Master Mech. Insulation, Inc. v. Simmons

• Decision Date: 21 November 2013
• Docket Number: No. 12–1206.,12–1206.
• Citation: 232 W.Va. 581,753 S.E.2d 79
• Parties: MASTER MECHANICAL INSULATION, INC., Defendant Below, Petitioner v. Richard SIMMONS, Plaintiff Below, Respondent.
• Court: West Virginia Supreme Court

232 W.Va. 581

753 S.E.2d 79

MASTER MECHANICAL INSULATION, INC., Defendant Below, Petitioner

v.Richard SIMMONS, Plaintiff Below, Respondent.

No. 12–1206.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 1, 2013.

Decided Nov. 6, 2013.

Dissenting Opinion of Justice Davis

Filed Nov. 21, 2013.

Concurring and Dissenting Opinion of Chief Justice Benjamin

Dec. 27, 2013.

Syllabus by the Court

1. “The appellate standard 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).

2. The language set forth in West Virginia Code § 23–4–2(f) (2005), which addresses the implementation of statutory amendments enacted to West Virginia Code § 23–4–2 during the 2005 session of the Legislature, pertains to “deliberate intent” cases in which the injuries occurred after July 1, 2005, and also to actions that are filed on or after July 1, 2005.

3. “When an employee asserts a deliberate intention cause of action against his/her employer, pursuant to W.Va.Code §§ 23–4–2(b)–(c) (1991) (Cum.Supp.1991), the employer may not assert the employee's contributory negligence as a defense to such action.” Syl. Pt. 8, Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000).

4. An employer in a “deliberate intent” action brought pursuant to West Virginia Code § 23–4–2(d)(2)(ii) (2010) may introduce evidence that is relevant to the issues of whether an employee's conduct created a specific unsafe working condition; whether the employer had actual knowledge of that alleged specific unsafe working condition; and whether the injuries at issue were the proximate result of that specific unsafe working condition.Robert H. Sweeeney, Jr., Esq., Nathanial A. Kuratomi, Esq., Jenkins Fenstermaker PLLC, Huntington, WV, for Petitioner.

J. Michael Ranson, Esq., George Morrone III, Esq., Ranson Law Offices, G. Patrick Jacobs, Esq., Jacobs Law Offices, Charleston, WV, for Respondent.

LOUGHRY, Justice:

By order entered on October 16, 2012, the Circuit Court of Cabell County certified three questions to this Court that pertain to the filing of a statutory claim asserting deliberate intention ¹ by the respondent Richard Simmons. The first question involves an issue of statutory interpretation; the second query seeks clarification regarding the evidentiary effect of Roberts v. Consolidation Coal Co.,² and the third inquiry pertains to the evidentiary effect of a ruling that Mr. Simmons is eligible for workers' compensation benefits. We will answer each of the certified questions in turn.

I. Factual and Procedural Background

The facts of this case, taken from the trial court's order, are largely undisputed. Mr. Simmons was injured on April 9, 2004, in Portsmouth, Ohio, while engaged in certain activities at an apartment complex that was being demolished by the petitioner Master Mechanical Insulation, Inc. (“Master Mechanical”). Master Mechanical had a contract to perform asbestos abatement activities at the site. As a member of the Asbestos Worker's Union Local 207, Mr. Simmons was employed periodically by Master Mechanical. Prior to the date of the injury at issue, Mr. Simmons had last worked at this site on April 6, 2004.

On Thursday, April 8, 2004, after having completed a forty-hour work week, Mike Plants,³ a supervisor for Master Mechanical, telephoned the chief supervisor, Richard Meckstroth, to discuss additional work in need of completion that week. During that conversation, Mr. Plants told Mr. Meckstroth that since two workers ⁴ were being sent to Portsmouth the next day to prepare for the following week's work, he would travel to the site to confirm that everything was in order.⁵ When the telephone conversation ended, Mr. Simmons asked Mr. Plants if he could ride with him to the Portsmouth job site.

After Mr. Simmons and Mr. Plants arrived at the job site on Friday, April 9, 2004, Mr. Simmons helped unload supplies. Neither Mr. Simmons nor Mr. Plants were paid for any work they performed at the Portsmouth job site on that date. ⁶ The two Master Mechanical employees who were assigned to work at the Portsmouth job site on April 9, 2004, were Joe Plants and Eddie Borden. At some point, Mike Plants had a discussion with Joe Plants, Eddie Borden, and Richard Simmons. Mike Plants told Joe Plants to remove a decontamination unit that was in Building B of the work site and relocate it in Building C.

