Monday, June 30, 2003

Bloggers Gain Libel Protection

An appeals court decides small-time online publishers can't be held responsible for libel if they just republish information. The ruling is a victory for free speech advocates and bloggers. [via Wired News]

The $2.6 million filibuster

The Dominion Post points out that Senate Minority Leader Vic Sprouse's filibuster of the workers' compensation bill during the last 10 minutes of the regular legislative session prevented the body from lowering the blood alcohol limit from 0.1 to 0.08, resulting in a loss of $2.6 million dollars of highway funds.

McGraw Staffer: Firms 'Outrageous, Deliberate, Self-Serving'

The Wheeling Intelligencer runs this article about the attorney general's suit against 10 Wall Street brokerage firms. As mentioned in this previous post, the suit seeks penalties for violations of the West Virginia Consumer Credit and Protection Act. The chosen forum is the Circuit Court of Marshall County.

The article notes that the suit comes despite an opportunity to recover a $4 million share of a $1.4 billion settlement with the brokerages. The new suit could result in penalties of $350 million to $1.9 billion. "This action, however, does not necessarily preclude the state's right to still claim its share of the settlement reached in New York," the article notes.

The new suit does not seek victim-specific relief. The state is leaving it up to investors to file their own suits to recover any lost investments. However, I am curious as to why the state believes it can both settle with these companies and sue them.

Economic development grants remain in limbo as session begins

The Herald-Mail reports that "Gov. Bob Wise already is at odds with House leaders over his bill (SB2007) that aims to adopt May's ruling by the state Supreme Court in a lawsuit against the [Economic Development Grant] committee."

Wise fears that a lawsuit brought on behalf of anti-gambling groups seeking to shut down video lottery terminals statewide hangs a cloud over $19 million in proposed funding for the economic development grants.

Sunday, June 29, 2003

Attorneys may recover fees for time spent recovering fees

In Hollen v. Hathaway Electric, No. 30681 (June 26, 2003), the State Supreme Court held that under fee-shifting statutes, an attorney is entitled to recover fees for time spent litigating the fee issue.

In Hollen, the parties settled a Wage Payment and Collection Act claim before trial and left the issue of attorney fees to be decided by the circuit judge. The plaintiff's counsel submitted a bill for 104 hours at $200 per hour. About 30 of the hours were for time spent drafting the fee petition and supporting memorandum of law. The circuit court awarded her 67 hours at $100 per hour, finding the reduced rate more closely approximated the prevailing hourly rate for attorneys in Upshur County. The plaintiff appealed.

On appeal, the Supreme Court reversed and awarded the plaintiff 104 hours at $130 per hour, plus however many hours she spent pursuing the appeal. The Court reasoned that "[i]f an attorney is put to the burden of proving the reasonableness of his or her fee, he or she obviously must expend time and effort making that proof. Were the attorney not to receive compensation for those hours, the net effect would be to reduce the attorney's hourly rate for all the hours worked on the case."

Sidenote: The per curiam opinion writer wrote that "[i]t is clear that the $130 rate charged by Ms. Hollen's counsel, based in Morgantown, is almost thirty percent greater than the $100 rate that the circuit court believes a lawyer in Buckhannon or Weston might charge." (emphasis added). The way I calculate it, $100 plus 30 percent is exactly $130. Am I missing something?

Lawyer jailed for ignoring civil suit is vindicated by writ of prohibition

In State ex rel. Farber v. Mazzone, No. 31277 (June 26, 2003), the W.Va. Supreme Court of Appeals granted a writ of prohibition which declared a malpractice suit against attorney Michael Farber void for lack of jurisdiction (insufficient service of process). The plaintiff in the underlying suit sued Farber for legal malpractice. He had the suit papers served by certified mail with delivery restricted to the addressee. However, Farber's temporary secretary signed for the letter without Farber's permission.

Farber filed a response to the plaintiff's motion for default judgment, contending that the court was without jurisdiction because of the improper service. The judge disagreed and entered default judgment against him. Farber then ignored discovery requests and subpoenas duces tecum regarding damages. Judge Risovich eventually issued a bench warrant and had Farber incarcerated. Still, Farber maintained the court was without jurisdiction. After an award of compensatory damages against him, he filed a writ of prohibition with the supreme court.

The Court granted the writ, finding the circuit court was without jurisdiction. W.Va. R. Civ. P., Rule 4(d)(1)(B) (now (d)(1)(E)) stated that service could be accomplished "by the clerk sending a copy of the summons and of the complaint by registered or certified mail, return receipt requested and delivery restricted to the addressee. . . ." Rule 4 also specified that "[s]ervice pursuant to subsection (B) shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a return envelope showing refusal of the process by the defendant." (emphasis added). Farber did not authorize his secretary to receive certified mail with delivery restricted to him, so Rule 4 had not been complied with. Farber properly preserved his objection to service of process by raising the point in his response to the motion for default judgment, and "the passage of time does not confer jurisdiction upon the court."

