Michael D. Michael, Administrator v. Consolidation Coal Company , 242 W. Va. 12 ( 2019 )


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  •         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    January 2019 Term
    _______________                        FILED
    June 5, 2019
    No. 18-0725                         released at 3:00 p.m.
    EDYTHE NASH GAISER, CLERK
    _______________                   SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MICHAEL D. MICHAEL,
    ADMINISTRATOR OF THE ESTATE OF
    JACK D. MICHAEL, ET AL.,
    Petitioners
    V.
    CONSOLIDATION COAL COMPANY,
    Respondent
    _____________________________________________
    Certified Questions from the United States Court of Appeals for the Fourth Circuit
    The Honorable Barbara Milano Keenan, Circuit Judge
    Civil Action No. 17-1564
    CERTIFIED QUESTIONS ANSWERED
    _____________________________________________
    Submitted: March 5, 2019
    Filed: June 5, 2019
    Scott S. Segal                                      W. Henry Jernigan
    The Segal Law Firm                                  William E. Robinson
    Charleston, West Virginia                           Dinsmore & Shohl, LLP
    Timothy C. Bailey                                   Charleston, West Virginia
    Bailey, Javins & Carter, LC                         Alex M. Greenberg
    Charleston, West Virginia                           Christopher M. Jones
    C. Paul Estep                                  Dinsmore & Shohl, LLP
    Estep & Shaffer L.C.                           Morgantown, West Virginia
    Kingwood, West Virginia                        Attorneys for the Respondent
    Mark A. Barney
    Barney Law PLLC
    Hurricane, West Virginia
    Attorneys for the Petitioners
    JUSTICE JENKINS delivered the Opinion of the Court.
    JUSTICE WORKMAN, deeming herself disqualified, did not participate in the
    decision of this case.
    JUDGE CARL, sitting by temporary assignment.
    SYLLABUS BY THE COURT
    1. “‘A de novo standard is applied by this Court in addressing the legal
    issues presented by a certified question from a federal district or appellate court.’
    Syllabus Point 1, Light v. Allstate Ins. Co., 
    203 W. Va. 27
    , 
    506 S.E.2d 64
    (1998).”
    Syllabus point 1, Martinez v. Asplundh Tree Expert Co., 
    239 W. Va. 612
    , 
    803 S.E.2d 582
    (2017).
    2. “When a certified question is not framed so that this Court is able to
    fully address the law which is involved in the question, then this Court retains the power
    to reformulate questions certified to it under . . . the Uniform Certification of Questions
    of Law Act found in W. Va. Code, 51-1A-1, et seq[.]” Syllabus point 3, in part, Kincaid
    v. Mangum, 
    189 W. Va. 404
    , 
    432 S.E.2d 74
    (1993).
    3. “Chapter 103 of the Code (sections 5, 6, p. 725, Ed. 1891) is the West
    Virginia Lord Campbell’s act, creating a cause of action where none existed at common
    law for wrongfully causing the death of a person[.]” Syllabus point 1, in part, Lambert v.
    Ensign Manufacturing Co., 
    42 W. Va. 813
    , 
    26 S.E. 431
    (1896), overruled on other
    grounds by Bradshaw v. Soulsby, 
    210 W. Va. 682
    , 
    558 S.E.2d 681
    (2001).
    i
    4. “Where the language of a statute is free from ambiguity, its plain
    meaning is to be accepted and applied without resort to interpretation.” Syllabus point 2,
    Crockett v. Andrews, 
    153 W. Va. 714
    , 
    172 S.E.2d 384
    (1970).
    ii
    Jenkins, Justice:
    The case sub judice concerns a tragic event in this State’s coal mining
    history. On November 20, 1968, seventy-eight miners tragically lost their lives when
    methane gas exploded at the Consol No. 9 Mine in Farmington, West Virginia. It is
    within this context that the Petitioners, survivors of those miners, and the Respondent, the
    parent company of the owner and operator of the subject mine, come to this Court upon
    questions of law certified by the United States Court of Appeals for the Fourth Circuit.
    By the court of appeals’ August 15, 2018 certification order, we are asked
    to determine whether the Petitioners may maintain their cause of action alleging that the
    Respondent fraudulently concealed facts regarding the cause of the mine explosion such
    that the Petitioners were prevented from earlier pursuing a claim for the wrongful deaths
    of their decedents. To reach our decision in this case, we have considered the parties’
    arguments and briefs, the record designated for our consideration, and the pertinent
    authorities, including the decisions of the federal courts leading to the court of appeals’
    certification order as well as the law as it existed in 1968 at the time of the events giving
    rise to the instant proceeding.
