Cobb v. EI DuPont Denemours & Co.

• Decision Date: 08 October 1999
• Docket Number: No. 26113.,26113.
• Citation: 549 S.E.2d 657,209 W.Va. 463
• Court: West Virginia Supreme Court
• Parties: Deborah H. COBB, Plaintiff Below, Appellant, v. E.I. duPONT deNEMOURS & COMPANY, a Delaware Corporation, and Diana Doran, Benefits Administrator, Defendants Below, Appellees.

549 S.E.2d 657

209 W.Va. 463

Deborah H. COBB, Plaintiff Below, Appellant, v. E.I. duPONT deNEMOURS & COMPANY, a Delaware Corporation, and Diana Doran, Benefits Administrator, Defendants Below, Appellees.

No. 26113.

Supreme Court of Appeals of West Virginia.

Submitted September 21, 1999.

Decided October 8, 1999.

Roger D. Forman, David S. Skeen, South Charleston, for Appellant.

David B. Thomas, Paula Durst Gillis, Spilman Thomas & Battle, Charleston, Raymond Michael Ripple, Donna L. Goodman, Wilmington, DE, for Appellees.

PER CURIAM.

Deborah H. Cobb, plaintiff/appellant, (hereinafter referred to as "Ms. Cobb") appeals the Circuit Court's ruling regarding her fraudulent misrepresentation action against her former employer, E.I. duPont deNemours & Company and Diana Doran (hereinafter collectively referred to as "du-Pont"), as a result of her efforts to obtain workers' compensation benefits. The circuit court concluded that no material issues of fact were in dispute and granted summary judgment to duPont. We agree and therefore affirm the circuit court's ruling.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms. Cobb began her employment with du-Pont in 1976, at its Belle, West Virginia plant. She was employed as a clerk at du-Pont's Shipping and Transportation office. On September 15, 1994, Ms. Cobb voluntarily ended her employment with duPont. Ms. Cobb opted to leave her employment under duPont's Career Transition Program/Temporary Pension System.¹

On March 15, 1995, Ms. Cobb filed a claim for workers' compensation benefits. Ms. Cobb alleged in her worker's compensation claim that she suffered asthma, hypertension, immune systems deficiency and stress disorder, due to exposure to heavy concentrations of chemical dusts, soot and powders. Ms. Cobb's workers' compensation claim was processed by Mary Parsons, a claims analyst for the Workers' Compensation Division. Consistent with regular procedures followed at the workers' compensation office, Ms. Parsons requested duPont complete and submit the employer's section of Ms. Cobb's workers' compensation claim form.² Also, consistent with the workers' compensation internal procedures, Ms. Parsons requested that du-Pont submit copies of its air monitoring records at the job site where Ms. Cobb worked. On April 24, 1995, duPont faxed to Ms. Parsons a letter regarding its air monitoring, along with the air monitoring results.³ After receiving all requested information from du-Pont, and after reviewing all of the evidence submitted by Ms. Cobb, Ms. Parsons made the following entry in her file log on April 25, 1995:

Received air checks from duPont. I feel I can reject on this and claimant numerous other health problems as not related to the job. Medical reports do not specifically state claimant's problems are a direct result of employment and emphasis is directed to claimant's multiple physical non-work related problems. I do not feel claimant's work environment is the cause of claimant's problems, and I am, therefore, rejecting the claim as not in the course of or resulting from employment. Not an occupational disease nor an occupational injury.

On April 26, 1995, Ms. Cobb's workers' compensation claim was officially denied by the Workers' Compensation Division.⁴

Thereafter, Ms. Cobb protested the denial of her claim to the Workers' Compensation Office of Judges (hereinafter referred to as "OOJ"). While the workers' compensation case was pending before the OOJ, Ms. Cobb filed the instant action in the Circuit Court of Kanawha County on January 31, 1997.⁵ The basis of Ms. Cobb's action in the circuit court was the allegation that duPont made fraudulent misrepresentations to workers' compensation which precluded Ms. Cobb from receiving workers' compensation benefits. After a period of discovery, duPont moved for summary judgment. By order dated October 22, 1998, the circuit court granted summary judgment in favor of du-Pont. Ms. Cobb now appeals the circuit court's October 22, 1998, order.

