Gina Young, Administratrix v. Apogee Coal Co.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term FILED

November 6, 2013

released at 3:00 p.m.

RORY L. PERRY II, CLERK

No. 12-0835 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

GINA YOUNG, Administratrix of the Estate of

RICHARD YOUNG, JR.,

Plaintiff Below, Petitioner

v.

APOGEE COAL COMPANY, LLC,

PATRIOT COAL CORPORATION and JAMES RAY BROWNING,

Defendants Below, Respondents

Certified Question from the

United States District Court for the Southern District of West Virginia

The Honorable Joseph R. Goodwin, Judge

Case No. 2:12-cv-01324

CERTIFIED QUESTION ANSWERED

Submitted: October 15, 2013

Filed: November 6, 2013

Timothy R. Conaway, Esq. Jeffrey M. Wakefield, Esq.
Benjamin M. Conaway, Esq. Joshua C. Dotson, Esq.
CONAWAY & CONAWAY PLLC FLAHERTY SENSABAUGH
Madison, West Virginia BONASSO PLLC
Attorneys for Petitioners Charleston, West Virginia
Attorneys for Respondents

Guy R. Bucci, Esq.
Mark A. Barney, Esq.
BUCCI, BAILEY & JAVINS, L. C.
Charleston, West Virginia
Attorneys for Amicus Curiae
West Virginia Association for Justice
Thomas P. Maroney, Esq.
MARONEY, WILLIAMS, WEAVER
& PANCAKE, PLLC
Charleston, West Virginia
Attorney for Amicus Curiae
Kenneth M. Perdue as President of The
West Virginia Labor Federation, AFL-CIO

JUSTICE WORKMAN delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “‘A de novo standard is applied by this court in addressing the legal

issues presented by certified question from a federal district or appellate court.’ Syl. Pt. 1,

Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).” Syl. Pt. 2, Aikens v.

Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

2. “Where the issue on an appeal . . . is clearly a question of law or

involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt.

1, in part, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

3. “The statute creating a legislative standard for loss of employer

immunity from civil liability for work-related injury to employees found in W. Va. Code

§ 23-4-2 (1983) essentially sets forth two separate and distinct methods of proving

‘deliberate intention.’” Syl. Pt. 1, Mayles v. Shoney’s, Inc., 185 W. Va. 88, 405 S.E.2d

15 (1990).

4. “A cardinal rule of statutory construction is that significance and

effect must, if possible, be given to every section, clause, word or part of the statute.” Syl.

Pt. 3, Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).

5. “‘In the interpretation of statutory provisions the familiar maxim

expressio unius est exclusio alterius, the express mention of one thing implies the

i
exclusion of another, applies.’ Syllabus Point 3, Manchin v. Dunfee, 174 W.Va. 532, 327

S.E.2d 710 (1984).” Syl. Pt. 6, Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W.Va.

484, 647 S.E.2d 920 (2007).

6. West Virginia Code § 23-4-2(d)(2)(ii) (2005) provides for a

“deliberate intent” cause of action against an employer only. A non-employer “person,”

as identified in West Virginia Code § 23-2-6a (1949), may not be made a defendant in a

cause of action brought pursuant to West Virginia Code § 23-4-2(d)(2)(ii).

ii
WORKMAN, Justice:

This case is before the Court upon a certified question presented by the

United States District Court for the Southern District of West Virginia regarding whether

a “deliberate intent” cause of action pursuant to West Virginia Code § 23-4-2(d)(2)(ii)

(2005) may be brought against a non-employer “person,” such as a supervisor or co­

employee. Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we conclude that a non-employer “person,”

who enjoys the immunity contained in West Virginia Code § 23-2-6a (1949), may not be

made a defendant in a cause of action brought pursuant to West Virginia Code § 23-4­

2(d)(2)(ii). Accordingly, we answer the certified question in the negative.

