Shrader v . Holland
Annotate this CaseJanuary 1992 Term
___________
No. 20219
___________
LAURA SHRADER, ADMINISTRATRIX OF
THE ESTATE OF ANNA SHRADER,
Plaintiff Below
v.
GARY WAYNE HOLLAND AND SYSCO CORPORATION,
D/B/A THEIMER-SYSCO FOOD SERVICES,
A FOREIGN CORPORATION,
Defendants and Third-Party Plaintiffs Below,
Appellants Herein
v.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS,
Third-Party Defendant Below, Appellee Herein
AND
___________
20243
___________
JAMES E. BALL, ADMINISTRATOR OF
THE ESTATE OF PAMELA RAE BALL,
Plaintiff Below,
v.
SYSCO CORPORATION D/B/A THEIMER-SYSCO
FOOD SERVICES, A FOREIGN CORPORATION,
Defendant and Third-Party Plaintiff Below,
Appellant Herein
v.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS,
Third-Party Defendant Below
Appellee Herein.
JAMES E. BALL AND VIRGINIA BALL,
Plaintiffs Below,
v.
SYSCO CORPORATION D/B/A THEIMER-SYSCO
FOOD SERVICES, A FOREIGN CORPORATION,
Defendant/Third-Party Plaintiff Below,
Appellant Herein,
v.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS,
Third-Party Defendant Below,
Appellee Herein.
JOHN DICKERSON,
Plaintiff Below,
v.
SYSCO CORPORATION D/B/A THEIMER-SYSCO
FOOD SERVICES, A FOREIGN CORPORATION,
Defendant/Third-Party Plaintiff Below,
Appellant Herein,
v.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS,
Third-Party Defendant Below,
Appellee Herein.
____________________________________________________
Appeal from the Circuit Court of Mercer County
Honorable David W. Knight, Judge
Civil Action No. 88-CV-464-B
AFFIRMED
____________________________________________________
Submitted: January 21, 1992
Filed: February 6, 1992
Donald T. Caruth, Esquire
Brewster, Morhouse & Cameron
Bluefield, West Virginia
Attorney for Gary Wayne Holland
and Sysco Corporation, Appellants
Martin R. Smith, Jr., Esquire
Daniel R. Schuda, Esquire
Steptoe & Johnson
Charleston, West Virginia
Attorneys for West Virginia Department
of Highways, Appellee
Stephen R. Meyer, Esquire
Meyer & Perfator
Charleston, West Virginia
Attorney for Laura Shrader, Plaintiff
Mark E. Wills, Esquire
Princeton, West Virginia
Attorney for James E. Ball, Virginia Ball
and John Dickerson, Plaintiffs
JUSTICE NEELY delivered the Opinion of the Court
SYLLABUS BY THE COURT
The State shall not be made the defendant in any proceeding to recover damages because of the defective construction or condition of any state road or bridge. W. Va. Code, 17-4-37 [1933].
Neely, Justice:
This appeal consolidates four cases brought in the
Circuit Court of Mercer County following a 7 March 1988 automobile
accident.See footnote 1
1
Laura Shrader, as Administratrix of the Estate of Anna
Shrader, brought suit against Gary Wayne Holland and Sysco
Corporation (Sysco) seeking damages under the West Virginia
wrongful death statute. James E. Ball, as Administrator of the
Estate of Pamela Rae Ball, brought a like suit against the Sysco
Corporation. James and Virginia Ball also brought suit against the
Sysco Corporation for the injuries received by Mr. Ball in the
accident. John Dickerson filed suit against the Sysco Corporation
as a result of his injuries in the accident. Gary Holland, the
driver of Sysco's truck, and Sysco filed a third-party complaint
against the West Virginia Department of Highways and filed a motion
for joinder of Continental Casualty Insurance Company as a third-
party defendant. Upon the motion of the Department of Highways,
the circuit court dismissed the third-party claim against the
Department of Highways. Mr. Holland and Sysco now appeal. We
affirm.
I.
Although the procedural history of this case has become
complicated, the underlying facts are straightforward. On 7 March
1988, a truck owned by Sysco and driven by Gary Wayne Holland
collided with a car driven by John Dickerson. As a result of this
accident, Anna Shrader and Pamela Ball died. John Dickerson and
James Ball were also seriously injured. Ms. Shrader, Mr. and Mrs.
Ball, and Mr. Dickerson filed suit against the defendants who then
filed their third-party claim against the Department of Highways.See footnote 2
2
II.
