West Virginia Questions & Answers by Practice Area
- Bankruptcy
- Consumer Law
- Contracts
- Copyright
- Criminal Law
- Divorce
- DUI / DWI
- Employment Law
- Estate Planning
- Family Law
- Foreclosure
- Immigration Law
- Personal Injury
- Products Liability
- Real Estate Law
- Tax Law
- Traffic Tickets
- Workers' Compensation
- Admiralty / Maritime
- Adoption
- Agricultural Law
- Animal / Dog Law
- Antitrust
- Appeals / Appellate Law
- Arbitration / Mediation Law
- Banking
- Business Formation
- Business Law
- Car Accidents
- Child Custody
- Child Support
- Civil Litigation
- Civil Rights
- Collections
- Communications Law
- Constitutional Law
- Construction Law
- Domestic Violence
- Education Law
- Elder Law
- Election Law
- Employment Discrimination
- Energy, Oil and Gas
- Entertainment / Sports
- Environmental
- Federal Crimes
- Gaming
- Gov & Administrative Law
- Government Contracts
- Health Care Law
- Identity Theft
- Insurance Bad Faith
- Insurance Defense
- Intellectual Property
- International Law
- Internet Law
- Juvenile Law
- Land Use & Zoning
- Landlord - Tenant
- Legal Malpractice
- Lemon Law
- Libel & Slander
- Medical Malpractice
- Mergers & Acquisitions
- Military Law
- Municipal Law
- Native American Law
- Nursing Home Abuse
- Patents (Intellectual Property)
- Probate
- Public Benefits
- Securities Law
- Sexual Harassment
- Small Claims
- Social Security
- Stockbroker Fraud
- Trademark
- Uncategorized
- White Collar Crime
- Wrongful Death
West Virginia Questions & Answers
Q: Does the fact that the police didn't cite me help determining liability for my car accident?
D. Michael Burke Esq's answer
Not necessarily. If the the other driver was cited, an insurance company would likely determine that the other driver was at fault. If neither driver was charged, then the insurance companies will look to other factors. In many cases, though, the investigating officer gets it wrong, and cites a non-negligent party. Ultimately, who is or is not charged has no bearing in a civil action arising from the wreck--the judge or jury listens to the facts and determines who--if anyone--was at fault.
Not necessarily. If the the other driver was cited, an insurance company would likely determine that the other driver was at fault. If neither driver was charged, then the insurance companies will look to other factors. In many cases, though, the investigating officer gets it wrong, and cites a non-negligent party. Ultimately, who is or is not charged has no bearing in a civil action arising from the wreck--the judge or jury listens to the facts and determines who--if anyone--was at fault.
Q: Can a company use my image in videos promoting their business without my consent?
1 Answer
| Asked
in
Copyright, Civil Rights, Identity Theft and Intellectual Property
for
West Virginia
on
Answered on Jul 16, 2018
Answered on Jul 16, 2018
Camille Brooks Ibrahim's answer
That is copyright infringement you need to speak to an intellectual property lawyer.
That is copyright infringement you need to speak to an intellectual property lawyer.
Q: My dog bit our neighbor while he trespassed on our property. Can he sue me for his injuries?
D. Michael Burke Esq's answer
Your neighbor CAN sue you, but he could have a difficult time winning the case. The nature of your neighbor's trespass, the breed of your dog, and whether or not your dog has a history of biting people could be factors in the case. You should report the incident to your homeowner's insurance carrier. If you will need an attorney, your insurance company will hire one for you.
Your neighbor CAN sue you, but he could have a difficult time winning the case. The nature of your neighbor's trespass, the breed of your dog, and whether or not your dog has a history of biting people could be factors in the case. You should report the incident to your homeowner's insurance carrier. If you will need an attorney, your insurance company will hire one for you.
Q: Lawyers put me out of Estate administration 4 days prior to settlement. I started the wrongful death and had contract.
