Recent Verdicts & Settlements
"Representative government and trial by jury are the heart and lungs of liberty." ~John Adams (1774)
Here is a listing of some or our recent verdicts and settlements
Shamblin v. 7-Eleven, Inc. and Prima Marketing
Type of Case: Dram Shop Liquor Liability
On December 15, 2006, Jeremy Lee Shamblin and his children, Cody James Shamblin (age 7) and Haylee Dawn Shamblin (age 7), were traveling southbound on the highway in Mr. Shamblin's pick-up truck when another pick-up truck traveling northbound in the southbound lane struck Mr. Shamblin's pick-up truck head on. All occupants of both vehicles were killed in the accident. Two men in the other pick-up truck registered blood alcohol levels in excess of the legal limit. The Shamblin family retained Chris Heavens and Heavens immediately sent an investigator to trace the whereabouts of the intoxicated men prior to the accident. It was learned that the men had been drinking at a 7-Eleven store parking lot during a 4-hour period leading up to the accident. Heavens immediately sent a letter to 7-Eleven requesting that they preserve all video surveillance footage from December 15, 2006. This proved critical to the case. Once the store surveillance video footage was turned over during the lawsuit, it showed the intoxicated men buying three bottles of wine at the 7-Eleven store. Heavens' investigator obtained witness statements confirming that the men had consumed the wine on the 7-Eleven parking lot in plain view. The witness statements also proved critical, since 7-Eleven initially asserted that the men left the 7-Eleven store parking lot after purchasing the wine.
7-Eleven, Inc. denied responsibility and asserted that it had no involvement in the operation of the subject 7-Eleven store. It asserted that Prima Marketing was a franchisee and totally independent of 7-Eleven, Inc. Prima also denied responsibility and disputed the witness statements, asserting that the men were not visibly intoxicated and not drinking on the store parking lot. Heavens was able to uncover evidence that 7-Eleven Inc. was involved in the operation of the franchise, actually showing how 7-Eleven shared profits on the sale of alcohol and tracked by computer the sales at its franchises. The case was eventually settled with all defendants contributing to the settlement.
Convenience Store Surveillance Video
Note: This case points to the importance of an attorney's use of an investigator and a thorough investigation early in the case. It also points to the importance of a person retaining a lawyer immediately; something that I always recommend. An attorney's early involvement and focus on evidence preservation is critical. By immediately requesting that 7-Eleven preserve its video surveillance tape, defendants were not able to dispose of the videotape without facing potential court sanction and possibly the wrath of a jury.
Boner V. Keenan Industries, Inc., Robert Keenan, Individually; Dunn Coal And Dock; Cyprus Amax Minerals Company; Cyprus Amax Coal Company; Cannelton Coal Industries, Inc.; Cannelton Coal Company; Kanawha River Mining Company; Mariners Museum-Huntington Trust; J.C. Hamer, Inc.; and Forest Land Services, Inc.
John Boner was a forester working for Keenan Industries on a mountain top removal clear cut job. Prior to blasting the mountain to remove coal, the landowner has the timber "clear cut" and sold for profit. During the operation, Mr. Boner was killed when a large rock became dislodged as a result of a bulldozer being improperly operated above foresters on the mountain. Mr. Boner's employer and its insurance company denied that the bulldozer caused the accident and attributed the accident to an "act of God."
The Boner family retained Chris Heavens when it could not get straight answers. Heavens investigated and determined that Keenan Industries was hired and controlled by another firm that actually contracted to perform the work. Heavens also learned that the property in question fell under the purview of a mining permit, making it illegal for the timbering companies to place non-certified miners on-site. Heavens filed a lawsuit on behalf of the Boner family against all of the timbering companies, the mining company and the landowner.
Heavens hired mine safety and timbering experts to assist in presentation of all theories of liability on behalf of the Boner family. Eventually, all of the defendants settled the case.
Result: $4.5 Million Dollar Settlement
Jones v. Trustmark Insurance Company and Ward Services, Inc.
Type of Case: Insurance Bad Faith
Gary Jones worked as a meat cutter in a market for his entire life. One day Ward Services came to the market and sold Mr. Jones a short-term disability policy issued by Trustmark. Mr. Jones was later disabled because of a heart ailment and Trustmark denied the claim, alleging that Mr. Jones failed to disclose the condition during the application process. Mr. Jones maintained throughout the process that he fully disclosed all medical conditions, including his heart condition, to the Ward Services agent.
