Appellate Decisions

Large v. Heartland-Lansing of Bridgeport Ohio, LLC, et al. (Ohio Supreme Court, November 20, 2013)- Nursing Home Negligence, Wrongful Death, Discovery
On November 20, 2013 the Ohio Supreme Court of Appeals refused to accept an appeal filed by a defendant nursing home over the discoverability of documents which tend to show the quality of care that nursing home facilities provide to their residents. This denial now means that the nursing home will be required to turn over Federal Medicare Inspection/Survey Reports as well as resident/family complaint forms provided to the nursing home facility by its own residents. Judge John Solovan in the Court of Common Pleas of Belmont County ordered, upon request from Bordas & Bordas, the nursing home to produce the documents back in January of 2012. Rather than do so, the nursing home appealed that ruling to Ohio's 7th Appellate District. The 7th Appellate District agreed with Bordas & Bordas, PLLC and again ordered the documents to be produced. The nursing home then filed an appeal to the highest court in the State of Ohio. The Ohio Supreme Court rejected the appeal and, in essence, affirmed the ruling of the 7th Appellate District. This long and hard fought victory benefits not only our client in this cause, but will help all plaintiffs who have filed nursing home negligence cases to fully investigate their claims and, hopefully, to avoid the same type of delay tactics used in this case.

Walter E. Hersh and Mary L. Hersh v. E-T Enterprises Limited Partnership, Ralph L. Eckenrode, P&H Investments, Inc. and Trollers Associates LLC, (Supreme Court of Appeals of West Virginia, November 12, 2013) Premises Liability Personal Injury/Comparative Negligence
On November 12, 2013, the Supreme Court of Appeals of West Virginia abolished the antiquated common-law doctrine of "open and obvious" danger. The landmark decision was handed down on behalf of an elderly and infirm gentleman who was seriously injured in a fall in West Virginia's Eastern Panhandle. The building code specifically required a handrail to be placed on a staircase for the protection of the public, in particularly elderly individuals like Mr. Hersh. Nonetheless, the landlord stubbornly refused to repair the staircase and bring his premises up-to-date with the building code. As a result, Mr. Hersh fell and was seriously hurt. A trial court initially rejected Mr. Hersh's claim, relying on an antiquated doctrine called "open and obvious." Most every state in the Union has moved beyond ad hoc decision-making as to what is and isn't "obvious" and replaced it with the modern law of comparative negligence. Under comparative negligence, the degree to which a danger is obvious and needs to be avoided by customers at a business, etc., is judged in comparison to the premises owner's negligence in violating building codes, safety regulations, and other rules designed for the protection of the public. Bordas & Bordas participated in the case as Amicus Curiae counsel for the West Virginia Association for Justice. The West Virginia Association for Justice involves itself in cases of public importance in the State of West Virginia in order to better the law and protect victims' rights. This case was a victory for safety for our elderly, children and other people who might be harmed when a company refuses to follow the rules we've all agreed on for our communities.

Hartford v. Curtis (West Virginia supreme Court of Appeals, June, 2013) - Consumer Rights, Insurance Misconduct, Performance Bonds, Judgment Bonds

In this case, Hartford wrote a bond for a mortgage broker. The bond was required by West Virginia law to protect victims of predatory lending and other illegal practices. The plaintiffs, who were represented by Bordas & Bordas, obtained a judgment against the broker who had gone out of business. The plaintiffs asked Hartford to honor its bond, but Hartford refused. The Supreme Court of Appeals of West Virginia held that Hartford was obligated to pay the full amount of the bond to help compensate the plaintiffs. Scott Blass of Bordas & Bordas successfully argued the case with Jay Stoneking on the brief.

Large v. Heartland-Lansing of Bridgeport Ohio, LLC, et al. (Ohio 7 th Appellate District, June 2013)- Nursing Home Negligence, Wrongful Death, Discovery

A panel of Ohio's 7 th Appellate District unanimously upheld a 2012 discovery ruling won by Bordas & Bordas' clients ordering a defendant nursing home to produce documents in its possession relating Federal Medicare Inspection/Survey Reports and complaint forms provided to the nursing home facility by its own residents. Nursing homes in Ohio have long attempted to argue privileges from discovery for inspection reports and other documents which may have been reviewed by alleged peer review/quality assurance committees. In essence the nursing homes were attempting to hide facts and documents which tend to demonstrate the overall quality of care provided by the home.

In Large, Heartland-Lansing sought to avoid producing the documents requested by Bordas & Bordas' clients and after hearing arguments on the issue Judge John Solovan in Belmont County, Ohio ordered the documents to be produced. Rather than comply, the Defendants sought an appeal to the 7 th Appellate District. The appeal was argued by Christopher J. Regan with Jeremy McGraw on the brief. The appellate court agreed with Bordas & Bordas, affirmed Judge Solovan's ruling and exposed the overreaching and incorrect positions asserted by Heartland-Lansing. The ruling is important precedent that will help all plaintiffs with nursing home negligence cases fully investigate their claims and avoid costly delay.

