                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Thomas Adkins,                                                                         FILED
Plaintiff Below, Petitioner                                                          May 22, 2017
                                                                                     RORY L. PERRY II, CLERK
vs) No. 16-0589 (Wayne County 15-C-97)                                             SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA

Kiah Creek Transportation, LLC,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Thomas Adkins, by counsel Scott W. Andrews, appeals the Circuit Court of
Wayne County’s May 19, 2016, order granting respondent Kiah Creek Transportation, LLC’s
motion for summary judgment and dismissing petitioner’s deliberate intention suit. Respondent,
by counsel Cy A. Hill, Jr., filed a response. Petitioner filed a reply. On appeal, petitioner argues
that the circuit court erred in granting respondent’s motion for summary judgment and in
denying his request for additional discovery.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         In May of 2013, petitioner was employed by respondent and operated a coal truck at a
mine in Wayne County, West Virginia, when he was involved in a single-vehicle accident.
Petitioner was operating a 2009GV Mack Granite Coal Truck, otherwise known as the no. 10
truck. According to petitioner, this specific truck previously had multiple mechanical issues,
including the fuel shutting off, and a weak compression release engine brake and service brakes.
According to petitioner’s testimony, he reported these issues to supervisors several months prior
to the eventual accident. Petitioner also testified that he refused to drive this very truck sometime
in 2012. As such, respondent assigned petitioner a different truck to drive. According to
discovery, several other drivers operated this truck in the period leading up to petitioner’s
accident without incident. Moreover, evidence established that respondent regularly serviced and
maintained the truck in question. This maintenance included adjustment of the brakes in the
period leading up to the accident in question. None of the other drivers who drove the truck in
question made any notations on their inspection reports about any safety issues with the truck. In
fact, the reports consistently reflected that the truck’s condition was satisfactory.

       On the date of petitioner’s accident in May of 2013, he was reassigned to the truck at
issue and noted no issues pursuant to his inspection. In fact, petitioner testified that he

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specifically checked the brakes and found no issues. Petitioner drove the truck approximately
one mile and obtained a load without incident. On his way back to the shop, petitioner alleges
that the truck shut off while he was climbing a hill. The truck then began rolling backward, at
which point petitioner attempted to engage all of the brakes. Petitioner was unable to stop the
truck and it continued to roll down the hill. The truck then collided with a rock wall at the bottom
of the hill, where petitioner alleged that he was knocked unconscious and sustained injuries to his
back, head, left elbow, and right shoulder/clavicle. According to the circuit court, the discovery
below reflected that respondent was not cited by any state or federal regulatory agency as a result
of the accident. Similarly, the record lacked any evidence of safety issues found in the truck
following the accident.

        In May of 2015, petitioner filed a complaint against respondent and alleged a deliberate
intention cause of action. In April of 2016, respondent filed a motion for summary judgment.
Following petitioner’s response, the circuit court held a hearing on the motion that same month.
In May of 2016, the circuit court entered an order granting respondent’s motion for summary
judgment. According to the circuit court, petitioner failed to present prima facie proof of each of
the five elements of a deliberate intention cause of action. It is from the circuit court’s order that
petitioner appeals.

        We review de novo petitioner’s appeal of the circuit court’s summary judgment order. “A
circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994). Our review is guided by the principle that

                “‘[a] motion for summary judgment should be granted only when it is
       clear that there is no genuine issue of fact to be tried and inquiry concerning the
       facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna
       Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160,
       133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187
       W.Va. 706, 421 S.E.2d 247 (1992).

Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. Furthermore,

               “[s]ummary judgment is appropriate where the record taken as a whole
       could not lead a rational trier of fact to find for the nonmoving party, such as
       where the nonmoving party has failed to make a sufficient showing on an
       essential element of the case that it has the burden to prove.” Syllabus point 4,
       Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

Syl. Pt. 5, Toth v. Bd. of Parks & Recreation Comm’rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).
Upon our review, we find no error below.




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       First, petitioner argues that the circuit court erred in finding that he failed to establish a
prima facie case of deliberate intention because he created a genuine issue of material fact
below.1 We do not agree. We have previously held that

               “‘[a] plaintiff may establish a “deliberate intention” in a civil action
       against an employer for a work-related injury by offering evidence to prove the
       five specific requirements provided in [W.Va.Code § 23-4-2(d)(2)(ii) (2010)].’
       Syl. Pt. 2, Mayles v. Shoney’s, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).” Syl. Pt.
       3, Tolley v. ACF Industries, Inc., 212 W.Va. 548, 575 S.E.2d 158 (2002).

