Submitted: May 9, 1995
Filed: May 18, 1995
Charles W. Peoples, Jr. Charles F. Bagley III
Huntington, West Virginia Campbell, Woods, Bagley,
Attorney for Appellees Emerson, McNeer & Herndon
William Lee Moon and Carol Moon Huntington, West Virginia
Attorney for Appellee
George A. Mills III Companies
Huntington, West Virginia
Attorney for Appellant Michael
Koslow Construction, Inc.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary assignment.
"Where a trial by jury has been secured by a party to
litigation under W. Va. R. Civ. P. 38 or 39(b), a party to such
litigation has a right to an impartial and unbiased jury; and, in
order to insure that right, the party is entitled, in the absence
of a waiver upon the record, to meaningful voir dire examination
and peremptory challenges of the prospective jurors. W. Va. R.
Civ. P. 47; W. Va. Code, 56-6-12 ." Syllabus, Barker v.
Benefit Trust Life Ins. Co., 174 W. Va. 187, 324 S.E.2d 148 (1984).
William Lee Moon and Carol Moon, plaintiffs below and
appellees, filed suit in the Circuit Court of Cabell County against
Michael Koslow Construction, Inc. (Koslow), defendant below and
appellant, alleging it was negligent in constructing their
residence. Koslow filed a third-party complaint against its
insurer, Motorists Insurance Companies (Motorists), alleging it had
a duty to defend and indemnify in the suit. The circuit court
referred the case to a special commissioner and adopted his
findings of fact and conclusions of law that Koslow was liable for
approximately $44,000 for damages to the Moon residence and that
Koslow's insurance policy provided no coverage for the claim.
After reviewing the record and briefs of the parties, we find the
circuit court erred in referring the matter to a special
commissioner when Koslow secured its right to a jury trial.
Accordingly, we reverse the judgment below and remand this case for
On May 5, 1993, the circuit court conducted a pretrial
conference and determined that, due to the complexity of the case,
it would refer the matter to a special commissioner. The circuit
court also made a preliminary finding that Motorists had a duty to
defend Koslow in the suit. The special commissioner heard
testimony on October 7, 1993; October 14, 1993; and November 3, 1993. The evidence presented to the special commissioner is as
In June of 1988, the Moons entered into a contract with Koslow for the construction of their home in Huntington. The Moons informed Koslow that they wished to build the house based on the building plans of their previous home in Mississippi. Koslow stated that with a few modifications the home could be constructed upon the lot they had chosen. Construction began in the summer of 1988. The Moons moved into their home in January of 1989, when construction was substantially completed. Koslow performed some minor work on the house over the next few weeks, such as completing the deck and screened porch. The home was completed in early February, and Koslow was paid in full. The Moons made separate arrangements for landscaping because the contract called for Koslow to finish the site to "rough grade."
In August of 1989, a landscaper noticed certain cracks in
the brick veneer of the home and notified the Moons of the problem.
The house was inspected by Jack Stafford, a structural engineer, in
September. Mr. Stafford found cracking at three corners of the
house between the mortar joints of the brick veneer. An interior
inspection revealed cracking of the block work at the right rear
corner and moisture on the block walls. It was Mr. Stafford's
opinion these cracks were due to ongoing differential settlement of the foundation. He stated that if a structure is settling in a
nonuniform manner, it may be an indication it is situated on soft
or wet materials. Concerned that an improperly graded lot could
cause water problems, he inspected the lay of the lot and found no
indication of improper grading. In a written report dated October
9, 1989, Mr. Stafford concluded the foundation of the home, footer
drains, and waterproofing were installed by Koslow in a less than
satisfactory manner. He identified the problems as serious and
recommended corrective action be taken.
Michael Koslow inspected the home at the request of the
Moons and encountered a remarkable amount of standing water under
the crawl space. It was apparent that a foundation drain had
failed because water was entering the area from the left front
corner of the structure. Mr. Koslow testified that he offered to
correct the damage by excavating around the house, underpinning the
footer, and repairing the foundation drains, which he estimated
would cost approximately $1,200, if the Moons would purchase $200
to $300 worth of brick. Mr. Moon declined the offer because he
believed Mr. Koslow was going to fix only the appearance of the
home and not undertake the more major problem of the origin of the
water. No further discussions took place.
In November of 1989, counsel for the Moons notified
Koslow of their claim. Koslow, in turn, contacted its insurer, Motorists, which denied coverage. It was Motorists' determination
that it owed no duty to defend Koslow because the claim involved
property damaging arising out of its work on the home.
Furthermore, it found no coverage available under the terms of the
policy based on an alleged breach of contract or implied warranty.
Nevertheless, Motorists hired PACE Engineers, Inc. (PACE), to
inspect the home. After receiving PACE's February, 1990, report,
Motorists again advised Koslow that coverage was denied because the
claim involved faulty construction.