Mr. Jones retained Chris Heavens. Heavens sued Ward Services and Trustmark, alleging breach of contract and bad faith. Heavens investigated the Ward Services agent involved in Mr. Jones application and uncovered evidence of past fraud, both as a stockbroker and insurance agent. The agent had previously lost his securities license and his insurance agent's license. Trustmark attempted to cut Ward Services and the agent loose by asserting an independent contractor defense.
After the deposition of the agent, the case was settled for a confidential amount well in excess of what it would have cost the companies to simply pay Mr. Jones' claim. Both companies contributed to the settlement.
Mouser v. Trustmark Insurance Company and Ward Services, Inc.
Type of Case: Insurance Bad Faith
James Michael Mouser was a manager at the market where Gary Jones worked as a meat cutter. Mr. Mouser was disabled because of a heart ailment, which actually resulted in him having a heart transplant. Mr. Mouser's doctor instructed him to stop working when his condition began to deteriorate. Mr. Mouser filed a disability claim and Trustmark denied his claim, asserting that he was suffering from the heart ailment at the time of the application and failed to disclose it to the agent.
Chris Heavens discovered Mr. Mouser's situation when Heavens began investigating and conducting discovery in the Jones case. Mr. Mouser asked Mr. Heavens for help and Heavens obliged. Heavens had already uncovered evidence of fraud by the Ward Services agent involved in both the Jones and Mouser applications. Mr. Mouser maintained that he fully disclosed his heart ailment at the time of the application and, in fact, that the heart ailment was the reason he was applying for the insurance. In addition, there was a witness present for Mr. Mouser's application who attested to the fact that he did disclose his heart condition to the agent.
Mr. Mouser's case was settled for a confidential amount well in excess of what it would have cost the companies to simply pay his claim. Both companies contributed to the settlement.
McCoy v. Kentucky Nat'l Ins. Co., W. Va., Mingo County Cir. Ct., No. 98-C-14, May 26,2000.
The McCoys' home was damaged in a fire. They submitted a claim to their insurer, Kentucky National Insurance Company, which hired Crawford & Company to investigate and adjust the claim. The investigator concluded the fire was incendiary. Kentucky National then canceled the McCoys' policy and refused to provide them with a copy of the investigator's report.
The McCoys' dwelling policy limit was about $93,000 and their personal property limit was about $45,000. They estimated that their property damage and personal property losses each exceeded $100,000. A contractor hired by Crawford provided a dwelling repair estimate of $56,000, which Crawford offered for the dwelling repairs. Crawford offered about $30,000 for the personal property. After the McCoys refused to settle for these amounts, Kentucky National tried to force them into appraisal.
The McCoys hired Chris Heavens. Heavens sued Kentucky National, alleging it violated state law by canceling their policy. Heavens also alleged that defendant acted in bad faith by refusing to pay full policy benefits and trying to force plaintiffs to resubmit personal property inventory forms and submit to appraisal.
Defendant filed a third party complaint against Crawford & Company, alleging that it was solely responsible for violations of state law because defendant hired it as an independent contractor to handle plaintiffs' claim.
The parties settled before trial for $512,000. Kentucky National contributed $462,000, and Crawford & Company, the remainder.
Bobby Beasley vs. Mayflower Vehicles Systems, Inc., United States District Court, Southern District of West Virginia, Civil Action No.: 2:04-0505.
Type of case: Wrongful Employment Termination
Bobby Beasley had previously sued Mayflower because of a workplace injury (Chris Heavens obtained a $300,000 settlement for Mr. Beasley in a previous lawsuit). Upon returning to work from his injury, Mr. Beasley was offered a management position with the company. Mr. Beasley accepted the management position with the company and was later terminated from employment. Chris Heavens again sued Mayflower on behalf of Mr. Beasley; this time alleging that Mayflower illegally retaliated against Mr. Beasley because of his previous lawsuit against the company. The case went to trial in Federal Court and the jury returned a verdict in favor of Mr. Beasley, awarding him $100,000 in back wages, $35,000 for emotional distress and $35,000 in punitive damages. Result: $165,000 Jury Verdict.
