No. 19-0043 – State of West Virginia ex rel. Gallagher Bassett Services v. The Honorable
Carrie Webster, Judge of the Circuit Court of Kanawha County; Robin Lusk; and Old
Dominion Freight Line, Inc.
                                                                                  FILED
                                                                               June 12, 2019
                                                                                  released at 3:00 p.m.
Workman, Justice, concurring, in part, and dissenting, in part:               EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA


                 I concur with the majority’s decision insofar as it upholds statutory law that

prohibits a cause of action by an employee against a third-party administrator for workers’

compensation discrimination. See W. Va. Code § 23-2C-21(a) (2017).1 I also concur with

the majority’s decision to recognize that a workers’ compensation fraud cause of action

against a third-party administrator does not fall within the protections of that statute.

However, I dissent to the majority’s subsequent dismissal of the fraud claim based upon the

two-year statute of limitations2 when that issue was not properly before this Court on a writ

of prohibition.




       1
         West Virginia Code § 23-2C-21(a) provides: “(a) No civil action may be brought or
maintained by an employee against a private carrier or a third-party administrator, or any
employee or agent of a private carrier or third-party administrator, who violates any provision
of this chapter or chapter thirty-three of this code.” But see Barber v. Sedgwick Claims Mgmt
Servs. Inc., No. 3:14-27349, 2016 WL 6211714, at *4 (S.D. W. Va. Oct. 24, 2016) (federal
district court determining that the plaintiff’s workers’ compensation fraud claim against
third-party administrator is not barred by West Virginia Code § 23-2C-21(a), finding that
defendant “recognizes, the ‘statute applies only to violations of Chapters 23 and 33 of the
West Virginia Code.’. . . The Court has already determined that Plaintiff makes a plausible
claim for common law fraud under Persinger, which falls outside the statutory violations and
thus outside the scope of the statute’s applicability. . . .”).
       2
           See W. Va. Code § 55-2-12 (2016) (establishing two-year statute of limitations).
               As I just recently stated in my dissenting opinion to State ex rel. Universal

Underwriters Insurance Co. v. Wilson, ___ W. Va. ___, 825 S.E.2d 95 (2019) (Workman,

J., dissenting):

                      In my almost twenty-three years as an appellate court
               judge, one thing I have learned is that the development of new
               law by a judicial body is a lot better when, like a good stew, it
               is cooked slowly and thoroughly. The full processing of a new
               or novel legal issue by its being fully considered by a lower
               court, a lower court making a ruling, the parties then briefing
               and arguing the issue at the appellate level results in much
               sounder law and much fairer results than this Court embarking
               on creating new law and then granting prohibition because the
               lower court failed to follow the (as-yet) established law.

Id. at ___, 825 S.E.2d at 115. The same can be said about legal issues that hinge on facts,

as is the case when a discovery rule issue is raised.



                   The majority relied on Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255

(2009), in finding the workers’ compensation fraud claim to be time-barred, but they

overlooked key holdings concerning the discovery rule, which necessarily contemplate initial

rulings be made by the circuit court, not this Court.3 Specifically, the Court held in syllabus


       3
         Although not raised by the parties, assuming, arguendo, that Gallagher Bassett’s
statute of limitations argument is properly before this Court, Ms. Lusk’s amended complaint
arguably relates back to the filing of her original complaint thereby further negating the
petitioner’s arguments in this regard. See W. Va. R. Civ. P. 15(c); see also Syl. Pt. 4, Brooks
v. Isinghood, 213 W. Va. 675, 584 S.E.2d 531 (2003) (“Under Rule 15(c)(3) of the West
Virginia Rules of Civil Procedure [1998], an amendment to a complaint changing a
defendant or the naming of a defendant will relate back to the date the plaintiff filed the
                                                                                (continued...)

