                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS


Richard Friel,                                                                     FILED
Plaintiff Below, Petitioner                                                     October 18, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs)   No. 12-1470 (Randolph County 11-C-199)                                   OF WEST VIRGINIA


Kenton Meadows Company, Inc.,
Defendant Below, Respondent


                                 MEMORANDUM DECISION

        Petitioner Richard Friel, by counsel Roger D. Forman, appeals the order of the Circuit
Court of Randolph County granting summary judgment in favor of respondent. Respondent
Kenton Meadows Company, Inc., by counsel Kurt E. Entsminger, William J. Hanna, and Phillip
Estep, filed a response in support of the circuit court’s order. Petitioner has filed a reply.

       This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner Richard Friel was injured on January 19, 2011, while employed as a rock
crusher operator by Respondent Kenton Meadows Company, Inc. Petitioner’s normal duties
consisted of controlling the feeding of rocks into the jaws of a rock crusher. At times, a specially
installed hydraulic hammer was used to help break up larger rocks, thereby speeding up the
overall rock crushing process. However, respondent had operated its rock crushing equipment at
this quarry without the hydraulic hammer for approximately fifteen years before installing the
hammer. Petitioner had worked at the quarry for approximately eight years.

        At the time of petitioner’s accident, the hammer was not in use and had not been in use
for several days. During the course of the rock crushing operations, it was common for a large
rock to become lodged in the jaws of the crusher. On the day of the incident, this occurred at
least twice, once during the morning hours and once at approximately 4:00 p.m. According to the
testimony of respondent’s employees, the normal procedure is to allow other rocks to continue to
pass through the crusher until the larger rock becomes dislodged. Petitioner testified to the same,
stating that the “normal routine was to run extra rock up on it to try to get it where it would feed
through and get it to crush up.”

       On the first occasion of a lodged rock on the date in question, petitioner’s foreman, Ezra

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Westfall, was present. At that time, petitioner followed the normal procedure and continued to
feed other rocks into the machine until the large rock became dislodged. However, during the
second incident of a lodged rock, Westfall was not present. Petitioner initially followed normal
procedures and continued to feed rocks through the crusher in an attempt to dislodge the large
rock. However, petitioner then climbed down from his operator’s station and entered the feeder
area next to the jaws of the crusher. Prior to entering the machine, petitioner locked out and
tagged the feeder but did not lock out and tag the jaws of the crusher; therefore, the jaws of the
crusher continued to operate. Respondent’s employees testified that it was a known safety policy
that employees were not to enter the feeder without locking out the jaws of the crusher or
without putting on fall protection to prevent the employee from falling into the operating jaws.
Petitioner also testified that he knew that entering the feeder in the manner he did was a violation
of Mine Health and Safety Administration (“MSHA”) guidelines. In order to enter the feeder,
petitioner passed around a safety cable that was in place to prevent a person from entering the
feeder. He did not wear a harness or any other form of fall protection. Upon entering the feeder,
he shoveled and threw rocks into the jaws of the crusher in an attempt to dislodge the larger rock.
As he was doing so, a rock rolled down, struck him in the leg, and knocked him on top of the
large rock that was lodged in the jaws of the machine. Two coworkers pulled petitioner to safety,
but not before his leg was injured.

        Immediately following the accident, petitioner was transported to the hospital by
Westfall. During the ride, petitioner and Westfall concocted a story that they agreed they would
tell others regarding how the accident occurred in which they would report that petitioner injured
his foot from slipping on a ladder due to snowy conditions. There is sharp dispute regarding
whether petitioner was a willing participant in making up the story or whether Westfall coerced
him into telling the false story. After this false story was discovered, Westfall was demoted from
his supervisory position.

