Summary
stating that "[a]bsent successful demonstration of all five of the statutory elements provided in West Virginia Code § 23-4-2(d)-(E), an employee cannot recover under a theory of 'deliberate intent.'"
Summary of this case from Black Bear, LLP v. HalseyOpinion
No. 12–1206.
2013-11-21
MASTER MECHANICAL INSULATION, INC., Defendant Below, Petitioner v. Richard SIMMONS, Plaintiff Below, Respondent.
Robert H. Sweeeney, Jr., Esq., Nathanial A. Kuratomi, Esq., Jenkins Fenstermaker PLLC, Huntington, WV, for Petitioner. J. Michael Ranson, Esq., George Morrone III, Esq., Ranson Law Offices, G. Patrick Jacobs, Esq., Jacobs Law Offices, Charleston, WV, for Respondent.
Concurring and Dissenting Opinion of Chief Justice Benjamin
Dec. 27, 2013.
Syllabus by the Court
1. “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
2. The language set forth in West Virginia Code § 23–4–2(f) (2005), which addresses the implementation of statutory amendments enacted to West Virginia Code § 23–4–2 during the 2005 session of the Legislature, pertains to “deliberate intent” cases in which the injuries occurred after July 1, 2005, and also to actions that are filed on or after July 1, 2005.
3. “When an employee asserts a deliberate intention cause of action against his/her employer, pursuant to W.Va.Code §§ 23–4–2(b)–(c) (1991) (Cum.Supp.1991), the employer may not assert the employee's contributory negligence as a defense to such action.” Syl. Pt. 8, Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000).
4. An employer in a “deliberate intent” action brought pursuant to West Virginia Code § 23–4–2(d)(2)(ii) (2010) may introduce evidence that is relevant to the issues of whether an employee's conduct created a specific unsafe working condition; whether the employer had actual knowledge of that alleged specific unsafe working condition; and whether the injuries at issue were the proximate result of that specific unsafe working condition.
Robert H. Sweeeney, Jr., Esq., Nathanial A. Kuratomi, Esq., Jenkins Fenstermaker PLLC, Huntington, WV, for Petitioner. J. Michael Ranson, Esq., George Morrone III, Esq., Ranson Law Offices, G. Patrick Jacobs, Esq., Jacobs Law Offices, Charleston, WV, for Respondent.
LOUGHRY, Justice:
By order entered on October 16, 2012, the Circuit Court of Cabell County certified three questions to this Court that pertain to the filing of a statutory claim asserting deliberate intention by the respondent Richard Simmons. The first question involves an issue of statutory interpretation; the second query seeks clarification regarding the evidentiary effect of Roberts v. Consolidation Coal Co., and the third inquiry pertains to the evidentiary effect of a ruling that Mr. Simmons is eligible for workers' compensation benefits. We will answer each of the certified questions in turn.
SeeW.Va.Code § 23–4–2(d)(2)(ii) (2010).
.208 W.Va. 218, 539 S.E.2d 478 (2000).
I. Factual and Procedural Background
The facts of this case, taken from the trial court's order, are largely undisputed. Mr. Simmons was injured on April 9, 2004, in Portsmouth, Ohio, while engaged in certain activities at an apartment complex that was being demolished by the petitioner Master Mechanical Insulation, Inc. (“Master Mechanical”). Master Mechanical had a contract to perform asbestos abatement activities at the site. As a member of the Asbestos Worker's Union Local 207, Mr. Simmons was employed periodically by Master Mechanical. Prior to the date of the injury at issue, Mr. Simmons had last worked at this site on April 6, 2004.
On Thursday, April 8, 2004, after having completed a forty-hour work week, Mike Plants, a supervisor for Master Mechanical, telephoned the chief supervisor, Richard Meckstroth, to discuss additional work in need of completion that week. During that conversation, Mr. Plants told Mr. Meckstroth that since two workers were being sent to Portsmouth the next day to prepare for the following week's work, he would travel to the site to confirm that everything was in order. When the telephone conversation ended, Mr. Simmons asked Mr. Plants if he could ride with him to the Portsmouth job site.
Mr. Plants is also a member of the Asbestos Worker's Union; he is paid by the hour and is owed overtime when appropriate.
Joe Plants and Eddie Borden.
On occasion, Mr. Plants performed work-related activities without remuneration for Master Mechanical.
After Mr. Simmons and Mr. Plants arrived at the job site on Friday, April 9, 2004, Mr. Simmons helped unload supplies. Neither Mr. Simmons nor Mr. Plants were paid for any work they performed at the Portsmouth job site on that date. The two Master Mechanical employees who were assigned to work at the Portsmouth job site on April 9, 2004, were Joe Plants and Eddie Borden. At some point, Mike Plants had a discussion with Joe Plants, Eddie Borden, and Richard Simmons. Mike Plants told Joe Plants to remove a decontamination unit that was in Building B of the work site and relocate it in Building C.
According to the trial court's findings of fact, Joe Plants and Mike Plants occasionally performed work-related activities for Master Mechanical without pay.
After Mike Plants instructed Joe Plants to retrieve the decontamination unit located in Building B, Mr. Simmons accompanied Joe Plants to Building B. The unit was located on the second floor balcony, which was in excess of ten feet off the ground. The railings on the balcony had been removed for purposes of the work at issue. Mr. Simmons went to the second floor of the building to remove the decontamination unit while Mr. Plants remained on the ground level. The plan was for Mr. Simmons to push the unit over the edge of the second floor. In the process of pushing the unit, Mr. Simmons fell off the edge of the balcony and suffered injuries as a result of the fall.
