Helmick v. Potomac Edison Co.

• Decision Date: 27 June 1991
• Docket Number: No. 19772,19772
• Court: West Virginia Supreme Court
• Parties: Joe D. HELMICK and Tammy Helmick, Plaintiffs Below, Appellees, v. POTOMAC EDISON COMPANY, a Maryland Corporation, Defendant Below, Carl Belt, Inc., a Maryland Corporation, Hester Industries, a Corporation, Defendants Below, Appellees, Potomac Edison Company, a Maryland Corporation, Defendant Below, Appellant.

Page 700

406 S.E.2d 700

185 W.Va. 269

Joe D. HELMICK and Tammy Helmick, Plaintiffs Below, Appellees, v. POTOMAC EDISON COMPANY, a Maryland Corporation, Defendant Below Carl Belt, Inc., a Maryland Corporation, Hester Industries a Corporation, Defendants Below, Appellees Potomac Edison Company, a Maryland Corporation, Defendant Below, Appellant.

No. 19772.

Supreme Court of Appeals of West Virginia.

Submitted May 14, 1991.

Decided June 27, 1991.

Syllabus by the Court

1. "A company maintaining an electric line, over which a current of high and dangerous voltage passes, in a place to which it knows or should anticipate others lawfully may resort for any reason, such as business, pleasure or curiosity, and in such manner as exposes them to danger of contact with it by accident or inadvertence, is bound to take precautions for their safety by insulation of the wire or other adequate means." Syllabus Point 2, Love v. Virginian Power Co., 86 W.Va. 393, 103 S.E. 352 (1920).

2. To establish "deliberate intention" in an action under W.Va. Code, § 23-4-2(c)(2)(ii) (1983), a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements.

3. "The combination of: (1) West Virginia's system of comparative negligence; (2) West Virginia's rules on joint and several liability; and, (3) West Virginia's statutory workers' compensation immunity does not violate federal due process and equal protection principles." Syllabus Point 5, Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406 (1991).

4. Contracts of adhesion by which monopolies require indemnification for incidents in which the monopoly is at fault are void as against public policy.

5. "Under W.Va.R.Civ.P. 26(b)(4)(A)(i), 'a party is required to disclose to another party the identity of persons whom that party intends to call as expert witnesses at trial only when that party has determined within a reasonable time before trial who his expert witnesses will be.' " Syllabus Point 3, Michael v. Henry, 177 W.Va. 494, 354 S.E.2d 590 (1987) (emphasis added).

6. The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong.

7. "A trial court is afforded wide discretion in determining the admissibility of photographic evidence." Syllabus Point 6, Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406 (1991).

8. "Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption." Syllabus Point 5, Roberts v. Stevens Clinic Hosp., 176 W.Va. 492, 345 S.E.2d 791 (1986).

9. As a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement except when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.

Frank E. Simmerman, Jr., Allen, Johnson & Simmerman, Clarksburg, W.Va., and Donald E. Cookman, Cookman & Moreland, Romney, W.Va., for Joe D. Helmick and Tammy Helmick.

Clarence E. Martin, James J. Matzureff, Martin & Seibert, Martinsburg, W.Va., for Potomac Edison Co.

Charles W. Smith, Keyser, W.Va., for Carl Belt, Inc.

Joseph A. Wallace, Paul J. Harris, Wallace, Ross and Harris, Elkins, W.Va., for Hester Industries.

NEELY, Justice:

Joe D. Helmick and Tammy Helmick brought an action against Potomac Edison Company in the Circuit Court of Hardy County for injuries that Mr. Helmick received in moving a guy wire attached to a Potomac Edison utility pole. After removal to the United States District Court for the Northern District of West Virginia, the Helmicks added Hester Industries, Inc., on whose property the injury had occurred, as a defendant, destroying diversity jurisdiction, and the case was returned to the Circuit Court of Hardy County. Potomac Edison cross-claimed against Carl Belt, Inc., Mr. Helmick's employer, for its negligence. Potomac Edison now appeals the verdict against it for $515,621.86 and the trial court's dismissal of its claims against Hester and Carl Belt. We affirm.

On 24 October 1986, Joe D. Helmick burned his left forearm and the soles of both of his feet when he attempted to move a guy wire connected to a utility pole that was supporting power lines operated by Potomac Edison. Ultimately, Mr. Helmick's left arm had to be amputated at the elbow. Skin grafts to his feet have allowed Mr. Helmick to walk again. Although Mr. Helmick returned to work with Carl Belt, he is no longer able to do the heavy manual labor for which he was originally hired.

