facilities were inspected and whether they were cited. A 60-day comment period will let users review and comment on ECHO’s content, design and data accuracy.
Students can't find U.S. on map
American youths get lost on geography quiz survey

Charleston Gazette
"WASHINGTON (AP) -- One in 10 young Americans could not locate his own country on a blank map of the world, a survey of geographic literacy shows. Only 13 percent could find Iraq."

This is just sad. How can we call ourselves "the leaders of the free world" when we can't even locate our enemies on a map?
McDonalds' Attorneys Move to Dismiss Class Action
The litigants appeared in court yesterday in the new class action lawsuit filed against McDonalds. According to this AP report, the putative class memebrs allege that McDonald's food has created a national epidmeic of obese children.

The report quotes the Plaintiff's attorney Samuel Hirsch as arguing that "[i]t's a serious lawsuit with serious issues." You know you are in trouble when you have to make a statement like that.

Taking a page out of the tobacco plaintiffs' playbook, Hirsch claims the restaurant chain "targeted children" by marketing "cheap toys" to package with Happy Meals and other menu items.

If targeting children with junk food advertising leads to civil liability for customers' obesity, diabetes and high blood pressure, watch out Willie Wonka! You're bound to be third-partied into this one.
W.Va. Birth and Death Records to be Computerized
In the "I thought they already were" department, the AP reports that, "Birth and death certificates and other vital statistics about West Virginia's population will be computerized under a proposal advanced by the Department of Health and Human Resources." It also notes, unsurprisingly, that "West Virginia is one of the last states to keep birth, death, marriage and divorce records on paper." [Dominion Post]

Monday, November 18, 2002

Picture Pages: Web sites for people who hate to read
Weblogs without all the words. Check out some of the links to the photo logs in this article. They're really terriffic.
Ruling: Cybercops need a hack warrant
ZDNet News
"A federal judge has ruled that law enforcement officials went too far when they tried to use evidence gathered by a known hacker to convict someone of possessing child pornography."
Harrison bar association calls for prosecutor's resignation
Charleston Daily Mail
The Harrison County Bar Association has called for Prosecutor John Scott to resign, saying his conduct has undermined public trust in the prosecutor's office.
Anti-porn laws difficult to pass
State senator frustrated over regulation

Dominon Post
Frustrated by the increasing number of nude dancing establishments, Roman Prezioso discusses the difficulties of passing anti-porn legislation that will withstand federal court challenges.

Related: More counties look to regulate sexually oriented businesses [Charleston Daily Mail].

Thursday, November 14, 2002

Court reverses itself in insurance case
Charleston Daily Mail
A decision not to allow an attorney representing the state's business community to present oral argument in an an insurance case with broad implications for consumers across West Virginia was reversed yesterday.

Oral argument is slated for 10:00 a.m. today in Laura A. Findley, et al. v. State Farm Mutual Automobile Insurance Co. (No. 30842). The appeal arises from a class action instituted against automobile insurers, and involves the retroactivity of certain amendments to West Virginia's Uninsured Motorist Law that followed the Court's 2000 decision in Mitchell v. Broadnax. Nationwide Mutual Insurance Company has been given leave to intervene and participate in oral argument. Also participating in oral argument will be a representative of several business and insurance industry associations who filed a joint brief amici curiae.

Click here to learn about how you can listen to a free webcast of the oral argument. The argument begins at 10:00 a.m., but if you want to make sure you have the proper plug-ins loaded, you need to check in beforehand and set up.

Wednesday, November 13, 2002

WVU College of Law to Get Competition?
The University of Charleston, a small private school in our state's capital, is considering starting a law school of its own. [Dominion Post]
Footnote Gets Lawyer Suspended
"A sharply worded footnote in a legal brief has cost an Indiana attorney a one-month suspension from the practice of law."
The footnote stated that a previous Court of Appeals opinion was "so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual's opponent] and then said whatever was necessary to reach that conclusion."
Indiana Professional Conduct Rule 8.2(a) states that a "lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge."
"In their opinion, the supreme court majority did not address the fact/opinion distinction or the degree to which the lower court's opinion may in fact have been results-driven and claimed that [the attorney] had adduced no authority in support of his First Amendment argument."
Supremes Will Hear Library Internet Filtering Case
The U.S. Supreme Court said Tuesday it will decide if the government can restrict Internet surfing at public libraries, the third case pitting free speech concerns against efforts to shield children from online pornography to reach the justices. []

Thursday, November 07, 2002

Appeals court moves up date to hear case
Dominion Post
CHARLESTON (AP) -- The appeal of U.S. District Judge Charles H. Haden II's ruling restricting mountaintop removal valley fills will be heard earlier than expected.

The 4th U.S. Circuit Court of Appeals will hear arguments on Dec. 4, a court official said Tuesday. The hearing previously had been scheduled for early January.
Who Let the Blogs Out? features three new articles about law-related weblogs like the one you are reading (commonly referred to as "blawgs"): How I Learned to Love the Blog, A Discreet Bullhorn, and To Blog or Not....

Wednesday, November 06, 2002

State Supreme Court Affirms Dismissal of Age Discrimination Case

As a lawyer practicing employment law in West Virginia, I am always interested to see what makes the state supreme court affirm the dismissal of an employment case on summary judgment. The Court does not agree to hear many employment cases for the purpose of affirming summary judgment dismissals, so published opinions in this area are rare.