I. FACTS AND PROCEDURAL HISTORY

On May 14, 2011, Richard Young, Jr. (hereinafter “Young”) was killed

while working for Apogee Coal Company LLC (hereinafter “Apogee”). Young was

allegedly instructed by his supervisor, respondent James Browning (hereinafter

“Browning”), a maintenance supervisor, to remove a counterweight on an end loader to

access the fuel tank. While Young was removing the counterweight, it fell on top of him

and killed him. As a result, petitioner Gina Young, Administratrix of the Estate of

Richard Young, Jr., (hereinafter “petitioner”) filed suit in the Circuit Court of Boone

County, West Virginia, against Apogee, Browning, and Patriot Coal Company, Apogee’s

alleged parent company (hereinafter collectively “respondents”). Petitioner’s complaint

1

alleges, inter alia, a “deliberate intent” cause of action pursuant to West Virginia Code §

23-4-2(d)(2)(ii) against respondents Browning and Apogee on the basis that Young had

not been properly trained on removal of the counterweight. Petitioner alleges that

Browning and Apogee violated each of the five factors contained in West Virginia Code

§ 23-4-2(d)(2)(ii)(A) through (E).

Respondents removed the case to the United States District Court for the

Southern District of West Virginia on the basis of diversity jurisdiction. Respondents

alleged that the diversity-defeating defendant, Browning, had been fraudulently joined

inasmuch as West Virginia Code § 23-4-2(d)(2)(ii) provides a cause of action against an

employer only and that individuals, such as supervisors or co-employees, are not proper

party defendants. Noting the split of authority among the West Virginia federal districts

on this issue, by order dated July 3, 2012, the District Court certified the following

question to this Court pursuant to the Uniform Certification of Questions of Law Act,

West Virginia Code § 51-1A-1 (1996) et seq.:

Does the “deliberate intention” exception to the exclusivity of
Workers Compensation benefits outlined in West Virginia
Code § 23-4-2(d)(2)(ii) apply to “persons” (supervisor and
co-employees) as well as employers?

II. STANDARD OF REVIEW

This Court has consistently held that “‘[a] de novo standard is applied by

this court in addressing the legal issues presented by certified question from a federal

2

district or appellate court.’ Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d

64 (1998).” Syl. Pt. 2, Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000).

Moreover, “[w]here the issue on an appeal . . . is clearly a question of law or involving an

interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal

R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

III. DISCUSSION

West Virginia Code § 23-2-6 (2003) establishes the exclusive remedy as

against an employer for workplace injuries or death and provides general immunity from

suit for such injuries or death to qualifying employers.1 West Virginia Code § 23-2-6a

(1949) extends the same immunity to a variety of natural persons through whom the

employer acts: “The immunity from liability set out in the preceding section [§23-2-6]

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

1
West Virginia Code § 23-2-6 provides, in pertinent part:

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.

3

an injury with deliberate intention.” As is well-established, however, that immunity is

stripped to the extent that a workplace injury or death is inflicted with “deliberate intent.”

W. Va. Code § 23-4-2(c) (2005) (“If injury or death result to any employee from the

deliberate intention of his or her employer to produce the injury or death, the employee . .

. has the privilege to take under this chapter and has a cause of action against the

employer . . . .”); W. Va. Code § 23-2-6a (granting immunity to employee insofar as

employee does not “inflict an injury with deliberate intention”). Deliberate intent may be

proven in two “separate and distinct” ways, as set forth exclusively in West Virginia

Code § 23-4-2(d)(2)(i) and (ii). See Syl. Pt. 1, Mayles v. Shoney’s, Inc., 185 W. Va. 88,

405 S.E.2d 15 (1990) (“The statute creating a legislative standard for loss of employer

immunity from civil liability for work-related injury to employees found in W. Va. Code

§ 23-4-2 (1983) essentially sets forth two separate and distinct methods of proving

‘deliberate intention.’”).

The first type of activity which the Legislature has defined as constituting

deliberate intent involves injury which comes about as the result of a “consciously,

subjectively and deliberately formed intention to produce the specific result of injury or

death[,]” as described in West Virginia Code § 23-4-2(d)(2)(i) (hereinafter “(d)(2)(i)” or

“(i)”).2 The second type of conduct which constitutes deliberate intent is described in

2
Such a cause of action under West Virginia Code § 23-4-2(d)(2)(i) “requires a
showing of an actual, specific intent and may not be satisfied by allegation or proof of:
(A) Conduct which produces a result that was not specifically intended; (B) conduct
(continued . . .)
4

