Beyond The Bench, July 2016

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  • SMS Firm News

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SMS Attorney Obtains Deliberate Intent Dismissals  

Firm member Christopher Negley received two separate voluntary dismissals for his clients in a deliberate intent action stemming from an industrial accident in Mingo County, West Virginia.  Negley was able to demonstrate that neither client met the standard necessary to maintain a deliberate intent action and thus was able to receive dismissals for his clients.


SMS Attorneys Clear February Trial Group for Mass Torts/Asbestos

Firm members William Slicer and Christopher Negley completed a clean sweep in the February Trial Group for Mass Tort/Asbestos claims in West Virginia.  Slicer and Negley were representing three separate companies involved in multiple plaintiff cases. However, prior to trial, all of these companies were dismissed by plaintiff's counsel without having to pay any settlement amounts.
Defense Trial Win!

SMS Member/Owner Brian Warner obtained a defense verdict in was a case involving a multi-vehicle accident in Monongalia County, West Virginia, where multiple drivers were named in the accident report as associated with the accident and were then sued by Plaintiffs.  SMS's client hydroplaned on Interstate 68 and another vehicle traveling behind her collided with her vehicle shortly thereafter.  After this initial collision, some number of minutes passed and some number of vehicles, including the Plaintiffs, were able to stop their vehicle behind the initial collision involving our client.  The Plaintiffs’ vehicle was then struck twice by a vehicle or vehicles.  The Plaintiffs’ theory was that but, for our client starting the accident and chain of events, that they would never have sustained injury.  After consideration of all the evidence, the jury found that our client was not negligent and that her negligence was not a proximate cause of the Plaintiffs’ injuries for an defense verdict in favor of our client.  

SMS Publishes for Defense Research Institute

SMS Members Roberta F. Green and Christopher D. Negley have published an analysis of state and federal law in the workers’ compensation arena – Betwixt and Between: The Complex and Often Contradictory State and Federal Mandates and Workers’ Compensation (August 2016) – in the national publication of the Defense Research Institute (DRI), For the Defense.


Dismissal in Insurance Case

SMS Member Roberta F. Green and SMS Attorney Heather B. Osborn prevailed on their motion to dismiss for failure to state a claim, filed on behalf of an insurance company.  Plaintiff had brought suit directly against an insurer, alleging injury resulting from the insured’s alleged negligence. In dismissing the claim with prejudice, the Court found that West Virginia is not a direct action state and that, as a result, only very narrow claims would be available directly – not the negligence-based action raised by this plaintiff.

No Probable Cause Before Human Rights Commission

SMS Member Roberta F. Green defended a regional non-profit charitable organization against an employee’s allegations of race discrimination and unlawful reprisal. Pending before West Virginia’s Human Rights Commission, the administrative matter resolved with a finding of no probable cause.

Dismissal in Medical Negligence Case

SMS Founding Member David L. Shuman and Member Roberta F. Green gained a voluntary dismissal with prejudice after defending a local medical group against allegations of medical negligence. The defense team made extensive inquiries into plaintiff’s allegations and uncovered factual discrepancies in his claim and some complex social history, both of which resulted directly in the voluntary dismissal.

Roberta Green Publishes Article for Defense Trial Counsel

SMS Member Roberta F. Green published Curiouser and Curiouser: Legal Certainty and the Appearing, Disappearing Phenomenon that is Precedent in the 2016 Defense Trial Counsel Notebook (April 2016), which is a collection of articles written by defense counsel across West Virginia, for distribution to DTCWV members and West Virginia's judiciary. 

Voluntary Dismissal in Wrongful Death Med Mal Case

SMS Members David L. Shuman and Elizabeth S. Lawton obtained a voluntary dismissal, with prejudice, for a Nurse Practitioner in a wrongful death medical negligence case.  

Plaintiff had filed suit against multiple defendants, alleging the decedent had been prematurely discharged from the hospital and that her subsequent death was the direct result of the untimely discharge.  After much discovery, Plaintiff agreed to dismiss the client, with prejudice.

