Gallapoo v. Wal-Mart Stores, Inc.
| Decision Date | 19 July 1996 |
| Docket Number | WAL-MART,No. 23151,23151 |
| Citation | 475 S.E.2d 172,197 W.Va. 172 |
| Court | West Virginia Supreme Court |
| Parties | Douglas GALLAPOO, Plaintiff, v.STORES, INC., an Arkansas Corporation; Phoenix Associates, Inc., a West Virginia Corporation; C & S Erectors, Inc., a Corporation; and A.M. Eagle Contracting, Inc., an Indiana Corporation, Defendants. |
Syllabus by the Court
1. The appellate standard of review of questions of law answered and certified by a circuit court is de novo.
2. Under W. Va. Code 23-2-1c(c) (1993), the workers' compensation scheme of another state is the exclusive remedy against the employer for a non-resident employee who is temporarily employed in this State, if
[197 W.Va. 173] such employee is injured in this State and is covered by the workers' compensation act of the other state. Syllabus Point 3, Pasquale v. Ohio Power Co., 187 W.Va. 292, 418 S.E.2d 738 (1992). Therefore, a non-resident employee's rights against his employer would be exclusively under the laws of the foreign state, and no remedy would be available against the employer in West Virginia under our deliberate intention statute, W. Va. Code 23-4-2(c)(2) (1994).
3. A non-resident employee who is injured in this State and is protected under the terms and provisions of the workers' compensation laws of a foreign state shall not be entitled to the benefits and privileges provided under the West Virginia Workers Compensation Act, including the right to file and maintain a deliberate intention cause of action under W. Va. Code 23-4-2(c)(2) (1994).
Ronald W. Kasserman, Seibert, Kasserman, Farnsworth, Gillenwater, Glauser, Richardson & Curtis, Wheeling, for Plaintiff.
Richard A. Hayhurst, Parkersburg, for Defendant Wal-Mart.
R. Kemp Morton, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for Defendant Phoenix Associates.
F. Richard Hall, J. Michael Weber, Spilman, Thomas & Battle, Parkersburg, for Defendants C & S Erectors and A.M. Eagle Contracting.
In this certified case from the Circuit Court of Wood County, we are asked to address the right of an Indiana resident to bring a direct cause of action against his Indiana employer under West Virginia's deliberate intention statute. W. Va. Code 23-4-2(c)(2)(ii) (1994). 1
The certified question and the trial court's answer is as follows:
If an Indiana resident temporarily employed in West Virginia is injured in the course of and as a result of his temporary employment in West Virginia and thereafter has received workers' compensation benefits under Indiana Workers' Compensation law, can the Indiana resident maintain an action against his employer in West Virginia based upon the deliberate intention theory set out in [W. Va. Code § 23-4-2(c)(2)(ii)(A-E) ] or must Indiana law be applied to the Indiana resident's suit filed in West Virginia due to the language of W. Va. Code 23-2-1c(c)?
Answer of the court:
[An] Indiana resident can maintain an action against his employer in West Virginia based upon the deliberate intention theory set out in [W. Va. Code 23-4-2(c)(2)(ii)(A-E) ] and that application of The response to this question touches directly upon the subject matter jurisdiction of the courts of this State to hear and resolve issues under West Virginia's Workers' Compensation Act between non-resident employees and their non-resident employers working in West Virginia, and is therefore a question subject to certification pursuant to W. Va. Code 58-5-2 (1967). Syllabus Point 3, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994).
[197 W.Va. 174] Indiana law to said action is not required pursuant to [W. Va. Code 23-2-1c(c) ].
The plaintiff, Douglas Gallapoo, was injured on March 10, 1992, while working at a Wal-Mart construction site in Vienna, West Virginia, when he fell approximately seventeen feet from an unwelded joist, fracturing his arm and back. At the time of this accident, Mr. Gallapoo was an Indiana resident and the employer, C & S Erectors, was an Indiana corporation in good standing with the Indiana Workers' Compensation Fund.