West Virginia Code § 23-4-2(d)(2)(ii) (hereinafter also “(d)(2)(ii)” or “(ii)”) and requires

the employee to prove violation of five factors. The five-factor test requires, generally,

the employee to prove that he or she was injured as the result of a “specific unsafe

working condition” as defined therein, of which the employer had actual knowledge and

to which the employer nevertheless intentionally exposed the employee. This certified

question requires interpretation of the entirety of subsection (d)(2)(i) and (ii), which

describes these two methods of establishing deliberate intent. With emphasis to the

operative terms which form the underpinning of the certified question, West Virginia

Code § 23-4-2(d)(2)(i) and (ii) provide:

(2) The immunity from suit provided under this section and
under sections six [§23-2-6] and six-a [§23-2-6a], article two
of this chapter may be lost only if the employer or person
against whom liability is asserted acted with “deliberate
intention”. This requirement may be satisfied only if:

(i) It is proved that the employer or person against
whom liability is asserted acted with a consciously,
subjectively and deliberately formed intention to produce the
specific result of injury or death to an employee. This
standard requires a showing of an actual, specific intent and
may not be satisfied by allegation or proof of: (A) Conduct
which produces a result that was not specifically intended;
(B) conduct which constitutes negligence, no matter how
gross or aggravated; or (C) willful, wanton or reckless
misconduct; or

(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that
all of the following facts are proven:

which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton
or reckless misconduct[.]”

5
(A) That a specific unsafe working condition existed in
the workplace which presented a high degree of risk
and a strong probability of serious injury or death;

(B) That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe
working condition and of the high degree of risk and
the strong probability of serious injury or death
presented by the specific unsafe working condition;

(C) That the specific unsafe working condition was a
violation of a state or federal safety statute, rule or
regulation, whether cited or not, or of a commonly
accepted and well-known safety standard within the
industry or business of the employer, as demonstrated
by competent evidence of written standards or
guidelines which reflect a consensus safety standard in
the industry or business, which statute, rule, regulation
or standard was specifically applicable to the particular
work and working condition involved, as contrasted
with a statute, rule, regulation or standard generally
requiring safe workplaces, equipment or working
conditions;

(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C), inclusive, of
this paragraph, the employer nevertheless intentionally
thereafter exposed an employee to the specific unsafe
working condition; and

(E) That the employee exposed suffered serious
compensable injury or compensable death as defined
in section one [§23-4-1], article four, chapter twenty-
three whether a claim for benefits under this chapter is
filed or not as a direct and proximate result of the
specific unsafe working condition.

6

(emphasis added). The certified question as framed by the District Court inquires as to

whether a non-employer “person” may be made a party defendant in a case brought

pursuant to West Virginia Code § 23-4-2(d)(2)(ii).3

In absence of any outcome-determinative caselaw, the parties urge the

reasoning employed by the various federal district courts in this State in support of their

respective positions and advance a variety of policy-related arguments.4 This issue has

apparently frequently arisen in federal court in instances where defendants remove the

case on diversity grounds, but in so doing must establish that the individual, diversity-

defeating defendant has been fraudulently joined, as in the case sub judice. As a result, a

split of authority between the Southern and Northern Districts of West Virginia has

arisen. In general, the Southern District has held that (d)(2)(ii) does not support a cause

of action against an individual defendant, dismissed the diversity-defeating defendant,

3
The Court recognizes, of course, that a natural “person” may be an “employer”
for purposes of workers’ compensation. (“A person, firm, association or corporation,
regularly employing other persons for the purpose of carrying on any business in this
State within the usual meaning of those words, who holds himself or itself out to be an
employer, and is accepted as such by the State Compensation Commissioner, is an
‘employer’ within the meaning of the Act.” Syl. Pt. 1, State ex rel. Red Jacket Coal
Corp. v. Stokes, 142 W.Va. 126, 94 S.E.2d 634 (1956)). To the extent reference herein is
made to “persons” or “individuals,” those persons or individuals are defined as being
those non-employer individuals identified in West Virginia Code § 23-2-6a.
4
The West Virginia Association for Justice and Kenneth M. Perdue, President of
the West Virginia Labor Federation, AFL-CIO provided a joint amici brief which
essentially mirrors the arguments advanced by petitioner. The Court acknowledges and
expresses its appreciation for their submission.

