Grim v. E. Elec., LLC, 13-1133

• Decision Date: 03 November 2014
• Docket Number: No. 13-1133,13-1133
• Court: West Virginia Supreme Court
• Parties: GREGORY GRIM, et al., Plaintiffs Below, Petitioners v. EASTERN ELECTRIC, LLC, Defendant Below, Respondent

GREGORY GRIM, et al., Plaintiffs Below, Petitioners v. EASTERN ELECTRIC, LLC, Defendant Below, Respondent

No. 13-1133

SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2014 Term

Submitted: September 17, 2014

November 3, 2014

Appeal from the Circuit Court of Kanawha County

The Honorable Paul Zakaib, Jr., Judge

Civil Action No. 13-C-111

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED

Vincent Trivelli, Esq.

The Law Office of Vincent Trivelli, PLLC

Morgantown, West Virginia

Attorney for Petitioners

and

Attorney for Amicus Curiae

West Virginia State Building and

Construction Trades Council, AFL-CIO

Joseph U. Leonoro, Esq.

Steptoe & Johnson, PLLC

Charleston, West Virginia

Attorney for Respondent

JUSTICE WORKMAN delivered the Opinion of the Court.

CHIEF JUSTICE DAVIS concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.

JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. "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).

2. "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. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. "Once a disputed regulation is legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious." Syl. Pt. 2, W.Va. Health Care Cost Review Auth. v. Boone Mem. Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996).

4. "W.Va. Code § 21-5A-2 . . . requires the prevailing wage to be paid to all workmen who are employed 'on behalf of any public authority' and who are 'engaged in the construction of public improvements.'" Syl. Pt. 9, in part, State ex rel. Tucker Co. Solid Waste Auth. v. W.Va. Div. of Labor, 222 W.Va. 588, 668 S.E.2d 217 (2008).

5. A private cause of action under the Prevailing Wage Act, West Virginia Code § 21-5A-9(b) (2013), is subject to the five-year statute of limitations period provided for in West Virginia § 55-2-6 (2008) for actions upon an implied contract.

6. The Prevailing Wage Act, West Virginia Code § 21-5A-9(b) (2013), provides that "an honest mistake or error shall not be construed as a basis for recovery under this subsection." Therefore, when a contractor or subcontractor can demonstrate that its failure to pay prevailing wages to workers on a public improvement construction project was due to an "honest mistake or error," there is no basis for recovery.

7. "'The West Virginia Wage Payment and Collection Act is remedial legislation designed to protect working people and assist them in the collection of compensation wrongly withheld.' Syllabus, Mullins v. Venable, 171 W.Va. 92, 297 S.E.2d 866 (1982)." Syl. Pt. 3, Jones v. Tri-County Growers, Inc., 179 W.Va. 218, 366 S.E.2d 726 (1988).

8. "The determination as to whether 'wages,' as defined in West Virginia Code § 21-5-1(c) (2013 Repl. Vol.), are payable pursuant to the requirements of West Virginia Code § 21-5-1 et seq. (2013 Repl. Vol.) is governed by the terms of the employment agreement, whether written or in the form of a consistently appliedunwritten policy." Syl. Pt. 5, Adkins v. Am. Mine Research, Inc., No. 13-0932, ___ W.Va. ___, ___ S.E.2d ___ (W.Va. filed Oct. 30, 2014).

9. "Summary judgment is appropriate if, from the totality of the evidence presented, the record 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. 6, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).Workman, Justice:

Petitioners, former workers on a public works project, filed this civil action to recover statutory wages and liquidated damages under the Prevailing Wage Act¹ and Wage Payment and Collection Act² from the contractor on the project, Eastern Electric, LLC ("Eastern Electric"). Petitioners appeal an order entered October 7, 2013, by the Circuit Court of Kanawha County granting summary judgment in favor of Eastern Electric. On appeal to this Court, petitioners argue the circuit court erred in its holdings under these laws and failed to follow the appropriate standard regarding summary judgment determinations. This case presents the following questions: (1) what is the statute of limitations in a Prevailing Wage Act claim; (2) whether summary judgment was appropriate on the issue of Eastern Electric's "honest mistake or error" affirmative defense; and (3) whether the circuit court was correct to dismiss petitioners' Wage Payment and Collection Act claims.³

