IN THE LEGISLATIVE CLAIMS COMMISSION OF THE STATE OF WEST VIRGINIA

THOMAS D. WAYBRIGHT AND CHRISTIE L. WAYBRIGHT

v.

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,

DIVISION OF HGHWAYS

(CC-19-0004)

Claimants 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 Claimants brought this action alleging that the negligence of the Respondent was the cause of damage sustained to their vehicle.

The Claimants and the Respondent, through its counsel, appeared for a hearing before the Legislative Claims Commission on July 26, 2019.

At the hearing, the Claimant testified that on September 28, 2018, he was driving his 2012 Mercedes C300 on Interstate 64 West near Charleston, Kanawha County when they entered a construction zone on the Interstate.  The lanes had been reconfigured for construction and traffic had been diverted onto the shoulder.  While the Claimants were driving as directed in this lane, their vehicle struck a large pothole.   The Claimant testified that their vehicle sustained damages in the amount of $2,932.01 as indicated by the invoices they submitted with their claim materials.  Their 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 West near Charleston, 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 $1,000.00 in this claim.

Award of $1,000.00.