Counsel: Christopher J. Heavens, Charleston, WV
Kelly Repko v. Chichester School District, Court of Common Pleas, Delaware County, Pennsylvania, Case No.: 04-6979
Type of Case: Student Injured on School Property
Kelly Repko was injured at Chichester High School when a stage riser left in the gym leaning against the bleachers fell on her leg. Ms. Repko was a student participating in gym class at the time of the injury. Her medical bills were approximately $3,500. Ms. Repko suffered a scar on the back of her Achilles tendon as a result of the injury. The Repko family contacted Chris Heavens because they felt that the school district's insurance company was treating them unfairly. The insurance company refused to make a settlement offer to Mr. Heavens and a lawsuit was filed. At trial, Ms. Repko testified about the pain, discomfort and limitations created by her foot injury and about her future ambition to be a nurse. Ms. Repko's foot doctor testified at trial about how Ms. Repko's foot injury had impacted her in the past and would impact her in the future, particularly her career as a nurse. Result: $250,000 Jury Verdict.
Counsel: Christopher J. Heavens, Boothwyn, PA
Tony Mistecka vs. Burman’s Home Health Care, Inc., Court of Common Pleas Philadelphia County, Case No.: 02-1816
Type of Case: Pedestrian Struck by Vehicle.
Tony Mistecka was a self-employed contractor involved in a renovation project in Chester, PA, on October 11, 2001. On that date, Mr. Mistecka went out to his pick-up truck to retrieve some tools from the tool box located on his pick-up truck. While reaching into his tool box, Mr. Mistecka was struck by a delivery van owned by Burman's Home-Health Care, Inc. The force of the impact caused Mr. Mistecka to be thrown into the middle of the street. He suffered a fracture to his lower right leg. The insurance company for Burman's Home-Health Care, Inc., later attempted to blame Mr. Mistecka for the accident by asserting that he was in the middle of the street at the time of the impact. However, the van driver's original statement that he did not see Mr. Mistecka suggested that Mr. Mistecka could not have been in the middle of the street. Mr. Mistecka recovered from his injuries and was able to return to work. The insurance company for Burman's settled the case. Result: $400,000 settlement.
Counsel: Christopher J. Heavens, Boothwyn, PA Robert McCann, Esquire, McCann, Schaible and Wall, Philadelphia, PA.
Joseph E. Keys vs. Keystone Floor Products Co., Court of Common Pleas Philadelphia County, Case No.: 05-1347
Type of Case: Workplace Injury
Joseph Keys, age 53, was a self-employed flooring contractor by trade. On October 23, 2004, Mr. Keys went to Keystone Floor Products, Co., in Bensalem Pennsylvania, to pick-up a roll of carpet for a job. It was customary for contractors to go into the warehouse area of Keystone Floor Products and wait for their deliveries. While in the warehouse on October 23, 2004, a forklift operator for Keystone struck Mr. Keys with a roll of carpet while making a turn. Mr. Keys was thrown about 15 feet by the force of the impact and suffered a broken hip, which required surgical repair. Eventually, Mr. Keys underwent hip replacement surgery. Result: $900,000 Settlement.
Counsel: Christopher J. Heavens, Boothwyn, PA. Robert McCann and Wayne Schaible, Esquire, of McCann, Schaible & Wall, Philadelphia, PA.
