West Virginia - USLAW NETWORK, Inc

STATE OF WEST VIRGINIA
RETAIL COMPENDIUM OF LAW
Updated in 2016 By
Peter T. DeMasters
Mina R. Ghantous
Flaherty Sensabaugh Bonasso PLLC
48 Donley Street
Suite 501
Morgantown, WV 26501
Tel: (304) 225-3055
Email: Flahertylegal.com
Original compendium prepared by
Huddleston Bolen LLP
2016 USLAW Retail Compendium of Law
RETAIL, RESTAURANT, AND HOSPITALITY
GUIDE TO WEST VIRGINIA PREMISES LIABILITY
1. WEST VIRGINIA COURT SYSTEM
A. West Virginia State Court System
i. Structure
ii. Judicial Selection
B. West Virginia Federal Court System
C. Arbitration
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2. NEGLIGENCE
A. General Negligence Principles
B. Premises Liability/Slip and Fall
C. Open and Obvious
D. Landlord/Tenant and Liability for Leased Premises
E. Dramshop Act
F. Comparative Fault/Contributory Negligence
G. Joint and Several Liability
H. The “Empty Chair” Defense
I. Collateral Source Rule
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3. WORKER’S COMPENSATION
A. Deliberate Intent
i. “Actual Knowledge”
ii. Violation of Safety Statutes and Standards
iii. Compensable Injury
iv. Verified Statement
B. Discrimination/Retaliation
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4. EMPLOYMENT
A. Minimum Wage/Maximum Hours
B. Wage Payment and Collection Act
C. West Virginia Human Rights Act
D. Retaliatory Discharge
i. Legislative Findings
ii. Substantial Public Policy
E. Negligent Hiring, Retention and Supervision
F. Privacy
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5. EMPLOYMENT CONTRACTS
AND RELATED CLAIMS
A. Non-Compete Agreements
B. Tortious Interference
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6. DAMAGES IN PREMISES LIABILITY CASES
A. Caps on Damages
B. Calculation of Damages
C. Available Items of Personal Injury Damages
i.
Past medical bills
ii. Future medical bills
iii. Hedonic damages
iv. Increased risk of harm
v.
Disfigurement
vi. Disability
vii. Past pain and suffering
viii. Future pain and suffering
ix. Loss of Society
x. Lost income, wages, earnings
D. Mitigation
i.
Breach of Contract
ii. Specific economic damages
E. Punitive Damages
i.
Intentionality
ii. Breach of Contract
iii. Recklessness
iv. Factors Considered
v.
Insurability
F. Settlements Involving Minors
i.
Court Approval
ii. Court Considerations
G. Recovery of Pre- and Post-Judgment Interest
i.
Pre-judgment interest
ii. Post-judgment interest
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7. INSURANCE AND INDEMNIFICATION
A. Insurance
i.
Duty to Defend
B. Indemnification
i.
Express Indemnity
ii. Implied Indemnity
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1. WEST VIRGINIA COURT SYSTEM
A. West Virginia State Court System
i.
Structure—The West Virginia State Court System, as it would relate to retail,
consists of three (3) courts: the Supreme Court of Appeals, circuit courts, and magistrate courts.
There is no intermediate appellate court.
(1) Supreme Court of Appeals: The Supreme Court of Appeals is the court of last resort
in West Virginia and is located in the state capital, Charleston, West Virginia. The
Court has extraordinary writ powers and original jurisdiction in proceedings
involving habeas corpus, mandamus, prohibition, and certiorari. It receives
appeals from the circuit courts throughout the state, in addition to worker’s
compensation appeals, which are made directly to the Court. The matter in
controversy in civil appeals, exclusive of costs, must be of a value or amount
exceeding $100. Every appeal, unless dismissed, will result in a decision on the
merits.1
(2) Circuit Courts: West Virginia's thirty one (31) circuit courts are courts of original
and general jurisdiction over all civil cases at law in which the amount in
controversy, excluding interest, exceeds $2,500; all civil cases in equity;
proceedings in habeas corpus, mandamus, quo warranto, prohibition, and
certiorari; and all felonies and misdemeanors. In addition, circuit courts receive
appeals from magistrate courts, municipal courts, family courts, and administrative
agencies (excluding workers' compensation appeals).2
(3) Magistrate Courts: West Virginia’s fifty-five (55) magistrate courts are courts of
limited jurisdiction. Magistrates hear misdemeanor cases, conduct preliminary
hearings in felony cases, hear civil cases with $5,000.00 or less in dispute, and issue
arrest warrants, search warrants, and emergency protective orders in cases
involving domestic violence.3
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See generally, WEST VIRGINIA JUDICIARY, Supreme Court of Appeals-About the Court,
http://www.courtswv.gov/supreme-court/index.html (last visited February 5, 2016); W. VA. CODE § 51-1-3 (1923);
W. VA. R. APP. P. 21, Clerk’s Comments (2010) (“The ability to enter memorandum decisions—rather than refusal
orders under prior practice—is at the core of the revised process.”). Appeals are of “right,” as opposed to “permission.”
W. VA. R. APP. P. 21, Clerk’s Comments (2010).
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See generally, WEST VIRGINIA JUDICIARY, Circuit Courts-Trial Courts of General Jurisdiction,
http://www.courtswv.gov/lower-courts/circuit-courts.html (last visited February 5, 2016); W. VA. CODE § 51-2-2(b)(d) (2008).
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See generally, WEST VIRGINIA JUDICIARY, Magistrate Courts-Trial Courts of Limited Jurisdiction,
http://www.courtswv.gov/lower-courts/magistrate-courts.html (last visited February 5, 2016); W. VA. CODE § 50-21 (1994).
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Additionally, a unique aspect of the West Virginia Court System is the relatively recent creation
of the Business Court Division, as of June 13, 2014. The State’s Business Courts handle a
specialized docket within the circuit courts, consisting of those cases involving commercial issues
and disputes between businesses. See W. VA. TR. CT. R. 29.01 (2014); W. VA. TR. CT. R. 29.04(a)
(2014) (defining “business litigation”); W. VA. CODE § 51-2-15 (2010). Any party or judge may
seek a referral of Business Litigation to the Division by filing a Motion to Refer to the Business
Court Division with the Clerk of the West Virginia Supreme Court of Appeals, which is ultimately
reviewed and decided by the Chief Justice. W. VA. TR. CT. R. 29.06 (2014). The Business Court
Division has seven (7) judges, who can serve staggered, successive seven (7) year terms. W. VA.
TRIAL COURT R. 29.02 (2014).
ii.
Judicial Selection—The rules regarding the election and appointment of judges
and magistrates within West Virginia are as follows:
(1) Justices for the West Virginia Supreme Court of Appeals: Elected by the voters for
twelve (12) year terms, the five (5) Justices on the Supreme Court must have
practiced law for at least ten (10) years. Annually, members of the Court choose
the position of Chief Justice. The Governor appoints Justices to fill vacancies on
the five-member bench if they should occur between elections.4
(2) Circuit Court Judges: Elected by the voters of the Circuit, circuit judges serve terms
of eight (8) years. In circuits with two or more judges, there shall be a chief judge.
Circuit court judges must have practiced law for at least five (5) years. The
Governor appoints judges to fill vacancies if they should occur between elections.5
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W. VA. CONST. art. VIII § 2; W. VA. CODE §§ 51-1-1, 51-1-2 (2015). See generally, WEST VIRGINIA
JUDICIARY, Supreme Court of Appeals-About the Court, http://www.courtswv.gov/supreme-court/index.html (last
visited February 5, 2016).
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W. VA. CONST. art. VIII § 5; W. VA. CODE § 51-2-1 (2015). See generally, WEST VIRGINIA
JUDICIARY, Circuit Courts-Trial Courts of General Jurisdiction, http://www.courtswv.gov/lower-courts/circuitcourts.html (last visited February 5, 2016).