Syl. Pt. 5, Smith v. Apex Pipeline Serv., Inc., 230 W.Va. 620, 741 S.E.2d 845 (2013).2 Moreover,
we have instructed that

       a court shall dismiss a deliberate intention action “upon motion for summary
       judgment if it finds . . . that one or more of the facts required to be proved by the

       1
         The Court notes that our deliberate intention statute, West Virginia Code § 23-4-2, was
amended effective June 12, 2015. We apply the version of this statute as it existed at the time of
petitioner’s injury in May of 2013.
       2
         Pursuant to West Virginia Code § 23-4-2(d)(2)(ii) (2010), the five elements necessary to
establish a claim of deliberate intention are as follows:

       (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, 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.



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       provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this
       subdivision do not exist.” W.Va.Code § 23-4-2(d)(iii)(B). Each of the five
       statutory factors “is an essential element of a ‘deliberate intention’ cause of
       action, which a plaintiff has the ultimate burden to prove. Therefore, at the
       summary judgment stage, if a defendant should establish that no material issue of
       fact is in dispute on any one of the factors, and such a finding is in favor of the
       defendant, summary judgment must be granted to the defendant.” Mumaw v. U.S.
       Silica Co., 204 W.Va. 6, 11, 511 S.E.2d 117, 122 (1998). Finally, “‘in order to
       withstand a motion for summary judgment, a plaintiff must make a prima facie
       showing of dispute on each of the five factors.’” Marcus v. Holley, 217 W.Va.
       508, 520, 618 S.E.2d 517, 529 (2005) (quoting Mumaw, 204 W.Va. at 9, 511
       S.E.2d at 120).

Smith, 230 W.Va. at 628, 741 S.E.2d at 853.

        In granting respondent’s motion for summary judgment, the circuit court found that
petitioner failed to establish the following elements: (1) a specific unsafe working condition; (2)
respondent’s actual knowledge of a specific unsafe working condition; and (3) petitioner’s
intentional exposure to a specific unsafe working condition. In regard to the lack of a specific
unsafe working condition, the circuit court found that, contrary to petitioner’s assertion that the
truck in question suffered from issues with its fuel and brakes, “the discovery record is devoid of
any evidence of any such issues at the time of his accident . . . .” The circuit court based this
finding on the fact that the maintenance and repair records for the truck lack any “reference . . .
to any issue with the truck shutting off . . . [or] any reference to any safety issue with the brakes.”

        On appeal, petitioner argues that the maintenance and repair records actually reflect
safety issues, as the truck “was repaired [seventy-four] times in May [of] 2013, and [twenty-one]
of those instances involved the truck’s brakes.” Accordingly, petitioner argues that this evidence
corroborates his testimony concerning his prior complaints about the truck. We do not agree, as
the circuit court specifically found that these maintenance and repair records “show regular brake
adjustments, but that in and of itself does not show that there was a specific unsafe working
condition with regard to the brakes on the trucks.” Moreover, the circuit court found that several
other drivers operated the truck without incident and that “[i]n the weeks leading up to the
accident, the Driver’s Inspection Reports reveal no reported issues consistent with [petitioner’s]
prior complaints about the truck.” Further, petitioner’s own inspection on the day of the accident
revealed no issues with the truck. Based upon this evidence, it is clear that the circuit court did
not err in finding that petitioner failed to meet his burden of showing that a genuine issue of
material fact existed in regard to an actual, specific unsafe working condition. Accordingly we
find no error in the circuit court granting respondent’s motion for summary judgment, as
petitioner’s failure to establish each essential element of a claim of deliberate intention entitled
respondent to summary judgment.3

3
 As noted above, the circuit court also found that petitioner failed to establish that respondent
had actual knowledge of a specific unsafe working condition and intentionally exposed petitioner

                                                                                      (continued . . . )
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        Finally, the Court finds no error in regard to petitioner’s assignment of error concerning
the circuit court’s failure to grant him additional time for discovery below. In support of his
argument, petitioner alleges that he requested additional time to depose witnesses to oppose
respondent’s motion for summary judgment. According to petitioner’s counsel, he had a
miscommunication with respondent’s counsel regarding the production of witnesses.
Specifically, he alleges that respondent’s counsel informed him that respondent would make its
former employees available, but later informed him that he would have to subpoena those
witnesses.4 As such, petitioner argues he should have been entitled to additional discovery in
order to depose his coworkers. We do not agree as petitioner clearly failed to comply with the
requirements of Rule 56(f) of the West Virginia Rules of Civil Procedure.

