Lavender v. Chapman Corporation ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KATHLEEN LAVENDER, individually
and as Executrix of the Estate of
John D. Lavender, Jr.,
Plaintiff-Appellant,
No. 97-1997
v.
CHAPMAN CORPORATION, a
Pennsylvania corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-95-121-5)
Argued: January 29, 1998
Decided: February 20, 1998
Before RUSSELL, WIDENER, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: John Francis Dascoli, THE SEGAL LAW FIRM,
Charleston, West Virginia, for Appellant. Catherine Dabney Munster,
MCNEER, HIGHLAND, MCMUNN & VARNER, L.C., Clarksburg,
West Virginia, for Appellee. ON BRIEF: Scott S. Segal, Jeffrey V.
Mehalic, THE SEGAL LAW FIRM, Charleston, West Virginia, for
Appellant. James A. Varner, Tiffany R. Durst, MCNEER, HIGH-
LAND, MCMUNN & VARNER, L.C., Clarksburg, West Virginia,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Kathleen Lavender appeals a decision of the district court granting
summary judgment to Chapman Corporation on Lavender's claim that
Chapman knowingly and intentionally made fraudulent misrepresen-
tations to the worker's compensation fund of West Virginia (the
Fund). Finding no error, we affirm.
I.
In early 1993, Lavender's husband, John D. Lavender, Jr. (John),
was diagnosed with leukemia. Shortly thereafter, John filed a claim
for worker's compensation benefits, alleging on the claim form that
his leukemia resulted from "repeated exposures to benzene while
employed by Chapman Corporation." J.A. 201. The Chapman
employee responsible for completing the employer's portion of the
form asserted that John had not been exposed to chemicals while
employed by Chapman. The claim was referred for an investigation,
after which the Fund denied the claim. Subsequently, an administra-
tive law judge awarded benefits on appeal.*
Following the award of benefits, Lavender filed this action in state
court, alleging that Chapman knowingly and intentionally made false
representations to the Fund on the claim form and during the investi-
_________________________________________________________________
*John died during the pendency of the appeal, which was pursued by
his wife.
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gation of the claim. See Persinger v. Peabody Coal Co., 474 S.E.2d
887, 896-99 (W. Va. 1996) (holding that an individual who has been
awarded worker's compensation benefits may bring an action for
fraudulent misrepresentation by the employer in connection with the
claim). Chapman removed the action to federal court on the basis of
diversity of citizenship, and the district court denied Lavender's sub-
sequent motion to remand. After discovery, the district court granted
summary judgment to Chapman on the basis that Lavender had failed
to create a genuine issue of material fact with respect to at least one
element of the tort of fraudulent misrepresentation.
II.
Lavender now contends that the district court erred in denying her
motion to remand and in granting summary judgment to Chapman.
Having had the benefit of oral argument and the parties' briefs, and
after careful consideration of the record and the applicable law, we
conclude that the district court correctly decided the issues before it.
Accordingly, we affirm on the reasoning of the district court. See
Lavender v. Chapman Corp., No. 5:95CV121 (N.D. W. Va. June 25,
1997) (granting summary judgment); Lavender v. Chapman Corp.,
No. 5:95CV121 (N.D. W. Va. Sept. 30, 1996) (denying motion for
remand).
AFFIRMED
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