Sharon Drake, as Administratrix of the Estate of Nannie Hager v. Laura Lee Muncy, William E. White, State Farm Insurance Company, Circuit Court of Mingo County, West Virginia, Civil Action No.: 01-C-39
Type of Case: Wrongful Death and Insurance Company Bad Faith
On October 30, 1999, Nannie Hager was injured in a motor vehicle accident. Months later, Ms. Hager passed away as a result of her injuries. The driver of the other vehicle, Laura Muncy, was driving her stepfather's vehicle, which was insured by State Farm. Ms. Hager's family contacted Chris Heavens to assist them. State Farm was offering a $100,000 vehicle policy limit to the family, but requesting a release. Heavens investigated and analyzed the family's options. He counseled them not to sign the release because it would have prevented them from collecting other potential benefits. Mr. Heavens filed suit against both vehicle operators, demanding another $100,000 from Allstate, the insurer of the vehicle in which Ms. Hager had been a passenger. He also demanded an additional $100,000 in underinsured benefits from Allstate. Allstate initially refused to pay these claims. After the lawsuit was filed, Allstate agreed to pay $200,000 to the family. State Farm's $100,000 offer continued to be extended. However, Mr. Heavens discovered that the driver of the other vehicle, Laura Muncy, had been a resident of her biological father's household. Mr. Heavens demanded information on the biological father's vehicle insurance, since the daughter could be covered on that insurance policy. It was learned the State Farm insured the biological father for $50,000. State Farm refused to pay that $50,000 to the Hager family. Mr. Heavens then filed suit against State Farm alleging, in part, that State Farm had failed to promptly disclose the existence of the $50,000 State Farm policy and that State Farm unfairly refused to make a settlement offer from the $50,000 policy. The court ruled that the Hager family was entitled to the $50,000 in additional insurance. State Farm eventually settled the bad faith case for $393,000. Result: $693,000 Total Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Bobby Beasley vs. Mayflower Vehicles Systems, Inc., Circuit Court of Kanwaha County, West Virginia, Civil Action No.: 00-C-1874
Type of case: Workplace Injury
Bobby Beasley suffered a fracture of his leg when a steel sheet dislodged from a rack at Mayflower Vehicle Systems. A fork lift struck the rack and caused the steel sheet to become dislodged and strike Beasley's leg. Beasley alleged that Mayflower stopped its practice of securing the steel sheets with straps prior to his accident and that the straps, had they been utilized, would have prevented the accident. Beasley also alleged that Mayflower retrofitted the racks with safety lips after his accident. Further, Beasley alleged that Mayflower was aware of the hazards created by the racks when the steel sheets were not strapped, since, before his accident, steel sheets had become dislodged because of the lack of straps and/or safety lips. Beasley was out of work for over one year as a result of his injuries. Result: $300,000 Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Tammy Hess, as Executrix of the Estate of Ruth Hess, and John Keith Hess, individually, v. Homeq Servicing Corporation, as successor of TMS Mortgage, d/b/a The Money Store; Alfred Venditti as agent for North Central Life Insurance, Circuit Court of Mingo County, West Virginia, Civil Action No.: 01-C-217
Type of Case: Insurance Company Bad Faith
On August 7, 2000, Ruth Hess passed away. Her family submitted
a credit life insurance claim to North Central Life Insurance Company
to pay the $40,000 mortgage lien on Mrs. Hess' home. Mrs. Hess had
applied for credit life insurance with North Central when she refinanced
her home with The Money Store several years earlier. North Central
denied the claim of the Hess family, asserting that Mrs. Hess never
had coverage bound because she stated on her application that she
had health problems. Furthermore, North Central asserted that it
had sent a denial letter to Mrs. Hess soon after the application
was completed. The Money Store asserted that it had credited the
insurance premium charged to Mrs. Hess' back against the Money Store
mortgage soon after North Central sent out its denial letter. The
Money Store changed the locks and Ruth Hess' home and prepared to
foreclose. Chris Heavens was retained by the Hess' family attorney,
Greg Smith. Mr. Heavens sued North Central and The Money Store,
alleging that defendants violated West Virginia law by not having
a licensed agent present for the taking of Mrs. Hess' application.
Mr. Heavens further alleged that the defendants failed to comply
with written notice requirements imposed by West Virginia law in
denying coverage to Mrs. Hess. The defendants asserted that there
could be no coverage because the face of the application clearly
stated that persons answering yes to the health question were not
entitled to coverage. The defendants further alleged that their
written notice of denial to Mrs. Hess was proper. Result: $400,000
Settlement (Plus release of the $40,000 lien on Mrs. Hess'
home).
Counsel: Christopher J. Heavens, Charleston, WV Greg K. Smith, WIlliamson, WV
Kimberly K. Lester, as Administratrix of the Estate of Cornell Lester, v. Gilbert Distributing, Inc.
