West Virginia Injury Lawyer Blog

Deaths of Oil and Gas Workers in Highway Accidents Come Under Scrutiny

Mon, 14 May 2012 23:57:24 -0500

In West Virginia and other states, driver fatigue has come under scrutiny, as several oil and gas workers have died due to falling asleep at the wheel. The latest victim was Timothy Roth, who was killed after the driver of his vehicle fell asleep, veered off of the highway, and hit a sign. Both Roth and the driver were gas company employees headed back to their West Virginia drilling service company's shop after working a 17-hour day.

Roth was nearly killed in a similar incident two months ago, after another co-worker driver fell asleep and ran the company vehicle into a pole. Roth's employer, Colorado-based Energy Services, had been fined in other states for permitting workers to drive after working beyond the maximum 14-hour day. Yet cases such as Roth are, if not common, sadly not unusual. Over the past decade, 300 oil and gas workers have been killed in roadway crashes due to fatigue from long shifts. Unlike other industries, the oil and gas industry has an exemption from highway safety rules. Yet while the exemption might have helped the industry earn more money, it has put workers' lives at risk. What is more, the threat is only likely to grow, given the number of new hydraulic fracturing wells that are being drilled across the country, which require more trucks to be driven.

Federal regulators have been following the level of fatalities since 2005. The federal Centers for Disease Control Prevention has called for greater worker safety measures. The Occupational Safety and Health Administration noted that unlike mining companies, oil and gas companies are not required to report whenever a worker suffers a highway accident.

Some experts claim that some of the factors contributing to the problem include drug use at the work site and use of non-union labor, which gives workers fewer options to voice safety complaints. Another factor is that many trucks are old and poorly maintained. Finally, many truck drivers operate as "chameleon carriers," driving under the name of a shell company so that their actual companies can skirt federal safety rules.

Oil and gas companies have repeatedly tried to avoid scrutiny in other ways. Roth's coworkers claim, for instance, that Energy Services made them falsify their logbooks to make it seem as though they took rest breaks, when they in fact were still working.

West Virginia Supreme Court to Consider Case With $91.5 Million Award Against Nursing Home

Mon, 07 May 2012 13:59:00 -0500

The West Virginia Supreme Court has taken up a case of nursing home negligence, after granting a writ of prohibition filed by the defendant nursing home. In 2010, a lawsuit in a Kanawha County Circuit Court led to a $91.5 million verdict against Manor Care, Inc.

The plaintiff in that case, Tom Douglas alleged that his 87-year-old mother, Dorothy Douglas, died from what was considered to be severe dehydration and neglect while in the nursing home's care. Manor Care, Inc., in turn, argued that Mrs. Douglas's death certificate showed that the cause of death was dementia. A jury in Kanawha County Circuit Court did not believe the defendant and returned a verdict finding that Manor Care, Inc. was in violation of the Nursing Home Act and responsible for ordinary and medical negligence, as well as violations of fiduciary duties. While $11 million of the $91.5 million was allocated for the death itself, $80 million was allocated to punish Manor Care, Inc. for misconduct.

By granting the writ of prohibition, the West Virginia Supreme Court stayed circuit court rulings on post-trial motions. Normally, grants of writs of prohibition are infrequent, but it was done in this case to address asserted errors in a previous jury verdict form. One big question raised by the verdict form was whether state liability caps should apply. It would depend upon whether the nursing home was considered a health care provider. If so, the caps would apply. The plaintiff's attorney stated that the caps would not apply because Manor Care, Inc. provides its own insurance, unlike most health care providers. After review, the Supreme Court justices could either find no evidence of error, or they could determine that the verdict form was deficient. If the latter, the verdict form would be sent back to the Kanawha County Circuit Court.

Not long ago, the West Virginia Supreme Court dealt with another nursing home case with major implications. Then, the issue was whether the Federal Arbitration Act applied to a contract for nursing home care. The United States Supreme Court disagreed with the West Virginia Supreme Court's verdict that the FAA did not apply, ultimately finding that the FAA preempted state law, which meant that people whose relatives were allegedly harmed by nursing homes had to go through arbitration rather than the courts for justice if the contract they signed so specified.

