OPINION ISSUED APRIL 2, 2002



CC-00-160
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


HOURLY COMPUTER SERVICES

VS.

DEPARTMENT OF HEALTH AND HUMAN RESOURCES

(CC-00-191)



Larry G. Kopelman, Attorney at Law, for claimant.

Joy M. Bolling, Assistant Attorney General, for respondent.


GRITT, JUDGE:

Claimant, a computer vendor, brought this action to recover finance charges which it incurred during the completion of a contract entered into with respondent for computers, software, and installation of the computers. The finance charges, referred to as interest by claimant, are in the amount of $13,476.67, which represents the amount of this claim. The Court is of the opinion to deny this claim for the reasons set forth herein below. Further, respondent's motion to amend the style of the pleadings to substitute the State Auditor in the place of the named respondent is denied for the reason stated herein below.
On October 14, 1999, claimant and respondent entered into a contract for the purchase of 600 computers, including software and installation of the computers, for a purchase price of $739,750.00. The contract (designated as Purchase Order DHS 31227) provided for the completion of the contract within sixty ( 60) days with a completion date of December 15, 1999. The first set of 200 computers was delivered and installed in November 1999 After the hearing of this claim, claimant provided copies of Service Orders and an invoice dated November 29, 1999, in the amount of $244,200.00 to support testimony that the respondent had received an invoice for the first 200 computers, software, and installation. This invoice was not paid by respondent. with the second set of 200 computers being delivered in early December 1999 and the last set of 200 computers being delivered in late December 1999 or early January 2000. An invoice in the original amount of $739,750.00 that serves as the basis for claimant's claim herein was dated December 31, 1999, received by respondent on January 4, 2000, signed by respondent's representative as certification of the merchandise having been received on January 16, 2000, and paid by respondent on or about March 10, 2000, in the final agreed upon amount of $697,150.00. The amounts of $24,600.00 and $18,000.00 were deleted from the total of the original invoice for the reasons discussed below. During this time frame, a dispute arose between the parties as to the software required under the contract and the delivery schedule for the computers. The parties ultimately agreed to extend the installation of the software beyond the sixty (60) days provided for in the contract. The Court has not been provided the date the extension was granted. The parties also disagreed concerning the license for the software. Claimant originally began providing a software license with each computer, but respondent's representative requested one license for all the computers purchased by respondent. The respondent's insistence on one license for all the software to be installed pursuant to the contract occurred after the delivery of first 400 of the computers, but claimant later agreed to provide the one license to end this dispute. The final area of dispute was over the price of the installation of the computers. Claimant delivered the last 200 computers, but many of these units were set up and installed by respondent's personnel. A reduction of $5,000.00 in the charge for the installation of the last installment of 200 computers was eventually agreed to by claimant due to the reduced number of units actually installed by claimant's personnel. However, a formal vendor's complaint was filed with the Department of Administration's Purchasing Division by respondent involving all of the issues mentioned above which was resolved by the parties through mediation.The documentation for the formal vendor's complaint was provided to the Court after the hearing by counsel for the respondent. This information was reviewed by the Court. The first date which indicates a dispute between claimant and respondent is that on an electronic message dated January 13, 2000. A meeting was held on February 8, 2000, to discuss several issues. While a formal vendor's complaint was made by the respondent, the only date evident regarding the filing of the complaint is March 7, 2000. The respondent's vendor's complaint was resolved with the respondent agreeing to pay to the claimant the sum of $697,150.00.The parties did not provide the Court with the date their dispute was mediated and resolved. The claimant apparently purchased the computers and software sold to the respondent by using an existing line of credit previously obtained by the claimant from a lender of its choice. Claimant alleges that it was not paid for the computers in a timely manner by respondent resulting in unnecessary finance charges to it, and that it is entitled to reimbursement of the finance charges.
The parties have raised issues regarding (1) the payment of interest based on the provisions of a contract that is before the Court for interpretation, (2) the payment of pre-award and post-award interest on awards made by the Court, (3) the inclusion of finance charges incurred by a vendor as an element of its overhead expense as an element of damages to be considered by the Court in making an award, and (4) the applicability of WV Code §5A-3-54, generally referred to as the "Prompt Pay Act of 1990" to certain claims that may be brought before the Court. The Court will address each of the issues presented separately.
Contract Interest
WV Code §14-2-12, which sets forth the general powers of the Court of Claims, states specifically that ". . .in determining the amount of a claim, interest shall not be allowed unless the claim is based upon a contract which specifically provides for the payment of interest." The Court notes that there was no provision in the contract between the parties herein that interest be paid to claimant and therefore the claimant cannot recover any interest as a part of its claim that is traditionally described as "contract interest." The specific statutory disallowance of traditional contract interest contained in WV Code §14-2-12 differs from the general rule in West Virginia found in WV Code §56-6-27 that states that "the jury, in any action founded on contract, may allow interest on the principal due, or any part thereof, and in all cases they shall find the aggregate of principal and interest due at the time of the trial" and that "judgment shall be entered for such aggregate with interest from the date of the verdict." See, The First National Bank of Bluefield v. Clark, 191 W.Va. 623, 447 S.E.2d 558 (1994); Erikson Construction Co. v. Morey, 923 F.Supp.878 (1996); and Board of Education of McDowell County v. Zando, Martin & Milstead, 182 W.VA. 597, 390 S.E.2d 796 (1990).
Pre-award and Post-award Interest