D. Michael Burke Esq's answer
I would need more factual information before I could give you any meaningful advice. The personal representative has the authority to settle the case. If you were in the class of persons entitled to make a claim for damages, you had a potential claim for damages from the wrongful death settlement.
What was your relationship to the decedent? If you had no relationship, your recovery may be limited.
You should contact another plaintiff's attorney in the Charleston area and...
I would need more factual information before I could give you any meaningful advice. The personal representative has the authority to settle the case. If you were in the class of persons entitled to make a claim for damages, you had a potential claim for damages from the wrongful death settlement.
What was your relationship to the decedent? If you had no relationship, your recovery may be limited.
You should contact another plaintiff's attorney in the Charleston area and...
Q: For Mother’s Day we had a cookout, but after starting the grill and while I was cooking it blew up in my face burning me
2 Answers
| Asked
in
Personal Injury, Products Liability and Energy, Oil and Gas
for
West Virginia
on
Answered on May 20, 2018
Answered on May 20, 2018
D. Michael Burke Esq's answer
This can be a very complicated case, and costly, too. What exactly blew up? Did the grill malfunction? Was the grill well maintained? Was it a gas grill--and did the propane tank explode? Did a connection leak?
All of these questions must be answered to determine who was at fault. But the most critical issue in a case of this sort is: how severe were the injuries? was hospitalization required? How much are the medical bills? Will you require plastic surgery?
This can be a very complicated case, and costly, too. What exactly blew up? Did the grill malfunction? Was the grill well maintained? Was it a gas grill--and did the propane tank explode? Did a connection leak?
All of these questions must be answered to determine who was at fault. But the most critical issue in a case of this sort is: how severe were the injuries? was hospitalization required? How much are the medical bills? Will you require plastic surgery?
Q: My apartment complex has a fountain that kids play in and my daughter was injured
D. Michael Burke Esq's answer
For you to make a successful claim on behalf of your daughter, you must prove that the owner or manager of the complex was negligent. In other words, did the owner or manager do something that they should not have done, or fail to do something that should have been done, and was that negligence a cause of your daughter's injuries? West Virginia does not recognize the "attractive nuisance" doctrine.
I recommend that you contact a local injury attorney to discuss your daughter's case.
For you to make a successful claim on behalf of your daughter, you must prove that the owner or manager of the complex was negligent. In other words, did the owner or manager do something that they should not have done, or fail to do something that should have been done, and was that negligence a cause of your daughter's injuries? West Virginia does not recognize the "attractive nuisance" doctrine.
I recommend that you contact a local injury attorney to discuss your daughter's case.
Q: I was in an accident which I was in the process of being towed the tow truck driver ask me to sit in my truck and
D. Michael Burke Esq's answer
Possibly, but the far better case against the driver who hit your car while you were being towed (if I fully understand your situation). In any event, you cannot collect twice for the same injury or damage; I would pursue a claim against the tow truck company only if the at-fault driver did not have enough insurance.
Possibly, but the far better case against the driver who hit your car while you were being towed (if I fully understand your situation). In any event, you cannot collect twice for the same injury or damage; I would pursue a claim against the tow truck company only if the at-fault driver did not have enough insurance.
Q: My dog engaged wt another dog in the neighborhood street he didn’t bite it but was aggressive threatening have mine kill
Michelle Johnson Esq's answer
WV has a strict liability dog bite statute that's limited to dogs running at large or off the leash. If the dog is running at large, the victim/s will not be required to prove the owner was negligent. I'm not sure if this answers the question because the question wasn't very clear.
WV has a strict liability dog bite statute that's limited to dogs running at large or off the leash. If the dog is running at large, the victim/s will not be required to prove the owner was negligent. I'm not sure if this answers the question because the question wasn't very clear.
Q: I am trying to find info. on a class action lawsuit vs. Ford Motor Company re. unintended acceleration filed in 2015.
