No. 32877 - Donna M. Richmond v. Barry A. Levin, M.D.
Maynard, Justice, dissenting:
I dissent to the majority's decision to make Louk v. Cormier
cases pending in circuit court or on appeal at the time Louk
First, I believe that the Louk
decision is wrong, for the reasons explained in
my dissent to that opinion, and should not be applied retroactively.
Also, I believe that Appellant waived the issue of retroactivity by failing to
raise it in the trial court both before and after the verdict. Generally, a new rule of law will
apply retroactively only to those cases in which an objection is made at trial. See King v.
Kayak Manufacturing Corp.,
182 W.Va. 276, 285, 387 S.E.2d 511, 520 (1989) (making new
doctrine of comparative assumption of risk applicable on appeal if the point was preserved
at trial); Syllabus Point 13, LaRue v. LaRue,
172 W.Va. 158, 304 S.E.2d 312 (1983), overruled on other grounds, Butcher v. Butcher,
178 W.Va. 33, 357 S.E.2d 226 (1987)
(holding that equitable distribution based on economic contributions is available in pending
cases where the issue is specifically asserted). Having made no objection below, Appellant
should not now have the benefit of the new rule announced in Louk.
Accordingly, for the reasons set forth above, I dissent.