RULE 1. Clerk, custodian of papers
RULE 2. Filing papers
RULE 3. Records
RULE 4. Form of claims
RULE 5. Copy of notice of claims to attorney general and state agency
RULE 6. Preparation of hearing docket
RULE 7. Proof and rules governing procedure
RULE 8. Representation of claimant; Non-resident attorneys
RULE 9. Briefs
RULE 10. Motions to strike; orders
RULE 11. Continuances; dismissal for Failure to prosecute
RULE 12. Original papers not to be withdrawn; exceptions
RULE 13. Withdrawal of claim
RULE 14. Witnesses
RULE 15. Discovery; sanctions
RULE 16. Rehearings
RULE 17. Records of shortened procedure claims submitted by state agencies
RULE 18. Application of rules of civil procedure
The Clerk shall be responsible for all papers and claims filed in his office; and will be required to properly file, in an index for that purpose, any paper, pleading, document, or other writing filed in connection with any claim. The Clerk shall also properly endorse all such papers and claims, showing the title of the claim, the number of the same, and such other data as may be necessary to properly connect and identify the document, writing, or claim.
(a) Communications addressed to the Court or Clerk and all notices, petitions,
answers and other pleading, all reports, documents received or filed in the office kept by the
Clerk of this Court, shall be endorsed by him showing the date of the receipt or filing thereof.
(b) The Clerk, upon receipt of a notice of a claim, shall enter of record in the
docket book indexed and kept for that purpose, the name of the claimant, whose name shall be
used as the title of the case, and a case number shall be assigned accordingly.
(c) No paper, exclusive of exhibits, shall be filed in any action or proceeding or be
accepted by the Clerk for filing nor any brief, deposition, pleading, order, decree, reporter's
transcript or other paper to be made a part of the record in any claim be received except that
the same be upon paper measuring 8 1/2 inches in width and 11 inches in length.
The Clerk shall keep the following record books, suitably indexed in the names of claimants and other subject matter;
(a) Order Book, in which shall be recorded at large, on the day of their filing, all orders made by the Court in each case or proceeding.
(b) Docket Book, in which shall be entered each case or claim made and filed, with a file or case number corresponding to the number of the case, together with brief chronological notations of the proceedings had in each case.
(c) Financial Ledger, in which shall be entered chronologically, all administrative expenditures of the Court under suitable classification.
Verified notice in writing of each claim must be filed with the Clerk of the Court. The notice shall be in sufficient detail to identify the claimant, the circumstances giving rise to the claim, and the State agency concerned, if any. The Court reserves the right to require further information before hearing, when, in its judgement, justice and equity may require. It is recommended that notice of claims be furnished in triplicate. A suggested form of notice of claim may be obtained from the Clerk.
Upon receipt of a notice of claim to be considered by the Court, the Clerk shall forthwith transmit a copy of the notice to the State agency concerned, if any, and a copy thereof to the Office of the Attorney General of the State, and the Clerk shall make a note of the time of such delivery.
On and after the date of adoption of these rules by the Court, the Clerk shall prepare, fifteen days previous to the regular terms of Court, a docket listing all claims that are ready for hearing by the Court, and showing the respective dates, as fixed by the Court, for the hearing thereof. The Court reserves the right to add to, rearrange, or change said docket when in its judgement such addition, rearrangement, or change would expedite the work of the term. Each claimant or his counsel of record and the Attorney General shall be notified as to the date, time, and place of the hearing.
(a) Claims asserted against the State, including all the allegations in a notice of
claim, are treated as denied, and must be established by the claimant with satisfactory proof,
or proper stipulation as herein after provided before an award can be made.
(b) The Court shall not be bound by the usual common law or statutory rules of
evidence. The Court may accept and weigh, in accordance with its evidential value, any
information that will assist the Court in determining the factual basis of the claim.
(c) The Attorney General shall, within twenty days after a copy of the notice has
been furnished his office, file with the Clerk a notice in writing, either denying the claim,
requesting postponement of proceedings to permit negotiations with the claimant, or otherwise
setting forth reasons for further investigation of the claim, and furnish the claimant or his
counsel of record a copy thereof. Otherwise, after said twenty-day period, the Court may
order the claim placed upon its regular docket for hearing.
(d) It shall be the duty of the claimant or his counsel in claims under the regular
procedure to negotiate with the Office of the Attorney General so that the claimant and the
State agency and the Attorney General may be ready at the beginning of the hearing of a claim
to read, if reduced to writing, or to dictate orally, if not reduced to writing, into the record
such stipulations, if any, as the parties may have been able to agree upon.
