                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1471



HELLEN L. DELAWDER,

                                              Plaintiff - Appellant,

           versus


AMERICAN WOODMARK CORPORATION,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CA-02-11-2)


Argued:   March 15, 2006                   Decided:   April 25, 2006


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jimmy Lynn Hill, RITCHIE LAW FIRM, P.L.C., Winchester, Virginia,
for Appellant. Daniel R. Schuda, SCHUDA & ASSOCIATES, P.L.L.C.,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant Hellen Delawder appeals an order of the district

court granting summary judgment to Appellee American Woodmark

Corporation (“Woodmark”) in this personal injury diversity action.

Delawder contends that the district court erred in granting summary

judgment to Woodmark because she demonstrated a material issue of

fact on each of the five elements of W.V. Code § 23-4-2(c)(2)(ii)

necessary to abrogate Woodmark’s immunity as Delawder’s employer

under the West Virginia Workers’ Compensation Act (“The Act”) and

allow her to proceed against Woodmark in tort.      Because Delawder

has not demonstrated that a “statute, rule, regulation or standard

was specifically applicable to the particular work and working

condition involved” in her accident, as required by W.V. Code § 23-

4-2(c)(2)(ii)(C), we affirm the district court order.



                                 I.

     On June 28, 2000, Delawder suffered a serious workplace injury

while employed by Woodmark when her hand became trapped in moving

components of a robotic paint spray machine.      Woodmark employed

Delawder as an operator of the paint spray machine on one of its

assembly production lines that manufactured kitchen cabinets and

vanities.     As pieces of cabinetry moved down this assembly line,

rotating metal bands carried them through the paint spray machine

where the cabinetry was painted.      During this process, the metal


                                  2
bands became covered in excess paint. After the metal bands passed

the cabinetry out of the paint spray machine, the bands rotated

under the paint spray machine and passed through a solvent to

remove the excess paint.          The metal bands then passed over a felt

roll to remove any additional excess paint before rotating upwards

to begin the process anew.

     During the course of a day, this felt roll wore down and lost

its efficacy.      Delawder’s job required her to maintain the felt

roll and either realign or replace it as the roll became worn.

Delawder accessed the felt roll through an opening on the underside

of the paint spray machine.               This opening also exposed other

internal moving components of the machine.

     On the day of her accident, Delawder bent down to check the

status of the felt roll and determine whether she could wait until

the next scheduled break to replace it.                   Although the paint spray

machine normally has a machine guard that covers the opening in

order to prevent employees from coming into contact with the moving

parts of the machine, the guard was not present on the day of

Delawder’s accident and had been missing for some prior period of

time.      Delawder   testified,     however,            that    had    the    guard   been

present,    she    would   have    removed          it   to     inspect       and   conduct

maintenance on the felt roll, as this was her common practice.                           As

Delawder    bent   down    to   inspect       the    felt       roll,   her    supervisor

startled her and she jerked upward.                 As she did so, her hand came


                                          3
into contact with and became trapped in the internal components of

the paint spray machine, causing significant injury.

     Delawder’s employment caused her to be covered by the West

Virginia Workers’ Compensation Act.     That statute provides the

exclusive remedy for an employee injured in the line of work,

except where the injury arises from the “deliberate intention” of

the employer.   See W.V. Code §§ 23-2-6, 23-4-2(d)(2).    Delawder

filed this diversity action seeking to invoke the “deliberate

intention” exception against Woodmark by proving the following five

elements set out in § 24-3-2(d)(2)(ii)(A) - (E):1

     (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,



     1
      A plaintiff can also establish “deliberate intention” by
proving that the employer “acted with a consciously, subjectively
and deliberately formed intention to produce the specific result of
injury or death to an employee.”     W.V. Code § 23-4-2(d)(2)(I).
Delawder does not contend that Woodmark meets this standard.

                                4
     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, 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.

W.V. Code § 23-4-2(d)(2)(ii)(A)-(E).