                                              2
point two of Dunn that “[t]he ‘discovery rule’ is generally applicable to all torts, unless there

is a clear statutory prohibition to its application.” Id. at 46, 689 S.E.2d at 258, Syl. Pt. 2

(emphasis added). We further held that

                      “[i]n tort actions, unless there is a clear statutory
              prohibition to its application, under the discovery rule the statute
              of limitations begins to run when the plaintiff knows,4 or by the
              exercise of reasonable diligence, should know (1) that the
              plaintiff has been injured, (2) the identity of the entity who owed
              the plaintiff a duty to act with due care, and who may have
              engaged in conduct that breached that duty, and (3) that the

       3
        (...continued)
original complaint if: (1) the claim asserted in the amended complaint arose out of the same
conduct, transaction, or occurrence as that asserted in the original complaint; (2) the
defendant named in the amended complaint received notice of the filing of the original
complaint and is not prejudiced in maintaining a defense by the delay in being named; (3) the
defendant either knew or should have known that he or she would have been named in the
original complaint had it not been for a mistake; and (4) notice of the action, and knowledge
or potential knowledge of the mistake, was received by the defendant within the period
prescribed for commencing an action and service of process of the original complaint.”).
       4
        According to Dunn,

                     Under the discovery rule set forth in Syllabus Point 4 of
              Gaither v. City Hosp., Inc., 199 W. Va. 706, 487 S.E.2d 901
              (1997), whether a plaintiff “knows of” or “discovered” a cause
              of action is an objective test. The plaintiff is charged with
              knowledge of the factual, rather than the legal, basis for the
              action. This objective test focuses upon whether a reasonable
              prudent person would have known, or by the exercise of
              reasonable diligence should have known, of the elements of a
              possible cause of action.

225 W. Va. at 46, 689 S.E.2d at 258, Syl. Pt. 4.




                                               3
              conduct of that entity has a causal relation to the injury.”
              Syllabus Point 4, Gaither v. City Hosp., Inc., 199 W. Va. 706,
              487 S.E.2d 901 (1997).

255 W. Va. at 46, 689 S.E.2d at 258, Syl. Pt. 3 (footnote added). Finally, the Court adopted

a five-part test to be applied in order to determine whether a claim is time-barred, as follows:

                      First, the court should identify the applicable statute of
              limitation for each cause of action. Second, the court (or, if
              questions of material fact exist, the jury) should identify when
              the requisite elements of the cause of action occurred. Third, the
              discovery rule should be applied to determine when the statute
              of limitation began to run by determining when the plaintiff
              knew, or by the exercise of reasonable diligence should have
              known, of the elements of a possible cause of action, as set forth
              in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W. Va.
              706, 487 S.E.2d 901 (1997). Fourth, if the plaintiff is not
              entitled to the benefit of the discovery rule, then determine
              whether the defendant fraudulently concealed facts that
              prevented the plaintiff from discovering or pursuing the cause
              of action. Whenever a plaintiff is able to show that the defendant
              fraudulently concealed facts which prevented the plaintiff from
              discovering or pursuing the potential cause of action, the statute
              of limitation is tolled. And fifth, the court or the jury should
              determine if the statute of limitation period was arrested by
              some other tolling doctrine. Only the first step is purely a
              question of law; the resolution of steps two through five will
              generally involve questions of material fact that will need to be
              resolved by the trier of fact.

255 W. Va. at 46, 689 S.E.2d at 258, Syl. Pt. 5, in pertinent part (emphasis added).



              Notably absent from the majority’s discussion of the statute of limitations issue

is the language emphasized, which holds that “the resolution of steps two through five will

generally involve questions of material fact that will need to be resolved by the trier of fact.”

                                               4
Id. The need for full factual development when the discovery rule is relied upon is neither

a new nor novel concept. Moreover, this Court has found that resolution of this issue by the

trier of fact necessary where a claim of fraud—in this case workers’ compensation fraud—is

being asserted. As the Court has held,

                     [w]here a cause of action is based on tort or on a claim
              of fraud, the statute of limitations does not begin to run until the
              injured person knows, or by the exercise of reasonable diligence
              should know, of the nature of his injury, and determining that
              point in time is a question of fact to be answered by the jury.

Syl. Pt. 3, Stemple v. Dobson, 184 W. Va. 317, 400 S.E.2d 561 (1990) (emphasis added).