    In summary, we conclude that the law in effect at the time of this tragedy
    did not recognize a cause of action for fraudulent concealment with respect to a statutory
    wrongful death claim. Moreover, at the time of the 1968 explosion, W. Va. Code § 55-7-
    1
    6 required that “[e]very such [wrongful death] action shall be commenced within two
    years after the death of such deceased person.”
    I.
    FACTS AND PROCEDURAL HISTORY
    As noted in the preceding introduction, the case sub judice concerns the
    1968 Farmington mine disaster and has been brought by survivors of the seventy-eight
    miners who were killed in that tragedy.1 In the subject mine, ventilation fans were
    installed to prevent the accumulation of methane gas, which was released during the
    extraction of the underground coal and which posed a threat to the safety of the miners
    working therein. During the early morning hours of November 20, 1968, a ventilation
    fan in the Mod’s Run section of the mine failed, causing methane gas to accumulate and,
    eventually, ignite and explode. Over one hundred miners were working in the affected
    section of the mine and, while many escaped or were rescued, seventy-eight men
    perished in the explosion and ensuing fires, some of whom have never been recovered.
    1
    Given that the instant proceeding involves questions of law certified to this
    Court, only those facts necessary to establish the framework for those questions will be
    set forth herein. For a more detailed account of the underlying facts, see Michael v.
    Consolidation Coal Co., 744 F. App’x 152 (4th Cir. 2018) (certification order); Michael
    v. Consolidation Coal Co., No. 1:14CV212, 
    2017 WL 1197828
    (N.D. W. Va. Mar. 31,
    2017) (unpublished mem. opinion and order); and Michael v. Estate of Kovarbasich, No.
    1:14 cv 00212, 
    2015 WL 5725814
    (N.D. W. Va. Sept. 29, 2015) (unpublished mem.
    opinion and report and recommendation).
    2
    Following this tragedy, the federal Mine Safety and Health Administration
    (“MSHA”) inspected the mine to determine how the explosion had occurred.                In
    September 1970, power was restored to the mine in the course of this investigation, at
    which time it was discovered that the wiring of the Mod’s Run ventilation fan had been
    altered such that it was not connected to the mine’s alarm system, but, rather, bypassed
    the alarm system. Had the ventilation fan been connected to the alarm system at the time
    of the explosion, when the fan failed to operate, an alarm would have sounded alerting
    above ground mine staff of the situation, and, if the fan continued to be inoperational, an
    underground alarm would have sounded to alert the underground miners; additionally, the
    electricity for the entire mine would have shut off. However, on the day of the explosion,
    no alarms sounded, either above or below ground, and surface mining operations
    continued after the explosion and during the ensuing fires.
    Larry Layne, the MSHA investigator who made this discovery, with the
    help of a mine electrician, wrote a memorandum reporting these findings in September
    1970 and forwarded it to his superiors; he withheld the name of the mine electrician at the
    electrician’s request. In relevant part, Mr. Layne’s memo recounted that,
    [o]n September 5, 1970, 12am-8am shift, the Mod’s Run
    substation was energized for the first time since the explosion
    of November 20, 1968. The electrician (name withheld by
    request) reported that while energizing the substation he
    found evidence to indicate that the FEMCO fan alarm system
    for Mod’s Run fan had been rendered inoperable prior to the
    explosion. The fan alarm system had been bridged with
    jumper wires; therefore, when the fan would stop or slow
    3
    down, there was no way of anyone knowing about it because
    the alarm system was bypassed[.]
    Thereafter, in November 1970, survivors of the miners filed their first two
    lawsuits: one in Pennsylvania federal court and one in West Virginia state court.
    Eventually, both of these suits were dismissed. In 1978, a third lawsuit was filed in West
    Virginia federal court alleging that the cause of the explosion had been concealed by the
    defendant therein, Consolidation Coal Company (“Consol”); the third lawsuit ultimately
    was settled.
    Investigations into the Farmington mine explosion continued through the
    1990s, with MSHA issuing a final report in March 1990. The Petitioners claim that, in
    2008, they first learned about Mr. Layne’s memo indicating that the Mod’s Run
    ventilation fan had been intentionally rewired to bypass the mine’s alarm system.