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(3) Magistrate Court Judges: Elected for four (4) year terms, magistrates do not have
to be lawyers. Circuit Court Judges appoint Magistrates to fill vacancies if they
should occur between elections.6
As of January, 2016, the election of West Virginia Supreme Court Justices, circuit court judges,
family court judges, and magistrate court judges are to be conducted on a non-partisan basis and
by division. See W. VA. CODE § 51-1-1 (2015); W. VA. CODE § 3-1-17 (2015); W. VA. CODE § 501-1 (2015).
B. West Virginia Federal Court System
West Virginia is divided into two (2) separate jurisdictions, the Northern District of West
Virginia and the Southern District of West Virginia. The Northern District is composed of thirtytwo (32) counties, and four (4) points of holding court, located in Clarksburg, Elkins, Martinsburg,
and Wheeling. See UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF WEST
VIRGINIA, Court Locations, http://www.wvnd.uscourts.gov/court-info/court-locations (last
visited January 31, 2016). The Southern District is composed of twenty-three (23) counties, and
four (4) points of holding court, located in Beckley, Bluefield, Charleston, and Huntington. See
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA, Judicial
Districts by County, http://www.wvsd.uscourts.gov/judicial-districts-county (last visited January
31, 2016). West Virginia is part of the Fourth Circuit Court of Appeals, in the company of
Maryland, Virginia, North Carolina, and South Carolina. UNITED STATES COURT of
APPEALS for the FOURTH CIRCUIT, About the Court, http://www.ca4.uscourts.gov/about-thecourt (January 31, 2016).
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W. VA. CONST. art. VIII § 10; W. VA. CODE § 50-1-1 (2015). See generally, WEST VIRGINIA JUDICIARY,
Magistrate Courts-Trial Courts of Limited Jurisdiction, http://www.courtswv.gov/lower-courts/magistrate-courts.html
(last visited February 5, 2016).
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C. Arbitration
As of July 1, 2015, the Revised Uniform Arbitration Act governs arbitration proceedings
in West Virginia. Parties wishing to end a dispute may voluntarily submit the controversy to
arbitration in West Virginia. See W. VA. CODE § 55-10-1 (2015), et seq. Once a dispute is
submitted to arbitration, the submission is irrevocable absent leave of court. See W. VA. CODE §
55-10-8 (2015).
Similar to the majority of states, West Virginia has held that an arbitration provision that
is part of a larger contract does not require separate consideration so long as there is adequate
consideration for the contract as a whole. See Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281,
737 S.E.2d 550 (2012). A court, however, must determine on a case-by-case basis whether an
arbitration provision is so harsh or unfair that it should not be enforced. In an employment contract,
if a court finds an arbitration provision to be one-sided or unreasonably favors one party, then the
court can decide to not enforce the arbitration provision. See generally, New v. GameStop, Inc.,
232 W. Va. 564, 753 S.E.2d 62 (2013) (per curiam).
2. NEGLIGENCE
A. General Negligence Principles
West Virginia follows the traditional approach to negligence actions. In all claims of
negligence, a plaintiff must prove that the defendant owed the plaintiff a duty of care, that the
defendant breached that duty and that the breach was the proximate cause of the damages sustained
by the plaintiff. See generally, Rowe v. Sisters of the Pallottine Missionary Soc'y,
211 W. Va.
16, 23, 560 S.E.2d 491, 498 (2001). See also Syl. Pt. 2, Tolliver v. Shumate, 151 W. Va. 105, 150
S.E.2d 579 (1966). Proximate cause is that cause “which in actual sequence, unbroken by any
independent cause, produces the event and without which the event would not have occurred.”
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Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 654-655, 77 S.E.2d 180, 189
(1953) (citation omitted).
In other words, there must be such a natural, direct and continuous
sequence between the negligent act and the injury that it can reasonably be said that but for the act,
the injury would not have occurred. Rowe v. Sisters of the Pallottine Missionary Soc'y, 211 W. Va.
16, 23, 560 S.E.2d 491, 498 (2001).
B. Premises Liability/Slip and Fall
Under West Virginia law, “[t]he owner or the possessor of premises is not an insurer of the
safety of every person present on the premises.” Syl. Pt. 8 (in part), Hersh v. E-T Enters., P'ship,
232 W. Va. 305, 752 S.E.2d 336 (2013) (overruled on other grounds). "In determining whether a
defendant in a premises liability case met his or her burden of reasonable care under the
circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability
that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under
which the injured party entered the premises; (4) the normal or expected use made of the premises;
and (5) the magnitude of the burden placed upon the defendant to guard against injury." Syl. Pt. 6,
Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). Of these factors, foreseeability is the
most important. Syl. Pt. 5, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). “The test
is, would the ordinary man in the defendant's position, knowing what he knew or should have
known, anticipate that harm of the general nature of that suffered was likely to result?" Syl. Pt. 5,
in part, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999) (citation omitted). The common
law distinction between “licensee” and “invitees” for the purposes of premises liability has been
abolished. Syl. Pt. 4, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). However, a
category that remains significant is that of the trespasser, and to her or him, possessors of real
property owe no duty of care, (except where a common-law right-of-action existed as of April 29,
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2015), including the duty to refrain from willfully or wantonly causing the trespasser injury. W.
VA. CODE § 55-7-27(a) (2015).
C. Open and Obvious
In 2015, the West Virginia Legislature statutorily abrogated the decision of the West
Virginia Supreme Court in Hersh v. E-T Enters., P'ship, 232 W. Va. 305, 752 S.E.2d 336 (2013).7
Pursuant to the Hersh Court’s decision, all premises liability matters were to be judged under a
straight negligence standard, and the “open and obvious” doctrine was not a complete defense in
a premises liability action. Id. See also Syl. Pt. 6. However, W. VA. CODE §55-7-28(c) (2015)
reinstated the “open and obvious” doctrine, prior to the Hersh decision, such that possessors of
real property are under no duty to protect others against dangers that are in fact “open” and
“obvious.”
D. Landlord/Tenant and Liability for Leased Premises
Under West Virginia law, absent a leased provision to the contrary, a landlord is not
responsible for keeping the leased premises in repair. See generally, Lennox v. White,
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W. Va. 1, 3, 54 S.E.2d 8, 9 (1949).8 However, there are exceptions to this general rule. One such
exception is the "common use" doctrine, that is, where tenants or invitees of tenants are injured on
part of the premises that can be used in common by tenants or by the public, such as sidewalks,
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A valuable resource in identifying actions of the West Virginia Legislature relevant to West Virginia retail
law was the West Virginia Legislation Updates, Parts I and II, utilized in the Compendium, passim. See Joseph K.
Reeder & Matthew G. Chapman, 2015 West Virginia Legislation Update: Part I, 118 W. Va. L. Rev. Online 23 (2015),
http://wvlawreview.wvu.edu/west-virginia-law-review-online/2015/09/29/2015-west-virginia-legislation-updatepart-i; Joseph K. Reeder & Matthew G. Chapman, 2015 West Virginia Legislation Update: Part II,
118 W. Va.
L. Rev. Online 45 (2015), http://wvlawreview.wvu.edu/west-virginia-law-review-online/2015/11/05/2015-westvirginia-legislation-update-part-ii.
“Where property is leased to different tenants in severalty, the landlord is not responsible for the negligent
use of, or failure to keep in repair, heating, lighting, or plumbing fixtures under the control of a tenant in the latter's
portion of the premises; and where, as a result of such negligence, injury results to the goods of another tenant, the
landlord is not liable therefor." Barker v. Withers, 141 W. Va. 713, 718, 92 S.E.2d 705, 708 (1956) (citation
omitted).
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passageways, bathrooms, etc. Syl. Pt. 6, Cowan v. One Hour Valet, 151 W. Va. 941, 157 S.E.2d
843 (1967). This exception applies to all cases where the landlord retains control of certain places
or things in connection with the leased premises. See Cowan v. One Hour Valet, 151 W. Va. 941,
950-951, 157 S.E.2d 843, 848-849 (1967). The landlord or lessor can also be held liable in such
cases where the lessor has knowledge of a defective condition at the expiration of a lease and does
not disclose or repair such condition before he renews the lease or relets the premises. Id. Further,
West Virginia has recognized that a landlord can be held liable for a defective condition regardless
of the general rules prohibiting such liability when the control of the premises is really with the
lessor or landlord, although it may also serve the lessee or tenant, such as adjoining walls,
plumbing, and electrical equipment. Id.