On May 18, 2016, the US Department of Labor (DOL) released the final rule revising the Fair Labor Standards Act (FLSA) overtime regulations. Employers must begin complying with the regulations by December 1, 2016.  Among the significant changes are the following:

1.    Annual salary threshold for exempt positions increases from $23,600 to $47,476 (which more than doubles the upper threshold weekly pay from $455 to $913). This dollar amount represents the 40th percentile weekly earnings in the lowest-wage Census Region (the South).

Employers must pay overtime to employees who earn less than the threshold, and as of December 1, the number of affected employees has doubled  – an additional 4.2 million workers will now be eligible for overtime pay – even if they are classified as a manager or professional.

2.    The new regulation includes numerous exemptions, including the following:

    Executive exemption test:

    a.    Paid a salary of at least $455 per week.
    b.    Primary duty is management of enterprise or portion of enterprise.
    c.    Directs the work of two or more full-time employees.
    d.    Has authority to hire/fire/promote employees.

    Administrative exemption test:

    a.    Paid a salary of at least $455 per week.
    b.    Primarily engaged in office (non-manual) work directly related to management or business operations.
    c.    Primary duties involve the use of discretion and independent judgment with respect to significant matters.

    Professional exemption test:

    a.    Paid a salary of fee of at least $455 per week.
    b.    Primarily engaged in work requiring advanced knowledge, which is predominantly intellectual in character and involves discretion, independent judgment.
    c.    Advanced knowledge is in the field of science or learning.
    d.    Advanced knowledge was acquired by prolonged course of specialized intellectual instruction.

    Creative exemption test:

    a.    Paid a salary of fee of at least $455 per week.
    b.    Primarily engaged in work requiring invention, imagination, originality or artistic/creative endeavor.
    Computer employee exemption test:

    a.    Paid a salary or fee of at least $455 per week or, if hourly, not less than $27.63 per hour.
    b.    Primarily engaged in working as computer systems analyst, computer programmer, software engineer or other skilled worker in the computer field.
    c.    Primary duties are delineated expressly in the regulations, but they include application of systems analysis techniques and procedures and design, development, documentation, analysis, creation, testing or modification of computer programs.

    Outside sales exemption test:

    a.    Making sales or obtaining orders for products or services.
    b.    Primarily engaged in the field (away from employer’s place of business).

    Highly compensated employee (HCE) test:

    a.    Earn above a higher total annual compensation level ($134,004 under this Final Rule – the annual equivalent of the 90th percentile of full-time salaried workers nationally) and satisfy a minimal duties test.
    b.    Primary duties do not include manual work.
    c.    Customarily and regularly performs at least one of the exempt duties or responsibilities of an executive, administrative person or professional, as set out above.

3.    No exemptions exist for manual laborers who perform work involving repetitive operations with their hands, physical skill and energy.

4.    No exemptions exist for police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work. 

5.    The threshold is to increase every three years, and pundits predict that the 2020 increase will take the threshold to $51,000.

6.    FLSA applies to employers who have annual gross sales or business of $500,000 or more. Beyond that benchmark, FLSA applies to organizations such as hospitals, entities providing medical or nursing care for residents, schools, and public agencies.

7    The DOL has several suggestions for employers, working to implement the changes:

    •    Reduce the number of employees affected by the new regulation by increasing the salary of any employees who meet the duties test to at least the new salary level to retain his or her exempt status. 

    •    Comply with the new regulation by paying overtime (a minimum of time and a half) to employees earning $47,476 or less. Some employers are expected to revisit benefits packages, as they look for the additional funds for this new regulation.

    •    Alternatively, reduce the amount of salary attributable to base pay (remaining mindful of minimum wage limits) and add pay to account for additional (beyond 40 hours) worked in the work week.

    •    Reduce or eliminate overtime hours worked. Some employers are expected to hire additional part-time persons to do what regular employees cannot accomplish in their 40-hour week.

8.    If you have employees at or near the threshold who regularly work overtime, you may want to consider giving that person a raise to bring him/her into the exempt category.  Be mindful, however, that by 2020, you may need to raise the salary above $51,000. And three years later. . ...  Of course, much of your workforce may never or rarely work overtime, so the new regulation may not affect your workplace.  Also, the regulation provides an extra incentive to maintain or increase productivity during the 40 hour work week.

