No. 12-0548 – McComas v. ACF Industries, LLC
                                                                             FILED
                                                                         October 25, 2013
                                                                        RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
LOUGHRY, Justice, dissenting:                                             OF WEST VIRGINIA




              The majority’s opinion constitutes but yet another step toward its ultimate

goal of rendering our “deliberate intent” statute a meaningless codification of simple

workplace negligence standards.       This effort began in 2006 with Ryan v. Clonch

Industries, Inc., 219 W.Va. 664, 639 S.E.2d 756, and, despite the Legislature’s

unmistakable attempt to combat such judicial activism via amendment to the statute, the

majority continues to insert its own policy-making into West Virginia Code § 23-4-

2(d)(2)(ii)(B). The majority has now created a new syllabus point inexplicably holding

that “actual knowledge” can be proven by establishing what an employer “should have

known,” but for its negligent failure to inspect. Moreover, it continues to stretch the

“specifically applicable to the particular work and working condition” language in § 23-

4-2(d)(2)(ii)(C) into oblivion. It is unclear at this point what more the Legislature must

do to make clear its intent to a majority of this Court so as to prevent further judicial

erosion of our “deliberate intent” standards.



              In the case sub judice, it is undisputed that the petitioner was injured as a

result, in some measure, of the deteriorated 480-volt electrical box.          It is further

undisputed that ACF Industries, LLC (hereinafter “ACF”) had no actual knowledge of

the deteriorated condition of the electrical box because it performed no inspection or

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maintenance on the box. This omission was negligent at best and reckless at worst.

However, regardless of how one characterizes this omission on the part of ACF, the

Legislature has expressly stated that the deliberate intent standards codified in West

Virginia Code § 23-4-2(d)(2) provide a cause of action only upon violation of “more

specific mandatory elements than the common law tort system concept and standard of

willful, wanton and reckless misconduct[.]” W.Va. Code § 23-4-2(d)(1). Twenty years

ago, this Court properly recognized that proof of what an employer “should have known”

was insufficient for purposes of the standard of “subjective realization”:

              [A] plaintiff attempting to impose liability on the employer
              must present sufficient evidence, especially with regard to the
              requirement that employer had a subjective realization and an
              appreciation of the existence of such specific unsafe working
              condition and the strong probability of serious injury or death
              presented by such specific unsafe working condition. This
              requirement is not satisfied merely by evidence that the
              employer reasonably should have known of the specific
              unsafe working condition and of the strong probability of
              serious injury or death presented by that condition. Instead, it
              must be shown that the employer actually possessed such
              knowledge.

Syl. Pt. 3, in part, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408 S.E.2d 385,

393 (W.Va. 1993) (emphasis added). “The standard . . . to satisfy [the “subjective

realization” element] is ‘actual’ knowledge. This is a high threshold that cannot be

successfully met by speculation or conjecture.” Mumaw v. U.S. Silica Co., 204 W.Va. 6,

12, 511 S.E.2d 117, 123 (W.Va. 1998).




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              Ironically, since Blevins, the Legislature has only attempted to bolster the

knowledge requirement under subparagraph (d)(2)(ii)(B), yet this Court has set itself on a

parallel track in the opposite direction. The majority relies heavily on syllabus point 6 in

Ryan, which holds that failure to perform a hazard inspection where such is mandatory is

sufficient to impute “subjective realization”:1

              Where an employee has instituted a deliberate intent action
              against an employer under W.Va. Code § 23–4–2(c)(2)(ii)
              (1994) (Repl. Vol. 1998), and where the defendant employer
              has failed to perform a reasonable evaluation to identify
              hazards in the workplace in violation of a statute, rule or
              regulation imposing a mandatory duty to perform the same,
              the performance of which may have readily identified certain
              workplace hazards, the defendant employer is prohibited from
              denying that it possessed “a subjective realization” of the
              hazard asserted in the deliberate intent action, and the
              employee, upon demonstrating such violation, is deemed to
              have satisfied his or her burden of proof with respect to
              showing “subjective realization” pursuant to W.Va. Code §
              23–4–2(c)(2)(ii)(B).

219 W.Va. 664, 639 S.E.2d 756. Recognizing that this syllabus point was crafted with

regard to the less forceful “subjective realization” standard contained in the pre-2005

version of the statute, the majority now extends that holding to the “actual knowledge”

standard which replaced it. In short, despite the Legislature’s unmistakable attempt to

stop this Court from construing the element of actual knowledge out of the statute, the

majority continues its quest to judicially amend the statute, insisting that actual

knowledge can be established by proving what an employer “should have known” had it

been more diligent. The majority attempts to vitiate the force of the statute’s amendment

1
 Of course, “imputed” subjective realization is an intellectually dishonest concept which
is wholly at odds with itself.
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and this explicit reiteration by the Legislature of the “actual knowledge” requirement by

summarily concluding in footnote ten that “subjective realization” was always construed

by the Court as meaning “actual knowledge”; therefore, the Legislature’s amendment is

insignificant to its analysis.



               In Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478

(2000), this Court rejected the application of common law concepts such as comparative

negligence to our deliberate intent statutory scheme, observing that “‘the right to

workmen’s compensation benefits is based wholly on statutes, in no sense based on the

common law; . . . such statutes are sui generis and controlling . . . [and] the rights,

remedies and procedures thereby provided are exclusive[.]’” Id. at 234, 539 S.E.2d at

494 (quoting Bounds v. State Workmen’s Comp. Comm’r, 153 W.Va. 670, 672, 172

S.E.2d 379, 383 (1970)).         Moreover, the interpretation and application of statutory

language “does not . . . license a court to simply ignore or rewrite statutory language on

the basis that, as written, it produces an undesirable policy result.” Taylor-Hurley v.