        As an employee of respondent, petitioner was covered under respondent’s healthcare
plan, wherein respondent paid 75% of the cost of the healthcare premiums while petitioner paid
25%. Prior to the incident in question, the 25% was deducted from petitioner’s checks. However,
after petitioner was injured by the rock crusher, no money was collected because petitioner was
not receiving a weekly check from respondent. Petitioner remained off work for fourteen
months. Between January 19, 2011, and October 31, 2011, respondent continued to pay its 75%
share of the premium, but petitioner did not pay his own 25% share. Moreover, during this same
period, respondent paid petitioner’s 25% share. In August of 2011, respondent decided to initiate
steps to terminate petitioner’s health insurance benefits due to his failure to pay his portion of the
premium. Respondent’s personnel manager, Matt Dittman, contacted its insurance agent, Sherry
Thomas. On October 11, 2011, respondent sent a letter to petitioner informing him that he had
not paid his share of the premiums, and noted that if he did not return to work by October 28,
2011, they would no longer continue to pay his premium. Petitioner did not respond to this letter
and did not return to work. In pertinent part, the letter, drafted by Thomas then placed on
letterhead by Dittman, stated as follows:

       Our records indicate that you have been away from work at Kenton Meadows
       Company Inc. since January 19, 2011. During this time period Kenton Meadows

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       Company Inc. has paid your medical benefits so you continue to be covered under
       the Kenton Meadows Company Inc. Group Medical Plan.

       Although Kenton Meadows Company Inc. has paid your premiums from January
       19, 2011 to current, effective October 28, 2011, if you have not returned to work,
       we will no longer pay your premium.

       If you do not return to work by October 28, 2011, you will terminate from the
       Kenton Meadows Company Inc. effective October 31, 2011, with the right to
       elect COBRA (Consolidated Omnibus Budget Reconciliation Act).

Thereafter, Ceridian Company subsequently sent petitioner a COBRA notice advising him that
he had the right to continue his health insurance benefits by paying the full amount of his
premiums. The notice stated that the qualifying event for COBRA coverage was “termination of
employment.”

        Petitioner then filed an action asserting claims of deliberate intent, fraud, and wrongful
termination against respondent. Both petitioner and respondent filed motions for summary
judgment, and a hearing was held on October 23, 2012. On November 15, 2012, the circuit court
entered an order granting summary judgment in favor of respondent. As to the deliberate intent
claim, the circuit court found that petitioner failed to prove all of the elements of West Virginia
Code § 23-4-2(d)(2)(ii), specifically subparagraphs (A) and (B). The court found that the
hydraulic hammer was not a safety device and was not required to run the rock crusher. The
court also found no intentional exposure as there was no unsafe working condition and that
petitioner’s actions were taken against the directives of his employers. As to the fraud count, the
court concluded petitioner did not rely upon any false representations by respondent and he was
not the victim of any deception, as he was a participant in the deception. As to wrongful
termination, the circuit court found that there was no decision ever made to terminate petitioner.
The court found that the letter contained a typographical error and that none of the
communication should have been construed to terminate petitioner’s employment. Petitioner
now appeals from the order granting summary judgment in favor of respondent.

        “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). “[T]he party opposing summary judgment must
satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce
evidence sufficient for a reasonable jury to find in a nonmoving party’s favor. Anderson [v.
Liberty Lobby, Inc.], 477 U.S. [242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214
[1986].” Williams v. Precision Coil, Inc., 194 W.Va. 52, 60, 459 S.E.2d 329, 337 (1995).

         Petitioner asserts three assignments of error on appeal. First, petitioner argues that the
court erred by ruling that petitioner had not been wrongfully discriminated against in violation of
West Virginia Code § 23-5A-1. Petitioner relies on the October 11, 2011, letter, arguing that the
letter served as a termination notice and that he was terminated based on his injury. Respondent
states that the letter related to the termination of petitioner’s health insurance benefits based on
his failure to pay his portion of the premium, and although it contained a typographical error, the

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letter clearly was not intended as a termination notice.