We at the Wolfe Law Firm hope that this issue plays out better for the countless families who must put their loved ones in nursing homes. While we are sympathetic to the idea that jury verdicts must be reasonable, we also strongly believe that entities charged with taking care of vulnerable people must be sent a message that negligence and misconduct are never to be permitted. Aside from pressure on legislators, that message can usually only be sent by a West Virginia wrongful death attorney charged with protecting the vulnerable loved one's rights. Only in court can the full factual issues be discussed and weighed in on. While the $91.5 million verdict might seem unreasonable to some, after hearing the issues, the jury might have found that this was the only outcome that would truly send Manor Care, Inc. a message to never again mistreat patients.

West Virginia Governor Tomblin Signs Bill Requiring Drivers to Disclose Insurance

Wed, 25 Apr 2012 20:56:06 -0500

Recently, West Virginia Governor Tomblin signed HB 4486 into law, which would permit drivers involved in an accident to access the other driver's insurance before filing a lawsuit. This blog previously discussed HB 4486, which has generated some controversy. Some supporters of the law say that its purpose is to prevent needless lawsuits: a driver could conclude that the other driver does not have enough coverage to merit a suit. Critics, however, charge that the new law could make it easier to learn businesses' insurance coverage and then target them in future lawsuits.

The law works as follows: the attorney representing an injured driver makes a written request to the other driver's attorney. The writing must include the time and place of the accident, a copy of the accident report, and a good faith estimate of the injured driver's medical expenses and lost wages, along with applicable documents. No more than 30 days after receiving the request, an insurer must provide the injured driver with the information about the at-fault driver's vehicle coverage. This includes any excess coverage that might cover the claim. Included in this information are the insurer's name, limits of the driver's coverage, and the declaration page of any policy that could be used to cover the claim.

Should an insurer not provide this information, it could receive a $500 fine, as well as attorney fees and other expenses that come from the injured driver's attorney's attempts to obtain the information independently.

This law would join West Virginia with 12 other states that have similar laws, including neighboring Virginia. Critics still argue that the law represents a "giveaway" to personal injury lawyers that could increase lawsuits in the state. Lawmakers passed the bill by one vote on the last day of the legislative session. The law will take effect at the beginning of June.

We at the Wolfe Law Firm believe that critics' concerns about the bill are overblown. Yes, it is possible that an injured driver, who otherwise would not have filed a lawsuit, might change his mind if he saw that the at-fault driver had gold-plated coverage. However, it is more likely that a driver who intended to sue would have filed a suit regardless. Furthermore, claims that this law could scare businesses out of state have proven to be unfounded in the other states with this law.

Kanawha County Sheriff's Department Works to Prevent Teenage Drunk Driving and Fatalities

Mon, 16 Apr 2012 22:08:34 -0500

West Virginia police hope to curb prom night drinking and driving with a program called Operation Graduation Prom Alive. As part of the program, the Kanawha County Sheriff's Department has asked high school students to sign forms vowing not to drink and drive, and stating that they agreed to take a breathalyzer test.

In addition to having students sign forms, the seven-year-old program has kept officers stationed at various proms across the county. The officers keep watch at DUI checkpoints and are encouraged to patrol post-prom parties, where drinking is most likely to occur. Each year, the sheriff's department is given $15,000 and overtime fees to keep the program going. The results have been dramatic: there have been no fatalities associated with prom or graduation.

This year, the sheriff's department decided to add a new component. Students could take part in the distracted driving program, an interactive driving course where student participants are distracted by cell phones and changes in traffic patterns. The experience should only increase students' awareness of driver safety and reduce their likelihood of drunk or distracted driving.

Distracted driving is thought to be responsible for 16% of all fatal car crashes and 21% of all crashes that cause an injury. Meanwhile, motor vehicle deaths are the leading cause of death for people between the ages of 15 and 20. Although teens are only 14% of the population, they account for nearly one third of all car crashes. In 2009, 3,000 teens across the country were killed and more than 350,000 were treated in emergency departments for injuries related to crashes. Because of these disquieting statistics, the Wolfe Law Firm supports the Kanawha County Sheriff's Department's efforts and hopes that it continues to yield results.