Type of Case: Wrongful Death
On December 6, 2000, Cornell Lester, Jr. (age 27) was burned to death while refueling his truck with diesel fuel. Mr. Lester was self-employed as a coal hauler and was survived by his wife and daughter. After investigating the facts and circumstances surrounding Mr. Lester's death, Chris Heavens filed suit against the company that delivered diesel fuel to Mr. Lester's diesel storage tank on his property. Testing of the diesel fuel revealed that there was gasoline contamination. Heavens' expert theorized that without said contamination there could not have been ignition or a fire under the circumstances presented. Heavens alleged that defendant was responsible for the contamination was strictly liable for all damages to Mr. Lester's wife and child. Defendant denied that it was responsible for the contamination and further asserted that the cause of the fire could not be determined. Result: $1,500,000 Settlement.
Counsel: Christopher J. Heavens, Charleston, WV H. Truman Chafin, Williamson, WV
Sebastian v. Tri-Amerika Contractors (no lawsuit filed)
Type of Case: Wrongful Death
Eight year old Sean Sebastian was struck and killed by vehicle when crossing the road on Halloween night. The impact occurred in the middle of the road in a curve and the child was wearing a black costume. The family hired Chris Heavens to represent them. Mr. Heavens hired an accident reconstruction expert and a visibility expert to assist him in determining whether the driver could have avoided the accident. There was no evidence that the driver attempted to brake or take any evasive action. Heavens was able to utilize his expert opinions and argue that a minimum amount of braking and/or evasive action would have likely lead to a lesser impact and/or no impact at all with the child. Result: $525,000.00 Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Mona Whitt, as Administratrix of the Estate of Holly Renee Elliott, v. Jackie Lee Thomas; Renick and Shirley Jones; William Cody Jones; Jeremy Treadway, and State Farm Fire and Casualty Company, Circuit Court of Kanawha County, West Virginia, Civil Action No.: OO-C-3171
Type of Case: Wrongful Death
Sixteen-year-old Holly Elliott was killed while riding on the back of an ATV which was being operated by a male under the age of 21. Elliott and the male were both under the influence of alcohol. Elliott's family hired Chris Heavens to represent them when Nationwide and State Farm refused to make any settlement offer. Heavens filed suit against the operator of the ATV and the owner of the ATV. Heavens also filed suit against the adults who hosted the "keg party" where Elliott and other juveniles consumed alcohol prior to the accident. The case presented two issues of first impression. First, since the State does not have social host liability, can a person be sued for serving a minor alcoholic beverages to the point of intoxication? Second, does a homeowner insurer have to provide coverage on a social host theory of liability, if there is no such tort in the law? The homeowner insurers of the various defendants were Nationwide and State Farm. Nationwide paid its $100,000.00 policy limit to the Elliott family on behalf of the operator of the ATV. State Farm denied coverage to the owner of the ATV who negligently entrusted the ATV, and State Farm reserved its rights in providing a defense to one of its insureds who was involved in purchasing the keg for the party. Heavens asserted that serving minors alcohol trumped the social host liability issue and put the case into the realm of corrupting the morals of minors. Thus, Heavens contended to State Farm that there would be social host liability if minors were being served. The defendants contended that there was no social host liability under the facts of the case, irrespective of minors being involved. Result: Confidential Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Clinton Jarrell, an infant, by his mother and next friend, Jo Ann Jarrell, vs. Mountain State Outfitter, Inc., Blue Water Ropes, Inc., Blue Water Limited, Omega Pacific, and NTR, Inc. Circuit Court of Mingo County, West Virginia, Civil Action No.: 00-C-427
Type of Case: Product Liability
Twelve-year-old Clinton Jarrell suffered a paralysis injury when his father, Todd Jarrell, fell on him while the father was rappelling. The family of Clinton Jarrell retained Chris Heavens because the carabiner that Todd Jarrell was using had improperly opened during the rappelling activity. Mr. Heavens retained a product design expert and rappelling expert to review the case. The experts were critical of the carabiner locking system and lack of warnings. They were also of the opinion that Todd Jarrell acted appropriately. Mr. Heavens then filed a strict liability suit alleging that the carabiner that Todd Jarrell was using at the time of the accident was defective. Plaintiff alleged that the defective nature of the carabiner caused it to accidentally open while Todd Jarrell was rappelling, causing him to plummet onto Clinton Jarrell who was standing below him. The state of the art in design at the time did not require auto locks or warnings on the product. Result: $4,500,000 Settlement.