The unit was situated at least ten feet from the edge of the balcony.
Mr. Simmons filed a workers' compensation claim for his injuries and the claim was denied. The denial of benefits was upheld by the Office of Judges and the Board of Review. On September 19, 2008, this Court found that the injuries sustained by Mr. Simmons were compensable under the West Virginia Workers' Compensation Act. Upon this finding of compensability, Mr. Simmons amended his previously-filed negligence action and asserted a deliberate intent claim against Master Mechanical.
Mr. Simmons dismissed his negligence count.
By order entered on October 16, 2012, the circuit court certified the following questions:
1. Is Simmons' claim against Master Mechanical governed by the 2005 amendment to the deliberate intent statute, W.Va.Code § 23–4–2(d)(2)(ii), pursuant to Roney v. Gencorp, 431 F.Supp.2d 622 (S.D.W.Va.2006) and Corley v. Eastern Assoc. Coal Corp. , 2009 U.S. Dist. LEXIS 22080 (N.D.W.Va.2009)?
Circuit Court's Answer: Yes.
2. In light of the Supreme Court of Appeals' decision in Roberts v. Consolidation Coal Co., 539 S.E.2d 478 ([]2000) and the facts as set forth above, is an employer prohibited from introducing evidence or testimony, or arguing that an employee's conduct in the performance of the work for the employer was the proximate cause of the plaintiff's injury?
Circuit Court's Answer: Yes.
3. In light of the Supreme Court's ruling of September 19, 2008 that Simmons' injury was compensable under the West Virginia Worker's Compensation Act, is Master Mechanical precluded from arguing that Simmons was at the site of his own volition, and voluntarily agreed to remove the decontamination unit from the second floor of Building B?
Circuit Court's Answer: Yes.
II. Standard of Review
That our review is plenary is well-established. See State v. Bostic, 229 W.Va. 513, 518, 729 S.E.2d 835, 840 (2012). In syllabus point one of Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), we held: “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” We proceed to determine whether the circuit court committed error by answering each of the certified questions in the affirmative.
III. Discussion
A. Applicability of 2005 Amendments
During the 2005 West Virginia legislative session, certain amendments were enacted to the “deliberate intent” statute. See 2005 W.Va. Acts, ch. 248 (eff. July 1, 2005). Included in the statutory changes was language by which the requisite showing of an employer's “subjective realization” of an unsafe working condition was altered to require evidence of the employer's “actual knowledge” of an alleged unsafe working condition. SeeW.Va.Code § 23–4–2(d)(2)(ii)(B) (2005). The Legislature expressly provided that the 2005 amendments applied to “all injuries occurring and all actions filed on or after the first day of July, Two Thousand Five.” Id. at § 23–4–2(f). Seeking to come within the pre–2005 amendment standards, Mr. Simmons argues that the Legislature intended that the new language would be applied prospectively and only to those cases where both the injury and the filing of the civil action occur after July 1, 2005.
In support of his position, Mr. Simmons suggests that the use of the term “and” indicates that the two specified occurrences—“injuries occurring” and “actions filed”—must coexist to invoke the provisions of the amended statute. W.Va.Code § 23–4–2(f). As the injury at issue occurred prior to July 1, 2005, Mr. Simmons argues that the 2005 amendments are not applicable to his case. Relying on the statutory maxim that every word chosen must be accorded specific meaning, he maintains that the circuit court erred in deciding that either the injury or the filing of the action could independently trigger the application of the 2005 amendments. See State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 698, 143 S.E.2d 535, 551 (1965) (“A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of a statute.”).
To illustrate his point, Mr. Simmons refers to a decision of this Court in which we addressed the significance of the inclusion of the term “and” within another workers' compensation statute. In Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 29 (1965), we discussed the burden imposed on a workers' compensation claimant to prove that he/she sustained an injury both in the course of and resulting from his/her employment. As the Court explained, “[t]he two phrases, ‘in the course of’ and ‘resulting from’ are not synonymous and both elements must concur in order to make a claim compensable.” Id. at 281, 145 S.E.2d at 32. Given the unmistakable emphasis in Emmel on the conjunctive nature of the term “and,” Mr. Simmons posits that the statutory language at issue in this case should be similarly applied in the conjunctive rather than the disjunctive.
In response, Master Mechanical maintains that the conjunctive meaning of “and” is met by virtue of the fact the 2005 amendments apply to two separate events: (1) injuries that occur after July 1, 2005, and (2) claims that are filed after July 1, 2005, regardless of when the injury occurred. Rather than reading the statutory language in a precedent condition fashion as suggested by Mr. Simmons, the statute need only be read as pertaining to both situations specified above. That this interpretation is logical is easily demonstrated.
Given that the effective date of the statutory amendments at issue is the same date chosen by the Legislature to implement the changes, it is logical to assume that the Legislature sought to apply the new provisions to all “deliberate intent” actions where the injuries occurred post July 1, 2005, as well as those actions that were filed on that date or later but involved injuries which occurred pre-amendment. In this fashion, the Legislature brought every deliberate intent action that was filed after July 1, 2005, under the new law. Mr. Simmons' argument that the conjunctive “and” requires that both events must take place post July 1, 2005, fails because there is no common word or phrase to which both events relate. In illustration, the term employment in the phrase “both in the course of and resulting from his employment” at issue in Emmel clearly pertained to both parts of the clause. In this case, however, the use of the term “and” is used only in the sense of providing an additional factual scenario that may invoke the amended statutory language rather than identifying a necessary element required to establish a statutory claim. This distinction is critical.
