Savilla v. Speedway Superamerica, LLC, No. 33053 (W.Va. 11/15/2006), No. 33053

CourtSupreme Court of West Virginia
Writing for the CourtStarcher
PartiesDIANA MAE SAVILLA, Administratrix of the Estate of Linda Sue Good Kannaird, Plaintiff Below, Appellant, v. SPEEDWAY SUPERAMERICA, LLC, dba Rich Oil Company, a Delaware corporation; CITY OF CHARLESTON, a municipality; CHARLESTON FIRE DEPARTMENT; BRUCE GENTRY; and ROB WARNER, Defendants Below, Appellees, and EUGENIA MOSCHGAT, Intervenor.
Decision Date15 November 2006
Docket NumberNo. 33053

Page 1

DIANA MAE SAVILLA, Administratrix of the Estate of Linda Sue Good Kannaird, Plaintiff Below, Appellant,
v.
SPEEDWAY SUPERAMERICA, LLC, dba Rich Oil Company, a Delaware corporation; CITY OF CHARLESTON, a municipality; CHARLESTON FIRE DEPARTMENT; BRUCE GENTRY; and ROB WARNER, Defendants Below, Appellees, and
EUGENIA MOSCHGAT, Intervenor.
No. 33053
Supreme Court of Appeals of West Virginia, September 2006 Term.
Submitted: October 3, 2006
Filed: November 15, 2006

Appeal from the Circuit Court of Kanawha County, Hon. Paul Zakaib, Jr., Case No. 00-C-974.

REVERSED AND REMANDED.

SYLLABUS BY THE COURT

1. "Administratrix could maintain action to recover for servant's death in consequence of master's deliberate intent to produce death (Code 1931, 23-4-2, 55-7-6)." Syllabus Point 3, Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933).

2. A personal representative who is not one of the statutorily-named beneficiaries of a deliberate intention cause of action authorized by W.Va. Code, 23-4-2(c) [2005] has standing to assert a deliberate intention claim against a decedent's employer on behalf of a person who has such a cause of action in a wrongful death suit filed pursuant to W.Va. Code, 55-7-6 [1992].

3. Pursuant to W.Va. Code, 23-4-2(c) [2005] and W.Va. Code, 55-7-6 [1992], the persons who can potentially recover "deliberate intention" damages from a decedent's employer are the persons specified in W.Va. Code, 23-4-2(c) [2005]: the employee's widow, widower, child, or dependent of the employee.

Margaret L. Workman, Esq., Joseph S. Beeson, Esq., Charleston, West Virginia, Attorney for Appellant.

J. Michael Ranson, Esq., Cynthia M. Ranson, Esq., Speedway America, LLC, Ranson Law Offices dba Rich Oil Company, Charleston, West Virginia, Attorneys for Intervenor.

Keith J. George, Esq., Robinson & McElwee, Charleston, West Virginia, Attorneys for Appellee.

Jeffrey K. Phillips, Esq., Steptoe & Johnson, Charleston, West Virginia, Attorney for Appellee, Charleston Fire Department.

JUSTICE STARCHER delivered the Opinion of the Court.

CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.

JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.

JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the decision of this case.

JUDGE THOMAS C. EVANS, III, sitting by temporary assignment.

STARCHER, J.:


In this case we reverse a circuit court's decision to dismiss a defendant in a wrongful death case, and we remand the case for further proceedings.

I.
Facts & Background

The instant case began with a tragic event. On February 18, 2000, in Kanawha County, West Virginia, Linda Kannaird, age 54, drowned when a rescue boat operated by the City of Charleston overturned in flood waters.

Ms. Kannaird was being evacuated from a convenience store where she worked; the store was operated by the appellee Speedway SuperAmerica ("Speedway"). Ms. Kannaird was not married at the time of her death and had only one child — an adult daughter, Eugenia Moschgat, a resident of North Carolina.

On February 28, 2000, Ms. Moschgat qualified as administratrix of her mother's estate before the Kanawha County Commission. On April 11, 2000, in her capacity as personal representative and administratrix of Ms. Kannaird's estate, Ms. Moschgat filed a lawsuit in the Circuit Court of Kanawha County against the City of Charleston1 and Speedway. The lawsuit alleged that Ms. Kannaird's death was caused by (1) the negligence of City employees; and (2) by conduct by Speedway, Ms. Kannaird's employer, that rose to the level of "deliberate intention" misconduct, so as to remove from Speedway the immunity from suit that is conferred by our workers' compensation laws.2

Subsequently, on or about June 8, 2000, a number of Linda Kannaird's siblings, alleging that they were potential recipients of damages in the suit filed by Ms. Moschgat filed pleadings in connection with that suit seeking to remove (and replace) Ms. Moschgat as the personal representative of Linda Kannaird's estate and as the plaintiff in the lawsuit.3 Siblings are potential beneficiaries under our wrongful death statute, W.Va. Code, 55-7-6 [1992].