Counsel: Christopher J. Heavens, Charleston, WV H. Truman Chafin, Williamson, WV
Leon Sponaugle and Trudy Sponaugle individually and as Parents and Next Friend of Matthew Sponaugle, a minor, v. Guest Services, Inc., and State Of West Virginia, Department Of Parkways Economic Development and Tourism Authority, Circuit Court of Kanawha County, West Virginia, Civil Action No.: 96-C-2375
Type of Case: Ski Resort Liability
On March 5, 1995, 13-year-old Matt Sponaugle fell and slid into a light pole while skiing at Canaan Valley Resort. Matt suffered a complete paralysis injury because of hyper flexion at T8-T9. His medical bills were about $253,000. The Sponaugle family contacted several lawyers who turned down the case before Chris Heavens agreed to take the case. Suit was filed against Guest Services and the State of West Virginia because Guest Services runs Canaan Valley Resort and the State controls work performed on trails at the resort. Mr. Heavens alleged that Guest Services failed to properly maintain a pad on a light pole and that Matt Sponaugle struck the unpadded pole. Plaintiffs alleged that the unpadded pole was a proximate cause of the paralysis injury. Mr. Heavens retained a biomechanical expert from M.I.T. That expert testified that, if the pad was in proper position, it would have greatly limited flexion and prevented the paralysis injury. Mr. Heavens also retained a ski trail design expert who opined that the particular trail where the accident occurred was negligently designed and dangerous, and that that too was a proximate cause of Matt Sponaugle's injuries. Defendants countered that the pad was properly maintained and the trail was properly designed and adequate. Defendants argued that Matt Sponaugle was skiing out of control and at excessive speed. Defendants also argued that they were immunized from liability under the Skiing Responsibility Act (W. Va. Code §20-3A-1, et seq.), and that they had no duty to pad the subject light pole because such a duty is not set forth in the Act. Result: Confidential Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Coleman Tyree, et al. v. Southern States Corporation, Inc., et al., Nicholas County Circuit Court, Civil Action No.: 95-C-13
Type of Case: Negligent Fuel Delivery
Mr. and Mrs. Tyree were injured in a house explosion. The Tyrees had a well pump underneath the crawl space at their home. Their home was heated by propane and there was a slow leak in the propane line in the crawl space at their home. Over a period of months, the propane leak worsened and the Tyrees complained to the propane delivery company, Southern States, that their propane consumption and bills were increasing for unexplained reasons. Eventually, the Tyrees began to detect an odor of propane and they complained to Southern States about the odor. In response to the Tyrees' complaints, Southern States had a technician check the propane tank and connecting line for leaks. When none were found, Southern States told the Tyrees that there were no leaks. Southern States took no action to trace the propane line running into the Tyrees' home. One day when Mr. Tyree flushed the toilet at his home, it caused the electric well pump to operate and the electrical charge from the well pump motor caused an explosion that totally destroyed the Tyree's home and injured them. Propane had collected in the crawl space due to the worsening leak. The Tyrees filed suit against Southern States alleging negligence. The Tyrees alleged that Southern States knew or should have known of the existence of a leak, notwithstanding the fact that no leak was found at the propane tank or connecting lines. The Tyrees alleged that Southern States had a duty to either trace the line to find the leak or to stop delivering propane until the leak was repaired. Southern States countered that they were not aware of the leak and not responsible for propane lines in the Tyrees' home. Southern States stated that the inspection of internal lines required a service call and separate charges that the Tyrees never requested. Result: Confidential Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Randy Lee Brown, vs. Bartlett Concrete, Inc, Smith Bartlett; Melanie Bartlett; Eddie L. Johnson; and Delinda J. Johnson, Circuit Court of Kanawha County, West Virginia, Civil Action No.: 00-C-1882
Type of Case: Workplace Injury
On August 2, 1999, Randy Brown was operating a concrete mixer truck for Bartlett Concrete when the brakes failed and Mr. Brown lost control of the truck. Mr. Brown was severely injured in the one vehicle accident that followed. Chris Heavens collected workers compensation benefits and Social Security disability benefits for Mr. Brown. Mr. Heavens then filed a lawsuit against Bartlett Concert, alleging the Bartlett intentionally exposed Mr. Brown to a condition which it knew could cause serious injury or death to him. Discovery in the case indicated that WVDOT inspected the subject truck following the accident and concluded that the truck lacked sufficient brakes at the time of the accident. The defendant disputed that the brakes were insufficient prior to the accident and contended that the brakes were damaged in the wreck. The defendants further contended that Mr. Brown was responsible for inspecting the truck before taking it out on the road and that any deficiency in the brakes should have been noted by him in advance of the accident. Mr. Brown's expert, Gary Huey, cited state and federal regulations in opining that the duty to maintain the truck rested exclusively with Bartlett Concrete and opined that Mr. Brown's pre-trip inspection would not have likely revealed the problem with the brakes on the truck. Result: Confidential Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
John Cobb vs. Pennzoil Products Company and Advance Stores Company, Inc., United States District Court, Northern District of West Virginia, Civil Action No.: 5:01CV69
Type of Case: Product Liability
John Cobb and his cousin replaced the carburetor on an old car. Mr. Cobb was using Gumout carburetor cleaner because the car would not start. While his cousin was cranking the starter, Mr. Cobb was spraying Gumout into the carburetor. During this process, there was an explosion and Mr. Cobb was severely burned. Chris Heavens took legal action against Pennzoil, the manufacturer of Gumout, alleging that the product was defective and lacked adequate warnings and/or instructions.