While teens are technically children under the law, driving a vehicle is an adult responsibility that needs to be handled with care. An intoxicated teen who hits another car can cause just as much damage as an intoxicated adult. However, if you or your loved one are injured by a teenage drunk driver and decide to sue for negligence, he or she might not be treated the same as an adult. Under negligence theory, adults are judged by the standard of a "reasonable person," an ordinary, moderate adult who may or may not exist in real life. An adult could be of lower intelligence than the "reasonable person" and still be held to the same standard.

Navy Jet Crashes Into an Apartment Building in Virginia

Fri, 06 Apr 2012 17:26:10 -0500

In neighboring Virginia, an incident quickly made the headline news: a fighter jet crashed into a Virginia Beach apartment complex and caused a massive fire. While no one was killed (the two Navy pilots were ejected), there were several injuries and obvious property damage.

The crash took place in the Hampton Roads area, which contains several military bases, including Naval Station Norfolk, considered to be the largest naval base in the world. It is unclear what caused the jet to lose control. One witness claimed that it "just dropped out of the sky." Before that moment, the jet appeared to be on its way to land at the naval station. It was flying low to the ground and appeared to be doing a maneuver, according to another witness. The jet crashed into an apartment complex, tearing the roof off of one apartment building and engulfing it in flames. Four apartment buildings in all showed massive fire-blackened holes, while others remained untouched. Residents of the apartment complex were forced to evacuate.

One possible clue about the cause comes from a similar sort of crash that took place in 2008. Then, a jet of the same model crashed in a neighborhood in San Diego, California, killing four people and destroying two homes. The crash was due to mechanical problems, compounded by poor decisions by the pilot, such as bypassing a potential safety landing at a coastal Navy base after the engine failed.

Once the number of injuries and amount of damage is determined, authorities will try to figure out what happened and who is at fault. If the crash was due to a mechanical failure, then it could be important to examine that particular fleet of jets to see whether anything specific in the design caused a malfunction. If the crash were due to human error, it would be necessary to examine the pilots for traces of drugs or alcohol in their system. Their actions during the moments leading to the crash should be investigated, as well as their history for any signs of poor behavior that could affect their work. Once the details are known, and even before, victims of the crash may try to file lawsuits against the naval base, the pilots, and even the jet manufacturers. The lawsuits would likely claim that the pilots were negligent, and that the jet manufacturer was negligent as well as strictly liable. If the jet were found to be designed soundly and was safe in previous tests, the problem might lie with an ineffective repair job, which means the one to sue might be the mechanic.

We at the Wolfe Law Firm hope that the mystery is solved quickly and that those who were harmed get the compensation they need to move on. Here in West Virginia, we have the Air National Guard, but fortunately we have been spared any collisions between the jets and civilians' homes. Of course you certainly don't need to have a disaster as large as a jet crashing into an apartment building in order to use the services of a West Virginia personal injury attorney. Car crashes, construction accidents, carbon monoxide leaks, and other accidents can also deprive you of your health and your livelihood. Many people who experience an accident are often too overwhelmed by the complexities to deal with them alone. That is why if you get in an accident, even if you are partially at fault, you should find an experienced personal injury attorney right away.

Kinney Case Shows That Compensation for Injured Workers Is Not Always Guaranteed

Sat, 31 Mar 2012 02:02:33 -0500

We at the Wolfe Law Firm have discussed the reality of workers compensation insurance in West Virginia. Here and in most states, employers are required to obtain workers compensation insurance in case an employee is injured while on the job. The injured employee is then required to accept workers compensation payments from an insurance company in lieu of filing a lawsuit against the employer. The benefit is that the injured employee can collect payments until the injury heals and he or she returns to work. Simple, right?

