Chambers v. Sovereign Coal Corp.
| Decision Date | 02 July 1982 |
| Docket Number | No. 14913,14913 |
| Citation | 295 S.E.2d 28,170 W.Va. 537 |
| Court | West Virginia Supreme Court |
| Parties | Lillian CHAMBERS, Administratrix of the Estate of Jack Bruce Chambers, Deceased v. SOVEREIGN COAL CORPORATION, A West Virginia Corporation. |
Syllabus by the Court
"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 1, Gavitt v. Swiger, 162 W.Va. 238, 248 S.E.2d 849 (1978).
William L. Jacobs, Parkersburg, H. Truman Chafin, Williamson, for appellant.
Richardson, Kemper, Hancock & Davis, Robert M. Richardson and J. Peter Richardson, Bluefield, for appellee.
This action is before this Court upon appeal from the final order of the Circuit Court of Mercer County, West Virginia, entered February 7, 1980, which order granted the motion for summary judgment filed pursuant to W.Va.R.C.P. 56 by the appellee, Sovereign Coal Corporation. In her complaint filed October 4, 1979, the appellant, Lillian Chambers, administratrix of the estate of Jack Bruce Chambers, sought recovery against the appellee for the wrongful death of her husband. This Court has before it the appellant's petition for appeal, all other matters of record and the briefs and argument of counsel.
The complaint alleges that the appellant is a resident of West Virginia and lives in New Town, Mingo County. The appellee is a West Virginia corporation with a business office in Bluefield, Mercer County. The appellee operates a coal mine known as mine no. 1A in Pike County, Kentucky.
It is undisputed between the parties that Jack Bruce Chambers on November 24, 1978, was fatally injured at the appellee's operations in Pike County, Kentucky, when a crane upon which he was assisting another employee struck a power line. The appellee admits that at the time of the accident, Jack Bruce Chambers was acting within the scope of his employment.
The complaint asserts that the death of Jack Bruce Chambers was caused by the appellee's negligent, intentional and willful misconduct. Specifically, the complaint asserts, inter alia, (1) that the appellant's decedent was intentionally required to work in a dangerous and unsuitable location with respect to the power line, (2) that the appellant's decedent was not warned of the danger and (3) that the appellee, through its personnel operated equipment upon the premises with willful, wanton and reckless disregard for the safety of the appellant's decedent. Furthermore, the complaint asserts that the appellee deliberately violated federal and state safety laws with respect to the premises.
As indicated in his order of February 7, 1980, the trial judge applied the statutory law of Kentucky and concluded that inasmuch as the appellant had received workmen's compensation benefits from Kentucky, the appellant had waived all rights under Kentucky law to bring an action against the appellee for the fatal injury. Therefore, the defendant's motion for summary judgment was granted.
The appellant contends that the decedent, Jack Bruce Chambers, was a West Virginia resident employed by the appellee, a West Virginia corporation, and that compensation for the death of Jack Bruce Chambers was subject to the West Virginia Workmen's Compensation Act, W.Va.Code, 23-1-1 et seq., including the provisions of W.Va.Code, 23-4-2 [1969], 1 which permit a common law cause of action for damages to be maintained even though a claim for workmen's compensation benefits has been made. 2
We need not reach the question of whether the trial judge was correct in applying Kentucky law rather than West Virginia law to this action because this action fails to withstand the appellee's motion for a summary judgment under the laws of either state. The trial judge was correct, therefore, in granting the summary judgment even though he based his decision upon Kentucky law. As this Court held in syllabus point 3 in Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965): "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." See also Syl. pt. 2, Environmental Products Co. v. Duncan, W.Va., 285 S.E.2d 889 (1981).
As W.Va.R.C.P. 56 states, a summary judgment shall be granted in an action where "... there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This Court has on numerous occasions discussed Rule 56 summary judgments. Specifically, we have held as follows: "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 2, Renner v. Asli, 167 W.Va. 208, 280 S.E.2d 240 (1981); Syl. pt. 1, Ellis v. New Hampshire Ins. Co., 167 W.Va. 208, 279 S.E.2d 417 (1981); Syl., Parkway Fuel Service, Inc. v. Pauley, 164 W.Va. 344, 263 S.E.2d 893 (1980); Syl. pt. 1, Gavitt v. Swiger, 162 W.Va. 238, 248 S.E.2d 849 (1978) and Syl. pt. 1, Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978).
With respect to the entry of summary judgment for the appellee by the Circuit Court of Mercer County, the question before this Court is whether the record discloses a genuine issue of material fact as to whether the appellee was guilty of negligent, intentional and willful misconduct as alleged in the appellant's complaint. We are of the opinion that the record indicates that no such question of fact exists and that the circuit court was correct in granting the motion of the appellee for summary judgment.
As the record indicates, nothing was filed by the appellant in opposition to the appellee's motion for summary judgment. As W.Va.R.C.P. 56(e) provides, in part:
The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Specifically, a copy of the appellee's motion for summary judgment was mailed to counsel for the appellant on December 11, 1979. The trial judge granted the appellee's motion by order entered on February 7, 1980. The record indicates that the appellant did not within that time, nor at any other time, submit to the trial judge affidavits, exhibits or other matters, other than her complaint, in opposition to the motion. On the other hand, the affidavits submitted by the appellee in support of the motion for summary judgment indicated that at the time of the accident resulting in the death of the decedent (1) the crane was in proper operating condition and the power line was visible, (2) the decedent had been previously warned about the power line and (3) to do the work intended, moving the crane toward the power line was not anticipated. 3 Inasmuch as the appellant's complaint alleged that the appellee was guilty of negligent, intentional and willful misconduct, it appears unusual that the appellant did not support such a serious charge with affidavits or other matters after the appellee moved for summary judgment.
As we stated in Brady v. Reiner, 157 W.Va. 10, 30, 198 S.E.2d 812, 824 (1973), overruled on other grounds, Board of Church Extension v. Eads...
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