Still have questions or concerns? SMS professionals are available to assist you in this transition – we have DOL publications that we can provide you, along with advice and assistance as you make this transition in the near future.  As always, let us know how we may help.
N.C. State Conference v. Patrick McCrory, Appeal No.: 16-1468, Published  7/29/2016.  The Fourth Circuit Court of Appeals recently reversed the district court’s decision upholding recent changes to North Carolina election law.  The 4CCA found that the revisions violated the Voting Rights Act and the Fourteenth, Fifteenth, and Twenty-Sixth Amendments of the Constitution, concluding that the North Carolina Legislature acted with discriminatory intent:
"Voting in many areas of North Carolina is racially polarized. . . . .After years of preclearance and expansion of voting access, by 2013 African American registration and turnout rates had finally reached near-parity with white registration and turnout rates. African Americans were poised to act as a major electoral force. But, on the day after the Supreme Court issued Shelby County v. Holder, 133 S. Ct. 2612 (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans."
Lauren Graham v. C. Gagnon, Appeal No.:  15-1521, Published  7/27/2016.  The federal District Court granted summary judgment in favor of law enforcement officers on a claim of false arrest based upon the qualified immunity defense.  By way of background, the officers obtained an arrest warrant for a suspect for an assault and destruction of property.  When the officers attempted to arrest the suspect outside of his home, he ran inside and closed door.  The suspect’s mother went to the door to talk with law enforcement, and agreed that she would talk with him and try to convince him to surrender.  He eventually went peacefully several minutes after fleeing into the house.  One of the officers sought a warrant for the mother for obstruction of justice, but the on-duty magistrate found no probable cause and would not issue the requested arrest warrant.   A couple of days, later the same warrant was sought in front of a different magistrate and this one issued the warrant.  The mother was arrested; charges later dropped; and her record was expunged. Law enforcement argued they were protected by immunity based upon the issuance of the warrant before making the arrest of the mother. The Court of Appeals concluded that no reasonable police officer believed that there was probable cause to seek a warrant or to serve the warrant issued by the second magistrate.  While an officer is generally immune from liability for serving a warrant or court order, the officer must have a reasonable belief that the warrant is valid:
[I]t goes without saying that where a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable. But it is different if no officer of reasonable competence would have requested the warrant, i.e., his request is outside the range of the professional competence expected of an officer.  If the magistrate issues the warrant in such a case, his action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty.
Campion v. West Virginia Department of Education.  On appeal in a labor and employment whistle blower case, Plaintiff asserted that there was a genuine issue of material fact regarding whether his age was a motivational basis behind the Defendant''s decision to hire a younger, unqualified applicant.  The Supreme Court found that the only evidence presented was Plaintiff’s own uncorroborated, self-serving testimony. Second, as to Plaintiff''s wrongful termination claim, the Supreme Court found no evidence other than Plaintiff's self-serving statements that he qualified as an "employee" of Department of Education.  Pursuant to the definition of “employee” set forth in the Whistle blower law, plaintiff was not an employee.  
Schumacher Homes v. Spencer.  At issue on appeal was a "delegation provision” contained in an arbitration agreement of a sales contract. The West Virginia Supreme Court instructed the circuit court to send the matter to arbitration, where the arbitration panel would decide whether the arbitration provision was valid.  The party who believes a “delegation provision” is invalid must explicitly challenge the validity of that provision – rather than simply challenging the validity of the arbitration provision as a whole.  Because the Plaintiff failed to specifically challenge the validity of the “delegation provision” at issue, the West Virginia Supreme Court reversed and, consistent with the United States Supreme Court precedent, deemed the delegation provision valid.  
"The task of the leader is to get their people from where they are to where they have not been." -- Henry Kissinger

 (Natalie C. Schaefer is responsible for this publication.  This publication is an advertisement for Shuman, McCuskey & Slicer, PLLC and is not intended to be considered legal advice nor intended to create an attorney-client relationship.) Visit SMS on the web at
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