              Under Dunn, the critical and determinative factor for ascertaining whether the

two-year statute of limitations has run or has been tolled is the third factor, which requires

application of the discovery rule “to determine when the statute of limitation began to run by

determining when the plaintiff knew, or by the exercise of reasonable diligence should have

known, of the elements of a possible cause of action[.]” 255 W. Va. at 46, 689 S.E.2d at 258,

Syl. Pt. 5, in part (quoting Gaither, 199 W. Va. at 708, 487 S.E.2d at 903, Syl. Pt. 4, in

pertinent part).




                                               5
              The majority with little analysis or discussion of the facts as pled in the

amended complaint, which must be taken as true,5 simply finds that

              Ms. Lusk would have known, or by reasonable diligence should
              have known, of the alleged fraudulent misrepresentation at the
              latest by the date of the October 9, 2015 evidentiary hearing. In
              fact, Ms. Lusk would have been put on notice of the alleged
              misrepresentation and the fact that it was a basis for the
              proposed denial of her workers’ compensation coverage as early
              as June 26, 2015. This was the date of the letter from Gallagher
              Bassett denying her workers’ compensation coverage based, at
              least in part, on the allegations that she falsified her log
              records—an allegation that was communicated to her in the June
              22, 2015 phone call terminating her employment. Clearly, she
              possessed the facts relevant to assert her fraudulent
              misrepresentation claim against Gallagher Bassett no later than
              October 9, 2015.


              Perhaps the majority’s findings on this issue are so “clear” because it turns a

blind eye to conflicting factual arguments, which are based upon the allegations in the

amended complaint. Ms. Lusk maintains that she is entitled to rely on the discovery rule and

that under that rule her claim against Gallagher Bassett was timely filed. Ms. Lusk contends

that she did not know that her employer, Old Dominion Freight Line, Inc. (“Old Dominion”),

was going to blame its third-party administrator, Gallagher Bassett, for making all the

decisions against her in the administration of her workers’ compensation claim, and for the


       5
         See John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245
S.E.2d 157, 158 (1978) (“The purpose of a motion under Rule 12(b)(6) of the West Virginia
Rules of Civil Procedure is to test the formal sufficiency of the complaint. For purposes of
the motion to dismiss, the complaint is construed in the light most favorable to plaintiff, and
its allegations are to be taken as true.”).

                                              6
denial of her workers’ compensation claim, which serve as the foundation of her workers’

compensation fraud claim. Underlying this contention were the following allegations in Ms.

Lusk’s amended complaint:

                     62.   Defendant Old Dominion reported to its workers’
             compensation carrier or third-party administrator, Defendant
             Gallagher Bassett, that Plaintiff had falsified her log book and
             was thus not acting within the course and scope of her
             employment when she was injured while performing pre-shift
             activities on Defendant’s tractor-trailer while at Defendant’s
             terminal.

                    63.     Defendant’s workers’ compensation insurer or
             third-party administrator charged with handling Plaintiff’s
             workers’ compensation claim under West Virginia law,
             Defendant Gallagher Bassett, made a claim decision, acting in
             a quasi-judicial capacity, that Plaintiff’s injury was not
             compensable because Defendant’s report that at the time she
             was injured she was not acting within the course and scope of
             her employment. Nevertheless, Defendant Gallagher Bassett
             knew or should have known that its actions were clearly
             contrary to the workers’ compensation laws of the State of West
             Virginia at the time it denied Plaintiff’s compensability.

                     64.    Defendants, and particularly Defendant Gallagher
             Bassett, knew with certainty that Plaintiff was acting within the
             course and scope of her employment when she was injured
             while engaged in pre-shift activities on Defendant’s tractor-
             trailers while at Defendant’s terminal.

                    ....

                     67.    Defendants knew, or by the exercise of reasonable
             care, should have known that, Plaintiff was within the zone of
             her employment when she was injured and that they had no legal
             right to falsely inform the workers’ compensation system that
             Plaintiff was not acting within the course and scope of her
             employment and was thus non-compensable.

