IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


Linda L. Feathers


(CV-03-437)


O R D E R



Claimant appeared in person and by counsel, Timothy J. Manchin.

Ronald L. Reece, Assistant Attorney General, for the State of West Virginia.


FORDHAM, JUDGE:
An application of the claimant, Linda L. Feathers, for an award under the West Virginia Crime Victims Compensation Act, was filed August 29, 2003. The report of the Claim Investigator, filed January 23, 2004, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on March 25, 2004, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed April 7, 2004. This matter came on for hearing July 14, 2004, the claimant appearing in person and by counsel, Timothy J. Manchin, and the State of West Virginia by counsel, Ronald L. Reece, Assistant Attorney General.
On September 25, 2002, the 39-year-old claimant was the victim of criminally injurious conduct in Harrison County. The claimant was driving her vehicle when the vehicle struck a boy riding on a motorcycle. The father of the juvenile saw the incident and ran to the scene of the accident where he got into an argument with the claimant. The argument escalated to a physical confrontation between the father of the juvenile and the claimant.
As a result of the attack, the claimant suffered unspecified injuries and work loss. Her medical expenses were covered under Medicaid.
This Court's initial denial of an award was based on the fact that it was unclear about what took place with regard to the incident, as the police report contained conflicting statements surrounding the events that took place. In a prior claim where a claimant was in a public place and suffered a beating in an altercation among the claimant, his companions, and other individuals, the records were not clear as to who started the fight. The Court held that when making awards under the crime victims statute, the Court looks to the innocence of the victim. When that innocence is in doubt, the Court cannot grant an award. That claim was disallowed. In re Reichert, CV-03-08 (2003), In re Robinson, CV-01-340 (2002).
At the hearing, two witnesses testified on behalf of the claimant. Karen Barnes was in the vehicle with the claimant when the claimant's vehicle struck the boy on the motorcycle. Ms. Barnes testified that Ms. Feathers had gotten out of the vehicle to check on the well-being of the boy when the boy's father, Robert Dennison, shoved her out of the way. Ms. Barnes stated that Mr. Dennison and Ms. Feathers then started arguing with each other. Mr. Dennison then grabbed the claimant by the hair, threw her on the ground, and hit her in the side of the face. He then kicked her a couple of times and stomped on her foot. Ms. Barnes testified that Ms. Feathers did not retaliate at any time, nor did she do anything to provoke Mr. Dennison.
Bernard Burge also testified on behalf of the claimant. Mr. Burge had been talking with Mr. Dennison prior to the incident. Mr. Burge testified that after the accident, Mr. Dennison had been yelling at Ms. Feathers. Mr. Dennison then went after the claimant, striking her in the jaw, causing her to go to the ground. Mr. Burge stated that Mr. Dennison struck the claimant several times while she was on the ground. He further testified that Ms. Feathers had eventually gotten up, was upset, and threw her keys at Mr. Dennison, at which time further words were exchanged. Mr. Burge stated that Mr. Dennison then grabbed the claimant by the hair, threw her on the ground and kicked her a couple times. Mr. Burge testified that at no point had Ms. Feathers done anything to provoke Mr. Dennison.
The respondent, upon hearing the testimony from Ms. Barnes and Mr. Burge, conceded the fact that Ms. Feathers was an innocent victim, and was prepared to make an award in her claim, based upon further inquiries into her economic loss. The Claim Investigator then made the determination that the claimant's medical expenses were covered by Medicaid, but that she had work loss in the amount of $3,422.00. The claimant also incurred $44.00 in prescriptions related to this incident. Based upon this evidence and the concession by the respondent that the claimant was an innocent victim, an award is granted for the claimant's work loss and prescriptions paid in the sum of $3,466.00 as set forth in the Claim Investigator's memorandum of September 29, 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: _____________________________________________
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JUDGE