A case like this seems like a terrible waste of time, money, and judicial resources. Why didn't the plaintiff just have Farber served properly after he objected to the service by mail? The sheriff's department obviously knew how to find him. Now, the plaintiff is left with nothing. And the other unbelievable aspect was Farber's willingness to spend time in jail rather than take an appeal or bring a writ of prohibition earlier. I think both parties showed great deal of stubbornness here.

Saturday, June 28, 2003

Supreme Court wrap-up: 2002-2003 Term

In case you missed any of them, the following is a summary of the major decisions of the U.S. Supreme Court for the 2002-2003 term:

Minority rights
Lawrence vs. Texas
Probably the most important decision of the term, the Court held that state laws banning intimate sexual relations between consenting gay adults are unconstitutional.

Grutter vs. Bollinger/Gratz vs. Bollinger
Diversity in college campuses is a "compelling interest." Schools may favor students who are members of racial minorities in admissions as long as administrators take the time to assess each applicant's background and potential.

Point systems ascribing certain numbers of points for membership in a racial minority are illegal. Colleges cannot blindly ascribe extra points to minority applicants.

First amendment
Virginia vs. Black
A state may, consistent with the First Amendment, ban cross burning carried out with the intent to intimidate. States may not, however, ban the burning of crosses without intent to intimidate. Thus, the burning of crosses at rallies or marches as acts of political expression not aimed at particular individuals cannot be banned.

US vs. American Library Association
Public libraries that receive federal money can be compelled to use porn-blocking filters that block access to adult content.

Crime and punishment
Lockyer vs. Andrade/Ewing vs. California
California's infamous "three strikes" law does not violate the constitutional ban on grossly disproportionate sentences even though application of the law resulted in a 50-year sentence for a person shoplifting videotapes and a 25-year sentence for a man who stole three golf clubs.

Smith vs. Doe
So-called "Megan's Laws" that require sex offenders to register even though their crimes were committed before a "Megan's Law" was passed are constitutional. (These laws generally require freed sex offenders to give police their addresses and places of employment so that the public can learn about convicts living nearby.)

Connecticut Department of Public Services vs. Doe
"Megan's laws" that require public disclosure of sex offenders' names without determining whether they are still dangerous does not violate due process.

Scheidler vs. National Organization for Women
RICO statute could not be used against anti-abortion activists who planned to disrput and shut down medical clinics nationwide.

Miller-El vs. Cockrell
The Court gave a Texas death row inmate a chance to claim that prosecutors systematically excluded blacks from his jury.

Sell vs. US
Non-violent, mentally ill defendants can be forced to take anti-psychotic drugs so they can become competent to stand trial.

Delmore vs. Kim
Legal immigrants who face deportation because of a past conviction can be jailed automatically without bail.

Nevada Department of Human Resources vs. Hibbs
Public employees have the right to sue for money damages under the Family and Medical Leave Act (FMLA).

Desert Palace vs. Costa
Clarifying that circumstantial evidence can be used to prove job discrimination in "mixed motive" cases (those in which the employer has both legitimate and illegitimate reasons for taking adverse action against an employee). The decision will likely lead more courts to grant mixed motive jury instructions in workplace discrimination cases.

Kentucky Association of Health Plans vs. Miller
States have the power to force managed health care plans to admit qualified physicians into their networks. "Any willing provider" laws, which forbid health insurers from refusing to admit any physician who agrees to meet the rules of the insurer's plan, are permissible.

Pharmaceutical Research and Manufacturers of America vs. Walsh
A preliminary injunction blocking Maine from using its power over Medicaid to force drug manufacturers to cut the costs of prescription drugs for uninsured residents, regardless of their income was improvidently granted.

Intellectual property
Eldred vs. Ashcroft
Congress has wide latitude under the Consitution to establish how long artists or their heirs can keep exclusive control of their works. A 1998 law that added 20 years to copyrights was upheld.

Illinois ex rel. Madigan vs. Telemarketing Associates, Inc.
States may maintain fraud actions when fundraisers make false or misleading representations designed to deceive donors about how much of their donations will be turned over to charity.

State Farm Mutual Auto vs. Campbell
A punitive damages award more than 10 times the actual damages is excessive and violates the 14th Amendment's guarantee of due process. Juries may consider out-of-state misdeeds when weighing a company's actions, where those misdeeds bear some connection to the plaintiff.

W.Va. Supreme Court rejects lawyer's challenge of medical malpractice law

The Sunday Gazette-Mail reports that the W.Va. Supreme Court has voted 4-1 not to hear the Charleston Attorney Bill Druckman's challenge to the new medical malpractice law.

Druckman's petition requested the court to interpret the law to apply only to malpractice that occurs on or after July 1, the law's effective date.

