Mooney v. Eastern Associated Coal Corp.

• Citation: 174 W.Va. 350,326 S.E.2d 427
• Decision Date: 21 December 1984
• Docket Number: Nos. 15931,15932,s. 15931
• Parties: Sandra MOONEY, Admx., etc. v. EASTERN ASSOCIATED COAL CORP. Sandra MOONEY, Admx., etc. v. EASTERN ASSOCIATED COAL CORP.
• Court: Supreme Court of West Virginia

Page 427

326 S.E.2d 427

174 W.Va. 350

Sandra MOONEY, Admx., etc. v. EASTERN ASSOCIATED COAL CORP.

Sandra MOONEY, Admx., etc. v. EASTERN ASSOCIATED COAL CORP.

Nos. 15931, 15932.

Supreme Court of Appeals of

West Virginia.

Dec. 21, 1984.

Dissenting Opinion Feb. 6, 1985.

Syllabus by the Court

1. In a civil action brought under the deliberate intent provisions of W.Va.Code, 23-4-2 [1969], evidence of the value of compensation benefits must be submitted to the jury with instructions that any verdict for the plaintiff shall be for damages in excess of such benefits.

2. Matters that can be proved with reasonable certainty by accepted scientific evidence or expert testimony, such as proof of life expectancy by reliable mortality tables, may be considered in computing the value of a compensation award for purposes of establishing the basic amount from which excess damages may be calculated under W.Va.Code, 23-4-2 [1969].

3. A verdict in a wrongful death action may include damages for both pecuniary and non-pecuniary losses. While an award of damages for pecuniary loss, such as loss of future income, should be calculated to present value, non-pecuniary damages, such as those awarded for mental anguish, should not.

R. Rodney Jackson and Rebecca Baitty, DiTrapano & Jackson, Charleston, for appellant.

H.G. Shaffer, Jr. and Charles S. Piccirillo, Shaffer & Shaffer, Madison, for appellee.

HARSHBARGER, Justice:

These are appeals of a final judgment of the Circuit Court of Boone County in a civil suit involving the deliberate intent provisions of our former Workers' Compensation Act, W.Va.Code, 23-4-2 [1969], ¹ that we discussed at length in Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). Upon a jury verdict of $850,000 for Sandra K. Mooney and her daughter, the court awarded $35,062.00 damages, plus costs. Eastern Associated Coal Corporation claims that there was insufficient evidence of deliberate intent to support any verdict, and Mrs. Mooney pleads that the trial court erroneously reduced the jury award by the value of workers' compensation benefits to which she and her daughter are entitled, and wrongly calculated those benefits.

On February 2, 1977, Roger Dale Mooney, a twenty-eight-year-old coal miner employed by Eastern, died of injuries he sustained in a roof fall two days before. His widow and their seven-year-old daughter, Melissa, were awarded workmen's compensation dependents' death benefits per W.Va.Code, 23-4-10.

In her civil suit for compensatory and punitive damages for Eastern's willful, wanton and reckless misconduct in directing her husband to work on premises it knew were extremely dangerous and violated federal and state safety standards, causing his death, the jury was not permitted to hear evidence about worker's compensation benefits. It returned a verdict against Eastern specifying that $350,000 was compensatory damages for Mrs. Mooney and $500,000 was compensatory damages for Melissa, but awarding no punitive damages.

Thereafter, the trial judge took evidence to determine whether to reduce the jury award by the amount of the Mooneys' compensation benefits. Both parties presented experts to testify about the present value of future benefits.

W.Va.Code, 23-4-2 provides, in pertinent part:

If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have 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. (Emphasis supplied.)

I.

In the Syllabus of Cline v. Joy Mfg. Co., W.Va. 310 S.E.2d 835 (1983), we stated the burden of proof a plaintiff carries in a Mandolidis action:

Under Mandolidis v. Elkins Industries, Inc., W.Va., 246 S.E.2d 907 (1978), it is essential, in order for an injured employee to recover, that the employer's misconduct must be of an intentional or wilful, wanton and reckless character, that the employer must have knowledge and appreciation of the high degree of risk of physical harm to another created by such misconduct, and, of course, that the employer's action must be the proximate cause of the injury.

Acts that are simply negligent do not meet this test. Id.

