Adam Goodman and Paul Underwood v. Blake Auton ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_______________
November 3, 2022
No. 21-0578 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
ADAM GOODMAN and
PAUL UNDERWOOD,
Petitioners,
v.
BLAKE AUTON,
Respondent.
____________________________________________________________
Appeal from the Circuit Court of Mercer County
The Honorable Mark Wills, Judge
Civil Action Nos. 20-C-75-MW
REVERSED AND REMANDED
____________________________________________________________
Submitted: October 18, 2022
Filed: November 3, 2022
Kermit J. Moore, Esquire Ryan J. Flanigan, Esquire
Patrick D. McCune, Esquire Flanigan Law Office
Brewster Morhous, PLLC Princeton, West Virginia
Bluefield, West Virginia Counsel for Respondent
Counsel for Petitioner Adam Goodman
Chip E. Williams, Esquire
Jared C. Underwood, Esquire
Pullin, Fowler, Flanagan, Brown & Poe
PLLC
Beckley, West Virginia
Counsel for Petitioner Paul Underwood
JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.”
Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. “A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety
Co. v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. “W. Va. Code § 23-2-6a [1949] extends the employer’s immunity
from liability set forth in W. Va. Code § 23-2-6 [1991] to the employer’s officer, manager,
agent, representative or employee when he is acting in furtherance of the employer’s
business and does not inflict an injury with deliberate intention.” Syllabus Point 4,
Henderson v. Meredith Lumber Co., Inc., 190 W. Va. 292, 438 S.E.2d 324 (1993).
4. “By reason of the provisions of Sections 6 and 6a, Article 2, Chapter
23 of Code, 1931, as amended, an employee of a subscriber to the workmen’s
compensation fund who negligently injures a fellow employee during the course of their
employment is not liable to respond in damages to the injured fellow employee for the
personal injuries thus caused him.” Syllabus Point 2, Bennett v. Buckner, 150 W. Va. 648,
149 S.E.2d 201 (1966).
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5. “[A] statute that is clear and unambiguous will be applied and not
construed.” Syllabus Point 1, in part, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108(1968).
6. “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).
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ARMSTEAD, Justice:
Adam Goodman (“Goodman”) and Paul Underwood (“Underwood”)
(collectively, Petitioners) appeal the Circuit Court of Mercer County’s order denying their
motion for summary judgment arising from an accident in which Blake Auton (“Auton”)
was injured. In that order, the circuit court held that there was a genuine issue of material
fact as to whether Goodman was acting “within the scope of his employment” while he
was driving a garbage truck when it backed over Auton, seriously and permanently injuring
him. As to Underwood, the circuit court found the need for additional discovery relating
to his actions.
We have thoroughly reviewed the record before us, heard oral argument of
the parties, and reviewed and applied the pertinent legal authorities. From that review, we
conclude that both Goodman and Underwood were clearly acting “in furtherance of the
employer’s business” and that the allegations against both Petitioners are those of pure
negligence, which are barred by workers’ compensation immunity.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2018, Goodman was the driver of a City of Bluefield garbage
truck. Underwood and Auton were riding on the back of the truck, picking up garbage.
While travelling along Wyoming Street in the City of Bluefield, Goodman placed the truck
into reverse, backed up at approximately five miles per hour and struck something – the
force of which knocked Auton off the back of the garbage truck, causing him to land in the
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road behind the truck. Goodman then backed the truck over Auton and dragged him
approximately 30 feet down the road, causing serious and permanent injuries resulting in
the amputation of his right leg. Underwood was not knocked off the truck. Auton alleges
Underwood was slow to react to the accident and to obtain Goodman’s attention to stop
the truck.
Immediately following the accident, Goodman was tested for controlled
substances and tested positive for opiates, oxycodone, hydrocodone, and hydromorphone.
Goodman was later indicted in Mercer County on one count of “Driving in an Impaired
State Proximately Causing Bodily Injury,” which charge was subsequently dismissed,
without prejudice.
Auton applied for and received workers’ compensation for his injuries. He
then sued Underwood and Goodman for their alleged negligence but did not bring suit
against their employer, the City of Bluefield. Goodman and Underwood filed motions for
summary judgment alleging they were immune from tort liability under both the workers’
compensation statutes and the West Virginia Governmental Tort Claims and Insurance
Reform Act. See W. Va. Code §§ 22-2-6 (2003), 23-2-6a (1949), and 29-12A-1 (1986).
In denying that motion, the circuit court found as to Goodman that there was a material
issue of fact as to whether or not Goodman was operating the truck under the influence of
drugs, thereby acting outside the scope of his employment. As to Underwood, the circuit
court held that additional discovery was needed to determine his culpability. On appeal,
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Petitioners renew their arguments that they are entitled to statutory immunity under the
workers’ compensation statutes and the West Virginia Governmental Tort Claims and
Insurance Reform Act. 1 See id.II. STANDARD OF REVIEW
Under the West Virginia Rules of Civil Procedure, a circuit court shall grant
a motion for summary judgment, “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” W. Va. R. Civ. P. 56.
