No. 12-1206 – Master Mechanical Insulation, Inc. v. Richard Simmons
                                                                                           FILED
                                                                                        December 27, 2013
                                                                                      RORY L. PERRY II, CLERK
                                                                                   SUPREME COURT OF APPEALS
Benjamin, Chief Justice, concurring in part and dissenting in part:                    OF WEST VIRGINIA




              I concur in the majority’s answers to the first and third certified questions. I

must dissent, however, to the majority’s answer to the second certified question which

improperly imposes common law tort principles onto the deliberate intent statute. By

holding that an employer in a deliberate intent action may introduce evidence of an

employee’s conduct as a defense, the majority displays a fundamental ignorance of the

nature of a deliberate intent cause of action created by the Legislature.



              The history of the current deliberate intent statute indicates a clear intent by

the Legislature to create a wholly unique cause of action which has no counterpart in our

common law and is completely divorced from common law tort principles. In Mandolidis

v. Elkins Industries, 161 W. Va. 695, 246 S.E.2d 907 (1978), this Court was tasked with

construing a deliberate intent cause of action under the then-existing statutory provision.

At that time, the deliberate intent statute provided as follows:

              If injury or death result to any employee from the deliberate
              intention of his employer to produce such injury or death, the
              employee, the widow, widower, child or dependent of the
              employee shall have the privilege to take under this chapter,
              and shall also have 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 under this chapter.
W. Va. Code § 24-3-2 (1969). This Court in Mandolidis found that this “provision by its

express language preserves for employees a common law action against employers ‘as if

this chapter had not been enacted’ ‘if the injury or death of such employee results from

the deliberate intent of the employer to produce such injury or death.’” 161 W. Va. at

698, 246 S.E.2d at 910 (emphasis added). The Court indicated that the workers’

compensation system “completely supplanted the common law tort system only with

respect to negligently caused industrial accidents” 161 W. Va. at 705, 246 S.E.2d at 913

(emphasis in original), but did not supplant common law principles when an employer

engaged in willful, wanton, or reckless misconduct. Accordingly, the Court held in

syllabus point 1 of Mandolidis in relevant part, that “[u]nder W. Va. Code § 23-4-2 an

employer is subject to a common law tort action for damages or for wrongful death where

such employer commits an intentional tort or engages in willful, wanton, and reckless

misconduct.”



               In direct response to Mandolidis, the Legislature amended the deliberate

intent statute to create a brand new standard for the loss of an employer’s workers

compensation immunity. This standard is unique and it has no counterpart in the common

law. In amending the statute, the Legislature clearly indicated that its new standard for

loss of employer immunity is “of more narrow application and containing 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). Under this new standard

for loss of immunity, the Legislature crafted five tightly drawn elements which a claimant
must prove before an employer will lose its immunity. These tightly drawn elements are

clear, concise, unambiguous, and plenary, and they do not provide that an employer can

introduce common law defenses to a deliberate intent claim. In fact, this point was made

abundantly clear in syllabus point 8 of Roberts v. Consolidation Coal Co., 208 W. Va.

218, 539 S.E.2d 478 (2000), in which we held that “[w]hen an employee asserts a

deliberate intention cause of action against his/her employer, pursuant to W. Va. Code §

23-4-2(b)–(c) (1991) (Cum.Supp.1991), the employer may not assert the employee’s

contributory negligence as a defense to such action.”



              In order to reach its desired result that an employer can defend against a

deliberate intent claim by introducing the common law tort defense of comparative fault,

the majority opinion resorts to finessing, massaging, and dancing around the plain

meaning of syllabus point 8 of Roberts, before finally deciding to just disregard it. The

majority opinion then chides Mr. Simmons for basing his argument “solely on this point

of law [in Roberts]” to cover up the fact that the majority’s own analysis is completely

devoid of legal support.



              The majority reads into the deliberate intent statute something that simply

is not there. For this reason, I dissent to the majority’s holding that an employer in a

deliberate intent action may introduce evidence of the employee’s conduct to show fault

on the part of the employee.