W.Va. Const., Art. VI, § 35 provides sovereign immunity
for the state. The general principle of sovereign immunity is
specifically applied to the Department of Highways by W. Va. Code,
17-4-37 [1933]. See Adkins v. Sims, 130 W. Va. 646, ___ S.E.2d
___ (1947). W. Va. Code, 17-4-37 [1933] provides:
The State shall not be made the defendant in
any proceeding to recover damages because of
the defective construction or condition of any
state road or bridge.
W. Va. Code, 29-12-5 [1986] provides an exception to
sovereign immunity in cases where the state has insurance coverage
for alleged negligent acts.See footnote 3
3
The Board of Risk and Insurance Management for the State
of West Virginia has purchased an insurance policy that covers some
claims against the Department of Highways. However, an exclusion
provision in this policy provides:
It is agreed that the insurance afforded
under this policy does not apply to the:
Ownership, maintenance, supervision,
operation, use of [sic] control of streets,
including sidewalks, highways or other public
thoroughfares, bridges, tunnels, dams,
culverts, storm or sanitary sewers, but this
exclusion does not apply to bodily injury or
property damages which arises out of and
occurs during the performance or [sic]
construction, street cleaning, and repair
operations, or arises out of the maintenance
or use of sidewalks which abut buildings
covered by this policy.
Under this policy, the third-party plaintiff cannot
recover for the general condition of the road on which the accident
occurred. However, the third-party plaintiff would be able to make
a claim if the accident arose out of repair or maintenance of the
road. The third-party plaintiffs have provided absolutely no
evidence that the road was under repair. In fact, their initial
complaints described general road conditions and alleged no ongoing
construction or repairs. Furthermore, discovery revealed no
evidence of ongoing construction or repairs.See footnote 4
4
Therefore, the
circuit court appropriately granted summary judgement based on
sovereign immunity.
III.
For the foregoing reasons, the decision of the Circuit
Court of Mercer County is affirmed.
Affirmed.
Footnote: 1 1Parts of this case were briefly before the United States
District Court for the Southern District of West Virginia, but the
district court dismissed the case and remanded it to the Circuit
Court of Mercer County.
Footnote: 2 2The actual procedural history is somewhat more complicated.
First, Laura Shrader, as administratrix of Anna Shrader's estate,
filed suit in the Circuit Court of Mercer County against Gary Wayne
Holland and Sysco Corporation. Mr. Holland and Sysco removed the
case to the Federal District Court for the Southern District of
West Virginia, where they filed a third-party complaint against the
Department of Highways. Upon the motion of defendants Sysco and
Holland, who wanted the case returned to Mercer County so that they
could proceed against the Department of Highways, the federal court
remanded the case to the Circuit Court of Mercer County.
Concurrently, the other actions herein were filed in the Circuit
Court of Mercer County.
Footnote: 3 3W. Va. Code, 29-12-5(a) [1986] states in pertinent part:
(a) The board shall have general supervision and control over the insurance of all state property, activities and responsibilities, including the acquisition and cancellation thereof; determination of amount and kind of coverage, including, but not limited to, deductible forms of insurance coverage, inspections or examinations relating thereto, reinsurance, and any and all matters, factors and considerations entering into negotiations for advantageous rates on and coverage of all such state property, activities and responsibilities. Any policy of insurance purchased or contracted for by the board shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the state of West Virginia against claims or suits: Provided, That nothing herein shall bar the insurer of political subdivisions from relying upon any statutory immunity granted such political subdivisions against claims or suits. The board may enter into any contracts necessary to the execution of the powers granted to it by this article. It shall endeavor to secure the maximum of protection against loss, damage or liability to state property and on account of state activities and responsibilities by proper and adequate insurance coverage through the introduction and employment of sound and accepted methods of protection and principles of insurance.... The board is given power and authority to make rules and regulations governing its functions and operations and the procurement of state insurance, but shall not
make or promulgate any rules or regulations in
contravention of or inconsistent with the laws
or rules and regulations governing the office
of insurance commissioner of West Virginia.
The board is hereby authorized and empowered
to negotiate and effect settlement of any and
all insurance claims arising on or incident to
losses of and damages to state properties,
activities and responsibilities hereunder and
shall have authority to execute and deliver
proper releases of all such claims when
settled. The board may adopt rules and
procedures for handling, negotiating and
settlement of all such claims. All such
settlements and releases shall be effected
with the knowledge and consent of the attorney
general.
Footnote: 4 4The appellants suggest that the Department of Highways'
failure to answer a set of interrogatories hindered their ability
to show that the road was under construction or repair. We find
that answers to these interrogatories would have had no effect on
the circuit court's final decision.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.