As I mentioned in a previous post, the clear text of the new law weighs against Mr. Druckman's interpretation. HB 2122 states at section 55-7B-10(b) "[t]he amendments to this article provided in Enrolled Committee Substitute for House bill No. 2122 during the regular session of the Legislature, two thousand three, apply to all causes of action alleging medical professional liability which are filed on or after the first day of July, two thousand three."

Six W.Va. law changes effective July 1

The Charleston Daily Mail notes six new laws that will take effect on July 1.

Fourth Circuit reverses jury award of punitive damages in race discrimination case

In Bryant v. Aiken Reg'l Med. Ctrs., No. 02-2147, 02-2192 (4th Cir. June 27, 2003), a jury's award of punitive damages in a failure to promote action was reversed because of actions the employer took to promote equal employment opportunities in the workplace.

The Fourth Circuit based the reversal on the following facts (employers should take note):

(1) Defendant had an extensively implemented organization-wide Equal Employment Opportunity Policy, which was clearly stated in the employee handbook;
(2) Defendant had a grievance policy encouraging employees to bring forward claims of harassment, discrimination, or general dissatisfaction,
(3) Employees were explicitly informed that they would not be retaliated against for making a complaint;
(4) Defendant had a carefully developed diversity training program that included formal training classes and group exercises for employees; and
(5) Defendant voluntarily monitored departmental demographics as part of an ongoing effort to keep the employee base reflective of the pool of potential employees in the area.

The court found that "these widespread anti-discrimination efforts, the existence of which appellee does not dispute, preclude the award of punitive damages in this case."

The Court relied on Kolstad v. Am. Dental Assoc., 527 U.S. 526 (1999), which gave protection from punitive damages to "employers who make good-faith efforts to prevent discrimination in the workplace accomplishes Title VII's objective of motivat[ing] employers to detect and deter Title VII violations." 527 U.S. at 545-46 (internal punctuation omitted).

Fourth Circuit says Microsoft OS need not carry Java

In a decision that matters little, the Fourth Circuit ruled in In Re Microsoft Corp. Antitrust Litigation, No. 03-1116 (4th Cir. June 26, 2003) that Microsoft is not required to ship Java with its operating system.

The Register has this article about the decision.

Wednesday, June 25, 2003

Fixing the fix for workers' comp

Via the West Virginia Chamber of Commerce "Chamber Links" e-newsletter:
Legislative leaders are looking at the best approach to correct the technical problems in the newly enacted Workers’ Comp bill (S.B. 2013). The action is needed due to errors in the bill that have been discovered since its passage. Without some further legislative action, Governor Wise may veto the measure. Lawmakers are scheduled to reconvene their special session on Monday June 30.

Tuesday, June 24, 2003

State of West Virginia v. Wall Street

Attorney General Darrell McGraw has sued 10 Wall Street firms, alleging relationships between banking and research departments represented an illegal conflict of interest under state law.

According to this article at, the state is seeking more than $300 million in damages based on the West Virginia Consumer Credit and Protection Act. "The state is suing on behalf of residents who may have made investment decisions based on what it alleged could be biased research issued by the firms' analysts," the report says.

Do strippers need business licenses?

Officials in Jefferson, West Virginia say yes, and they shut down four strip clubs this week for licensing violations, according to this article in the Daily Mail.

Clubs consider the dancers to be independent contractors, and as such, they are required to register with the state if they are conducting business that is generating revenue.

If they sell alcoholic drinks, the strippers also need liquor licenses, the officials say.

Monday, June 23, 2003

Victories for porn blockers and affirmative action supporters

The Supreme Court ruled today in United States v. American Library Association, Inc. that Congress can force public libraries to install adult content filters on libraries' computers. This article has a good summary of the ruling.

It also upheld the use of race as a factor in law school admissions at the University of Michigan in Gratz v. Bollinger, et al. It struck down the undergraduate point-based admissions system, however, which ascribed a certain number of points to racial minorities. A good overview of that decision appear here.

Friday, June 20, 2003

A West Virginia Day tribute to lawyers

Bob Kelly of the Daily Mail writes an editorial entitled "In W.Va., it's all headed for court," in which he expresses dismay at how "well" the system of checks and balances is working in our state.

By order of the Governor...

Your order for a half-dozen prairie dogs has been canceled.

GIF Patent Prepares to Expire


Posted by CowboyNeal on Thursday June 19, @11:18PM
from the all-skate-everyone-skate dept.

pajamacore writes "It's worth noting that 20 June 2003 is GIF Liberation Day, the day on which US Patent 4,558,302 expires. The patent describes the LZW compression algorithm used in .gif files. That said, maybe the prices of image editing applications will drop slightly when corporations don't have to pay fees to Unisys."