7

and retained jurisdiction. The Northern District has largely held that there is at least a

“possibility” that a (d)(2)(ii) case may be made against individuals and therefore

remanded the cases back to state court for lack of diversity. (“‘The removing party must

establish either: [t]hat there is no possibility that the plaintiff would be able to establish a

cause of action against the in-state defendant in state court; or [t]hat there has been

outright fraud in the plaintiff’s pleading of jurisdictional facts.’” Mayes v. Rapoport, 198

F.3d 457, 464 (4th Cir. 1999) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232

(4th Cir. 1993)).5

In that regard, petitioner first argues that because the prefatory language of

subsection (d)(2)—which introduces the successive descriptions of the two types of

deliberate intent contained in (d)(2)(i) and (d)(2)(ii)—utilizes the phrase “the employer or

5
Each district does, however, have a minority of decisions to the contrary of the
prevailing view of that district. See Burch v. Monarch Rubber Co., 2:06-cv-760 (S.D.W.
Va. 2006) (Goodwin, J.) (granting motion to remand for lack of diversity); Bledsoe v.
Brooks Run Mining Co., LLC, 2011 WL 5360042 (S.D.W. Va. 2011) (Berger, J.) (same);
Fincham v. Armstrong World Indus., Inc., 2008 WL 9007258 (N.D.W. Va. 2008) (Bailey,
J.) (denying motion to remand and dismissing non-diverse, individual defendant).
Notably, in Bledsoe, the court highlighted the requirement that, on a motion to remand
based on fraudulent joinder, “‘all legal uncertainties are to be resolved in the plaintiff’s
favor.’” Bledsoe at *3 (citing Hartley v. CSX Transp. Inc., 187 F.3d 422, 425 (4th Cir.
1999)). Respondents note, however, that when faced with this issue in the context of a
motion to dismiss both Judges Berger (while on the State circuit bench) and Goodwin
dismissed an individually named defendant from a (ii) case. See Farley v. Argus Energy,
LLC, C.A. 07-C-2683 (Cir. Ct. Kan. Cnty. June 5, 2008) (Berger, J.); Stover v. Matthews
Trucking, Inc., 2011 WL 6141099 (S.D.W. Va. 2011) (Goodwin, J.) (contrasting the
required analysis of propriety of (ii) case against individual defendant in context of
motion to dismiss as opposed to the higher burden imposed upon the moving party under
fraudulent joinder standards).

8

person against whom liability is asserted,” it controls the subsections thereafter, in which

event either type of deliberate intent case may be alleged against an employer or a

person, such as a co-employee, supervisor, or corporate officer. (emphasis added). As a

corollary to this argument, petitioner cites this Court’s opinion in Bennett v. Bucker, 150

W. Va. 648, 149 S.E.2d 201 (1966), in which we found a co-employee immune from suit

as a result of the extension of immunity to fellow employees under West Virginia Code §

23-2-6a. Petitioner cites to the Bennett Court’s statement that “[i]t is obvious that the

purpose of [West Virginia Code § 23-2-6a] . . . was to ‘extend’ the same immunity and to

accord an immunity identical with that of the employer to additional persons, including

fellow employees.” 150 W. Va. at 654, 149 S.E.2d at 205. Petitioner contends that if the

employer loses immunity in instances where an individual does not, the immunity

between the two is no longer “identical” and that only by reading (d)(2)(i) and (d)(2)(ii)

coextensively with one another is that purpose fulfilled.

Petitioner’s argument in this regard is similar to—and likely derives from—

the rationale utilized in the leading case in the Northern District on this issue, Weekly v.

Olin Corp., 681 F. Supp. 346 (N.D.W. Va. 1987) (Kaufman, J.).6 In Weekly, the court

agreed with the plaintiff’s position that because the

6
Senior Judge Frank A. Kaufman of the United States District Court for the
District of Maryland was sitting by designation.

9

 introductory language of section 23-4-2(c)(2),7 which governs
the application of all parts of section 23-4-2 and thus of both
subsections 23-4-2(c)(2)(i) and 23-4-2(c)(2)(ii), speaks of the
“employer or person[,]” . . . . the two subsections merely
represent two alternative methods of proving liability against
either one or both of the employer and co-worker.

