Eisnaugle v. Booth , 159 W. Va. 779 ( 1976 )

Berry, Chief Justice:

In this case, the appellants, William James Eisnaugle and Gay Eisnaugle, his wife, the plaintiffs in a personal injury action, appeal the judgment of the Circuit Court of Hancock County which affirmed the judgment of the Common Pleas Court of Hancock County. The question presented here is whether the action is barred by the provisions of W. Va. Code, 23-2-6a, as amended, which grants immunity from liability to a co-employee in the instance of an injury which is compensable under the State Workmen’s Compensation laws.

At the time of the events giving rise to the action below, the appellant, James Eisnaugle, and the appellee, Homer Booth, were both employees of the National Steel Corporation in Weirton, West Virginia. On the evening of November 12, 197Q, Eisnaugle and Booth were on their way to work. Eisnaugle had parked his car in the employer’s private parking lot, which was adjacent to his place of employment and was walking to a location where he would punch a time card to begin work. While driving his personal automobile to park in the same parking area, Booth struck Eisnaugle and caused the injuries which were the subject of Eisnaugle’s personal injury action. The abbreviated record indicates that Booth had been drinking and had been sent home afterward by company officials because of his alleged intoxication.

Following the commencement of the civil action in the Common Pleas Court of Hancock County, Booth moved the court for summary judgment, contending that he was immune from liability under W. Va. Code, 23-2-6 a because Eisnaugle’s injuries were received in the zone of his employment and were compensable under the State Workmen’s Compensation laws. Initially, the trial court denied the motion for summary judgment. However, upon resubmission with additional undisputed facts, the court granted the motion and dismissed the appellants’ complaint.

Upon appeal to the Circuit Court of Hancock County, the judgment of the Common Pleas Court was affirmed.

The sole issue presented in this appeal is whether the appellee, a fellow employee of the appellant, is entitled to immunity from liability in the action by reason of the statute.

Under the West Virginia compensation law, an employer who has elected to provide compensation coverage is immune from civil liability for the unintentional injuries suffered by its employees arising out of their employment. The pertinent part of W. Va. Code 23-2-6, as amended, in effect at the time of the court’s action below, reads as follows:

“Any employer subject to this chapter who shall elect to pay into the workmen’s compensation fund the premiums provided by this chapter 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 such election and during any period in which such employer shall not be in default in the payment of such premiums and shall have complied fully with all other provisions of this chapter: Provided, that the injured employee has remained in his service with notice that his employer has elected to pay to the workmen’s compensation fund the premiums provided by this chapter.”

W. Va. Code 23-2-6a, as amended, extends the same immunity to an employee of an employer who subscribes to the Workmen’s Compensation fund:

“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.”

As a general rule, where an injury is received by an employee on the employer’s property near his place of work while the employee is going to work, such injury is deemed to have arisen in the course of and as a result of his employment. Bilchak v. Workmen’s Compensation Commissioner, 153 W. Va. 288, 168 S.E.2d 723 (1969); 99 C.J.S. Workmen’s Compensation §234 (1958). This familiar exception to the “going and coming” rule is articulated in the syllabus announced in Hager v. Compensation Commissioner, 112 W. Va. 492, 165 S.E. 668 (1932):

“Where an employee is accidentally injured upon premises owned or controlled by the employer at a point reasonably proximate to the place of work, while the employee is going to or from his work on a permissible route in general use by the employees, such injury will be deemed to have arisen from and in the course of the employment, within the Workmen’s Compensation Act.”

The Virginia case of Brown v. Reed, 209 Va. 562, 165 S.E.2d 394 (1969) is almost identical to the case at bar. In that case an employee had parked his automobile in the employer’s parking lot and, after changing clothes in the locker room near the parking lot, was struck by an automobile of a fellow employee while walking across the parking lot to his employment. It was held that the injury was received in the course of and as a result of his employment, and that the plaintiff’s rights and remedies were governed exclusively by the provisions of the Workmen’s Compensation Act. Similarly, in the vast majority of jurisdictions the general rule, even in the absence of an immunizing statute, is that where an employee who is going to or coming from work is injured by a fellow employee on the employer’s parking lot, the injury is received within the course of and as a result of employment and defendant co-employee is immune from liability for such injury. See, e.g., Jackson v. Hutchinson, 453 S.W.2d 269 (Ky. 1970); Threet v. Pinkston, 20 Mich. App. 39, 173 N.W.2d 731 (1969).

This Court said in Bennett v. Buckner, 150 W. Va. 648, 149 S.E.2d 201 (1966), that in a personal injury action between co-employees who were within the zone of employment at the time of the injury so that the injury is properly characterized as having been received in the course of and resulting from the employment, the immunity established by W. Va. Code 23-2-6a, as amended, attaches and defeats the plaintiffs cause of action. The circumstances in Bennett are quite similar to those presently before us. There, the plaintiff was injured while riding in a truck owned and operated by a fellow employee while the truck was being driven over the employer’s private road to a point where the co-employees were to go to work. We ruled that the injury was received within “the zone of employment” and was therefore compensable under the Workmen’s Compensation Act, thereby precluding recovery by the plaintiff against the co-employee in a civil action.

An exception to the immunity granted by W. Va. Code, 23-2-6a, as amended, exists where the injury is inflicted by the co-employed with “deliberate intention.” We note initially that the appellants did not contend at any point in the proceedings below that the injury was inflicted by deliberate intention. Indeed, the plaintiffs’ complaint was based on an allegation of negligent misconduct. Further, the appellants’ petition for appeal from the Common Pleas Court to the Circuit Court of Hancock County specifically states that “the accident was not inflicted upon the plaintiff with deliberate intention by the defendant.” Nevertheless, the appellants seek to bring the present circumstances within the exception by arguing that the alleged intoxication of the appellee should nullify the immunity afforded a fellow employee under the provisions of the statute. We find no merit in this contention. Neither gross negligence nor wanton misconduct are such as to constitute injury by deliberate intention as contemplated by the immunizing statute. Brewer v. Appalachian Constructors, Inc., 135 W. Va. 739, 65 S.E.2d 87 (1951). So, even if we were to assume that the defendant was intoxicated and that his condition was responsible for his actions in injuring the plaintiff, we must nevertheless conclude that the requisite “deliberate intention” is absent.

For the reasons enunciated herein, the judgment of the Circuit Court of Hancock County is affirmed.

Affirmed.