Thursday, June 19, 2003

When a "bizarre" shape just isn't enough

In a political gerrymandering case, the Fourth Circuit ruled today in Duckworth v. State Administration Bd. of Election Laws, No. 02-1936 (4th Cir. June 19, 2003), that just because congressional districts are bizarrely drawn does not mean they are unconstitutional. The case presented a question of first impression.

In order to state a claim, the Plaintiff had to allege facts showing two elements: (1) that there has been intentional discrimination against an identifiable group, and (2) an actual discriminatory effect on that group.

The court concluded that dismissal of Duckworth's claim under FRCP 12(b)(6) was proper because he failed to allege any facts to support the second element.

"[N]o reasonable inference can be drawn from the fact of a bizarre appearance that supports the conclusion that districting has caused [discriminatory] effects," the court wrote. "At most it may be fairly inferred from bizarreness that the apportionment was the result of intentional political action and resulted in political effect. But, of course, political effect itself is an expected, and indeed intended, result of apportionment."

These redistricters were motivated by [gasp!] politics. That's not unconstitutional.

Sometimes a picture is worth a thousand words. As I read this opinion, I was dying to see the shape of these allegedly "unconstitutionally bizarre" districts. Here is an article with a color drawing (at the bottom) so you can see for yourself.

Someday, I hope some daring Fourth Circuit judge includes an illustration in an opinion like this.

Is West Virginia a tobacco state?

I always get a kick out of seeing what the great uninformed media thinks about West Virginia. Lately, I have seen our state referred to as a tobacco state, which perplexes me because I am aware of no tobacco farms at all in West Virginia.

The Inquirer recently published an article about Microsoft's settlement with the state Attorney General entitled "Microsoft wraps deal with tobacco state."

A few months ago, the infamous Jayson Blair of the New York times, when writing about Jessica Lynch's home (which he never visited), described it as overlooking "tobacco fields and cattle pastures." The porch, of course, overlooks no such thing.

Now I know that Jayson Blair has been exposed as a fraud and that nothing he wrote can be relied upon, but the fact remains that his "idea" of West Virginia (having never visited it) is that it is a tobacco state.

What gives? My guess is that people are just associating us with Virginia or other southern states. I once heard David Satterfield, Executive Director of the West Virginia Development Office, say that we all think people have a bad image of West Virginia, but the fact is, people have no image of West Virginia at all. We have the chance to create our own image and to make it a positive image. Stories like these make me think David is right on.

State Supreme Court refuses Union Carbide challenge to asbestos mass litigation procedure

Rory Perry's Weblog contains this post announcing that the Supreme Court yesterday "refused a petition for a writ of prohibition sought by Union Carbide to prevent mass litigation related to asbestos exposure from proceeding in the Circuit Court of Kanawha County."

Can tech forever change the judiciary?

CNET has this piece by Judge Herbert B. Dixon Jr. who says e-filing can help courts with declining resources and increasing caseloads do more with less.

Wednesday, June 18, 2003

New opinion summaries and a per curiam opinion that makes new law

Supreme Court Clerk Rory Perry has issued 22 new opinion summaries today.  He also includes in his own weblog a post that summarizes the areas in which the Court plowed new legal ground.

I would note that some new law was made in a per curiam opinion that is among the 22 cases Rory summarized. The case of Wounaris v. West Virginia State College, No. 30845 (May 7, 2003) created a new public policy exception to the at-will employment rule.

In Wounaris, an at-will public employee was fired by the college that employed him and he filed a grievance. The College defaulted in the grievance procedure, and the employee was reinstated by the administrative law judge. In response, the College rehired him and then immediately terminated him even before the appeals process had run its course. The employee sued for wrongful discharge, alleging violation of West Virginia public policy. A jury found in favor of the college and he appealed. The Supreme Court reversed, finding that his discharge violated public policy.

To my knowledge this case presented a novel issue. One would normally expect the issues to be decided in a signed opinion. However, the Court decided to issue the opinion per curiam to limit it to its facts.

Had the opinion been signed, the new syllabus point would have read something like this:

Where a public employee files a grievance in accordance with W. Va. Code § 18-29-1, et seq., and the administrative law judge orders that the employee be reinstated, it is a clear violation of the substantial public policy of this state for the employer to terminate the employee before the appeals process has run its course unless a significant, novel reason exists to justify the termination.

Clearly, however, the Court was worried its decision would make an employee who files a grievance "bulletproof," so it issued the opinion per curiam. I am always perplexed when the Court throws an opinion like this one into the per curiam barrell. The Court is clearly making new law just to achieve a particular result in a particular case. Are employers supposed to rely on this new public policy exception as "the law" of this state? One simply cannot say with any certainty when no new syllabus point is created, and the opinion is unsigned.

