Marlin v. Bill Rich Const., Inc., No. 23121

CourtSupreme Court of West Virginia
Writing for the CourtALBRIGHT; RECHT
Citation482 S.E.2d 620,198 W.Va. 635
PartiesJeffrey L. MARLIN, Sr., et al., Plaintiffs Below, Appellants v. BILL RICH CONSTRUCTION, INC., et al., Defendants Below, Appellees.
Decision Date19 February 1997
Docket NumberNo. 23121

Page 620

482 S.E.2d 620
198 W.Va. 635
Jeffrey L. MARLIN, Sr., et al., Plaintiffs Below, Appellants
v.
BILL RICH CONSTRUCTION, INC., et al., Defendants Below, Appellees.
No. 23121.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 11, 1996.
Decided Nov. 15, 1996.
Rehearing Denied Feb. 19, 1997.

[198 W.Va. 638] Syllabus by the Court

1. "W.Va.Code, 29-12A-5(a)(11), clearly contemplates immunity for political subdivisions from tort liability in actions involving claims covered by workers' compensation even though the plaintiff was not employed by the defendant political subdivision at the time of the injury." Syllabus point 6, O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992).

2. The general rule of construction in governmental tort legislation cases favors liability, not immunity. Unless the legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail.

3. If the claims asserted by appellants would result in no benefits under any workers' compensation law or any employer's liability law, that is to say, if there is no recovery of benefits under such laws in lieu of damages recoverable in a civil action, then, notwithstanding W.Va.Code § 29-12A-5(a)(11), such claims are not "covered" within the meaning of the immunity statute and may be asserted in the courts of this State against a political subdivision which is not their employer, and such recovery had as may be proved under a recognized cause of action.

4. West Virginia Code § 23-4-1 requires that one who claims workers' compensation benefits for occupational pneumoconiosis must show: (1) the present existence of the disease or an aggravation of the disease which has been previously contracted and (2) exposure to the risk of occupational pneumoconiosis for a substantial period of time, including at least the specified minimum period of exposure while at work in West Virginia.

5. Under the definition and requirements for occupational pneumoconiosis claims set forth in W.Va.Code § 23-4-1, it is not sufficient to prove only the fear of eventually contracting occupational pneumoconiosis or to show some exposure to the risk of contracting the disease for a period of time less than those periods set out in the statute.

6. In order to sustain a claim under workers' compensation for an occupational disease other than occupational pneumoconiosis, the claimant must in fact and presently suffer from the disease, just as in the case of occupational pneumoconiosis.

7. In light of the narrow language used by the Court in Breeden v. Workmen's Compensation Commissioner, 168 W.Va. 573, 285 S.E.2d 398 (1981), the Legislature's subsequent rejection of mental-mental claims, and the clear statutory requirements for establishing a claim for occupational diseases or occupational pneumoconiosis, we decline to broaden our holding in Breeden to include the fear of contracting an occupational disease or occupational pneumoconiosis.

8. Standing alone, the physical trauma or insult of inhaling asbestos fibers or other dust-borne particles does not constitute an injury under W.Va.Code § 23-4-1, absent the further showing that occupational pneumoconiosis has been contracted after exposure for the time required by statute.

9. The principle set forth in syllabus point 2 of Ricottilli v. Summersville Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629 (1992), is applicable in a cause of action for negligent infliction of emotional distress.

10. "An individual may recover for the negligent infliction of emotional distress absent accompanying physical injury upon a showing of facts sufficient to guarantee that the emotional damages claim is not spurious." Syllabus point 2, Ricottilli v. Summersville Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629 (1992).

11. A claim for emotional distress without an accompanying physical injury can only be successfully maintained upon a showing by the plaintiffs in such an action of facts sufficient to guarantee that the claim is not spurious and upon a showing that the emotional

Page 624

[198 W.Va. 639] distress is undoubtedly real and serious.

12. In order to recover for negligent infliction of emotional distress based upon the fear of contracting a disease, a plaintiff must prove that he or she was actually exposed to the disease by the negligent conduct of the defendant, that his or her serious emotional distress was reasonably foreseeable, and that he or she actually suffered serious emotional distress as a direct result of the exposure.