    Further, the Petitioners allege that they did not learn the name of the person responsible
    for bypassing the mine’s alarm system, or that said person was the mine’s chief
    electrician and, thus, a member of mine management, until June 2014. The Petitioners
    then filed this proceeding in November 2014 in the Circuit Court of Marion County
    against Consol and the estate of the former chief electrician alleging “fraud, concealment
    and nondisclosure.”     Consol removed the case to federal court based on diversity
    jurisdiction, and the case proceeded through the District Court for the Northern District of
    West Virginia. By memorandum opinion and order signed March 31, 2017, the district
    4
    court granted Consol’s motion to dismiss concluding that “the Plaintiffs’ wrongful death
    claim is barred by the then applicable two-year limitation period, and was not tolled by
    either the discovery rule or the fraudulent concealment doctrine.”               Michael v.
    Consolidation Coal Co., No. 1:14CV212, 
    2017 WL 1197828
    (N.D. W. Va. Mar. 31,
    2017) (unpublished mem. opinion and order).
    The Petitioners then appealed to the United States Court of Appeals for the
    Fourth Circuit. By order entered August 15, 2018, the court of appeals certified two
    questions of law to this Court:
    (1) Is a fraudulent concealment claim, as set forth in Kessel v.
    Leavitt, 
    204 W. Va. 95
    , 
    511 S.E.2d 720
    (1998),
    cognizable when the alleged injury was the plaintiffs’ loss
    of a timely claim for wrongful death under West Virginia
    Code §§ 55-7-5, 55-7-6 (1967)?
    (2) If the answer to Question (1) is yes: Under the West
    Virginia discovery rule, does the statute of limitations for
    a fraudulent concealment claim begin to run against a
    corporate entity when a plaintiff (A) learns that the entity
    concealed the intentional act of an unidentified individual,
    which resulted in the death of other employees at the
    entity’s workplace; or (B) discovers that the entity
    concealed both the intentional act and the identity of a
    particular employee, who allegedly acted at the direction
    of the entity, resulting in the death of other employees at
    the workplace?
    In certifying these questions, the court of appeals declined to provide proposed answers
    therefor, instead ruling that no definitive West Virginia precedent exists to answer them.
    This Court then accepted the certified questions for consideration and decision.
    5
    II.
    STANDARD OF REVIEW
    The case sub judice is before this Court upon questions of law certified by
    the Fourth Circuit Court of Appeals.       Insofar as the instant proceeding requires an
    analysis of the law, our review of such questions is plenary. “‘A de novo standard is
    applied by this Court in addressing the legal issues presented by a certified question from
    a federal district or appellate court.’ Syllabus Point 1, Light v. Allstate Ins. Co., 
    203 W. Va. 27
    , 
    506 S.E.2d 64
    (1998).” Syl. pt. 1, Martinez v. Asplundh Tree Expert Co., 
    239 W. Va. 612
    , 
    803 S.E.2d 582
    (2017). Accord Syl. pt. 1, Bower v. Westinghouse Elec.
    Corp., 
    206 W. Va. 133
    , 
    522 S.E.2d 424
    (1999) (“This Court undertakes plenary review of
    legal issues presented by certified questions from a federal district or appellate court.”).
    See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 
    194 W. Va. 138
    , 
    459 S.E.2d 415
    (1995)
    (“Where the issue on an appeal from the circuit court is clearly a question of law or
    involving an interpretation of a statute, we apply a de novo standard of review.”). Guided
    by this standard, we consider the questions certified as well as the parties’ arguments
    with respect thereto.
    III.
    DISCUSSION
    In its certification order, the court of appeals presents two questions for this
    Court’s resolution:
    6
    (1) Is a fraudulent concealment claim, as set forth in Kessel v.
    Leavitt, 
    204 W. Va. 95
    , 
    511 S.E.2d 720
    (1998),
    cognizable when the alleged injury was the plaintiffs’ loss
    of a timely claim for wrongful death under West Virginia
    Code §§ 55-7-5, 55-7-6 (1967)?
    (2) If the answer to Question (1) is yes: Under the West
    Virginia discovery rule, does the statute of limitations for
    a fraudulent concealment claim begin to run against a
    corporate entity when a plaintiff (A) learns that the entity
    concealed the intentional act of an unidentified individual,
    which resulted in the death of other employees at the
    entity’s workplace; or (B) discovers that the entity
    concealed both the intentional act and the identity of a
    particular employee, who allegedly acted at the direction
    of the entity, resulting in the death of other employees at
    the workplace?
