No. 13-0470 - Manor Care, Inc. et al v. Tom Douglas, individually and on behalf of the
Estate of Dorothy Douglas
                                                                             FILED
                                                                         June 18, 2014
                                                                          released at 3:00 p.m.

                                                                        RORY L. PERRY II, CLERK

WORKMAN, Justice, concurring:                                         SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA




               I concur in the result reached by the majority and more specifically, I agree

with its analysis of the assignments of error regarding the verdict form, the non-

exclusivity of the Medical Professional Liability Act (hereinafter “MPLA”) to the facts of

this case, the non-viability of a breach of fiduciary duty claim herein, and its analysis of

the punitive damages. I write separately, however, to express my staunch disagreement

with the majority’s handling of the Nursing Home Act (hereinafter “NHA”) claim. The

majority has inexplicably refused to address the central issue argued by the parties—the

obvious duplicativeness of the award of damages thereunder—and in a startling abuse of

appellate discretion, has simply thrown out the award ostensibly because it cannot make

sense of it. While I agree that the verdict form in this matter was poorly constructed and

is far from cogent,1 I am unaware of any legal authority which permits this Court to toss

out a jury award like so much garbage simply because it claims to be confused by it. If

the majority had simply addressed the issue as framed and argued by the parties, and as

dictated by common sense, the same result would obtain without the majority looking

positively silly.

       1
        Although the nature of the damages awarded for the NHA violation is at best
murky, what is very clear is that under the facts of this case, they are duplicative, as
explained infra.

                                             1

                An overview of the jury’s verdict and the respective claims is necessary to a

full understanding of how misguided the majority’s analysis is. Respondent asserted the

following claims which were submitted to the jury: medical negligence, non-medical

negligence, violation of the Nursing Home Act, and breach of fiduciary duty. In his First

Amended Complaint, respondent made allegations of inadequate medical care and non­

medical allegations which fall into three categories of inadequate budgeting, staffing, and

reporting. The allegations contained in the complaint and the evidence adduced at trial as

to the non-medical portions of respondent’s case, i.e. “ordinary” negligence, violation of

the NHA, and breach of fiduciary duty, was for all intents and purposes identical and

centered around the inadequate budgeting and staffing at the Heartland Nursing Home.2



                The jury returned a verdict in favor of respondent on the following claims

and awarded separately designated general damages for each cause of action: 1) Nursing

Home Act violation in the amount of $1.5 million; 2) breach of fiduciary duty in the

amount of $5 million; and 3) negligence in the amount of $5 million, which it

apportioned as constituting 80% non-medical or “ordinary” negligence and 20% medical

negligence.3 The jury further awarded $80 million in punitive damages.          Absent from




       2
           A summary of this evidence is contained in pages 27-28 of the majority opinion.
       3
        Twenty percent of the $5 million negligence award which represented medical
negligence was reduced post-verdict pursuant to the cap on non-economic damages
pursuant to the MPLA.


                                              2

the verdict form, however, was any cohesive delineation of the various categories of

damages recoverable, resulting in a somewhat admittedly confounding jury award.



              The majority concludes that respondent alleged both non-medical and

medical negligence and, as a result, correctly rejects petitioners’ argument that the

entirety of respondent’s case involves “health care services” which are governed

exclusively by the MPLA. The majority correctly notes that “[c]laims related to business

decisions, such as proper budgeting and staffing, by entities that do not qualify as Health

Care Providers under the MPLA simply do not fall within that statutory scheme.”

Majority op. at *28-9.



              The majority then proceeds to the NHA claim. Citing “confusion” with the

wording of the verdict form, the majority simply throws out $1.5 million in damages

awarded by the jury without so much as a single citation to legal authority permitting it to

do so. The majority notes the complexity of the case, the “vague[ness]” of the jury

instructions and verdict form, and its “inability to identify the nature and purpose for the

NHA award” before vacating the award. The majority undertakes no analysis of the

NHA, the evidence presented in support of that claim, or the type of damages recoverable

for violation of the NHA. Even the most cursory analysis of the claims alleged and

evidence presented would have quickly revealed that the evidence presented in support of

both the medical and non-medical negligence claims it upheld was the same as that which




                                             3

formed the basis of the NHA award. More to the point, it would have revealed that the

measure of damages for violation of all the claims was the same.