1 Answer
| Asked
in
Car Accidents, Consumer Law and Lemon Law
for
West Virginia
on
Answered on Apr 16, 2018
Answered on Apr 16, 2018
Q: I need to ask....a few weeks back i received damage to car from the town I live around because a water worker did not
D. Michael Burke Esq's answer
You should talk with a local attorney who could advise you. If you have comprehensive coverage on your own auto insurance policy, you should turn it in to your company, and it sounds like you have already done so. You should also contact the town to see if there is anything it would do to help you out.
Whether it would be worth taking your case to court would depend on the amount of damage you have suffered. A case against the town could involve whether you had the opportunity to see...
You should talk with a local attorney who could advise you. If you have comprehensive coverage on your own auto insurance policy, you should turn it in to your company, and it sounds like you have already done so. You should also contact the town to see if there is anything it would do to help you out.
Whether it would be worth taking your case to court would depend on the amount of damage you have suffered. A case against the town could involve whether you had the opportunity to see...
Q: Two different people ran over two of my dogs , in a 15 minute period , while I was tending to my dog whisper a car came
1 Answer
| Asked
in
Animal / Dog Law, Car Accidents and Wrongful Death
for
West Virginia
on
Answered on Apr 8, 2018
Answered on Apr 8, 2018
D. Michael Burke Esq's answer
It appears from your question that you do not know the identity of either of the drivers. Without knowing who the drivers were, it would be impossible to take action against them. Even if you knew who the drivers were, a civil case would have limited value in West Virginia. West Virginia law considers dogs to be personal property, and the measure of your loss is based on the fair market value of your dogs, in other words what you could have sold the dogs for. You might also be able to make a...
It appears from your question that you do not know the identity of either of the drivers. Without knowing who the drivers were, it would be impossible to take action against them. Even if you knew who the drivers were, a civil case would have limited value in West Virginia. West Virginia law considers dogs to be personal property, and the measure of your loss is based on the fair market value of your dogs, in other words what you could have sold the dogs for. You might also be able to make a...
Q: I cannot find my lawsuit that we filed on december 13 2017 anywhere. Not here or pacer??
D. Michael Burke Esq's answer
Do you have an attorney? In what court did you file your suit--Federal or State? Pacer is Federal; if you filed in West Virginia State Circuit Court, you will need to contact the Circuit Clerk in the county where you filed your case. Might you have filed it in Magistrate Court? I will need more information to try to help you.
Do you have an attorney? In what court did you file your suit--Federal or State? Pacer is Federal; if you filed in West Virginia State Circuit Court, you will need to contact the Circuit Clerk in the county where you filed your case. Might you have filed it in Magistrate Court? I will need more information to try to help you.
Q: Slipped in the grocery store -- there was no sign the floor was wet - are they legally required to do that?
D. Michael Burke Esq's answer
The store's duty is to provide a safe place to shop. If the store's employees knew of the liquid on the floor, they should have cleaned it up, or at least warned that the floor was wet. If the employees knew, or should have known, of the wet floor, the store may be liable for any injuries you suffered, unless the condition was open and obvious to you. If you knew the floor was wet, and walked through it anyway, you would likely lose your claim for injuries and damages. You should contact a...
The store's duty is to provide a safe place to shop. If the store's employees knew of the liquid on the floor, they should have cleaned it up, or at least warned that the floor was wet. If the employees knew, or should have known, of the wet floor, the store may be liable for any injuries you suffered, unless the condition was open and obvious to you. If you knew the floor was wet, and walked through it anyway, you would likely lose your claim for injuries and damages. You should contact a...
Q: With a wrongful death settlement, can it be fought if it isn't split even between siblings?
D. Michael Burke Esq's answer
Yes, he can fight to receive a share of the wrongful death settlement. Whether he is successful depends on the facts, particularly the nature of his relationship with your grandmother. In West Virginia, a judge must approve the amount of a wrongful death settlement, the amount of the attorney's fee, and the distribution of the settlement to those who are entitled to make a claim to a portion of the settlement. The wrongful statute in West Virginia states:
"In every such action for...
