An April full of admissions, inductions, decisions and dismissals.
The month of April has been full of excitement around the offices of Bailey & Wyant PLLC. With the recent addition of Virginia, Bailey & Wyant PLLC is now able to represent clients across 7 states. We have attended several black-tie events including the induction of our Managing Member as a Fellow of the W. Va. Bar Foundation. Please continue reading and enjoy the latest news for you.
Charles R. Bailey West Virginia Bar Foundation Fellow
Managing Member Charles R. Bailey
On April 21, 2022, Managing Member Charles R. Bailey was inducted as a Fellow to the West Virginia Bar Foundation. Bar Foundation Fellows are attorneys whose professional, public and private careers have demonstrated outstanding dedication to the welfare of their communities and honorable service to the legal profession.
James W. Marshall III Admitted to the Virginia Bar
Bailey & Wyant PLLC's Member James W. Marshall III
James W. Marshall III is a Member of Bailey & Wyant, PLLC's Eastern Panhandle office in Martinsburg, West Virginia. Jim was admitted to the North Carolina State Bar in April 2007, the West Virginia State Bar in May 2008, most recently the Virginia State Bar in 2022, as well as the United States District Courts for the Southern District of West Virginia in May 2008, the Northern District of West Virginia in June 2013, the Eastern District of North Carolina in January 2012, and the Western Districts of North Carolina in October 2011. He has also been admitted to practice law before the United States Circuit Court of Appeals for the Fourth Circuit where he successfully argued in the case styled Cornett Management Company v. Fireman's Fund Insurance Company, No. 07-2019. He has been associated with Bailey & Wyant, in Charleston since June 2007.

His practice has primarily been focused on the representation of businesses and individuals in the areas of products liability, asbestos litigation, mass torts, toxic torts, professional liability, personal injury, insurance coverage and general insurance defense.

Jim has recently been appointed to the Berkeley County Emergency Ambulance Authority Board. The Berkeley County Ambulance Authority was established in September 1988 by Special Ordinance, to provide E-911 Emergency Ambulance Services to the citizens of Berkeley County. The Ambulance Authority runs approximately 16,000 E-911 calls annually at a cost of over $5,000,000.00. Their current mission statement of providing exceptional Emergency Medical Services, within Berkeley County; utilizing teamwork, innovation, technology, and training; to create favorable outcomes and provide immediate lifesaving interventions is paramount in the industry.

Mr. Marshall is also the President of The MRB Foundation. The foundation was incorporated as a 501 (c)(3) non-profit organization in August 2021. The foundation’s mission is to promote community relations, increase public awareness and understanding of aviation, the aviation industry and to support workforce recruitment and retention efforts in the aviation industry. The MRB Foundation raises funds for advisory services, learning opportunities for students, research for educational purposes and other educational services. The organization is actively involved with the BerkeleyWV250 events and is planning a 100th Anniversary celebration of Shepherd Air Field in conjunction with the Eastern West Virginia Regional Airport in 2023.
Medical Care Providers Dismissed
Charleston Member Jordan K. Herrick and Associate Samuel M. Bloom
Bailey & Wyant PLLC's Member Jordan K. Herrick and Associate Samuel M. Bloom obtained dismissal of medical care providers at Denmar Correctional Center in regard to a Complaint filed against them in the United States District Court for the Northern District of West Virginia.

The inmate alleged that the medical care providers violated his Eighth Amendment rights in their alleged failure to timely provide him treatment and refer him to a specialist for his kidney issue which ultimately was diagnosed as kidney cancer. The Court found that the inmate had failed to allege sufficient facts to support this claim and dismissed the case against the medical care providers.
Supreme Court of West Virginia found inter alia
Equity Member Mark A. Kepple and Associate Benjamin P. Visnic of the Wheeling Office
Mark A. Kepple and Benjamin P. Visnic were successful in reversing the lower court’s grant of summary judgment in the matter of Horizon Ventures of West Virginia, Inc. v. American Bituminous Power Partners, L.P., Civ. A. 18-C-130 (Marion Co. 2018) (S. Ct. No. 20-0759). The matter involved a complicated commercial leasing relationship. The Supreme Court of Appeals of West Virginia found, inter alia, that the lower court improperly failed to resolve the relationship between the parties’ 1989 Lease Agreement , 1996 Settlement Agreement, and 2017 court order before granting American Bituminous’ summary judgment order. The case has been remanded to Marion County Business Court for additional findings on the same.

Products Liability Settlement and Unpaid Wages Awarded
Managing Member Charles R. Bailey and Associate Jeffrey M. Carder
Managing Member Charles R. Bailey and Associate Jeffrey M. Carder settled a products liability case against their client, a distributor of automobile cleaning and reconditioning products. They negotiated a full release of their client and recovery of attorney fees.

In a second matter, Mr. Bailey and Mr. Carder successfully arbitrated a claim under West Virginia’s Wage and Payment Act. They obtained an award of unpaid wages due to their client from his employer upon termination, plus two times that amount in punitive damages and attorney fees and costs. 

Workers' Compensation Decisions
Bailey & Wyant PLLC's Charleston Associate Jeffrey M. Carder
Charleston Associate, Jeffrey M. Carder succeeded in obtaining a decision out of the WV Workers’ Compensation Office of Judges in which the ALJ ruled the claim compensable for contusions of the right shoulder and hip as well as cervical and lumbar sprain/strains and a permanency award of 2%. The claimant was seeking to recover 37% in a permanency award for a slip and fall at work in 2016 which the claimant alleged resulted in multilevel cervical and lumbar disc protrusions as well as a right rotator cuff tear. The ALJ found the medical evidence and expert testimony submitted on behalf of the employer demonstrated the claimant sustained minor contusions and back sprain/strains as a result of the workplace injury and was entitled to a 2% permanent impairment award.