                                            7
                     68.      . . . Defendant Gallagher Bassett knowingly acted
              upon the false report that Plaintiff had intentionally falsified her
              log book when she made no entry at all, in order to avoid the
              anticipated financial exposure that it would incur by reason of
              Plaintiff’s serious work-related injury, by using the false report
              that she had falsified her log book and thus was not within the
              course and scope of her employment to deny compensability for
              her injury, which was a pretext not only for termination of her
              employment but also as pretext for avoiding its obligations to
              Plaintiff under the workers’ compensation laws of the State of
              West Virginia.

              69.    As a direct and proximate result of Defendants’ fraud, as
              aforesaid, Plaintiff has been damaged by the loss of valuable
              workers’ compensation indemnity and medical expense benefits,
              by the loss of her medical and disability insurance, and she has
              suffered undue pain and suffering, mental anguish, aggravation,
              inconvenience, and annoyance, and was forced to incur legal
              fees and expenses to vindicate rights that were undeniably hers
              under the law.

Ms. Lusk maintained that she was not placed on notice of Gallagher Bassett’s actions in the

denial of her claim until Katrena Parker, Old Dominion’s workers’ compensation manager,

was deposed on August 10, 2017.



              According to Ms. Lusk, Ms. Parker testified that Old Dominion did not make

any decision to deny Ms. Lusk’s workers’ compensation claim. Ms. Parker stated that that

decision was Gallagher Bassett’s and, more precisely, it was Cathy Reedy, Gallagher

Bassett’s adjuster, who made the decision to deny Ms. Lusk compensability based on

information that Old Dominion provided to Gallagher Bassett. Before the deposition of Ms.

Parker, Ms. Lusk claimed before the circuit court that Old Dominion “never before asserted


                                               8
that Gallagher Bassett Services made all of the decisions with respect to denial of the

Plaintiff’s workers’ compensation claim.”

              Thereafter, Ms. Lusk contended before this Court that she made significant

attempts to depose Gallagher Bassett’s adjuster, Cathy Reedy, going to back to her first

attempt on March 31, 2017.6 Ms. Lusk maintained in her brief before this Court that she

made repeated attempts to depose Ms. Reedy, which were met with opposition from both Old

Dominion and Gallagher Bassett, including having a subpoena issued in the State of

Pennsylvania to depose Ms. Reedy, and then having to defend a motion to quash filed by Old

Dominion, and joined in by Cathy Reedy of Gallagher Bassett. According to Ms. Lusk, she

“was thwarted in each instance until this Court denied the Petitioner’s request for a stay of

all proceedings herein. Ms. Reedy was finally deposed on January 26, 2019.”



              As is readily discernable from the facts that the majority finds exists relative

to the statute of limitations issue, as opposed to those alleged by Ms. Lusk, there is an

undeniable dispute as to material facts developed thus far, which necessarily requires further

factual development and resolution by a trier of fact. Indeed, this is exactly what the circuit

court determined in its August 27, 2018, order denying Gallagher Bassett’s motion to

dismiss:



       6
        This first attempt stemmed from Ms. Lusk’s request for attorney fees after Gallagher
Bassett withdrew its appeal related to her workers’ compensation claim. Ms. Lusk
ultimately received $7,500 in attorney fees from Gallagher Bassett.

                                              9
               At this stage of the litigation, the Court denies the Motion to Dismiss.
       The statements from Plaintiff’s counsel, the contents of the June 26, 2015,
       letter [referring to Gallagher Bassett’s letter denying Ms. Lusk’s claim] and
       the interaction between Plaintiff and Gallagher Bassett may bar Plaintiff’s
       claims against Gallagher Bassett. As this Court noted at oral argument, that
       may be a compelling argument for applying the statute of limitations at the
       summary judgment stage.