W.Va. Pharmacy Board looks to close store selling Canadian prescription drugs

According to this report on the CBS Evening News, the FDA and the W.Va. Board of Pharmacy are looking to close an Internet business in Fairmont that acts as a middleman for customers seeking cheaper Canadian prescription drugs. Steve and Carol Becker use the Internet to hook customers up to pharmacies in Canada, where drug prices can be as little as half the price. Many seniors who want to take advantage of the lower prices don't know how to use the Internet, so they look to the Beckers for help.

The FDA says it's illegal to order drugs from Canada whether people do it at home or using discount centers. The purported reason is the risk of counterfeit drugs.

I would be interested to know how Canada compares to the United States in the number of incidents of prescription drug counterfeiting.

Tuesday, June 17, 2003

Injunction denied in video lottery suit

The Daily Mail reports that on Monday, Kanawha County Circuit Judge Paul Zakaib denied preliminary injunctive relief to the two anti-gambling groups suing the state to shut down all video lottery machines.

Judge Zakaib found that the plaintiffs failed to comply with a state law that requires plaintiffs to give 30 days' notice to the state before such a suit is filed.

Larry Harless, the attorney for the plaintiffs, has vowed to appeal the ruling and challenge the constitutionality of the notice law, which was passed last year.

New medical malpractice reform law challenged

The ink is barely dry on the new malpractice reform bill, and it has already been challenged.

This particular battle is over the effective date.  According to this article in the Daily Mail, Charleston lawyer William Druckman filed a 29-page petition with the state Supreme Court on June 10 asking it to rule that the law should apply only to cases where alleged malpractice occurred on or after July 1, 2003.

The clear text of the new law (HB 2122) states at section 55-7B-10(b) "[t]he amendments to this article provided in Enrolled Committee Substitute for House bill No. 2122 during the regular session of the Legislature, two thousand three, apply to all causes of action alleging medical professional liability which are filed on or after the first day of July, two thousand three."

The text of the bill seems pretty clear to me that the legislature intended the reform amendments to apply to all medical malpractice claims filed on or after July 1, 2003, not merely to those alleging injuries which occurred on or after July 1, 2003. I would be curious to see what arguments exist supporting Mr. Druckman's reading.

West Virginia Settles Microsoft Antitrust Case

The Associated Press reports here that Massachusetts is now the only state remaining that has not settled the antitrust suit against software behemoth Microsoft.

Microsoft agreed to pay a little more than $300,000 in unpaid attorneys fees to the attorney general's office and to provide about $19.7 million in vouchers for free computer hardware and software, including products from Microsoft's rivals, according to the report.

Monday, June 16, 2003

W.Va. Legislature passes worker's compensation bill

According to the legislative summary for June 14, 2003, "[b]oth bodies agreed upon provisions relating to the Workers’ Compensation Program and passed Senate Bill 2013. This measure relates generally to the state’s Workers’ Compensation system."

The final bill will be posted later this week.

Family feud ends after 115 years

The Dominion Post reports that the descendants of the Hatfields and McCoys signed a truce on Saturday ending their 115 year family feud.

Analyzing "public figure" status just got a little tougher

In Wilson v. Daily Gazette Co., No. 31045 (June 13, 2003)a 17-year old high school basketball player sued a newspaper for reporting allegations that he exposed himself to opposing fans following a basketball game. The circuit court found that he was a public figure and dismissed the claim. The West Virginia Supreme Court of Appeals reversed the finding of "public figure" status, and outlined a new analysis on that issue.

The Court now recognizes three types of public figures in a defamation claim:(1) "involuntary public figures," who become public figures through no purposeful action of their own; (2) "all-purpose public figures," who achieve such pervasive fame or notoriety that they become public figures for all purposes and in all contexts; and (3) "limited purpose public figures," who voluntarily inject themselves into a particular public controversy and thereby become public figures for a limited range of issues.

All-purpose public figures "In a defamation action, in order to find that a plaintiff is an all-purpose public figure, a defendant must produce clear evidence of the plaintiff's general fame or notoriety in the state, and pervasive involvement in the affairs of society. In determining whether a plaintiff is an all-purpose public figure, a trial court may consider (1) statistical survey data concerning the plaintiff's name recognition; (2) evidence of previous coverage of the plaintiff by the media; (3) evidence that others alter or reevaluate their conduct or ideas in light of the plaintiff's actions; and (4) any other relevant evidence." (Syl. Pt. 4)

Limited purpose public figure "A libel plaintiff is a limited purpose public figure if the defendant proves the following: (1) the plaintiff voluntarily engaged in significant efforts to influence a public debate--or voluntarily assumed a position that would propel him to the forefront of a public debate--on a matter of public concern; (2) the public debate or controversy and the plaintiff's involvement in it existed prior to the publication of the allegedly libelous statement; and (3) the plaintiff had reasonable access to channels of communication that would permit him to make an effective response to the defamatory statement in question." (Syl. Pt. 5, quoting Syllabus point 3, State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 480 S.E.2d 548 (1996).

