Pasquale v. Ohio Power Co.

• Decision Date: 15 May 1992
• Docket Number: No. 20264,20264
• Court: West Virginia Supreme Court
• Parties: Daphne Colleen PASQUALE, Personal Representative of the Estate of Michael David Pasquale, Plaintiff Below, Appellee, v. OHIO POWER COMPANY, an Ohio Corporation, and Central Operating Company, a West Virginia Corporation, Defendants Below, Appellants, and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio Corporation, Defendant Below, Appellee.

Page 738

418 S.E.2d 738

187 W.Va. 292

Daphne Colleen PASQUALE, Personal Representative of the Estate of Michael David Pasquale, Plaintiff Below, Appellee, v. OHIO POWER COMPANY, an Ohio Corporation, and Central

Operating Company, a West Virginia Corporation,

Defendants Below, Appellants,

and

Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company,

an Ohio Corporation, Defendant Below, Appellee.

No. 20264.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 22, 1992.

Decided May 15, 1992.

[187 W.Va. 295] Syllabus by the Court

1. Comity is a court-created doctrine through which the forum court may give the laws or similar rights accorded by another state effect in the litigation in the forum state. Comity is a flexible doctrine and rests on several principles. One is legal harmony and uniformity among the co-equal states. A second, grounded on essential fairness, is that the rights and expectations of a party who has relied on foreign law should be honored by the forum state. Finally, and perhaps most important, the forum court must ask itself whether these rights are compatible with its own laws and public policy.

2. "Where the right of contribution is initially grounded in common liability in tort, courts have held that a joint tortfeasor employer is immune from a third-party contribution suit because he is initially immune from tort liability to his injured employee by virtue of the workmen's compensation statutory bar of such tort actions." Syllabus Point 6, Sydenstricker v. Unipunch Products, Inc., 169 W.Va. 440, 288 S.E.2d 511 (1982).

3. W.Va.Code, 23-2-1(c) (1975), makes the compensation law of another state the exclusive remedy against the employer for a nonresident employee who is temporarily employed in this state, if such employee is injured in this state and is covered by his or her employer's workers' compensation in the other state.

4. Under the principles of comity, a foreign corporation not covered by West Virginia workers' compensation law, but covered by the compensation law of its home state, temporarily employing an out-of-state resident who is injured in West Virginia, is immune from a suit for contribution by a joint tortfeasor.

5. "One who would defend against tort liability by contending that the injuries were inflicted by an independent contractor has the burden of establishing that he neither controlled nor had the right to control the work, and if there is a conflict in the evidence and there is sufficient evidence to support a finding of the jury, the determination of whether an independent contractor relationship existed is a question for jury determination." Syllabus Point 1, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

6. "The owner or occupier of premises owes to an invitee such as a non-employee workman or an independent contractor the duty of providing him with a reasonably safe place in which to work and has the further duty to exercise ordinary care for the safety of such persons." Syllabus Point 2, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

7. The employer is liable for an injury to an employee of an independent contractor caused by the negligence of the employer.

8. "In order for photographs to come within our gruesome photograph rule established in State v. Rowe, , 259 S.E.2d 26 (1979), there must be an initial finding that they are gruesome." Syllabus Point 6, State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982).

9. "In order to establish an implied contract right by custom and usage or 10. " 'This court will not consider errors predicated upon the abuse of counsel of the privilege of argument, unless it appears that the complaining party asked for and was refused an instruction to the jury to disregard the improper remarks, and duly excepted to such refusal.' McCullough v. Clark, 88 W.Va. 22, 106 S.E. 61, pt. 6, syl." Syllabus Point 1, Black v. Peerless Elite Laundry Co., 113 W.Va. 828, 169 S.E. 447 (1933).

                [187 W.Va. 296] practice, it must be shown by clear and convincing evidence that the practice occurred a sufficient number of times to indicate a regular course of business and under conditions that were substantially the same as the circumstances in the case at issue.  Such a showing is necessary to demonstrate the parties' implied knowledge of and reliance on the custom or practice, an essential element of such a contract."   Syllabus Point 4,Adkins v. Inco Alloys International, Inc., 187 W.Va. 219, 417 S.E.2d 910 (1992)
                

11. Mistrials in civil cases are generally regarded as the most drastic remedy and should be reserved for the most grievous error where prejudice cannot otherwise be removed.

