IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
IN THE MATTER OF:
O R D E R
Claimant appeared in person.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
An application of the original claimant, Jimmy Dale Rudd, II, for an award under the West
Virginia Crime Victims Compensation Act, was filed June 2, 2003. The report of the Claim
Investigator, filed October 14, 2003, recommended that an award be granted, to which the claimant's
mother, Elizabeth Rudd, filed a Response in agreement. In her Response, Ms. Rudd advised the
Court of the death of her son on June 19, 2003, and stated that, should it be determined that his death
resulted from the injuries which gave rise to his claim, she would be seeking additional compensation.
The claimant did submit a request for reimbursement of funeral expenses, but since Jimmy
died in a motorcycle accident and there was no evidence to suggest that the accident was caused by
his previous injuries, the Court denied the request for additional compensation by Order issued
January 15, 2004. The claimant's request for hearing was filed January 28, 2004. This matter came
on for hearing April 28, 2004, claimant appearing pro se and the State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney General.
On May 14, 2003, the claimant's 31-year-old son Jimmy was the victim of criminally
injurious conduct in Huntington, Cabell County. He had witnessed a woman being assaulted by an
unidentified male, and when he came to her aid, another male approached from behind and struck him
in the head with a beer bottle. It was later determined that Harley Richardson, who was arrested on
other charges, was the one who struck the victim. U
nreimbursed medical expenses of $9,023.85 were
awarded from the Crime Victims Compensation Fund.
The claimant testified at the hearing of this matter that on several occasions after the attack,
her son had felt dizzy and light-headed. His doctor, suspecting an ear infection, treated him with an
antibiotic. The doctor advised that it could also have been a spinal fluid leak.
According to the claimant, Jimmy was not placed on any driving restrictions. He was told not
to hit his head or become involved in physical contact. At the time of the motorcycle accident, he was
wearing a helmet. The claimant also stated that Jimmy was an experienced driver, that he traveled
that particular road on a daily basis, and that there were no skid marks or other signs that he may have
lost control of the motorcycle. Ten days before the accident, Jimmy had been examined by Dr. David
L. Weinsweig, who noted that there was still a small subdural hematoma on the left side, and the CAT
scan showed a minimal amount of remaining blood. A letter from the Chief Medical Examiner, dated
November 5, 2003, states, "The assault that occurred two weeks prior to his death cannot be
eliminated as a cause for Mr. Rudd to lose control of his motorcycle."
Submitted as Claimant's Exhibit No. 1 was the statement from Reger Funeral Home in the
amount of $6,476.03, which the claimant testified she paid in full.
Based on the particular facts of this case as presented through testimony and evidence, the Court finds that the motorcycle accident was proximately caused by the prior incident in which Jimmy
Dale Rudd was injured. Therefore, an award shall be granted.
W.Va. Code §14-2A-3(f)(2) permits a total charge "not in excess of six thousand dollars for
expenses in any way related to funeral, cremation and burial." Accordingly, an award in that sum is
hereby granted as set out below. Should the claimant later submit any additional unreimbursed
allowable expenses relating to these incidents, they will be reviewed by the Court at that time.
Christ Temple Church
2400 Johnstown Rd.
Huntington WV 25701