(e) Where there is a controversy between a claimant and any State agency, the
Court may require each party to reduce the facts to writing, and, if the parties are not in
agreement as to the facts, the Court may stipulate the questions of fact in issue and require
written answers to the said stipulated questions.
(f) Claims not exceeding the sum of $15,000.00 may be heard and considered, as
provided by law, by one judge sitting individually.
1. (a) An individual claimant may appear and conduct his or her claim without counsel, if he or she is a resident of the State of West Virginia, until or unless the Court, for good cause, shall otherwise direct.
(b) Any other claimant may appear and conduct its claim, if based upon contract,
until or unless the same shall be contested or until the Court, for good cause, shall otherwise
direct.
(c) All other claimants shall be represented by counsel.
2. Nonresident counsel appearing in this Court shall conform to the requirements of Rule 8.0 of the Rules for Admission to the Practice of Law.
More Information
(a) Claimants or their counsel, and the Attorney General, may file with the Court,
for its consideration, a brief on any question involved, provided a copy of said brief is also
presented to and furnished the opposing party or counsel. Reply briefs shall be filed within
fifteen days.
(b) All briefs filed with, and for the use of, the Court shall be in quadruplicate -
original and three copies. As soon as any brief is received by the Clerk, he shall file the
original in the Court file and deliver the three copies, one each, to the Judges of the Court.
1. The Court upon its own motion or upon motion of a party may strike a pleading,
motion, or other paper which:
(a) The Court determines is not well grounded in fact, or
(b) The Court determines is not warranted by existing law, or
(c) The Court determines is not based upon a good faith argument or for the
extension, modification or reversal of existing law, or
(d) The Court determines is interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the expense of litigation.
2. If the Court enters an Order to Strike a pleading, motion, or other paper, the Court
may include in the Order an amount to pay the other party or parties for the reasonable
expenses incurred because of the filing of the pleading, motion, or other paper, including a
reasonable attorney's fee.
(a) After claims have been set for hearing, continuances are looked upon by the
Court with disfavor, but may be allowed when good cause is shown.
(b) A party desiring a continuance should file a motion showing good cause therefor
at the earliest possible date.
(c) Whenever any claim has been docketed for hearing for three regular terms of
Court at which the claim might have been prosecuted, and the State shall have been ready to
proceed with the trial thereof, the Court may, upon its own motion or that of the State, dismiss
the claim unless good cause appear or be shown by the claimant why such claim has not been
prosecuted.
(d) Whenever a claimant shall fail to appear and prosecute his claim on the day set
for hearing and shall not have communicated with the Clerk prior thereto, advising of his
inability to attend and the reason therefor, and, if it further appear that the claimant or his
counsel had sufficient notice of the docketing of the claim for hearing, the Court may, upon its
own motion or that of the State, dismiss the claim.
(e) Within the discretion of the Court, no order dismissing a claim under either of
the two preceding sections of this rule shall be vacated nor the hearing of such claim be
reopened except by a notice in writing filed no later than the end of the next regular term of
Court, supported by affidavits showing sufficient reason why the order dismissing such claim
should be vacated, the claim reinstated, and the trial thereof permitted.
No original paper in any case shall be withdrawn from the Court files except upon special order of the Court or one of the Judges thereof in vacation. When an official of a State department is testifying from an original record of his department, a certified copy of the original record of such department may be filed in the place and stead of the original.
(a) Any claimant may withdraw his claim. Should the claimant later re file the
claim, the Court shall consider its former status, such as previous continuances and any other
matter affecting its standing, and may re-docket or refuse to re-docket the claim, as, in its
judgement, justice and equity may require under the circumstances.
(b) Any department or State agency, having filed a claim for the Court's
consideration, under either the advisory determination procedure, or the shortened procedure
of the Court act, may withdraw the claim without prejudice to the right of the claimant
involved to file the claim under the regular procedure.
(a) For the purpose of convenience and in order that proper records may be
preserved, claimants and State departments desiring to have subpoenas for witnesses shall file
with the Clerk a memorandum in writing giving the style and number of the claim and setting
forth the names of such witnesses, and thereupon such subpoenas shall be issued and delivered
to the person calling therefor or mailed to the person designated.
(b) Requests for subpoenas for witnesses should be furnished the Clerk well in
advance of the hearing date so the such subpoenas may be issued in ample time before the
hearing.