In January of 1990, Neighborgall Construction Company
(Neighborgall) made several inspections and undertook substantial
repairs to the home at the request of the Moons.See footnote 1 The foundation was underpinned at three corners of the home, which required major
excavation. Among other things, Neighborgall installed a new storm
drain and new foundation drainage system and performed
waterproofing measures. The cost of the repairs totaled over
$43,000. The Moons also incurred over $700 in landscaping costs
after the repairs were completed. Koslow did not contest the reasonableness of the cost of repairs with the exception of a few
David Dudley, project manager for Neighborgall, testified
regarding the deficiencies in Koslow's work on the home's
foundation. It was his opinion the home's foundation, block walls,
and drainage system were below acceptable standards: the right
front corner of the home's foundation drain was not installed
properly; the right rear footings were not installed properly; the
lack of foundation drains and waterproofing measures along the back
wall of the home was not keeping with workmanlike practices; and
the block wall on the rear left corner was not keeping with
acceptable standards because it was not centered on footings.
Dan Aerne, an engineer employed by PACE, corroborated the
testimony of Mr. Dudley and Mr. Stafford. He testified that the
water problems encountered at the Moon residence were due to
unworkmanlike construction performed by Koslow.
Mr. Koslow testified that all work performed on the
residence met the requirements of Huntington's city building codes.
He believed the water problems were the result of the landscaper's
bulldozer operating too closely to the walls of the house. He
stated the drainage problems were exacerbated by the construction
of a house across the street from the Moon's home. Koslow also testified that had the Moons made the necessary repairs earlier,
the cost would have been reduced greatly.
Koslow contends the circuit court's decision to refer
this matter to a special commissioner denied its right to a jury
trial as provided by the West Virginia Constitution and Rule 38 of
the West Virginia Rules of Civil Procedure.
The appellees, the Moons and Motorists, respond that the
decision to refer a civil matter of this nature to a special
commissioner lies within the sound discretion of the circuit court.
See Hooper v. Wood, 100 W. Va. 272, 130 S.E. 444 (1925).
Although the circuit court has discretion to appoint
commissioners to resolve complex matters to lighten the circuit
court's docket, it clearly cannot do so in violation of a party's
right to trial by jury. The right to trial by jury in civil cases
is found in Section 13 of Article III of the West Virginia
Constitution, which provides: "In suits at common law, where the
value in controversy exceeds twenty dollars exclusive of interest
and costs, the right of trial by jury, if required by either party,
shall be preserved[.]"
Koslow did not waive its right to a trial by jury. In
its answer to the Moons' complaint, a jury trial was demanded. Furthermore, at the pretrial conference, Koslow made a timely
objection to the circuit court's decision to refer the case to a
special commissioner. Rule 38(a) of the Rules of Civil Procedure
provides that "[t]he right of trial by jury as declared by the
Constitution or statutes of the State shall be preserved to the
parties inviolate." The Syllabus of Barker v. Benefit Trust Life
Insurance Company, 174 W. Va. 187, 324 S.E.2d 148 (1984), states:
"Where a trial by jury has been secured by a party to litigation under W. Va. R. Civ. P. 38 or 39(b), a party to such litigation has a right to an impartial and unbiased jury; and, in order to insure that right, the party is entitled, in the absence of a waiver upon the record, to meaningful voir dire examination and peremptory challenges of the prospective jurors. W. Va. R. Civ. P. 47; W. Va. Code, 56-6-12 ."
See generally Warner v. Kittle, 167 W. Va. 719, 280 S.E.2d 276
(1981). We find the circuit court's decision to refer the matter
to a special commissioner violated Koslow's right to have the case
tried before a jury. Accordingly, we reverse the judgment and
remand this case for a trial upon the merits.
Reversed and remanded.
Footnote: 1 The special commissioner's findings of fact listed the defects discovered by Neighborgall:
"a. Cracks in the brick veneer at the front
left, rear left and rear right corners of the
house, as well as on the back of the house at
the windows and at the bay window;
"b. The first course of brick veneer was a
different color and cut in half at the right
rear corner of the house;
"c. The front yard remained saturated after
"d. The concrete front porch had settled;
"e. The front porch step was cracked and had
a storm drain poured in the step;
"f. Cracks were found in the drywall in the
family room and the entrance to the bulkhead;
"g. The carpet in the basement bedroom was
about one half inch lower than the base,
indicating possible slab settlement in that
"h. Excavation at the rear left corner
revealed a PVC storm pipe had pulled apart at
the joint and was full of mud and the sub-
grade material in that area was saturated;
"i. A four inch corrugated, perforated black
pipe was found, which was the storm drain
from the front of the house. The pipe was
full of mud and was cut;
"j. No foundation was found along the back
wall of the house and the sub-grade was
highly saturated because the foundation
drainage and storm drainage systems were not
"k. A vertical crack in the concrete masonry
unit was found below grade at the left end
wall of the rear corner of the house. The
brick veneer was also cracked in this area,
with the cracking extending through the
mortar joints and brick;
"l. Water was found in the crawl space in several areas, and cracks were found in the concrete masonry unit in this area."