II. STANDARD OF REVIEW

This Court has held that "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We have made clear that "[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. 3, Aetna Cas. & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Furthermore,

[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

Syl. pt. 4, Painter, 192 W.Va. 189, 451 S.E.2d 755.

We have also indicated that "[t]he question to be decided on a motion for summary judgment is whether there is a genuine issue of material fact and not how that issue should be determined." Syl. pt. 5, Aetna Cas., 148 W.Va. 160, 133 S.E.2d 770. Moreover, we have explained that:

Roughly stated, a "genuine issue" for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed "material" facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.

Syl. pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995).

All reasonable doubts regarding the evidence must be resolved in favor of the non-moving party. "A party who moves for summary judgment has the burden of showing that there is no genuine issue of material fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Syl. pt. 6, Aetna Cas., 148 W.Va. 160, 133 S.E.2d 770. In order for summary judgment to be proper, the movant must demonstrate that there is no evidence to support the non-movant's case and "that the evidence is so one-sided that the movant must prevail as a matter of law." Tolliver v. The Kroger Co., 201 W.Va. 509, 513, 498 S.E.2d 702, 706 (1997). Applying this standard of review to the instant case, we will examine the facts and application of the law to determine whether there is any genuine issue of fact to be tried.

III. DISCUSSION

A. Application of Summary Judgment to a Persinger Cause of Action

In syllabus point 4 of Persinger v. Peabody Coal Co., 196 W.Va. 707, 474 S.E.2d 887 (1996), this Court articulated the standard for pleading and proving a workers' compensation fraud action:

In order for a plaintiff employee to prevail on the narrowly construed cause of action by the employee against an employer for fraudulent misrepresentation concerning the employee's workers' compensation claim, the employee must (1) plead his or her claim with particularity, specifically identifying the facts and circumstances that constitute the fraudulent misrepresentation, and (2) prove by clear and convincing evidence all essential elements of the claim, including the injury resulting from the fraudulent conduct. A plaintiff employee is not entitled to recover unless the evidence at trial is persuasive enough for both the judge and jury to find substantial, outrageous and reprehensible conduct which falls outside of the permissible boundary of protected behavior under the statute. If the pleadings or evidence adduced is insufficient to establish either of the two factors stated above, the trial court may dismiss the action pursuant to Rule 12(b), Rule 56 or Rule 50 of the West Virginia Rules of Civil Procedure.

This Court has indicated that "[t]he essential elements in an action for fraud are: `(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied upon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it.' Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737[, 738] (1927)." Syl. pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981). A plaintiff need not show that he or she personally relied upon the fraudulent act to succeed in a Persinger cause of action. Instead, the material and false reliance element in a Persinger action refers to the party to whom an employer conveyed false information. So, in this instance, Ms. Cobb alleges that workers' compensation was provided material and false information upon which it relied to deny her workers' compensation benefits.

B. No Factual Dispute Existed as to Whether the Information Conveyed by DuPont to Ms. Parsons was False

To support her claim, Ms. Cobb contends that a material issue of fact exists as to whether the information conveyed by duPont to Ms. Parsons was false. The circuit court ruled that Ms. Cobb "cannot prove that the statements alleged to be false or fraudulent are indeed false." The relevant communication conveyed by duPont to Ms. Parsons, which Ms. Cobb claims to be false, involved air monitoring samples. Ms. Cobb contends, without any evidence whatsoever to support the contention, that the air monitoring samples were false or misleading.

Assuming arguendo, that the air monitoring samples were misleading, Ms. Cobb failed to show that Ms. Parsons relied on the air monitoring samples when making her decision to reject the claim. The circuit court's order addressed the critical issue of reliance as follows:

Plaintiff cannot prove reliance, a necessary element of fraudulent

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