Not always. Sometimes you have a dispute over your injury claim that requires hiring a West Virginia insurance claims attorney to resolve in a judicial forum. You may disagree with the amount the insurance company wants to pay you and want to appeal. Your first stop would be the Office of Judges, which receives and weighs evidence and arguments, then has one administrative law judge (ALJ) issue a written decision on your appeal. If you disagree with the Office of Judges' decision, you have the option of filing a second appeal, this time to the Workers Compensation Board of Review. The Board of Review consists of three members appointed by the governor. It does not review any new evidence, but may affirm, vacate, reverse, or modify the order or decision of the ALJ. The Board of Review will only vacate an ALJ's ruling if its members find that the ALJ violated statutory provisions or clearly misread the law.

If you disagree with the Board of Review's outcome, you have the option of appealing to the West Virginia Supreme Court of Appeals. That is what happened in Kinney v. West Virginia Office of Insurance Commissioner. Leonard Kinney was working for Bluestone Industries when he fell and suffered an eye laceration and knee injury. An onsite emergency technician examined Kinney and he returned to work. The next day, he filled out an Employee's Accident Report that mentioned the two injuries. Kinney also sought treatment from two physicians, but did not tell them about the knee injury. Nor did he ever disclose the fact that he had been in three prior car accidents to his employer.

Kinney waited one month to receive treatment for his knee, finally undergoing a right knee arthroscopy. The Claims Administrator claimed that Kinney's failure to disclose the knee injury showed that he had credibility issues, and that the issues should be resolved against Kinney's compensation. The Office of Judges and the Board of Review affirmed the Claims Administrator's decision.

Kinney appealed to the Supreme Court of Appeals, which disagreed with their rulings. The Court noted that in order for a claim to be held compensable three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment. The Court also noted that section 23-4-15(a) of the West Virginia Code states that "an employee is entitled to benefits under workers' compensation when a proper application is completed within six months from and after the injury." Since Kinney had completed the injury report within six months and also had his injured knee treated during that time, that was enough to satisfy the notice requirements for section 23-4-15. The Court reversed the earlier ruling and remanded the case to find out if Kinney had fully complied with state reporting requirements.

First West Virginia Coal Mining Death in 2012, As Mine Worker Killed By a Rib Roll

Wed, 21 Mar 2012 03:14:42 -0500

West Virginia recently had its first coal mining death of 2012. Jeremy Sigler, age 34, died from what is known as a "rib roll" -- when the side walls crack and fall into the mine. Last year, six West Virginian coal mine workers lost their lives, and 21 total across the country. So far, three other coal mine deaths have occurred in 2012: one in Virginia and two in Kentucky.

The mine where Sigler lost his life was the Kingston No. 2 Mine, which is owned by Alpha Natural Resources. Alpha Natural Resources acquired Massey Energy Company in 2011, roughly 10 months after Massey's Upper Big Branch mine was the scene of the biggest mining disaster in West Virginia history. After Sigler was stricken by some of the fallen material, his coworkers tried unsuccessfully to revive him.

Although Sigler's is the first death of 2012, his is not the first death in a Kingston mine. In October 2010, William Dooley died from falling off of a roof. Following his death, the Mine Safety and Health Administration (MSHA) found that Dooley's fall resulted from poor management oversight of roof conditions and a failure by management to "evaluate adequately the changing geological conditions." This time, following Sigler's death, the MSHA has issued a closure order on the mine while the accident is under investigation.

The MSHA database reveals that both Kingston No. 1 and No 2 Mines have checkered histories with safety compliance. The Kingston No. 2 Mine alone was forced to pay more than $700,000 in penalties due to repeatedly violating the Mine Act over the past decade. In addition, the Kingston No. 2 Mine received 968 citations for violations of the Mine Act, with 130 in 2011 alone.

The fault may not necessarily lie with Alpha Natural Resources, since its Cucumber mine, the winner of safety awards, received its last citation in 2006. However, the Kingston mines' safety issues are troubling and reminiscent of millions of dollars in penalties, and hundreds of citations, that the Upper Big Branch mine received before the disaster.

Two Motels in Hurricane, West Virginia Evacuated Due to Carbon Monoxide Concerns

Mon, 12 Mar 2012 12:13:25 -0500

Authorities in Hurricane, West Virginia evacuated two motels after an inspector found that the two neighboring properties were susceptible to a carbon monoxide leak. The inspection of the American Inn and the Budget Inn motels took place following the tragic incident at the Holiday Inn Express on Corridor G, where a man from Rhode Island died of carbon monoxide poisoning.

