IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
IN THE MATTER OF:
Gerald Allen Burford, Jr.
(CV-02-534)
O R D E R
Claimant appeared in person and by counsel, David R. Karr, Jr.
Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.
FORDHAM, JUDGE:
An application of the claimant, Gerald Allen Burford, Jr., for an award under the West
Virginia Crime Victims Compensation Act, was filed December 10, 2002. The report of the Claim
Investigator, filed April 10, 2003, recommended that no award be granted, to which the claimant filed
a response in disagreement. An Order was issued on October 30, 2003, upholding the Investigator's
recommendation and denying the claim, in response to which the claimant's request for hearing was
filed November 21, 2003. This matter came on for hearing June 25, 2004, the claimant appearing in
person and by counsel, David R. Karr, Jr., and the State of West Virginia by counsel, Benjamin F.
Yancey, III, Assistant Attorney General.
On September 13, 2002, the 37-year-old claimant was the victim of criminally injurious
conduct in Dunbar, Kanawha County. The claimant was on his front porch preparing to enter the
front door when he was shoved from behind by an unknown assailant who then fled.
As a result of the attack, the claimant suffered injuries to his right arm, which had been forced
through the glass window next to the door. His unreimbursed medical expenses totaled over
$14,000.00.
This Court's initial denial of an award was based on the fact that the incident was not timely
reported to law enforcement officials. W.Va. Code §14-2A-14(b) provides that an award of
compensation may not be approved "if the criminally injurious conduct upon which the claim is based
was not reported to a law-enforcement officer or agency within seventy-two hours after the occurrence
of the conduct, unless it is determined that good cause existed for the failure to report the conduct
within the seventy-two hour period."
At the hearing, the claimant testified that immediately after the assault, he contacted his
neighbor, John Prowse, and asked him to drive him to the hospital. Because of the excessive amount
of bleeding, the claimant did not want to wait for an ambulance. Upon arriving at the emergency
room of Thomas Memorial Hospital, the claimant explained that he had been pushed through a glass
door. Mr. Burford stated that he did not remember much of what happened at the hospital nor much
of what happened after he was taken home from the hospital.
Also testifying at the hearing was the claimant's wife, Gladys M. Burford, who stated that she
and her husband had been celebrating their marriage the evening of the incident. She went out for
a pack of cigarettes and returned home to find the window broken and a lot of blood. She could not
tell what had happened and was afraid to go inside their home, so she ran to the nearest telephone and
called her husband's mother. Mrs. Burford stated that it was his mother's boyfriend who told her that
her husband was in the hospital. When she arrived at the hospital, one of the doctors told her that her
husband had been unlocking the door when someone shoved him through the window and that his arm went through the glass. The next morning her husband was released. Mrs. Burford stated that
because of a misunderstanding in how Mr. Burford's medicine was to be administered, he was "very
drugged up" on medication and remained so until the next time he went to see the doctor, which was
two or three days later. The doctor took him off all of the medication at that point and told her to give
him Tylenol. She testified that the receptionist at the doctor's office gave her the number for the
Crime Victim Fund and that it was after contacting them that she learned she needed a police report.
It was only after contacting the police that Mrs. Burford learned that no police report had been made.
She stated that she had seen a police officer at the hospital on the night of the incident and had just
assumed that someone had contacted the police. Mrs. Burford was under the belief that her husband
had been taken to the hospital in an ambulance and that someone had been in touch with the police
prior to her arrival at the hospital. Later she learned that it was in fact a neighbor that had rushed him
to the hospital. It was only upon contacting the police some four or five days after the incident that
she and her husband learned that there was no police report. At that time they gave their statements
so that a police report could be made available for their crime victim claim.
In this claim, the Claim Investigator's finding was that the claimant had not reported to a law-
enforcement officer or agency within seventy-two hours after the occurrence of the conduct. The
original Order upheld the Claim Investigator's finding, disallowing the claim. Thus it became the
claimant's burden to prove by a preponderance of the evidence that he did in fact have good cause
for the failure to report the conduct within the seventy-two hour period.
Generally speaking, determining what constitutes "good cause" is in the sound discretion of
the trial court. Lewis v. Henry
, 184 W.Va. 323, 400; S.E.2d 567 (1990); State ex rel. Shorter v. Hey,
170 W.Va. 249; 294 S.E.2d 51 (1981). Exceptions, or perhaps clarifications, can be found when our legislature makes specific provisions of what might constitute good cause in certain situations, such
as found in W.Va. Code §62-3-1 or Rule 60(b) of the West Virginia Rules of Civil Procedure.
The Court is also confronted with a situation where the Claim Investigator believed that Mr.
Burford was the victim of criminally injurious conduct, however, the Investigator further found that
Mr. Burford's claim met the criteria set forth in W.Va. Code §14-2A-3(c), but for the fact that the
victim did not report the incident within 72 hours, as required by W.Va. Code §14-2A-14(b).
Claimant's counsel, Mr. Karr, ably points out, however, that this section of the Code also provides
that the time requirement may exceed the maximum time allowed where it is "determined that good
cause existed for the failure to report the conduct within the seventy-two hour period."
Under the facts of this particular case, evidence was presented, as previously discussed, that
Mr. Burford had to be driven to the hospital by his neighbor. Due to Mr. Burford's extensive
bleeding, it was believed that there wasn't time to wait for an ambulance. Gladys Burford, newly
married to her husband, arrived at their home shortly after this, finding broken glass "and a lot of
blood" on the front porch of their mobile home. One can easily imagine the state of mind of both Mr.
and Mrs. Burford after the incident that evening.
Additionally, the Court has Mrs. Burford's testimony that she saw a police officer in the emergency room area during the time her husband was being treated. She presumed that the officer
was there to investigate the incident.
After his discharge, there was a misunderstanding by Mrs. Burford concerning the
administration of her husband's prescription medication, resulting in his diminished mental capacity
for several days until that was corrected, resulting in a further delay in reporting.
In the light of the evidence put forth by the claimant, the Court is of the opinion that the
claimant has met his burden of proof. The evidence adduced at the hearing of the matter establishes
that the claimant had good cause for not reporting the criminally injurious conduct within seventy-two
hours of its occurrence.
The Court is compelled by the evidence to reverse its previous ruling and find that good cause
did in fact exist for the failure to timely report the incident. An award is therefore granted for the
claimant's unreimbursed medical expenses in the sum of $14,815.94 as set forth in the Claim
Investigator's memorandum of July 20, 2004. Should the claimant later submit evidence of any
additional unreimbursed allowable expenses relating to this incident, they will be reviewed by the
Court at that time.
ENTER: _____________________________________________
_____________________________________________
JUDGE