Teaming up for the WIN and a couple of
'Hat-Tricks"
The month of March has been exceptional for the attorneys at Bailey & Wyant PLLC. With life slowly returning to normal we have been in court actually attending trials and conducting hearings in person. Most of us have had our first COVID vaccine shot and are doing our part to help stop the spread. We have even had a friendly competition amongst our Charleston office. This month we have 2 attorneys attaining "Hat Tricks." For those of you that are sports enthusiasts you know what that is. For the rest of you a hat trick is the scoring of three goals in one game (as of hockey or soccer) by a single player. In this case three wins for our clients rather than goals. Congratulations to Equity Member John P. Fuller and Associate Jeffrey M. Carder.
Bailey & Wyant PLLC's Managing Member Charles R. Bailey and of Counsel Josef A. Horter.
Teaming up with Texas for Trial
Equity Member Charles R. Bailey and Of Counsel Josef A. Horter, along with counsel from Foley & Lardner, LLP of Houston Texas, obtained a verdict in favor of their clients BB Land LLC and JB Exploration I, LLC against Blackrock LLC after a two week jury trial in the Circuit Court of Pleasants County, West Virginia in the Business Court Division.

The parties to this suit were investors and developers in oil and gas leases and development of production of oil and gas in Pleasants County.  The jury found that Blackrock, LLC first breached the agreement between the parties in a bifurcated jury trial. A hearing to determine damages will be scheduled later this year.
Bailey & Wyant PLLC's Managing Member David L. Wyant and Member Jason P. Pockl.
Summary Judgment obtained in
anti-stacking provision
Bailey & Wyant PLLC's Managing Member David L. Wyant and Member Jason P. Pockl of the Wheeling office obtained Summary Judgment on a complex commercial liability insurance coverage issue in the United States District Court for the Southern Division of West Virginia.

Mr. Wyant and Mr. Pockl successfully defended an anti-stacking provision in a commercial liability policy. The Court ultimately found that the anti-stacking provision was valid and enforceable. Pursuant to this decision, Mr. Wyant and Mr. Pockl successfully excluded coverage under an additional commercial liability policy.
Bailey & Wyant PLLC's Equity Member John P. Fuller and Associate Jeffrey M. Carder.
The Dynamic Duo and Hat Trick Recipients
Bailey & Wyant PLLC's Equity Member John P. Fuller and Associate Jeffrey M. Carder obtained Summary Judgment in the United States District Court for the Southern District of West Virginia on behalf of a group of Correctional Officers. The Correctional Officers were alleged to have use excessive force in extracting the Plaintiff Inmate from a cell.

The Plaintiff had refused to cooperate and voluntarily leave his cell. In granting Summary Judgment, the Court found that the Plaintiff Inmate had simply refused to comply and the disturbance had gone on for well over an hour. The Correctional Officers had given the Plaintiff Inmate numerous opportunities to leave his cell peacefully but instead left the Correctional Officers no choice but to enter the cell and forcibly take control of the Plaintiff Inmate.

John P. Fuller and Jeffrey M. Carder also obtained the dismissal of various Correctional Officers in a suit filed before the Circuit Court of Kanawha County, West Virginia. The Correctional Officers were alleged to have used excessive force against the Plaintiff Inmate on two separate occasions. The Court dismissed the case with prejudice.
Bailey & Wyant PLLC's Equity Member Thomas E. Buck and Associate Benjamin P. Visnic of the Wheeling Office.
Corrections Case Moved to Dismissal
The Wheeling Office was victorious in the matter of Joshua Daniel Stevens v. Betsy Jividen, et al., 1:18-CV-140 (N.D. W. Va.), successfully moving to dismiss the claims against a number of West Virginia Department of Corrections officials. Plaintiff alleged, in relevant part, that he fell while restrained on the way to the shower, and that this fall constituted violations of the 8th and 14th Amendments.

The Court agreed with Defendants that, inter alia, “slip and fall cases do not implicate the constitution,” and that Plaintiff’s supervisory liability claims were equally meritless. This matter was successfully defended by Thomas E. Buck, Esq., and Benjamin P. Visnic, Esq. 
Bailey & Wyant PLLC's Member Jordan K. Herrick and Associate Adam K. Strider.
Exceptional Defense for the WVDOC
Bailey & Wyant PLLC's Member Jordan K. Herrick and Associate Adam K. Strider obtained dismissal of medical care providers for the West Virginia Division of Corrections in regard to a claim made by an inmate that the medical care providers violated his Constitutional rights for allegedly failing to provide him with proper medical treatment following an incident when he fell and claims he hurt his head. The Court found that the inmate failed to allege that the medical care providers did anything inappropriate as it pertains to his medical care following the incident.

Mr. Herrick and Mr. Strider also obtained summary judgment in the United States District Court for the Southern District of West Virginia on behalf of a doctor providing medical treatment to a prisoner. The inmate alleged that the doctor violated his Eighth Amendment rights in the alleged failure to treat his medical condition allegedly resulting in his inability to walk. The District Court found that the doctor was not deliberately indifferent to the inmate’s medical needs and entered judgment in favor of the doctor.
Summary Judgment in favor of the WVDEP
Bailey & Wyant PLLC's Associate Jeffrey M. Carder, Equity Member John P. Fuller
and Member Daniel T. Lemasters.