The disallowance of all interest but for the payment of interest specifically required by contract by the provisions of WV Code §14-2-12 is, in essence, a bar to the recovery of pre-award and post-award interest. The prohibition against paying pre-award and post-award interest on awards made by the Court contained in WV Code §14-2-12 also differs from the statutory requirements of WV Code §56-5-31 which mandates that "damages shall bear interest from the date of the right to bring the same shall have accrued, as determined by the court"and "that every judgment or decree for the payment of money entered by any court of this State shall bear interest from the date thereof, whether it be so stated in the judgment or decree or not" at a rate of "ten dollars upon one hundred dollars per annum." See, The First National Bank of Bluefield, supra; Erikson Construction Co., supra; and Board of Education of McDowell County, supra.; and Adams v. Nissan Motor Corp. in U.S.A., 182 W.Va. 234, 387 S.E.2d 288 (1989). Traditionally, the denial of both pre-judgment and post-judgment interest violates the requirements of WV Code §56-6-31. Rakes v. Ferguson, 147 W.Va.660, 130 S.E.2d 102 (1963).
Interest as an Element of Overhead Expense
In its claim, the claimant is attempting to equate the finance charges that it incurred which are an element of its overheard expense, to the interest that may be paid to a vendor pursuant to the provisions of the "Prompt Pay Act of 1990." The "Prompt Pay Act" requires that for purchases of services or commodities the State Auditor shall issue a State check "in payment thereof within sixty days after a legitimate uncontested invoice is received by any of such agencies receiving the services or commodities. Any state check issued after sixty days shall include interest at the current rate ...." Claimant alleges that this provision of the "Prompt Pay Act" allows it to make a claim for interest in the amount of $13,476.67, which said amount is actually the amount of the finance charges incurred by the claimant in the satisfaction of its contract with the respondent and not the amount of interest as contemplated by the Act or calculated according to the provisions of the Act.
It is a mistake in fact and law to equate the payment of finance charges incurred by a vendor as an element of its overhead expense while engaged in the general pursuit of a business enterprise and the statutory interest that is required by the provisions of the "Prompt Pay Act." The Court can find no statutory authority or case law to support the claimant's contention that it is entitled to recover the finance charges that it incurred while doing business with the respondent. Without statutory or case law authority to include finance charges incurred as an element of overhead expense by a vendor doing business with a State agency in a claim against the agency for breach of contract as an element of the vendor's damages, the Court declines to chart new territory in that regard.
Prompt Pay Act of 1990
The respondent contends that the "Prompt Pay Act " does not apply to this claim for the reasons that no "legitimate uncontested invoice" had been received by the respondent for payment and, therefore, there is no basis for the allegation that the invoice was not timely paid. The respondent also asserts the position that this Court lacks subject matter jurisdiction in this claim on the basis that claimant has a remedy in the regular courts of this State if it is proceeding under the "Prompt Pay Act." The respondent contends that an action such as mandamus may be brought in the courts of the State against the respondent concerning the interest that may be due the claimant pursuant to the "Prompt Pay Act."
The issue of jurisdiction of a court with respect to any action before it may be raised at any time during the proceedings, even by the court itself. This Court is a court of limited jurisdiction with only the subject matter jurisdiction being specifically granted it by the Legislature in the creation of the Court of Claims. WV Code §14-2-14(5) establishes this Court's limited jurisdiction and provides that the jurisdiction of the Court shall not extend to any claim ". . .with respect to which a proceeding may be maintained against the state, by or on behalf of the claimant in the courts of the state."
In reviewing the language of the "Prompt Pay Act" the Court notes certain deficiencies in the Act including, but not limited to, the fact that there is (1) no mention in the statute for a remedy if a vendor disagrees with the State Auditor in its application of the interest provisions of the Act, (2) no time frame or a method for resolving a disputed invoice, and (3) no time limitation for making a claim for interest claimed to be due on the part of a vendor.The provisions of WV Code§5A-3-54(d) states that. . . the state agency initially receiving a legitimate uncontested invoice shall process such invoice for payment within ten days from its receipt: Provided, That in the case of the department of health and human resources, the division of highways and the public employees insurance agency, such invoices shall be processed within fifteen days of their receipt. In spite of this requirement, the respondent has not provided the Court with the precise date the claimant's invoice was received and submitted for payment. Because this Court is a court of limited jurisdiction and even though the "Prompt Pay Act" as currently presented may be deficient in many respects, the Court cannot conclude that it is without subject matter jurisdiction to make an award of interest that may be otherwise due a vendor pursuant to the Act.The State Auditor is encouraged by the Court to develop, implement and distribute to all State agencies and properly registered and qualified vendors a uniform written policy regarding the resolution of contested invoices submitted by vendors and when interest may be due a vendor pursuant to the Act. The "policy" supplied to the Court as Attachment B to the respondent's Supplement to Previously Filed Motion To Dismiss is inadequate to accomplish the purpose of the Act. The failure to develop and implement such a policy frustrates the very purpose for which the Act was adopted, that is, to encourage small West Virginia business owners to do business with State agencies. To the extent that this Court impliedly assumed jurisdiction to hear claims for interest due a vendor pursuant to the provisions of the immediate predecessor to the current "Prompt Pay Act" in R. L. Banks & Associates, Inc. vs. Public Service Commission, 17 Ct.Cl. 159 (1988), said implication is hereby expressly denied.
The respondent also asserts that the claimant failed to pursue its administrative remedy in its claim for interest under the "Prompt Pay Act." The Court cannot consider the respondent's argument inasmuch as the provisions of WV Code §5A-3-54 do not contain an administrative process for reviewing a claim for interest by a vendor and because no such procedural rules have been promulgated by the State Auditor pursuant to the provisions of WV Code §29A-1-1, et.seq., the State Administrative Procedures Act.
The Court is of the opinion to and does hereby deny the respondent's motion to amend the style of the pleadings to substitute the State Auditor in the place of the named respondent inasmuch as the claim presented by the claimant is a claim for interest as an element of its overhead expense growing out of the contract dispute with the respondent.
Therefore, for all of the reasons stated above, the Court is of the opinion to and does hereby decline to recommend the payment of this claim.
Claim disallowed.


