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Litigation Archives

Scarr Named Best Lawyers 2018 Charleston, WV Litigation - Construction "Lawyer of the Year"

Jenkins Fenstermaker, PLLC, proudly announces that Best Lawyers® has recognized Thomas E. Scarr as the 2018 Charleston, WV Litigation - Construction "Lawyer of the Year." This recognition is based on peer reviews, showing Tom's skill in construction litigation in West Virginia has earned the respect of esteemed colleagues in this practice area.


Municipalities in West Virginia (WV) face a unique set of challenges when it comes to defending potential lawsuits. After all, the costs related to litigation and possible liability can hurt the financial well-being of even the largest city, making WV municipal liability insurance a necessity. However, due to the inherent risks shouldered by WV cities--and the resulting inability to procure affordable liability insurance due to these risks--state lawmakers created the Governmental Tort Claims and Insurance Reform Act.


Employers know that good insurance coverage--including commercial general liability (CGL)--is an important part of protecting their companies from unexpected liabilities. Making sure that an insurance policy provides the necessary coverage can be confusing and stressful. Approximately 30 percent of small business owners rated liability insurance as their second largest insurance concern, according to a 2004 survey by the National Federation of Independent Business. The following discussion provides a brief overview of CGL coverage.

WV Religious Freedom Bill Failed to Pass in 2016

In 2016, by an overwhelming majority, the West Virginia House of Delegates passed House Bill 4012 regarding WV religious freedom. The bill purported to provide a claim or defense to a person whose religious freedom was burdened by state action. But, in the same legislative session, the West Virginia Senate rejected the "West Virginia Religious Freedom Protection Act" ("the Act").

Admissibility of Evidence of Seatbelt Non-Use in a Civil Action Under 2017 Senate Bill 55

The West Virginia Legislature introduced legislation in the 2016 and 2017 regular sessions that would have amended §17C-15-49 of the West Virginia Code regarding operation of vehicles with safety belts, also called seatbelts. During the 2017 session, West Virginia Senate Bill 55 was introduced and referred to the judiciary committee; a similar bill was introduced in the House, but neither bill passed. Given the interest in the bill, it is likely to be reintroduced during the 2018 regular session. If the legislature ever passed such a bill, how would that affect the admissibility of evidence of seatbelt non-use?

Inadvertent Disclosure of Confidential Information: File Sharing and Privilege Waiver

Cloud computing services such as Dropbox, Google Drive, and Box, Inc. offer unprecedented convenience. File sharing has changed the way we do business, allowing us to share documents across our own devices or even with others. But how can sharing files affect a company's legal position in a lawsuit? Does file sharing waive the attorney-client privilege? What about attorney work product protection? This blog examines the potential effects of inadvertent disclosure of confidential information.


West Virginia (WV) laws governing the cancellation of automobile insurance policies provide detailed requirements insurers must follow before depriving an insured of coverage. In 2016, WV auto insurance cancellation laws were significantly amended by the legislature. This article covers car insurance cancellation laws in the Mountain State.

The Whistle-blower Law in WV: New Consequences for Violations

In 2017, West Virginia enacted legislation amending the law designed to protect employees of the state and its political subdivisions from retaliation against whistle-blowers in WV and allows such an employee to bring a civil action for redress if the State or a political subdivision discharges, threatens or otherwise discriminates or retaliates against an employee because the employee makes a good faith report to the employer or an appropriate authority of instances of wrongdoing or waste by a governmental entity.

The WV Direct Primary Care Practice Act: Concierge Medicine in West Virginia

In the 2006 Regular Legislative Session, the West Virginia (WV) Legislature enacted the WV Preventive Care Pilot Program, Chapter 16, Article 2J of the West Virginia Code. The purpose of the pilot program was to test the feasibility of patients obtaining direct primary and preventative care from healthcare providers for a pre-paid retainer outside of the traditional health insurance model. (Direct primary care or "DPC" is one model of a now popular term, "concierge medicine.") The Preventive Care Pilot Program by enactment expired June 30, 2016, although practitioners who were participating in the Pilot Program were permitted to continue beyond the expiration date. Its legacy is the WV Direct Primary Care Practice Act.

West Virginia Medical Professional Liability Act Amendments

In 2017, the West Virginia Legislature amended several statutory provisions of the West Virginia Medical Professional Liability Act ("MPLA"), W. Va. Code § 55-7B-1 et seq, related to nursing home liability in WV. The WV MPLA governs the litigation of claims of medical malpractice liability in WV. The WV MPLA amendments provide a statutory definition of "occurrence" and set forth a shortened statute of limitation and preferred venue for claims brought against nursing homes, assisted living facilities, acute care hospitals or their employees, and other related entities.
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