Spilman Alert: W.Va. Supreme Court Rulings Impact Defense of Deliberate Intent Cases
The West Virginia Supreme Court of Appeals recently issued two rulings that have a significant impact on the way employers may defend cases brought under West Virginia's deliberate intent statute (W.Va. Code § 23-4-2). Concisely stated, in Young v. Apogee Coal Co. and Master Mechanical Insulation v. Simmons, the Court's rulings may determine whether a case is heard in federal versus state court and what evidence an employer may present. While it may be premature to gauge the overall effect these rulings have on cases, they both have the potential to greatly assist the employer community.Young v. Apogee Coal Co.This case answered a certified question from federal court whether W.Va. Code § 23-4-2(d)(2)(ii) provides a cause of action against a non-employer person, such as a supervisor, in addition to the employer. Though one part of the statute explicitly provides a cause of action against a non-employer, judges in both districts of federal court in West Virginia had come to different conclusions. Now, the Supreme Court of Appeals conclusively settles the question: W.Va. Code § 23-4-2(d)(2)(ii) provides a cause of action solely against an employer.The facts are briefly stated. Young was an employee for Apogee Coal when his supervisor instructed him to remove a counterweight from an end loader. While Young was removing the counterweight, it shifted and fell on him. Young's estate brought a deliberate intent case against Apogee and its maintenance supervisor. Apogee removed the case to federal court arguing that the supervisor, as a non-employer, should not have been sued, thus permitting federal jurisdiction. The certified question followed. This decision held that managers and co-employees generally retain statutory immunity for workplace injuries under W.Va. Code § 23-4-2. Therefore, where the employer is an out-of-state business, plaintiffs now can no longer sue those managers and co-employees who happen to be West Virginia residents for the purpose of defeating the removal of the case to federal court. Accordingly, following Young, out-of-state employers should have more opportunities to remove deliberate intent cases to federal court.Master Mechanical Insulation v. SimmonsHere, the court considered certain certified questions from the Circuit Court of Cabell County, including whether, in an action for deliberate intent, an employer is prohibited from introducing evidence regarding an employee's conduct in the course of his job performance. This question primarily arose because of the Court's prior holding in Roberts v. Consolidation Coal Co. that an employer may not assert an employee's contributory negligence as a defense to such an action. In this case, Simmons was injured when he fell off the second floor balcony of a building while pushing a piece of equipment off to the ground below. Master Mechanical tried to introduce evidence of Simmons' conduct on the job site. The Circuit Court, in seeking a response to the certified question, ruled that Master Mechanical could not.Answering the Circuit Court's question in the negative, the Court distinguished between liability and causation and expressly held that employers may introduce evidence of an employee's conduct on following issues: (1) existence of a specific unsafe working condition; (2) the employer's actual knowledge of the specific unsafe working condition; and (3) proximate cause. In other words, the Court reaffirmed its prior decisions holding that an employee's own conduct is relevant to the creation of a specific unsafe working condition and the employer's knowledge thereof, both of which in turn impact any analysis of the proximate causation prong.While this case does not change the holding in the Roberts case barring an employer from asserting an employee's contributory negligence to an action for deliberate intent, from a practical standpoint, it could have a significant impact on the presentation of an employer's defense. Specifically, employees can now no longer argue that any evidence of their conduct in relation to his injury must be barred. Indeed, this case permits the introduction of that evidence so long as it is specifically tailored to the circumstances illustrated above.