Upon a reasoned consideration of the position advanced by Mr. Simmons, we wholly reject his contention that the Legislature intended for its 2005 amendments to affect only those cases in which both the injury and the filing of the action occurred after July 1, 2005. Accordingly, we hold that the language set forth in West Virginia Code § 23–4–2(f) (2005), which addresses the implementation of statutory amendments enacted to West Virginia Code § 23–4–2 during the 2005 session of the Legislature, pertains to “deliberate intent” cases in which the injuries occurred after July 1, 2005, and also to actions that are filed on or after July 1, 2005. Our decision on this issue is in accord with the circuit court's affirmative response to the first certified question.
Two federal courts in this state have interpreted the statutory provision at issue consistent with the decision we reach in this case. See Corley v. Eastern Ass'd Coal Corp., 2009 WL 723120 (N.D.W.Va.2009); Roney v. Gencorp., 431 F.Supp.2d 622 (S.D.W.Va.2006).
B. Relevance of Employee's Conduct
Mr. Simmons seeks to prevent Master Mechanical from introducing any evidence at trial with regard to his conduct at the Portsmouth job site on the date of his injury. As support for his position, he looks to this Court's holding in syllabus point eight of Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000), that “[w]hen an employee asserts a deliberate intention cause of action against his/her employer, pursuant to W.Va.Code §§ 23–4–2(b)–(c) (1991) (Cum.Supp.1991), the employer may not assert the employee's contributory negligence as a defense to such action.” Based solely on this point of law, Mr. Simmons argues that his conduct has no probative value with regard to the five statutory elements necessary to prove a “deliberate intent” action. SeeW.Va.Code § 23–4–2(d)(2)(ii).
We revisited the statutory origins of our workers' compensation system in Roberts, observing that “the right to workmen's compensation benefits is based wholly on statutes, [and] in no sense based on the common law.” 208 W.Va. at 234, 539 S.E.2d at 494 (quoting Bounds v. State Workmen's Comp. Comm'r, 153 W.Va. 670, 672, 172 S.E.2d 379, 383 (1970)). Within the statute that creates a “deliberate intent” action is the following statement of legislative intent concerning the demarcation between common law and our workers' compensation laws:
It is declared that enactment of this chapter and the establishment of the workers' compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as expressly provided in this chapter and to establish a system which compensates even though the injury or death of an employee may be caused by his or her own fault or the fault of a coemployee; that the immunity established in sections six [§ 23–3–6] and six-a [§ 23–3–6a], article two of this chapter is an essential aspect of this workers' compensation system; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those immunized from litigation outside the workers' compensation system except as expressly provided in this chapter; that, in enacting the immunity provision of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept....
W.Va.Code § 23–4–2(d)(1) (emphasis supplied).
In considering whether the affirmative defense of contributory negligence could be asserted in Roberts, we recognized that there are only two legislated defenses to a workers' compensation claim: intoxication and self-inflicted injury. See208 W.Va. at 236, 539 S.E.2d at 496. As a result, we decided against the “adoption, by way of implication, of additional defenses sounding in contributory negligence,” reasoning that this “would be inconsistent with the definite legislative intent ‘to establish a system which compensates even though the injury or death of an employee may be caused by his own fault.’ ” Id. (quoting W.Va.Code § 23–4–2(d)(1)).
When Roberts was issued, the quoted statutory language appeared at subsection (c)(1); to avoid confusion we identify the current location of the language—subsection (d)(1).
In view of our holding in Roberts that the defense of contributory negligence may not be asserted in a “deliberate intent” action, Mr. Simmons contends that evidence of an employee's conduct with relation to the work place injury is barred. Consistent with his position that the facts relevant to proximate causation are not relevant to his “deliberate intent” action, Mr. Simmons seeks to prevent any evidence of his conduct from being admitted at trial. In making these arguments, Mr. Simmons not only confuses the distinction between liability and causation but he also misapprehends the statutory design of a “deliberate intent” action.
As an initial matter, we observe that the legislative design of providing a system of recovery even in the occurrence of a self-caused injury still succeeds even when an employee's actions are considered for purposes of a “deliberate intent” action. Under the statutory scheme, the employee's actions are not relevant for purposes of the workers' compensation benefits provided by statute. SeeW.Va.Code § 23–4–2(a). When, however, the employee or other statutorily-specified representative decides to seek recovery for “any excess of damages over the amount received or receivable” in workers' compensation by asserting a “deliberate intent” action, the right of additional recovery is wholly controlled by the five-prong standard provided for establishing this statutory claim. W.Va.Code § 23–4–2(c); –2(d)(2)(ii). In specific contrast to our no-fault system of workers' compensation, the elements of a “deliberate intent” action suggest that an employee's actions may be relevant to his/her right of recovery.
We are not referring to instances of self-inflicted injury. SeeW.Va.Code § 23–4–2(a).
Barring self-inflicted injury or alcohol-induced injury. SeeW.Va.Code § 23–4–2(a).