Id. at 352 (footnote added). Citing Bennett, the Weekly court likewise noted that the

immunity afforded to employees was intended to be identical to that afforded to the

employer and that “[t]he scope of immunity would cease to be identical if a co-worker,

i.e., a ‘person’ who is not an ‘employer,’ enjoyed greater statutory protection with respect

to the burden of proof than did his employer.” Id. (citations omitted). 8

Respondents, on the other hand, argue that because the plain language of

(d)(2)(ii) references only the employer, a “specific unsafe working condition”-type

7
The methods of establishing deliberate intent were originally contained in West
Virginia Code § 23-4-2(c)(2), but were redesignated as § 23-4-2(d)(2) in 2003 after
insertion of an additional subsection.
8
Two additional courts in the Northern District subsequently agreed with this
interpretation, granting motions to remand for lack of diversity where individual
defendants were named in (ii) suits. See Goudy v. McElroy Coal Co., 2010 WL 4179254
(N.D.W. Va. 2010) (Stamp, J.); Hoffman v. Consolidation Coal Co., 2010 WL 4968266
(N.D.W. Va. 2010) (Stamp, J.); Williams v. Harsco Corp., 2011 WL 3035272 (N.D.W.
Va. 2011) (Keeley, J.); Blythe v. Consolidation Coal Co., 2013 WL 486871 (N.D.W. Va.
2013) (Stamp, J.). In support of their decisions, and without much additional analysis,
they cite to Weekly, other Northern District cases which relied upon Weekly, and state
court cases from Harrison and Kanawha Counties finding similarly. Knight v. Baker
Material Handling Corp., No. 01-C-39-1 (Cir. Ct. Harrison Cnty. Sept. 26, 2001);
Anderson v. Am. Elec. Power Serv. Corp., No. 06-C-770 (Cir. Ct. Kanawha Cnty. April
10, 2007). Like Judges Berger and Goodwin in the Southern District, most of these
decisions also reference the court’s requirement to resolve “legal uncertainties” in
plaintiff’s favor within the context of a motion to remand. See n.5, supra.

10

deliberate intent case may only lie against the employer and not a “person,” such as a co­

employee or supervisor. Respondents further counter petitioner’s argument about the

“identical” nature of employer and employee immunity by noting that 1) Bennett was

decided before (d)(2)(i) and (ii) were enacted;9 and 2) simply because an employer and

“person” can lose their immunity in different ways does not mean that the grant of

immunity under West Virginia Code §§23-2-6 and -6a is not identical as to both.

Respondents’ position mirrors that subscribed to in large part in the

Southern District, as set forth in Evans v. CDX Services, LLC, 528 F. Supp.2d 599

(S.D.W. Va. 2007) (Johnston, J.). In Evans, the court found that the rules of statutory

construction required that the court “‘give significance and effect to every section, clause,

word or part of a statute[.]’” Id. at 605 (quoting Savilla v. Speedway Superamerica, LLC,

219 W.Va. 758, 763, 639 S.E.2d 850, 855 (2006), overruled on other grounds by Murphy

v. Eastern American Energy Corp., 224 W.Va. 95, 680 S.E.2d 110 (2009)). Criticizing

the Weekly court for “cho[osing] to give no effect to the differing terminology in the two

subsections[,]” the court found that since the Legislature referenced only “the employer”

in (ii), a case against an individual defendant would not lie. Id.10

9
See n.7, supra.
10
Since Evans, other courts in the Southern District have followed its reasoning
and refused to allow (ii) cases to be asserted against individual defendants. See King v.
Sears Roebuck & Co., 2011 WL 672065 (S.D.W. Va. 2011) (Faber, J.); Stover v.
Matthews Trucking, 2011 WL 6141099 (Goodwin, J.); Adkins v. Consolidation Coal Co.,
856 F. Supp.2d 817 (S.D.W. Va. 2012) (Copenhaver, J.); see also Hager v. Cowin and
(continued . . .)
11

 Subscribing to the reasoning employed in Evans, the court in Adkins v.