              Yet, rather than allowing that factual development to occur below, Gallagher

Bassett pursued what is essentially an appeal of the circuit court’s denial of its Rule 12(b)(6)

motion, dressed up as a petition for a writ of prohibition. See W. Va. R. Civ. P. 12(b)(6); see

also State ex rel. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 246, 460 S.E.2d 54, 60 (1995)

(“Although for obvious reasons the defendants resist categorizing this prohibition as an

appeal of the denial of a motion to dismiss a claim for failure to state a cause of action,

essentially that is what this proceeding involves. Accordingly, we hold that ordinarily the

denial of a motion for failure to state a claim upon which relief can be granted made pursuant

to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not

immediately appealable. Thus, the defendants may not indirectly raise this issue by seeking

a writ of prohibition in order to preclude the trial judge from compelling discovery.”).

Nevertheless, this Court has previously found that motions to dismiss under Rule 12(b)(6)

are “viewed with disfavor and [should be] rarely granted.” John W. Lodge Distributing Co.,

Inc., 161 W. Va. at 606, 245 S.E.2d at 159. More specifically, “[t]he trial court should not

dismiss a complaint merely because it doubts that the plaintiff will prevail in the action, and

whether the plaintiff can prevail is a matter properly determined on the basis of proof and not


                                              10
merely on the pleadings.” Id. (citing Wright & Miller, Federal Practice and Procedure: Civil

§ 1216 (1969)).



              Moreover, even under a prohibition analysis, Gallagher Bassett’s petition fails

because this Court has repeatedly recognized that the following factors are to be examined

in ascertaining whether a circuit court has no jurisdiction or has exceeded its jurisdiction,

which would require this Court to intercede by exercising this extraordinary remedy:

                     In determining whether to entertain and issue the writ of
              prohibition for cases not involving an absence of jurisdiction but
              only where it is claimed that the lower tribunal exceeded its
              legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate means,
              such as direct appeal, to obtain the desired relief; (2) whether the
              petitioner will be damaged or prejudiced in a way that is not
              correctable on appeal; (3) whether the lower tribunal’s order is
              clearly erroneous as a matter of law; (4) whether the lower
              tribunal’s order is an oft repeated error or manifests persistent
              disregard for either procedural or substantive law; and (5)
              whether the lower tribunal’s order raises new and important
              problems or issues of law of first impression. These factors are
              general guidelines that serve as a useful starting point for
              determining whether a discretionary writ of prohibition should
              issue. Although all five factors need not be satisfied, it is clear
              that the third factor, the existence of clear error as a matter of
              law, should be given substantial weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).



              The majority, while setting forth the Hoover factors in the standard of review,

fails to offer any reasoning as to how Gallagher Bassett meets those factors. See id.


                                              11
Gallagher Bassett had another adequate means of seeking relief from the circuit court’s

denial of its Rule 12(b)(6) motion by the filing of an appeal. Indeed, any damage or harm

that Gallagher Bassett might suffer from the circuit court allowing this case to go forward

for purposes of further discovery is obviously correctable in a direct appeal.             Most

importantly, given our law that the discovery rule necessarily depends upon the development

of the facts and the resolution of disputed facts by the trier of fact, the circuit court’s order

denying a Rule 12(b)(6) motion to dismiss due to its determination that factual development

was warranted is not clearly erroneous as a matter of law. See Berger, 199 W. Va. at 14-15,

483 S.E.2d at 14-15, Syl. Pt. 4; see State ex rel. State Auto Prop. Ins. Cos. v. Stucky, No. 15-

1178, 2016 WL 3410352, at *5 (W. Va. June 14, 2016) (memorandum decision) (“Under our

law, ‘[i]n the great majority of cases, the issue of whether a claim is barred by the statute of

limitations is a question of fact for the jury.’ Gaither v. City Hosp., Inc., 199 W. Va. 706,

714-15, 487 S.E.2d 901, 909-10 (1997). Consequently, the question is proper for the court

only ‘[w]here there are undisputed facts from which only one conclusion may be drawn[.]’

Carey v. Kerr-McGee Chem. Corp., 999 F. Supp. 1109, 1115 (N.D. Ill. 1998).”).



              Based upon the foregoing, I respectfully concur, in part, and dissent, in part,

to the majority’s opinion.




                                               12