State ex rel. Richmond American Homes v. Sanders II (Supreme Court of Appeals of West Virginia, 2011) - Toxic Tort, Arbitration Agreements Void and Unconscionable

The West Virginia Supreme Court of Appeals unanimously upheld a 2009 decision won by Bordas & Bordas' clients voiding arbitration agreements embedded in home purchase contracts. Over 40 families in the Eastern Panhandle were victimized when homebuilder Richmond American Homes and MDC, Inc. installed faulty or phony radon removal systems in their home. After the Skinner Law Firm of Charles Town, W.Va., engaged Bordas & Bordas to assist in the case, the families sued Richmond/MDC for exposing them to a dangerous cancer-causing gas and defrauding them. The Defendants were defaulted for litigation misconduct in related cases.

Richmond/MDC sought referral of the cases to arbitration, citing the home purchase agreement. Circuit Judge David Sanders found the agreements unconscionable and kept the cases in court. After bringing the matter to the Supreme Court of Appeals on a Petition for a Writ of Prohibition, the West Virginia high Court agreed that the arbitration agreements were unconscionable and unenforceable. According to Justice Ketchum, writing for the Court "the circuit court's . . . findings still firmly establish an overall imbalance and unfairness of the arbitration process created by Richmond's Purchase Agreement, such that the arbitration provision is unconscionable and unenforceable." The appeal was argued by Jamie Bordas, with Andrew Skinner, Laura Davis, Jason Causey and Chris Regan on the brief.

Brown v. Genesis Health Care (Supreme Court of Appeals of West Virginia, 2011) - Nursing Home, Arbitration Agreements Voidable, Amicus Curiae

In Brown, Bordas & Bordas' Chris Regan authored an amicus curiae brief in a case before the West Virginia Supreme Court of Appeals on behalf of the Brown family and the West Virginia Association for Justice. The Association and the Browns argued that our elderly should not be bound by fine-print arbitration clauses in nursing home admission agreements when the nursing home later acts negligently or recklessly and causes injury or death to a patient at the facility. The Supreme Court of Appeals, in a landmark opinion of over eighty pages, agreed with the Association and held that such agreements were unenforceable as a matter of law and that nursing home patients injured or killed by negligent or reckless actions by nursing home corporations should retain the right to sue in court and obtain a jury trial. 

State ex rel. Richmond American Homes v. Sanders
- (Supreme Court of Appeals of West Virginia, 2010) Sanctions, Litigation Misconduct, Default Judgments

In Sanders, Richmond American Homes were defaulted (declared the losers) by the trial court as a result of their pattern of litigation misconduct against a large group of Bordas & Bordas clients. Richmond had attempted to directly contact and influence Bordas & Bordas clients and to misrepresent material matters to them. This end-run around the attorney-client relationship - along with other misconduct of Richmond, led Judge Sanders to default Richmond and its parent company, M.D.C. holdings. Richmond sought a writ of prohibition declaring such action by Judge Sanders to be improper. But instead, the Supreme Court of Appeals specifically authorized trial courts to impose case-ending sanctions in instances of serious litigation misconduct and set forth specific syllabus points and requirements for when courts exercise this power. Upon remand, Judge Sanders re-imposed the default and a second Writ application by Richmond was refused. The case was handled by Jamie Bordas and Chris Regan as well as their co-counsel, Andrew Skinner and Laura Davis of the Skinner law firm in Charles Town, W.Va. 
 

Cunningham v. Hill - (Supreme Court of Appeals of West Virginia, 2010) Motor Vehicle Wreck, Underinsured Motorist Coverage, Amicus Curiae

In Cunningham, Scott Blass and Jay Stoneking authored an amicus curiae brief for the West Virginia Association for Justice, arguing that insurance companies could not use tricky or tendentious interpretations of policy language to deny their customers the full protection and insurance they had paid for. The Supreme Court of Appeals agreed, writing that We have also warned that "[t]his Court will be vigilant in holding the insurers' feet to the fire in instances where [terms, conditions and] exclusions or denials of coverage strike at the heart of the purposes of the uninsured and underinsured motorist statutes provisions." Bordas & Bordas was proud to play a role in once again, holding insurance companies' feet to the fire and forcing them to protect their customers. 
 

Schuster v. Kokosing , (Ohio Court of Appeals, 5th Dist., 2010) was a second appeal in this dangerous intersection case. James and Cherry Schuster and their son were in a car wreck caused by a stop sign placed improperly by the Defendant contractor, Kokosing. After the trial judge directed a verdict for the Defendant in 2007, the appellate court reversed, finding ample evidence sufficient to carry the Schuster's case to a jury. On remand, the trial judge again granted judgment against the Plaintiffs, but after another brief and argument presented by Jay Stoneking, the appellate court again reversed, ordering that the case proceed to trial.
 