    Upon review of these questions, we find it necessary to reformulate the first
    certified question under our power to do so.
    When a certified question is not framed so that this
    Court is able to fully address the law which is involved in the
    question, then this Court retains the power to reformulate
    questions certified to it under . . . the Uniform Certification of
    Questions of Law Act found in W. Va. Code, 51-1A-1, et
    seq[.]
    Syl. pt. 3, in part, Kincaid v. Mangum, 
    189 W. Va. 404
    , 
    432 S.E.2d 74
    (1993).
    Reformulation is necessary because the case cited in the first certified question, Kessel v.
    Leavitt, 
    204 W. Va. 95
    , 
    511 S.E.2d 720
    (1998), recognized a very specific cause of action
    for tortious interference with a parental or custodial relationship, and not fraudulent
    concealment, generally. See Syl. pt. 7, Kessel, 
    204 W. Va. 95
    , 
    511 S.E.2d 720
    (“To make
    out a prima facie claim for tortious interference with parental or custodial relationship,
    the complaining parent must demonstrate: (1) the complaining parent has a right to
    7
    establish or maintain a parental or custodial relationship with his/her minor child; (2) a
    party outside of the relationship between the complaining parent and his/her child
    intentionally interfered with the complaining parent’s parental or custodial relationship
    with his/her child by removing or detaining the child from returning to the complaining
    parent, without that parent’s consent, or by otherwise preventing the complaining parent
    from exercising his/her parental or custodial rights; (3) the outside party’s intentional
    interference caused harm to the complaining parent’s parental or custodial relationship
    with his/her child; and (4) damages resulted from such interference.”). Thus, Kessel is
    distinguishable from, and not instructive to, our resolution of the case sub judice.
    Accordingly, we reformulate the first certified question as follows:
    (1) Is a fraudulent concealment claim cognizable when the
    alleged injury was the plaintiffs’ loss of a timely claim for
    wrongful death under West Virginia Code §§ 55-7-5, 55-
    7-6 (1967)?
    As the ensuing discussion explains further, we need not reformulate, or answer, the
    second certified question.
    Turning now to the merits of the first certified question, as reformulated, it
    goes without saying that an analysis of the wrongful death statute, as it existed at the time
    of the events at issue herein, is a necessary prerequisite to the resolution of this query.
    We long have recognized that a cause of action for wrongful death is entirely created by
    statute: “the cause of action did not exist at common law, but is created by statute.”
    Lambert v. Ensign Mfg. Co., 
    42 W. Va. 813
    , 817, 
    26 S.E. 431
    , 432 (1896), overruled on
    8
    other grounds by Bradshaw v. Soulsby, 
    210 W. Va. 682
    , 
    558 S.E.2d 681
    (2001). Indeed,
    “[a]t common law there was no right of action for damages for injury occasioned by the
    death of a person by a wrongful act.” Baldwin v. Butcher, 
    155 W. Va. 431
    , 433, 
    184 S.E.2d 428
    , 429 (1971). Moreover, “there were no enactments in the United States
    creating the right of recovery for death by wrongful act until after the British Parliament
    passed Lord Campbell’s Act in 1846.” Rosier v. Garron, Inc., 
    156 W. Va. 861
    , 866-67,
    
    199 S.E.2d 50
    , 54 (1973), overruled on other grounds by Bradshaw v. Soulsby, 
    210 W. Va. 682
    , 
    558 S.E.2d 681
    . In this regard, we specifically have held that “Chapter 103
    of the Code (sections 5, 6, p. 725, Ed. 1891) is the West Virginia Lord Campbell’s act,
    creating a cause of action where none existed at common law for wrongfully causing the
    death of a person[.]” Syl. pt. 1, in part, Lambert, 
    42 W. Va. 813
    , 
    26 S.E. 431
    . Accord
    
    Baldwin, 155 W. Va. at 433-34
    , 184 S.E.2d at 429 (“As no right of action for death by a
    wrongful act existed at common law, the right or cause of action for wrongful death, if
    maintainable, exists under and by virtue of the provisions of the wrongful death statute of
    this State, Sections 5 and 6, Article 7, Chapter 55, Code, 1931, as amended[.]”).