E. Dramshop Act
Those who sell or serve alcohol in the State of West Virginia9 should be acutely
cognizant of W. VA. CODE § 11-16-18 (2003).10 Its provisions concern the sale and serving of
alcohol to minors, when alcohol can and cannot be sold or served, and when liability can attach to
those who sell or serve alcohol to an intoxicated individual who subsequently injures another,
triggering application of West Virginia’s “dramshop act.” W. VA. CODE § 11-16-18(a)(3) (2003)
renders it unlawful to sell, furnish or give non-intoxicating beer to any person under twenty-one
(21) years old. With the exception of private clubs, it11 cannot be sold, given, or dispensed until
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The Code specifically speaks to “any licensee, his, her, its or their servants, agents or employees.”
10
Legislation introduced in 2016 seeks to amend several aspects of this Chapter of the West Virginia Code.
Depending upon when this Compendium is reviewed, the accuracy of the statute should thus be verified.
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W. VA. CODE § 60-3A-18 (2011) and W. VA. CODE § 60-8-34 (2007) addresses liquor and wine sales.
See also n.10, supra.
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after one o’clock p.m. 12 on Sundays. W. VA. CODE § 11-16-18(a)(1) (2003). Pursuant to W. VA.
CODE § 11-16-18(a)(2) (2003), it is unlawful to sell, furnish or give it to “any person visibly or
noticeably intoxicated or to any person known to be insane or known to be a habitual drunkard.”
Put simply, alcohol vendors can face civil liability in negligence for injuries sustained by third
parties as a consequence of a purchaser’s intoxication. Anderson v. Moulder, 183 W. Va. 77, 82,
394 S.E.2d 61, 66 (1990). As in all negligence actions, questions of foreseeability and causation
will be central to the determination of whether or not liability attaches.
F. Comparative Fault/Contributory Negligence
West Virginia operates under a modified comparative fault standard. W. VA. CODE § 557-13a(a) (2015). Therefore, recovery in personal injury, property damage, or wrongful death cases
is based upon the percentage of fault of each applicable party. W. VA. CODE § 55-7-13a(b) (2015).
However, in order to recover damages, the plaintiff’s own negligence or fault must not be equal to
or greater than the defendant's negligence. If the plaintiff is less than 50% at fault, the award is
decreased by the plaintiff’s percentage of fault. If the plaintiff is 50% or more at fault, she/he
cannot recover. See W. VA. CODE §55-7-13c(c); Bradley v. Appalachian Power Co., 163 W. Va.
332, 256 S.E.2d 879 (1979).
G. Joint and Several Liability
As a result of the 2015 Legislative session, joint liability for compensatory damages was
abolished. W. VA. CODE § 55-7-13c(a) (2015).13 However, there are several exceptions to this
prohibition. Joint liability may be imposed on two (2) or more defendants who “consciously
Pending 2016 legislation seeks to change this to “ten o’clock a.m.” S.B. 21, 82nd Leg., 2nd Sess. (W. Va.
2016); S.B. 298, 82nd Leg., 2nd Sess. (W. Va. 2016); S.B. 307, 82nd Leg., 2nd Sess. (W. Va. 2016).
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Section 13c does not apply to the following: W. VA. CODE §29-12A-1, et seq. (the Governmental Tort Claims
and Insurance Reform Act); W. VA. CODE §46-1-1, et seq. (the Uniform Commercial Code); and W. VA. CODE §557b-1, et seq. (the Medical Professional Liability Act).
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conspire and deliberately pursue a common plan or design to commit a tortious act or omission.”
W. VA. CODE § 55-7-13c(a) (2015). If a defendant drives a vehicle under the influence of alcohol,
a controlled substance, or any other drug or combination thereof, which is a proximate cause of
the plaintiff’s damages, joint and several liability shall apply. W. VA. CODE § 55-7-13c(h)(1)
(2015). A defendant whose acts or omissions constitute criminal conduct or an illegal disposal of
hazardous waste (pursuant to W. VA. CODE § 22-18-3) which is the proximate cause of the
plaintiff’s damages shall also be subject to joint and several liability. W. VA. CODE § 55-713c(h)(2) (2015).
To calculate the judgment amount attributable to each defendant pursuant to the modified
comparative fault standard, the Court multiplies the total amount of compensatory damages
recoverable by the plaintiff by the percentage of each defendant’s fault, which is the maximum
amount recoverable against her or him. W. VA. CODE § 55-7-13c(b) (2015). However, should the
plaintiff’s fault equal or exceed that of the combined fault of all other persons responsible for the
total amount of damages, then the plaintiff is barred from recovery. W. VA. CODE § 55-7-13c(c)
(2015). If the plaintiff’s fault is less than the combined fault of all other persons, then the plaintiff’s
recovery is reduced in proportion to her/his degree of fault. Id.
Importantly, if a plaintiff is unable to collect from a liable defendant through good faith
efforts, the plaintiff may move for “reallocation” of any uncollectible amount among the other
parties found liable. W. VA. CODE § 55-7-13c(d) (2015). The plaintiff must do this “not later than
one year after judgment becomes final through lapse of time for appeal or through exhaustion of
appeal, whichever occurs later.” Id. If the Court determines that part, or all, of the defendant’s
proportionate share is uncollectible from that defendant, the uncollectible amount shall be
reallocated among the other liable parties, including the plaintiff, according to their percentages at
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fault. W. VA. CODE § 55-7-13c(d)(1) (2015). However, the Court may not reallocate to any
defendant an uncollectible amount greater than the defendant’s percentage of fault, multiplied by
the uncollectible amount. Id. Additionally, “[t]here shall be no reallocation against a defendant
whose percentage of fault is equal to or less than the plaintiff’s percentage of fault,” nor can fault
allocated to an immune defendant, or a defendant whose liability is limited by law, be reallocated
to another defendant. Id. W. VA. CODE § 55-7-13c(g) (2015). The parties may conduct discovery
on the issue of collectability before a hearing on the reallocation motion. W. VA. CODE § 55-713c(d)(2) (2015).
H. The “Empty Chair” Defense
The trier of fact may consider all persons who contributed to a plaintiff’s alleged
damages, regardless of whether or not they could have been named as a party to the suit. W. VA.
CODE § 55-7-13d(a)(1) (2015). Consideration of the fault of such a party is permissible if the
plaintiff entered into a settlement agreement with the non-party or if a defending party gives notice,
no later than one hundred and eight (108) days after service of process on said defending party,
that a non-party was wholly or partially at fault. W. VA. CODE § 55-7-13d(a)(2) (2015). However,
legislation pending as of January 26, 2016, proposes to extend the time frame for giving notice to
one hundred and eighty (180) days. See S.B. 385, 82nd Leg., 2nd Sess. (W. Va. 2016).
Additionally, proposed legislation changes the circumstances that can bar a plaintiff’s recovery,
specifically concerning the prohibition of recovery for damages for wrongful conduct H.B. 4008,
82nd Leg., 2nd Sess. (W. Va. 2016); S.B. 7, 82nd Leg., 2nd Sess. (W. Va. 2016).
I. Collateral Source Rule
West Virginia recognizes the collateral source rule. See generally Kenney v. Liston, 233
W. Va. 620, 760 S.E.2d 434 (2014). The rule "normally operates to preclude the offsetting of
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payments made by health and accident insurance companies or other collateral sources as against
the damages claimed by the injured party." Syl. Pt. 7, Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d
584 (1981). The purpose of the collateral source rule is to prevent the jury from being tempted to
reduce the damages "based on the amounts that the plaintiff has been shown to have received from
collateral sources." Id. at Syl. Pt. 8.
3. WORKERS’ COMPENSATION
The West Virginia Workers’ Compensation Act (“WVWCA”), W. VA. CODE § 23-1-1, et
seq., was developed in order to guarantee employees injured on-the-job limited benefits no matter
who was at fault for the accident, while also granting the employer immunity from tort liability.