Involuntary public figure "In a defamation action, to prove that a plaintiff is an involuntary public figure, the defendant must demonstrate by clear evidence that (1) the plaintiff has become a central figure in a significant public controversy, (2) that the allegedly defamatory statement has arisen in the course of discourse regarding the public matter, and (3) the plaintiff has taken some action, or failed to act when action was required, in circumstances in which a reasonable person would understand that publicity would likely inhere." (Syl. Pt. 6)

First-party bad faith claim does not automatically waive insurer's attorney-client privilege

In a first-party bad faith claim, an insurer is at odds with its insured. In State ex rel. Brison v. Kaufman, No. 31114 (June 13, 2003), the plaintiff sued a third party for wrongful death and also made a claim against her own carrier for underinsurance coverage. Claiming her own carrier exercised bad faith in the settlement of that claim, the plaintiff sued her own carrier.

During pretrial discovery, the plaintiff requested her insurer's litigation file and redacted portions of a claim file, both of which were created and maintained during the earlier wrongful death action. The circuit court ruled that the attorney-client privilege did bar the production of these file materials, and the insurer and its attorneys brought writs of prohibition seeking a reversal of the order compelling production.

Granting the petitioners' writs as moulded, the State Supreme Court (Justice McGraw writing for the majority) held in Syllabus Point 7 that "[w]here the interests of an insured and his or her insurance company are in conflict with regard to a claim for underinsured motorist coverage and the insurance company is represented by counsel, the bringing of a related first-party bad faith action by the insured does not automatically result in a waiver of the insurance company's attorney-client privilege concerning the underinsurance claim."

State Supreme Court clarifies final order rule

In Hubbard v. State Farm Indemnity Co., No. 31031 (June 13, 2003), the West Virginia Supreme Court of Appeals gave some clarification on the proper approach to an order that might be construed as final under W.Va. R. Civ. P., Rule 54(b), but which is not certified as required by that Rule. It held in Syllabus Point 3,
3. An otherwise interlocutory order that is not expressly certified as final by using the language required by Rule 54(b) of the West Virginia Rules of Civil Procedure remains interlocutory so long as the affected party does not seek an appeal. Consequently, when a party seeks to have a circuit court reconsider its ruling on such an order prior to entry of a final judgment disposing of the entire case, the interlocutory order should not be reviewed under Rule 60(b) of the West Virginia Rules of Civil Procedure.

The confusion on this issue has been generated by the rule stated in syllabus point two of Durm's v. Heck's Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991), in which the court held:
Where an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that "no just reason for delay" exists and "directi[ng] . . . entry of judgment" will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court's ruling approximates a final order in its nature and effect.
Under the new rule, Durm-type orders are appealable, but need not be appealed.

Rule 60(b), then, should not be applied to a Durm-type order because such an order is interlocutory, and the circuit court has plenary power to revisit the order at any time before a final order is enterd disposing of the entire case. The thus clarified in Syllabus Point 4 that "[a]s long as a circuit court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient."

This helpful opinion was authored by Justice Davis.

Friday, June 13, 2003

Want to be a ".PRO"? You'd better register soon.

Lawyers have until June 30 to register their trademarks in the new .pro domain, set to go live on July 1. The .Pro domain will initially be available only to licensed legal, medical and accounting professionals. This sunrise period is designed for defensive registrations by trademark holders. The .pro domain is the latest addition to the list of "top-level domains" that include .com, .org, .net, .biz, .info and others.

Thursday, June 12, 2003

Lawsuit asks courts to pull the plug on video lottery machines

The Daily Mail reports that Larry Harless, the man who brought you the suit against the Economic Development Grant Committee, is now representing a group of anti-gambling activists seeking to shut down the state's 14,000 video lottery machines.

It's not clear from the article what the various legal theories are, but it appears the plaintiffs contend the state is not meeting its obligation to require establishments with the machines to post warnings about gambling and the odds of winning. The suit also claims the machines are a "nuisance doing harm to the public good."

Harless also makes the all-too-obvious point that the state is "rigging the games to ensure that gamblers lose." Doesn't everybody know that? Isn't it the same with lottery tickets and every other form of gambling? If the machines paid out every time, we would call them ATMs.

TV bachelor looking for love, looking for work

The Associated Press is reporting that "Rob Campos, the bachelor star of NBC's dating game 'For Love or Money,' has a choice of women. But he no longer has his job."

The Dallas law firm with whom he was associated fired him on Tuesday after learning that Campos had been expelled in 1999 from a military program for "drunkenly groping a female officer." Campos also drunkenly groped as many of the female contestants as he could on the show that aired Monday.

The report also says the female officer kneed him in the groin for his advances. Maybe one of these female contestants will too. Now that would make for some interesting reality TV.

