OPINION ISSUED FEBRUARY 22, 1991
E. SHAWN LINGER
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
On April 3, 1990, claimant was operating his 1987 Dodge Shadow on West Virginia State Route
19/24. This route connects the exit ramp on I-79 and West Virginia State Route 119. Claimant's
vehicle struck a hole as he was driving from Route 19/24 onto Route 119 proceeding toward Star
City in Monongalia County, West Virginia. His vehicle sustained damage to both of the left tires for
which claimant alleges a loss of $198.24.
Claimant testified that he had not driven in this area for a number of months. There were several
holes on the right side of the connecting area from Route 19/24 to Route 119. The holes were
approximately seven inches wide and four to five inches deep. He was traveling at approximately
forty miles per hour. There was a steady rain at the time of this incident which occurred at
approximately 3:00 to 3:30 p.m. He was proceeding through a "yield sign" at the intersection.
Gary Leary, assistant superintendent for respondent in Monongalia County testified that he travels
this area every day. The holes occur were the concrete surface of Route 19/24 and the black-top
surface of Route 119 intersect. Respondent's records reflect that cold mix was placed in the holes
on March 23, 1990.
The Court is of the opinion that claimant has failed to establish constructive or actual notice on the
part of the respondent. The State is neither an insurer nor a guarantor of the safety of persons
traveling on its highways. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). The respondent
maintained the road by placing cold mix in the holes. This method of repair is temporary in nature,
but it is the only remedy available to respondent during the winter months. Therefore, the Court is
of the opinion to and does deny this claim.
OPINIONS ISSUED FEBRUARY 22, 1991
DARRELL G. LINKSWEILER
DIVISION OF MOTOR VEHICLES
Claimant appeared in his own behalf.
Lowell D. Greenwood, Assistant Attorney General, for respondent.
On December 12, 1987, claimant purchased a new Buick from Scott Runyon Pontiac - Buick of
Nitro, West Virginia. As a result of an admitted structural defect the manufacturer repurchased the
vehicle on June 5, 1989. Claimant was refunded the original purchase price, exclusive of taxes.
Claimant testified that pursuant to an arbitration agreement by and between the manufacturer and
purchaser, claimant may only recover the purchase price. An arbitration award to claimant in the
amount of $19,489.00 was made by General Motors Corporation. This amount did not include the
$974.45 paid by claimant as sales tax on purchase. Claimant informally sought the refund of the sales
tax from respondent, but was advised that a "six month rule" barred the refund request. Claimant
now petitions for the sales tax refund to this Court.
Respondent avers that the Court lacks jurisdiction to allow a refund of sales tax. Respondent,
however, does stipulate that the sales tax was paid and collected by the State in the stated amount
It is the opinion of the Court that the claimant lacks standing to recover the refund through the Court
of Claims under W.Va. Code §14-2-1 and §14-2-14(5). Furthermore, W.Va. Code §46A-6A-4(a) et.
seq. provide that in a civil action by a consumer:
(a) If the nonconformity results in substantial impairment to the use or market value of the new
motor vehicle and the manufacturer has not replaced the new motor vehicle pursuant to the
provisions of section three [§46-A-6A-3] of this article, or if the nonconformity exists after a
reasonable number of attempts to conform the new motor vehicle to the applicable express
warranties, the consumer shall have a cause of action against the manufacturer in the circuit court
of any county having venue.
(b) In any action under this section, the consumer may be awarded all or any portion of the
(1) Revocation of acceptance and refund of purchase price, including, but not limited to, sales tax,....
As the Court lacks jurisdiction over the subject matter of this claim, the Court must deny the claim.