Through his attempts to exclude evidence of his actions, Mr. Simmons overlooks the statutorily-specified elements of the “deliberate intent” action that clearly invite and, in some instances, may actually require a consideration of an employee's actions relevant to the resulting injuries. The first prong of the five-part “deliberate intent” standard requires proof “[t]hat a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death.” W.Va.Code § 23–4–2(d)(2)(ii)(A). Mr. Simmons contends that he need only submit evidence to show that he was “working on an unprotected second floor balcony without fall protection ... to establish part (A)” and that his “conduct is irrelevant with respect to the unsafe working condition in this case.” We disagree.
Both before and since the issuance of our Roberts decision, this Court has made clear that an employee cannot create the unsafe working condition that is at the center of his “deliberate intent” cause of action. In Deskins v. S.W. Jack Drilling Co., 215 W.Va. 525, 600 S.E.2d 237 (2004), we recognized the role that the employee played with regard to the alleged unsafe working condition:
there was no unsafe working condition in this case until the appellant moved in between the two pieces of equipment as they were being pushed together. In other words, the specific unsafe working condition only existed when the appellant went into the area between the pipe rack and the pipe tub as the equipment was being moved into position by the dozer. The appellees [employer] had no knowledge that the appellant went into the dangerous area as he had been seen moving away from the equipment after his supervisor instructed him to do so. As the circuit court noted, “the specific unsafe working condition ... occurred within seconds after he was instructed to, and did, move to a safe area.”
Id. at 531, 600 S.E.2d at 243.
Seeking to characterize Deskins as inapposite, Mr. Simmons argues that “[t]he focus in Deskins was not on the employee's conduct, but on the employer's.” While the element of the five-prong “deliberate intent” test that the circuit court examined was the employer's subjective realization of a specific unsafe working condition, the effect the employee's actions had with regard to the creation of the unsafe working condition was pivotal to the court's grant of summary judgment in favor of the employer. In affirming that ruling, this Court underscored the interplay between the employee's actions in creating a “sudden” unsafe working condition and the ability of the employer to “realize and appreciate the risk.” 215 W.Va. at 531, 600 S.E.2d at 243.
In 2005, the Legislature amended the statute to replace “subjective realization” with “actual knowledge.” See 2005 W.Va. Acts, ch.248; W.Va.Code § 23–4–2(d)(2)(ii)(B)(2005).
Similarly, in Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 385 (1991), this Court considered the fact that the employee's own actions in removing a gate installed as a safety mechanism near an operating conveyor belt created the very unsafe working condition for which he sought recovery. Id. at 639–40, 408 S.E.2d at 391–92. We upheld the trial court's grant of judgment notwithstanding the verdict in the employer's favor based on the grounds that the jury had not been presented with sufficient evidence to establish the employer had a subjective realization and appreciation of an unsafe working condition. Id. at 640–41, 408 S.E.2d at 392–93. Seeking to minimize the significance of the employee's actions in that decision, Mr. Simmons propounds that Blevins is inapplicable because there was no discussion about proximate causation.
We found that “[a] specific unsafe working condition ... only existed when the appellant went into the guarded area, without first turning off the equipment, ... failing to comply with safety procedures.” 185 W.Va. at 639, 408 S.E.2d at 391.
The fifth factor required to establish a “deliberate intent” action demands a showing that the employee “suffered serious compensable injury or compensable death ... as a direct and proximate result of the specific unsafe working condition.” W.Va.Code § 23–4–2(d)(2)(ii)(E).
Mr. Simmons' attempt to distinguish our decisions in Deskins and Blevins based on which of the five statutory elements were analyzed for purposes of considering the employee's actions is unavailing. To suggest that an employee's actions are relevant only for purposes of establishing the existence of an unsafe working condition and the employer's awareness of that condition, as it was in both Deskins and Blevins, but not for purposes of proximate causation is altogether illogical. The fact that the proximate causation prong is expressly tied to the “specific unsafe working condition” by statute further demonstrates the fallacy of this contention. W.Va.Code § 23–4–2(d)(2)(ii)(E); see supra note 15.
The law is clear that, as part of a “deliberate intent” action, a jury is entitled to hear evidence of whether an employee's actions created the alleged specific unsafe working condition as well as whether an employer had actual knowledge of the alleged specific unsafe working condition. SeeW.Va.Code § 23–4–2(d)(2)(ii) (mandating jury determination of five elements of “deliberate intent” claim); Deskins, 215 W.Va. at 531, 600 S.E.2d at 243;Blevins, 185 W.Va. at 641, 408 S.E.2d at 393. Master Mechanical correctly asserts that this Court's ruling in Roberts with regard to the non-availability of the defense of contributory negligence in a “deliberate intent” action has no bearing on the elements that are required to be established in such a case. Absent successful demonstration of all five of the statutory elements provided in West Virginia Code § 23–4–2(d)(2)(ii)(A)–(E), an employee cannot recover under a theory of “deliberate intent.” W.Va.Code § 23–4–2(d)(2)(iii)(B) (providing that failure to prove one or more statutory factors specified in subsection (d)(2)(ii)(A)-(E) mandates summary judgment or directed verdict); Syl. Pt. 2, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991) (“To establish ‘deliberate intention’ in an action under W.Va.Code § 23–4–2(c)(2)(ii) (1998), a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements.”); accord Marcus v. Holley, 217 W.Va. 508, 520, 618 S.E.2d 517, 529 (2005) (recognizing that “deliberate intent” plaintiff “must make a prima facie showing of dispute on each of the five factors” to withstand summary judgment motion) (citing Mumaw v. U.S. Silica Co., 204 W.Va. 6, 9, 511 S.E.2d 117, 120 (1998)).
