State ex rel. Abraham Linc. Corp. v. Bedell, 31538.

Citation602 S.E.2d 542,216 W.Va. 99
Decision Date01 July 2004
Docket NumberNo. 31538.,31538.
PartiesSTATE of West Virginia ex rel. ABRAHAM LINC CORPORATION, Petitioner v. The Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County; and John Edens, Respondents
CourtSupreme Court of West Virginia
Concurring Opinion of Justice Davis July 2, 2004.

Concurring Opinion of Justice Starcher July 15, 2004.

Daniel C. Cooper, Christopher B. Denson, Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for the Petitioner.

Frank P. Bush, Jr., Frank P. Bush, Jr., & Associates, Elkins, West Virginia, Attorney for the Respondent, John Edens.


This is an original proceeding in which the Petitioner, Abraham Linc Corporation (hereinafter "Petitioner"), seeks a writ of prohibition against the Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, preventing the respondent judge from conducting a trial on Count II of the Petitioner's complaint and submitting the issue of the Petitioner's workers' compensation coverage to a jury. Upon thorough review of the matter, we grant the requested writ.

I. Factual and Procedural History

The Petitioner operates a wholesale carpet business in Bridgeport, West Virginia. On April 25, 2001, Petitioner's employee, Mr. John Edens, sustained injuries when he was caught between rollers of a carpet cutting and wrapping machine. A co-worker, Mr. Don Johnson, had pressed an incorrect switch causing the rollers to spin while Mr. Edens was standing on the machine. Mr. Edens thereafter filed a personal injury action in the lower court against the Petitioner. Count One of the complaint alleged various safety hazards and asserted a deliberate intent cause of action against the Petitioner, pursuant to West Virginia Code § 23-4-2(c)(2)(ii) (1994) (Repl.Vol.2002).1 Count Two of the complaint asserted that the Petitioner was in default under the West Virginia Workers' Compensation Act and had consequently forfeited the statutory immunity to a civil action for negligence. Specifically, Mr. Edens maintained that the Petitioner was in default because it had not included the wages of Mr. Johnson in the determination of premiums payable under West Virginia Code § 23-2-5(a) (1999) (Repl.Vol.2002).2 As a result of that alleged failure, Mr. Edens maintained that the Petitioner could be sued in a common law negligence action since the alleged default caused the Petitioner to lose its statutory immunity.3

The Petitioner filed a motion for summary judgment, contending that Mr. Johnson's wages did not have to be included in the computation of workers' compensation premiums since Mr. Johnson served as an independent contractor rather than an employee of the Petitioner. Further, the Petitioner asserted that it possesses a Certificate of Coverage, valid from April 1, 2001, through August 31, 2001, issued by the Workers' Compensation Commission4 and certifying that the Petitioner's premium account was in good standing at the time of Mr. Edens' injury. In Mr. Edens' response to the Petitioner's motion for summary judgment, he asserted the Mr. Johnson's wages had to be included because he was an employee rather than an independent contractor, that failure to so include caused a default, and that the Petitioner had lost its immunity to a common law negligence action. The lower court denied the Petitioner's motion for summary judgment and ruled that the issue of default and the proper classification of Mr. Johnson as an employee or an independent contractor should proceed to a jury.5

II. Standard for Determining Issuance of Writ of Prohibition

Syllabus point one of State ex rel. UMWA International Union v. Maynard, 176 W.Va. 131, 342 S.E.2d 96 (1985), provides: "A writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction exceeds its legitimate powers." See W.Va.Code § 53-1-1 (1923) (Repl.Vol.2000). In syllabus point two of State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977), this Court explained that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code, 53-1-1."6

Syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), explains the manner in which a request for a writ of prohibition should be addressed, as follows:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
III. Discussion

Mr. Edens contends that the lower court was correct in its decision that the issue of the Petitioner's workers' compensation coverage based upon an alleged erroneous classification of an independent contractor should be submitted to the jury for resolution. The Petitioner maintains, however, that the Workers' Compensation Commission's issuance of a Certificate of Coverage and the absence of any finding of delinquency or default by the Commissioner renders such submission unnecessary because there are no material facts in dispute regarding the Petitioner's workers' compensation coverage status.

The principles underlying the West Virginia Workers' Compensation system are well-established. "The Workmen's Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system." Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 700, 246 S.E.2d 907, 911 (1978), superseded by statute as stated in Handley v. Union Carbide Corp., 804 F.2d 265, 269 (4th Cir.1986)

. "The benefits of this system accrue both to the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who is assured prompt payment of benefits." Meadows v. Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 638 (1983); see also Persinger v. Peabody Coal Co., 196 W.Va. 707, 713, 474 S.E.2d 887, 893 (1996).7

A. The Statutory Procedure

West Virginia Code § 23-2-6 (1991) (Repl.Vol.2002)8 provides exemption from common law tort liability to contributing employers, as follows:

Any employer subject to this chapter who shall subscribe and pay into the workers' compensation fund the premiums provided by this chapter or who shall elect to make direct payments of compensation as herein provided shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which such employer shall not be in default in the payment of such premiums or direct payments and shall have complied fully with all other provisions of this chapter. The continuation in the service of such employer shall be considered a waiver by the employee and by the parents of any minor employee of the right of action as aforesaid, which the employee or his or her parents would otherwise have: Provided, That in case of employers not required by this chapter to subscribe and pay premiums into the workers' compensation fund, the injured employee has remained in such employer's service with notice that his employer has elected to pay into the workers' compensation fund the premiums provided by this chapter, or has elected to make direct payments as aforesaid.

W.Va.Code § 23-2-6 (emphasis supplied). As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 510 S.E.2d 486 (1998), "`[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirements of the Act, the employer is entitled to immunity for any injury occurring to an employee and shall not be liable to respond in damages at common law or by statute.' W.Va.Code, 23-2-6 [1991]." 203 W.Va. at 659, 510 S.E.2d at 493. Footnote eleven of Frazier explained: "This statute is also known as the `exclusivity' provision, as it makes workers' compensation benefits the exclusive remedy for personal injuries sustained by an employee injured in the course of and resulting from his or her covered employment." Id. at 659 n. 11, 510 S.E.2d at 493 n. 11.

The immunity provided by § 23-2-6 is not easily forfeited. As the District Court for the Southern District of West Virginia explained in Smith v. Monsanto Co., 822 F.Supp. 327 (S.D.W.Va.1992), "[u]nder the Act, an employer who is otherwise entitled to immunity under § 23-2-6 may lose immunity in only one of two ways: (1) by defaulting in payments required by the Act or otherwise failing to comply with the provisions of the Act, or (2) by deliberately intending to produce injury or death to the employee." 822 F.Supp. at 330 (citation omitted).

Specifically, West Virginia Code § 23-2-8 (1991) (Repl.Vol.2002), provides that an employer will lose the statutory immunity of West Virginia Code § 23-2-6 if it...

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