David N. Dittmar, Attorney at Law, for claimant.
Henry C. Bias, Jr., Deputy Attorney General, for respondent.


This claim was filed by Constance Kesner, individually and as a
wrongful death claim under the
provision of W.Va. Code 55-7-5 by Constance Kesner as the administratrix
of the Estate of
Philip S. Kesner, deceased, who was killed during an escape by inmates
from the West Virginia
State Penitentiary in Moundsville, West Virginia on November 7, 1979. At
the time of his death,
Philip S. Kesner was employed as a trooper by the Department of Public
Safety of West
Virginia and had been so employed for approximately three years. He was
survived by his wife,
Constance Kesner, to whom he was married on April 24, 1978. Both he and
his wife were 23
years old at the time of his death. On the night of November 7, 1979,
the decedent and his wife
were driving past the penitentiary at the time of a prison break.
Escaping prisoners forcibly
stopped and commandeered the Kesner vehicle. The Kesners were thrown out
of the vehicle,
and Philip S. Kesner was shot and killed. When the claimant's evidence
was nearly completed,
the respondent conceded liability and acknowledged that there probably
would not have been
an escape resulting in the death and injuries had there not been
negligence on the part of at least
two correction officers of the respondent. only the issue of damages
remained to be determined.

The decedent had no children and under the provisions of W.Va. Code
§55-7-5, the widow
became the sole heir of the decedent, entitled to receive any recovery
by reason of the death of
her husband. The respondent contends that certain sums received by the
widow from State
funds should be offset against any award. Benefits received by the widow
from collateral
sources are not to be considered.

The Court finds that proceeds of two life insurance policies paid for
by the State, one with the
Aetna Life Insurance Company in the amount of $8,000.00 and one with the
Public Employees
Insurance in the amount of $20,000.00, both amounts paid to the widow,
are not a collateral
source. Additionally, the widow is entitled to receive from the
Department of Public Safety
Death, Disability and Retirement Fund $1,324.83 per month commencing
sixty days after the
decedent's death and continuing for the life of the widow or until she
remarries. These payments
are not a collateral source except for the contribution of approximately
$2,400.00 made by the
decedent during his employment as a trooper.

The Court is well aware of the shock and mental anguish suffered by the
claimant, Constance
Kesner. The experience of being dragged from their vehicle, resulting in
her husband's death in
her presence, will never be erased from her memory. After careful
consideration of the record
and considering the sums already received by the widow other than
collateral sources, and fully
realizing the possibility of her remarriage, the Court makes an award to
the claimant, Constance
Kesner, individually in the amount of $50,000.00.

The Court also finds that Constance Kesner, as Administratrix of the
Estate of Philip S.
Kesner, deceased, is entitled to an award of $150,000.00. In addition to
this amount, under the
provisions of the wrongful death statute, the administratrix is entitled
to recover the funeral bill in
the amount of $2,960.59, incidental funeral expenses in the amount of
$77.25, and the cost of a
tombstone in the amount of $1,270.00. Accordingly, the Court makes an
award to Constance
Kesner, as Administratrix of the Estate of Philip S. Kesner, deceased in
the amount of

The victim's automobile was heavily damaged, later repaired and sold
for $3,500.00. The
record is otherwise silent as to the value of the automobile prior to
the escape, and the Court
makes no award as to automobile damages.

Award of $50,000.00 to Constance Kesner, individually. Award of
$154,307.84 to
Constance Kesner, as Administratrix of the Estate of Philip S. Kesner,