Wisman v. William J. Rhodes and Shamblin Stone, Inc.
| Decision Date | 11 July 1994 |
| Docket Number | No. 21967,21967 |
| Court | West Virginia Supreme Court |
| Parties | Shelby WISMAN and Earlene Wisman, Plaintiffs Below, Appellants, v. WILLIAM J. RHODES AND SHAMBLIN STONE, INC., a West Virginia Corporation; Continental Insurance Company, a Corporation Licensed to do Business in the State of West Virginia, formerly Buckeye Continental Insurance Company, a Corporation; and Allstate Insurance Company, a Corporation Licensed to do Business in the State of West Virginia, Defendants Below, Appellees. |
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 [1991] 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. An employee who receives workers' compensation benefits for injuries that result from a motor vehicle collision with a coemployee which occurs within the course and scope of employment is not entitled to assert a claim for uninsured or underinsured motorist benefits. Because of the provisions for employer and coemployee immunity contained in W.Va.Code §§ 23-2-6 and 6a (1994), workers' compensation is the exclusive remedy available to an injured employee, and an uninsured or underinsured motorist carrier has no liability.
William W. Pepper, Pepper & Nason, Charleston, for plaintiffs.
Thomas V. Flaherty, Edward P. Tiffey, Flaherty, Sensabaugh & Bonasso, Charleston, for Defendant, Continental Ins. Co.
This case is before the Court upon a certified question from the Circuit Court of Mason County, West Virginia. The issue is whether the plaintiff, an accident victim who has received workers' compensation benefits, can also obtain uninsured motorist benefits even though the defendants are shielded from liability by grants of immunity contained in the Workers' Compensation Act, West Virginia Code §§ 23-2-6 and 6a.
The facts surrounding the accident are not in dispute. The plaintiff, Shelby Wisman, alleges that on July 5, 1990, the defendant, William J. Rhodes, negligently crossed the center of the highway and drove his truck into the truck that the plaintiff was operating, causing him serious, permanent injuries. The plaintiff and the defendant were both employees of the defendant, Shamblin Stone, Inc. The lower court concluded that both men were acting within the course and scope of their employment, operating trucks owned by Shamblin Stone.
Shamblin Stone is a participant in the West Virginia Workers' Compensation Fund, and the plaintiff received workers' compensation benefits for his injuries. Shamblin Stone maintained a liability insurance policy on the truck driven by the defendant, William J. Rhodes. However, that insurer denied coverage to the plaintiff on the grounds that the plaintiff was acting within the scope of his employment at the time of the injury and was covered by workers' compensation.
At the time of the accident, Shamblin Stone also had an insurance policy with the defendant, Continental Insurance Company, which insured the vehicle driven by the plaintiff. The policy language which addresses uninsured and underinsured motorist coverage provides, in part, that:
We will pay all sums the "insured" is legally entitled to recover as damages from the owner or driver of an "uninsured" or "underinsured" motor vehicle. The damages must result from "bodily injury" sustained by the "insured", or "property damage" caused by an "accident". The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the "uninsured" or "underinsured motor vehicle".
Continental maintains that the plaintiff is barred from recovering uninsured motorist benefits because he is not "legally entitled to recover" from defendants Rhodes and Shamblin Stone because the accident occurred while both were acting within the scope of their employment, and Shamblin Stone is a participant in the West Virginia Workers' Compensation Fund.
However, the plaintiff insists that Continental must pay him uninsured motorist benefits that he is "legally entitled to recover" within the meaning of the policy, and Continental may not raise the workers' compensation bar as a defense to the policy's contractual obligations.
By order entered December 30, 1992, the Circuit Court of Mason County certified the following question to this Court:
May the plaintiff, who is precluded by grants of immunity contained in the Workers' Compensation Act, W.Va.Code 23-2-6 and 6a from securing a judgment against defendants Shamblin Stone or Rhodes, nonetheless assert a claim under the uninsured or underinsured motorist provisions contained in the insurance policy issued by defendant Continental, pursuant to W.Va.Code 33-6-31, covering the vehicle plaintiff was driving at the time of the accident?
The circuit court answered the question in the affirmative.
"The Workmen's [Workers'] Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system." Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 700, 246 S.E.2d 907, 911 (1978) (emphasis in original). West Virginia Code § 23-2-6 provides, in pertinent part, that an employer who subscribes and pays premiums into the Workers' Compensation Fund "shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring...." " W.Va.Code, 23-2-6a [1949] extends the employer's immunity from liability set forth in W.Va.Code, 23-2-6 [1991] 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." Syl. pt. 4, Henderson v. Meredith Lumber Co., Inc., 190 W.Va. 292, 438 S.E.2d 324 (1993). 1 "This statutory immunity of a coemployee is not violative of the due process provisions of the State and Federal Constitutions because, like the employer, a coemployee is involved in a compromise of rights; among employees, the quid pro quo is that each employee surrenders his common law right to bring tort actions against other employees in return for immunity to their tort suits." Deller v. Naymick, 176 W.Va. 108, 342 S.E.2d 73, 76 (1985).
In Deller, this Court was asked whether the immunity from tort liability found in W.Va.Code § 23-2-6a is inapplicable to the extent that a doctor employed by a subscriber to the Workers' Compensation Fund or by a self-insured employer is covered by liability insurance. In holding that immunity from tort liability is not waived to the extent that liability insurance coverage is available, we discussed the purposes behind employee and coemployee immunity:
[T]he purpose of coemployee (and employer) immunity under the Workers' Compensation Act is to replace the common-law tort claims and defenses between or among employers and employees with the no-fault, exclusive remedy of workers' compensation. Liability insurance coverage does not remove this reason for the rule, and allowing suits would emasculate the workers compensation system greatly. For example, by the same theory, any employee covered by automobile liability insurance, which coverage is usually required by W.Va.Code, 17D-2A-3 [1982], would be subject to suit for an injury sustained by a coemployee in a motor vehicle accident in the course of and resulting from employment. Also, unlike governmental immunity (in the context of liability insurance coverage), coemployee (and employer) immunity under the Workers' Compensation Act does not result in a total denial of the right to apply for redress of grievances. Instead, the alternative workers' compensation remedies are available in lieu of the common-law remedies.
Id. at 80-81 (footnotes omitted) (emphasis added).
The fact that workers' compensation benefits are an exclusive remedy in Virginia was critical to the Supreme Court of Virginia's decision in Aetna Casualty & Surety Co. v. Dodson, 235 Va. 346, 367 S.E.2d 505 (1988), which presented an issue similar to the one that is now before us. In Dodson, the United States Court of Appeals for the Fourth Circuit asked the Supreme Court of Virginia to answer the following certified question:
Does Virginia law permit recovery by an insured's estate under the UM provision of the insured's policy (paid for by the insured), where the insured was killed in a work-related motor vehicle accident and where the employer/vehicle owner and co-employee/vehicle operator both had insurance, but where the exclusive remedy clause of the Virginia Workmen's Compensation Act...
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