After Mike Plants instructed Joe Plants to retrieve the decontamination unit located in Building B, Mr. Simmons accompanied Joe Plants to Building B. The unit was located on the second floor balcony, which was in excess of ten feet off the ground. The railings on the balcony had been removed for purposes of the work at issue. Mr. Simmons went to the second floor of the building to remove the decontamination unit while Mr. Plants remained on the ground level. The plan was for Mr. Simmons to push the unit over the edge of the second floor.⁷ In the process of pushing the unit, Mr. Simmons fell off the edge of the balcony and suffered injuries as a result of the fall.

Mr. Simmons filed a workers' compensation claim for his injuries and the claim was denied. The denial of benefits was upheld by the Office of Judges and the Board of Review. On September 19, 2008, this Court found that the injuries sustained by Mr. Simmons were compensable under the West Virginia Workers' Compensation Act. Upon this finding of compensability, Mr. Simmons amended his previously-filed negligence action and asserted a deliberate intent claim against Master Mechanical.⁸

By order entered on October 16, 2012, the circuit court certified the following questions:

1. Is Simmons' claim against Master Mechanical governed by the 2005 amendment to the deliberate intent statute, W.Va.Code § 23–4–2(d)(2)(ii), pursuant to Roney v. Gencorp, 431 F.Supp.2d 622 (S.D.W.Va.2006) and Corley v. Eastern Assoc. Coal Corp. , 2009 U.S. Dist. LEXIS 22080 (N.D.W.Va.2009)?

Circuit Court's Answer: Yes.

2. In light of the Supreme Court of Appeals' decision in Roberts v. Consolidation Coal Co., 539 S.E.2d 478 ([]2000) and the facts as set forth above, is an employer prohibited from introducing evidence or testimony, or arguing that an employee's conduct in the performance of the work for the employer was the proximate cause of the plaintiff's injury?

Circuit Court's Answer: Yes.

3. In light of the Supreme Court's ruling of September 19, 2008 that Simmons' injury was compensable under the West Virginia Worker's Compensation Act, is Master Mechanical precluded from arguing that Simmons was at the site of his own volition, and voluntarily agreed to remove the decontamination unit from the second floor of Building B?

Circuit Court's Answer: Yes.

II. Standard of Review

That our review is plenary is well-established. See State v. Bostic, 229 W.Va. 513, 518, 729 S.E.2d 835, 840 (2012). In syllabus point one of Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), we held: “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” We proceed to determine whether the circuit court committed error by answering each of the certified questions in the affirmative.

III. Discussion

A. Applicability of 2005 Amendments

During the 2005 West Virginia legislative session, certain amendments were enacted to the “deliberate intent” statute. See 2005 W.Va. Acts, ch. 248 (eff. July 1, 2005). Included in the statutory changes was language by which the requisite showing of an employer's “subjective realization” of an unsafe working condition was altered to require evidence of the employer's “actual knowledge” of an alleged unsafe working condition. SeeW.Va.Code § 23–4–2(d)(2)(ii)(B) (2005). The Legislature expressly provided that the 2005 amendments applied to “all injuries occurring and all actions filed on or after the first day of July, Two Thousand Five.” Id. at § 23–4–2(f). Seeking to come within the pre–2005 amendment standards, Mr. Simmons argues that the Legislature intended that the new language would be applied prospectively and only to those cases where both the injury and the filing of the civil action occur after July 1, 2005.

In support of his position, Mr. Simmons suggests that the use of the term “and” indicates that the two specified occurrences—“injuries occurring” and “actions filed”—must coexist to invoke the provisions of the amended statute. W.Va.Code § 23–4–2(f). As the injury at issue occurred prior to July 1, 2005, Mr. Simmons argues that the 2005 amendments are not applicable to his case. Relying on the statutory maxim that every word chosen must be accorded specific meaning, he maintains that the circuit court erred in deciding that either the injury or the filing of the action could independently trigger the application of the 2005 amendments. See State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 698, 143 S.E.2d 535, 551 (1965) (“A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of a statute.”).

To illustrate his point, Mr. Simmons refers to a decision of this Court in which we addressed the significance of the inclusion of the term “and” within another workers' compensation statute. In Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 29 (1965), we discussed the burden imposed on a workers' compensation claimant to prove that he/she sustained an injury both in the course of and resulting from his/her employment. As the Court explained, “[t]he two phrases, ‘in the course of’ and ‘resulting from’ are not synonymous and both elements must concur in order to make a claim compensable.” Id. at 281, 145 S.E.2d at 32. Given the unmistakable emphasis in Emmel on the conjunctive nature of the term “and,” Mr. Simmons posits that the statutory language at issue in this case should be similarly applied in the...