Most motels throughout West Virginia are being inspected as a result of the incident. There is also a bill pending in the House of Delegates (already passed by the Senate) requiring motels to install carbon monoxide detectors. Meanwhile, at the American Inn and Budget Inn motels, an inspector found that exhaust was leaking from a gas pipe connected to a water heater. In addition, pipes in a boiler room had holes due to rust, large enough to fit a "pretty good-sized finger" through.

Motel guests were also inspected for signs of carbon monoxide inhalation. Fortunately no one needed to be taken to the hospital. Yet even though the motels had no carbon monoxide readings, authorities evacuated them as a precaution. A sign was placed on the motels' doors warning people not to enter.

Since then, the motels' owner has sought to compensate guests and mechanics and electricians were working on fixing the violations. The current owner of the properties claimed that although he inherited the problems from the previous owner, he was determined to see everything fixed.

We at the Wolfe Law Firm support state and local efforts to ensure that all hotels and motels are safe -- not just from carbon monoxide, but other common hazards that could harm a guest. Every hotel or motel owner owes a duty to guests to preserve their well being. Under tort law, visitors to a property can be one of three things: a trespasser, a licensee, or an invitee. A friend who comes over to watch television would not, strangely enough, be called an invitee -- even if he or she were actually invited. Instead, he or she would be a licensee. A landowner has a duty to protect licensees by warning them of known hazards.

Bill Requiring Insurance Companies to Reveal Customers' Coverage Approved By West Virginia House of Delegates

Sat, 03 Mar 2012 02:49:40 -0500

A bill that would require insurance companies to disclose the type of insurance their customers carry won approval in the West Virginia House of Delegates on a 64 to 33 vote. Supporters of the bill believe that it could reduce the number of lawsuits filed in the state, while critics argue that if signed into law, it could make businesses more vulnerable to lawsuits.

House Bill 4486, which is now on its way to the Senate, would permit those who filed an insurance claim following an accident to get more information about the other party's insurance coverage before filing a lawsuit. Supporters believe that if more people knew at the outset how much coverage the other party carried, that might discourage them from filing lawsuits because they would know whether insurance coverage alone could meet their needs. At present, people cannot view the other party's insurance coverage without first filing a lawsuit. One supporter, an attorney, noted: "For insurance companies to hide the ball, they're going to have to give it up after a suit is filed. Why not do it before and possibly eliminate a lawsuit filing?"

Critics such as the Chamber of Commerce, however, argue that the bill is a "cracker killer" -- meaning that it could prevent companies from building an ethane cracker plant in West Virginia. Critics contend that if a business's insurance coverage were exposed, that would lead to more lawsuits directed at the business in the future. House Judiciary Chairman Tim Miley, a West Virginia personal injury attorney, became so outraged by the Chamber's comments that he took to the floor and delivered a 15-minute speech denouncing their scare-mongering tactics.

We at the Wolfe Law Firm find it difficult to judge exactly which way the legislation could lead. On the one hand, it seems naïve to think that companies would run screaming from West Virginia just because interested parties could see the insurance coverage they carry. As noted above, if the company was sued previously anyway, its insurance coverage would already be available to the public. Furthermore, 12 other states have enacted this type of legislation, and if they experienced a massive exodus of business, wouldn't there be more documentation?

On the other hand, it also seems naïve to conclude that people would refrain from filing lawsuits just because they knew the other party's insurance coverage. One source notes that "[t]he logic is that the person filing an auto or home insurance claim for an injury might opt out of going through costly physical therapy sessions if they knew the costs would exceed the other person's policy's limits." Yet that seems absurd: if a person was injured in an accident and needs physical therapy, that person is going to try and get physical therapy. That person won't really care if the other party's insurance does not cover it -- especially if the other primarily was primarily at fault. The only lawsuits this type of law might stop are the ones filed specifically to force the insurance company to open its books.