Mingo County Bd. of Educ., 209 W.Va. 780, 788, 551 S.E.2d 702, 710 (2001). Without

even a hint of reluctance or justification, the majority has now supplanted the express

“actual knowledge” standard with one of quintessential “constructive knowledge,” a

common law concept. (“Knowledge that one using reasonable care or diligence should

have, and therefore that is attributed by law to a given person.” Black’s Law Dictionary

950 (9th ed. 2009). The majority ostensibly believes that the egregious facts in the instant

action regarding ACF’s complete failure to inspect the electrical box in roughly forty to

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fifty years of usage somehow warrant continued extension and application of the

“constructive knowledge” standard first read into the statute in Ryan. (“ACF’s conscious

indifference to that duty [to inspect the electrical box] in the circumstances herein may

not serve to avoid the actual knowledge requirement . . . “). However, “[t]he ‘deliberate

intention’ exception to the Workers’ Compensation system is meant to deter the

malicious employer, not to punish the stupid one.” Helmick v. Potomac Edison Co., 185

W.Va. 269, 274, 406 S.E.2d 700, 705 (1991).



              Moreover, there is nothing in the majority opinion which precludes an

injured employee from urging that an inspection that was simply negligently performed

gives rise to use of the “constructive knowledge” standard articulated by the majority.

See also Ryan, 219 W. Va. at 677, 639 S.E.2d at 769 (Benjamin, J., dissenting) (“Under

the majority’s reasoning, would an argument that the employer was negligent in

performing the hazard assessment now be sufficient to satisfy deliberate intent

requirements?”). Finally, the majority’s insertion of the constructive knowledge standard

has now virtually snatched the use of summary judgment right out of the hands of the

litigants and lower courts since the determination of what the employer “should have

known” will inevitably be fact-driven. This, too, is in contravention of the Legislature’s

design: “[I]t was and is the legislative intent to promote prompt judicial resolution of the

question of whether a suit prosecuted under the asserted authority of this section is or is

not prohibited by the immunity granted under this chapter.” W.Va. Code § 23-4-2(d)(1).



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              The practical inefficacy and wide-reaching effect of the majority’s new

syllabus point is easily demonstrated. Many industries, such as mining or trucking, are

heavily regulated and require a litany of generalized inspections. These inspections are

largely broad, shift-based, hazard assessments. While such inspections are much-desired,

it would be difficult to identify an alleged specific unsafe working condition that

argueably “should have” been discovered in the course of one of the inspections. The

failure to discover any such condition is, obviously, the result of oversight or simple

negligence. This is quite simply not the type of workplace oversight for which a statutory

“deliberate intent” is designed to provide redress.



              The danger of attributing knowledge to the employer of hazards which

could have been ascertained from these generalized safety inspections is heightened by

the majority’s lax construction of the requirement that the safety standard violation be

one which is “specifically applicable to the particular work and working condition

involved[.]” In the instant case, the petitioner worked as a welder in an industrial

building for an employer who was in the business of constructing railway cars. While the

parties and the majority’s handling of the “mandatory” (as opposed to the “applicability”)

nature of NFPA 70B is far from satisfying, there is no dispute that NFPA 70B provides

“preventive maintenance for electrical, electronic, and communication systems and

equipment-such as those used in industrial plants, institutions and commercial buildings

and large multi-family residential complexes-to prevent equipment failures and workers



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injuries.”2 In sum, it is relevant to electrical equipment maintenance in non-single-

family-residential buildings, i.e., virtually any common working environment.            To

suggest that such a standard is not precisely the type of “standard generally requiring safe

workplaces, equipment or working conditions,” which is insufficient to support a

“deliberate intent” claim, defies common sense.        W.Va. Code § 23-4-2(d)(2)(ii)(C)

(emphasis added).



              As noted above, the Legislature made clear that our deliberate intent

statutory scheme is intended to be of “narrow application and contain[] more specific

mandatory elements than the common law tort system[.]” W.Va. Code § 23-4-2(d)(1).

The electrical box that supplied power to the area where the petitioner was working was

not peculiar to his work as a welder constructing railway cars. Moreover, the NFPA

guidelines for electrical equipment maintenance have no particular application to welding

or constructing railway cars. The requirement that electrical equipment be inspected

and/or maintained in good working order is a general safety standard requiring safe

electrical equipment; every workplace has electrical equipment, all of which should be

maintained in good working order. Failure to do so does not necessarily rise to the level

of “deliberate intent” as prescribed by the Legislature. To construe the NFPA standard at

issue as specifically applicable to the petitioner’s work commensurately renders an injury

occasioned by essentially any aspect of an employee’s work environment susceptible to

2
 See National Fire Protection Association, NFPA 70B: Recommended Practice for
Electrical Equipment Maintenance, http://www.nfpa.org/codes-and-standards/document-
information-pages.
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the same treatment. Such a construction makes the “specifically applicable” language of

West Virginia Code § 23-4-2(d)(2)(ii)(C) meaningless. “It is always presumed that the

legislature will not enact a meaningless or useless statute.” Syl. Pt. 4, State ex rel.

Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United

States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963).



              In sum, despite the plain language of West Virginia Code § 23-4-

2(d)(2)(ii), I fear that the majority has now essentially manufactured a means of injecting

ordinary workplace negligence into our “deliberate intent” statutory scheme. As a result,

I am compelled to respectfully dissent. I am authorized to state that Chief Justice

Benjamin joins in this dissent.




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