Young v. Apogee Coal Co.

• Citation: 753 S.E.2d 52,232 W.Va. 554
• Decision Date: 06 November 2013
• Docket Number: No. 12–0835.,12–0835.
• Court: Supreme Court of West Virginia
• Parties: Gina YOUNG, Administratrix of the Estate of Richard Young, Jr., Plaintiff Below, Petitioner v. APOGEE COAL COMPANY, LLC, Patriot Coal Corporation and James Ray Browning, Defendants Below, Respondents.

232 W.Va. 554

753 S.E.2d 52

Gina YOUNG, Administratrix of the Estate of Richard Young, Jr., Plaintiff Below, Petitioner

v.APOGEE COAL COMPANY, LLC, Patriot Coal Corporation and James Ray Browning, Defendants Below, Respondents.

No. 12–0835.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 15, 2013.

Decided Nov. 6, 2013.

Syllabus by the Court

1. “ ‘A de novo standard is applied by this court in addressing the legal issues presented by certified question from a federal district or appellate court.’ Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).” Syl. Pt. 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

2. “Where the issue on an appeal ... is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

3. “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 § 23–4–2 (1983) essentially sets forth two separate and distinct methods of proving ‘deliberate intention.’ ” Syl. Pt. 1, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).

4. “A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute.” Syl. Pt. 3, Meadows v. Wal–Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).

5. “ ‘In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies.’ Syllabus Point 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).” Syl. Pt. 6, Phillips v. Larry's Drive–In Pharmacy, Inc., 220 W.Va. 484, 647 S.E.2d 920 (2007).

6. West Virginia Code § 23–4–2(d)(2)(ii) (2005) provides for a “deliberate intent” cause of action against an employer only. A non-employer “person,” as identified in West Virginia Code § 23–2–6a (1949), may not be made a defendant in a cause of action brought pursuant to West Virginia Code § 23–4–2(d)(2)(ii).

Timothy R. Conaway, Esq., Benjamin M. Conaway, Esq., Conaway & Conaway PLLC Madison, WV, for Petitioners.

Jeffrey M. Wakefield, Esq., Joshua C. Dotson, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, WV, for Respondents.

Guy R. Bucci, Esq., Mark A. Barney, Esq., Bucci, Bailey & Javins, L.C., Charleston, WV, for Amicus Curiae West Virginia Association for Justice.

Thomas P. Maroney, Esq., Maroney, Williams, Weaver & Pancake, PLLC, Charleston, WV, for Amicus Curiae Kenneth M. Perdue as President of The West Virginia Labor Federation, AFL–CIO.

WORKMAN, Justice:

This case is before the Court upon a certified question presented by the United States District Court for the Southern District of West Virginia regarding whether a “deliberate intent” cause of action pursuant to West Virginia Code § 23–4–2(d)(2)(ii) (2005) may be brought against a non-employer “person,” such as a supervisor or co-employee. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that a non-employer “person,” who enjoys the immunity contained in West Virginia Code § 23–2–6a (1949), may not be made a defendant in a cause of action brought pursuant to West Virginia Code § 23–4–2(d)(2)(ii). Accordingly, we answer the certified question in the negative.

I. FACTS AND PROCEDURAL HISTORY

On May 14, 2011, Richard Young, Jr. (hereinafter “Young”) was killed while working for Apogee Coal Company LLC (hereinafter “Apogee”). Young was allegedly instructed by his supervisor, respondent James Browning (hereinafter “Browning”), a maintenance supervisor, to remove a counterweight on an end loader to access the fuel tank. While Young was removing the counterweight, it fell on top of him and killed him. As a result, petitioner Gina Young, Administratrix of the Estate of Richard Young, Jr., (hereinafter “petitioner”) filed suit in the Circuit Court of Boone County, West Virginia, against Apogee, Browning, and Patriot Coal Company, Apogee's alleged parent company (hereinafter collectively “respondents”). Petitioner's complaint alleges, inter alia, a “deliberate intent” cause of action pursuant to West Virginia Code § 23–4–2(d)(2)(ii) against respondents Browning and Apogee on the basis that Young had not been properly trained on removal of the counterweight. Petitioner alleges that Browning and Apogee violated each of the five factors contained in West Virginia Code § 23–4–2(d)(2)(ii)(A) through (E).

Respondents removed the case to the United States District Court for the Southern District of West Virginia on the basis of diversity jurisdiction. Respondents alleged that the diversity-defeating defendant, Browning, had been fraudulently joined inasmuch as West Virginia Code § 23–4–2(d)(2)(ii) provides a cause of action against an employer only and that individuals, such as supervisors or co-employees, are not proper party defendants. Noting the split of authority among the West Virginia federal districts on this issue, by order dated July 3, 2012, the District Court certified the following question to this Court pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code § 51–1A–1 (1996) et seq.:

Does the “deliberate intention” exception to the exclusivity of Workers Compensation benefits outlined in West Virginia Code § 23–4–2(d)(2)(ii) apply to “persons” (supervisor and co-employees) as well as employers?

II. STANDARD OF REVIEW

This Court has consistently held that “ ‘[a] de novo standard is applied by this court in addressing the legal issues presented by certified question from a federal district or appellate court.’ Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).” Syl. Pt. 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). Moreover, “[w]here the issue on an appeal ... 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).

III. DISCUSSION

West Virginia Code § 23–2–6 (2003) establishes the exclusive remedy as against an employer for workplace injuries or death and provides general immunity from suit for such injuries or death to qualifying employers. ¹West Virginia Code § 23–2–6a (1949) extends the same immunity to a variety of natural persons through whom the employer acts: “The immunity from liability set out in the preceding section [ § 23–2–6] 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.” As is well-established, however, that immunity is stripped to the extent that a workplace injury or death is inflicted with “deliberate intent.” W. Va.Code § 23–4–2(c) (2005) (“If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury or death, the employee ... has the privilege to take under this chapter and has a cause of action against the employer....”); W. Va.Code § 23–2–6a (granting immunity to employee insofar as employee does not “inflict an injury with deliberate intention”). Deliberate intent may be proven in two “separate and distinct” ways, as set forth exclusively in West Virginia Code § 23–4–2(d)(2)(i) and (ii). See Syl. Pt. 1, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990) ( “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 § 23–4–2 (1983) essentially sets forth two separate and distinct methods of proving ‘deliberate intention.’ ”).

The first type of activity which the Legislature has defined as constituting deliberate intent involves injury which comes about as the result of a “consciously, subjectively and deliberately formed intention to produce the specific result of injury or death[,]” as described in West Virginia Code § 23–4–2(d)(2)(i) (hereinafter “(d)(2)(i)” or “(i)”).² The second type of conduct which constitutes deliberate intent is described in West Virginia Code § 23–4–2(d)(2)(ii) (hereinafter also “(d)(2)(ii)” or “(ii)”) and requires the employee to prove violation of five factors. The five-factor test requires, generally, the employee to prove that he or she was injured as the result of a “specific unsafe working condition” as defined therein, of which the employer had actual knowledge and to which the employer nevertheless intentionally exposed the employee. This certified question requires interpretation of the entirety of subsection (d) (2)(i) and (ii), which describes these two methods of establishing deliberate intent. With emphasis to the operative terms which form the underpinning of the certified question, West Virginia Code § 23–4–2(d)(2)(i) and (ii) provide:

(2) The immunity from suit provided under this section and under sections six [§ 23–2–6] and six-a [§ 23–2–6a], article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with “deliberate intention”. This requirement may be satisfied only if:

(i) It is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct; or

(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or...