CC-00-191
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


CALLA SMITH AND HUBERT SMITH

VS.

DIVISION OF HIGHWAYS

(CC-00-369)



Claimants appeared pro se.

Andrew F. Tarr and Xueyan Zhang, Attorneys at Law, for respondent.


PER CURIAM:
Claimants brought this action for damage to their property which occurred when a large tree fell from respondent's right of way onto claimant's building along County Route 1/11 in Wayne County. The right of way at issue is owned and maintained by respondent in Wayne County. The Court is of the opinion to deny this claim for the reasons stated more fully below.
The incident giving rise to this claim occurred in the early morning hours of September 6, 2000. Claimant Calla Smith resides on the property where this incident occurred. She was asleep in her bed when she heard a lot of loud noise coming from outside her home. The property is located next to County Route 11/1, also known as Bowman Hill Road, in Wayne County. Within a few moments, a neighbor came to her door and told her that a large tree had fallen on her building. The building served as both a barn and a garage. One half of the building was two stories high and was used as a barn and storage area for tools and other items while the other half was used as a garage where Ms. Smith parked her pick-up truck. The building was already built on the parcel of property when Ms. Smith purchased it with the residence in 1968. However, both Calla Smith and her brother Hubert Smith own the building. Claimants are not sure how long this particular building has been on the property, but photos of the building taken in 1971depict a structure that at the time appeared to be in sound condition. Testimony adduced at the hearing also established that the building was still in at least good condition just prior to this incident and that it still had a solid foundation. The tree that fell on the building was located on the respondent's right of way a few feet from County Route 11/1, almost directly across the road from claimants' building. The trunk of the tree was located approximately 13.2 feet from the center line of the road and it was growing from a small bank above a ditch line along the road. The tree was a large White Oak with green leaves and many wide, long branches. It was approximately thirty-eight inches in diameter. Prior to this incident, the branches of the tree extended across the road and hung almost completely over top of the claimants' building which had been its condition for several years.
Ms. Smith testified that the tree crushed the left half of the building that served as a barn. It destroyed the structure along with most of the items stored in it, including small hand tools, plows, wood, and extra tin. Fortunately, the tree did not land directly on the garage section of the building, where Ms. Smith parked her 1992 Ford truck. There was only a small scratch on the truck from the fallen tree. Respondent was called to the scene to remove the tree which was totally blocking the road and was lying on top of what was remaining of the left side of the building. Respondent's crew successfully removed the limbs off of the building so as to not cause damage to the garage portion of the building where Ms. Smith's truck was parked. Respondent hauled off the debris and gave Ms. Smith the remaining quality wood to use as firewood. The claimants left the garage portion of the building standing throughout the remainder of the fall of 2000 and the winter of 2001 so that Ms. Smith could park her truck in the garage during this period. Claimants seek $27,000.00 in damages which was the estimate provided to them by a contractor for the reconstruction of a building comparable to the one destroyed by the tree.
Claimants contend that respondent knew or should have known that this tree posed a hazard for falling and that it should have remedied this hazard prior to this incident by either cutting the tree down or removing some of the larger limbs.
Respondent asserts that it did not have notice that this tree posed a hazard and that it acted diligently in responding to this incident.
Randolph Smith, Transportation Crew Chief for the respondent in Wayne County at the time of this incident, testified that he is responsible for responding to complaints regarding road conditions or hazards. Mr. Smith is responsible for dispatching crews and the proper material to the appropriate sites. He is familiar with County Route 11/1 including the location where this incident occurred. He testified that County Route 11/1 is a two-lane, blacktopped, secondary road. It is approximately twelve feet wide in most places. Mr. Smith testified that the Right of Way Division of respondent informed him that its right of way on County Route 11/1 is thirty feet. Mr. Smith was first notified of the incident just prior to 7:00 a.m., when he received a telephone call. He immediately dispatched a crew to the scene. Upon arrival, the crew recognized that the situation was unique and problematic. Therefore, they called Mr. Smith to the scene for his advice and supervision. Mr. Smith testified that the tree was a large White Oak and had fallen completely across the road and one half of claimants' building. Mr. Smith and his crew determined that they would remove the tree one limb at a time, instead of many at once, so as to salvage the garage portion of the building. Respondent was successful in doing so. According to Mr. Smith, the tree was alive and had no signs of dead or decaying branches. All the branches were strong and healthy with green leaves. In concluding what caused this tree to fall, it was Mr. Smith's opinion that it simply "uprooted." He stated that "the whole root bottom upturned". However, Mr. Smith could not state what caused the tree to do this. He testified that it was windy earlier that morning when he came to work. There had not been any severe rain storms in recent days and the area around the base and roots of the tree was dry. According to Mr. Smith, there were no apparent reasons for this tree to fall on that particular day.
The Court has held that respondent may be responsible for dangerous trees or tree limbs on its property or rights of way. The general rule adopted by the Court is that if a tree is dead and poses an apparent risk, then respondent may be held liable. Wiles v. Div. of Highways, 22 Ct. Cl. 170 (1999). However, when a healthy tree falls and causes property damage as a result of a storm, the Court has held that there is insufficient evidence of negligence upon which to justify an award. Gerritsen v. Dept. of Highways, 16 Ct. Cl. 85 (1986). Further, to hold respondent liable, the claimant must establish by a preponderance of the evidence that the respondent had actual or constructive notice of the defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways, 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl.8 (1985).
In the present claim, the Court is of the opinion that claimant did not establish by a preponderance of the evidence that respondent had notice that the tree at issue was at risk of falling. Respondent had received no complaints about the tree. The numerous photographs admitted into evidence establishes that the tree was green and alive. Thus, respondent did not have actual notice that the tree posed a risk of falling. The claimants could not state with any degree of certainty what caused the tree to fall, but only that the bottom foot or two of a small back portion of the tree looked dead. One of claimants' witnesses was of the opinion that the tree was rotted on its back side, but this side of the tree was not visible from the road. The witness had no idea why the tree may have been partially rotted. No other logical explanation for the tree to suddenly fall was provided by either of the parties to this claim. This Court has consistently held that an award cannot be based on mere speculation. Mooney v. Dept. of Highways, 16 Ct. Cl. 84 (1986); Phares v. Div. of Highways, 21 Ct. Cl. 92 (1996). For this Court to make a determination as to the reason why the tree fell on the date of the incident herein would require the Court to resort to speculation which it will not do. Thus, the Court finds that respondent was not negligent in its maintenance of County Route 11/1 or its right of way on the date that the tree fell onto claimants' property.
In accordance with the findings above, the Court is of the opinion to and does deny this claim.
Claim disallowed.
The Honorable Benjamin H. Webb, II, Judge, was not present at the hearing of this claim, but he did take part in the decision made by the Court and in the written opinion.


