IN THE LEGISLATIVE CLAIMS COMMISSION OF THE STATE OF WEST VIRGINIA

DAVID A. ADKINS

v.

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,

DIVISION OF HGHWAYS

(CC-18-1550)

Claimant appeared pro se.

Stacy A. Jacques, Attorney at Law, for the Respondent.

Wesley W. Queen, Attorney at Law, for West Virginia Paving, Inc.

PER CURIAM:

The Claimant brought this action alleging that the negligence of the Respondent was the cause of damage sustained to his vehicle.

The Claimant and the Respondent, through its counsel, appeared for a hearing before the Legislative Claims Commission on August 29, 2019.

At the hearing, the Claimant testified that on September 15, 2018, he was driving his new 2018 Ford Escape on Interstate 64 at mile marker 47 near Cross Lanes, Kanawha County. At this location of Interstate 64, the traveling lanes were being milled and repaved. The Claimant was traveling in the milled lane and began to change lanes to exit the Interstate at Exit 47. As he maneuvered his vehicle from the milled lane to the newly repaved lane, his vehicle struck the sharp edges of the new layer of asphalt and sustained damage to the tire. The Claimant incurred expenses in the sum of $280.34; his collision insurance required a deductible of $1,000.00.

The Respondent denied the validity of the claim in its pleadings and at the hearing. The Respondent argued that it was not responsible for the Claimant’s damages inasmuch as its contractor, West Virginia Paving, Inc. was responsible for the construction zone pursuant to the provisions of their contract. Prior to the hearing, the Respondent invoked the contract’s indemnification clause, Provision 107.14, and notified the contractor, West Virginia Paving, Inc. that the Respondent was demanding that it indemnify it and defend it against this claim filed in the Legislative Claims Commission. The contractor did not file a motion to intervene in the claim; rather, it stood in the shoes of the Respondent and provided a defense for the Respondent in the name of the Respondent. See VanKirk v. Green Construction Company, 195 W.Va. 714, 466 S.E.2d 782 (1995).

After duly considering the facts, the testimony and the exhibits submitted in this claim, the Legislative Claims Commission hereby finds that the Respondent, Division of Highways, was negligent in its maintenance of Interstate 64 East at mile marker 47 near Cross Lanes, Kanawha County, on the date of this incident and that the negligence of the Respondent was a proximate cause of the damages sustained by the Claimant.

In view of the foregoing, it is the recommendation and opinion of the Legislative Claims Commission that the Claimant should be awarded the sum of $280.34 in this claim.

Award of $280.34.