Wednesday, June 11, 2003

Dismissal of sex abuse victim's suit against AP reporter affirmed by Fourth Circuit

The Fourth Circuit ruled today in John Doe 2 v. The Associated Press, No. 02-1965 (June 11, 2003) that a man stated no claim against an Associated Press reporter who revealed in a published article that the man was a victim of sexual abuse.

The plaintiff brought suit against the Associated Press seeking damages for emotional distress inflicted by the AP's public identification of him as a sexual abuse victim. The plaintiff testified about the abuse in open court as part of the sentencing phase of his abuser's trial. According to the complaint, the state court judge ordered the reporters present not to identify any sexual assault victims in press accounts of the sentencing. However, the hearing was open to the public.

The Plaintiff's complaint alleged fraudulent misrepresentation, invasion of privacy, and reckless or intentional infliction of emotional distress. The district court granted judgment on the pleadings against the plaintiff, holding that the statement was a public statement that cannot serve as the basis for an invasion of privacy claim under South Carolina law, the reporter did not owe a fiduciary duty to plaintiff (as the two were complete strangers), and the disclosure of plaintiff's identity in an article did not rise to the tort of fraudulent misrepresentation. The Fourth Circuit affirmed.

Woman impliedly accused of assisting Satan still in court

According to this article in the Washington Post, "[t]he Iowa Supreme Court on Wednesday revived a defamation lawsuit brought by a woman who was offended when a church official wrote a letter warning that 'the spirit of Satan' was at work in her congregation." Apparently, the woman believed the comment was directed toward her.

Of course, as we all know, the truth is an absolute defense to a defamation claim. So, all the defendants have to do is prove that Satan was indeed working in the woman's church, and they're home free. I would be interested to see the witness list.

Can a supreme court justice lobby lawmakers?

In this article in the Daily Mail, State Senator Andy McKenzie (R-Ohio County) accuses Supreme Court Justice Larry Starcher of "overstepping his bounds" by writing a 3-page letter to legislators considering the creation of an intermediate court of appeals to handle workers' compensation cases. Justice Starcher is opposed to the appointment of judges to such a court, the proposed jurisdiction of the court, and other aspects of the plan.

Although I may not agree with everything Justice Starcher is saying, I think it is important to note that he is acting within the bounds of the Code of Judicial Conduct. Canon 5.D. states that judges should not engage in any political activity except "... on behalf of measures to improve the law, the legal system or the administration of justice...." In fact, the commentary on Canon 4.B. states that "[a]s a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so...."

Thus, Justice Starcher is doing what he is permitted and encouraged to do under the Code of Judicial Conduct, and he is not overstepping his bounds, as the senator suggests.

U.S. Supreme Court eases burden of proof in employment discrimination cases

In the case of Desert Palace v. Costa, No. 02-769 (June 9, 2003), the justices affirmed unanimously a verdict in favor of a female warehouse worker, Catharina Costa, against her former employer Caesars Palace Hotel in Las Vegas in a sex discrimination case. Costa was purportedly fired for for fighting with a co-worker, but claimed she was singled out for discipline because she was female. The ruling makes it easier for workers to sue their employers for discrimination.

At issue for the court were so-called ''mixed motive'' cases in which an employer may have both legitimate and discriminatory reasons for firing or disciplining an employee. Several federal appellate courts -- including the 4th Circuit -- had ruled that once a defendant meets its burden of proof by offering a legitimate, non-discriminatory reason for its actions, the plaintiff must have "direct" evidence in order to secure a "mixed-motive" jury instruction. This case holds that all a plaintiff must do is "demonstrate" that an illegal motive was present, which can be accomplished by direct or circumstantial evidence. Justice Thomas, writing for the majority, clarified that the Civil Rights Act of 1991 "unambiguously states that a plaintiff need only 'demonstrate' that an employer used a forbidden consideration with respect to 'any employment practice.'" This case provided the Court with its first opportunity to consider the effects of the 1991 Act on jury instructions in mixed-motive cases.

Employment lawyers interviewed in this article in feel the case will make summary judgment more difficult for defendants. It will certainly increase the use of the mixed-motive theory.

Monday, June 09, 2003

Justice Larry Starcher on why judges should be elected

The Charleston Gazette runs this article, an excerpt from a 2001 law review article, in which Justice Starcher makes his case supporting the direct election of judges by the citizens.

Justice Starcher argues that "[t]here can be little doubt that such suggestions [that we should choose our judges by some method other than popular election] are principally motivated by the desire of powerful and wealthy elites -- who have disproportionate access to the levers of power -- to shape, orient and ultimately control our legal system."

As I am reading this article, I am reviewing in my mind the great jurists of the 19th and 20th centuries. I am trying to think of any who were popularly elected. No names are coming to mind.

Friday, June 06, 2003

Could Governor Wise be removed from office for adultery?