       “In order to make a prima facie case of discrimination under W.Va. Code, 23–
       5A–1, the employee must prove that: (1) an on-the-job injury was sustained; (2)
       proceedings were instituted under the Workers’ Compensation Act, [§] W.Va.
       Code, 23–1–1 et seq.; and (3) the filing of a workers’ compensation claim was a
       significant factor in the employer’s decision to discharge or otherwise
       discriminate against the employee.” Syl. Pt. 1, Powell v. Wyoming Cablevision,
       Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991).

Syl. Pt. 4, Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 741 S.E.2d 845 (2013). We
agree with the circuit court’s finding in its “Proposed Order Granting Defendant’s Motions for
Summary Judgment and Denying Plaintiff’s Motions for Summary Judgment” that “there is no
credible evidence in this case from which it may reasonably be inferred that [respondent] made
any decision to terminate [petitioner’s] employment.” This finding is further supported by this
Court’s holding in Smith that a clerical error cannot be the basis of a workers’ compensation
discrimination claim. The letter dealt solely with insurance benefits and COBRA coverage, and
did not contain any of the normal terminology related to termination of employment. Thus, we
find no error in the circuit court’s grant of summary judgment on the workers’ compensation
discrimination claim.

       Next, petitioner argues that the court erred by ruling that petitioner had not proven a
prima facie case of deliberate intent. Petitioner argues that the circuit court erred in finding that
he had not proven two of the statutory elements found in West Virginia Code §
23-4-2(d)(2)(ii)(A) and (B). The provisions the circuit court found unproven were as follow:

              (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; . . . .

This Court finds no error in the circuit court order granting summary judgment regarding the
deliberate intent claim in this action. The circuit court concluded, as a matter of law, that the
hydraulic hammer was not a safety device and was used only to expedite petitioner’s job.
Moreover, the circuit court noted that respondent was never cited by MSHA for a safety
violation regarding the absence of this hammer in the fifteen years it operated the quarry without
the hammer, and even petitioner’s expert agreed that there was no legal requirement that the
hammer be used with the rock crusher. As to petitioner’s allegation that he was required to enter
the feeder in order to dislodge the large rock from the jaws of the crusher, we agree with the
circuit court’s finding that there is no genuine issue of material fact in this regard. The facts show
that petitioner was aware and had been previously warned that he was not to enter the feeder
while the jaws of the crusher were still running and without fall protection. Thus, this Court

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agrees with the finding that there was no specific unsafe working condition created by
respondent. As we have previously stated, “[w]here an employee creates a specific unsafe
working condition by not following expected procedures, a deliberate intention action cannot be
maintained against the employer.” Mumaw v. U.S. Silica Co., 204 W.Va. 6, 12, 511 S.E.2d 117,
123 (1998). Additionally, we find that there was no intentional exposure to an unsafe working
condition. This Court finds that summary judgment as to this count was properly granted.

        Finally, petitioner argues that the court erred by granting summary judgment against
petitioner in his claim that respondent committed a fraud against him. Specifically, petitioner
argues that the foreman, Ezra Westfall, committed fraud by filing a false statement to MSHA,
and by threatening petitioner with termination should he fail to agree to falsifying the story as to
how the injury occurred. In West Virginia, the essential elements in an action for fraud are:

       (1) That the act claimed to be fraudulent was the act of the defendant or induced by
       him; (2) that it was material and false; that plaintiff relied upon it and was justified
       under the circumstances in relying upon it; and (3) that he was damaged because he
       relied upon it.

Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981). We agree with the circuit court’s
findings that petitioner did not prove fraud in this matter. Petitioner did not rely upon any false
representations made by Westfall, as he was well aware of how the accident occurred. Moreover,
as the circuit court noted, petitioner continued to tell the false story of how the accident occurred
months afterward. Without showing that petitioner was a victim of a deception committed against
him by petitioner or that he relied on the deception to his detriment, petitioner cannot prove an
actionable claim for fraud. Thus, the grant of summary judgment was proper in this matter.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: October 18, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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