Marcus v. Holley, No. 31872.

CourtSupreme Court of West Virginia
Writing for the CourtAlbright
Citation618 S.E.2d 517
PartiesSharon Kay MARCUS, Individually and as Guardian of Tonya Lynn Marcus, a Protected Person; John William Marcus, Individually, and Christy Michele Marcus Page, Individually, Plaintiffs Below, Appellants v. Roger A. HOLLEY, Individually and/or as an Agent, Employee, Servant and/or Representative of Winans Sanitary Supply Co., Inc., a West Virginia Corporation; and John Doe(s), Individuals, and John Doe Company(ies), Corporation(s) and/or Other Entity(ies), Etc., Defendants Below, Respondents.
Decision Date11 May 2005
Docket NumberNo. 31872.
618 S.E.2d 517
Sharon Kay MARCUS, Individually and as Guardian of Tonya Lynn Marcus, a Protected Person; John William Marcus, Individually, and Christy Michele Marcus Page, Individually, Plaintiffs Below, Appellants
v.
Roger A. HOLLEY, Individually and/or as an Agent, Employee, Servant and/or Representative of Winans Sanitary Supply Co., Inc., a West Virginia Corporation; and John Doe(s), Individuals, and John Doe Company(ies), Corporation(s) and/or Other Entity(ies), Etc., Defendants Below, Respondents.
No. 31872.
Supreme Court of Appeals of West Virginia.
Submitted February 23, 2005.
Decided May 11, 2005.

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Robert M. Losey, Huntington, West Virginia, Attorney for the Appellants.

Anita R. Casey, Renatha S. Garner, MacCorkle, Lavender, Casey & Sweeney, P.L.L.C., Charleston, West Virginia, Attorneys for the Appellee, Roger A. Holley.

Thomas E. Buck, Mark A. Kepple, Bailey & Wyant, P.L.L.C., Wheeling, West Virginia, Attorneys for the Appellee, Winans Sanitary Supply Co.

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William L. Mundy, Mundy & Nelson, Huntington, West Virginia, Attorney for the Appellee, Allstate Insurance Co.

ALBRIGHT, Chief Justice:


This is an appeal by John William Marcus, individually and as guardian of Tonya Lynn Marcus; Sharon Kay Marcus, individually; and Christy Michele Marcus Page, individually (hereinafter "Appellants"), from a decision of the Circuit Court of Cabell County granting summary judgment to the Appellees1 in a motor vehicle collision case. The Appellants contend that the lower court erred in granting summary judgment to the Appellees. Upon thorough review of the briefs, arguments, and applicable precedent, we affirm the decision of the lower court.

I. Factual and Procedural History

On March 13, 1997, Appellant Tonya Marcus was injured while she was riding as a passenger in an automobile driven by her co-worker and fiancé, Roger Holley, and owned by their employer, Winans Sanitary Supply. Ms. Marcus was employed by Winans Sanitary Supply as a part-time janitorial employee working approximately twenty hours per week. Employees of Winans Sanitary Supply routinely utilized their own personal vehicles while traveling to perform cleaning jobs for their employer. However, because Mr. Holley's vehicle was experiencing mechanical difficulties on March 13, 1997, Mr. Holley requested that his employer permit him to borrow a vehicle owned by the employer.

Subsequent to the completion of their work assignment on the day of the accident, Ms. Marcus and Mr. Holley began traveling back to their employer's location. A collision occurred as they were traveling northbound on Route 10 in Cabell County, West Virginia, severely injuring the Appellant. She remained in a coma for several weeks and suffers permanent brain damage with resulting psychological impairment.

The cause of the accident is ardently disputed. The Appellants contend that the accident was caused by mechanical problems with the employer's vehicle which had been previously reported to Supervisor Jim Bates. According to the Appellants, the brakes on the vehicle grabbed, and the vehicle also experienced possible steering and clutch problems. Evidence was also presented indicating that an unidentified/phantom white truck contributed to the accident. The Appellants further assert that the collision was caused in whole or in part by the reckless driving of Mr. Holley, in addition to the unsafe condition of the employer's vehicle. Mr. Dan Aerni, an engineer retained by the Appellants, opined that Mr. Holley was driving approximately forty-five to fifty-five miles per hour in a twenty-five mile per hour zone and that such speed and the winding roads contributed to the accident. Mr. Holley denies that he was speeding at the time of the accident.

Following discovery, the Appellees moved for summary judgment. Although the Appellants had not included a cause of action for deliberate intention in their complaint, they did raise the issue of deliberate intention in their response to the Appellees' motion for summary judgment. The lower court thoroughly evaluated the claims presented by the Appellants and thereafter granted summary judgment by order dated December 31, 2003. The Appellants now appeal the lower court's ruling of summary judgment to this Court, asserting two primary contentions: first, they claim that the lower court erred in granting summary judgment because genuine issues of material fact exist regarding a deliberate intention cause of action against the employer; and second, they claim that the lower court erred by finding that the immunity provided under the West Virginia Worker's Compensation system should apply to the facts and circumstances of this case in which the injured employee worked only part-time.

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II. Standard of Review

"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). This Court has consistently held that "[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. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Further, "[s]ummary judgment is appropriate where the record taken as a whole 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. 4, Painter, 192 W.Va. 189, 451 S.E.2d 755.

Rule 56(e) of the West Virginia Rules of Civil Procedure provides, in pertinent part, as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

This Court has observed that, in this context, the word "material" has been defined as one "that has the capacity to sway the outcome of the litigation under the applicable law." Williams v. Precision Coil, Inc., 194 W.Va. 52, 60 n. 13, 459 S.E.2d 329, 337 n. 13. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also State ex rel. Abraham Linc Corp. v. Bedell, 216 W.Va. 99, 110, 602 S.E.2d 542, 553 (2004).