CC-00-369
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


LARRY DAVID HOLDREN

VS.

STATE OF WEST VIRGINIA

(CC-00-461)



Lonnie C. Simmons, Attorney at Law, for claimant.

Barry L. Koerber, Assistant Attorney General, for respondent.

BAKER, JUDGE:
Claimant brought this action for an award pursuant to W.Va Code §14-2-13a for being unjustly imprisoned for more than fifteen years. The Court is of the opinion to make an award in this claim for the reasons set forth below.
The facts giving rise to this claim began on December 28, 1982, when a woman jogging along Kanawha Boulevard in Charleston was violently pushed over a hill and sexually assaulted by a man approaching her from the opposite direction. The victim survived this vicious attack, and on March 10, 1983, claimant Larry David Holdren was arrested for the sexual assault based solely upon the victim identifying his photograph from a photo array. When this nightmare began in his life, he was 27 years of age. The photograph array shown to the victim also included a photograph of claimant's identical twin brother. Claimant was indicted by a Kanawha County Grand Jury on six counts of first degree sexual assault on June 23, 1983, and was subsequently convicted of all six counts on July 16, 1984. On February 21, 1985, claimant was sentenced by Kanawha County Circuit Judge A. Andrew MacQueen to serve ten to twenty years on each count with three of the sentences to be served consecutively with the remaining three sentences. Claimant was incarcerated in the State Penitentiary in Moundsville on March 20, 1985, at which time he was 29 years of age. He was imprisoned at that correctional facility until he was transferred to Mount Olive Correctional Facility on March 20, 1995.
Claimant took every legal avenue available to him in an attempt to gain his freedom while he was incarcerated. He attempted to obtain physical evidence that may have been left by the real assailant to prove that he was innocent of this terrible crime. However, he was unable to obtain the physical evidence necessary to conduct the scientific testing available at that time. Claimant also exhausted all of his rights of appeal, as well as all of his State habeas corpus rights and his federal habeas corpus rights. Unfortunately, all of these efforts failed to provide any legal relief, and claimant remained in prison for a crime he did not commit. In 1997, upon the claimant's request, his attorney secured an agreement with the Kanawha County Prosecuting Attorney's office to allow certain physical evidence in this case to be examined by DNA experts. In a report issued on January 25, 1999, by the DNA experts, it was determined that the claimant was not the individual who sexually assaulted the victim. A hearing was held on June 9, 1999, at which the DNA experts who performed the DNA testing testified as to the test results which proved that Larry Holdren was innocent of this crime. The Kanawha County Prosecuting Attorney's office had several national experts at this hearing to listen to the testimony and to provide advice on the issues. The next day, June 10, 1999, the Circuit Court of Kanawha County entered an Order reversing claimant's conviction and allowed his release from prison. By Order made and entered on January 4, 2000, the State dismissed the indictment against the claimant. Thus, it was established that the claimant did not commit the offense for which he was imprisoned for over fifteen years. At the time claimant was finally free of this nightmare in his life, he was 44 years of age.
Claimant brought this action in accordance with the provisions of W.Va. Code § 14-2-13a (a), (b), (d), and (e). After reviewing the documentation submitted by the claimant, the Court has determined that he has met the requirements of these sections; therefore, he has an absolute right to a recovery.
The only issue the Court must address is the amount of the award to be granted to the claimant herein. Undoubtedly, claimant suffered an economic loss while imprisoned for over fifteen years of his life. He was 29 years of age at the time of his incarceration and he was 44 years of age when he was finally free of the charges made against him. The testimony adduced at the hearing established that, at the time claimant was arrested in March 1983, he was working on his undergraduate degree expecting to graduate with a four year Bachelor's Degree in December 1983. At the hearing of this matter, claimant presented expert testimony from Roger A. Griffith, an economist, who performed an analysis of expected economic loss on behalf of the claimant. This analysis was performed to demonstrate the range of the wages and benefits claimant lost while imprisoned. Mr. Griffith's analysis concluded that claimant's expected economic loss of wages and benefits ranges from a low figure of $735,370.00 which is based upon the average wages of a worker in Kanawha County, to a high figure of $1,338,827.00 based upon the average wages of a male with a Bachelor's Degree. Mr. Griffith explained during his testimony that he used conservative figures for computing the loss of earnings in this claim; however, these amounts are based upon gross earnings.
The Court reviewed these figures and all other facets of claimant's pecuniary damages which include the past loss of earnings due to incarceration and the impairment of future earnings directly related to the imprisonment of the claimant, as well as the loss of reputation, the loss of liberty, emotional stress, pain and suffering in determining the amount of claimant's award. Furthermore, it must be stated that the majority of claimant's imprisonment was spent at the State Penitentiary in Moundsville, a State facility which had the reputation as being an horrific prison.
The Court is aware that there was a settlement between the claimant and a third party which the Court has taken into consideration in determining the amount of the award to be granted to the claimant. Thus, taking all of the elements of damages into account and considering that any award must reflect what is fair and reasonable to both the claimant and the State of West Virginia, the Court has determined that claimant is entitled to an award of $1,650,000.00.
In accordance with the findings of fact and conclusions of law as stated herein above, the Court is of the opinion to and does make an award to the claimant in the amount of $1,650,000.00.
Award of $1,650,000.00


CC-00-461
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


JOHN MYERS

VS.

DIVISION OF HIGHWAYS

(CC-01-106)



Claimant appeared pro se.

Xueyan Zhang, Attorney at Law, for respondent.


PER CURIAM:

