Gallapoo v. Wal-Mart Stores, Inc., WAL-MART

CourtSupreme Court of West Virginia
Writing for the CourtRECHT
Citation475 S.E.2d 172,197 W.Va. 172
PartiesDouglas 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.
Docket NumberWAL-MART,No. 23151
Decision Date19 July 1996

Page 172

475 S.E.2d 172
197 W.Va. 172
Douglas GALLAPOO, Plaintiff,
v.
WAL-MART 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.
No. 23151.
Supreme Court of Appeals of West Virginia.
Submitted May 2, 1996.
Decided July 19, 1996.
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

Page 173

[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.

RECHT, Justice:

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

Page 174

[197 W.Va. 174] Indiana law to said action is not required pursuant to [W. Va. Code 23-2-1c(c) ].

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).

I.

FACTS

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...

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127 practice notes
  • Elmore v. State Farm Mut. Auto. Ins. Co., No. 24634.
    • United States
    • Supreme Court of West Virginia
    • June 22, 1998
    ...of review of questions of law answered and certified by a circuit court is de novo." Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 III. DISCUSSION We are asked to decide: Whether, under West Virginia law, there is a legally cognizable cause of action by ......
  • BPI, Inc. v. Nationwide Mut. Ins. Co., No. 14–0799.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2015
    ...(2006) : Syl. Pt. 1, Feliciano v. 7–Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001) ; Syl. Pt. 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Likewise, in syllabus point one of Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999), this C......
  • Woodrum v. Johnson, No. 28857.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...? 58-5-2 (1998) (Repl. Vol. Supp. 2001). II. STANDARD OF REVIEW As stated in syllabus point one of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo." Accord, ......
  • In re West Virginia Asbestos Litigation, No. 31237.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2003
    ...of review of questions of law answered and certified by a circuit court is de novo." Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996); syl. pt. 2, Keplinger v. Virginia Electric & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000); syl. pt. 2, Charter Communic......
  • Request a trial to view additional results
126 cases
  • Elmore v. State Farm Mut. Auto. Ins. Co., No. 24634.
    • United States
    • Supreme Court of West Virginia
    • June 22, 1998
    ...of review of questions of law answered and certified by a circuit court is de novo." Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 III. DISCUSSION We are asked to decide: Whether, under West Virginia law, there is a legally cognizable cause of action by ......
  • BPI, Inc. v. Nationwide Mut. Ins. Co., No. 14–0799.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2015
    ...(2006) : Syl. Pt. 1, Feliciano v. 7–Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001) ; Syl. Pt. 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Likewise, in syllabus point one of Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999), this C......
  • Woodrum v. Johnson, No. 28857.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...? 58-5-2 (1998) (Repl. Vol. Supp. 2001). II. STANDARD OF REVIEW As stated in syllabus point one of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo." Accord, ......
  • In re West Virginia Asbestos Litigation, No. 31237.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2003
    ...of review of questions of law answered and certified by a circuit court is de novo." Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996); syl. pt. 2, Keplinger v. Virginia Electric & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000); syl. pt. 2, Charter Communic......
  • Request a trial to view additional results

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