Consolidation Coal Co. offered further analysis in support of its conclusion that (ii) does

not provide a cause of action against an individual. Likewise noting that the word

“person” appears nowhere in the text of (ii), the court characterized the contrasting

language in (i) and (ii) as “stark and telling.” 856 F. Supp.2d at 824. The court

concluded that employee immunity could be lost only under a (d)(2)(i) case and, given

the absence of liability-creating language for a “person” in (d)(2)(ii), stated:

Surely, the legislature did not intend, by the express
language it used in section 23-4-2(d)(2)(ii), to withdraw
immunity from an employee simply because the employer
had actual knowledge of the existence of the specific unsafe
working condition and the employer had actual knowledge of
the high degree of risk and the strong probability of serious
injury or death[.] . . . Such an unacceptable result is readily
avoided by giving apt meaning to all parts of section 23-4­
2(d)(2).

Id. The Adkins court found that such a construction of the statute resulted in “[e]very

word, every phrase, and every clause [being] construed in connection with the whole

statute so as to harmonize all parts and faithfully apply the language the legislature

adopted. What this reading does not do is add words to subsection 23-4-2(d)(2)(ii) that

are not there.” Id. Finally, the court readily dismissed any applicability of Bennett to the

analysis because it was decided before the two types of deliberate intent actions were

codified in 1983. Id. at 823.

Co., Inc., 2011 WL 2175075 (S.D.W. Va. 2011) (Johnston, J.); Cartwright v. Superior
Well Servs., Inc., 2011 WL 4528251 (S.D.W. Va. 2011) (Faber, J.);

12
 Having outlined the various reasoning employed in our federal courts, we

find that this case presents a straightforward issue of statutory construction. To that end,

this Court has long recognized that a “cardinal rule of statutory construction is that

significance and effect must, if possible, be given to every section, clause, word or part of

the statute.” Syl. Pt. 3, Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d

676 (1999); see also State ex rel. Johnson v. Robinson, 162 W.Va. 579, 582, 251 S.E.2d

505, 508 (1979) (“It is a well known rule of statutory construction that the Legislature is

presumed to intend that every word used in a statute has a specific purpose and

meaning.”); Davis Mem’l Hosp. v. W. Va. State Tax Comm’r, 222 W.Va. 677, 686, 671

S.E.2d 682, 691 (2008) (same). “Courts should favor the plain and obvious meaning of a

statute as opposed to a narrow or strained construction.” T. Weston, Inc. v. Mineral

Cnty., 219 W.Va. 564, 568, 638 S.E.2d 167, 171 (2006) (citing Thompson v. Chesapeake

& O. Ry. Co., 76 F. Supp. 304, 307-08 (S.D. W. Va. 1948)).

We find the Legislature’s express reference to a “person against whom

liability may be asserted” in (d)(2)(i) and starkly contrasting omission of a commensurate

reference thereto in (ii), which was crafted and enacted at the exact same time,

unmistakable evidence of its intent. To find otherwise would violate virtually every

known tenet of statutory construction. “‘[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.’” Phillips v. Larry’s Drive-In Pharmacy,

13

Inc., 220 W.Va. 484, 491, 647 S.E.2d 920, 927 (2007) (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.”).

Moreover, the statute’s silence as to the elements necessary to establish a

(ii) case against a non-employer person supports the construction that liability against a

non-employer person is simply not contemplated under this manner of proving deliberate

intent. This Court has long-observed the tenet that “‘[i]n the interpretation of statutory

provisions the familiar maxim expressio unius est exclusio alterius, the express mention

of one thing implies the exclusion of another, applies.’ Syllabus Point 3, Manchin v.

Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).” Syl. Pt. 6, Phillips, 220 W.Va. 484,

647 S.E.2d 920. Critically, we have found that “[t]he expressio unius maxim is premised

upon an assumption that certain omissions from a statute by the Legislature are

intentional.” Id. at 492, 647 S.E.2d at 928 (emphasis added). Subsection (d)(2)(ii)

clearly sets forth the very detailed elements of proof required as against “the employer,”

but says nothing of what sort of commensurate finding would be necessary to find a mere

co-employee, supervisor, or even officer liable. Petitioner summarily argues that a jury

would have to find the identical elements of proof against the person to create liability

against him or her; however, this contention is pulled from thin air and merely

underscores the complete lack of direction in the statute as to how a case may be made

against a non-employer individual for a (ii) claim.