The position advocated by Mr. Simmons would amount to a judicial rewriting of the standard expressly legislated for proving a “deliberate intent” claim. If we adopted his position and prevented an employer from introducing evidence clearly relevant to the issues of the alleged specific unsafe working condition and the resultant injury, we would be eliminating the critical element of causation provided in the statute. SeeW.Va.Code § 23–4–2(d)(2)(ii)(E). Under the five-prong standard adopted to identify the limited instances in which a subscribing employer's immunity is statutorily abrogated, the issue of an employee's conduct is clearly relevant for purposes of determining, inter alia, the existence of a specific unsafe working condition; the employer's actual knowledge of that specific unsafe working condition; and whether the employee's injuries were the direct and proximate result of that specific unsafe working condition. Nothing in this Court's decision in Roberts prevents the employer from introducing evidence that is relevant to the five statutory factors necessary to prove a statutory claim of “deliberate intent.” Accordingly, we hold that an employer in a “deliberate intent” action brought pursuant to West Virginia Code § 23–4–2(d)(2)(ii) may introduce evidence that is relevant to the issues of whether an employee's conduct created a specific unsafe working condition; whether the employer had actual knowledge of that alleged specific unsafe working condition; and whether the injuries at issue were the proximate result of that specific unsafe working condition. Accordingly, we answer the second certified question in the negative.
C. Evidence Relating to Employee's Work Site Presence
Through the final certified question, Mr. Simmons seeks to prevent Master Mechanical from introducing evidence at trial with regard to the voluntary nature of his completion of work at the Portsmouth site on the date of his injury. We find it necessary to reframe the third certified question to remove language which pertained to whether Master Mechanical was prohibited from arguing that Mr. Simmons was at the work site of his own volition. See City of Fairmont v. Retail, Wholesale, & Dep't Store Union, 166 W.Va. 1, 3–4, 283 S.E.2d 589, 590 (1980) (recognizing that this Court has “traditionally maintained that upon receiving certified questions we retain some flexibility in determining how and to what extent they will be answered”). Accordingly, we address the following question:
To the extent that the third certified question raised the issue of whether Master Mechanical is precluded from introducing any evidence that would conflict with the predicate finding necessary for an award of workers' compensation—that Mr. Simmons was acting in the course of his employment at the time of his injury—that issue has been resolved with this Court's September 19, 2008, compensability ruling. The fact that Mr. Simmons voluntarily traveled to the work site on that day simply has no bearing on the issue of whether he can establish the required elements of a “deliberate intent” claim.
In light of the Supreme Court's ruling of September 19, 2008, that Mr. Simmons' injury was compensable under the West Virginia Worker's Compensation Act, is Master Mechanical precluded from arguing that Mr. Simmons voluntarily agreed to remove the decontamination unit from the second floor of Building B?
Because an award of workers' compensation benefits requires proof that the employee sustained injury in the course of and resulting from his employment, Mr. Simmons argues that his benefit award necessarily serves as a bar to any evidence Master Mechanical seeks to introduce pertaining to his presence and actions at the work site. He contends that his “purpose or motivation for being on the worksite has no bearing on whether an unsafe working condition existed and no bearing on what MMI [Master Mechanical] knew about.”
See Syl. Pt. 1, Barnett v. State Workmen's Comp. Comm'r, 153 W.Va. 796, 172 S.E.2d 698 (1970).
See supra note 16.
Responding to these arguments, Master Mechanical asserts that the finding that his injury comes within the parameters of basic workers' compensation is wholly distinct from his attempt to recover additional compensation for the alleged “deliberate intent” of his employer relative to that injury. Compensability determinations made pursuant to West Virginia Code §§ 23–4–1 to –1g (2010) do not require determinations as to the existence of unsafe working conditions; an employer's knowledge of those unsafe working conditions; whether an employer intentionally exposed an employee to an unsafe working condition; or whether the injury resulted from a specific unsafe working condition. In short, the compensability requirements set forth in section one, which are relatively easy to meet, stand in stark contrast to the five-part “deliberate intent” standard set forth in section two. Cf.W.Va.Code §§ 23–4–1 to –1g to 23–4–2(d)(2)(ii). Master Mechanical argues, and we agree, that the drastically different standards of recovery prevent the issuance of a compensability ruling for basic workers' compensation from having a preclusive effect on the introduction of evidence in a “deliberate intent” action.
Given the clearly distinct type of recovery that the Legislature envisioned in fashioning the “deliberate intent” standard—one that exists only upon proof of each of those five specified elements—there is absolutely no basis for concluding that a compensability ruling has any evidentiary effect with regard to the proof of those unique statutory elements. Just as we refused to judicially rewrite the five-prong standard to prevent the introduction of evidence regarding an employee's actions, we similarly will not refashion the standard to prohibit relevant evidence bearing on the issue of whether “the employer ... intentionally thereafter exposed an employee to the specific unsafe working condition.” W.Va.Code § 23–4–2(d)(2)(ii) (D). Master Mechanical has the right to offer evidence to contradict Mr. Simmons' anticipated testimony that he was intentionally directed and exposed to an unsafe working condition. Were we to rule otherwise, we would be lessening the statutory burden of proof required for recovery in a “deliberate intent” action. SeeW.Va.Code § 23–4–2(d)(2)(iii)(B). Accordingly, we respond to the third certified question in the negative.