     After Delawder filed this action and the parties conducted

discovery, Woodmark filed a motion for summary judgment arguing

that Delawder could not establish a material issue of fact on

subsections (A), (B) or (C) of § 23-4-2(c)(2)(ii).    The district

court granted Woodmark’s motion and held that Delawder created an

issue of fact on subsections (A) and (B), but failed to do so on

subsection (C).   On appeal, neither party challenges the district

court’s ruling on subsections (A) and (B).   The only issue before

us is whether the district court properly held that Delawder failed

to establish “[t]hat the specific unsafe working condition was a

violation of a state or federal safety statute, rule or regulation.

. . .”   W.V. Code § 23-4-2(d)(2)(ii)(C).

     We review the district court’s grant of summary judgment de

novo, viewing all evidence in the light most favorable to the non-

moving party.   Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006)


                                 5
(en banc).      Summary judgment is appropriate "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."       Fed. R. Civ. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).                  For the

reasons that follow, we find no error in the district court’s

conclusion.



                                   II.

      In order to protect the integrity of the workers’ compensation

scheme, the West Virginia legislature adopted the “deliberate

intention” exception as a narrow departure from the general rule

that the Workers’ Compensation Act provides the exclusive remedy

for employees’ on-the-job injuries.       See W.V. Code § 23-4-2(d)(1);

Handley v. Union Carbide Corp., 804 F.2d 265, 269 (4th Cir 1986).

Any analysis of whether an employer acted with deliberate intention

is limited to a consideration of the five statutory elements set

out   in   §   23-4-2(d)(2)(ii),   and   in   order   to   survive   summary

judgment, a plaintiff must make a prima facie showing of a disputed

fact as to each.      See W.V. Code § 23-4-2(d)(1); Deskins v. S.W.

Jack Drilling Co., 215 W. Va. 525, 528, 600 S.E.2d 237, 240 (2004).

      As subsection (c) is the only element of the analysis at issue

here, Delawder must demonstrate an issue of fact as to whether


                                    6
Woodmark violated a statute, rule or regulation that specifically

“applied to the alleged unsafe working condition” underlying her

injury.   Tolley v. ACF Indus., Inc., 212 W. Va. 548, 557, 575

S.E.2d 158, 167 (2002).    In determining whether she meets that

burden, we bear in mind the stated intent of the West Virginia

legislation “to remove from the common law tort system all disputes

between . . . employers and employees regarding the compensation to

be received for injury . . .” and “to create a legislative standard

for loss of that immunity of more narrow application and containing

more specific mandatory elements than the common law tort system .

. . standard of willful, wanton and reckless misconduct.”     W.V.

Code § 23-4-2(d)(1).

     Delawder argues that she identified one federal regulation, 29

C.F.R. § 1910.212, and two state statutes, W.V. Code §§ 21-3-2, -4,

that satisfy subsection (C) by imposing machine guarding safety

standards that are “specifically applicable to the particular work

and working condition involved” in her injury.   W.V. Code § 23-4-

2(c)(2)(ii)(C).   However, even assuming that these provisions are

otherwise sufficiently particularized with respect to Delawder’s

work and working conditions, each contains either limiting language

or an exception that defeats her argument.




                                 7
     1.   29 C.F.R. § 1910.212 & W.V. Code § 21-3-2

     Delawder argues that Woodmark violated W.V. Code § 21-3-2 and

29 C.F.R. § 1910.212(a)(1)-(a)(3)2 by failing to install effective

machine guards on the paint spray machine.     Section 21-3-2 of the

West Virginia Code requires machine guarding “where practicable,”

while 29 C.F.R. § 1910.212(a)(2) requires such guarding “where

possible.”   The record reveals that Woodmark outfitted the paint

spray machine with guards that covered the internal components of

the machine and prevented access thereto.       At the time of her

accident, however, Delawder was engaged in work that required the

removal of these guards. Indeed, Delawder testified that she would

have removed the guards had they been present on that day.      Given

her acknowledgement, we do not believe that the safety standards

reflected in these two provisions could be “specifically applicable

to the work and working condition involved” in Delawder’s accident;

it would have been neither possible nor practicable to guard

against work that required an operator to access the very areas of

the paint spray machine covered by the guards.