14

 Although petitioner’s argument that the reference to “employer or person

against whom liability is asserted” in the prefatory section contained in (d)(2) governs all

subsequent subsections may have some surface level appeal, we find that such language

is simply a grammatical necessity to encompass all of the optional defendants described

in each of the two following subsections. This Court has aptly noted that “statutory

interpretation ‘is a holistic endeavor . . . and, at a minimum, must account for a statute’s

full text, language as well as punctuation, structure and subject matter.’” W. Va. Health

Care Cost Review Auth. v. Boone Mem’l Hosp., 196 W.Va. 326, 338, 472 S.E.2d 411,

423 (1996) (quoting United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,

508 U.S. 439, 455 (1993) (emphasis added).

Subsection (d)(2) simply provides an introduction to the general principle

that the immunity provided to employers in West Virginia Code § 23-2-6 and non-

employer “persons” in West Virginia Code § 23-2-6a may be lost only if either acts with

deliberate intent, as defined in (i) or (ii). Since (i) expressly allows for a suit against a

“person” for a “consciously, subjectively and deliberately” inflicted workplace injury,

while (ii) restricts such an action to “the employer,” the only way to collectively

reference all of the types of otherwise-immune defendants who will be stripped of that

immunity if they act in accordance with the elements of (i) or (ii) is to reference both

employers and persons in the disjunctive. “Recognizing the obvious, the normal use of

the disjunctive ‘or’ in a statute connotes an alternative or option to select.” Carper v.

Kanawha Banking & Trust Co., 157 W.Va. 477, 517, 207 S.E.2d 897, 921 (1974)

15

(emphasis added). Subsections (i) and (ii) present a variety of options to an employee as

to how he or she may prove deliberate intent and who may or may not be sued for each

type of deliberate intent. However, for purposes of establishing one of those actions, (i)

and (ii) are obviously limited to their express terms. An employee may bring an (i) suit

against an employer, a “person against whom liability is asserted,” or both. An employee

may likewise bring a (ii) suit against the employer. Subsection (d)(2) simply introduces

these options. Any concern about not giving effect to the “employer or person” language

in § 23-4-2(d)(2) is misplaced; there is simply no other grammatical way for the

Legislature to make collective reference to all of the various options contained in (i) and

(ii).

Finally, we agree with the Adkins court that our decision in Bennett lends

little, if anything, to our analysis. As noted, Bennett was decided seventeen years before

the deliberate intent exceptions now contained in § 23-4-2(d)(2) were enacted, and

frankly stands only for the proposition that West Virginia Code § 23-2-6a provides fellow

employees with immunity from suit for ordinary workplace negligence. The lone

sentence in Bennett about the “identical” nature of the immunity of employers and

employees, upon which petitioners and the Weekly court so heavily rely, is mere dicta

and can certainly not be said to alter the manner or degree to which an employer or

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employee loses his or her immunity, which matter is governed exclusively by the

language of West Virginia Code § 23-4-2(d)(2)(i) and (ii).11

As noted above, petitioner further advances several policy-based arguments

to encourage this Court to interpret the statute as providing a cause of action against

“persons,” particularly supervisors and officers. In sum, petitioner argues that 1) if

11
Petitioner further argues that the deliberate intent cause of action is actually
“created” in § 23-4-2(c) which likewise contains no reference to “person,” despite the
fact that a cause of action against an individual defendant is expressly permitted under
(d)(2)(i). From this, petitioner argues that a similar omission of the word “person” in
(d)(2)(ii) is therefore “insignificant.” West Virginia Code § 23-4-2(c) provides:

If injury or death result to any employee from the deliberate
intention of his or her employer to produce the injury or
death, the employee . . . has the privilege to take under this
chapter and has a 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 in a claim for benefits
under this chapter, whether filed or not.