IV. Conclusion
Based on the foregoing, each of the questions posed by the Circuit Court of Cabell County in its order of October 16, 2012, has been answered: the first in the positive; the second in the negative; and the third, as reframed, in the negative.
Certified questions answered. Chief Justice BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
Justice DAVIS dissents and reserves the right to file a dissenting opinion.
DAVIS, Justice, dissenting:
(Filed Nov. 21, 2013)
In the case sub judice, the Court was asked to answer certified questions from the Circuit Court of Cabell County regarding the evidence that the employer in this deliberate intention action may introduce in defense of its alleged wrongdoing. Despite this Court's established jurisprudence, the majority nevertheless has ignored our prior holdings, concluding, instead, that the defendant employer may assert, as a defense to its alleged misconduct, that its employee caused the specific unsafe working condition that resulted in his workplace injuries. The majority also has determined that the employer herein may relitigate whether its employee's injuries occurred in the course of and as a result of his employment even though this matter already has been definitively determined by this Court. The majority's decision of both of these issues is contrary to our prevailing precedent and is just plain wrong. Therefore, I dissent.
A. An Employer May Not Assert Its Employee's Contributory Negligence As a Defense to Its Employee's Deliberate Intention Action
In Syllabus point 8 of Roberts v. Consolidation Coal Company, 208 W.Va. 218, 539 S.E.2d 478 (2000), we succinctly held that “[w]hen an employee asserts a deliberate intention cause of action against his/her employer, pursuant to W. Va.Code §§ 23–4–2(b)–(c) (1991) (Cum.Supp.1991), the employer may not assert the employee's contributory negligence as a defense to such action.” As noted by the majority's opinion, this holding remains good law and has not been overruled by this Court or by the majority's decision in this case. Nevertheless, the majority has begun the gradual erosion of this tenet by permitting “[a]n employer in a ‘deliberate intent’ action brought pursuant to West Virginia Code § 23–4–2(d)(2)(ii) (2010)[to] introduce evidence that is relevant to the issues of whether an employee's conduct created a specific unsafe working condition[.]” Syl. pt. 4, in part, Maj. op. Absent a significant change in the law that warrants a marked departure from our established holding in Roberts or express statutory language to the contrary, the majority had no basis for departing from our prior precedent and has, by adopting this new Syllabus point, started down a slippery slope of using judicial prerogative to replace legislative wisdom regarding the parties' burdens of proof in a statutory deliberate intention action.
1. Stare decisis requires allegiance to this Court's prior holdings. “Absent some compelling justification for deviation, such as a change in the law or a distinguishable fact pattern, the doctrine of stare decisis requires this Court to follow its prior opinions.” State Farm Mut. Auto. Ins. Co. v. Rutherford, 229 W.Va. 73, 83, 726 S.E.2d 41, 51 (2011) (Davis, J., concurring, in part, and dissenting, in part). In other words, “[a]n appellate court should not overrule a previous decision recently rendered without evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the law.” Syl. pt. 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974). Accord Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202, 112 S.Ct. 560, 564, 116 L.Ed.2d 560 (1991) (“[W]e will not depart from the doctrine of stare decisis without some compelling justification.” (citation omitted)).
With respect to the specific nature of the case sub judice, we have explained that our allegiance to our prior decisions is most compelling in matters involving statutory interpretation. “Once this Court determines a statute's clear meaning, we will adhere to that determination under the doctrine of stare decisis.” Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 588 n. 17, 466 S.E.2d 424, 439 n. 17 (1995). Accord Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989) (“Considerations of stare decisis have special force in the area of statutory interpretation[.]”).
Despite their attempts to support their adoption of new Syllabus point 4 herein, the majority cannot make a credible argument to modify our prior holding because there has been no discernible change in the law, or the fact patterns to which it has been applied, since we announced our holding in Syllabus point 8 of Roberts. Rather, it goes without saying that the majority, itself, has recognized that there have been no perceptible alterations to the law since we rendered our ruling in Roberts insofar as my brethren have fully embraced Syllabus point 8 thereof by including it on the Syllabus page of the majority's opinion and relying upon it in support of its decision of the case sub judice. “[W]ithout evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation” from existing precedent, the majority could not diverge from our prior holding in Roberts and, in fact, did not do so. However, by adopting new Syllabus point 4, whereby an employer may now reference the fault of its employee in causing or contributing to the allegedly unsafe working condition, the majority essentially has overruled Syllabus point 8 of Roberts because the effect of its holding is to permit an employer to do precisely what Roberts admonished it could not do: assert an employee's contributory negligence as a defense to a deliberate intention cause of action. I do not agree with the majority's decision to depart so markedly from our existing precedent absent a compelling reason to do so. Accordingly, I dissent.
Syl. pt. 2, in part, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974).