Thakur v. ManorCare , (Ohio Court of Appeals, 6h Dist, 2009) was a nursing home wrongful death case in which the trial court failed to properly instruct the jury on the Ohio Nursing Home Resident's Bill of Rights. After an adverse jury verdict, the trial court recognized its mistake and threw the verdict out. The Defendant, a national nursing home chain known as ManorCare, appealed. Jay Stoneking and Chris Regan filed responsive papers and Stoneking argued the case in Toledo, Ohio. The appellate court affirmed that the Plaintiffs were entitled to a new trial. The case subsequently settled confidentially after a mediation was held.

Palisades Collections v. Shorts v. AT&T , decided by the United States Court of Appeals for the Fourth Circuit in 2008, represented another piece of path-breaking appellate litigation by Bordas & Bordas. A panel of that Court determined that Americans who are sued by corporations or their proxies in state court are subject to class-action counterclaims that may not be removed to federal court. Read the opinion of the court and the dissent. Listen to the oral argument of the case.

In Nolan v. Conseco Health Ins. Co. and Brown, (Ohio 7th Dist. 2008), Scott Blass and Jay Stoneking preserved a six-figure jury award for insurance fraud in favor of one of Bordas & Bordas' clients. The Defendants, Conseco Insurance Company was paying its agent, Brown, based on the number of policies sold and Brown was preparing and accepting false applications for "heart attack" policies and then Conseco was wrongfully denying claims in the rare event that they were made. The law made by this case helps ensure that Ohio residents have a remedy when they are defrauded by insurers and insurance agents selling these questionable policies and using unsavory and illegitimate business practices. The underlying trial also included a finding by the jury that the Defendant was liable for punitive damages. Read the opinion.

Schuster v. Kokosing Construction , (Ohio App. 5 Dist 2008), was a case where a trial judge intervened in a jury trial and refused to allow the jury to decide the case. Jay Stoneking and Chris Regan prosecuted the appeal successfully, insisting that the Plaintiffs were entitled to a full jury trial. The unanimous decision of the Fifth Appellate District in Ohio held that the Judge was wrong to stop the trial and dismiss the jury and that the jury should have been permitted to decide whether a stop sign placed over 20 feet off the edge of the road was properly placed there by the construction company. The intersection at the corner of Rt 42 and US 250 in Ashland, Ohio, had multiple accidents and there was testimony that the Stop sign could not be seen well at night. Even worse, the State DOT had repeatedly told the construction company to put the sign closer to the road, in accordance with the state manuals. The appellate court remanded the case to the trial judge for a full jury trial on the merits. Read the opinion.

In State ex rel. Nationwide v. Karl , (W.Va. 2008), Jamie Bordas and Jay Stoneking of Bordas & Bordas, PLLC, won the right for West Virginia plaintiffs suing defendants insured by Nationwide Insurance Company to inquire about Nationwide's captive law firm, The Nationwide Trial Division. Since Nationwide Insurance typically pays jury awards in cases handled by the Nationwide Trial Division, Nationwide objected to the trial judge asking the jury whether they knew or had contact with the lawyers from the Nationwide Trial Division. The Supreme Court of Appeals, in a 4-1 ruling, held that the plaintiff's right to know whether any prospective jurors were acquainted with the defendant's lawyers was more important than Nationwide's effort to hide its role in the case.

In Camden-Clark Memorial Hospital v. Boggs The Supreme Court of the United States of America refused the last-ditch appeal of Camden-Clark Memorial Hospital in early 2008. Camden-Clark Memorial Hospital v. Boggs became Bordas & Bordas' first case to reach the nation's highest Court and resulted in a victory when the Court refused Camden-Clark Memorial Hospital Corporation's Certiorari Petition to overturn the $3,000,000.00 punitive damage verdict rendered against it in Wood County in 2006.

In State ex rel. Erie Insurance Property and Casualty Co. v. Mazzone , (W.Va. 2007), after multiple oral arguments and rounds of briefing, a unanimous Supreme Court of Appeals held that case-specific insurance reserve information was discoverable in bad faith insurance cases. As Justice Benjamin explained, "Where, as here, an insurer admits that its reserves for a particular claim are fact-dependant, i.e., set in light of the information available regarding a particular claim, the reserve amount is directly relevant and constitutes primary evidence of whether the insurer attempted, in bad faith, to settle a claim for substantially less than the amount it deemed reasonable and equitable compensation for the injuries sustained." (Benjamin, J., concurring). Read the unanimous opinion. Jamie Bordas, Jay Stoneking and Chris Regan briefed and argued the case. Read a press account of the decision. Read a press account of Justice Benjamin's concurring opinion, explaining how reserves are primary evidence of insurance bad faith when they are set vastly in excess of amounts offered as settlements.