Not other than by impeachment, according to WVU College of Law Professor Robert Bastress in this article in today's Daily Mail. The professor is questioned about various provisions in Chapter 6, Article 6 of the West Virginia Code, which provides for the removal from office of various state, county and municipal officials for adultery. "It's not something that could be used against Wise," Bastress said. "We have a specific means to remove a governor in impeachment. And impeachment, as we all know, is more governed by political realities than anything else."

Wednesday, June 04, 2003

Workers' compensation bill

The West Virginia Legislature has posted a draft of the workers' compensation bill here (PDF). Thanks to the West Virginia Chamber of Commerce for the pointer.

Adding appeals court may cost $3 million, study says

The Charleston Gazette reports that, according to a new Supreme Court study, the cost of setting up a new 3-member intermediate court of appeals would be nearly $3 million. Justice Starcher calls it a "huge unnecessary expense" that will intefere with the people's right to elect their judges.

U.S. law applies in reverse domain name hijacking case

A district court should have applied United States law rather than Spanish law in deciding a domain name dispute involving the domain, the Fourth Circuit held Monday in Incorporated v. Excelentisimo Ayuntamiento de Barcelona, No. 02-1396 (4th Cir. June 2, 2003),

A U.S. Corporation, Bcom, Inc., refused to transfer to the Barcelona City Council, who wanted the domain name for obvious reasons. The City Council invoked the Uniform Domain Name Dispute Resolution Policy ("UDRP") promulgated by the Internet Corporation for Assigned Names and Numbers ("ICANN") to resolve the dispute.

Domain names are issued pursuant to contractual arrangements under which the registrant agrees to a dispute resolution process, the UDRP, which is designed to resolve a large number of disputes involving domain names.

The UDRP panelist concluded that was confusingly similar to the City Council's Spanish trademarks, that Bcom, Inc. had no legitimate interest in, and that Bcom, Inc.'s registration and use of was in bad faith.

Bcom, Inc. commenced an action on under a provision of the Anticybersquatting Consumer Protection Act (the "ACPA") that authorizes a domain name owner to seek recovery or restoration of its domain name when a trademark owner has overstepped its authority in causing the domain name to be suspended, disabled, or transferred. See 15 U.S.C. 1114(2)(D)(v) (known as the "reverse domain name hijacking provision"). Resort to the Lanham Act for relief is procedurally proper because the UDRP process is "not intended to interfere with or modify any 'independent resolution' by a court of competent jurisdiction."

To establish a right to relief against an "overreaching trademark owner" under the reverse hijacking provision, a plaintiff must establish
(1) that it is a domain name registrant;
(2) that its domain name was suspended, disabled, or transferred under a policy implemented by a registrar as described in 15 U.S.C. 1114(2)(D)(ii)(II);
(3) that the owner of the mark that prompted the domain name to be suspended, disabled, or transferred has notice of the action by service or otherwise; and
(4) that the plaintiff's registration or use of the domain name is not unlawful under the Lanham Act, as amended.

Applying these elements, the district court upheld the panelist's decision. In doing so, it applied Spanish law to resolve the fourth element. Although the district court recognized that the City Council did not have a registered trademark in the name "Barcelona" alone, either in Spain or in the United States, it observed that"[u]nder Spanish law, when trademarks consisting of two or more words contain one word that stands out in a predominant manner, that dominant word must be given decisive relevance."

On appeal, the Fourth Circuit reversed, holding that the district court should not have applied Spanish trademark law at all. "The text of the ACPA explicitly requires application of the Lanham Act, not foreign law, to resolve an action brought under 15 U.S.C. 1114(2)(D)(v)," the Fourth Circuit held. Specifically, it authorizes an aggrieved domain name registrant to "file a civil action to establish that the registration or use of the domain name by such registrant is not unlawful under this chapter." 15 U.S.C. 1114(2)(D)(v) (emphasis added).

Under United States trademark law, "Barcelona" should have been treated as a purely descriptive geographical term entitled to no trademark protection. See 15 U.S.C. 1052(e)(2). "It follows then" the Court held, "that there was nothing unlawful about the registration of, nor is there anything unlawful under United States trademark law about Bcom, Inc.'s continued use of that domain name."

Tuesday, June 03, 2003

Who knew West Virginians smoked so much?

The Hagerstown Herald Mail reports that the recent 55 cent per pack cigarette tax increase brought West Virginia at least $6.64 million in its first month--twice as much as estimated.

Monday, June 02, 2003

Lawmakers fear Supreme Court will undo workers' comp reforms

In the third part of a four part series on the worker's compensation system, the State Journal writes about the role of the West Virginia Supreme Court of Appeals. The article references transcripts of interviews with the five justices.

In a separate piece, the State Journal compiles a list of Supreme Court Cases Affecting Workers' Compensation.