Claimant brought this action for damage to his 1993 Mitsubishi G.T. which occurred when he was operating his vehicle on the Interstate 77 northbound ramp, Exit 119, near Goldtown, Jackson County, and the vehicle struck a metal plate in the road. Respondent was responsible at all times herein for the maintenance of Exit 119. The Court is of the opinion to deny this claim for the reasons set forth below.
The incident giving rise to this claim occurred on December 29, 2000, at approximately 7:00 p.m. Claimant John Myers was driving his vehicle down the ramp at Exit 119 off of I-77 at Goldtown. The weather was clear and cold. The road surface was in good condition. Mr. Myers was traveling between forty to fifty miles per hour on the ramp, which he testified to as a long exit ramp. Mr. Myers lives just a little over a mile from the Goldtown Exit and he was on his way home. As his vehicle reached near the half way point on the exit ramp, he felt a hard bump and heard a loud noise as he drove over a patched area in the road surface. He drove another fifty yards and turned left onto Route 21 when he realized he had a flat tire. Mr. Myers took a flashlight and examined the patched area to see what his vehicle had just struck. He testified that he observed a metal plate that had sunk down approximately two to three inches below the road surface. He stated that when he stepped on this metal plate it would give a little bit and he characterized it as spongy in nature. Mr. Myers testified that he had driven this exit ramp for at least seven years and had passed over this patched area hundreds of times safely. He described the area at issue as a patched almost perfect square like area. He also stated that it is adjacent to the white edge line, but totally within the lane of travel. As a result of this incident, claimant had to replace one wheel and tire and his vehicle had to be aligned. Mr. Myers seeks an award of $591.43. He did not have any insurance in force at the time of this incident to cover these damages.
Claimant contends that respondent knew or should have known that this metal plate and the manner in which it was covered presented a potentially hazardous condition to the traveling public.
Respondent asserts that it did not have notice of any hazard at the location at issue until after this incident. Therefore, respondent asserts it did not have a reasonable amount of time to take corrective action.
Claimant explained that it was his belief that the last time the exit ramp had been paved was in 1998 and that the contractor who did so paved around the metal plate and left it exposed. He stated that he assumed that respondent then came in and smoothed out the area. Mr. Myers testified that the location at issue has remained the same since approximately 1998 until the night at issue when the metal plate apparently sunk down a few inches from the pavement creating a large hole with a portion of protruding metal.
Bruce Leedy, the Regional Engineer for respondent, is responsible for the area at issue. He testified that he was contacted by the claimant after this incident occurred. Mr. Leedy went to the scene in March 2001 to determine what the problem may have been. He stated that it was obvious to him that a hole of some sort had been patched recently and that this was probably the second or third time that it had been patched. Mr. Leedy testified that there had been some sort of patch there for at least two years. However, Mr. Leedy could not testify as to the condition of this location prior to March 2001.
Stanley W. King, supervisor for respondent at the Allen's Fork Garage in Jackson County, oversees the maintenance of thirty-two miles of Interstate 77 including the area at issue with which he is familiar. Mr. King testified that an old drain had been covered with a metal plate and patched with blacktop at the location where claimant's incident occurred and it had been in that condition for at least six years. He stated that when the old drain had stopped working, respondent had covered it with the metal plate and then blacktopped over the entire area. He was certain that there was not any metal left exposed at all. Mr. King also stated that he had not received any complaints regarding this location prior to this incident. Further, he testified that on December 29, 2001, respondent was on snow removal and ice control duty or "SRIC". Respondent introduced into evidence a DOH-12 demonstrating that the work crew was "cold patching" holes on I-77 and on Route 21. Mr. King stated that respondent does not record the exact location of every hole it patches during "SRIC", but he stated that if the maintenance crew saw a metal plate exposed it would have repaired it. He also stated that normal working hours for respondent at the Allen's Fork Garage is from 7:30 a.m. to 4:00 p.m.
