OPINION ISSUED JANUARY 25, 1991

ROBERT E. SMITH
JUERGEN WILDMAN
JOHN L. ANDERSON
PHILLIP t. CARNELL
JAMES P. OWENS
JOSEPH S. JELICH
MICHAEL McWHORTER
JAMES P. SCHAFFNER
ARTHUR J. YAGEL, III
CHARLES E. BOWLING
GEORGE P. CLARKSON
LAWRENCE E. COOK
ROBERT S. DAMERON
WALTER L. LESTER
KEVIN I. ARNOLD
HOWARD M. DEMPSEY
JAMES L. DICKERSON
TEX FIELDS
ROBERT L. HANNAH
JOHN F. LOONEY
CRAIG M. MINTON
ALAN G. SOWARDS
RICHARD H. STRICKLAND
THOMAS E. WITHROW
EDWARD D. WALKER
BERNARD R. BOGGS
MARLA CLIFTON
THOMAS HALKI
DAVID WARNER
SCOTT EGGERUD
STEPHEN FORRY
JANE OHI
EARL REAVES, JR.
JOSEPH TAYLOR
BILLY SIRK
JOHN M. GIBSON
EARL BIBB
JOSEPH LILLY
AVARY MCMILLIAN
WOODROW SMITH
VS.
WEST VIRGINIA DIVISION OF FORESTRY
(CC-90-144)
No appearance by claimants.
William H. Gillespie, Administrative Forester, for respondent.

PER CURIAM:

This claim was submitted for decision based upon the allegations in the Notice of Claim and the respondent's Answer.

The above titled claimant's seek unpaid overtime, as determined by the United States Department of Labor, Wage and Hour Division, Charleston, by audits dated October 24,1 990, October 26, 1990, October 30, 1990, November 5, 1990, and November 19, 1990, respectively. The audits resulted in a determination that the above titled employees have not been compensated for overtime as the law requires. Specifically, the audits established that neither Rangers or Service Rangers or Service Foresters are in exempt positions, since they have more than 20% of their time in "routine activities." The respondent has not paid the requisite overtime, although now admitting the validity and the amount of same. Respondent states that it does not have a fiscal method to pay the aggregate claims.

In view of the foregoing, the Court makes an aggregate award in the amount of $32,877.63, inclusive of $1,939.68 for matching FICA, as enumerated for each claimant in the following manner:

CLAIMANT AMOUNT
Robert E. Smith $ 483.04
Juergen Wildman $ 718.00
John L. Anderson $ 102.52
Phillip T. Carnell $ 481.85
James P. Owens $ 33.62
Joseph S. Jelich $ 354.91
Michael McWhorther $ 586.33
James P. Schaffner $ 3,192.37
Arthur J. Yagel, III $ 1,334.99
Charles E. Bowling $ 397.19
George P. Clarkson $ 400.98
Lawrence E. Cook $ 1,352.16
Robert S. Dameron $ 1,865.53
Walter L. Lester $ 596.27
Kevin I. Arnold $ 1,053.65
Howard M. Dempsey $ 361.44
James L. Dickerson $ 713.39
Tex Fields $ 950.59
Robert L. Hannah $ 522.27
John F. Looney $ 345.15
Craigo M. Minton $ 649.43
Alan G. Sowards $ 662.15
Richard H. Strickland $ 1,246.34
Thomas E. Withrow $ 237.99
Edward D. Walker $ 1,307.24
Bernard R. Boggs $ 468.04
Marla Clifton $ 139.79
Thomas Halki $ 52.02
David Warner $ 652.72
Scott Eggerud $ 1,669.52
Stephen Forry $ 433.22
Jane Ohi $ 1,280.82
Earl Reaves, Jr. $ 1,358.81
Joseph Taylor $ 996.24
Bily Sirk $ 42.36
Ear Bibb $ 214.04
Joseph Lilly $ 157.27
Avary McMillian $ 414.46
Woodrow Smith $ 449.59
Total $ 28,804.36

Award to the Division of Forestry for matching funds in the amount of $4,073.27.


OPINIONS ISSUED FEBRUARY 22, 1991

VIRGINIA S. ASHBURY
VS.
DIVISION OF HIGHWAYS

(CC-90-1)

Claimant represents itself.
James D. Terry, Attorney at Law, for respondent.

PER CURIAM:

Claimant brought this action to recover for damage sustained by her vehicle, a 1988 Mercury Topaz, when it struck a hole in a road in Berwind, West Virginia in October 1989. It was approximately 4:00 p.m., and it was wet and raining. She was operating her vehicle at about 25 miles per hour. The hole was approximately one foot deep. Claimant was familiar with the hole. It was located on the right side of the lane in which claimant was traveling. A vehicle was approaching claimant in the opposite lane. Claimant alleged that she was unable to avid driving through the hole. Her vehicle sustained damage in the amount of $200.00 and her deductible for her insurance of $150.00.

The Court, having reviewed the evidence in this claim, is of the opinion that claimant has established constructive notice on the part of the respondent for the existence of the hole. Claimant testified that the hole appeared to be about one foot deep. A hole of this size in the travel portion of a State road constitutes a hazardous condition. However, the Court is also of the opinion that claimant, having knowledge of this hazardous condition, was also negligent in failing to operate her vehicle so as to avoid proceeding through the hole. Under the doctrine of comparative negligence the Court has determined that both parties were equally at fault for this incident. Therefore, the Court must disallow this claim.

Claim disallowed.