    The foundational statute recognizing a cause of action for wrongful death
    that was in effect at the time of the 1968 explosion remains in force today and provides as
    follows:
    Whenever the death of a person shall be caused by
    wrongful act, neglect, or default, and the act, neglect or
    default is such as would (if death had not ensued) have
    entitled the party injured to maintain an action to recover
    damages in respect thereof, then, and in every such case, the
    9
    person who, or the corporation which, would have been liable
    if death had not ensued, shall be liable to an action for
    damages, notwithstanding the death of the person injured, and
    although the death shall have been caused under such
    circumstances as amount in law to murder in the first or
    second degree, or manslaughter. No action, however, shall be
    maintained by the personal representative of one who, not an
    infant, after injury, has compromised for such injury and
    accepted satisfaction therefor previous to his death. Any right
    of action which may hereafter accrue by reason of such injury
    done to the person of another shall survive the death of the
    wrongdoer, and may be enforced against the executor or
    administrator, either by reviving against such personal
    representative a suit which may have been brought against the
    wrongdoer himself in his lifetime, or by bringing an original
    suit against his personal representative after his death,
    whether or not the death of the wrongdoer occurred before or
    after the death of the injured party.
    W. Va. Code § 55-7-5 (LexisNexis 2016).
    The corollary statute, W. Va. Code § 55-7-6, which allows a deceased
    person’s survivors to bring a cause of action for wrongful death, defines the time limits
    for filing such an action, and establishes the damages that may be awarded in such a case,
    has been amended several times since 1968. The 1967 version of § 55-7-6, which was
    the statute in effect in 1968, provides:
    Every such action shall be brought by and in the name
    of the personal representative of such deceased person who
    has been duly appointed in this state, or in any other state,
    territory or district of the United States, or in any foreign
    country, and the amount recovered in every such action shall
    be recovered by said personal representative and be
    distributed in accordance herewith. Where the personal
    representative was duly appointed in another state, territory,
    or district of the United States, or in any foreign country, such
    personal representative shall, before the action is heard, post
    10
    bond, with a corporate surety thereon authorized to do
    business in this state, in a penal sum to be determined by the
    court, conditioned that such personal representative shall pay
    all costs adjudged against him and that he shall comply with
    the provisions of the third paragraph of this section. In every
    such action the jury may award such damages as they deem
    fair and just, not exceeding ten thousand dollars, and the
    amount recovered shall be distributed to the parties and in the
    proportion provided by law for the distribution of personal
    estate left by persons dying intestate. In addition, the jury
    may award such further damages, not exceeding the sum of
    one hundred thousand dollars, as shall equal the financial or
    pecuniary loss sustained by the dependent distributee or
    distributees of such deceased person, and shall be distributed
    as though part of the decedent’s estate to decedent’s
    dependent distributees in the proportions provided by the
    laws of descent and distribution.
    In every such action and in addition to the damages
    awarded pursuant to the foregoing provisions hereof, the
    personal representative of the deceased shall be entitled to
    recover the reasonable funeral expenses of such deceased
    person and the reasonable hospital, medical and other
    expenses incurred as a result of the wrongful act, neglect or
    default of the defendant or defendants which resulted in
    death.
    In its verdict the jury shall set forth separately the
    amount of damages, if any, awarded by it for reasonable
    funeral, hospital, medical and said other expenses incurred as
    a result of the wrongful act, neglect or default of the
    defendant or defendants which resulted in death, and any such
    amount recovered for such expenses shall be so expended by
    the personal representative. Except as provided in the
    preceding sentence, the amount recovered in accordance with
    the provisions of this section shall not be subject to any debts
    or liabilities of the deceased.
    Every such action shall be commenced within two
    years after the death of such deceased person.
    11
    The provisions of this section shall not apply to actions
    brought for the death of any person occurring prior to the
    effective date hereof.
    W. Va. Code § 55-7-6 (Acts of the Fifty-Eighth Legislature of West Virginia, Regular
    Session, 1967).
    As the subject cause of action for wrongful death is created entirely by
    statute, our analysis is guided by the rules of statutory construction. “The primary object
    in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl.
    pt. 1, Smith v. State Workmen’s Comp. Comm’r, 
    159 W. Va. 108
    , 
    219 S.E.2d 361
    (1975).
    In other words, “[t]he basic and cardinal princip[le], governing the interpretation and
    application of a statute, is that the Court should ascertain the intent of the Legislature at
    the time the statute was enacted, and in the light of the circumstances prevailing at the
    time of the enactment.” Syl. pt. 1, Pond Creek Pocahontas Co. v. Alexander, 
    137 W. Va. 864
    , 
    74 S.E.2d 590
    (1953). Thus, “[i]f the language of an enactment is clear and within
    the constitutional authority of the law-making body which passed it, courts must read the
    relevant law according to its unvarnished meaning, without any judicial embroidery.”