              It is this inescapable fact—that the conduct underlying all of the various

causes of action alleged in this particular case is the same and such conduct gave rise to a

singular, personal injury culminating in the wrongful death of Dorothy Douglas4—which

brings into focus the issue most vociferously briefed and argued by the parties—all of

which was completely ignored by the majority. Petitioner argues that all of the claims

presented were subsumed by the MPLA and therefore subject to its non-economic

damages cap. Respondent contends that the NHA presents a separate, viable basis for an

award of damages, as evidenced by the language of West Virginia Code § 16-5C-15(d)

which expressly provides that the remedies available under the NHA are “cumulative and

. . . in addition to,” other remedies at law. Respondent argues not that the damages

awarded for the NHA are not duplicative, but rather that duplicative damages are

specifically countenanced by the statute and therefore proper. I agree that the NHA

presents a separate cause of action to which an injured party may avail himself or herself.




       4
        The singular personal injury to Dorothy Douglas, naturally, gives rise to a variety
of personal injury damages, i.e. pre-death pain and suffering damages pursuant to
Syllabus Point 6 of McDavid v. U.S., 213 W.Va. 592, 584 S.E.2d 226 (2003) and those
damages outlined in our Wrongful Death Act. At no time did respondent argue that it
presented a different measure or type of damages occasioned by the petitioners’ violation
of the NHA; rather, respondent argued merely that it was permitted by the language of
the NHA to recover duplicative damages, as discussed more fully infra.

                                             4

Thus, the real issue presented is whether such party may be awarded duplicative damages

under the NHA.



              Syllabus Point 7 of Harless v. First Nat'l Bank in Fairmont, 169 W.Va.

673, 289 S.E.2d 692 (1982) states:

              It is generally recognized that there can be only one recovery
              of damages for one wrong or injury. Double recovery of
              damages is not permitted; the law does not permit a double
              satisfaction for a single injury. A plaintiff may not recover
              damages twice for the same injury simply because he has two
              legal theories.

(emphasis added). See also Sewell v. Gregory, 179 W.Va. 585, 588 n.4, 371 S.E.2d 82,

85 n.4 (1988) (“The Appellants, of course, would not be entitled to recover twice for the

same damages, but may assert available alternate theories of liability”); Wiggins v.

Eastern Associated Coal Corp., 178 W.Va. 63, 66, 357 S.E.2d 745, 748 (1987) (“The

appellant could not have been granted any additional relief under the parallel West

Virginia statute because ‘[d]ouble recovery of damages is not permitted; the law does not

permit a double satisfaction for a single injury.’” (citing Syl. Pt. 7, in part, Harless));

Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982); Board of Educ. of

McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796

(1990) (same). Accordingly, the common law is clear that duplicative damages are not

permitted irrespective of the number of theories or claims advanced.           Respondent,

however, urges that the Legislature plainly intended to allow for such by stating that the




                                            5

penalties and remedies in West Virginia Code § 16-5C-15(d) “shall be cumulative and in

addition to all other penalties and remedies provided by law.”



              With regard to the Legislature’s efforts to alter the common law, we have

stated:

              The common law, if not repugnant of the Constitution of this
              State, continues as the law of this State unless it is altered or
              changed by the Legislature. Article VIII, Section 21 of the
              Constitution of West Virginia; Chapter 2, Article 1, Section 1,
              of the Code of West Virginia.

Syl. Pt. 3, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962). With regard to

such alteration: “‘The common law is not to be construed as altered or changed by

statute, unless legislative intent to do so be plainly manifested.’ Shifflette v. Lilly, 130

W.Va. 297, [43 S.E.2d 289 (1947)].” Syl. Pt. 4, Seagraves v. Legg, 147 W.Va. 331, 127

S.E.2d 605 (1962) (emphasis added). Further, “[i]f the Legislature intends to alter or

supersede the common law, it must do so clearly and without equivocation.” State ex rel.

Van Nguyen v. Berger, 199 W.Va. 71, 75, 483 S.E.2d 71, 75 (1996) (emphasis added);

see also Thomas v. McDermitt, 232 W.Va. 159, ___, 751 S.E.2d 264 (2013).



              With regard to our interpretation of statutes which purport to alter the

common law, this Court has stated:

              It is a long-standing maxim that “[s]tatutes in derogation of
              the common law are strictly construed.” Kellar v. James, 63
              W.Va. 139, 59 S.E. 939 (1907). As the leading commentator
              in statutory construction states:


                                             6

                     Statutes which impose duties or burdens or
                     establish rights or provide benefits which were
                     not recognized by the common law have
                     frequently been held subject to strict, or
                     restrictive, interpretation. Where there is any
                     doubt about their meaning or intent they are
                     given the effect which makes the least rather
                     than the most change in the common law.

