IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


David R. Hayes


(CV-03-34)


O R D E R



Claimant appeared in person.

Robert D. Williams, Assistant Attorney General, for the State of West Virginia.


GRITT, JUDGE:
An application of the claimant, David R. Hayes, for an award under the West Virginia Crime Victims Compensation Act, was filed January 21, 2003. The report of the Claim Investigator, filed June 12, 2003, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on August 7, 2003, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed September 4, 2003. This matter came on for hearing September 16, 2004, the claimant appearing in person, and the State of West Virginia by counsel, Robert D. Williams, Assistant Attorney General.
On November 10, 2002, the 43-year-old claimant was the victim of criminally injurious conduct in Hancock County. The claimant and Carlos Griffin were shot by the alleged offender, James Lancaster.
As a result of the attack, the claimant suffered a gunshot wound to the back and a broken collarbone. His unreimbursed expenses totaled $39,321.71, including work loss.
This Court's initial denial of an award was based on the Claim Investigator's finding that the claimant was not an innocent victim of crime. W.Va. Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the claimant ... that is unlawful or intentionally tortious and that, without regard to the conduct's proximity in time or space to the criminally injurious conduct has causal relationship to the criminally injurious conduct that is the basis of the claim and shall also include the voluntary intoxication of the claimant, either by the consumption of alcohol or the use of any controlled substance when the intoxication has a causal connection or relationship to the injury sustained."
The claimant testified at the hearing of this matter that on the date in question, he had been contacted by Jimmy Lancaster who wanted him to come down to get some tires for the vehicle that he had recently purchased from Mr. Lancaster. The claimant asked Carlos Griffin to ride along with him to pick up the tires. The claimant and Mr. Griffin met Mr. Lancaster at a gas station, where he told them to follow along in the vehicle he was riding in for a little while. When they came to a stop sign, Mr. Lancaster got out of the other vehicle and into the vehicle with Mr. Griffin and Mr. Hayes. Mr. Lancaster then directed them to a little road that led through a wooded area. It was at this point that Mr. Lancaster got out of the car, stating that there had been a party there the night before and he wanted to check and see if there was any broken glass on the ground. Mr. Lancaster then got back into the vehicle and said that they needed to go back to his brother's house so that he could get a tool to help get the tires off the vehicle they were on. They drove to the house and Mr. Lancaster got out of the vehicle for a short time and then got back in. The three men then drove back to the wooded area. Mr. Lancaster exited the vehicle to open a gate and then got back in. Mr. Hayes stated that the next thing he knew, Mr. Lancaster shot Mr. Griffin. The claimant then grabbed the gun and wrestled with Mr. Lancaster for the gun. During the struggle, the claimant was also shot. The claimant testified that he threw Mr. Lancaster out of the vehicle, who then screamed that his brother knew where they were and was coming to finish them off. At this point, Mr. Griffin was able to put the vehicle in reverse and back out of the driveway, but he then told the claimant that he needed to drive. They drove for a while before pulling into a driveway where a man called the police for them. Mr. Griffin and Mr. Hayes observed a vehicle speeding by on the street, and afraid that it might be Mr. Lancaster, they drove off again until they came to a church. Several people at the church helped them and they were life-flighted from the church to a hospital in Pittsburgh.
Mr. Hayes testified that he had not done anything to provoke Mr. Lancaster to shoot him. He stated that the only thing that he could think of as to why Mr. Lancaster shot either him or Mr. Griffin was because they had recently received their paychecks.
The Claim Investigator's original finding was that the claimant was guilty of contributory misconduct within the meaning of the statute. 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 was not guilty of contributory misconduct. The claimant testified that they were driving to meet Mr. Lancaster so that he could pick up some tires for the vehicle that he had recently purchased. Mr. Hayes testified that at no point did he provoke Mr. Lancaster. 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 was not guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and find that the claimant was not guilty of contributory misconduct. Following the hearing, the Court received documentation of unreimbursed allowable expenses of $39,321.71 in medical expenses and work loss. However, the claimant's economic loss exceeds the maximum of $25,000.00 set forth by W.Va. Code §14-2A-14(g)(1) . Therefore, an award of $25,000.00 is hereby granted pursuant to a memorandum of the Claim Investigator dated January 21, 2005.





ENTER: _____________________________________________



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JUDGE