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West Virginia Legislature May Put the "Deliberate" Back In Deliberate Intent Claims
January 23, 2015
House Bill 2011 was introduced in the West Virginia legislature by the new Republican majority on the first day of the legislative session. This same bill was introduced in the Senate as Senate Bill No. 11. The purpose of HB 2011/SB 11 is to impose narrower and more stringent requirements upon deliberate intent litigation, as well as overrule contrary case law from the West Virginia Supreme Court of Appeals. See McComas v. ACF Industries, LLC, Case No. 12-0548 (Oct. 17, 2013). The McComas case currently stands for the proposition that an employer may not use lack of actual knowledge as a defense to a deliberate intent action when the employer willfully ignores an unsafe working condition (or safety regulatory requirement) to prevent actual knowledge from occurring.
HB 2011/SB 11 narrows the scope of the regulatory bases for deliberate intent litigation by requiring that the statute, rule, regulation or standard be specifically applicable to the work and working condition involved and intended to address the specific hazards presented by the alleged specific unsafe working condition. To enforce this requirement, HB 2011/SB 11 also seeks to impose a requirement that a governmental agency confirm, in writing, the existence of all elements of deliberate intent pursuant to W. Va. Code § 23-4-2(ii).
HB 2011/SB 11 also seeks to eliminate from deliberate intent litigation the concept of “actual knowledge” being presumed via “constructive knowledge” imposed on the employer (as provided for in McComas), instead requiring that actual knowledge be proven by the employee. By strictly requiring the employee to prove actual knowledge, HB 2011/SB 11 intends to eliminate employers being targeted by deliberate intent litigation simply because there were relevant safety regulations in place.
Nevertheless, HB 2011/SB 11 will face significant opposition from various interest groups, most predominantly the West Virginia Association for Justice (“WVAJ”). The WVAJ emphasizes that HB 2011/SB 11 would eliminate an employee’s ability to force employers to disclose certain information that may support a deliberate intent action, because the governmental agencies that are required to find all elements of a deliberate intent action lack the subpoena power necessary to discover all relevant facts. Opponents to HB 2011/SB 11 also note that workers’ compensation in West Virginia is generally insufficient to compensate an employee for a lifetime of lost wages.
While both HB 2011 and SB 11 were referred only to the Judiciary Committees in their respective chambers, neither bill has been taken up as of yet. The West Virginia Legislature adjourns on March 14, 2015, and all bills must complete the process by midnight on that day. 

If you have any questions about this issue, or any other deliberate intent issue, please contact our Deliberate Intent Practice Group.

Deliberate Intent Litigation James S. Crockett Jr.
304.340.3824 Alexander Macia