At the time of the accident, Carl Belt was an independent contractor employed by Hester Industries, Inc. to do construction at Hester's Moorefield plant in Hardy County. During construction, the guy wire attached to the utility pole had to be moved several times to allow construction. Carl Belt asked Potomac Edison to send someone to remove the guy wire temporarily; Potomac Edison refused for the alleged reason that to do so would relax tension on the pole. The jury, however, could have reasonably inferred that the true reason for defendant's uncooperative response was an unwillingness to undertake additional work. Following Potomac Edison's refusal, Carl Belt's employees successfully moved the wire on several occasions.

When the accident happened, Mr. Helmick (along with Allan Street and Dale White, two other employees of Carl Belt) was trying to move the guy wire by means of a come-along ¹ that was attached to it. Carl Belt's employees had attached the come-along to the guy wire approximately one to two months before the accident for use in moving the wire. The come-along was left attached for this one to two month period in full view, and, in fact, Potomac Edison's employees had seen Carl Belt's employees use the come-along to move the guy wire.

The utility pole was erected pursuant to a 1982 agreement between Potomac Edison and Hester for Potomac Edison to provide electricity to Hester. ² Potomac Edison points out that it moved the pole onto Hester's property without an explicit new grant of right-of-way for the pole, but there was also no explicit agreement between Potomac and Hester that ownership of the pole would be transferred. When Potomac moved the pole they did not remove their ownership tag from the pole, but instead left it there indicating Potomac Edison's continued ownership of the pole.

Before trial, Mr. Helmick received an award of $53,760 from West Virginia Workers' Compensation. Shortly before trial, the plaintiffs dismissed their Mandolidis ³ claims against Carl Belt, although Potomac Edison continued to pursue its Mandolidis cross-claim against Carl Belt.

After the close of Potomac Edison's case in chief, the trial court directed a verdict against Potomac Edison on its Mandolidis cross-claim against Carl Belt. The trial court also granted Hester's motion for directed verdict against Potomac Edison on its claim for indemnification under paragraph 7 of the 1982 agreement.

The court sent to the jury the question of Potomac Edison's liability to the Helmicks and the question of Hester's liability to Potomac Edison under paragraph 15 of the 1982 agreement. The jury returned a verdict of $473,232.84 in favor of Mr. Helmick and a verdict of $25,000.00 in favor of Ms. Helmick. Prejudgment interest brought the total to $515,621.86. The jury also found that Potomac was 40% liable, that Carl Belt was 60% liable, and that Mr. Helmick was not liable. On the issue of paragraph 15, the jury found Hester not liable.

The judge then ordered that Potomac Edison pay the full amount of the verdict.

I.

Potomac Edison now appeals to this Court with nine assignments of error. Hester cross-assigns three errors. Much of Potomac Edison's argument asks us to re-plow the ground that we covered in the recent case of Miller v. Monongahela Power Company, 184 W.Va. 663, 403 S.E.2d 406 (1991). In Miller, we held that:

In a consistent line of cases stretching back over nearly a century, we have held that electricity is an inherently dangerous instrumentality and that its management requires a peculiarly high level of care. In this regard, although we have never gone so far as to make electric companies insurers, we have come reasonably close by making it clear that any deviation from the highest possible standard of care is sufficient to impose liability.

Miller 184 W.Va. at 668, 403 S.E.2d at 411.

In Miller we also noted:

A company maintaining an electric line, over which a current of high and dangerous voltage passes, in a place to which it knows or should anticipate others lawfully may resort for any reason, such as business, pleasure or curiosity, and in such manner as exposes them to danger of contact with it by accident or inadvertence, is bound to take precautions for their safety by insulation of the wire or other adequate means. Syllabus Point 2, Love v. Virginian Power Co., 86 W.Va. 393 .

Miller 184 W.Va. at 668, 403 S.E.2d at 411.

Today, we reaffirm these holdings. The jury could reasonably have found that Potomac Edison acted negligently when it did not remove the guy wire or move the utility pole at Carl Belt's request, and that Potomac was negligent when it put up this terminal utility pole with the guy wire and the electrical wires on the same side. ⁴

II.

Potomac Edison's first three assignments of error involve Carl Belt and its immunity from suit under West Virginia Workers' Compensation. Although Mr. Helmick dropped his Mandolidis claim against Carl Belt before trial, Potomac Edison continued to pursue its Mandolidis cross-claim at trial. Potomac Edison claims that the trial court should not have directed a verdict against it on this claim.

The West Virginia Workers' Compensation Act provides...