It is a well established principle of law that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Simms, 46 S.E.2d 811 (W.Va.1947). To hold respondent liable, the claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the road defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). However, respondent owes a duty to the traveling public to exercise reasonable care and diligence in the maintenance of the highways of this State. Lewis v. Dept. of Highways, Ct. Cl. 136 (1986).
In the present claim, the Court has determined that claimant failed to produce sufficient evidence to establish that respondent had prior notice that there was a hole or protruding metal at the location of this incident. Although it is undisputed that respondent was aware that there was a drain and metal plate covered over by blacktop, respondent was not aware of any hazardous condition at this location. The evidence established that respondent was not informed of the problem until after the claimant's incident. The Court is of the opinion that respondent was not negligent in its maintenance of the I-77 Exit Ramp 119 at the time of claimant's incident.
Accordingly, the Court is of the opinion to and does deny this claim.
Claim disallowed.


CC-01-106
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


HELEN O'DELL

VS.

DIVISION OF HIGHWAYS


(CC-01-119)


Michael R. Whitt, Attorney at Law, for claimant.

Andrew F. Tarr, Attorney at Law, for respondent.


PER CURIAM:
This claim was submitted to the Court for decision upon a Stipulation entered into by claimant and respondent wherein certain facts and circumstances of the claim were agreed to as follows:
1. Claimant's residence is located at 410 8th Street, Rainelle, in Greenbrier County.
2. In August 2002, representatives of respondent and of the Town of Rainelle met to discuss the drainage on Greenbrier Avenue, which proceeds through the Town of Rainelle and is maintained by respondent. At that time, the representative for the respondent was advised that a manhole on Greenbrier Avenue was part of Rainelle's abandoned sanitary sewer system and was no longer in use.
3. Based upon the information obtained from Rainelle's representative, respondent proceeded to remove the manhole from the roadway and fill the abandoned sewer line with concrete. This work was completed in the fall of 2000.
4. Claimant's home was damaged by high water during the month of January 2001. Prior to January 2001 claimant's home had not experienced water problems. Claimant then contacted respondent and was informed that a sewer line on Greenbrier Avenue had been filled with concrete.
5. Employees of respondent and of Rainelle reconnected the abandoned sewer line in February 2001.
6. Claimant has not had any more water problems since the sewer line was reconnected.
7. Although respondent does not admit that its actions were solely responsible for the claimant's property damages, it admits that the work performed contributed to the damages, and therefore, created a moral obligation on the part of respondent to provide compensation to the claimant.
8. The parties are in agreement that $7,000.00 is a fair and reasonable settlement for the property damages incurred by the claimant.
The Court has reviewed the facts of the claim and finds that respondent was negligent in its removal of the manhole and the filling of the sewer line with concrete on Greenbrier Avenue in the Town of Rainelle on the date of this incident; that respondent's negligence proximately caused claimant to incur certain expenses; and that the agreed settlement is fair and reasonable. Thus, claimant may make a recovery for her sustained loss.
Accordingly, the Court is of the opinion to and does make an award to claimant in the amount of $7,000.00.
Award of $7,000.00.


IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


CRAIG W. EVANS

VS.

DIVISION OF HIGHWAYS

(CC-01-120)



Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for respondent.


PER CURIAM:

Claimant brought this action for damage to his1994 Ford Escort which occurred when he was traveling across a bridge on Parsons Branch Road in Wayne County and the vehicle struck a large drop off on the bridge. Respondent was responsible at all times herein for the maintenance of Parsons Branch Road. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.
The incident giving rise to this claim occurred on December 7, 2000, at 1:30 a.m., when claimant Craig Evans was on his way home from work in Fort Gay. The weather and road conditions were unremarkable and there was very little traffic at that time of night. Mr. Evans described Parsons Branch Road as a narrow, single-lane blacktop road. He normally does not take this route home so he had not driven this road during the previous few weeks. However, this route is a little shorter and that was the reason he decided to use it on this occasion. Mr. Evans stated that he was traveling thirty-five miles-per-hour. As he approached the small bridge at issue, he saw no warning signs and he proceeded across the bridge as he normally would. Suddenly, as he neared the end of the bridge, he felt a bump and heard a strange noise. He kept driving until he reached the top of a hill where the vehicle stalled out. This was approximately two-tenths of a mile from where the incident occurred. Fortunately, Mr. Evans was close to his home and he was able to walk there safely. The next morning he noticed that his vehicle's oil pan was busted and that the engine was destroyed. Further, the front fender was bent and the front bumper was cracked. Claimant's vehicle also sustained damage to a headlight assembly and a park lamp. Claimant submitted an estimate in the amount of $1,632.44 which represented the cost to have all damages repaired except for the engine. He testified that he had a new engine put in at a cost of $750.00. According to Mr. Evans, he had purchased the vehicle six months prior to this incident for $900.00. Claimant went back to the scene of the incident where he observed oil strung out on the road beginning at the drop-off and going up the road approximately fifty yards. He is certain that this was oil from his vehicle. Mr. Evans estimated the drop-off at the edge of the bridge to be approximately six inches. He also noted that respondent had been working on the bridge recently. He called respondent to report the incident and the condition of the bridge.
Claimant contends that respondent was negligent in its maintenance of the bridge and for failing to warn the traveling public of a hazardous condition.
Geoffrey Adkins, respondent's storekeeper in Wayne County, testified that he is familiar with the portion of road at issue. He testified that he was not aware of any hazards on the Parsons Branch bridge prior to this incident. He found out about the claimant's incident later in the day of December 7, 2000. He went to the scene and determined that repairs needed to be made immediately. He submitted into evidence a DOT-12 which indicates that a problem was found on the bridge. It also indicates the inventory and manpower used to make the repairs, which involved using a large dump truck to fill the drop-off with cold-mix for a safer transition. Mr. Adkins testified that another crew had been working on the bridge six or seven days prior to this incident. They had left the portion of the bridge where the surface of the bridge starts to meet the road at least six inches too low. There should have been a smooth transition from the bridge back onto the road. However, respondent's employees had failed to fill in the wooden surface of the bridge with blacktop to make it level with the road. Finally, Mr. Adkins also stated that there were no warning signs, barrels, or cones in place to give oncoming traffic notice of the hazard.
The Court is of the opinion that respondent had notice of the drop-off between the bridge surface and the road. Claimant's photographs admitted into the evidence for this claim clearly demonstrate the severity of this drop-off. Respondent had just made repairs to the bridge less than a week prior to this incident and yet this drop-off continued to be there. The Court has determined that respondent had a reasonable amount of time to take corrective actions, but failed to do so. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). Respondent knew or should have known that the condition of this bridge presented a very serious hazard to the traveling public. Thus, claimant may make a recovery for the damages to his vehicle.
The Court has reviewed the documents and claimant's testimony regarding the damages to his vehicle. The damages exceed the value of the vehicle in this claim; therefore, the Court considers the value based upon the purchase price of the vehicle. In this instance, any recovery will be limited to the amount paid by claimant for the vehicle.
Accordingly, the Court makes an award in this claim in the amount of $900.00 which the Court has determined to be the fair and reasonable value of the vehicle at the time of the incident.
Award of $900.00.






CC-01-120
IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA

NANCY A. STOUT

VS.

DIVISION OF HIGHWAYS

(CC-01-138)



William C. Garrett, Attorney at Law, for claimant.

Andrew F. Tarr, Attorney at Law, for respondent.