The recent case of Waddell v. John Q. Hammons Hotel, Inc., No. 30365 (W.Va. Supr. Ct. of App. Nov. 4, 2002) (per curiam) does provide practitioners with some useful guidance, however. In that case, a 48 year-old Executive Housekeeper at a Charleston Hotel sued her employer for age discrimination. She alleged that her new under-40 supervisor began to take away various duties, issued erroneous disciplinary write-ups, repeatedly verbally berated and harassed her in the presence of her coworkers, and mentioned to a co-worker in casual conversation that Plaintiff was a "nice old lady." Eventually, the Plaintiff quit to take a better job offer.

Her discrimination claim was dismissed on summary judgment, and the Supreme Court of Appeals affirmed, finding that she did not establish two of the three elements of her prima facie case: (1) that her employer made an adverse decision concerning her, and (2) that but for her protected status, the adverse decision would not have been made.

In finding no adverse employment action, the Court found the following facts noteworthy:
- Plaintiff retained her title of Executive Housekeeper
- she continued to work the same hours
- she maintained the same general terms and conditions of employment
- she received at least two pay raises after the new supervisor began overseeing the housekeeping department,
- and although she eventually resigned, she never asserted that her resignation was based upon age discrimination.

With regard to the causation element, the Court noted:
- the "nice old lady" comment was not made in connection with any employment decision, and
- the Plaintiff admitted during her own deposition (a) that she had no facts to support her claim that the employer discriminated against her because of her age, and (b) that she did not believe that she was “written up” because of her age.

On the "adverse employment action" issue, this case would seem to indicate that the court is aligned with federal precedent holding that not every employment decision that displeases the employee constitutes an ‘adverse employment action’ for the purposes of discrimination laws. See, e.g., Munday v. Waste Management of N. Am., 126 F.3d 239, 243 (4th Cir. 1997) (yelling at plaintiff by representative of defendant at public meeting, directing others to ignore and spy on the plaintiff, and refusing to communicate with the plaintiff concerning employment-related complaints did not rise to the level of actionable adverse employment action); Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001) (hyper-scrutiny of sick leave, denying use of state vehicle, negative evaluations, refusal of permission to attend seminars, badgering the plaintiff about work, and overall criticism did not amount to actionable adverse employment action.)

Friday, November 01, 2002

Discord and Dissatisfaction
Whenever contracts professors reach the topic of "accord and satisfaction" in the first year of law school, they inevitably discuss the effect of the check marked "payment in full." Cash that check, and you've waived your right to sue for more, right? Well, maybe not, if you live in West Virginia. West Virginia apparently has an "illiterate West Virginian" exception to the rule.

In Richards v. Kees, No. 30467 (Oct. 31, 2002), the appellant, Mr. Richards, was negotiating a settlement of an auto accident claim with Allstate. The man had suffered some property damage and minor personal injuries, including some headaches and a nosebleed for which he sought treatment a week after the accident. The man reached an agreement with the adjustor for the property damage claim, and the adjustor informed him that a $200 check would be forthcoming in addition to the separate payment for the property damage claim in the amount of $1600.

As promised, Allstate issued him the $200 check, complete with the following notation on the top left hand corner of the face of the check: “FINAL SETTLEMENT OF ANY AND ALL CLAIMS ARISING FROM BODILY INJURY CAUSED BY ACCIDENT ON 12/30/98.” Richards received and cashed the check, then tried to sue for bodily injury arising from the accident. Allstate denied the claim, asserting that an accord and satisfaction had occurred based on Mr. Richards' cashing of the $200 check.

Under existing law, it appeared Allstate was right. In Charleston Urban Renewal Auth. v. Stanley, the court held that "[i]f a check bearing a notation indicating that it is offered in full settlement is delivered to a creditor, the retention and use of the check by the creditor constitutes an accord and satisfaction." 176 W. Va. 591, 346 S.E.2d 740 (1985).

In Painter v. Peavy [WPD link], the Court held that "[i]f a check is tendered bearing the words 'payment in full' or some other words of similar purport, the payee may either accept the check and acknowledge the accord and satisfaction, or return the check to the payor. If the payee chooses the latter course of action he may continue to dispute the underlying claim." 192 W. Va. 189, 451 S.E.2d 755 (1994).

Allstate moved for summary judgment based on accord and satisfaction. The Plaintiff responded (1) that Mr. Richards, who had an eighth grade education, was functionally illiterate, and (2) that there had been no discussions between Mr. Richards and Allstate concerning the settlement of a bodily injury claim. The circuit court granted summary judgment under the "full payment" check rule. The West Virginia Supreme Court of Appeals disagreed and reversed.

According to judge, "Per Curiam" (who elected him anyway?), this case is distinguishable from Stanley and Peavy because (1) there were no medical bills submitted by Richards to Allstate; (2) there was no discussion of his bodily injury claim; and (3) Mr. Richards had a limited education and understanding. These facts, in the court's opinion, "all point to the fact that Mr. Richards' cashing of the $200 check did not constitute an accord and satisfaction under the facts of this case."

No fraud, no duress, no evidence that the amount was unfair or unconscionable, and no evidence that Mr. Richards was illiterate that he could not read and understand the words emblazoned on the face of the check when he cashed it.

In the 1985 Stanley case, the Court stated that "[n]ot only is the 'full payment' check rule of venerable origin and consistent with general contract law, but also it remains a commercially useful doctrine." Commerically useful to everyone but insurance companies, it appears.
Blog to Court: Check Your Facts
In a striking example of digital-era accountability, a 5th Circuit appellate court judge amends a decision after an attorney notes a minor error in the ruling on his weblog. []