Mary Zerfoss v. Hinkle Trucking, Inc and Gary Hinkle
19-1126
| W. Va. | Apr 26, 2022Background
- Mary Zerfoss was hired as a commercial truck driver by Hinkle Trucking (2011), resigned, rehired (2014), and resigned again (2016); dispute centered on her rate of pay.
- Zerfoss claimed a verbal promise of 25% of the gross price per load; Hinkles said pay varied by customer/destination and was described as a per-ton amount during hiring.
- The employer never reduced the rate to writing as contemplated by W. Va. Code § 21-5-9(1).
- At a deposition Zerfoss reviewed two notebooks; counsel asserted attorney-client privilege, her lawyer halted the deposition, and the court later sanctioned Zerfoss/her lawyer after a discovery commissioner found the notebooks privileged but the court found bad faith in terminating the deposition.
- Pretrial/in limine: trial court allowed evidence that no writing existed but barred arguing that this violated § 21-5-9(1); court also precluded the jury from awarding WPCA liquidated damages and granted summary judgment on that issue.
- A jury found for the respondents on WPCA and breach claims; the circuit court denied Zerfoss’s motion for a new trial and the Supreme Court of Appeals of West Virginia affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff could tell jury employer violated W. Va. Code § 21-5-9(1) for failing to reduce pay rate to writing | Zerfoss: evidence of statutory violation was relevant and probative on pay-rate dispute and should be presented to jury | Hinkle: notifying jury of a statutory violation would confuse/ prejudice jury and improperly substitute statutory enforcement for contract factfinding | Court: exclusion was an evidentiary Rule 403 exercise; allowing proof of no writing but barring argument of statutory violation was not an abuse of discretion |
| Availability of liquidated damages under the WPCA for plaintiff’s claim | Zerfoss: liquidated damages should be available for unpaid wages under WPCA | Hinkle: statutory language limits liquidated damages to certain WPCA subsections; not available here | Court: issue moot because jury found no unpaid wages; Court did not decide availability on merits |
| Sanctions for unilateral termination of deposition | Zerfoss: suspension was proper under Rule 30(d); counsel acted in good faith to protect privilege | Hinkle: questions probed privilege without seeking privileged content; termination was unilateral and in bad faith; Rule 612/waiver issues justified inquiry | Court: sanctions within circuit court’s discretion; no abuse of discretion in finding unilateral termination/bad faith and ordering fees/costs |
| Denial of motion for new trial | Zerfoss: prior rulings (in limine, sanctions) prejudiced her trial and warranted new trial | Hinkle: circuit court’s rulings were correct; no prejudicial error | Court: affirmed denial; no substantial question of law or prejudicial error |
Key Cases Cited
- Burke-Parsons-Bowlby Corp. v. Rice, 230 W. Va. 105, 736 S.E.2d 338 (2012) (standard for mootness and appellate review of new-trial rulings)
- Sanders v. Georgia-Pac. Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976) (trial-court new-trial rulings reviewed for abuse of discretion)
- State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994) (Rule 403 balancing and trial-court discretion)
- State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (evidentiary rulings subject to abuse-of-discretion review)
- Policarpio v. Kaufman, 183 W. Va. 258, 395 S.E.2d 502 (1990) (procedures for suspending/terminating a deposition under Rule 30(d))
- Bell v. Inland Mut. Ins. Co., 175 W. Va. 165, 332 S.E.2d 127 (1985) (sanctions under Rule 37 reviewed for abuse of discretion)
- Robertson v. Opequon Motors, Inc., 205 W. Va. 560, 519 S.E.2d 843 (1999) (WPCA is remedial legislation to protect employees)
- Meadows v. Wal–Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999) (ambiguities in employment terms construed in favor of employees)