    Syl. pt. 4, West Virginia Health Care Cost Review Auth. v. Boone Mem’l Hosp., 
    196 W. Va. 326
    , 
    472 S.E.2d 411
    (1996). In such case, the plain meaning of the statute is to
    be applied without interpretation by the Court: “Where the language of a statute is free
    from ambiguity, its plain meaning is to be accepted and applied without resort to
    interpretation.” Syl. pt. 2, Crockett v. Andrews, 
    153 W. Va. 714
    , 
    172 S.E.2d 384
    (1970).
    12
    We previously have determined that, in recognizing a cause of action for
    wrongful death, W. Va. Code § 55-7-5 requires the satisfaction of two distinct elements:
    Under the express provisions of the wrongful death
    statute, in order to maintain an action for wrongful death there
    must be the death of a person and the death must be caused by
    such wrongful act, neglect or default as would, if death had
    not ensued, have entitled the party injured to maintain such
    action to recover damages for such wrongful death.
    Baldwin v. 
    Butcher, 155 W. Va. at 437
    , 184 S.E.2d at 431-32. See also Hoover’s Adm’x
    v. Chesapeake & Ohio Ry. Co., 
    46 W. Va. 268
    , 271, 
    33 S.E. 224
    , 225 (1899) (“While the
    real cause of action is the negligent injury, it is not committed until it result in death, and
    then the action accrues to the administrator, and not until then.”). Injecting an additional
    factor alleging fraudulent concealment of the wrongful conduct purportedly leading to the
    decedent’s death is simply not part of the statutory lexicon, and we are not at liberty to
    add such language. In other words, “[i]t is not for this Court arbitrarily to read into [a
    statute] that which it does not say. Just as courts are not to eliminate through judicial
    interpretation words that were purposely included, we are obliged not to add to statutes
    something the Legislature purposely omitted.” Banker v. Banker, 
    196 W. Va. 535
    , 546-
    47, 
    474 S.E.2d 465
    , 476-77 (1996) (citations omitted). See also State ex rel. Frazier v.
    Meadows, 
    193 W. Va. 20
    , 24, 
    454 S.E.2d 65
    , 69 (1994) (“Courts are not free to read into
    the language what is not there, but rather should apply the statute as written.”); Syl. pt. 1,
    Consumer Advocate Div. of Pub. Serv. Comm’n of West Virginia v. Public Serv. Comm’n
    of West Virginia, 
    182 W. Va. 152
    , 
    386 S.E.2d 650
    (1989) (“A statute, or an
    13
    administrative rule, may not, under the guise of ‘interpretation,’ be modified, revised,
    amended or rewritten.”).
    Moreover, while the Petitioners assert that the claim they seek to prosecute
    herein is one for fraudulent concealment, it very surely is rooted in a cause of action for
    wrongful death given that the first certified question, itself, refers to the plaintiffs’ lost
    claim for wrongful death. Furthermore, the damages that the Petitioners seek herein are
    in the amount specifically permitted by the wrongful death statute in effect in 1968. In
    this regard, the Petitioners’ underlying complaint specifically alleges that the
    “Defendants deprived [the] plaintiffs of their right to obtain relief against [the] defendants
    under West Virginia’s wrongful death statute” and seeks damages “[p]ursuant to W. Va.
    Code § 55-7-6 (1967), [of] one hundred and ten thousand dollar[s] ($110,000.00) per
    class member for the wrongful death of each deceased coal miner[.]” This language is
    consistent with the 1967 version of W. Va. Code § 55-7-6, which provided damages for a
    wrongful death claim as follows:
    The wrongful death statute of this state . . . by Section 6
    permits the recovery of such damages as a jury may deem fair
    and just not exceeding $10,000, to be distributed to the parties
    and in the proportion provided by law for the distribution of
    personal estate left by persons dying intestate, and also
    permits damages not to exceed $100,000 for financial and
    pecuniary loss sustained by the dependent distributees of the
    decedent, and in addition reasonable funeral expenses and
    reasonable hospital, medical and other expenses incurred as a
    result of the wrongful act, neglect or default of the defendant
    which resulted in death.
    14
    
    Baldwin, 155 W. Va. at 441
    , 184 S.E.2d at 433-34 (discussing version of W. Va. Code
    § 55-7-6 in effect at time of 1968 mine explosion). See also W. Va. Code § 55-7-6
    (defining damages awardable in wrongful death action).