The workers’ compensation system provides the employee with compensation for medical bills
paid and lost wages. The employer is, however, entitled to a set-off of any amount received or
receivable by plaintiffs from workers’ compensation. Any employer who pays into the workers'
compensation fund "is not liable to respond in damages at common law or by statute for the injury
or death of any employee." W. VA. CODE § 23-2-6 (2003). Instead, claims that arise out of the
furtherance of the employer's business must be submitted to the workers' compensation board. This
compromise system between employer and employee allows an employer to foresee and prepare
for the costs of on-the-job injuries, and thus pass those costs on to consumers of their products or
services.
The WVWCA applies nearly universally to employers across the state, and includes all
persons, firms, associations, and corporations regularly employing another person or persons for
the purpose of carrying on any form of industry, service, or business in this state. W. VA. CODE §
23-2-1(a) (2005). All injuries that occur in the course of, and resulting from, such covered
employment fall within the system. Employees must give written notice of work-related injuries
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immediately or as soon as practicable after the occurrence, and the employer must then report the
injury to the commissioner within five (5) days of receiving the employee’s notice of injury, or
within five (5) days after the commissioner notifies the employer that a claim of benefits has been
filed, whichever is sooner. W. VA. CODE § 23-4-1a (2003); W. VA. CODE § 23-4-1b (2005).
A. Deliberate Intent
If you do business in West Virginia, you should be familiar with not only the mandatory
workers’ compensation law, but the deliberate intent exception to statutory immunity as well.
Pursuant to this exception, if an employee can prove that the employer acted with “deliberate
intent” to injure the employee, the employer is stripped of its workers’ compensation immunity.
W. VA. CODE §23-4-2(d)(2) (2015). “[A]n employee, widow, widower, child, or dependent has a
deliberate intention cause of action against the employer for injury or death of an employee. In the
event of an employee's death, the decedent's estate has a claim." Syl. Pt. 3, in part, Murphy v. E.
Am. Energy Corp., 224 W. Va. 95, 680 S.E.2d 110 (2009). See also W. VA. CODE § 23-4-2(c)
(2015).
The traditional negligence standard is insufficient for the employee to prevail in a
deliberate intent action, as the statute delineates the two (2) methods by which an employee’s claim
may succeed. First, an employee can prove the employer acted with a “consciously, subjectively
and deliberately formed intention to produce the specific result of injury or death to the employee.”
W. VA. CODE § 23-4-2(d)(2)(A) (2015). This standard requires the showing of an actual, specific
intent and is not satisfied by either allegation or proof of conduct that produced a result not
specifically intended, conduct that was negligent, no matter how gross or aggravated, or willful,
wanton or reckless misconduct. Id.
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The second avenue available to an employee to establish deliberate intent is if the trier of
fact determines that the following five (5) elements are proven:
(i) 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;
(ii) 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.
(iii) 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.
(iv) That notwithstanding the existence of the facts set forth in subparagraphs (i) through
(iii), inclusive, of this paragraph, the person or persons alleged to have actual knowledge
under subparagraph (ii) nevertheless intentionally thereafter exposed an employee to the
specific unsafe working condition; and
(v) That the employee exposed suffered serious compensable injury or compensable death
as defined in section one, article four, chapter twenty-three as a direct and proximate result
of the specific unsafe working condition.
W. VA. CODE § 23-4-2(d)(2)(B) (2015).
The law relating to deliberate intent underwent substantial amendment as a result of the
2015 legislative session. Notable changes made to the pre-existing deliberate intent statute
concerned (i) how “actual knowledge” is established; (ii) what constitutes violation of safety
statutes and standards; (iii) what constitutes “intentional exposure;” (iv) the definition of
“compensable injury;” and (v) pleading requirements regarding the “verified statement.”
i.
Actual Knowledge—This must be specifically proven and not deemed or
presumed. W. VA. CODE § 23-4-2(d)(2)(B)(ii)(I) (2015). It may be shown by evidence of
“intentional and deliberate failure to conduct an inspection, audit or assessment required by state
or federal statute or regulation . . . specifically intended to identify each alleged specific unsafe
working condition.” Id. “Actual knowledge” is not established by what an employee’s immediate
13
supervisor or management personnel “should have known,” had reasonable care or more diligence
been exercised. W. VA. CODE § 23-4-2(d)(2)(B)(ii)(II) (2015). Additionally, proof of an immediate
supervisor or management personnel’s knowledge of “prior accidents, near misses, safety
complaints or citations from regulatory agencies must be proven by documentary or other credible
evidence.” W. VA. CODE § 23-4-2(d)(2)(B)(ii)(III) (2015).
ii.
Violation of Safety Statutes and Standards—If the specific unsafe working
condition relates to a commonly accepted and well-known safety standard within the industry or
business of the employer, “it must be a consensus written rule or standard promulgated by the
industry or business of the employer, such as an organization comprised of industry members.”
W. VA. CODE § 23-4-2(d)(2)(B)(iii)(I) (2015). If the specific unsafe working condition relates to a
violation of a state or federal safety statute, rule or regulation, it must be “specifically applicable
to the work and working condition involved” and “intended to address the specific hazard(s)
presented by the alleged specific unsafe working condition.” W. VA. CODE § 23-42(d)(2)(B)(iii)(II) (2015).
iii.
Compensable Injury—It can only be established by one of four (4) methods
delineated by statute as follows:
(I) It is shown that the injury, independent of any preexisting impairment:
(a) Results in a permanent physical or combination of physical and psychological injury
rated at a total whole person impairment level of at least thirteen percent (13%) as a final
award in the employees workers’ compensation claim; and
(b) Is a personal injury which causes permanent serious disfigurement, causes permanent
loss or significant impairment of function of any bodily organ or system, or results in
objectively verifiable bilateral or multi-level dermatomal radiculopathy; and is not a
physical injury that has no objective medical evidence to support a diagnosis; or
(II) Written certification by a licensed physician that the employee is suffering from an injury or
condition that is caused by the alleged unsafe working condition and is likely to result in death
14
within eighteen (18) months or less from the date of the filing of the complaint. The certifying
physician must be engaged or qualified in a medical field in which the employee has been treated,
or have training and/or experience in diagnosing or treating injuries or conditions similar to those
of the employee and must disclose all evidence upon which the written certification is based,
including, but not limited to, all radiographic, pathologic or other diagnostic test results that were
reviewed.
(III) If the employee suffers from an injury for which no impairment rating may be determined
pursuant to the rule or regulation then in effect which governs impairment evaluations pursuant
to this chapter, serious compensable injury may be established if the injury meets the definition
in subclause (I)(b).
(IV) If the employee suffers from an occupational pneumoconiosis, the employee must submit
written certification by a board certified pulmonologist that the employee is suffering from
complicated pneumoconiosis or pulmonary massive fibrosis and that the occupational
pneumoconiosis has resulted in pulmonary impairment as measured by the standards or methods
utilized by the West Virginia Occupational Pneumoconiosis Board of at least fifteen percent
(15%) as confirmed by valid and reproducible ventilatory testing. The certifying pulmonologist
must disclose all evidence upon which the written certification is based, including, but not limited
to, all radiographic, pathologic or other diagnostic test results that were reviewed: Provided, That
any cause of action based upon this clause must be filed within one year of the date the employee
meets the requirements of the same.
W. VA. CODE § 23-4-2(d)(2)(B)(v) (2015).
iv.
Verified Statement—To be submitted when a complaint is served pursuant to W.
VA. CODE § 23-4-2(d)(2)(B) (2015), it must be from a person with “knowledge and expertise of
the workplace safety statutes, rules, regulations and consensus industry safety standards
specifically applicable to the industry and workplace involved in the employee’s injury.”
W.