In Mikesinovich v. Reynolds Memorial Hospital (W.Va. 2006), Bordas & Bordas established a clear parameter of the right to trial by a fair and impartial jury. The West Virginia Supreme Court of Appeals found, at the urging of Bordas & Bordas, that seating a juror whose spouse worked for the defendant hospital was reversible error. The error was also found to be prejudicial by the Supreme Court of Appeals, a finding indicating that the error deprived Mr. Mikesinovich of a fair trial. The case, argued by Jamie Bordas, built on the landmark case of Davis v. Wang , handled by his mother Linda Bordas in 1990, which also held that a trial judge may not seat jurors who have a pre-existing bias against the plaintiff's claims. Geoff Brown and Jay Stoneking were instrumental in perfecting the appeal through their brief-writing efforts. Read the opinion of the Court.

In 2004, in Boggs v. Camden-Clark Memorial Hospital , et al., 216 W.Va. 656 (2004) (Rehearing denied, 5-0), the Supreme Court of Appeals reversed the dismissal of a lawsuit filed on behalf of the family of a schoolteacher who died of an anesthesia overdose prior to surgery for a broken ankle. Read the opinion of the Court. The Supreme Court of Appeals reinstated the medical malpractice lawsuit, and also ruled that the Medical Professional Liability Act, including its caps on damages, does not apply to misconduct other than medical negligence. .

In 2003, in State ex rel. Allstate v. Madden , 215 W.Va. 705 (2004), the Supreme Court of Appeals adopted the "crime-fraud exception" to the attorney-client privilege in an insurance dispute or bad faith insurance case. Click here to read the opinion of the Court. The crime-fraud exception provides that attorney-client privilege can not be used to cover up documents used by an insurance company or corporation when those documents are in furtherance of a fraud or a crime.

In 2003, in Patterson v. Zdanski , Ohio App. 7 Dist., Sept. 30th, 2003 WL 22339492, Bordas & Bordas won the right for injured victims to protect the privacy of their medical records that are unrelated to the injuries they are claiming.

In 2001, in Potts v. West Virginia Insurance Guaranty Association , 209 W.Va. 68 (2001), the Supreme Court of Appeals held that each claimant was entitled to collect the statutory cap on damages mandated by West Virginia's Insurance Guaranty Act. Read the opinion of the Court. The trial court had held, in a medical malpractice case that the entire family of a victim of breast cancer misdiagnosis had to share a single cap. The Supreme Court of Appeals reversed, holding that each victim was entitled to a separate $300,000.00 cap.

Klettner v. State Farm Mut. Auto. Ins. Co. , 205 W.Va. 587 (1999). This case insured fairness for people pursuing insurance companies for bad faith by making sure they received a fair amount of time to file their cases after resolving the insurance claim itself.

In 1994, Phillips v. State Auto. Mut. Ins. Co., 711 N.E.2d 1080 (Ohio 7th App. 1998), protected Ohio insureds from the retroactive application of laws limiting their rights to insurance coverage and allowed insured motorists to settle liability claims without prejudicing their rights to under insurance in certain contexts.

In 1997, Andrews v. Reynolds Memorial Hosp., Inc., 201 W.Va. 624 (1997). The Andrews case established the right of children who suffer permanent injuries as a result of wrongdoing to recover for their future lost wages.

In 1996, Marlin v. Bill Rich Const., Inc. , 198 W.Va. 635 (1996) established the right of workers who are wrongfully exposed to toxic chemicals to sue for the fear of disease and death that such exposure brings.

In 1994, Dairyland Insurance Co. v. Bradley, 192 W.Va. 199 (W.Va. 1994) upheld the rights of injured victims to obtain underinsured motorist coverage as a guest passenger. The insurance company had tried to limit the rights of West Virginians to get all the applicable coverage, instead of just some of it.

In 1993, Martin v. Smith , 190 W.Va. 286 (W.Va.1993) established the right of a plaintiff to collect lost earnings in a case arising from the death of an infant.

In 1993, Patrick v. Scaggs , Ohio App. 7 Dist., Aug. 30, 1993 WL 343124, upheld the right of injured victims to a trial before a jury on fact issues such as the assured clear distance rule and reversed a common pleas court decision granting summary judgment to the defendants on such an issue.

In 1990, Davis v. Wang , 184 W.Va. 222 (1990), protected individuals who are injured through the negligence of another by guaranteeing them a jury that is free of individuals who refuse to award monetary damages for injuries.

The results in a legal case depend on a variety of factors, many of which are unique to each case. Prior results by this firm or any other do not guarantee future results. Case results presented here are illustrations of the type of work done by Bordas & Bordas and not a guarantee that any prospective case will yield any particular amount.