(c) The payment of witness fees and mileage (where transportation is not furnished
to any witness subpoenaed by or at the instance of either the claimant or the respondent State
agency) shall be the responsibility of the party by whom or at whose instance such witness is
subpoenaed.
(a) Depositions may be taken when a party desires the testimony of any person, including a claimant. The deposition shall be upon oral examination or upon written interrogatory. Depositions may be taken without leave of the Court. The attendance of witnesses may be compelled by the use of subpoenas as provided in Rule 14.
(b) To take the deposition of any designated witness, reasonable notice of time and place shall be given the opposite party or counsel, and the party taking such deposition shall pay the costs thereof. Extra copies of exhibits will not be required; however, it is suggested that where exhibits are not too lengthy and are of such nature as to permit it, they should be read into the deposition.
(c) Depositions shall be taken in accordance with Rule 18 of this Court.
(d) Unless otherwise permitted by the Court for good cause, no party shall serve upon any other party, at one time or cumulatively, more than 30 written interrogatories, including parts and subparts. Sufficient space for insertion of the answer shall be provided after each interrogatory or subpart thereof. The original and one copy shall be served upon the answering party. After inserting answers on the original and the copy served him, the answering party shall serve the original on the issuing party. If there is insufficient space on the original for insertion of answers, the answering party may attach supplemental pages.
(e) Depositions intended to be used as evidence in a claim shall be taken prior to the hearing of the claim, and post-trial depositions shall be admissible only upon prior approval of the Court.
(f) Depositions, interrogatories, request for the production of documents, requests for admissions and answers and responses thereto are not to be filed with the Clerk of this Court unless on specific order of this Court; however, certificates of service are to be filed with the Clerk of this Court. The party obtaining any such material through discovery is responsible for its custody, preservation and delivery to the Court if needed or so ordered, and such responsibility shall not terminate upon dismissal of any party while the claim is still pending. The custodial responsibility of the dismissed party may be discharged by agreement to transfer the custody of relevant discovery material to one or more of the remaining parties with a certificate filed with the Clerk of this Court evidencing the transaction. The original of all depositions upon oral examination and video taped depositions shall be retained by the party taking such deposition. Material obtained through discovery which is to be used in support of, or in opposition to, a motion to dismiss shall be filed with the Clerk of this Court with the motion to dismiss. If depositions, interrogatories, requests for the production of documents, requests for admissions, answers or responses thereto are to be used at trial or are necessary for a pretrial conference or for a petition for rehearing, the portions to be used shall be filed with the Clerk of this Court upon entry of the pre-trial order or at the time of the filing of the petition for rehearing insofar as their use can be reasonably anticipated by the parties having custody thereof.
(g) The Court may compel discovery and impose sanctions for failure of a party or parties to make discovery in accordance with the provisions of these Rules provided; however,
that the Court shall not find a person in contempt for failure to comply with an Order compelling discovery.
A rehearing shall not be allowed except where good cause is shown. A motion for rehearing may be entertained and considered ex parte, unless the Court otherwise directs, upon the petition and brief filed by the party seeking the rehearing. Such petition and brief shall be filed within thirty days after notice of the Court's determination of the claim unless good cause be shown why the time should be extended.
When a claim is submitted under the provisions of Chapter 14, Article 2, Paragraph 17 of the Code of West Virginia, concurred in by the head of the department and approved for payment by the Attorney General, the record thereof, in addition to copies of correspondence, bills, invoices, photographs, sketches or other exhibits, should contain a full, clear, and accurate statement, in narrative form of the facts upon which the claim is based. The facts in such record, among other things which may be peculiar to the particular claim, should show as definitely as possible that:
(a) The claimant did not, through neglect, default, or lack of reasonable care, cause the damage of which he complains. It should appear he was innocent and without fault in the matter.
(b) The department, by or through neglect, default, or failure to use reasonable care under the circumstances, caused the damage to claimant, so that the State in justice and equity should be held liable.
(c) The amount of the claim should be itemized and supported by a paid invoice or other report itemizing the damages, and vouched for by the head of the department as to correctness and reasonableness.
The Rules of Civil Procedure will apply in the Court of Claims unless the Rules of Practice and Procedure of the Court of Claims are to the contrary.
Adopted by Order of the Court of Claims, September 11, 1967.
Amended February 18, 1970.
Amended February 23, 1972.
Amended August 1, 1978.
Amended May 3, 1982.
Amended November 14, 1984.
Amended October 2, 1992.
Amended August 5, 1993.
Amended June 22, 1994.
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