Here, it was admitted that the roof in the section of the mine where Mooney was killed was in an extremely dangerous and hazardous condition, that there had been roof falls there both before and after the fall that killed him, including one a few days before, and that Eastern had received a number of citations for federal mine safety standards violations in that section. Most of the evidence related to measures taken by Eastern and its supervising employees to correct the safety violations and to control the condition of the roof up to the day of the fall. The principal issue was whether Eastern's actions were so inadequate as to constitute wilful, wanton and reckless misconduct.

Our review of the voluminous trial transcript supports our conclusion that reasonable minds could differ about whether the evidence warranted a finding of deliberate intent to produce injury or death, and that the issue was properly submitted to a jury. See Weirton Savings and Loan Co. v. Cortez, 157 W.Va. 691, 203 S.E.2d 468 (1974). Accordingly, we will not reverse the jury's verdict on liability.

II.

Mrs. Mooney contends that Eastern could not offset workers' compensation benefits against her and her child's damages; or alternatively, that the amount of any offset was a jury question.

The plain language of W.Va.Code, 23-4-2 evinces an intent that damages in a Mandolidis-type suit are "for excess damages" above those provided by compensation.

The statute is silent, however, about how this intent is implemented mechanically at trial. These parties have assumed that the statute contemplates an offset in mitigation of damages in the nature of a proceeding for remittitur, to be decided by the trial court after the return of the jury's verdict. This approach has been taken by the only jurisdiction that appears to have decided the question. In Bibby v. Hillstrom, 260 Or. 367, 490 P.2d 161 (1971), the Supreme Court of Oregon concluded that a provision of that state's workmen's compensation law virtually identical to the above-quoted portion of W.Va.Code, 23-4-2, ² required submission of any claim of offset for compensation benefits to the trial court in supplemental proceedings after jury trial on liability and the amount of the plaintiff's total damages. The court concluded that introduction of any evidence about compensation benefits during the jury trial would be highly prejudicial to the plaintiff, since "[j]urors have humane instincts and ordinarily do not like to penalize persons for their acts, even intentional ones, when the party injured by such acts has another means of being reimbursed which will not immediately cost any individual anything." 260 Or. at 370, 490 P.2d at 162. See also Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934).

This interpretation cannot be sustained against the plain language of W.Va.Code, 23-4-2 that provides a "cause of action ... for any excess of damages over the amount" of the plaintiff's compensation award. Implicit is a requirement that a fact finder know what the compensation award will be.

Assessment of damages is the jury's job. See, e.g., Kesner v. Trenton, 158 W.Va. 997, 216 S.E.2d 880 (1975); Campbell v. Campbell, 146 W.Va. 1002, 124 S.E.2d 345 (1962); Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); Legg v. Jones, 126 W.Va. 757, 30 S.E.2d 76 (1944). Unlike other instances in which the method of adjusting damages has been left to the trial court or the parties, see Groves v. Compton, W.Va., 280 S.E.2d 708 (1981); Butler v. Smith's Transfer Corp., 147 W.Va. 402, 128 S.E.2d 32 (1962), in a Mandolidis action, evidence of the value of compensation benefits must be submitted to the jury with instructions that any verdict for the plaintiff shall be for damages in excess of such benefits.

Generally compensation benefits will be sums certain, and only when there are awards of death benefits and life awards extending indefinitely will a jury need to decide them to arrive at its verdict for excess damages. Juries are called upon to value future damages everyday. See, e.g., Turner v. Heston, W.Va., 303 S.E.2d 718 (1983); Flannery v. United States, W.Va. 297 S.E.2d 433 (1982); Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). There is no reason why they cannot competently determine future compensation benefits for purposes of finding damages for plaintiffs' injuries exceeding those amounts.

III.

We should provide guidance about how the value of dependent's death benefits may be proved. ³ The principal controversy here is about the way the aggregate value of compensation benefits payable in the future should be computed. Mrs. Mooney contends that the court based its calculations on such speculative factors as the assumption that she would remain eligible to receive death benefits throughout her projected lifetime, ⁴ that the state average wage would increase at a constant per annum percentage rate throughout that period, and that she would at some point in the future become eligible to receive benefits from the disabled worker's relief fund. ⁵

Matters that can be proved with reasonable certainty by accepted scientific evidence or expert testimony, such as proof of life expectancy by reliable mortality tables or proof of expectancy of remarriage by reliable evidence, may be considered in computing the value of a compensation award for purposes of establishing the basic amount from which damages may be calculated under W.Va.Code, 23-4-2. And while there may be competent and reliable evidence upon which economic trends may be predicted, the proof here...