Libertarians in Tennessee Aim to Overturn State's Helmet Law

Sun, 26 Feb 2012 18:14:39 -0500

In the past, we at the Wolfe Law Film have discussed the dangers of common activities like motorcycle or ATV riding. The injury and fatality statistics would no doubt be worse if the State of West Virginia did not require riders to wear helmets. Yet in neighboring Tennessee, there is a movement that bears watching: libertarians are pushing to have their state's helmet law overturned.

They have succeeded to the point of putting the so-called Motorcyclist Liberty Restoration Act before the Tennessee legislature. The Act would end the requirement that motorcycle riders ages 21 and older wear a helmet. Proponents of the Act argue that even if the law saves lives -- indeed, one proponent's life was saved when he had a collision with an SUV -- adults should still have the freedom to not wear a helmet if they choose. "Government is not our mom and dad," says Representative Glen Casada, a co-sponsor of the bill.

Critics point out that there are obvious problems with this philosophy. First, the current law saves lives. The only state to succeed in repealing a helmet law -- Pennsylvania in 2003 -- saw the number of traumatic brain injury cases rise to more than double the previous rate. Second, the cost of injury is borne by state taxpayers as well as those directly involved in the accident. In Tennessee, if the brain injury rate were to more than double, the state would end up paying more than $1.12 million per year. This amount does not include long-term care, which usually comes with a significant price tag.

While opponents of the bill have begun to organize, the bill's supporters claim that wearing a helmet should be a matter of common sense, not government nannying. What no supporter has addressed is whether taxpayers should have to pay for their choice to go without a helmet.

Although in West Virginia, there is no bill pending that would outlawing motorcycle helmets, legislators appear eager to ease helmet requirements. Recently, the House of Delegates passed a bill by 93-3 that would delete one of the performance requirements for helmets, stating that it was too difficult for state police to enforce.

Five West Virginia Mine Workers Sue Employer for Ignoring High Methane Levels

Fri, 17 Feb 2012 15:40:22 -0500

Five mine workers from the Federal No. 2 mine in West Virginia are suing their employer, Patriot Coal Corporation, for negligence in Monongalia County Circuit Court. They claim that managers for Saint Louis-based Patriot failed to evacuate workers at least 19 separate times when the methane levels grew too high, exposing them to danger. A methane gas explosion was credited with causing the 2010 Upper Big Branch disaster, the biggest in the history of West Virginia mining accidents.

The five workers are suing not only Patriot, but also its subsidiary Eastern Associated Coal and former managers of the company. They seek $75,000 for themselves and "similarly situated" mine workers who lost income when their mine was eventually closed. Federal investigators have already begun investigating the Federal No. 2 mine for potential problems. Some situations that have come to light include John Remmer, the ex-forman, being ordered by his supervisors to fake safety inspection reports. Remmer claims that among other things, he was told to fake methane gas readings on sealed sections of the mine. Reports of high methane levels would have meant shutting down the mine and stopping production. While Remmer is among those being sued by the mine workers, he has also filed his own lawsuit against Patriot.

The mine workers' lawsuit claims that not only did the managers' failure to act endanger them, but also that when the mine finally was forced to shut down, it was left idling for so long that the workers suffered financial hardship.

When a worker is injured while on the job, the worker usually has no choice but to collect workers compensation payments. That is because most employers are required by law to carry workers compensation insurance; if they do so, the worker must take the payments and cannot elect to file a lawsuit against the employer instead. The situation is different if a worker dies in an accident while on the job. Then the worker's estate may hire a West Virginia wrongful death attorney and sue the employer for wrongful death, claiming that the employer's negligence was the primary cause of death.

The situation with the five mine workers' lawsuit is also different, since no one is claiming to have been injured. Instead, the claim is that they could have been seriously injured or killed by the employer's negligence. How that will impact the jury's decision remains to be seen. Another question is whether the mine shutdown was inevitable, a way of preserving safety, or unnecessarily prolonged due to the managers' prior negligence. If the length of time for the mine shutdown was inevitable, that could affect how much the workers receive as compensation.

