West Virginia Legislative Claims Commission

Volume Number: 29
Opinion Issued February 14, 2013
     L. Lee Javins II, Attorney at Law, for Claimants.
     Michael J. Folio, Attorney at Law, for Respondent.
      This claim was submitted to the Court for decision upon a Stipulation entered into by Claimants and Respondent wherein certain facts and circumstances of the claim were agreed to as follows:
      1. On March 7, 2009, the Claimant, Bridget A. McDonie, and her daughter, Gabrielle Cochran, were traveling westbound on Route 61 in a 2007 Mazda MX 5 owned by the Claimant, Bridget A. McDonie. While driving on Route 61, in Kanawha County, a mature, rotten tree that was situated on the southern roadway hillside broke off at the stump and struck the top of the vehicle driven by the Claimant.
      2. As a result of the rotten tree striking Claimant’s vehicle, the Claimant Bridget A. McDonie sustained severe and debilitating permanent injuries to her spine, torso, and body. She also sustained severe and extreme emotional distress.
      3. As a direct and proximate result of the Claimant’s injuries, the Claimant, Bridget A. McDonie, has sustained damages in excess of $2 million.
      4. The hillside on which the tree was located is owned by Law River Company, LLC.
      5. The Claimants have identified potential evidence to suggest that the Respondent maintained a portion of the land that abuts and /or encompasses the subject tree that fell onto the vehicle driven by the Claimant Bridget A. McDonie.
      6. Given Claimant Bridget A. McDonie’s extreme injuries and significant damages, coupled with the mutual uncertainty of the outcome of any trial, the parties agree that it is in their best interests and in the interest of judicial economy to resolve this matter for the total sum of Two Hundred Thousand Dollars ($200,000.00) to be paid by Respondent to the Claimant Bridget A. McDonie in the above-captioned claim and that such payment shall be a full and complete settlement; Claimant Gabrielle Cochran has provided an express waiver of her individual interest in this claim; a compromise and resolution of all matters in controversy among the parties; and a full and complete satisfaction of any and all past and future claims that the Claimants may have against Respondent arising from the matters described in said claim, inclusive of all claims or demands that any heirs, beneficiaries, distributees, representatives, devisees, interested persons, wards, and the like (whether known or unknown) could assert or could have asserted against the Respondent.
      The Court has reviewed the facts of the claim and finds that Respondent was negligent in its maintenance of Route 61 on the date of this incident; that the negligence of Respondent was the proximate cause of the damages sustained by Claimants; and that the amount of the damages agreed to by the parties is fair and reasonable. Thus, Claimants may make a recovery in accordance with this stipulation.
      Accordingly, the Court is of the opinion to and does make an award to the Claimant in the amount of $200,000.00.
      Award of $200,000.00 to Bridget A. McDonie.

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