VA. CODE § 23-4-2(d)(2)(C)(i) (2015). The statement must set forth opinions and information on:
(I) The person’s knowledge and expertise of the applicable workplace safety
statutes, rules, regulations and/or written consensus industry safety standards;
(II) The specific unsafe working condition(s) that were the cause of the injury that
is the basis of the complaint; and
(III) The specific statutes, rules, regulations or written consensus industry safety
standards violated by the employer that are directly related to the specific unsafe
15
working conditions: Provided, however, That this verified statement shall not be
admissible at the trial of the action and the Court, pursuant to the Rules of Evidence,
common law and subclause two-c, subparagraph (iii), paragraph (B), subdivision
(2), subsection (d), section two, article four, chapter twenty-three of this code,
retains responsibility to determine and interpret the applicable law and admissibility
of expert opinions. Id.
Additionally, causes of action are to be brought either in the circuit court of the county in
which the alleged injury occurred or where the employer’s principal place of business is located.
W. VA. CODE § 23-4-2(e) (2015). Discovery may be bifurcated upon the employer’s request to
resolve liability issues prior to those concerning damages. W. VA. CODE §23-4-2(d)(2)(C)(iii)
(2015). The amendments resulting from the 2015 Legislative session apply to all injuries occurring
on or after July 1, 2015. W. VA. CODE §23-4-2(g) (2015).
The affirmative defenses of comparative negligence and assumption of the risk are not
available to employers in a deliberate intent case. The battleground during the dispositive motion
and trial phases is the fine line between arguing the plaintiff’s comparative negligence and
presenting evidence that the employee created the specific unsafe working condition.
B. Discrimination/Retaliation
When an injured employee seeks to collect benefits and pursue his or her statutory
remedies, however, some employers are tempted to retaliate against that employee in some cases.
The anti-discrimination provisions of the WVWCA are designed to prohibit an employer from
discriminating “in any manner against any of his present or former employees because of
. . . employee’s receipt of or attempt to receive benefits under this chapter.”
such
W.
VA. CODE § 23-5A-1 (1978). The Supreme Court of Appeals of West Virginia has held that in
order to prevail on a claim of workers’ compensation discrimination, an employee must prove that:
(1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers’
Compensation Act, W. Va. Code 23-1-1, et seq.; and (3) the filing of a workers’ compensation
16
claim was a significant factor in the employer’s decision to discharge or otherwise discriminate
against the employee. See Syl. Pt. 1, Powell v. Wyo. Cablevision, 184 W. Va. 700, 403 S.E.2d 717
(1991).
It is a discriminatory practice under the WVWCA to “terminate an injured employee while
the injured employee is off work due to a compensable injury . . . and is receiving or is eligible to
receive temporary total disability benefits, unless the injured employee has committed a separate
dischargeable offense.” W. VA. CODE § 23-5A-3(a) (1990).
In addition, an employee is generally entitled to reinstatement after the employee is
physically able to return to work. Under the applicable provision of the W. VA. CODE § 23-5A3(b) (1990):
It shall be a discriminatory practice . . . for an employer to fail to reinstate an
employee who has sustained a compensable injury to the employee’s former
position of employment upon demand for such reinstatement provided that the
position is available and the employee is not disabled from performing the duties
of such position. If the former position is not available, the employee shall be
reinstated to another comparable position which is available and which the
employee is capable of performing. . . . In the event that neither the former position
nor a comparable position is available, the employee shall have a right to
preferential recall to any job which the injured employee is capable of performing
which becomes open after the injured employee notifies the employer that he or she
desired reinstatement. Said right of preferential recall shall be in effect for one year
from the day the injured employee notifies the employer that he or she desires
reinstatement: Provided, [t]hat the employee provides to the employer a current
mailing address during this one-year period.
Under this statute, reinstatement is required so long as the position is available, and the
employee is not disabled from performing the duties of the job, with reasonable accommodations.
If the position is not available, the employee should be reinstated to a comparable position in terms
of wages, working conditions, and job duties. If no such comparable position is available, the
employee is entitled to preferential recall rights to any position the employee is capable of
performing for one year from the date that the employee notifies the employer that he or she wants
17
reinstatement. In order to exercise the reinstatement rights protected by this statute, including
rights to preferential recall, an employee must prove through competent medical evidence that he
has recovered from his compensable injuries and is capable of returning to work and performing
his job duties. Id.
4. EMPLOYMENT
A. Minimum Wage/Maximum Hours
Employers are to pay their employees wages at a rate not less than $8.75 per hour.
W. VA. CODE § 21-5C-2(a)(5) (2014).14 No employee shall be employed for a work week
exceeding forty (40) hours unless compensated for the employment in excess of the forty (40)
hours. W. VA. CODE § 21-5C-3(a) (1992). Specifically, this shall be at a rate not less than one and
one-half times the regular rate at which she/he is employed. Id. Currently, West Virginia House
Bill 2243, introduced on January 13, 2016, proposes that when an employee is required to work
on a State holiday, regardless of whether or not it is in excess of the forty (40) hour work week,
she/he shall be paid at a rate not less than one and one half time the regular rate at which said
employee is employed. H.B. 2243, 82nd Leg., 2nd Sess. (W. Va. 2016).
B. Wage Payment and Collection Act
Companies that process paychecks and benefits out-of-state often find themselves in
violation of the West Virginia Wage Payment and Collection Act (the “Act”), W. VA. CODE
§
21-5-1, et seq. For the purposes of this Act, the definition of “employee” includes “any person
suffered or permitted to work by a person, firm or corporation,” and therefore, independent
contractors may also be protected by the Act. W. VA. CODE § 21-5-1(b) (2015). The term
However, “[w]hen the federal minimum hourly wage as prescribed by 29 U.S.C. § 206(a)(1) is equal to or
greater than the wage rate prescribed in the applicable provision of this subsection, every employer shall pay to each
of his or her employees wages at a rate of not less than the federal minimum hourly wage as prescribed by 29 U.S.C.
§ 206(a)(1).” W. VA. CODE § 21-5C-2(a)(6) (2014).
14
18
“employer” means “any person, firm or corporation employing any employee.” W. VA. CODE §
21-5-1(m) (2015). The term “wages” is defined as “compensation for labor or services rendered
by an employee, whether the amount is determined on a time, task, piece, commission or other
basis of calculation.” W. VA. CODE § 21-5-1(c) (2015). Wages include “then accrued fringe
benefits capable of calculation and payable directly to an employee.” Id. The term “fringe benefits”
means “any benefit provided [to] an employee or group of employees by an employer, or which is
required by law, and includes regular vacation, graduated vacation, floating vacation, holidays,
sick leave, personal leave, production incentive bonuses, sickness and accident benefits and
benefits relating to medical and pension coverage.” W. VA. CODE § 21-5-1(l) (2015). However,
the Act does not require fringe benefits to be calculated contrary to any agreement between an
employer and his employees, which does not contradict the Act. For instance, if an employer does
not have a policy for paying an employee for unused sick days at the time of separation from
employment, the Act does not require unused sick days to be paid as part of the fringe benefits
owed at the time of separation of employment.
To be compliant with the Act, employees are to be paid at least twice a month, with no
more than nineteen (19) days between settlement, absent special agreement. W. VA. CODE § 21-53(a) (2015). No employee can be employed for a work week exceeding forty (40) hours, unless
the employee is compensated at a rate not less than one and a half times the regular rate at which
the employee is employed. W. VA. CODE § 21-5C-3(a) (1992). In terms of separation from
employment, the Act contemplates three (3) scenarios. In West Virginia, if an employee is
discharged, quits, or resigns, the employer shall pay the employee’s wages in full “prior to the
separation of employment on or before the next regular payday on which the wages would
otherwise be due and payable.” W. VA. CODE § 21-5-4(b) (2015). “[F]ringe benefits, as defined in
19
section one of this article, that are provided an employee pursuant to an agreement between the
employee and employer and that are due, but pursuant to the terms of the agreement, are to be paid
at a future date or upon additional conditions which are ascertainable are not subject to this
subsection and are not payable on or before the next regular payday, but shall be paid according
to the terms of the agreement. For purposes of this section, ‘business day’ means any day other
than Saturday, Sunday or any legal holiday as set forth in section one, article two, chapter two of
this code.” Id.
However, if the employee gives at least one (1) pay period’s written notice of intention to
quit, the employer shall pay all wages earned by the employee at the time of quitting.