    Additionally, with respect to the timeliness of a wrongful death claim
    referenced in the first certified question, this Court repeatedly has recognized that another
    integral part of a wrongful death claim is that it must be filed within two years of the
    decedent’s death:
    [T]he cause of action [for wrongful death] did not exist at
    common law, but is created by statute. The bringing of the
    suit within two years from the death of the person whose
    death has been caused by wrongful act is made an essential
    element of the right to sue, and it must be accepted in all
    respects as the statute gives it. And it is made absolute,
    without saving or qualification of any kind whatever. There
    is no opening for explanation or excuse. Therefore, strictly
    speaking, it is not a statute of limitation.
    
    Lambert, 42 W. Va. at 817
    , 26 S.E. at 432-33 (citations omitted). See also W. Va. Code
    § 55-7-6 (“Every such action shall be commenced within two years after the death of
    such deceased person.”). Such temporal filing period has been denominated a statute of
    repose, as distinguished from a statute of limitations, and is an essential element of the
    wrongful death claim, itself. See Smith v. Eureka Pipe Line Co., 
    122 W. Va. 277
    , 280, 
    8 S.E.2d 890
    , 892 (1940) (“It is . . . clear that Code, 55-7-5 and 6, under our present
    decisions bear no relationship to statutes of limitation, and contain no language that
    would justify a joint construction therewith.”), overruled on other grounds by Bradshaw
    v. Soulsby, 
    210 W. Va. 682
    , 
    558 S.E.2d 681
    . In this regard, we specifically have held
    15
    that the statute’s “proviso that any such action shall be commenced within two years after
    the death of such deceased person is an essential restraining element of the right of action
    given.” Syl. pt. 1, in part, Lambert, 
    42 W. Va. 813
    , 
    26 S.E. 431
    . Reiterating this holding,
    we further concluded that “the two year limitation upon the bringing of an action for
    wrongful death is an integral part of the statute itself and creates a condition precedent to
    the bringing of an action which bears no relationship to statutes of limitation[.]” 
    Rosier, 156 W. Va. at 866
    , 199 S.E.2d at 53.
    While this Court has, in more recent years, recognized that this mandatory
    two-year filing period may be expanded in certain, narrowly defined circumstances,2
    these cases do not apply retroactively to expand the two-year filing period in the case sub
    judice. Although we have afforded decisions of this Court retroactive application, such
    retrospective effect generally is very narrowly and scrupulously applied to only those
    cases currently in litigation—and not to all cases in perpetuity or ad infinitum. See
    2
    See Syl. pt. 2, Miller v. Romero, 
    186 W. Va. 523
    , 
    413 S.E.2d 178
    (1991)
    (“The two-year period which limits the time in which a decedent’s representative can file
    suit is extended only when evidence of fraud, misrepresentation, or concealment of
    material facts surrounding the death is presented.”), overruled by Bradshaw v. Soulsby,
    
    210 W. Va. 682
    , 
    558 S.E.2d 681
    (2001). See also Syl. pt. 8, Bradshaw, 
    210 W. Va. 682
    ,
    
    558 S.E.2d 681
    (“In a wrongful death action, under the discovery rule, the statute of
    limitation contained in W. Va. Code, 55-7-6(d) [1992] begins to run when the decedent’s
    representative knows or by the exercise of reasonable diligence should know (1) that the
    decedent has died; (2) that the death was the result of a wrongful act, neglect, or default;
    (3) the identity of the person or entity who owed the decedent a duty to act with due care
    and who may have engaged in conduct that breached that duty; and (4) that the wrongful
    act, neglect or default of that person or entity has a causal relation to the decedent’s
    death.”).
    16
    Caperton v. A.T. Massey Coal Co., Inc., 
    225 W. Va. 128
    , 156, 
    690 S.E.2d 322
    , 350
    (2009) (“The Supreme Court of Appeals of West Virginia . . . adheres to the common law
    principle that, as a general rule, judicial decisions are retroactive in the sense that they
    apply both to the parties in the case before the court and to all other parties in pending
    cases.” (emphasis added; internal quotations and citations omitted)); Richmond v. Levin,
    
    219 W. Va. 512
    , 518-19, 
    637 S.E.2d 610
    , 616-17 (2006) (per curiam) (“The issue of
    retroactivity in this case is narrowly confined to cases pending in the circuit courts or on
    appeal to this Court . . . . In fact, we are not aware of any prior ‘civil’ decision of this
    Court that was made retroactive to cases in which the appeal period had expired. It is
    only in the context of criminal litigation that a new decision may be applied retroactive to
    cases in which the direct appeal period has expired. This is so because criminal
    defendants can make collateral attacks on final judgments through the writ of habeas
    corpus.” (citation omitted)).
