West Virginia Judiciary

Supreme Court of Appeals Argument Docket

Wednesday, January 17, 2018

Rule 20 argument - 10:00 a.m.

Kimmy and Larry McNair v. Johnson & Johnson, et al., No. 17-0519 - The United States Court of Appeals for the Fourth Circuit certified the following question to this Court:

Whether West Virginia law permits a claim of failure to warn and negligent misrepresentation against a branded drug manufacturer when the drug ingested was produced by a generic manufacturer.

Brickstreet Mutual Insurance Co. v. Zurich American Insurance Co., No. 17-0592 - The United States Court of Appeals for the Fourth Circuit certified the following three questions to this Court:

1. Does jurisdiction lie exclusively with the West Virginia Workers’ Compensation Office of Judges to hear disputes between insurance carriers regarding whether one of both carriers are responsible for contributing toward payment of an employee’s workers’ compensation benefits?
2. West Virginia Code § 33-46A-7(a) requires that parties to a professional employer agreement designate “either” the professional employer organization (PEO) “or” the client-employer as responsible for obtaining workers’ compensation insurance coverage for covered employees ; and under subsection (b) of the statute, if the PEO is the designated party, the client-employer “shall at all times remain ultimately liable” to provide workers’ compensation coverage for covered employees. Do these statutory provisions mandate the designated party’s workers’ compensation policy as the primary policy over coverage provided by the other party, precluding the PEO and client-employer from agreeing to provide shared coverage? And, if the PEO is designated as the responsible party to obtain workers’ compensation coverage, does the term “ultimately” trigger liability by the client-employer for such coverage only if the PEO, or its carrier, defaults?
3. When the PEO is named as the sole employer in a workers’ compensation claim, does the “other insurance” clause in the PEO’s workers’ compensation insurance policy require the client-employer’s insurer to pay a portion of benefits, when the PEO is not an insured party under the client-employer’s policy?

Rule 19 argument

Kahle’s Kitchens, Inc. v. Shutler Cabinets, Inc., 17-0036 - Petitioner Kahle’s Cabinets appeals the order of the Circuit Court of Marshall County, entered on July 11, 2016, denying petitioner’s motion to alter or amend judgment.

FirstEnergy Generation, LLC v. James J. and Carol A. Muto, 17-0067 - Petitioner appeals the denial of its pre- and post-trial motions, in addition to alleged trial related errors by the circuit court in respondents’ deliberate intent action.