Syllabus point five of Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995) crystalizes this concept effectively, as follows:

Roughly stated, a "genuine issue" for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed "material" facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.

This Court is also cognizant of the fact that although the nonmoving party is entitled to the most favorable inferences that may reasonably be drawn from the evidence, it "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985) (citation omitted). In Gooch v. West Virginia Department of Public Safety, 195 W.Va. 357, 465 S.E.2d 628 (1995), this Court explained that "[t]o meet its burden, the nonmoving party must offer `more than a mere "scintilla of evidence" and must produce evidence sufficient for a reasonable jury to find in a non-moving party's favor.'" 195 W.Va. at 365, 465 S.E.2d at 636 (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). Applying these standards of review, we address the merits of the case presently before this Court.

III. Discussion
A. Deliberate Intention

The Appellants assert that summary judgment in favor of the Appellees was improper and allege that factual disputes exist concerning each element of the deliberate intention exception to the immunity afforded to employers under the West Virginia Workers' Compensation construct. The West Virginia statutory system is designed "to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as herein expressly provided. . . ." W.Va.Code § 23-4-2(d)(1) (2003) (Supp. 2004).2

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In a deliberate intention action, if the employee establishes that the employer acted with conscious, subjective deliberation, intentionally exposing the employee to a specific unsafe working condition, the employer loses the workers' compensation immunity and may be subjected to a cause of action for damages as if the Workers' Compensation Act "had not been enacted." W.Va.Code § 23-4-2(c) (2003) (Supp.2004). In full, that section states as follows:

If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury or death, the employee, the widow, widower, child or dependent of the employee has the privilege to take under this chapter and has a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter.

"To establish `deliberate...

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35 practice notes
  • Bias v. Eastern Associated Coal Corp., No. 32778.
    • United States
    • Supreme Court of West Virginia
    • June 8, 2006
    ...Clause make clear that the Clause does not provide an absolute right to a remedy for an injury. See Marcus v. Holley, 217 W.Va. 508, 618 S.E.2d 517 (2005) (upholding statute giving part-time employees lower temporary total disability benefits, or permanent partial disability benefits or per......
  • State Farm Mut. Auto. Ins. Co. v. Schatken, No. 11–1142.
    • United States
    • Supreme Court of West Virginia
    • November 16, 2012
    ...passing mention was insufficient to demonstrate an affirmative intention to seek reimbursement. Cf. Marcus v. Holley, 217 W.Va. 508, 518, 618 S.E.2d 517, 527 (2005) (finding that a claim raised for the first time in response to a motion for summary judgment does not serve to amend the compl......
  • Macdonald v. City Hosp. Inc., No. 35543.
    • United States
    • Supreme Court of West Virginia
    • June 22, 2011
    ...intermediate level of protection is accorded classifications such as those which are gender-based. Marcus v. Holley, 217 W.Va. 508, 523, 618 S.E.2d 517, 532 (2005). In Robinson, this Court explained that “the right to bring a tort action for damages, even though there is court involvement, ......
  • State Farm Mut. Auto. Ins. Co. v. Schatken, No. 11-1142
    • United States
    • Supreme Court of West Virginia
    • November 16, 2012
    ...mention was insufficient to demonstrate an affirmative intention to seek reimbursement. Cf. Marcus v. Holley, 217 W. Va. 508, 518, 618 S.E.2d 517, 527 (2005) (finding that a claim raised for the first time in response to a motion for summary judgment does not serve to amend the complaint); ......
  • Request a trial to view additional results
36 cases
  • Bias v. Eastern Associated Coal Corp., No. 32778.
    • United States
    • Supreme Court of West Virginia
    • June 8, 2006
    ...Clause make clear that the Clause does not provide an absolute right to a remedy for an injury. See Marcus v. Holley, 217 W.Va. 508, 618 S.E.2d 517 (2005) (upholding statute giving part-time employees lower temporary total disability benefits, or permanent partial disability benefits or per......
  • State Farm Mut. Auto. Ins. Co. v. Schatken, No. 11–1142.
    • United States
    • Supreme Court of West Virginia
    • November 16, 2012
    ...passing mention was insufficient to demonstrate an affirmative intention to seek reimbursement. Cf. Marcus v. Holley, 217 W.Va. 508, 518, 618 S.E.2d 517, 527 (2005) (finding that a claim raised for the first time in response to a motion for summary judgment does not serve to amend the compl......
  • Macdonald v. City Hosp. Inc., No. 35543.
    • United States
    • Supreme Court of West Virginia
    • June 22, 2011
    ...intermediate level of protection is accorded classifications such as those which are gender-based. Marcus v. Holley, 217 W.Va. 508, 523, 618 S.E.2d 517, 532 (2005). In Robinson, this Court explained that “the right to bring a tort action for damages, even though there is court involvement, ......
  • State Farm Mut. Auto. Ins. Co. v. Schatken, No. 11-1142
    • United States
    • Supreme Court of West Virginia
    • November 16, 2012
    ...mention was insufficient to demonstrate an affirmative intention to seek reimbursement. Cf. Marcus v. Holley, 217 W. Va. 508, 518, 618 S.E.2d 517, 527 (2005) (finding that a claim raised for the first time in response to a motion for summary judgment does not serve to amend the complaint); ......
  • Request a trial to view additional results

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