May 1 with The Supremes

The Supreme Court of Appeals of West Virginia issued a few opinions this week. They can be viewed on the Court's outstanding web site: http://www.state.wv.us/wvsca/Spring2009.htm

Simpson v. Office of the Insurance Commissioner arose from a challenge to workers' compensation regulations that prescribe permanent partial disability awards. After getting a lesser award than he wanted, the claimant appealed, arguing the appeal board "erred by upholding his award of benefits calculated in accordance with W. Va. C.S.R. Table § 85-20-C (2004) because, he claims, this Rule is unconstitutional because it violates the separation of powers doctrine." The Court rejected this argument, and issued three new syllabus points (and restated a raft of others):

10 . W. Va. Code § 23-4-3b(b) (2005) (Repl. Vol. 2005), which directs the
Workers' Compensation Board of Managers to "promulgate a rule establishing
the process for the medical management of claims and awards of disability," is
constitutional and does not violate the separation of powers.

13 . A legislative rule is valid if (1) it is submitted to the legislative rule- making
review committee for approval, as required by W. Va. Code § 29A-3-9, et seq., or
(2) the Legislature expressly exempts it from such legislative rule-making
review and approval pursuant to W. Va. Code § 29A-1-3(d) (1990) (Repl. Vol.
2002).

16 . W. Va. C.S.R. Table § 85-20-C (2004) is valid and is a proper exercise of the rule-making authority delegated to the Workers' Compensation Board of Managers by the Legislature in W. Va. Code § 23-4-3b(b) (2005) (Repl. Vol. 2005).

You constitutional gurus should read this one for the separation of powers argument. Comp folks, too, in light of other challenges to the constitutionality of the "new" comp system.

Vaughn v. Greater Hgtn Parks and Rec dismisses an appeal as improvidently granted because plaintiff appealed from rulings on partial summary judgment and a motion in limine. Black letter law case on final orders and appealability.

Zimmerer v. Romano is a property law case arising from a squabble over who owned some land sold to the State DOH, and contains black letter law on interpretation of contracts and deeds.

Strick v. Cichirrilo is an interesting stop and search case for you criminal lawyers. The defendant challenged his arrest, arguing the officer did not have probable cause to stop him for a broken tail lamp, and then field test him for sobriety after smelling alcohol. The court rejected his argument, stating the officer was correct in pulling him over. New syllabus point: "2. When one or more of the tail lamps on a vehicle originally equipped with multiple tail lamps are not in proper working condition, the provisions of West Virginia Code § 17C-5-1(a) (2004) that establish a misdemeanor offense for the operation of an unsafe or improperly equipped motor vehicle are violated."