13. In addition to other factors which may be adduced in evidence to prove that serious emotional distress arising from the fear of contracting a disease is reasonably foreseeable, the evidence must show first, that the exposure upon which the claim is based raises a medically established possibility of contracting a disease, and second, that the disease will produce death or substantial disability requiring prolonged treatment to mitigate and manage or promising imminent death.

14. Serious emotional distress based upon the fear of contracting a disease is a question of fact to be determined by the trier of fact. It may proven with medical and psychiatric evidence, based on a diagnosis made with or without physical manifestations of the distress; however, any physical injury resulting from the emotional distress is further evidence of the degree of emotional distress suffered. In determining "seriousness", consideration should be given to whether the particular plaintiff is a "reasonable person, normally constituted". For the purposes of such consideration, a reasonable person is an ordinarily sensitive person and not a supersensitive person.

15. West Virginia Code § 29-12A-5(a)(10) provides immunity for a political subdivision's inspection functions related to assuring compliance with a law or ordinance of the political subdivision including, but not limited to, housing, fire, zoning, and health.

James B. Stoneking and James G. Bordas, Jr., Bordas, Bordas & Jividen, Wheeling, for Appellant.

James D. Gray, Robert E. Gifford, Lori A. Dawkins, Steptoe & Johnson, Clarksburg, and Larry Blalock, Jackson & Kelly, New Martinsville, for Appellee, Wetzel County Board of Education.

W.E. Mohler, Charleston, for Appellees, Gandee & Partners.

John Gabhart, Thaxton & Johnstone, Charleston, for Appellees, Appalachian, Hart & Milam.

ALBRIGHT, Justice:

Appellants, workers who engaged in construction work at Hundred High School in Wetzel County, appeal 1 summary judgment entered in favor of appellee, the Wetzel County Board of Education, in a civil action brought by appellants and members of their households as a result of appellants being exposed to asbestos. The Circuit Court of Wetzel County, in granting appellee's motion for summary judgment with regard to the workers only, determined that appellants had suffered "injuries" compensable under workers' compensation. The trial court concluded that exposure to asbestos fibers resulting in a fear of contracting an asbestos-related disease, combined with physical manifestations of that fear, including loss of sleep, loss of appetite, anxiety, weight loss, etc., constituted such "injuries". Therefore, the trial court determined that appellants' claims were barred under W.Va.Code § 29-12A-5(a)(11) because of the Board's immunity, as a political subdivision, from claims "covered by any workers' compensation law". We find that the grant of summary judgment was erroneous and, therefore, reverse and remand for trial.

FACTS

As part of the renovation phase of a project involving Hundred High School in Wetzel

Page 625

[198 W.Va. 640] County, appellants, plaintiffs below, began work at the high school in May, 1988. Appellants who worked on the project, as opposed to the members of their households, were employees of subcontractors that were hired to perform the work. Prior to the beginning of this work, the Wetzel County Board of Education (Board) retained an asbestos consultant, in part to conduct a pre-construction survey of Hundred High School. Test results obtained by the consultant confirmed that asbestos was present. The consultant prepared a letter dated May 22, 1987, addressed to the Board, which stated, in part, that certain floor tiles contained asbestos. The letter stated that the floor tile did not pose a health hazard in its present condition, so long as it was not drilled, cut, or sanded. 2

Appellants contend that they were never notified that asbestos was present at the site. Consequently, workmen drilled through the asbestos floor tiles to install pipe and conduit. The workmen also encountered asbestos that was not disclosed in the consultant's report. Appellants allege that they broke up asbestos heating pipes with sledgehammers and tore out overhead insulation materials, which created substantial amounts of airborne dust and debris.