(emphasis added). We find this argument meritless. First, we note that this argument is
fairly at odds with petitioner’s contention that the specific inclusion of “person” in the
introductory language contained in (d)(2) is actually controlling in this matter. More to
the point, however, the deliberate intent exception to workers’ compensation immunity
was first codified in 1913, at which time “persons” such as employees or supervisors had
not yet been granted concomitant statutory immunity. 1913 W.Va. Acts Ch. 10; W. Va.
Code § 23-4-2. Therefore, it was unnecessary to extend the statutory deliberate intent
exception to non-employer “person” immunity at that time inasmuch as they had no
statutorily-created immunity. When the immunity was extended to the natural persons
identified in West Virginia Code § 23-2-6a in 1949, the deliberate intent exception was
articulated within that statute itself and it was therefore unnecessary to amend § 23-4­
2(c): “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.” (emphasis added).

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supervisors are not subject to liability for specific unsafe working conditions, they will

have no incentive to enforce safety rules; 2) employers will simply hide assets with high-

ranking officers and supervisors to deplete their corporate funds from which a judgment

can be collected; 3) such a result would permit supervisors, as employees, to sue the

employer, but be immune from suit themselves; and 4) such a rule would force plaintiffs

out of state court, requiring them to cede their local judges and juries and travel to the

closest district court.12

Insofar as petitioner’s policy arguments are concerned, it is simply not the

place of this Court to opine as to the wisdom or efficacy of those concerns in this area

which the Legislature has unmistakably set out to manage wholly by statutory enactment.

See Roberts v. Consolidation Coal Co., 208 W. Va. 218, 234, 539 S.E.2d 478, 494 (2000)

(“[T]he right to workmen’s compensation benefits is based wholly on statutes, in no

sense based on the common law; that such statutes are sui generis and controlling; [and]

12
Respondents commensurately attempt to debunk these policy arguments and
offer policy concerns of their own. Respondents contend that: 1) individual supervisors
or officials may face criminal or regulatory penalties for safety violations, which is more
of a deterrent than a lawsuit for which they may be judgment-proof; 2) companies are not
likely to funnel their assets away from stockholders to officers and managers just to avoid
judgment, and if they do, a plaintiff may pierce the corporate veil; 3) companies, not
supervisors, set policy and therefore permitting a supervisor to sue but not be sued is
consistent with the statutory scheme; and 4) diversity jurisdiction exists to protect non­
resident defendants from local prejudices and plaintiffs only join individuals to defeat
diversity, not to retain a culpable party. Respondent also argues that public policy favors
disallowing a (ii) case against persons such as respondent Browning, as it will have a
chilling effect on attracting qualified people to supervisory roles where they will be
subject to liability for policy decisions over which they have no control.

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that the rights, remedies and procedures thereby provide are exclusive[.]” (quoting

Bounds v. State Workmen’s Comp. Comm’r, 153 W. Va. 670, 675, 172 S.E.2d 379, 382­

83 (1970)). We have long held that “[i]t is not the province of the courts to make or

supervise legislation, and a statute may not, under the guise of interpretation, be

modified, revised, amended, distorted, remodeled, or rewritten[.]” State v. General

Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959)

(citation omitted). While this Court frequently looks to legislative intent as needed to

interpret an ambiguous statute, “[t]his does not mean, however, that we are at liberty to

substitute our policy judgments for those of the Legislature whenever we deem a

particular statute unwise.” Taylor-Hurley v. Mingo Cnty. Bd. of Educ., 209 W.Va. 780,

787, 551 S.E.2d 702, 709 (2001). Moreover, the rules of statutory construction should

not be used to “‘displace legislative policy on the basis of speculation that the legislature

could not have meant what it unmistakably said.’” Id. at 787-88, 551 S.E.2d at 709-710

(quoting 2A Norman J. Singer, Statutes and Statutory Construction § 46:07, at 199 (6th

ed. 2000)). We believe the express language of West Virginia Code § 23-4-2(d)(i) and

(ii) compels the conclusion that a non-employer person is not a viable defendant in a (ii)

case. We therefore hold that West Virginia Code § 23-4-2(d)(2)(ii) (2005) provides for a

“deliberate intent” cause of action against an employer only. A non-employer “person,”

as identified in West Virginia Code § 23-2-6a (1949), may not be made a defendant in a

cause of action brought pursuant to West Virginia Code § 23-4-2(d)(2)(ii).

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 IV. CONCLUSION

For the reasons set forth hereinabove, we answer the certified question in

the negative.

Certified Question Answered.

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