State of West Virginia ex rel. March-Westin Company, Inc. v. The Honorable Phillip D. Gaujot, Judge of the Circuit Court of Monongalia County, and David Raymond Weston

FILED
March 21, 2022
No. 21-0577 – State ex rel. March-Westin Co., Inc. v. Gaujot, et al. released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Hutchison, C.J., concurring, in part, and dissenting, in part: OF WEST VIRGINIA
I am in full agreement with the majority’s conclusion that, for purposes of
assessing percentages of fault pursuant to West Virginia Code § 55-7-13d, the circuit court
must consider the fault of a plaintiff’s employer when it is alleged that the employer has
contributed to the plaintiff’s injury even though the employer is immune from suit and
could not have been named as a party to the suit. In so holding, the majority carefully
examined the statute and properly gave force and effect to the plain and unambiguous
language that the Legislature so purposefully employed.
I dissent, however, to the holding that, under the statute, a party who seeks
to have fault assessed to a nonparty employer need not show that the employer’s acts or
omissions would satisfy the “deliberate intention” standard set forth in West Virginia Code
§ 23-4-2, but that it need only show that the employer proximately caused the plaintiff
employee’s injury by breaching a legal duty “of some kind.” The most obvious problem
with the majority’s decision to simply require proof of “any breach of a legal duty to the
plaintiff” so long as it proximately caused the plaintiff’s injury is that it was fabricated out
of whole cloth, with no basis in either West Virginia Code § 55-7-13d or any other law
within or without our jurisdiction. Indeed, the majority cites to none. But more troubling is
that it has gone out of its way to ignore critical statutory language and the most basic rules
of statutory construction, which clearly establish that the Legislature intended that the
standard of proof for allocating fault to a nonparty employer is the deliberate intention
standard.
Inexplicably, the majority has failed to consider and give effect to specific
statutory language that the Legislature purposefully used for determining whether and to
what degree a nonparty employer shall be assessed fault. When construing a statute, we
must
“presume[] the legislature had a purpose in the use of every
word, phrase and clause found in a statute and intended the
terms so used to be effective, wherefore an interpretation of a
statute which gives a word, phrase or clause thereof no function
to perform . . . must be rejected as being unsound, if it be
possible so to construe the statue as a whole, as to make all of
its parts operative and effective.” Syl. Pt. 7, Ex parte Watson,
[in part,] 82 W. Va. 201, 95 S.E.648 (1918).
Syl. Pt. 3, in part, United States v. Osborne, 211 W. Va. 667, 567 S.E2d. 677 (2002).
Accord Mangus v. Ashley, 199 W. Va. 651, 658, 487 S.E.2d 309, 316 (1997) (“[A]
legislature says in a statute what it means and means in a statute what it says there.”
(internal citations omitted)). Further, it is axiomatic that statutes relating to the same subject
matter or having a common purpose must be read and applied together so as to carry out
the Legislature’s intent:
Statutes which relate to the same persons or things, or
to the same class of persons or things, or statutes which have a
common purpose will be regarded in Pari materia to assure
recognition and implementation of the legislative intent.
Accordingly, a court should not limit its consideration to any
single part, provision, section, sentence, phrase or word, but
rather review the act or statute in its entirety to ascertain
legislative intent properly.
Syl. Pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d
907 (1975). Finally, “[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.” Syl. Pt. 11, in part, Brooke B. v. Ray C., 230 W. Va. 355, 738 S.E.2d
21 (2013).
Under West Virginia Code § 55-7-13d(d), a party seeking to allocate fault to
a nonparty has the burden of proof: “The burden of alleging and proving comparative fault
shall be upon the person who seeks to establish such fault.” Id. The definition of
“comparative fault,” “[f]or purposes of this article [i.e., Chapter 55, Article 7],” is “the
degree to which the fault of a person was a proximate cause of an alleged personal injury .
. . expressed as a percentage.” W. Va. Code § 55-7-13a(a). Finally, the definition of “fault”
“[a]s used in this article [i.e., Chapter 55, Article 7],” is “an act or omission of a person,
which is a proximate cause of injury . . . to another person . . ., including . . . liability under
[West Virginia Code 23-4-2],” our deliberate intention statute. W. Va. Code § 55-7-13b.
The majority has chosen to ignore that a party seeking to allocate fault to a
nonparty for a plaintiff’s injury has the burden of proving the nonparty’s comparative fault,
see W. Va. Code § 55-7-13d(d), and that, for purposes of Chapter 55, Article 7, the
Legislature defined “comparative fault” and “fault” such that “fault” “include[es] . . .
liability” under our deliberate intention statute. See W. Va. Code §§ 55-7-13a(a) and -13b.
The majority’s conclusion that proof of the nonparty employer’s “deliberate intention”
under West Virginia Code § 23-4-2 is not relevant to its comparative fault is simply
incorrect because it fails to read the statutes in Chapter 55, Article 7 together and to give
force and effect to the statutory language that the Legislature has so purposefully
employed. Further, the majority’s unsupported conclusion that a party seeking to assess
fault to a nonparty employer need only show that the employer proximately caused the
plaintiff employee’s injury by breaching a legal duty “of some kind” arbitrarily reads into
the statutory definition of “fault” that which it does not say, but clearly could have said, if
the Legislature so intended.
For the reasons stated above, I concur, in part, and dissent, in part, to the
decision in this case.