Wetzel v. Employers Service Corp. of Wv

Decision Date08 November 2007
Docket NumberNo. 33337.,33337.
Citation656 S.E.2d 55
CourtWest Virginia Supreme Court
PartiesMary H. WETZEL, Individually and as Executrix of the Estate of Robert H. Wetzel, Deceased, Appellant v. EMPLOYERS SERVICE CORPORATION OF WEST VIRGINIA, Appellee.
Dissenting Opinion of Justice Starcher November 9, 2007.

Concurring Opinion of Justice Maynard December 5, 2007.

Syllabus by the Court

1. "W. Va.Code, 23-2-6a [1949] extends the employer's immunity from liability set forth in W. Va.Code, 23-2-6 [2003] to the employer's officer, manager, agent, representative or employee when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention." Syllabus point 4, Henderson v. Meredith Lumber Co., Inc., 190 W.Va. 292, 438 S.E.2d 324 (1993).

2. "Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use." Syllabus point 4, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars of the United States, 144 W.Va. 137, 107 S.E.2d 353 (1959).

3. "An agent in the restricted and proper sense is a representative of his principal in business or contractual relations with third persons[.]" Syllabus point 3, in part, State ex rel. Key v. Bond, 94 W.Va. 255, 118 S.E. 276 (1923).

4. "The statute creating a legislative standard for loss of employer immunity from civil liability for work-related injury to employees found in W. Va.Code Sec. 23-4-2 [2005] essentially sets forth two separate and distinct methods of proving `deliberate intention.'" Syllabus point 1, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).

5. "To properly plead a prima facie case under W. Va.Code § 23-4-2(c)(2)(I) [2005], the statute requires an employee set out deliberate intention allegations. Under the statute, deliberate intention allegations may only be satisfied where it is alleged an employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury." Syllabus point 9, Tolliver v. Kroger Co., 201 W.Va. 509, 498 S.E.2d 702 (1997).

6. "To establish `deliberate intention' in an action under W. Va.Code § 23-4-2(c)(2)(ii) [2005], a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements." Syllabus point 2, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).

7. "The Unfair Trade Practices Act, W. Va.Code §§ 33-11-1 to 10, and the tort of bad faith apply only to those persons or entities and their agents who are engaged in the business of insurance." Syllabus point 2, Hawkins v. Ford Motor Co., 211 W.Va. 487, 566 S.E.2d 624 (2002).

Christopher J. Regan, James B. Stoneking, Bordas & Bordas, Wheeling, WV, for Appellant.

Thomas V. Flaherty, Tammy R. Harvey, Flaherty, Sensabaugh & Bonasso, Charleston, WV, for Appellee.

PER CURIAM:

Mary H. Wetzel (hereinafter "Mrs. Wetzel"), appellant/plaintiff below, individually and as executrix of the estate of her deceased husband Robert H. Wetzel, appeals from an order of the Circuit Court of Marshall County granting summary judgment in favor of Employers Service Corporation of West Virginia, appellee/defendant below (hereinafter "ESC"). In this proceeding, Mrs. Wetzel contends that the circuit court committed error in finding that (1) the workers' compensation statutes granted ESC immunity from liability, and (2) ESC was not in the business of insurance for purposes of her statutory bad faith claim. After a thorough review of the briefs and record, and having heard the arguments of the parties, we affirm the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

The decedent, Mr. Wetzel, was employed as a truck driver for Chemical Leaman Tank Lines (hereinafter "Chemical Leaman") from 1983 until his death in 1995. During the course of his employment, Mr. Wetzel was exposed to a chemical called Toluene Diisocyanate (hereinafter "TDI"). As a result of the exposure to TDI, Mr. Wetzel developed pulmonary complications and filed a workers' compensation claim in 1992. The Workers' Compensation Commissioner issued an order finding the claim compensable and awarded Mr. Wetzel temporary total disability benefits.