Repairman's Error May Be Responsible for Deadly Carbon Monoxide Leak at a West Virginia Hotel

Tue, 07 Feb 2012 01:34:53 -0500

When you are hurt on someone else's property and it is not your fault, you may have a case of premise liability. Premise liability is when the owner of the property fails to exercise reasonable care to keep it safe. We at the Wolfe Law Firm have represented victims in dozens of these types of cases. Usually premise liability can be found in cases of slip and fall, animal attacks, or lack of security. Other times, a potential premise liability situation can be more tragic.

Recently, a carbon monoxide leak at a Holiday Inn Express in Charleston, West Virginia resulted in one man's death and left at least 17 other people sickened. The leak was thought to be caused by a repair worker accidentally knocking loose an exhaust pipe attached to the hotel's swimming pool heater.

Back in mid-December, hotel officials reportedly asked a swimming pool repair company to come out and inspect the aging pool heater. The company was said to have recommended that the heater be replaced, and then cut off gas to the unit. Hotel officials then reportedly contacted Premier Pools, which replaced the pool heater before the end of the month. Either during the initial inspection or the replacement, the exhaust pipe, which ran the full height of the building, was knocked loose. As a result, an amount of carbon dioxide 20 times over the safe limit leaked out across the four floors. City inspectors never inspected the new heater, they claimed, because Premier Pools never obtained the required permit for installation. Thus, city inspectors never knew that a new heater was there. Otherwise, they might have discovered the leak before it was too late.

Premier Pools asserts that it never sought a permit because it never installed the new heater. Instead, it was merely called to do a routine change of the pool filter. At the same time, at least one hotel guest claimed that the hotel was aware of problems around the pool area. Two weeks before the deadly incident, the fire department was called when the fire alarm kept going off. Some guests worried that the alarms were caused by carbon monoxide wafting out whenever hotel staff opened doors to ventilate the pool. One guest noted that the front desk clerk had stated that the fire alarms were set off by a problem with the pool. However, whether he was referring to condensation from the pool, which can emulate smoke, is unknown.

In this situation, would you hire a West Virginia premise liability attorney to sue the Holiday Inn Express? It would depend upon whether the hotel's management was really aware of the carbon monoxide problem -- or at least that there was a significant problem -- and failed to correct it. Under West Virginia premise liability laws, a property owner may be held liable if he or she were aware of an unsafe condition or should have known given the circumstances, that a dangerous condition existed. Even if the hotel did not know about the carbon monoxide leak, as long as it should have known, it could be held liable. That is because hotels are held to one of the strictest standards of premise liability, that of the invitee. If the hotel could not have known, it may be possible to find one or both of the third-party repair companies liable for negligence, once more details become known.

Tort Reform Supporters Overlook the Reasons Why Patients Sue

Tue, 31 Jan 2012 02:24:12 -0500

Recently, columnist Harold Mandel, a supporter of tort reform, examined the various reforms made around the country, including in West Virginia. He concludes that despite tort reforms that have already been made, medical liabilities that still exist threaten to bury the medical profession.

He claims that the tort reforms that have been enacted or upheld in various states have resulted in lower liability premiums and fewer doctors fleeing to states with lower caps. Mandel considers it a victory that this past July, the West Virginia Supreme Court upheld a reduction of the non-economic damages cap from $1 million to $250,000. At the same time, he frowns upon rulings by state supreme courts in Illinois and Georgia, which struck down caps of $350,000 and $500,000 as being unconstitutional.

Mandel believes that where people are allowed to sue their physicians, danger follows. Doctors who have to defend against malpractice suits pay an average of $47,158, an increase of 63% since 2001. In New York and Florida, it is not uncommon for doctors to pay premiums of around $200,000. And surgeons who get sued are -- not surprisingly -- more likely to burn out and experience depression.

What Mandel and other tort reform supporters will never say is that medical malpractice suits may be perfectly justified. In fact, a cap of $250,000 may be far too low to make up for the pain and suffering caused by a completely preventable error.