W.
VA. CODE § 21-5-4(c) (2015). When the work of any employee is suspended as a result of a labor
dispute, or when an employee for any reason whatsoever is laid off, the employer shall pay the
employee’s wages in full no later than the next regular payday. W. VA. CODE § 21-5-4(d) (2015).
Payment in all instances may be made through the regular pay channels or, if requested by the
employee, by mail. Id.
The penalties for violating the Act can be significant. If an employer fails to pay an
employee wages as required, the employer, in addition to the amount that was unpaid when due,
is liable to the employee for twice that unpaid amount as liquidated damages. W. VA. CODE § 215-4(e) (2015). Attorneys’ fees and interest are also available in addition to the penalty.
VA. CODE § 21-5-12(b) (1975).
C. West Virginia Human Rights Act
20
W.
In West Virginia, a wrongful or retaliatory discharge claim that is not based on contract or
a violation of public policy is usually brought under the West Virginia Human Rights Act
(“WVHRA”). There exists no general public policy against harassment in the workplace for
purposes of wrongful discharge law. The WVHRA governs a claim where an individual was
allegedly discriminated against because of race, religion, color, national origin, ancestry, sex, age,
blindness or handicap. W. VA. CODE § 5-11-2 (1998).15
An individual may bring a claim under the WVHRA in the West Virginia Human Rights
Commission (“the Commission”) itself or in the circuit court. W. VA. CODE § 5-11-10 (1994); W.
VA. CODE § 5-11-13(b) (1998). A claim filed with the Commission must be brought within three
hundred sixty-five (365) days of the adverse act. W. VA. CODE § 5-11-10 (1994). Any person
against whom a complaint has been filed must respond in writing within ten (10) days of receipt
of the complaint. W. VA. CODE R. § 77-2-4.2 (2015); W. VA. CODE R. § 77-2-6.1, 6.3a (2015).
The Commission rarely grants an extension for the employer to respond to a complaint. When a
claim is brought before the Commission, an assistant attorney general may represent the claimant.
W. VA. CODE R. § 77-2-3.3 (2015).
The Rules allow for written discovery in the form of interrogatories and requests for
production of documents. W. VA. CODE R. § 77-2-7.16.b; 7.16.c (2015). Requests for admissions
are not provided for in the Commission’s Procedural Rules. The Commission’s Procedural Rules
only provide a period of ten (10) days for answering interrogatories and twenty (20) days for
responding to requests for production. W. VA. CODE R. § 77-2-4.5, 7.26.b (2015). Depositions may
be taken at the discretion of the Administrative Law Judge (“ALJ”) upon motion by a party. W.
15
Senate Bill 111, proposing changes to the WVHRA, was introduced on January 13, 2016. Significantly, the
changes the Bill seeks to incorporate concern the prevention of discrimination on the basis of sexual orientation. See
S.B. 111, 82nd Leg., 2nd Sess. (W. Va. 2016).
21
VA. CODE R. § 77-2-7.16.a, 7.22 (2015). Motions must be made in writing. W. VA. CODE R. § 772-7.11 (2015). Any response to a motion must be submitted within five (5) days, regardless of
whether a hearing has been set on the motion. Id. The ALJ may use discretion in scheduling
arguments upon a motion or making a ruling based upon the written submissions alone. Id. Once
a hearing is scheduled, agreed-to resolutions short of adjudication remain favored.
Aggrieved parties may file petitions for administrative appeal with the Commission within
thirty (30) days of receipt of the decision. W. VA. CODE § 5-11-11(a) (1989). Any party aggrieved
by a final order of the Commission may appeal the decision to the Supreme Court. Any final order
of the Commission in which the complainant is awarded back pay in excess of $30,000 or other
damages in excess of $5,000 may be appealed into the circuit court of Kanawha County. Id.
A party may forego filing a claim with the Commission and pursue claims brought under
the Act directly in the circuit court, for which there is a two (2) year statute of limitations.
See
Syl. Pt. 1, Price v. Boone County Ambulance Auth., 175 W. Va. 676, 37 S.E.2d 913 (1985); W.
VA. CODE § 5-11-13(b) (1998).
D. Retaliatory Discharge
i.
Legislative Findings—Employees of the State of West Virginia are entitled to be
free from wrongful discharge and unlawful retaliation. W. VA. CODE § 55-7E-2(a)(1) (2015).
Citizens and employers alike are entitled to a legal system that adequately and reasonably
compensates those subjected to unlawful employment actions, and the system should be fair,
predictable in its outcomes, and it should function within the “mainstream of American
jurisprudence.” W. VA. CODE § 55-7E-2(a)(2) (2015). However, the Legislature’s sweeping
intentions are tempered by the fact that the goal of compensation remedies in employment law
cases is to make the victim “whole.” W. VA. CODE § 55-7E-2(a)(3) (2015). Lack of uniformity in
22
damage awards, “inconsistent with established federal law and the law of surrounding states,” puts
West Virginia and its businesses at a competitive disadvantage. W. VA. CODE § 55-7E-2(a)(4)
(2015). The purpose of the newly-added Article 7E, a product of the 2015 Legislative session, is
to “provide a framework for adequate and reasonable compensation to those persons who have
been subjected to an unlawful employment action, but to ensure that compensation does not far
exceed the goal of making a wronged employee whole.” W. VA. CODE § 55-7E-2(b) (2015)
(emphasis added).
ii.
Substantial Public Policy—The general rule under West Virginia law is that
employment is at-will and freely terminable by either party, subject to the exception that if the
employee can show that the employer’s motivation for discharge “contravenes some substantial
public policy.” Syl. Pt. 1, Harless v. First Nat’l Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978). It
is well-established that in West Virginia, retaliatory discharge cases are generally based on a public
policy articulated under the constitution, legislative enactments, legislatively approved
regulations, and judicial opinions. Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp.
188
W. Va. 371, 424 S.E.2d 606 (1992). The basis of such claims is that it serves the greater good to
prohibit employers from taking disciplinary action against employees for opposing employer
wrongdoing. Inherent in the concept of a “public policy” claim is that the public has an interest in
the supposed wrongdoing identified and reported by the plaintiff asserting such a claim in order
for it to be actionable.
A substantial public policy should be easily recognizable so as to provide specific guidance
to a reasonable person. Id. at Syl. Pt. 3. To obtain relief under a claim for wrongful discharge in
violation of a substantial public policy, a former employee must show:
(1) a clear public policy existed and was manifested in a state or federal constitution,
statute, administrative regulation, or in the common law;
23
(2) whether dismissing employees under circumstances like those involved in the
Plaintiff's dismissal would jeopardize the public policy;
(3) whether the Plaintiff's dismissal was motivated by conduct related to the public
policy; and;
(4) whether the employer lacked an overriding business justification for the dismissal.
Feliciano v. 7-Eleven, 210 W. Va. 740, 750, 559 S.E.2d 713, 723 (2001) (citation omitted).
Public policy only protects an employee’s actions allegedly in opposition to his employer’s
conduct where the employee has complained to an outside party or taken other action reasonably
calculated to prevent the objectionable conduct.
If the cause of action is based upon the
employee’s pursuit or anticipated pursuit of violations of administrative or statutory procedures,
then notice to the employer of such action or intention is essential to the claim. Factual support
that the employer was informed or in some way found out about the plaintiff’s pursuit of remedies
is essential to a retaliatory discharge action.
In terms of damages, an employee has an affirmative duty to mitigate, regardless of
whether the cause of action arises from a legislatively-created statutory right or the West Virginia
common law. W. VA. CODE § 55-7E-3(a) (2015). This duty exists whether or not the employer
acted with malice, malicious intent, or willful disregard of the employee’s rights. Id. In 2015, the
Legislature abolished the malice exception, and unmitigated or flat back pay and front pay awards
are not an available remedy. Id. The amount of front pay to be awarded is an issue for the trial
judge to decide. W. VA. CODE § 55-7E-3(b) (2015).
