Expedited Transp. Systems, Inc. v. Vieweg

• Decision Date: 28 January 2000
• Docket Number: No. 26635.,26635.
• Citation: 529 S.E.2d 110,207 W.Va. 90
• Court: West Virginia Supreme Court
• Parties: EXPEDITED TRANSPORTATION SYSTEMS, INC., Petitioner Below, Appellee, v. William VIEWEG, Commissioner, West Virginia Bureau of Employment Programs, Workers' Compensation Division, Respondent Below, Appellant.

529 S.E.2d 110

207 W.Va. 90

EXPEDITED TRANSPORTATION SYSTEMS, INC., Petitioner Below, Appellee, v. William VIEWEG, Commissioner, West Virginia Bureau of Employment Programs, Workers' Compensation Division, Respondent Below, Appellant.

No. 26635.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 2000.

Decided January 28, 2000.

Riley J. Romeo, Supervising Attorney, Bureau of Employment Programs, Legal Services Division—Litigation Unit, Charleston, West Virginia, Attorney for the Appellant.

Stephen P. Hoyer, Hoyer, Hoyer, Smith & Miesner, Charleston, West Virginia, Attorney for the Appellee. DAVIS, Justice:

Appellant, the West Virginia Bureau of Employment Programs, Workers' Compensation Division (hereinafter "the Division"), appeals an order of the Circuit Court of Kanawha County that reversed a final order rendered by the Division. The Division's order found that the appellee, Expedited Transportation Systems, Inc. (hereinafter "Expedited"), was a successor employer and was, therefore, liable for its predecessor's delinquent Workers' Compensation Premiums pursuant to W. Va.Code § 23-2-14 (1995) (Repl.Vol.1998). We conclude that, because the Division failed to follow mandatory procedures set forth in W. Va.Code § 23-2-14(f) and W. Va.Code § 23-2-15 (1995) (Repl.Vol. 1998), the administrative procedure was not exhausted and the circuit court was without jurisdiction to consider an appeal of this case. Consequently, we reverse the order of the circuit court and remand this case for additional proceedings in compliance with this opinion and the relevant statutes.

I. FACTUAL AND PROCEDURAL HISTORY

The facts presented on appeal are essentially undisputed. Trucks, Trains and Planes, Inc., d/b/a/ C.C. Carriers (hereinafter "TTP"), is a multi-state company headquartered in Florida. TTP operated an over-the-road trucking company in West Virginia from July, 1994, to December, 1996. Although TTP closed its West Virginia division in December of 1996, it nevertheless remained in business in other jurisdictions. At the time it ended its West Virginia operation, TTP owed approximately $215,000 in unpaid West Virginia Workers' Compensation premiums.

On January 2, 1997, a former TTP employee, Mr. Michael L. White (hereinafter "Mr. White"),¹ incorporated Expedited, petitioner below and appellee herein. Expedited is also an over-the-road trucking company.² Mr. White is the president and sole shareholder of Expedited. Expedited leased and occupied the same location formerly occupied by TTP. However, that property had been leased to TTP by P & M Enterprises, a limited partnership formed by Mr. White and his ex-wife.³ In addition, at the time Expedited was formed, it leased from TTP approximately thirty percent of TTP's fleet, hired fifty percent of TTP's office personnel and twenty-five percent of TTP's truck drivers, and began providing services to approximately fifty percent of TTP's client base from which thirty percent of TTP's revenue base had been derived.⁴ With the exception of lease payments for the use of TTP's fleet, Expedited paid no consideration to TTP.

While processing Expedited's initial application for Workers' Compensation coverage, the Division, respondent below and appellant herein, determined that Expedited was a successor employer to TTP pursuant to W. Va. Code § 23-2-14(b)⁵ (1995) (Repl.Vol.1998)⁶ and, as such, was liable for TTP's outstanding premium debt. In response to the Division's decision, Expedited petitioned for an administrative hearing on the issue of successor liability pursuant to W. Va.Code § 23-2-17 (1993) (Repl.Vol.1998).⁷ A hearing was subsequently held and the presiding hearing examiner rendered a recommended decision concluding, in relevant part, that Expedited was a successor employer of TTP and was, therefore, liable for TTP's debt. Unlike the Division's initial determination of successor liability, which was based on W. Va.Code § 23-2-14(b), the hearing examiner based his determination upon a presumption contained in W. Va.Code § 23-2-14(f), which states:

The transfer of any assets of the employer shall be presumed to be a transfer of all or substantially all of the assets if the transfer affects the employer's capacity to do business. The presumption can be overcome upon petition presented and an administrative hearing in accordance with section fifteen [§ 23-2-15] of this article and in consideration of the factors thereunder.