Mr. Carder also succeeded in obtaining a decision from the WV Workers’ Compensation Office of Judges affirming the denial of a claimant’s application for occupational pneumoconiosis benefits. After having worked in the coal mining industry for nearly 35 years, the claimant came to work for a plastics factory approximately 4 years ago. The claimant alleged he developed occupational pneumoconiosis as a result of exposure to plastics dust through his employment with his new employer. The Office of Judges held the air quality data submitted into evidence demonstrated the claimant did not incur hazardous levels of air borne dust during his employment with the plastics factory, but rather his condition more likely than not developed as a result of his previous employment as underground coal miner.
Voluntary Dismissal of Lawsuit
Of Counsel Albert "Abbie" C. Dunn
Bailey & Wyant PLLC's Of Council Albert "Abbie" C. Dunn of the Charleston office defended a veterinarian who was accused by two dog breeders if acting inappropriately and committing defamation by reporting the neglect of a female dog and 2 puppies to the human officer for the county. 

Mr. Dunn filed a motion to dismiss and asserted that the veterinarian is a mandatory reporter of suspected abuse/neglect and that a veterinarian is immune from litigation from said reporting.  After receipt of the Motion to Dismiss, the Plaintiffs agreed to voluntarily dismiss the lawsuit.
Bailey & Wyant PLLC proud sponsor of WVSU
Bailey & Wyant PLLC's Managing Member Charles R. Bailey, Mrs. Peggy Bailey, and Associates Jeffrey M. Carder and Kate H. Arritt attended the 2022 WVSU Black and Gold Gala.
Update from Samuel M. Bloom
The West Virginia Supreme Court of Appeals recently published an opinion that sheds light on assessing non-party fault of non-parties who, arguably, share in fault but are immune to liability. In State ex rel. March-Westin Co. v. Gaujot, No. 21-0577, 2022 W. Va. LEXIS 201 (Mar. 21, 2021), the Plaintiff was injured while moving a light pole cut down by a March Westin employee. The Plaintiff filed a workers’ compensation claim and, after receiving an impairment percentage, sued March Westin. March Westin filed a notice non-party fault, naming the Monongahela County Commission as a non-party entity that shares in the fault of the harm to the Plaintiff. The Plaintiff moved the Court to strike the notice of non-party fault and the Court granted the Plaintiff’s motion. The circuit court had several reasons for granting the motion to strike, and one of those reasons was because the County Commission, as a political subdivision, is immune from liability for any loss or claim that results from any claim covered by any workers’ compensation law under West Virginia Code § 29-12A-5(a)(11). The Court arrived at this conclusion because the non-party fault statute in West Virginia “expressly preserves” immunities. See W. Va. Code § 55-7-13d. As a result of striking the notice of non-party fault, March Westin filed a petition for entry of a writ of prohibition.

The West Virginia Supreme Court of Appeals ultimately found that the circuit court committed clear error when it determined that the County Commission could not be identified as a non-party to whom fault may be allocated against. The Court noted that West Virginia Code § 55-7-13d is clear that an assessment of fault does not affect a nonparty’s immunity, but that this language does not mean that percentage of fault cannot be assessed against the County Commission. The language of Section 13d makes clear that “[a]ssessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of named parties.” Further, a 2020 decision in the Northern District of West Virginia stated that “[n]on-parties are not bound nor can they be bound by any aspect of any verdict rendered pursuant to section 55-7-13d.” Taylor v. Wallace Auto Parts & Servs., Inc., No. 2:19-CV-27, 2020 U.S. Dist. LEXIS 47573, 2020 WL 1316730, at *2 (N.D.W. Va. Mar. 19, 2020).

Thus, the West Virginia Supreme Court of Appeals held that in assessing percentages of fault under West Virginia Code § 55-7- 13d (eff. 2016), the trier of fact must consider the fault of all persons who contributed to the alleged damages regardless of whether immunity or some other principle of law would prevent such a person from being named as a party to the suit. Fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice no later than one hundred eighty days after service of process upon said defendant that a nonparty was wholly or partially at fault. W. Va. Code § 55-7- 13d(a)(1) and (2).
2022 YWCA Race to End Racism
Members from the Bailey & Wyant PLLC's Charleston Office attended the 2022 YWCA Race to End Racism. This year the team supported the cause by joining the 1 Mile walk and the 5K run.

Pictured from Left to right are: Marketing Director, Tracey Wilson, Client Account Manager, Joan Barney, Sally Jones, and Eva Ihnat. Not pictured, Trenton Delaney, IT Specialist.
2022 WVU MAC Dinner
Members of the Bailey & Wyant PLLC's Charleston office attended the 2022 West Virginia University's Charleston Scholarship Dinner. The dinner helps raise funding for the Athletic Scholarship Program.

Pictured from the left: Member, David Mincer, Managing Member, Charles Bailey, WVU Head Coach Neal Brown, Associate, Sam Bloom, Member, Daniel LeMasters, and Associate, Adam Strider.
Our philosophy is simple. We provide aggressive and effective legal representation, while being ever mindful of each client's individual needs, goals, and economic interests. No matter how complex or novel, our focus in a case is always to reach the right resolution for our client.

To discuss your case, e-mail us (baileywyant@gmail.com) or give us a call.
304.345.4222 CHARLESTON
304.233.3100 WHEELING
304.901.2000 MARTINSBURG 

Sincerely, 

Bailey & Wyant, PLLC
304-345-4222