              Norman J. Singer, 3 Sutherland Statutory Construction § 61:1
              at 217 (6th Ed. 2001). This Court has similarly concluded
              that, when interpreting an ambiguous statute that is contrary
              to the common law, the statute must be given a narrow
              construction. As we stated in Syllabus Points 3 and 4 of Bank
              of Weston v. Thomas, 75 W.Va. 321, 83 S.E. 985 (1914):

                     3. Statutes in derogation of the common law are
                     allowed effect only to the extent clearly
                     indicated by the terms used. Nothing can be
                     added otherwise than by necessary implication
                     arising from such terms.

                     4. The rule of construction, requiring effect to
                     be given to all the terms used in a statute, if
                     possible, is satisfied by assignment to them of a
                     substantial, though limited, function or field of
                     operation. It does not require allowance to
                     them, of a scope of operation coextensive with
                     their literal import.

Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W.Va. 484, 491-92, 647 S.E.2d 920,

927-28 (2007) (emphasis added).



              Rather than permitting a blind acceptance of the “literal import” of these

terms, as urged by respondent, the foregoing requires this Court to construe the

“cumulative and . . . in addition to” language in a manner which does the least violence to

the common law. There can be no question that West Virginia Code § 16-5C-15(d) is

                                            7

utterly silent as to whether this language intends to abrogate the common law prohibition

on duplicative damages. To that extent, our caselaw would dictate that we simply cannot

construe the language of West Virginia Code 16-5C-15(d) as permitting duplicative

damages because the Legislature did not plainly manifest its intent to do so.



              Fortunately, we need only examine the usage of this language elsewhere in

our Code to understand its meaning, demonstrating that it does not purport to alter the

common law at all. The Legislature has, in many other instances, indicated that a right or

remedy is “cumulative and in addition to” other remedies provided at law—these statutes

run the gamut from causes of action for abandoned wells to bondholder suits.5 Each of

these statutes expressly provides for a cause of action, relief or remedy for the subject

matter covered in the statute and notes that the remedy provided therein is “cumulative”

and/or “in addition to” all other remedies. However, unlike the NHA, this language is

often followed by additional language further clarifying that the statute’s “cumulative and

. . . in addition to” language means simply that the remedy provided by the particular

statute is not the exclusive remedy and that an action may be brought under that particular

statute and/or any other existing law. For example, West Virginia Code § 22-10-11(a)

(1994) provides:


       5
         See W. Va. Code §§ 37-13-7 (2002) (removal/transfer of graves); 61-3E-2 (1996)
(cumulative criminal penalties for use of explosives); 36-2-13 (1923) (disposition of
estates); 46A-6C-12 (1991) (actions against credit service organizations); 8-18-21 (1969)
(duty to pay for sewer service); 22-11-27 (1994) (water pollution); 16-5N-15(1997)
(residential care facilities); 16-5D-15 (2003) (assisted living homes).

                                             8

                It is the purpose of this article to provide additional and
                cumulative remedies to address abandoned wells in this State
                and nothing herein contained shall abridge or alter rights of
                action or remedies now or hereafter existing, nor shall any
                provisions in this article, or any act done by virtue of this
                article, be construed as estopping the State, municipalities,
                public health officers or persons in the exercise of their rights
                to suppress nuisance or to abate any pollution now or
                hereafter existing, or to recover damages.

(emphasis added). Perhaps more plainly stated, West Virginia Code § 13-2A-15 (1937)

provides, in part:

                No remedy conferred by this article upon any holder of
                refunding bonds, or any trustee therefor, is intended to be
                exclusive of any other remedy, but each such remedy is
                cumulative and in addition to every other remedy and may be
                exercised without exhausting and without regard to any other
                remedy conferred by this article or by any other law.

(emphasis added).6 The fact that this additional explanatory language is not included in

West Virginia Code § 16-5C-15(d) is by no means evidence that the Legislature intended



       6
           Similarly, West Virginia Code § 22-11-27 (1994) provides:

                It is the purpose of this article to provide additional and
                cumulative remedies to abate the pollution of the waters of
                the State and nothing herein contained shall abridge or alter
                rights of action or remedies now or hereafter existing, nor
                shall any provisions in this article, or any act done by virtue
                of this article, be construed as estopping the State,
                municipalities, public health officers, or persons as riparian
                owners or otherwise, in the exercise of their rights to suppress
                nuisances or to abate any pollution now or hereafter existing,
                or to recover damages.