According to appellants, Herb Stevey, a union steward, eventually questioned Jim Long, a "coordinator" for the Board's construction projects, about the existence of asbestos at the site. Appellants assert that Mr. Long insisted that the site was asbestos-free. Thereafter, Mr. Stevey and others requested that debris at the work area be tested for asbestos. Appellants assert that all such requests were refused. Eventually, one of the workers took samples of the debris, which were then sent to an independent laboratory. The results from the lab were received on July 6, 1988, and showed that there was asbestos in the debris. Thereafter, the workers walked off the job and notified federal authorities.

On July 7, 1988, Environmental Protection Agency (EPA) officials ordered construction work to cease. EPA tests confirmed the existence of asbestos where appellants had been working. According to appellants, John Heart, a representative of the asbestos consulting company, admitted...

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63 practice notes
  • Bias v. Eastern Associated Coal Corp., No. 32778.
    • United States
    • Supreme Court of West Virginia
    • June 8, 2006
    ...Notes: 1. Non-physical, or "mental", injuries caused by non-physical, or "mental", causes. 2. In Marlin v. Bill Rich Construction, Inc., 198 W.Va. 635, 650, 482 S.E.2d 620, 635 (1996), this Court observed that "in 1993, the West Virginia Legislature rejected [Breeden's] compensability of me......
  • Bower v. Westinghouse Elec. Corp., No. 25338.
    • United States
    • Supreme Court of West Virginia
    • July 19, 1999
    ...reflects West Virginia law, an assertion they supported by citing to this Court's recent holding in Marlin v. Bill Rich Constr., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996), where we concluded that a plaintiff is not required to prove a present physical injury in the context of asserting a c......
  • Willis v. Gami Golden Glades, LLC., No. SC04-1929.
    • United States
    • United States State Supreme Court of Florida
    • October 18, 2007
    ...injury or an unreasonable risk of bodily harm, plus either physical manifestation or mental illness); Marlin v. Bill Rich Constr., Inc., 198 W.Va. 635, 482 S.E.2d 620, 637 (1996) (requiring physical injury or a showing "that the claim is not spurious and ... the emotional distress is undoub......
  • Aikens v. Debow, No. 27376.
    • United States
    • Supreme Court of West Virginia
    • November 6, 2000
    ...infliction of emotional distress where plaintiffs were present at scene of injury-producing event); Marlin v. Bill Rich Constr., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996) (finding that plaintiff is not required to prove physical injury in asserting claim for negligent infliction of emotion......
  • Request a trial to view additional results
63 cases
  • Bias v. Eastern Associated Coal Corp., No. 32778.
    • United States
    • Supreme Court of West Virginia
    • June 8, 2006
    ...Notes: 1. Non-physical, or "mental", injuries caused by non-physical, or "mental", causes. 2. In Marlin v. Bill Rich Construction, Inc., 198 W.Va. 635, 650, 482 S.E.2d 620, 635 (1996), this Court observed that "in 1993, the West Virginia Legislature rejected [Breeden's] compensability of me......
  • Bower v. Westinghouse Elec. Corp., No. 25338.
    • United States
    • Supreme Court of West Virginia
    • July 19, 1999
    ...reflects West Virginia law, an assertion they supported by citing to this Court's recent holding in Marlin v. Bill Rich Constr., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996), where we concluded that a plaintiff is not required to prove a present physical injury in the context of asserting a c......
  • Willis v. Gami Golden Glades, LLC., No. SC04-1929.
    • United States
    • United States State Supreme Court of Florida
    • October 18, 2007
    ...injury or an unreasonable risk of bodily harm, plus either physical manifestation or mental illness); Marlin v. Bill Rich Constr., Inc., 198 W.Va. 635, 482 S.E.2d 620, 637 (1996) (requiring physical injury or a showing "that the claim is not spurious and ... the emotional distress is undoub......
  • Aikens v. Debow, No. 27376.
    • United States
    • Supreme Court of West Virginia
    • November 6, 2000
    ...infliction of emotional distress where plaintiffs were present at scene of injury-producing event); Marlin v. Bill Rich Constr., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996) (finding that plaintiff is not required to prove physical injury in asserting claim for negligent infliction of emotion......
  • Request a trial to view additional results

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