
    
      Opinion issued November 10, 1980
    
    AYERS THOMAS vs. DEPARTMENT OF HIGHWAYS
    (CC-80-179)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

The claimant’s 1979 tow truck was damaged when he struck a pothole on Route 52 in Williamson, West Virginia, in September of 1979. After striking the pothole, the truck struck a stone wall located immediately to the right-hand side of Route 52, causing damages to the truck in excess of $700.00. Claimant testified that he had known of the existence of this hole, but did not see it prior to impact because it was filled with water.

Some confusion is apparent from the record. The claim was filed on April 11, 1980, and the claimant, while testifying that the incident occurred in September of 1979, was unable to state the exact date. A witness, Albert Hall, testified that he was a passenger in the truck and that the hole had been in existence since December (presumably, December of 1978).

The law is well settled in West Virginia that the respondent is not an insurer of motorists using its highways, and, absent a showing that respondent knew or should have known of the existence of the subject defect in the highway, there can be no recovery.

Claim disallowed.  