Roberts v. Consolidation Coal Co.

Decision Date19 July 2000
Docket NumberNo. 26850.,26850.
Citation208 W. Va. 218,539 S.E.2d 478
CourtWest Virginia Supreme Court
PartiesSteven M. ROBERTS; Deborah S. Roberts, His Wife; and Jennifer M. Roberts and Steven Michael Roberts, Jr., His Children, Plaintiffs Below, Appellants, v. CONSOLIDATION COAL COMPANY, A Delaware Corporation; and the Hemscheidt Corporation, A New York Corporation; and John Does One Through Ten, Defendants Below, Appellees.

Crystal Hawkins Castleberry, Morgantown, West Virginia, Gregory A. Gellner, Gellner Law Offices, Wheeling, West Virginia, Attorneys for the Appellant, Steven M. Roberts.

Robert M. Steptoe, Jr., Amy M. Smith, Steptoe & Johnson, Clarksburg, West Virginia, Robert M. Vukas, Senior Counsel, Consol, Inc., Pittsburgh, Pennsylvania, Attorneys for the Appellee, Consolidation Coal Company.

R. Dean Hartley, James M. O'Brien, Hartley & O'Brien, Wheeling, West Virginia, Counsel for Amicus Curiae, West Virginia Trial Lawyers Association.

John L. McClaugherty, Alvin L. Emch, Mychal S. Schulz, Jackson & Kelly, Charleston, West Virginia, Counsel for Amicus Curiae, The West Virginia Chamber of Commerce.

Thomas Patrick Maroney, Charleston, West Virginia, Counsel for Amicus Curiae, West Virginia State Labor Federation, AFL-CIO. DAVIS, Justice:

The plaintiff below and appellant herein, Steven M. Roberts [hereinafter "Roberts"], appeals the September 16, 1998, judgment order of the Circuit Court of Monongalia County which upheld a jury verdict returned against the defendant below and appellee herein, Consolidation Coal Company [hereinafter "Consol"]. During the appellate proceedings in this Court, Consol moved to dismiss Roberts' appeal, alleging that his petition for appeal was not timely filed. Having determined that Roberts' appeal was, in fact, timely filed, as will be explained more fully in Section III.A., infra, we deny Consol's motion. Insofar as Roberts' appeal is concerned, he has assigned numerous errors for our consideration, namely that the circuit court erred (1) in permitting Consol to assert a contributory negligence defense to the deliberate intention action he filed pursuant to W. Va.Code §§ 23-4-2(b)-(c) (1991) (Cum.Supp.1991); (2) by failing to obtain a final ruling from the discovery commissioner to whom certain discovery issues had been assigned for resolution; (3) in not bifurcating the liability and damages portions of the trial from the determination of the workers' compensation offset; (4) by admitting some, and excluding other, various evidentiary matters; and (5) by upholding the jury's verdict despite insufficient evidence therefor and an inadequate damages award thereon. Upon a review of the parties' arguments, the pertinent authorities, and the record submitted for appellate consideration, we affirm, in part, and reverse, in part, the judgment of the Circuit Court of Monongalia County and remand this case for a new trial. In summary, we conclude that neither a defense of contributory negligence nor a defense of deliberate intention is available to an employer defending against a deliberate intention cause of action. We further find that the defense of self-inflicted injury, set forth in W. Va.Code § 23-4-2(a) (1991) (Cum.Supp.1991) and available to employers defending against an employee's deliberate intention action, contemplates an injury that has been intentionally self-inflicted by the employee.