After a careful review of the briefs, appendix record, and consideration of the arguments of the parties, we hold the circuit court erred in dismissing petitioners'Prevailing Wage Act claims as untimely because the statute of limitations applicable to those claims is five years. We find the record establishes disputed issues of material fact with regard to Eastern Electric's "honest mistake or error" affirmative defense, rendering the circuit court's entry of summary judgment erroneous. Finally, we affirm the circuit court in its dismissal of petitioners' Wage Payment and Collection Act claims. We therefore affirm, in part, reverse, in part, and remand the case for further proceedings.⁴

I. FACTUAL AND PROCEDURAL HISTORY

Eastern Electric is an electrical contractor. Petitioners are seven electricians who were employed by Eastern Electric on several public works projects for the State of West Virginia in and around the City of Charleston. Petitioners filed the instant action alleging violations of West Virginia Code §§ 21-5A-1 to -10 ("Prevailing Wage Act" or "PWA"), and West Virginia Code §§ 21-5-1 to -18 ("Wage Payment Collection Act" or "WPCA"). The parties dispute whether the PWA applied to the specific contract at issue -- a contract Eastern Electric entered into with the West Virginia Department of Administration in 2007. Petitioners performed electrical construction work pursuant to this contract at several government buildings including the State Capitol and the Governor's mansion. Work on this contract began in May of 2007, and with the renewal of the contract in 2008, continued through May of 2009.

Throughout the term of this contract, Eastern Electric performed electrical work on a variety of projects at various State-owned facilities. Each project was given to Eastern Electric on a purchase order or work order. Upon completion or partial completion of a job or project, the lead electrician, Petitioner Gregory Grim, completed an installation/service report, which was usually approved and signed by the Department of Administration official in charge of that particular building or location. Thereafter, Eastern Electric sent the invoice to the Department of Administration. Each invoice contained a brief description of the work performed, the number of hours spent to perform the work, and material costs. The appendix record submitted to this Court includes a generous sampling of those documents; the work is repeatedly described as demolishing existing wiring, lighting and receptacles and installing new. In their deposition testimony, petitioners also describe the work performed pursuant to the contract as demolishing electrical systems in various office spaces to install new systems.

Petitioners were paid timely under the terms of their employment agreements, but they were not paid prevailing wages. Petitioners performed identical work for Eastern Electric on other public works construction projects during this same time period and were paid prevailing wages. ⁵ Petitioners asked members of EasternElectric about this discrepancy and they were told that prevailing wages were not paid because it was a maintenance contract.

The Request for Quotation ("RFQ") for this contract was entitled "Electrical Construction, Maintenance and Repair." The RFQ indicated the contract was "to provide electrical construction, maintenance, and repair services to a variety of equipment housed in numerous Department of Administration owned facilities located throughout West Virginia[.]" The term "construction" was defined within the RFQ as: "work associated with the addition, removal, or re-location of electrical circuits[.]" When Eastern Electric submitted its bid for this contract, it did so at non-prevailing wage rates.⁶ Eastern Electric's bid was accepted and it entered into the contract with the Department of Administration. The contract did not specify that prevailing wages were applicable tothe work being performed, and did not include the general boilerplate language⁷ usually included in prevailing wage contracts.⁸

In February of 2009, the West Virginia Division of Labor commenced an investigation with regard to some of the work performed pursuant to the contract and determined that Eastern Electric should have paid prevailing wages to the workers. The investigation began with work performed on State Building 74, a three-story building. Petitioners removed all of the existing wiring and lighting, as well as all the existing receptacles and switches in the building. After this demolition was complete, petitioners installed new conduit, wiring, lighting, receptacles and switches on all three floors. TheDivision of Labor issued a letter to Eastern Electric dated August 6, 2009, and stated that an audit revealed that Eastern Electric failed to pay proper prevailing wages for work performed on State Building 74.⁹ The results of that investigation were reflected in...