See also W. Va. Code § 22-12-13 (1994) (providing article provides “additional and
cumulative remedies” which do not “abridge[] or alter[] rights of action or remedies now
(continued . . .)
                                               9

something different than its usage elsewhere. Rather, each of these statutes are worded

slightly differently, but illustrate plainly the import of the “cumulative and . . . in addition

to” language.



                As demonstrated by its frequent usage in our own Code, this particular

statutory language is not unique. In fact, other states having statutes utilizing this exact

language have rejected respondent’s argument that the “cumulative and . . . in addition

to” statutory language permits recovery of duplicative damages:

                We recognize that N.J.S.A. 56:8-2.13 enacted by P.L.1979, c.
                347 as a supplement to the Consumer Fraud Act dealing with
                eating establishments provides:

                      The rights, remedies and prohibitions accorded
                      by the provisions of this act are hereby declared
                      to be in addition to and cumulative of any other
                      right, remedy or prohibition accorded by the
                      common law or statutes of this State, and
                      nothing contained herein shall be construed to
                      deny, abrogate or impair any such common law
                      or statutory right, remedy or prohibition.

                However, we conclude that the language of this enactment
                and the phrase, “in addition to any other appropriate legal or
                equitable relief” in N.J.S.A. 56:8-19 were not intended to
                sanction duplicative damages for the same economic loss. See
                Neveroski v. Blair, supra, 141 N.J.Super. at 382, 358 A.2d
                473.



or hereafter existing”); W. Va. Code §39-1A-7 (stating that article entitled, in part,
“article cumulative” provides “an additional method of proving notarial acts.”




                                              10

49 Prospect Street Tenants Ass’n v. Sheva Gardens, Inc., 547 A.2d 1134, 1149 (N.J.

Super. Ct App. 1988). The Massachusetts Supreme Court found similarly:

                 In many cases, c. 93A creates “new substantive rights by
                 making conduct unlawful which was not previously unlawful
                 under the common law or any prior statute.” Id. at 626, 382
                 N.E.2d 1065. See also Linthicum v. Archambault, --Mass. --, ­
                 -, Mass. Adv. Sh. (1979) 2661, 2663, 398 N.E.2d 482 (relief
                 under c. 93A is “in addition to, and not an alternative to,
                 traditional tort and contract remedies”). This court has never
                 said, however, that where certain conduct is already unlawful
                 or becomes unlawful under another statute, c. 93A was
                 intended to authorize a duplicative recovery for the wrong
                 under both statutes.

McGrath v. Mishara, 434 N.E.2d 1215, 1222 (Mass. 1982); see also Calimlim v. Foreign

Car Center, Inc., 467 N.E.2d 443, 448 (Mass. 1984) (“[W]here the same acts cause the

same injury under more than one theory . . . duplicative damage recoveries will not be

permitted”). As such, it seems plain that although an injured party may avail himself of

the NHA, in addition to any other causes of action provided at law, he may not duplicate

his recovery thereunder. 7 The Minnesota Supreme Court explained the distinction


7
    In fact, respondent’s counsel appears to have articulated precisely this position below:

               [T]he underlying conduct that gave rise to that could give rise
               to multiple causes of action. The statute specifically says you
               can bring a Nursing Home Act and you can also bring any
               other remedies and causes of action as [sic] law. You cannot
               duplicate the damages. We all agree on that but there is no
               where and there is no authority that says you cannot bring a
               common law negligence claim in addition to a Nursing Home
               Act and that the conduct has to be different. That is not—as
               long as the damages are not duplicative, that is absolutely—
               there is no authority for that proposition. It’s the same
               conduct but it can give rise to a violation of a right then
(continued . . .)
                                               11

between permitting concurrent or cumulative causes of action and improperly permitting

duplicative damages, as follows:

             Ordinarily, unless a statute provides that its remedy is
             exclusive, a party should not be prevented from bringing
             concurrent claims. See, e.g., Wirig v. Kinney Shoe Corp., 461
             N.W.2d 374, 377-79 (Minn. 1990) (holding that both
             statutory cause of action for sexual harassment and common
             law cause of action for battery can be maintained even though
             both claims arise from same set of operative facts); Cox v.
             Crown CoCo, Inc., 544 N.W.2d 490, 496-97 (Minn. App.
             1996) (allowing claim for retaliatory discharge under both the
             Whistleblower Act and MOSHA); State by Humphrey v.
             Baillon Co., 503 N.W.2d 799, 802 (Minn.App.1993)
             (rejecting argument that attorney fee provisions of Minn. Stat.
             ch. 117 are exclusive method of recovering attorney fees in
             eminent domain proceedings because those provisions do not
             expressly provide that they are exclusive method of
             recovering attorney fees in eminent domain proceedings). It is
             not for this court to deny a plaintiff the right to pursue a claim
             that the legislature has provided. Of course, a plaintiff may
             not recover duplicative money damages. Wirig, 461 N.W.2d
             at 379.