On January 8, 2001, following several hearings, the circuit court found that there was hostility between Ms. Moschgat and her late mother's siblings and that Ms. Moschgat had been estranged from her mother for a number of years. The circuit court ordered that Ms. Moschgat be removed as administratrix and personal representative of Ms. Kannaird's estate and as the named plaintiff in the case against the City and Speedway, and that she be replaced as the administratrix and plaintiff by the appellant, Diana Savilla, Linda Kannaird's sister.4

The case then proceeded with discovery; however, it was sidetracked into federal court for nearly two years due to a removal petition filed by Speedway; ultimately the case was returned to the circuit court in August of 2004. There were also amendments to pleadings, cross-claims among defendants, and various dispositive motions — none of which are germane to the issues in the instant appeal.

Meanwhile, apparently in July of 2003, Speedway and Ms. Moschgat, acting independently of Ms. Savilla, entered into an agreement (neither the date nor the text of the agreement are in the record) in which Speedway promised to pay Ms. Moschgat a sum of money for a release of all of Ms. Moschgat's personal claims against Speedway, contingent upon Speedway's being dismissed from the lawsuit.

Speedway thereafter filed and brought on for hearing a motion to dismiss before the circuit court, raising two arguments.

First, Speedway argued that Ms. Savilla, as the personal representative of Linda Kannaird's estate, had no standing to assert any "deliberate intention" claims arising from Ms. Kannaird's death because Ms. Savilla was not one of the specific persons who are named in W.Va. Code, 23-4-2(c) [2005] ("the widow, widower, child or dependent of the employee . . ." see note 2 supra for full text) as potentially having a "deliberate intention" cause of action against a participating employer in the event of an employee's death.

In the alternative, Speedway argued that its agreement with Ms. Moschgat fully satisfied all possible deliberate intention claims against Speedway arising from the death of Ms. Kannaird, because Ms. Moschgat is the only one who could have such a claim under W.Va. Code, 23-4-2(c) [2005], and that Speedway's dismissal was required based on the settlement agreement.

On April 8, 2005, the circuit court dismissed Speedway as a defendant in the lawsuit. The circuit court agreed with Speedway's first argument, concluding that deliberate intention claims on behalf of the persons listed in W.Va. Code, 23-4-2(c) [2005] may not be asserted by the personal representative of a decedent in a wrongful death suit brought by the personal representative, but may be asserted only by those statutorily-named persons themselves.

The circuit court did not address Speedway's alternative argument — that even if Ms. Savilla was a proper party to assert a deliberate intention claim on behalf of another party against Speedway, the contingent settlement by Ms. Moschgat of her claim against Speedway mandated the dismissal of Speedway as a defendant, because none of the other potential beneficiaries of the suit could recover "deliberate intention" damages against Speedway. Ms. Savilla, the named plaintiff and administratrix of Ms. Kannaird's estate, filed the instant appeal, asserting that the circuit court erred in dismissing Speedway as a defendant.

II.
Standard of Review

A trial court's ruling on a motion to dismiss is reviewed de novo. Kopelman & Associates v. Collins, 196 W.Va. 489, 492, 473 S.E.2d 910, 913 (1996).

III.
Discussion
A.

The first issue that we must address is whether anyone other than Ms. Moschgat had or has a potential cause of action against Speedway, Ms. Kannaird's employer, as a result of her death.

As previously noted, W.Va. Code, 23-4-2(c) [2005] specifically provides that the "widow, widower, child or dependent" of an employee has a cause of action against an employer as a result of an employee's death arising from an employer's alleged "deliberate intention" misconduct. Ms. Moschgat, as Ms. Kannaird's daughter, is the only person identified by either party who fits within this definition.

"[T]he familiar maxim expressio unius est exclusio alterius [means] the express mention of one thing implies the exclusion of another [.]" Syllabus Point 3, in part, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984). Applying this principle in the instant case, W.Va. Code, 23-4-2(c)'s express mention of certain persons who have a cause of action against an employer for deliberate intention wrongful death damages implies the exclusion of other persons who are not mentioned in the statute.

Despite this language, Ms. Savilla argues that siblings like herself, who are not identified specifically in 23-4-2(c) [2005] (and who were not financially dependent on the decedent),5 also have a potential cause of action against an employer for deliberate intention wrongful death damages; because an award of damages to such persons is authorized by the wrongful death statute, W.Va. Code, 55-7-6 [1992]:

the damages shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution after making provision for those expenditures, if any, specified in subdivision (2), subsection (c) of this section. [emphasis added].6

It is axiomatic that these two statutes must be read in a fashion to give effect to all of their terms,...

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