12. "Whether a motion for a mistrial should be sustained or overruled is a matter which rests within the trial court's discretion and the action of the trial court in ruling on such a motion will not be cause for reversal on appeal unless it clearly appears that such discretion has been abused." Syllabus Point 4, Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968).

13. Aside from properly preserving objections and requesting curative rulings from the court, factors to be considered when an excessive verdict is claimed are whether the defendant made any reasonable attempt to ameliorate the damages by cross-examination or by the defendant's own expert witnesses, and whether the defendant made a diligent effort to ensure that the jury was properly and adequately instructed on the damages issue.

14. "Under W.Va.Code, 56-6-31, as amended, prejudgment interest is to be recovered on special or liquidated damages incurred by the time of the trial, whether or not the injured party has by then paid for the same." Syllabus Point 3, in part, Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989).

15. Future wage loss, accruing after the jury verdict, is not a prejudgment loss or special damage under W.Va.Code, 56-6-31 (1981).

Harvey D. Peyton, Calwell, McCormick & Peyton, L.C., Nitro, Ronald R. Morgan, II, Pt. Pleasant, Leo Catsonis, Charleston, for appellee Daphne Colleen Pasquale.

John M. Slack, III, Gale R. Lea, Jackson & Kelly, Charleston, for appellee Gallia Refrigeration, Inc., a/k/a Pasquale Elec. Co.

Timothy M. Miller, R. Clarke VanDervort, Robinson & McElwee, Charleston, for appellants Ohio Power Co. and Central Operating Co.

MILLER, Chief Justice:

Ohio Power Company, an Ohio corporation, and Central Operating Company, a West Virginia corporation (the Power Companies), appeal a final order of the Circuit Court of Mason County, dated November 8, 1990, denying their motion for a new trial and affirming a jury verdict in favor of the plaintiff, Daphne Pasquale. The plaintiff filed a wrongful death action against the Power Companies after her husband, Michael Pasquale, was killed while working for an independent contractor, Gallia Refrigeration, Inc. (Gallia), on the Power Companies' premises. The jury awarded the plaintiff approximately $6,175,000.

The principal errors raised by the defendant Power Companies are: (1) they did not breach their duty to Gallia and its employees to provide a reasonably safe place to work as a matter of law; (2) the trial court erred in dismissing their cross-claim against Gallia based on Gallia's defense of workers' compensation immunity because Gallia did not subscribe to the West Virginia's Workers' Compensation Fund; (3) plaintiff's counsel made improper remarks in closing argument; and (4) the trial court

[187 W.Va. 297] erred in refusing to allow the Power Companies to introduce prior written contracts entered into by them and Gallia which outlined Gallia's safety responsibilities. Other errors include the trial court's refusal to instruct the jury on the independent contractor defense, the admission of a gruesome photograph depicting the decedent's body, and the calculation of prejudgment interest on the decedent's future wage loss. Except for this last assertion, which involves a correctable mathematical calculation, we find no error.

I. FACTS

The Philip Sporn Plant is a coal-fired electric generating plant located in Mason County. It has five generating units, known as Units 1 through 5, which are separately owned by Appalachian Power Company and Ohio Power Company. The entire plant is managed by Central Operating Company.

Although the plant has an in-house maintenance staff, certain maintenance work is performed by independent contractors. One such contractor was Gallia, also known as Pasquale Electric Company, an Ohio corporation owned by Louis Pasquale. When Gallia was hired to perform maintenance work, the respective parties would ordinarily enter into a written contract whereby Gallia agreed to indemnify and hold the Power Companies harmless for any accidents that occurred while Gallia was performing maintenance work on plant premises. These contracts always required Gallia to maintain liability insurance. ¹

On June 26, 1987, the Power Companies and Gallia entered into a written contract under which Gallia was hired to do maintenance work on Unit 5. On or about August 18, 1987, while Gallia was performing the June 26, 1987 contract, a short circuit occurred in an electrical cable that was connected to a boiler feed pump located in Unit No. 2. The Power Companies needed to have this short circuit repaired immediately.

The short-circuited cable carried 2300 volts of electricity and was connected to a boiler feed pump at one end and to a motor control center at the other. These two pieces of equipment were located on the basement level of the plant. The cable, which was approximately 350 feet in length, descended through the concrete floor into a condenser pit. In the condenser pit, the cable, along with other high-voltage cables, was placed on trays that were suspended above the floor of the pit. There is an opening in the basement floor through which the condenser pit is visible.

In preparation for the...