E. Negligent Hiring, Retention and Supervision
In West Virginia, a claim for negligent hiring or retention is premised on the question of
when the employee was hired or retained, whether the employer conducted a reasonable
investigation into the employee’s background vis-à-vis the job for which the employee
24
was hired and the possible risk of harm or injury to co-workers or third parties that could result
from the conduct of an unfit employee. See McCormick v. W. Va. Dep’t of Pub. Safety,
202
W. Va. 189, 503 S.E.2d 502, 506 (1998) (per curiam) (citing State ex rel. W. Va. State Police v.
Taylor, 201 W. Va. 554, 499 S.E.2d 283, 289, n.7 (1997)); See generally, Thomson v. McGinnis,
195 W. Va. 465, 465 S.E.2d 922 (1995). In other words, should the employer have reasonably
foreseen the risk caused by hiring or retaining an unfit employee? See McCormick v. W. Va. Dep’t
of Pub. Safety, 202 W. Va. 189, 503 S.E.2d 502, 506 (1998) (per curiam) (citing State ex rel. W.
Va. State Police v. Taylor, 201 W. Va. 554, 499 S.E.2d 283, 289, n.7 (1997)).
Whether an employer may be held liable on a theory of negligent hiring or retention
depends on the nature of the employee’s job assignment, duties and responsibilities. An employer
has a duty to consider any risks to third persons associated with the employee’s particular
job. Examples of factors that West Virginia courts have considered include:
(1) whether
the employee was given access to certain locations strictly controlled by the company; (2) the
extent to which the employee’s job duties involved contact with other employees or the public; (3)
whether the employer gave express or implied authority or status which would lead co-workers or
the public to believe that the employee was trustworthy or reliable; (4) did the employer condone
or permit any conduct by the employee which was inconsistent with his job duties; (5) whether the
employer had knowledge of the employee’s past behavior that is relevant to the recent conduct;
(6) the inherent dangers associated with the employee’s job duties; and (7) whether the employer
had knowledge of the alleged inappropriate or illegal incident.
F. Privacy
West Virginia law recognizes a right to privacy, and an employer’s infringement upon an
employee’s right to privacy may give rise to a cause of action. Syl. Pt. 2, Cordle v. General Hugh
25
Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984). Recognized examples of activities
infringing upon this right include employee drug testing and pre-employment polygraph exams.
W. VA. CODE §21-5-5b (2015); Id. at Syl. Pt. 3; Syl. Pt. 1, Twigg v. Hercules Corp., 185 W. Va.
155, 406 S.E.2d 52 (1990). Concerning the law as it pertains to drug testing, the right to privacy
protects an employee from employer intrusion in this form, under certain circumstances.
Syl.
Pts. 1, 2, Twigg v. Hercules Corp., 185 W. Va. 155, 406 S.E.2d 52 (1990). Only two recognized
exceptions exist that allow for drug testing. An employer may drug test where the employer has a
“reasonable good faith objective suspicion” regarding the employee’s drug use. Id. Additionally,
the employer may drug test where the employee’s work concerns the “public safety or the safety
of others.” Id.
West Virginia also recognizes an employee’s right to privacy in terms of their employment
files and records which prevents the disclosure of a non-litigant employee’s file as part of any
discovery request or response to a subpoena. This protection may also extend to former employees.
See State ex rel. Westbrook Health Servs., Inc. v. Hill, 209 W. Va. 668, 674, 550 S.E.2d 646, 550
S.E.2d 646, 652 (2001) (per curiam) (“[w]hen a litigant seeks personal and/or personnel
information concerning nonlitigant employees or former employees . . . production of the
requested information may invade the nonlitigant employees' or former employees' right to
privacy.”). See also, State ex rel. W. Va. Fire & Cas. v. Karl, 202 W. Va. 471, 505 S.E.2d 210
(1998) (per curiam).
5. EMPLOYMENT CONTRACTS AND RELATED CLAIMS
A. Non-Compete Agreements
Employment agreements assist employers in controlling employee activity vis-à-vis their
customers, and also allow the employer to have more involvement in the departure from
employment. This is of particular significance if the employee has announced, or is believed to
26
be, leaving to compete directly with the now-former employer. Because non-compete and nonsolicitation agreements are viewed by many courts (especially those in West Virginia) as a restraint
of trade and the ability to earn a living, if an employer wishes to enter into an express employment
agreement or a non-compete and non-solicitation agreement with some of its employees, then
certain provisions and considerations are preferred or necessary.
West Virginia courts look less favorably on attempts to change the terms and conditions of
employment with existing employees. Courts consider whether a non-compete agreement is
specifically and narrowly tailored to the specific job, information and limitations on competition
that will reasonably suit the employee. A reasonable geographic and temporal scope to the
agreements is absolutely critical to enforce the agreement in West Virginia courts. See Syl. Pt. 1,
Huntington Eye Assocs. v. LoCascio, 210 W. Va. 76, 553 S.E.2d 773 (2001) (per curiam) ("An
employee covenant not to compete is unreasonable on its face if its time or area limitations are
excessively broad, or where the covenant appears designed to intimidate employees rather than to
protect the employer's business, and a court should hold any such covenant void and
unenforceable, and not undertake even a partial enforcement of it, bearing in mind, however, that
a standard of 'unreasonable on its face' is to be distinguished from the standard of 'reasonableness'
used in inquiries adopted by other authorities to address the minor instances of overbreadth to
which restrictive covenants are naturally prone." Syllabus Point 2, Reddy v. Community Health
Foundation of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).”). The more limited the non-compete
provisions are with regard to their length and the distance within which the employee is prohibited
from competing will enhance the odds that they will be found to be enforceable.
B. Tortious Interference
27
A claim for tortious interference is typically seen in West Virginia under circumstances
such as: (1) Company A interferes with the employer-employee relationship of Company B;
(2)
Company A interferes with the business relationship between Company B and its clients or
vendors; (3) Company A successfully interferes with the employer-employee relationship of
Company B, and the former employee of Company B and Company A begin to tortiously interfere
with the client, vendor, and/or employee relationships of Company B; or (4) Company A
successfully interferes with the employment relationship, thereafter Company B takes measures to
protect its proprietary information and goodwill such as filing an injunction or lawsuit, Company
A terminates the employee as a result, and the former employee and/or Company A sue Company
B alleging tortious interference. Theory four (4) is premised on the concept of fair and legal
competition in the business market.
The elements of a prima facie tortious interference claim as defined by West Virginia law
include:
(1) the existence of a contractual or business relationship or expectancy;
(2) an intentional act of interference by a party outside that relationship or expectancy;
(3) proof that the interference caused the harm sustained; and
(4) damages.
Syl. Pt. 2, Torbett v. Wheeling Dollar Sav. & Trust Co., 173 W. Va. 210, 314 S.E.2d 166 (1983).
A claim for tortious interference can be challenging to prove. Often times, the evidence
necessary to support a claim isn’t available until the harm has already occurred. There is also a
high likelihood that Company A will assert a counterclaim for tortious interference against
Company B that could result in lengthy and expensive litigation.
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In addition, West Virginia has long held to the principal that an agent/employee “is not
liable to one with whom he contracts for a breach of the contract” when he is “authorized to make
the contract that he makes on behalf of his principal.” Hoon v. Hyman, 87 W. Va. 659, 661-662,
105 S.E. 925, 926 (1921); See also Koerber v. Wheeling Island Gaming, Inc., 2013 U.S. Dist.
LEXIS 5923 (N.D.W. Va. Jan. 15, 2013) (noting that an employee cannot be held liable for breach
of contract entered into between his employer and other individuals); Powell v. Bank of America,
N.A., 842 F. Supp. 2d 966 (S.D.W. Va. 2012); Grubbs v. Westfield Ins. Co., 430 F. Supp. 2d 563
(N.D.W. Va. 2006); Green v. Flanagan, 730 S.E.2d 161 (Ga. Ct. App. 2012); Davis v. Fisher, 90
W. Va. 417, 111 S.E. 155 (1922).
6. DAMAGES IN PREMISES LIABILITY CASES
A. Caps on Damages—A significant product of the 2015 legislative session was the
limitation placed on recoverable punitive damages in civil actions. The newly-added section
concerning punitive damages permits their recovery if a plaintiff establishes “by clear and
convincing evidence” that the damages suffered resulted from a defendant’s conduct that was
committed with actual malice towards the plaintiff or in a “conscious, reckless and outrageous
indifference to the health, safety and welfare of others.”