Pennzoil countered that the product was safe and included adequate warnings and/or directions. It was learned that there were other lawsuits against Pennzoil stemming from explosion incidents involving this product. Mr. Heavens contended that the product could have been made safer by using a delivery system different than the aerosol system employed and that Pennzoil was on notice of the dangerous propensities of the product by virtue of the other lawsuits. Result: Confidential Settlement.
Counsel: Christopher J. Heavens, Charleston, WV Scott Blass, Wheeling, WV
David L. Smith vs. Guest Services, Inc., and State of West Virginia, Division of Natural Resources Parks and Recreation, Circuit Court of Kanawha County, Civil Action No.: 01-C-71
Type of Case: Ski Resort Liability
On December 22, 1995, David Smith fell and slid off of a trail while skiing at Canaan Valley Resort. David suffered a complete paralysis injury. Suit was filed against Guest Services and the State of West Virginia because Guest Services runs Canaan Valley Resort and the State controls work performed on trails at the resort. Chris Heavens learned about David Smith's case while investigating Matt Sponaugle's case (SEE: Sponaugle synopsis herein above). When Mr. Heavens contacted David Smith, he learned that several other lawyers had reviewed and refused to take David Smith's case. Mr. Heavens agreed to take David Smith's case. Mr. Heavens alleged that Guest Services failed to properly maintain the trail and to protect skiers from a foreseeable risk of going off of the trail and down into a creek bed. Mr. Heavens also alleged that the particular trail where the accident occurred was negligently designed and dangerous, and that the orange plastic containment fence at the edge of the trail was an inadequate method of preventing skiers from going off of the trail and into a creek bed.
Defendants countered that the trail was properly designed and adequate.
The defendants contended that the orange plastic containment fence was merely a "warning" fence not designed to keep skiers from going off of the trail, but merely designed to warn skiers that they are approaching the edge of the trail. Defendants argued that David Smith was skiing out of control and at excessive speed. Defendants also argued that they were immunized from liability under the Skiing Responsibility Act (W.Va. Code §20-3A-1, et seq.), and that they had no duty to place fencing or to maintain areas off of the trail in a safe condition because such duties are not set forth in the Act. Result: Confidential Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Sean Keene v. James Keene, Rick Knight, and Allstate Insurance Company, United States District Court, Southern District of West Virginia, Civil Action No.: 3:03-2126
Type of Case: Insurance Bad Faith
Sean Keene was accidentally shot by his uncle while hunting. His uncle had an Allstate homeowner's insurance policy. Allstate opened a liability claim file and concluded that liability was reasonably clear against the uncle within a month or so following the accident. Mr. Keene did not have health insurance. Mr. Keene retained Chris Heavens to represent him when Allstate failed to make a settlement offer to him in what he believed to be a reasonable time frame. Mr. Heavens immediately obtained the $100,000 Allstate policy limit and then filed a lawsuit against Allstate for bad faith. Result: Confidential Settlement.