     Delawder   counters   that   Woodmark   should   have   installed

interlocked machine guards that stopped the drive mechanism of the


     2
      For the first time on appeal, Delawder argues that 29 C.F.R.
§ 1910.212(a)(4), which imposes heightened regulatory requirements
on revolving drums, barrels and containers, also applies to the
work she was engaged in at the time of her accident.      Delawder
waived this argument by failing to raise it in the district court
below. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
Thus, we do not address it.

                                  8
paint spray machine when removed and that such guards would have

prevented her injury.       We disagree.     We have carefully reviewed 29

C.F.R. § 1910.212(a)(1)-(a)(3) and W.V. Code § 21-3-2, and cannot

find language in either that would impose such a duty.

       2.      W.V. Code § 21-3-4

       Delawder argues that Woodmark violated § 21-3-4 by allowing

employees to remove guards on the paint spray machine without

promptly replacing them.         Section 21-3-4 of the West Virginia code

prohibits the removal of machine guards required by § 21-3-2,

“except for the purpose of immediately making repairs thereto . .

. .”       W.V. Code § 21-3-4.   The record reveals that Delawder was in

the process of inspecting and conducting repairs to the felt roll

at the time of her accident.3              The fact that the guards were


       3
      Delawder argues that she was not conducting repairs within
the meaning of the statute at the time of her injury.
Unfortunately, the West Virginia legislature did not define the
term “repair” and no West Virginia court has defined the term
within the context of this statute. Therefore, we must predict how
the West Virginia Supreme Court would define this term if it had to
confront this issue. See Doe v. Doe, 973 F.2d 237, 240 (4th Cir.
1992) (federal court sitting in diversity must predict how a state
court would decide an issue).
     Although § 21-3-4 does not define “repair,” the West Virginia
Supreme Court has previously adopted a dictionary definition of the
term, albeit in a different context. See Mozingo v. Wellsburg Elc.
Light, Heat & Power Co., 101 W. Va. 79, 81, 131 S.E. 717, 718
(1926).   In addition, West Virginia courts routinely refer to
dictionaries to define terms. CSX Hotels, Inc. v. City of White
Sulphur Springs, 217 W. Va. 238, 617 S.E.2d 785, 788 (2005);
Coordinating Council for Ind. Living, Inc. v. Palmer, 209 W. Va.
274, 281, 546 S.E.2d 454, 461 (2001); Lawyer Disciplinary Bd. v.
Allen, 198 W. Va. 18, 35, 479 S.E.2d 317, 334 (1996). Accordingly,
we believe that the West Virginia courts would apply the common
dictionary definition of the term “repair” if they were presented

                                       9
missing on that day is immaterial because the work underlying

Delawder’s injury (repairing the felt roll) allows for such removal

and Delawder testified that she would have removed the guards had

they been present, in any event.          Based on these facts, we do not

believe that Delawder demonstrated an issue of fact on whether

Woodmark violated W.V. Code § 21-3-4 for purposes of W.V. Code §

24-3-2(c)(2)(ii)(C).

     At   bottom,   Delawder   has   not     cited   any    “statute,   rule,

regulation or standard [that] was specifically applicable to the

particular work and working condition involved” in her accident

and, therefore, cannot avoid Woodmark’s immunity from suit under

the West Virginia Workers’ Compensation Act.               W.V. Code § 23-4-

2(c)(2)(ii)(C).



                                 III.

     In light of the foregoing, we affirm the order of the district

court.

                                                                    AFFIRMED




with this issue.
     The verb “repair” is defined as “to restore to a good or sound
condition after decay or damage.” The Random House Dictionary of
the English Language, 1632 (Stuart Berg Flexner ed., Random House
2nd Ed.) (1987). Based on this definition of “repair,” we believe
that Delawder was conducting repairs at the time of her accident
because she was in the process of restoring the felt rolls on the
paint spray machine to a “good or sound condition.” Id.

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