2. This Court may not substitute its judgment for a clear expression of legislative intent. In granting injured employees a statutory right to bring a deliberate intention claim against their employers, the Legislature carefully has enumerated the elements of the cause of action and indicated that the injured employee has the burden of proving that his/her injuries resulted from the employer's deliberate intention:
(2) The immunity from suit provided under this section and under sections six [§ 23–2–6] and six-a [§ 23–2–6a], article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with “deliberate intention.” This requirement may be satisfied only if:
....
(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one [§ 23–4–1], article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.
W. Va.Code § 23–4–2(d)(2)(ii) (2005) (Repl.Vol.2010). The statute does not, however, allow an employer to assert as a defense to a claim of deliberate intention its employee's contributory negligence. See id. See also Roberts, 208 W.Va. at 236, 539 S.E.2d at 496 (“Apart from intoxication and a self-inflicted injury, however, the governing statutes do not provide employers with any other defenses to a claim for workers' compensation benefits. Similarly, our adoption, by way of implication, of additional defenses sounding in contributory negligence would be inconsistent with the definite legislative intent ... ‘to establish a system which compensates even though the injury or death of an employee may be caused by his own fault.’ W. Va.Code § 23–4–2(c)(1).” (emphasis added; internal footnote omitted)).
An alternate method of proving an employee's deliberate intention claim, which is not relevant to the instant proceeding, is provided by W. Va.Code § 23–4–2(d)(2)(i) (2005) (Repl.Vol.2010). SeeW. Va.Code § 23–4–2(d)(2)(i) (providing that an employee may establish his/her employer acted with deliberate intention if “[i]t is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct[.]”).
The statutory language quoted by Roberts that formerly was found in W. Va.Code § 23–4–2(c)(1) (1991) (Cum.Supp.1991) is now set forth in W. Va.Code § 23–4–2(d)(1) (2005) (Repl.Vol.2010).
Be that as it may, the majority essentially has added an employer's defense of contributory negligence to the statutory deliberate intention cause of action by holding, in new Syllabus point 4, in part, that an employer “may introduce evidence that is relevant to the issue[ ] of whether an employee's conduct created a specific unsafe working condition.” (Emphasis added). Because the governing statute does not specifically permit employers to assert this defense, this Court is not at liberty to add to the workers' compensation statutes that which the Legislature purposefully has omitted.
It has been held repeatedly by this Court that the right to workmen's compensation benefits is based wholly on statutes, in no sense based on the common law; that the rights, remedies and procedures thereby provided are exclusive; that the commissioner is authorized to award and pay benefits and that a claimant is authorized to demand payment of benefits only in such manner and in such amounts as are authorized by applicable statutes.
Bounds v. State Workmen's Comp. Comm'r, 153 W.Va. 670, 675, 172 S.E.2d 379, 382–83 (1970) (citations omitted).
As such, this Court is bound to enforce the express legislative intent of the workers' compensation statutes, including those that govern deliberate intention actions. “It is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten[.]” State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted). Neither is this Court
at liberty to read into a statute that which simply is not there.... “If the Legislature has promulgated statutes to govern a specific situation yet is silent as to other related but unanticipated corresponding situations, it is for the Legislature to ultimately determine how its enactments should apply to the latter scenarios.”
Kasserman & Bowman, PLLC v. Cline, 223 W.Va. 414, 421, 675 S.E.2d 890, 897 (2009) (quoting Soulsby v. Soulsby, 222 W.Va. 236, 247, 664 S.E.2d 121, 132 (2008)). Accord Young v. Apogee Coal Co., LLC, No. 12–0835, 232 W.Va. 554, 563, 753 S.E.2d 52, 61, 2013 WL 5976101, at *8 (Nov. 6, 2013) (noting, with respect to petitioner's policy arguments regarding deliberate intention statutory provisions, that “it is simply not the place of this Court to opine as to the wisdom or efficacy of those concerns in this area which the Legislature has unmistakably set out to manage wholly by statutory enactment” (citations omitted)); Banker v. Banker, 196 W.Va. 535, 546–47, 474 S.E.2d 465, 476–77 (1996) (“It is not for this Court arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” (citations omitted)).
These authorities make clear that this Court cannot substitute its judgment in a matter reserved to the legislative branch of government. Accordingly, I dissent from the majority's decision to grant to employers an additional defense to a statutory deliberate intention cause of action that has not been sanctioned by the Legislature.
B. Mr. Simmons' Status As an Employee At the Time of His Accident Has Already Been Finally Determined and May Not Be Relitigated
Through its resolution of the third certified question in this case, the majority essentially has decided to allow the employer herein to dispute that Mr. Simmons sustained his injuries in the course of and as a result of his employment even though this issue has been definitively determined by this Court in a prior proceeding holding Mr. Simmons' claim for workers' compensation benefits to be compensable as a work-related injury. See generally Simmons v. West Virginia Office Ins. Comm'r/Master Mech., Insulation, Inc., No. 33788 (W.Va. Sept. 19, 2008) (mem. order). Historically, this Court has frowned upon the relitigation of issues that have been finally determined in a proceeding involving the same issues and the same parties insofar as such determinations serve as collateral estoppel to prevent the revisiting of decided issues in subsequent proceedings involving the same issues and the same parties.
We previously have held that “[c]ollateral estoppel is designed to foreclose relitigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit.” Syl. pt. 2, in part, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983). This preclusive effect of collateral estoppel operates as follows:
Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Syl. pt. 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Furthermore, “[i]n order for ... collateral estoppel to apply, the party against whom the doctrine is invoked must have been a party in the prior action or in privity with a party in the prior action.” State ex rel. Clifford v. West Virginia Office of Disciplinary Counsel, 231 W.Va. 334, 343, 745 S.E.2d 225, 234 (2013).