Counsel: Christopher J. Heavens, Charleston, WV
Dorothy L. Hawkins and Paul E. Hawkins, v. Ford Motor Company, Circuit Court of Kanawha County, West Virginia, Civil Action No.: 97-C-1371
Type of case: Products Liability
Paul Hawkins owned a Ford Aerostar van. The van caught on fire and was totally destroyed. The Aerostar model had an ignition switch that was known to cause fires and had been recalled by Ford. The fire in Mr. Hawkins' Aerostar originated in the driver dash area. Ford denied Mr. Hawkins' claim. Mr. Hawkins retained Chris Heavens to assist him in getting full compensation for his losses. Ford denied the claim of Chris Heavens and a lawsuit was filed against Ford. At trial, Ford denied that the ignition switch caused the fire and put on an elaborate defense with experts and diagrams to show how the ignition switch could not have caused the fire. Mr. Heavens obtained a verdict against Ford on both breach of warranty and strict product liability theories. Mr. and Mrs. Hawkins received the book value of their vehicle and $1,000 for annoyance, aggravation and inconvenience. Mr. Heavens then moved for the award of all attorney fees and costs, which the trial court denied. Heavens then appealed to the Supreme Court and the Supreme Court reversed the trial court, ordering the trial court to award Mr. Heavens his fees and costs ($30,000+). The Hawkins case established for the first time in West Virginia law that consumers who prevail on a breach of warranty claim are automatically entitled to their attorney fees and costs. On remand, Ford paid all outstanding fees and costs to Mr. Heavens, plus the damages awarded to Mr. Hawkins by the jury. Result: Jury Verdict.
Counsel: Chrisopher J. Heavens, Charleston, WV
Nationwide Insurance Company v. Jeffrey Cline, Circuit Court of Mingo County, West Virginia, Civil Action No.: 03-C-189
Jeff Cline and his wife had a fire in 1991 that totally destroyed their house. Nationwide hired a cause and origin expert and electrical engineer to determine the cause of the fire. The heat pump in the house was identified as the cause of the fire. Nationwide paid approximately $125,000 on the claim of Mr. and Mrs. Cline. Jeff Cline and his wife were subsequently divorced. After the divorce, Mr. Cline's ex-wife contacted Nationwide and implied that Mr. Cline had deliberately set the fire or procured the assistance of some third parties to set the fire. Nationwide then filed a lawsuit against Mr. Cline alleging that he committed arson and fraud. Nationwide made no attempt to contact Mr. Cline before filing suit. Mr. Cline contacted his friend, attorney Greg Smith, when suit was filed. Mr. Smith then asked Chris Heavens to help him. Mr. Heavens immediately contacted the experts who had investigated the house fire back in 1991. Both experts stated that Nationwide had not contacted them to discuss the allegations of Mr. Cline's ex-wife.
Both experts stated to Mr. Heavens that they were sticking with their original opinions. Mr. Heavens filed a counter-suit against Nationwide, alleging fraud, bad faith, malice and intentional infliction of emotional distress. Nationwide eventually dropped its lawsuit against Mr. Cline and agreed to settle his counter-claims. Result: $500,000 Settlement.
Counsel: Christopher J. Heavens, Charleston, WV Greg K. Smith, Williamson, WV
West v. Edde Entertainment, Inc., U.S. Dist. Ct., S.D. W. Va., No. 3:97-0281
May 1,1998
West was a minister at a church in West Virginia. A member of his congregation showed him a videotape cassette of the movie "Reborn," which had a picture of West and his wife on the jacket sleeve. Text next to the picture described the movie as the portrayal of a faith healer who had performed fake healings on television. The movie also portrayed the faith healer as an adulterer. West and his wife suffered emotional distress based on concern that West's congregation would think he had authorized the movie's use of the photo and was receiving money from it.
They sued the video distribution company that had copied the photograph, alleging false light invasion of privacy, defamation, and intentional infliction of emotional distress. Defendant argued (1) it had used the photograph legally and (2) plaintiffs could not recover because they had not been damaged financially.
The parties settled for $150,000, paid by defendant's insurer. In addition, defendant published an apology in three West Virginia newspapers immediately after the settlement.
Plaintiffs' expert was Robert Bastress, First Amendment law, Morgantown, W. Va. Plaintiffs' Counsel: Christopher J. Heavens, Charleston, W. Va., Denese Venza, Charleston, W. Va., Charles S. West, Williamson, W. Va.