Yes, he can fight to receive a share of the wrongful death settlement. Whether he is successful depends on the facts, particularly the nature of his relationship with your grandmother. In West Virginia, a judge must approve the amount of a wrongful death settlement, the amount of the attorney's fee, and the distribution of the settlement to those who are entitled to make a claim to a portion of the settlement. The wrongful statute in West Virginia states:
"In every such action for...
Q: My neighbor left his front door open and his dog ran out and bit my daughter.
D. Michael Burke Esq's answer
In West Virginia, a dog owner is liable for any damage caused by a dog running at large. If you can get the name of your neighbor's homeowner's insurance company, file a claim. The insurance company will pay your daughter's damages.
I strongly recommend that you contact a personal injury attorney in Huntington.
In West Virginia, a dog owner is liable for any damage caused by a dog running at large. If you can get the name of your neighbor's homeowner's insurance company, file a claim. The insurance company will pay your daughter's damages.
I strongly recommend that you contact a personal injury attorney in Huntington.
Q: Can i take my dads estate to surpream court if i feel there are attorneys doing things wrong on my dads estate
D. Michael Burke Esq's answer
There is no way to answer your question without more information. When did your father die? Did he leave a will? Was his death due to natural causes, or as a result of a wrongful act? Is your grandmother the personal representative of the estate? Who are the attorneys, whom do they represent, and what have they done--or not done--that causes you to be dissatisfied?
Answer those questions, and maybe someone can help you.
There is no way to answer your question without more information. When did your father die? Did he leave a will? Was his death due to natural causes, or as a result of a wrongful act? Is your grandmother the personal representative of the estate? Who are the attorneys, whom do they represent, and what have they done--or not done--that causes you to be dissatisfied?
Answer those questions, and maybe someone can help you.
Q: House seller intentionally did not disclose active water leak, what should I do after house purchase?
Richard Sternberg's answer
Get a lawyer in West Virginia where the home is located. In other states where I practice, a material misrepresentation to a consumer in a real estate advertisement can result in treble damages, punitive damages, attorneys fees, and costs. I practice in VA, MD, and DC, but I know I have someone in Pittsburgh, and I believe I can refer you to someone in WV. Or, you could post your question on Avvo.com seeking real estate litigators wherever the house is located.
Get a lawyer in West Virginia where the home is located. In other states where I practice, a material misrepresentation to a consumer in a real estate advertisement can result in treble damages, punitive damages, attorneys fees, and costs. I practice in VA, MD, and DC, but I know I have someone in Pittsburgh, and I believe I can refer you to someone in WV. Or, you could post your question on Avvo.com seeking real estate litigators wherever the house is located.
Q: On December 8, 2017, my family suffered a house fire.
D. Michael Burke Esq's answer
I suggest that you at least contact an attorney to discuss your potential case against your insurance company. You should also try to obtain a copy of the fire investigative report from the local fire department or chief, and from the State Fire Marshall's office.
I suggest that you at least contact an attorney to discuss your potential case against your insurance company. You should also try to obtain a copy of the fire investigative report from the local fire department or chief, and from the State Fire Marshall's office.
Q: Ive been on levothyroxine since I was around 19, I Am Now 33. few months ago my doctor refused to refill my prescription
D. Michael Burke Esq's answer
If we assume (and it's a big assumption) that the doctor fell below the accepted standard of care when he took you off your medication, a jury where I practice would not award you enough to make your case worth the time and expense it would take to pursue it. Medical malpractice cases are very expensive (tens of thousands of dollars out of pocket), and--in West Virginia--require what amounts to an affidavit from another doctor stating that the first doctor committed malpractice before anyone...
If we assume (and it's a big assumption) that the doctor fell below the accepted standard of care when he took you off your medication, a jury where I practice would not award you enough to make your case worth the time and expense it would take to pursue it. Medical malpractice cases are very expensive (tens of thousands of dollars out of pocket), and--in West Virginia--require what amounts to an affidavit from another doctor stating that the first doctor committed malpractice before anyone...
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