Applying this analysis to the facts of the case sub judice, it is apparent that the issue of whether Mr. Simmons had volunteered to perform the work in question is of no moment because, regardless of whether such work was voluntary or whether his employer had commanded him to do the same, this Court already has determined that Mr. Simmons was injured in the course of and as a result of his employment when we held his claim for workers' compensation benefits to be compensable. See generally Simmons, No. 33788 (W.Va. Sept. 19, 2008). In other words, we previously concluded that Mr. Simmons, whether voluntarily or not, was performing work for his employer when he sustained the injuries he herein ascribes to his employer's deliberate intention. This same issue was litigated in Mr. Simmons' workers' compensation claim; we rendered a final decision on the issue therein; Mr. Simmons' employer was a party to the compensability proceeding; and, during that case, the employer vigorously challenged Mr. Simmons' ability to receive workers' compensation for his injuries claiming that he was at the job site voluntarily and, thus, was not injured in the course of and as a result of his employment. See Syl. pt. 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114.
Despite the definitive nature of our earlier determination, the majority has found it prudent to allow Mr. Simmons' employer to “argu[e] that Mr. Simmons voluntarily agreed to remove the decontamination unit from the second floor of Building B.” Maj. op. at p. 87. Whether Mr. Simmons volunteered for this specific job assignment or not, our prior ruling and the indisputable evidence in this case establish that the employer gave Mr. Simmons specific instructions and directions regarding the removal of this equipment. Moreover, whether Mr. Simmons volunteered for this particular job assignment is of no moment insofar as we already have determined that he was injured in the course of and as a result of his employment. Therefore, it is clear that the doctrine of collateral estoppel applies to bar the relitigation of this issue in the case sub judice. To the extent the majority has reached a contrary conclusion, I respectfully dissent. BENJAMIN, Chief Justice, concurring in part and dissenting in part:
(Filed Dec. 27, 2013)
I concur in the majority's answers to the first and third certified questions. I must dissent, however, to the majority's answer to the second certified question which improperly imposes common law tort principles onto the deliberate intent statute. By holding that an employer in a deliberate intent action may introduce evidence of an employee's conduct as a defense, the majority displays a fundamental ignorance of the nature of a deliberate intent cause of action created by the Legislature.
The history of the current deliberate intent statute indicates a clear intent by the Legislature to create a wholly unique cause of action which has no counterpart in our common law and is completely divorced from common law tort principles. In Mandolidis v. Elkins Industries, 161 W.Va. 695, 246 S.E.2d 907 (1978), this Court was tasked with construing a deliberate intent cause of action under the then-existing statutory provision. At that time, the deliberate intent statute provided as follows:
If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter.
W. Va.Code § 24–3–2 (1969). This Court in Mandolidis found that this “provision by its express language preserves for employees a common law action against employers ‘as if this chapter had not been enacted’ ‘if the injury or death of such employee results from the deliberate intent of the employer to produce such injury or death.’ ” 161 W.Va. at 698, 246 S.E.2d at 910 (emphasis added). The Court indicated that the workers' compensation system “completely supplanted the common law tort system only with respect to negligently caused industrial accidents” 161 W.Va. at 705, 246 S.E.2d at 913 (emphasis in original), but did not supplant common law principles when an employer engaged in willful, wanton, or reckless misconduct. Accordingly, the Court held in syllabus point 1 of Mandolidis in relevant part, that “[u]nder W. Va.Code § 23–4–2 an employer is subject to a common law tort action for damages or for wrongful death where such employer commits an intentional tort or engages in willful, wanton, and reckless misconduct.”
In direct response to Mandolidis, the Legislature amended the deliberate intent statute to create a brand new standard for the loss of an employer's workers compensation immunity. This standard is unique and it has no counterpart in the common law. In amending the statute, the Legislature clearly indicated that its new standard for loss of employer immunity is “of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct.” W. Va.Code § 23–4–2(d)(1). Under this new standard for loss of immunity, the Legislature crafted five tightly drawn elements which a claimant must prove before an employer will lose its immunity. These tightly drawn elements are clear, concise, unambiguous, and plenary, and they do not provide that an employer can introduce common law defenses to a deliberate intent claim. In fact, this point was made abundantly clear in syllabus point 8 of Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000), in which we held that “[w]hen an employee asserts a deliberate intention cause of action against his/her employer, pursuant to W. Va.Code § 23–4–2(b)–(c) (1991) (Cum.Supp.1991), the employer may not assert the employee's contributory negligence as a defense to such action.”
In order to reach its desired result that an employer can defend against a deliberate intent claim by introducing the common law tort defense of comparative fault, the majority opinion resorts to finessing, massaging, and dancing around the plain meaning of syllabus point 8 of Roberts, before finally deciding to just disregard it. The majority opinion then chides Mr. Simmons for basing his argument “solely on this point of law [in Roberts ]” to cover up the fact that the majority's own analysis is completely devoid of legal support.
The majority reads into the deliberate intent statute something that simply is not there. For this reason, I dissent to the majority's holding that an employer in a deliberate intent action may introduce evidence of the employee's conduct to show fault on the part of the employee.