“A circuit court’s entry of summary judgment is reviewed de novo.”
Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). We have also held
that “[a] motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to
clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of
New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
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Auton filed a motion to dismiss the appeal on the ground that this appeal
was taken from an unappealable interlocutory order. We refused this motion. We note
that this appeal raises issues regarding the applicability of the West Virginia Governmental
Tort Claims and Insurance Reform Act, which we have previously held may be subject to
immediate appeal. See Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660(2009).
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III. ANALYSIS
There are two issues raised in the petition for appeal, both of which derive
from the Petitioners’ assertion of immunity from tort liability. The first is whether the
claims below are barred by workers’ compensation immunity. The other is whether those
claims are barred by statutory immunity under the West Virginia Governmental Tort
Claims and Insurance Reform Act.
Under our worker’s compensation statutes, employers are generally immune
from suit for injury or death of their employees if they are subscribers to worker’s
compensation:
Any employer subject to this chapter who subscribes
and pays into the workers’ compensation fund the premiums
provided by this chapter or who elects to make direct payments
of compensation as provided in this section is not liable to
respond in damages at common law or by statute for the injury
or death of any employee, however occurring, after so
subscribing or electing, and during any period in which the
employer is not in default in the payment of the premiums or
direct payments and has complied fully with all other
provisions of this chapter.
W. Va. Code § 23-2-6. 2 This immunity extends to acts of employees of a subscribing
employer when the “employee of such employer . . . is acting in furtherance of the
2
The Legislature revised this section in the 2022 Regular Session. See W.
Va. Code § 23-2-6 (2022). Those changes have no bearing on the outcome of this matter.
Nonetheless, we cite to the 2003 version throughout this opinion in that it was the version
of the statute in effect at the time of the events giving rise to this action.
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employer’s business and does not inflict an injury with deliberate intention.” W. Va. Code
§ 23-2-6a. Indeed, this Court has further defined the scope of individuals to which such
immunity applies, holding that “W. Va. Code § 23-2-6a [1949] extends the employer’s
immunity from liability set forth in W. Va. Code § 23-2-6 [1991] to the employer’s officer,
manager, agent, representative or employee when he is acting in furtherance of the
employer’s business and does not inflict an injury with deliberate intention.” Syl. Pt. 4,
Henderson v. Meredith Lumber Co., Inc., 190 W. Va. 292, 438 S.E.2d 324 (1993). Based
upon the plain language of the statute, we have also found that “[w]orkers’ compensation
is the exclusive remedy against a coemployee when he acts in furtherance of the employer’s
business and does not inflict an injury with deliberate intention.” Deller v. Naymick, 176
W. Va. 108, 111, 342 S.E.2d 73, 76 (1985).
By reason of the provisions of Sections 6 and 6a, Article
2, Chapter 23 of Code, 1931, as amended, an employee of a
subscriber to the workmen’s compensation fund who
negligently injures a fellow employee during the course of their
employment is not liable to respond in damages to the injured
fellow employee for the personal injuries thus caused him.
Syl. Pt. 2, Bennett v. Buckner, 150 W. Va. 648, 149 S.E.2d 201 (1966).
The extent of the immunity to suit as established by the Legislature is
extremely broad:
The Legislature intended for W.Va. Code § 23-2-6
(1991) to provide qualifying employers sweeping immunity
from common-law tort liability for negligently inflicted
injuries. As this Court succinctly stated in State ex rel. Frazier
v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998),
“[w]hen an employer subscribes to and pays premiums into the
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Fund, and complies with all other requirements of the Act, the
employer is entitled to immunity for any injury occurring to an
employee and ‘shall not be liable to respond in damages at
common law or by statute.’ W.Va. Code § 23-2-6 [1991].” This
immunity is not easily forfeited.
Bias v. E. Associated Coal Corp., 220 W. Va. 190, 194, 640 S.E.2d 540, 544 (2006). Thus,
by the incorporation of the provisions describing an employer’s immunity contained in
West Virginia Code § 23-2-6 into West Virginia Code § 23-2-6a, the same sweeping
immunity applies to co-employees.
Auton argues that because Goodman was under the influence of drugs, he
was acting outside the scope of his employment and therefore not entitled to workers’
compensation immunity from suit. However, Auton misconstrues the applicable statutory
language. The question – based upon the clear statutory language – is not whether
Goodman was acting outside the scope of his employment. The operative question is
whether Goodman was acting “in furtherance of the employer’s business.” We are
compelled to apply this plain language. “[A] statute that is clear and unambiguous will be
applied and not construed.” Syl. Pt. 1, in part, State v. Elder, 152 W. Va. 571, 165 S.E.2d
108 (1968). “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). “We look first to the statute’s language. If the
text, given its plain meaning, answers the interpretive question, the language must prevail
and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep’t of West
Virginia, 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995). Indeed, we will apply the
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statutory language and examine whether Petitioners were acting in “furtherance of the
employer’s business” when the accident occurred.