As permitted by W. Va.Code § 23-2-14(f), Expedited requested an administrative hearing pursuant to W. Va.Code § 23-2-15 (1995) (1998).⁸ However, the Division failed to respond to the request and no such hearing was held.⁹ In addition, Expedited objected to the hearing examiner's recommended decision, but the Division nevertheless adopted the decision in full in a final order. Thereafter, Expedited appealed that final order to the Circuit Court of Kanawha County pursuant to W. Va.Code § 29A-5-4 (1998) (Repl. Vol.1998).¹⁰ In a subsequent order entered on February 16, 1999, the circuit court concluded that "the decision rendered by [the Division] was reached by misinterpreting West Virginia Code § 23-2-14(b) & (f) and said decision was clearly wrong under the reliable, probative, and substantive evidence of the whole record under West Virginia Code § 29A-5-4(g)." The court explained:

While West Virginia Code § 23-2-14(b) holds that successor liability may be found when all or substantially all of a predecessor corporation's assets are acquired by sale, assumption, or other form of transfer, this presumption can be overcome under West Virginia Code § 23-2-14(f) by a proper petition and adequate rebuttal. Accordingly, because the current president of Expedited Transportation Systems Inc., Michael L. White, established that he was not an officer of [TTP], had no corporate rights, obligations, or ownership interest in [TTP], and did not acquire a quantity of assets from [TTP] that would constitute all or even substantially all of its assets as required by West Virginia Code § 23-2-14(b), the Court hereby REVERSES the Final Order rendered by the [Division]. The Court further finds that Petitioner, Expedited Transportation Systems Inc., is not liable as a successor corporation for the unpaid Workers' Compensation premiums of [TTP].

It is from this order that the Division now appeals.¹¹

II. STANDARD OF REVIEW

In the case sub judice, the circuit court reversed the Division's conclusion that Expedited was a successor employer to TTP. We have previously explained that "[i]n cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo." Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). In this case, however, the failure of the Division to grant, or even acknowledge, Expedited's request for a hearing pursuant to W. Va.Code §§ 23-2-14(f) and 23-2-15, presents a procedural twist with jurisdictional connotations. Consequently, before reaching the substantive issues raised, we must first contemplate whether the circuit court had jurisdiction to consider the appeal of this matter.¹² Cf. State v. Salmons, 203 W.Va. 561, 568-69, 509 S.E.2d 842, 849-50 (1998)

("`We are duty bound to take up [this] issue sua sponte, because it implicates the scope of our appellate jurisdiction.' Province v. Province, 196 W.Va. 473, 478 n. 11, 473 S.E.2d 894, 899 n. 11 (1996)."). To ascertain whether the circuit court had jurisdiction over the appeal of this action, we will review the procedural course it took and consider whether that course comported with the applicable law.

III. DISCUSSION

The procedural irregularity giving rise to our jurisdictional concern in this instance is the failure of the Division to acknowledge Expedited's request for a hearing pursuant to W. Va.Code §§ 23-2-14(f) and 23-2-15. During oral argument before this Court, Expedited asserted, and the Division confirmed, that Expedited requested a hearing under the aforementioned Code sections and received no response from the Division. The question raised by this course of events is whether the Division erred in failing to grant Expedited's request and, if so, whether the error affected the jurisdiction of the circuit court to consider the case on appeal. To answer this question, we must look to the relevant statutes while bearing in mind that "`[t]he primary object in construing a statute is to ascertain and give effect to the intent of the legislature.' Syllabus Point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl. pt. 2, Anderson v. Wood, 204 W.Va. 558, 514 S.E.2d 408 (1999). Furthermore, "`[i]n ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.' State ex rel. Morgan v. Trent, 195 W.Va. 257, 263, 465 S.E.2d 257, 263 (1995) (citations omitted)." Anderson at 561, 514 S.E.2d at 411.

Our duty to ascertain the legislative intent behind W. Va.Code § 23-2-14 is made effortless in this instance by virtue of the fact that the Legislature expressly stated its intent in W. Va.Code § 23-2-14(g), which states:

The foregoing provisions are expressly intended to impose upon such successor employers the duty of obtaining from the division or predecessor employer, prior to the date of such acquisition, a valid "certificate of good standing to transfer a business or business assets" to verify that the predecessor employer's account with the division is in good standing.

Having observed this legislative intent, we proceed to consider the specific provisions in question and to determine how they give effect to this intent.

The first statutory provision in question, W. Va.Code § 23-2-14(f), provides...