"Auld Lang Syne" is a popular song, particularly in the English-speaking world. Traditionally, it is sung to bid farewell to the old year at the stroke of midnight on New Year's Eve. The text is a Scots-language poem written in 1788 by Robert Burns. It wasn't until 1799 that it was set to a traditional tune, which has since become standard. The song begins by posting a rhetorical question: Is it right that old times be forgotten? The answer is generally interpreted as a call to remember long-standing friendships.

Moving into 2024, the Bailey & Wyant family honors the memory of our esteemed colleague and friend Josef A. Horter. Although the most common usage of the song involves only the first verse and the chorus, it is only fitting that this verse be shared in Joe's remembrance.

"And there's a hand my trusty friend!

And give me a hand o' thine!

And we'll take a right good-will draught,

for auld lang syne.

For auld lang syne, my dear,

for auld lang syne,

we'll take a cup of kindness yet,

for auld lang syne."

Josef A. Horter was born in Wheeling, West Virginia. After graduating from East Fairmont High School he enrolled at WVU where he earned a degree in Economics. Post undergrad, Joe went on to complete his Juris Doctorate degree at Ohio Northern University. Joe was Of Counsel for Bailey & Wyant in Charleston for the past 14 years.

B&W Presents at CCAWV

Managing Member Charles R. Bailey and Member Harrison M. Cyrus

Managing Member Charles R. Bailey and Member Harrison M. Cyrus spoke on the topic, "The Power of the Purse," at this years CCAWV Legislative Conference. The 3 day forum included educational seminars for all county commissioners and their staff across the state of West Virginia as well as a visit to the Capitol to attend House and Senate Floor Sessions.

B&W Presents at National Conference

Managing Member Charles R. Bailey

Earlier this month, Charles R. Bailey attended The Gavel National Conference VIII in Georgia. Chuck presented on the topic, " Hold Harmless & Indemnification Agreements." Indemnity, Risk Transfer and Additional Insured Coverage are tremendous issues for claims professionals in numerous situations. The goal was to educate claims professionals on the ins and outs of the topic, addressing both the pursuit of a risk transfer opportunity and the defense of one being pursued against.

Keeping you in the Know

Charleston Associate, Samuel M. Bloom

Case Law Updates: Deliberate Intent and Whether the Actions of the Employee Were in Furtherance of Employment

The article this month focuses on a recent decision from the Supreme Court of Appeals of West Virginia. In Goodman v Auton, the Court entered a decision reversing the denial of summary judgment and finding that the plaintiff’s deliberate intent claim was statutorily barred. In the case, the plaintiff was working collecting trash and was riding on the back of a garbage truck. The driver (one of the named defendants) backed the truck up and hit something, resulting in the plaintiff being thrown from the back of the truck and injuring himself. Relevantly, the driver of the truck tested positive for opioids. As a result of the accident, the plaintiff brought suit.

Before suit was filed, the plaintiff applied for and received workers’ compensation benefits. This is important as, on the appeal of the denial of summary judgment, the Court considered whether the plaintiff’s claims were barred by workers compensation immunity or statutory immunity under the West Virginia Governmental Tort Claims and Insurance Reform Act (although, the Court ultimately did not analyze whether statutory immunity applied). It was the plaintiff’s position that the driver was acting outside the scope of his employment due to driving under the influence and, therefore, no immunity applied.

Ultimately, the Supreme Court of Appeals of West Virginia disagreed. In its decision, the Court stated that the plaintiff misinterpreted the standard to use for determining whether immunity applied. Per the court, “[t]he operative question is whether [the driver] was acting ‘in furtherance of the employer’s business.’ We are compelled to apply this plain language.” Looking at other similar cases, the Court concluded that even though the driver may have been under the influence of opiates, “he performed his job duties, arguably in a negligent manner, by operating a City-owned garbage truck on its assigned garbage collection route. From those facts, we can say he was clearly acting in furtherance of the employer’s business when the accident occurred, thereby entitling him to workers’ compensation immunity.”

Additionally, the plaintiff named the other City employee on the back of the garbage truck with him as a named defendant. Similar to the driver, the Court found that he was also immune from suit as all acts taken by this co-worker were in furtherance of the employer’s business and because the allegations against him were based in negligence and not intentional conduct. Thus, the Court reversed the lower court’s decision and held that the plaintiff’s claims were barred due to workers’ compensation immunity. 

B&W Presents in Wheeling

Equity Member Thomas E. Buck of the Wheeling Office

Thomas E. Buck taught a seminar on how avoid Liability arising out of Section 1983 claims. The focus was Police and law enforcement practices. The course, presented on January 10, 2024 was directed to Supervisors and prevention of Supervisor Liability for first responders. The goal is a proactive approach that prevents any behaviors that could create such a claim.

Motion to Dismiss and Resolution Reached in Wheeling

Equity Partner Thomas E. Buck and Associate Benjamin P. Visnic

The Wheeling office worked with Plaintiff’s counsel in the case of Troia v. Frontier Industrial Corp., et al., CC-15-2019-C-66, and reached a non-monetary resolution between the parties. The Wheeling office represented the City of Weirton in this case when the Plaintiff sued the City for their issuance of blasting permits. In exchange for a revised Ordinance of Article 513: “Explosives” of the Codified Ordinances of the City of Weirton, Plaintiff’s counsel agreed to dismiss the City of Weirton from the lawsuit. This matter was successfully defended by attorneys Thomas E. Buck, Esq. and Benjamin P. Visnic, Esq. If you have any questions about this matter, please call 304-233-3100. 

The Northern District of West Virginia granted the Wheeling office’s Motion to Dismiss in the case of Aster Oilfield Services, Inc., v. Paden City Development Authority, Inc., 5:23-CV-235 (N.D. W. Va. 2023). Plaintiff brought this case in the United States District Court for the Northern District of West Virginia alleging that Paden City defrauded Plaintiff by “making intentional misrepresentations” about Plaintiff’s bid on a demolition and clean up job. The Court granted Defendant’s Motion to Dismiss on the grounds of Statutory Immunity under W. Va. Code § 29-12A-4(b)(1). The Court held that Defendant was immune from Plaintiff’s claims and no exceptions apply to this immunity. This case was successfully defended by attorneys Thomas E. Buck, Esq., and Benjamin P. Visnic, Esq. If you have any questions about this matter, please call 304-233-3100.