The evidence presented to the jury suggests the following facts. On March 16, 1994, Roberts was injured in a mining accident while working at Consol's Blacksville No. 2 mine. The accident occurred when the longwall mining shield Roberts was operating, which had been manufactured by The Hemscheidt Corporation [hereinafter "Hemscheidt"], stopped functioning. After attempting to restart the shield electronically, Roberts tried to correct the problem manually. Ultimately, the equipment began functioning, causing Roberts to be crushed by the ten ton shield. As a result of this accident, Roberts sustained severe injuries to his neck and back, which have required his spinal column to be reinforced by numerous steel rods. Following extensive rehabilitation, Roberts has partially regained his ability to walk, but he requires the assistance of a walker. Nevertheless, he is physically unable to return to his former employment.2

On March 13, 1996, Roberts, his wife, and their two children filed suit against Consol and Hemscheidt in the Circuit Court of Monongalia County. In this action, the plaintiffs charged Consol with deliberate intention, in accordance with W. Va.Code §§ 23-4-2(b)-(c) (1991) (Cum.Supp.1991), and alleged, against Hemscheidt, that the mining shield in question was a defective product. During the course of litigation, Roberts' wife and children were dismissed from the suit. In addition, Hemscheidt settled with Roberts shortly before the trial of this case, which resulted in Hemscheidt's subsequent dismissal, as well.

Following a nine-day jury trial of this matter, the jury found Consol to be 51% liable and Roberts to be 49% at fault for the March 16, 1994, accident and Roberts' resultant injuries. The jury also awarded Roberts damages in the amount of $420,500.00.3 The portion of the damages recoverable by Roberts, i.e., 49%, was then weighed against the monies he had received from his settlement with Hemscheidt and his Workers' Compensation benefits. As a result of these set-offs, Roberts received no monetary recovery from Consol. The circuit court upheld the jury's verdict and damages award by a judgment order, which was entered on September 16, 1998.

Thereafter, Roberts and Consol both filed post-trial motions.4 Upon the circuit court's denial of Roberts' motion for a new trial and the court's extension of the applicable appeal period, Roberts appeals to this Court.


Procedurally, this case comes to this Court for review from a jury verdict entered by the Circuit Court of Monongalia County.5 Typically, when a case has been determined by a jury, the questions of fact resolved by the jury will be accorded great deference.

"`An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421[, 191 S.E. 550 (1937)]." Syllabus point 1, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).

Syl. pt. 1, Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998),cert. denied, 525 U.S. 1142, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999). See also Syl. pt. 4, Stenger v. Hope Natural Gas Co., 141 W.Va. 347, 90 S.E.2d 261 (1955) ("On appellate review of a case wherein a jury verdict has been rendered, it is the duty of the reviewing court to treat the evidence as being favorable to the verdict `... and give it the strongest probative force of which it will admit. So long as there is nothing so inherently or otherwise manifestly improbable in the character of the evidence as to justify the court in ignoring it, ...'. Roberts v. Toney, 100 W.Va. 688, 693[, 131 S.E. 552, 553 (1926) ]."). Accordingly,

[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.

Syl. pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736.

By contrast, we accord a plenary review to a trial court's decision of questions of law: "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). See also Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997) ("In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." (emphasis added)). With these standards in mind, we proceed to consider the parties' arguments on appeal.


The parties herein have presented two separate and distinct issues for our consideration. First, Roberts appeals the circuit court's order entering the jury's verdict and complains that said verdict is fraught with errors, including the circuit court's allowance of a contributory negligence defense to his deliberate intention action against Consol. Second, Consol moves to dismiss Roberts' appeal, complaining that he did not timely file his appeal with this Court. As the resolution of the motion to dismiss could be dispositive of this proceeding, we will first consider Consol's motion and then, if the circumstances so warrant, proceed to determine the merits of Roberts' assignments of error.6

A. Motion to Dismiss

Pursuant to Rule 18 of the West Virginia Rules of Appellate Procedure, a party may move to dismiss an appeal pending in this Court:

At any time after the granting of an appeal, any party to the action appealed from may move the Supreme Court to dismiss the appeal on any of the following grounds: (1) failure to properly perfect the appeal; (2) failure to obey an order of the Court; (3) failure to comply with these rules; (4) lack of an appealable order, ruling, or judgment; or (5) lack of jurisdiction....

W. Va. R.App. P. 18(a). Relying on this authority, Consol urges this Court to dismiss Roberts' appeal based upon his failure to comply with the requirements of W. Va. R. Civ....

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