The plaintiff applied for and received benefits under Indiana's Workers' Compensation Act. 2 Thereafter, the plaintiff filed this direct cause of action against his employer in the Circuit Court of Wood County, 3 alleging violations of the five specific elements to support the employer's alleged deliberate intention to injure the plaintiff, pursuant to W. Va. Code 23-4-2(c)(2)(ii) (1994) as follows:
(1) a specific unsafe working condition;
(2) a subjective realization and appreciation of the specific unsafe working condition;
(3) the specific unsafe working condition was a violation of a state or federal safety standard;
(4) the employee was intentionally exposed to the specific unsafe working condition;
(5) the employee sustained serious injuries resulting from the specific unsafe working condition. 4
The employer moved to dismiss the complaint on a variety of theories including: (1) the plaintiff's exclusive remedy for recovering for his injuries are governed under the Indiana Workers' Compensation Act; and (2) that the employer is immune from tort liability under the Indiana Workers' Compensation Act because the employee has already received benefits under the Act, which does not recognize a deliberate intention cause of action. The trial court denied the employer's motion to dismiss, which prompted the framing of the certified question and the response that we have previously noted.
Based upon the following analysis, we hold that the plaintiff is not entitled to any of the benefits under the West Virginia Workers' Compensation Act, including the benefit and privilege to file a direct deliberate intention cause of action against his employer under W. Va. Code 23-4-2(c)(2)(ii) (1994).
The appellate standard of review of questions of law answered and certified by a circuit court is de novo. See Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir.), cert. denied, 484 U.S. 917, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987).
The factual pattern of this case requires the response to the certified question to be framed within that portion of the West Virginia Workers' Compensation Act which manages the rights and privileges of a non-resident employee working in West Virginia who is eligible to receive, and does receive, compensation benefits in another state. That statutory provision is W.Va.Code 23-2-1c(c) (1993), which provides:
If the employee is a resident of a state other than this state and is subject to the terms and provisions of the workers' compensation law or similar laws of a state other than this state, such employee and his dependents shall not be entitled to the benefits payable under this chapter on account of injury, disease or death in the course of and as a result of employment temporarily within this state, and the rights of such employee and his dependents under the laws of such other state shall be the exclusive remedy against the employer on account of such injury, disease or death.
W.Va.Code 23-2-1c(c) (1993) (emphasis added).
The quick answer to the certified question can be found under the principles of comity, as announced by this Court in Pasquale v. Ohio Power Co., which interpreted W.Va.Code 23-2-1c(c) to mean that the compensation scheme of another state is the exclusive remedy against the employer for a non-resident employee who is temporarily employed in this State, if such employee is injured in this State and is covered by the workers' compensation act of the other state. Syllabus Point 3, Pasquale v. Ohio Power Co., 187 W.Va. 292, 418 S.E.2d 738 (1992), Therefore, the plaintiff's rights in this case against his employer would lie exclusively under the laws of the State of Indiana, and no remedy would be available against the employer in West Virginia under our deliberate intention statute, W.Va.Code 23-4-2(c)(2)(ii) (1994).
However, there is still a lingering question as to whether our deliberate intention cause of action is a common law tort remedy; whereby we would not be obligated to apply the principles of comity announced in Pasquale to the extent that the exclusive remedy language contained in W.Va.Code 23-2-1c(c) precludes a non-resident employee's right to bring a deliberate intention claim against an employer under W.Va.Code 23-4-2(c)(2)(ii); but rather, we would apply our traditional choice of law principle of lex loci delicti (the law of the place of the wrong), thereby allowing the plaintiff to proceed in his lawsuit because he was injured in West Virginia.
The answer to this lingering question is just as quick. We recently held in Bell v. Vecellio & Grogan, Inc., 197 W.Va. 138, 475 S.E.2d 138 (1996) that the West Virginia deliberate intention statute, W.Va.Code 23-4-2(c)(2)(ii) (1991) 5 is not a common law tort remedy, but is blended within the West Virginia workers' compensation scheme, so that all employees covered by the West Virginia Workers' Compensation Act are subject to every provision of the workers' compensation chapter and are entitled to all benefits and privileges under the Act, including the right to file and maintain a direct deliberate intention cause of action against an employer. Syllabus Point 3, Bell v. Vecellio & Grogan, Inc., 197 W.Va. 138, 475 S.E.2d 138 (1996). In Bell, we noted that for some seventy years since the enactment of the West Virginia Workers' Compensation Act, our case law interpreted the deliberate intention statute, W.Va.Code 23-4-2, as merely preserving for the employee a common law cause of action. We went on in Bell to recognize that in 1983, the Legislature, in response to the perceived broadening of the meaning of deliberate intention to include willful, wanton, or reckless misconduct created by Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978), amended W.Va.Code 23-4-2 to create a statutory standard of...
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