There appear to be no direct West Virginia cases discussing the specific
phrase “in furtherance of the employer’s business,” in the context presented here. We point
to two doctrines that discuss this language. The first is known as a “dual-purpose trip,”
and the other is called the “coming and going” rule. We have held that a co-employee who
is engaged in a dual-purpose trip is entitled to immunity from tort liability if certain
standards are satisfied:
For purposes of determining whether a co-employee “is
acting in furtherance of the employer’s business” under W.Va.
Code [§] 23–2–6a [1949], and thereby entitled to immunity
from tort liability, a “dual purpose” trip, that is, a journey by
an employee that serves both personal and business reasons, is
a personal trip if it would have been made even though the
business aspect of the journey was cancelled. However, it is a
business trip if the journey would have gone forward even
though the personal errand was cancelled. In any event, if the
injury or death of an employee prevents the trip from going
forward, the journey may still be a business trip if the business
task would have been done by some other employee at some
other time.
Syl. Pt. 1, Jenrett v. Smith, 173 W. Va. 325, 315 S.E.2d 583 (1983). We have also held
that a driver coming and going to his place of employment may also be immune from suit
when a co-employee is injured by the driver’s negligence:
Generally, 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, and
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where the injury is the proximate result of the negligence of a
co-employee of an employer who subscribes to the Workmen’s
Compensation fund, the co-employee, by virtue of W.Va.
Code [§] 23-2-6a, as amended, is immune from liability in a
personal injury action initiated by the injured employee.
Syl. Pt. 1, Eisnaugle v. Booth, 159 W. Va. 779, 226 S.E.2d 259 (1976), overruled on other
grounds by Mandolidis v. Elkins Indus., Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978).
Petitioners urge us to find that Eisnaugle controls this matter. In that case,
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.
Eisnaugle, 159 W. Va. at 780, 226 S.E.2d at 260. However, in that case, it was presumed
that the driver of the car was acting “in furtherance of the employer’s business.” Indeed,
Eisnaugle does not directly address the ultimate issue here – whether the driver was acting
“in furtherance of the employer’s business” when he injured the co-employee.
Although we have found no controlling West Virginia authority defining “in
furtherance of the employer’s business,” our research has revealed persuasive authority
that contains strikingly similar facts to those present here. See Ortiz v. Clinton, 928 P.2d
718 (Ariz. Ct. App. 1996). In Ortiz, one employee was driving a van under the influence
of alcohol, which resulted in an accident that seriously injured the other employee. Id. at
719-720. The question was whether driver of the car “had abandoned his employment at
the time of the accident, due to his intoxication, [and] was not engaged in any act beneficial
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to. . .” his employer. Id. at 720. The Arizona court found that the driver was entitled to
immunity from suit under Arizona’s workers’ compensation statutes:
In this case, we can say as a matter of law that [the
driver] was not so intoxicated that he abandoned his
employment. Despite his intoxication, he was able to help the
residents into the van. He was able to drive the van to the
restaurant, although during part of the trip he did so recklessly.
He was not incapacitated, and he was able to perform his job
duties despite his intoxication; therefore, he did not abandon
his employment.
Id. at 723-24 (footnote omitted).
In the present case, Goodman was likewise performing the duties assigned to
him at the time Auton was injured. Under the allegations in the complaint, Goodman was
operating the garbage truck with permission and authorization from the City of Bluefield,
albeit while he was apparently under the influence of controlled substances. Though under
the influence of such controlled substances, he performed his job duties, arguably in a
negligent manner, by operating a City-owned garbage truck on its assigned garbage
collection route. From those facts, we can say he was clearly acting in furtherance of the
employer’s business when the accident occurred, thereby entitling him to workers’
compensation immunity.
With regard to Underwood, there are simply no allegations in the complaint
or evidence in the record that he was not acting in furtherance of the employer’s business.
He was riding on the back of the garbage truck, performing his job duties in furtherance of
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the employer’s business – picking up garbage. To the extent that Auton alleges that
Underwood did not inform Goodman that Auton had fallen from the truck in a timely
manner, such allegation if proven would arguably give rise to a claim of negligence but
would not remove him from furthering his employer’s business.
Black’s Law Dictionary defines “furtherance” as “the act or process of
facilitating the progress of something or of making it more likely to occur; promotion or
advancement.” Furtherance, Black’s Law Dictionary (11th ed. 2019). Based upon the
record in this case, it is clear that both Goodman and Underwood were performing tasks
that promoted and advanced the work assigned to them by their employer. The fact that
Auton alleges that they were performing that work in a negligent manner, or as alleged in
the case of Goodman, while under the influence of drugs and/or alcohol, does not remove
their work from the realm of furthering their employer’s business. Therefore, based upon
the sweeping statutory immunity afforded co-employees from tort liability pursuant to
West Virginia’s workers compensation laws, we conclude that Petitioners are immune
from suit for their actions giving rise to this matter. Because we find that workers’
compensation immunity bars the cause of action and entitles Petitioners to summary
judgment, we decline to address the issue of governmental immunity raised by Petitioners
in their appeal.
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IV. CONCLUSION
For the foregoing reasons, we reverse and remand to the circuit court to issue
an order granting summary judgment to Petitioners.
Reversed and remanded.
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