At the time that Mr. Wetzel's pulmonary complications were ruled compensable, Chemical Leaman was a self-insured employer for purposes of workers' compensation. Chemical Leaman had a contractual agreement with ESC, dating back to 1987, whereby ESC was made the administrator for Chemical Leaman's workers' compensation program. Under the agreement, ESC was responsible for, among other things, processing and paying all valid workers' compensation related payment requests.

During the course of Mr. Wetzel's treatment for his pulmonary complications, ESC received a total of 139 requests for payment on his claim.1 ESC paid out a total of $12,083.41 on the claim.2 However, ESC objected to payment of 26 of the 139 payment requests.3 Out of the 26 payment denials, 16 denials were made for physician office visits that did not involve the compensable injury.4 Four of the 26 payment denials involved medications that were not authorized for the compensable injury. The remaining six payment denials involved duplicative charges. The actual amount of the 26 payment denials totaled $662.94. Although Mr. Wetzel had a right to file an administrative protest to each of the payment denials, he failed to make an administrative protest to any of the payment denials.5

On September 5, 1995, Mr. Wetzel died.6 A year later, on September 9, 1996, Mrs. Wetzel filed the instant action against ESC. The complaint alleged that ESC's denial of the 26 payment requests contributed to Mr. Wetzel's death. The legal theories relied upon were negligence, intentional infliction of emotional distress and statutory bad faith settlement of claims. After a period of extensive discovery, ESC filed a motion for summary judgment. By order entered on August 14, 2006, the circuit court granted ESC's motion for summary judgment. In doing so, the circuit court found that (1) ESC was an agent of Chemical Leaman and, as such, enjoyed immunity from common law tort theories, and (2) ESC was not subject to a statutory bad faith claim. It is from these rulings that Mrs. Wetzel appeals to this Court.

II. STANDARD OF REVIEW

We have held that "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In conducting a de novo review, this Court applies the same standard for granting summary judgment that a circuit court must apply. United Bank, Inc. v. Blosser, 218 W.Va. 378, 383, 624 S.E.2d 815, 820 (2005). Pursuant to that standard, "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Finally, we note that "[t]he circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syl. pt. 3, Painter, 192 W.Va. 189, 451 S.E.2d 755. Mindful of these principles, we address the issues raised on appeal.

III. DISCUSSION

Mrs. Wetzel contends that ESC does not have immunity under the workers' compensation statutes because it is not an agent of Chemical Leaman. In the alternative, Mrs. Wetzel argues that, if ESC is an agent of Chemical Leaman, she may still proceed against ESC under her intentional tort theory. Finally, Mrs. Wetzel contends that, for purposes of her bad faith claim, ESC is in the business of insurance and therefore her bad faith claim may proceed. We will address each issue separately.

A. ESC is an Agent of Chemical Leaman

All parties agree that under our workers' compensation statutes, an agent of an employer is granted immunity from suit for nondeliberate intent conduct that injures or causes the death of an employee. Specifically, the immunity to employers is set out in W. Va.Code § 23-2-6 (2003) (Repl. Vol. 2005) in part, as follows:

Any employer subject to this chapter who subscribes and pays into the workers' compensation fund the premiums provided by this chapter or who elects to make direct payments of compensation as provided in this section is not 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 the employer is not in default in the payment of the premiums or direct payments and has complied fully with all other provisions of this chapter.

The extension of employer immunity to agents and others is set out in W. Va.Code § 23-2-6a (1949), (Repl. Vol. 2005) as follows:

The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.

In Syllabus point 4 of Henderson v. Meredith Lumber Co., Inc., 190 W.Va. 292, 438 S.E.2d 324 (1993), this Court summarized the above statutes as follows:

W. Va.Code, 23-2-6a [1949] extends the employer's immunity from liability set forth in W. Va.Code, 23-2-6 [2003] to the employer's officer, manager, agent, representative or employee when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.

Mrs. Wetzel contends that under our decision in Deller v. Naymick, 176 W.Va. 108, 342 S.E.2d 73 (1985), ESC is not an agent of Chemical Leaman. On the other hand, ESC argues that Deller does not address the issue of who may be an agent for workers' compensation...

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