Abraham v. County of Hennepin, 639 N.W.2d 342, 346-47 (Minn. 2002) (emphasis

added); see also Pitman v. Lightfoot, 937 S.W.2d 496, 534 (Tex. Ct. App. 1996) (“[J]ury

findings on multiple theories of recovery [do not] automatically support duplicate awards

of actual damages. As we have already noted, although a party may assert any and all

causes of action it may have against another, it is limited to only one recovery of

damages”); Hopkins v. Pennsylvania Power & Light Co., 112 F. Supp. 136, 137 (E. D.


             you’re right, there’s a prima facia evidence that it can give
             rise to a negligence cause of action that damages cannot be
             duplicative.


                                            12
Pa. 1953) (“The action under the Wrongful Death State of 1855 and the action under the

Survival Act of 1937 are separate and distinct actions whose remedies are cumulative and

not alternative, it being, however, ‘important that the two actions, the one under the death

acts and the other under the survival statute, should not overlap or result in a duplication

of damages and thereby compel the tort feasor to pay more than the maximum damage

caused by his negligent act.’” (citing Pezzulli v. D’Ambrosia, 26 A.2d 659, 661)).



              As such, despite the fact that I cannot subscribe to the majority’s summary

dismissal of the $1.5 million NHA award because of its “confusion” about the matter, I

believe it is plain that such award must be vacated because it is duplicative of the other

damages awarded in this case.8 Although this was the primary issue presented in this


8
 Respondent alternatively argued before this Court that the $1.5 million awarded for
violation of the NHA was not duplicative because it was for “injury” to Dorothy Douglas
and therefore represented an award of McDavid damages only, whereas the wrongful
death verdict consisted of damages for only those items set forth in our Wrongful Death
Act, W. Va. Code § 55-7-6. Like the majority, I disagree that the verdict form and
instructions plainly bear that out. First, all of the jury instructions outlining the various
causes of action refer simply to “injury” to Mrs. Douglas. Secondly, McDavid damages
are not peculiar to NHA claims, i.e. the NHA delineates no particular category of
damages recoverable; a party may recover the same personal injury damages that would
otherwise be available to them under a mere negligence cause of action. Finally,
McDavid damages are not a stand-alone claim—they are merely a category of wrongful
death damages. As McDavid itself makes clear:

               Under the wrongful death act, W. Va. Code, 55–7–6 [1992], a
               jury’s verdict may include damages for the decedent’s pain
               and suffering endured between the time of injury and the time
               of death, where the injury resulted in death but the decedent
               did not institute an action for personal injury prior to his or
               her death. To award damages for pain and suffering, there
(continued . . .)
                                             13

appeal, the majority chose to dodge it. The majority’s refusal to so much as dignify these

arguments, but rather, vacate the award on the ostensible basis that it is too confused by

these issues to address them constitutes an unprecedented shirking of its judicial duty to

resolve the issues presented. There is a large pink elephant in the room that the majority

chose to ignore. Accordingly, insofar as stated herein, I concur.




              must be evidence of conscious pain and suffering of the
              decedent prior to death. Where death is instantaneous, or
              where there is no evidence that the decedent consciously
              perceived pain and suffering, no damages for pain and
              suffering are allowed.

Syl. Pt. 6, McDavid, 213 W.Va. 592, 584 S.E.2d 226.

               That said, I am troubled by the verdict form’s lack of clarity on the award
of McDavid damages, to which the Estate was clearly entitled. The problem presented by
this verdict form is that respondent need only have included a separate line item for such
damages, as the jury was instructed to award, that was not improperly tied in isolation to
a particular claim, such as the NHA claim. Just as the petitioners had to suffer the
consequences of not providing a verdict form which would have allowed a separate
calculation of each defendant’s punitives, so it seems the respondent should suffer like
consequences for their failure to provide a proposed verdict form which would have
clearly provided a separate line for McDavid damages.

                                            14