    The opinions of this Court recognizing that the two-year wrongful death
    filing period may be altered in particularly enumerated circumstances—Miller v. Romero,
    
    186 W. Va. 523
    , 
    413 S.E.2d 178
    (1991), overruled by Bradshaw, 
    210 W. Va. 682
    , 
    558 S.E.2d 681
    , and Bradshaw v. Soulsby, 
    210 W. Va. 682
    , 
    558 S.E.2d 681
    (2001)—were
    decided twenty-three years and thirty-three years, respectively, after the subject 1968
    mine explosion. Insofar as the Petitioners’ wrongful death claims are based on their
    decedents’ deaths in 1968 and the damages they seek herein are those that they could
    have recovered under the wrongful death statute then in effect, we do not find that
    17
    decisions of this Court issued several decades later have any retroactive effect to revive
    their long-precluded wrongful death claims—particularly when the two-year filing period
    was an integral part of the wrongful death cause of action at that time.
    Although we are sympathetic to the Petitioners’ plight, because their
    wrongful death claims are a statutorily-created cause of action, we are bound by the
    directives of the Legislature and the parameters of such a claim as established by the
    legislative promulgation authorizing the same. See Syl. pt. 2, Huffman v. Goals Coal
    Co., 
    223 W. Va. 724
    , 
    679 S.E.2d 323
    (2009) (“This Court does not sit as a
    superlegislature, commissioned to pass upon the political, social, economic or scientific
    merits of statutes pertaining to proper subjects of legislation.      It is the duty of the
    Legislature to consider facts, establish policy, and embody that policy in legislation. It is
    the duty of this Court to enforce legislation unless it runs afoul of the State or Federal
    Constitutions.”).
    Being that such a restrictive construction of the elements and filing limits
    for the bringing of a wrongful death cause of action are required by the plain language
    employed by the Legislature in enacting W. Va. Code § 55-7-5 and W. Va. Code § 55-7-
    6, we answer the first certified question in the negative: No, a fraudulent concealment
    claim is not cognizable when the alleged injury was the plaintiffs’ loss of a timely claim
    for wrongful death under the West Virginia wrongful death statutes, W. Va. Code §§ 55-
    7-5 and 55-7-6. Having found that no cause of action for fraudulent concealment exists
    18
    in answer to the first certified question,3 we need not reach the second certified question,
    which seeks to establish the statute of limitations applicable to such a claim.
    IV.
    CONCLUSION
    For the foregoing reasons, we answer the questions certified by the United
    States Court of Appeals for the Fourth Circuit in its August 15, 2018 certification order,
    and reformulated by this Court, as follows:
    (1) Is a fraudulent concealment claim cognizable when the
    alleged injury was the plaintiffs’ loss of a timely claim for
    wrongful death under West Virginia Code §§ 55-7-5, 55-
    7-6 (1967)?
    ANSWER: No. A fraudulent concealment claim is not
    cognizable when the alleged injury was the plaintiffs’ loss of
    a timely claim for wrongful death under West Virginia Code
    §§ 55-7-5, 55-7-6 (1967).
    (2) If the answer to Question (1) is yes: Under the West
    Virginia discovery rule, does the statute of limitations for
    a fraudulent concealment claim begin to run against a
    corporate entity when a plaintiff (A) learns that the entity
    concealed the intentional act of an unidentified individual,
    which resulted in the death of other employees at the
    entity’s workplace; or (B) discovers that the entity
    concealed both the intentional act and the identity of a
    particular employee, who allegedly acted at the direction
    of the entity, resulting in the death of other employees at
    the workplace?
    3
    Although we find no cause of action exists for fraudulent concealment
    with respect to wrongful death claims related to deaths that occurred in 1968 and that are
    governed by the wrongful death statutes then in effect, we do not address or decide
    whether a cause of action for fraudulent concealment exists in other contexts.
    19
    ANSWER: Certified Question 2 has been rendered moot by
    the Court’s Answer to Certified Question 1 insofar as there is
    no fraudulent concealment claim for which a statute of
    limitations would begin to run.
    Certified Questions Answered.
    20