Master Mechanical Insulation v. Richard Simmons ( 2013 )

No. 12-1206 – Master Mechanical Insulation, Inc. v. Richard Simmons
FILED
December 27, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Benjamin, Chief Justice, concurring in part and dissenting in part: OF WEST VIRGINIA
I concur in the majority’s answers to the first and third certified questions. I
must dissent, however, to the majority’s answer to the second certified question which
improperly imposes common law tort principles onto the deliberate intent statute. By
holding that an employer in a deliberate intent action may introduce evidence of an
employee’s conduct as a defense, the majority displays a fundamental ignorance of the
nature of a deliberate intent cause of action created by the Legislature.
The history of the current deliberate intent statute indicates a clear intent by
the Legislature to create a wholly unique cause of action which has no counterpart in our
common law and is completely divorced from common law tort principles. In Mandolidis
v. Elkins Industries, 161 W. Va. 695, 246 S.E.2d 907 (1978), this Court was tasked with
construing a deliberate intent cause of action under the then-existing statutory provision.
At that time, the deliberate intent statute provided as follows:
If injury or death result to any employee from the deliberate
intention of his employer to produce such injury or death, the
employee, the widow, widower, child or dependent of the
employee shall have the privilege to take under this chapter,
and shall also have cause of action against the employer, as if
this chapter had not been enacted, for any excess of damages
over the amount received or receivable under this chapter.
W. Va. Code § 24-3-2 (1969). This Court in Mandolidis found that this “provision by its
express language preserves for employees a common law action against employers ‘as if
this chapter had not been enacted’ ‘if the injury or death of such employee results from
the deliberate intent of the employer to produce such injury or death.’” 161 W. Va. at
698, 246 S.E.2d at 910 (emphasis added). The Court indicated that the workers’
compensation system “completely supplanted the common law tort system only with
respect to negligently caused industrial accidents” 161 W. Va. at 705, 246 S.E.2d at 913
(emphasis in original), but did not supplant common law principles when an employer
engaged in willful, wanton, or reckless misconduct. Accordingly, the Court held in
syllabus point 1 of Mandolidis in relevant part, that “[u]nder W. Va. Code § 23-4-2 an
employer is subject to a common law tort action for damages or for wrongful death where
such employer commits an intentional tort or engages in willful, wanton, and reckless
misconduct.”
In direct response to Mandolidis, the Legislature amended the deliberate
intent statute to create a brand new standard for the loss of an employer’s workers
compensation immunity. This standard is unique and it has no counterpart in the common
law. In amending the statute, the Legislature clearly indicated that its new standard for
loss of employer immunity is “of more narrow application and containing more specific
mandatory elements than the common law tort system concept and standard of willful,
wanton and reckless misconduct.” W. Va. Code § 23-4-2(d)(1). Under this new standard
for loss of immunity, the Legislature crafted five tightly drawn elements which a claimant
must prove before an employer will lose its immunity. These tightly drawn elements are
clear, concise, unambiguous, and plenary, and they do not provide that an employer can
introduce common law defenses to a deliberate intent claim. In fact, this point was made
abundantly clear in syllabus point 8 of Roberts v. Consolidation Coal Co., 208 W. Va.
218, 539 S.E.2d 478 (2000), in which we held that “[w]hen an employee asserts a
deliberate intention cause of action against his/her employer, pursuant to W. Va. Code §
23-4-2(b)–(c) (1991) (Cum.Supp.1991), the employer may not assert the employee’s
contributory negligence as a defense to such action.”
In order to reach its desired result that an employer can defend against a
deliberate intent claim by introducing the common law tort defense of comparative fault,
the majority opinion resorts to finessing, massaging, and dancing around the plain
meaning of syllabus point 8 of Roberts, before finally deciding to just disregard it. The
majority opinion then chides Mr. Simmons for basing his argument “solely on this point
of law [in Roberts]” to cover up the fact that the majority’s own analysis is completely
devoid of legal support.
The majority reads into the deliberate intent statute something that simply
is not there. For this reason, I dissent to the majority’s holding that an employer in a
deliberate intent action may introduce evidence of the employee’s conduct to show fault
on the part of the employee.