       According to Rule 56(f),

       [s]hould it appear from the affidavits of a party opposing the motion that the party
       cannot for reasons stated present by affidavit facts essential to justify the party’s
       opposition, the court may refuse the application for judgment or may order a
       continuance to permit affidavits to be obtained or depositions to be taken or
       discovery to be had or may make such other order as is just.

Petitioner presented no such affidavit in support of his assertion that additional time for
discovery was necessary. In fact, petitioner did not move the circuit court for any extension of
the discovery deadline. Instead, petitioner, in a footnote in his response to respondent’s motion
for summary judgment, indicated that he was “currently in the process of accomplishing” the
task of subpoenaing witnesses for depositions.



to the same. On appeal, petitioner presents arguments as to why these findings were additionally
in error. However, the circuit court’s rulings in regard to these additional elements were based, in
part, upon petitioner’s failure to establish a genuine issue of material fact as to the existence of a
specific unsafe working condition. That is to say, because petitioner could not establish a
genuine issue of material fact as to the existence of a specific unsafe working condition, it
follows that he could not establish a genuine issue of material fact that respondent had actual
knowledge of any such condition or intentionally exposed petitioner to such condition.
Moreover, our prior holdings indicate that failure to establish a genuine issue of material fact as
to any one of the essential elements of a deliberate intention cause of action entitles a defendant
to summary judgment. Smith, 230 W.Va. at 628, 741 S.E.2d at 853. As such, we find that it is
unnecessary to address these additional findings on appeal.
       4
         Respondent ceased operations prior to petitioner filing the complaint at issue and, thus,
no longer employed the witnesses petitioner sought to depose. Petitioner concedes that there is
no record of this conversation. Conversely, respondent asserts that it would have been unlikely to
indicate to petitioner that it could make any potential witnesses available without a subpoena as
it no longer employed those individuals at any point during the circuit court proceedings.



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       In addressing motions to continue discovery, we have held as follows:

               “An opponent of a summary judgment motion requesting a continuance
       for further discovery need not follow the exact letter of Rule 56(f) of the West
       Virginia Rules of Civil Procedure in order to obtain it. When a departure from the
       rule occurs, it should be made in written form and in a timely manner. The
       statement must be made, if not by affidavit, in some authoritative manner by the
       party under penalty of perjury or by written representations of counsel. At a
       minimum, the party making an informal Rule 56(f) motion must satisfy four
       requirements. It should (1) articulate some plausible basis for the party’s belief
       that specified “discoverable” material facts likely exist which have not yet
       become accessible to the party; (2) demonstrate some realistic prospect that the
       material facts can be obtained within a reasonable additional time period; (3)
       demonstrate that the material facts will, if obtained, suffice to engender an issue
       both genuine and material; and (4) demonstrate good cause for failure to have
       conducted the discovery earlier.” Syllabus Point 1, Powderidge Unit Owners
       Assoc. v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 (1996).

Syl., Elliot v. Schoolcraft, 213 W.Va. 69, 576 S.E.2d 796 (2002). The record in this matter is
devoid of good cause for petitioner’s failure to have completed the depositions of his coworkers
prior to the discovery deadline’s expiration or the filing of respondent’s motion for summary
judgment.5 Moreover, petitioner fails to articulate any plausible basis that some discoverable
material facts likely exist but have not yet been accessible to him. Petitioner’s only contention in
this regard is that some of his coworkers may be able to corroborate his assertion that the truck in
question suffered from brake and fuel issues. However, as noted above, the maintenance and
repair records, as well as the other driver’s inspection reports, included no evidence in support of
these allegations. As such, we find no error in the circuit court’s refusal to extend the discovery
deadline below.

       For the foregoing reasons, the circuit court’s May 19, 2016, order granting respondent’s
motion for summary judgment is hereby affirmed.



       5
         Petitioner additionally contends that an extension of the discovery deadline was
warranted because respondent included, as an exhibit to its motion for summary judgment, a
version of its responses to his first set of interrogatories and requests for production of
documents served on April 6, 2016, one day prior to the filing of its motion for summary
judgment. Petitioner alleges, without any evidence or citation to the record, that this version of
respondent’s discovery responses differed significantly from the version it served on him in
December of 2015. However, petitioner did not include respondent’s December of 2015
discovery responses in the appendix on appeal. Accordingly, petitioner’s assertion that he needed
additional time for discovery to determine the significance of the information provided in these
discovery responses lacks any basis in the record on appeal. As such, we find that petitioner is
entitled to no relief in this regard.



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                                          Affirmed.

ISSUED: May 22, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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