Over 200,000 deaths occur each year nationally due to physician error, and an untold number of injuries and overdoses. Most patients don't have the option of reviewing a doctor's success rate or the death/error rate from hospital to hospital. Instead, we must trust what the doctor says and submit to his or her care. When something goes wrong through no fault of our own, we want answers. Many hospitals are surprisingly -- or maybe unsurprisingly -- unwilling to give them. Research has shown that hospitals that disclose preventable errors to patients are more likely to face lawsuits -- so hospitals don't reveal them. One recent study found that hospital underreporting is greater than ever. Among Medicare beneficiaries, hospital reporting systems captured only 14% of the patient harm events.

West Virginia Legislators Sponsor a Bill That Would Improve Mine Safety

Sat, 21 Jan 2012 01:14:12 -0500

For some West Virginia legislators, sponsoring a mine safety bill wasn't just about preventing a repeat of the 2010 Upper Big Branch mine tragedy: it was also about something personal. Two legislators had lost fathers in coal mining accidents.

House Speaker Rick Thompson lost his father in 1952, when he fell off the mine roof -- before Thompson was even born. Delegate Charlene Marshall lost two fathers -- her biological father when she was six years old, and later her stepfather. Marshall emphasized that she never wanted any child to feel what she felt. As a result, she and 11 other legislators have sponsored a bill that would not only increase training and increase sanctions for violations, but would also improve the role of miners' families during investigations. Miners' families or their representatives would be permitted to sit in on investigator interviews. This would prevent situations like the one Marshall experienced. During a routine canvassing for the vote, she learned that the details of her father's death were different from what her family had been told.

In addition, the bill would require a review of the three reports that were issued by Upper Big Branch investigators. The goal is to identify problems and then alter safety standards to ensure that disaster never strikes again. The three reports, as well as a federal report issued by the Mine Safety and Health Administration, faulted Massey Energy Company for allowing safety lapses that led to the accident, as well as Massey's efforts to conceal these problems.

If the bill is passed, changes will include a whistleblower hotline for mine safety violations, double the penalties for lying to investigators, and triple the penalties for safety violations. Mining machines would shut off automatically if methane levels were too high. Mine workers would be permitted to leave areas that they believed to be unsafe.

We at the Wolfe Law Firm applaud West Virginia legislators and Governor Tomblin for taking sensible steps to end the safety abuses routinely found in coal mines. While the 2011 death toll was much lower than in 2010, more than a dozen people still died in coal mining accidents. The numbers may rise if something is not done to prevent them. Fortunately something is being done, and it will be up to inspectors and whistleblowers to ensure that mining companies don't successfully evade the new regulations.

West Virginia Legislature Poised to Pass Ban On Texting, Cell Phone Use, While Driving

Sat, 14 Jan 2012 23:42:47 -0500

West Virginia's House and Senate committees are expected to pass a bill banning cell phone use and texting while driving. The bill is championed by Governor Earl Ray Tomblin, and once he signs it, West Virginia will become one of a growing number of states to ban the practice. Already nine states and Washington D.C. ban the use of handheld cell phones while driving, while 35 states have banned text messaging.

The bill would treat both cell phone use and texting as secondary offenses, meaning that a police officer could cite drivers for cell phone use or texting only after pulling them over for a different offense. Other states treat cell phone use as a primary offense, so police officers can pull drivers over just for using a cell phone.

One typical reason for the imminent ban was given by Delegate Nancy Peoples Guthrie: "We're losing too many people in accidents that we know could be avoided. I don't want to lose any more kids, any more parents, any more people." Already, West Virginia prohibits drivers 18 years old and younger from texting or using a cell phone while operating a car. The upcoming ban would extend that ban to every driver.

The Senate Transportation and Infrastructure committee and the House Transportation and Roads committee are expected to take up the bill, and chairmen of both are optimistic that the legislation will take effect sometime this year.

We at the Wolfe Law Firm believe that banning handheld cell phones and texting is a smart solution that is a long time coming -- one that is sure to save countless lives. While driving is a privilege that everyone should handle with great care, too many people act as though they can do anything (eat, drink alcohol, talk on a cell phone, apply makeup) and come away unscathed. That leads to accidents that could have easily been avoided. Our firm has represented car accident victims for over 20 years, and can attest to the variety of injuries people suffer, as well as the often nightmarish interactions with the other driver's insurance company.