Taletia Lynette Newsom



Claimant appeared in person and by counsel, Marsha Dalton.

Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.

An application of the claimant, Taletia Lynette Newsom, for an award under the West Virginia Crime Victims Compensation Act, was filed October 31, 2002. The report of the Claim Investigator, filed April 17, 2003, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on May 8, 2003, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed June 16, 2003. This matter came on for hearing June 24, 2004, claimant appearing in person and by counsel, Marsha Dalton, and the State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney General.
On June 11, 2002, the 31-year-old claimant was the victim of criminally injurious conduct in Huntington, Cabell County. The claimant was waiting outside her sister-in-law's house in her parked vehicle when it was struck by a passing vehicle.
The claimant testified at the hearing of this matter that on the afternoon in question, she had gone to the residence of her sister-in-law so that her sister-in-law could pick up some clothes, as she had been staying with the claimant. The claimant testified that she and her daughter were sitting in her vehicle, waiting for her sister-in-law to come back out, when she saw another vehicle approaching. She testified that the other vehicle ran a stop sign and then struck her vehicle. The other driver kept going, so Ms. Newsom proceeded to dial 911 on her cell phone. Ms. Newsom then started her vehicle and followed the other vehicle until the other driver stopped. The claimant further testified that, to her knowledge, the other driver was not cited for any traffic offenses.
David Barnes, a neighbor of the claimant's sister-in-law, witnessed the incident from the porch of his house. His testimony was taken via conference call. Mr. Barnes testified that he saw a vehicle approach the intersection where the driver proceeded to look to the left before continuing to make a right-hand turn. As the driver turned, Mr. Barnes stated that there was an oncoming vehicle approaching the vehicle that had turned, so the driver swerved over to the side, hitting the claimant's vehicle, and then proceeding down the street until the claimant caught up with her.
As a result of the other vehicle striking her vehicle, the claimant suffered bruises on the right side of her shoulder, neck, and back. Her daughter's neck was injured, and she has very bad headaches.

W.Va. Code §14-2A-3(c) states, in part: "... Criminally injurious conduct does not include conduct arising out of the ownership, maintenance or use of a motor vehicle, except when the person engaging in the conduct intended to cause personal injury or death, or except when the person engaging in the conduct committed negligent homicide, driving under the influence of alcohol, controlled substances or drugs, or reckless driving."

In the present case, the Claim Investigator's finding was that there was no evidence that the offending driver committed any of the four excluding elements of §14-2A-3(c), and therefore recommended no award. Therefore, it is the claimant's burden to prove by a preponderance of the evidence that one of the four exclusions contained in §14-2A-3(c) does apply to the claim. The Court is of the opinion that she did not meet this burden. The evidence adduced at the hearing of this matter establishes that at no time was the offending driver cited for hit-and-run, driving under the influence, reckless driving, or anything of the like. Since the offending driver does not fall into any of the exclusions contained in §14-2A-3(c), the Court must deny this claim.
The Court is constrained by the evidence to stand by its previous ruling; therefore, this claim must be, and is hereby, denied.

ENTER: _____________________________________________