Bailey & Wyant PLLC's Equity Member John P. Fuller, Member Daniel T. LeMasters, and Associate Jeffrey M. Carder successfully prosecuted an appeal before the Supreme Court of Appeals of West Virginia on behalf of the West Virginia Department of Environmental Protection.

Plaintiffs, a potential group of over 100 individuals, alleged that the WVDEP had negligently issued a surface mining permit and negligently inspect a mining operation in McDowell County, West Virginia and that said alleged negligence had resulted in flooding along Bull Creek in 2014. The WVDEP moved for Summary Judgment in the Circuit Court asserting that it was entitled to qualified immunity for discretionary decisions made with regard to the decision to issue the permit and the manner of enforcing the permit once it was issued.

The Circuit Court denied Summary Judgment finding that material issues of fact remained to be decided. Oral Arguments were held before the Supreme Court of Appeals of West Virginia on February 10, 2021 and the Court published its Opinion on March 16, 2021. The Court held that the WVDEP was entitled to qualified immunity for discretionary decisions made during the permitting process. Additionally, the Court held that, while the WVDEP has a non-discretionary duty to enforce SCMRA, the manner of enforcement was discretionary. Ultimately, the appellate Court overturned the Order denying Summary Judgment to the WVDEP and remanded the case back to the Circuit Court of McDowell County, West Virginia, directing the Circuit Court to enter an Order granting Summary Judgment in favor of the WVDEP.
Client expresses, "Bailey & Wyant PLLC was a God send"
Bailey & Wyant PLLC's Associate Jeffrey M. Carder
Attorney Jeffrey Carder and the Bailey & Wyant workers’ compensation team secured another big win for its client this month. The claimant in this matter protested a claims administrator’s order denying his claim for occupational pneumoconiosis. The claimant filed his application for benefits in 2019 indicating that he had recently been diagnosed with asbestosis and that he believed that he was exposed to asbestos while working as an electrician for the employer. The claimant had retired in 2014. W. Va. Code § 23-4-15(b) addresses the period of time in which a claimant must file his claim for occupational pneumoconiosis.

For an employee to be entitled to occupational pneumoconiosis benefits, the application must filed within 3 years from the last day of exposure or within 3 years from the date the employee was diagnosed with occupational pneumoconiosis or it was made known to the employee that he had occupational pneumoconiosis, whichever is longer. The claimant in this matter argued that whereas he had retired in 2014, more than 3 years from the date of last possible exposure from filing his application for benefits in 2019, he only became aware of his diagnosis when he underwent breathing studies at the Occupational Lung Center in 2019 and therefore was within the statute of limitations for filing his claim. However, Bailey & Wyant attorneys were able to uncover through discovery old medical records and a prior occupational pneumoconiosis claim filed by the claimant. These records demonstrated that the claimant had been diagnosed with asbestosis as early as 1990, long before the claimant came to work for the employer in this matter and had received benefits under an occupational pneumoconiosis claim filed with his employer back in the 90s. Records also demonstrated that he received treatment and monitoring for his condition somewhat frequently, documenting a diagnosis of asbestosis throughout the years leading up to 2014.

In being presented with this evidence, the West Virginia Workers’ Compensation Office of Judges affirmed the claims administrator’s order denying the claim. Because the claimant’s last possible date of exposure was in 2014, more than 3 years before filing his application, and the claimant’s own medical records demonstrated that he knew or should have known about his diagnosis more than 3 years before filing his application, the claimant’s application for benefits was not timely and the claims administrator’s order was correct in denying the claim.

The client was extremely pleased with all of Bailey & Wyant PLLC's work on this claim, especially that the attorneys took time out of their day to keep them updated throughout the process. The client expressed that Bailey & Wyant was a God send.
Wheeling Welcomes new Associate
Bailey & Wyant PLLC's Wheeling Office welcomes new Associate Lakyn D. Cecil.

Lakyn D. Cecil is originally from New Martinsville, West Virginia. She attended college at West Virginia University in Morgantown, West Virginia where she graduated cum laude and earned a Bachelor of Arts in Criminology with a double minor in Forensic and Investigative Sciences and Biology. Lakyn earned her J.D. from West Virginia University College of Law with a concentration in Employment and Labor Law in 2020.
 
While in law school, Lakyn was President of the Sports and Entertainment Law Society and Vice President of Health Law and WV Employment Lawyers Association Student Chapter. She also graduated law school with Community Service Honors and Pro Bono Distinction.
 
Lakyn gained legal experience through her legal internships with Gold, Khourey & Turak, the United States Attorney’s Office Northern District of West Virginia, Mon Health System, and WVU Health System. After graduation, Lakyn joined Bailey & Wyant, PLLC’s Wheeling office as an Associate.
The Application of Qualified Immunity in Cases...

Article written by Samuel Bloom
Please click on the link below to read the article.


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Bailey & Wyant, PLLC
304-345-4222