PER CURIAM:

Claimant Nancy A. Stout brought this action for personal injuries and property damage to her 1992 Chevrolet truck which occurred when her vehicle slid on ice and struck a hillside. Claimant was traveling north on Route 20 in Webster County when the incident occurred. This portion of road is maintained by respondent in Webster County. The Court is of the opinion to deny this claim for the reasons set forth below.
The incident giving rise to this claim occurred on December 15, 2000, at approximately 8:30 a.m. Claimant was driving home from her place of employment. She works the night shift from 12:00 midnight until 8:00 a.m. She lives in Diana which is north of Webster Springs, and on the date of this incident, she was working in Bolair which is south of Webster Springs. Route 20 proceeds through Bolair, Webster Springs, and Diana. Claimant described the road conditions that morning as otherwise good and the weather was clear. The temperature was approximately 32 degrees. She was traveling down a portion of Route 20 known as McGuire Mountain and was approaching a right-hand curve near an overlook. As she drove into the curve, she testified that her vehicle slid on a patch of "black ice" and then slammed into the mountainside. Ms. Stout testified that all she recalls is losing control of the vehicle and seeing the hillside coming at her. The next thing she knew was that someone was pulling her truck door open to help her. She was taken by ambulance to Webster Springs Memorial Hospital where she was treated and released. She suffered a large cut to her head, an injury to her leg causing heavy swelling, and serious bruising under her right arm and her neck.
Claimant alleges that respondent failed to maintain properly a ditch or culvert that had stopped up causing water to overflow onto the road and freeze creating a hazardous condition known as "black ice" which it knew or should have known existed. The total damage to the vehicle was $3,849.00. However, claimant is limited to the amount of her insurance deductible of $500.00. Claimant also incurred medical expenses in the amount of $1,519.34, all of which were covered by her insurance except for $40.00 she paid out-of-pocket.
Respondent asserts that it did not have notice of ice or water on the road at the location of this incident, and that as soon as it was made aware of the condition, the proper treatment was provided.
Claimant testified that she drove this section of Route 20 five days a week for the past three or four years and that she was very familiar with it. Although she did not see water or ice on the road at the time of this incident, she has seen water running across the road at this location before. She testified that water runs down the steep hillside and often times does not go into the ditch, but instead runs out onto the road.
Testimony at the hearing established that this ditch has to be "pulled" occasionally, but respondent could not state the last time this had been done. Claimant also established that there are a few culverts along the road near the location of this incident, which also require periodic maintenance. Respondent was not able to provide information as to the last time this was done either. Jimmy Collins, County Maintenance Supervisor for respondent in Webster County at the time of this incident, is responsible for the maintenance of roads and highways in Webster County. This includes the portion of Route 20 at issue in this claim. Mr. Collins testified that Route 20 is a priority one road and that he is very familiar with it including the portion at issue in this claim. He described Route 20 as a two-lane, blacktopped highway with double yellow lines and white lines on both edges. The speed limit on Route 20 is 55 miles per hour, but there is a 45 mile per hour advisory speed sign for the curve where this incident occurred. Mr. Collins travels this portion of Route 20 on McGuire Mountain everyday on his way to and from work. He testified that he drove past the exact location of claimant's incident earlier that same morning at approximately 7:05 a.m. and he did not notice anything out of the ordinary. He did not see any water or ice on the roadway. He stated that he arrived at work between 7:00 a.m and 7:15 a.m., as he routinely does. It is approximately ten minutes from the site of this incident to Mr. Collins' office. According to Mr. Collins, it was raining lightly that morning, and it had rained lightly the night before. He testified that the temperature was warming up that morning to approximately 32 degrees and that there was a little fog. Mr. Collins was not aware of claimant's accident until between 7:30 a.m. and 8:15 a.m., when the 911 Center called his office. After receiving this telephone call, Mr. Collins sent a truck to the area with a mixture of salt and cinders to spread onto the road as a precautionary measure. Respondent submitted into evidence a Snow Removal and Ice Control (SRIC) log for December 15, 2000, which showed that it sent a truck to the location of this incident with three tons of salt and cinder mixture at 9:00 a.m. The log also showed the same truck returning to its duty station at 10:00 a.m.
It is a well established principle that the State is neither an insurer nor a guarantor of the safety of motorists on its roads and highways. Adkins v. Sims, 46 S.E.2d 811 (W.Va 1947). To hold respondent liable, the claimant must establish by a preponderance of the evidence that respondent had actual or constructive notice of the defect in question and a reasonable amount of time to take corrective action. Chapman v. Dept. of Highways 16 Ct. Cl. 103 (1986); Pritt v. Dept. of Highways, 16 Ct. Cl. 8 (1985). Respondent cannot be expected or required to keep its highways absolutely free of ice and snow at all times, and the presence of an isolated patch on a highway during a winter month is normally insufficient to charge the respondent with negligence. McDonald v. Dept. of Highways, 13 Ct. Cl. (1979). However, respondent at all times does owe a duty to travelers to exercise reasonable care and diligence in the maintenance of highways. Lewis v. Dept. of Highways, Ct. Cl. 136 (1986).
In the instant claim, claimant has been unable to establish evidence of any negligence on the part of the respondent. Respondent did not have prior notice that a hazardous condition existed on Route 20 at the location of claimant's accident. Respondent's employee had just passed the exact location of this incident shortly before it occurred and he did not observe any water or ice on the road. Further, as soon as respondent became aware of a problem, it sent a crew and truck out to treat the road and remedy the situation. After reviewing all of the evidence in this claim, the Court is of the opinion and concludes that any ice that may have formed on the road at the location of this incident did so shortly before the incident, and further, that respondent did not have notice of the formation of ice on the road surface or a reasonable amount of time to make adequate repairs.
Therefore, in view of the foregoing, the Court is of the opinion to and does deny this claim.
Claim disallowed.