W. VA. CODE § 55-7-29(a) (2015). The
amount of punitive damages that may be awarded “may not exceed the greater of four times the
amount of compensatory damages or $500,000, whichever is greater.” W. VA. CODE § 55-7-29(c)
(2015). A defendant may request a bifurcated trial in which liability for compensatory damages is
first determined, followed by a court determination as to whether the consideration of punitive
damages is proper. W. VA. CODE § 55-7-29(b)(1)-(2) (2015). Should the court find that sufficient
evidence exists to consider the issue of punitive damages, the jury shall then determine whether a
defendant is in fact liable for punitive damages. W. VA. CODE § 55-7-29(b)(3) (2015).
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An additional cap placed on damages exists in the Medical Professional Liability Act
(“MPLA”). Pursuant to the statute’s limitations, non-economic damages are capped at $250,000
per occurrence, or $500,000 per occurrence in the case of (1) wrongful death, (2) permanent and
substantial physical deformity, loss of use of a limb or loss of use of a bodily organ system; or (3)
permanent physical or mental functional injury that permanently prevents the injured person from
being able to independently care for himself or herself and perform life-sustaining activities. W.
VA. CODE § 55-7B-8(a-b) (2015).
B. Calculation of Damages—In West Virginia, a plaintiff bringing a cause of action for
personal injuries may recover for various damages including, but not limited to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Current and future pain and suffering;
Current and future loss of enjoyment of life or disability;
Reasonable expense of past and future medical care;
Loss of society;
Lost past or future earnings;
Deformity or disfigurement;
Emotional distress and mental anguish;
Embarrassment, humiliation or degradation; and
Increased risk of harm.
Personal injury damages are normally divided between economic damages (tangible
losses) and non-economic damages (intangible losses, such as pain and suffering). To determine
economic damages, the jury can consider tangible items, such as bills, statements, receipts, etc.
Calculating non-economic damages is more difficult because of the subjective analysis it requires
for each case. A determination of such an amount rests in the sound discretion of the jury. See
Sargent v. Malcomb, 150 W. Va. 393, 400, 146 S.E.2d 561, 566 (1966) (“There is no exact formula
or standard for placing a money value on such matters as pain, suffering and mental anguish
resulting from personal injuries or embarrassment resulting from bodily disfigurement or
scars. The law recognizes that the aggregate judgment of twelve duly selected and properly
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qualified jurors represents the best method yet devised for fixing the amount of just compensation
to the injured plaintiffs in such cases.”). In fact, in West Virginia, counsel is prohibited from
suggesting a lump-sum or making per diem arguments to request specific dollar amounts reflective
of non-economic damages. Syl. Pt. 5, Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961).
C. Available Items of Personal Injury Damages
i.
Past medical bills—The jury may consider the necessary medical expenses the
plaintiff incurred as a result of the injury. See Kretzer v. Moses Pontiac Sales, Inc.,
157
W. Va. 600, 201 S.E.2d 275 (1973). It does not matter if the plaintiff did not have to pay for the
services. Id.
ii.
Future medical bills—A plaintiff can recover for future reasonable and necessary
medical services that are reasonably certain to be incurred. See Syl. Pt. 2, Shreve v. Faris, 144 W.
Va. 819, 111 S.E.2d 169, 175 (1959). Additionally, in West Virginia, a present physical harm is
not needed to sustain a claim for future medical expenses. See Bower v. Westinghouse Elec. Corp.,
206 W. Va. 133, 140, 522 S.E.2d 424, 431 (1999).
iii.
Hedonic damages—Hedonic damages, also known as damages for the loss of
enjoyment of life, are recognized in West Virginia. They compensate the plaintiff "for the
permanent effect of the injury itself on the ‘capability of an individual to function as a whole
man.’" Wilt v. Buracker, 191 W. Va. 39, 43, 443 S.E.2d 196, 200 (1993) (citations omitted). Part
of the general measure of damages flowing from a permanent injury, damages concerning “loss of
enjoyment of life” are not subject to an economic calculation because economic theories are not
admissible in the calculation of general damages. Id. at Syl. Pt. 4.
iv.
Increased risk of harm—West Virginia courts recognize a claim for medical
monitoring if the defendant's tortious conduct has exposed the plaintiff to an increased risk of
31
contracting a serious disease. See Bower v. Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.2d
424 (1999). A claim for the recovery of medical monitoring costs can be successful when it is
proven that such expenses are necessary and reasonably certain to be incurred as a result of the
defendant's tortious conduct. Id. at Syl. Pt. 2. The plaintiff must also prove she/he has been
significantly exposed to a proven hazardous substance by the tortious conduct of the defendant,
and as a proximate result of this exposure, the plaintiff has suffered an increased risk of contracting
a serious latent disease relative to the general population. Id. Additionally, the increased risk of
disease must render it reasonably necessary to undergo periodic “diagnostic medical
examinations” that are different than those that would have been prescribed absent such exposure,
and monitoring procedures exist that make it possible to detect the disease early. Id. Punitive
damages, however, may not be awarded on a cause of action for medical monitoring. Syl. Pt. 5,
Perrine v. E.I. DuPont de Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).
v.
Disfigurement—West Virginia recognizes disfigurement as a type of
compensatory damage. Hardy v. Hardy, 186 W. Va. 496, 413 S.E.2d 151 (1991).
vi.
Disability—West Virginia recognizes disability as a type of compensatory damage.
Hardy v. Hardy, 186 W. Va. 496, 413 S.E.2d 151 (1991).
vii.
Past pain and suffering—An injured plaintiff may recover pain and suffering
damages in West Virginia, even if the underlying injuries are not of a permanent nature.
Syl.
Pt. 1, Keiffer v. Queen, 155 W. Va. 868, 189 S.E.2d 842 (1972).
viii.
Future pain and suffering—Future pain and suffering damages can be awarded
to a plaintiff when the evidence shows it is reasonably certain that future expenses proximately
related to the negligence of the defendant will be incurred. Delong v. Kermit Lumber & Pressure
Treating Co., 175 W. Va. 243, 244-245, 332 S.E.2d 256, 257-58 (1985).
32
ix.
Loss of society—West Virginia courts recognize a claim for loss of society in
wrongful death cases, and the evidence of a relationship with the decedent may be admitted for
purposes of determining damages. See W. VA. CODE § 55-7-6 (1992). See also, Syl. Pt. 2, Voelker
v. Frederick Bus. Props. Co., 195 W. Va. 246, 465 S.E.2d 246 (1995).
x.
Lost income, wages, earnings— A plaintiff can be awarded lost income, wages,
and earnings. Gault v. Monongahela Power Co., 159 W. Va. 318, 223 S.E.2d 421, 427 (1976).
Lost earnings comes in two forms: past and future. Id. Evidence of a plaintiff’s past earnings is
pertinent and admissible when the jury is determining lost future earning capacity. Id.
D. Mitigation
Injured parties have a duty to use ordinary care to minimize damages. See Taylor v. Sturm
Lumber Co., 90 W. Va. 530, 111 S.E. 481 (1922). See also Hardman Trucking, Inc. v. Poling
Trucking Co., Inc., 176 W. Va. 575, 579, 346 S.E.2d 551, 555 (1986) (per curiam) (citing Oresta
v. Romano Bros., Inc., 137 W. Va. 633, 650, 73 S.E.2d 622, 632 (1952)).
i.
Breach of Contract—In breach of contract cases, the aggrieved party has a duty
to mitigate damages if he or she can do so without unreasonable effort or expense. See Syl. Pt. 4,
in part, Taylor v. Sturm Lumber Co., 90 W. Va. 530, 111 S.E. 481 (1922).
ii.
Specific economic damages—A “plaintiff seeking damages for future losses in the
form of specific income or capacity to earn a living, including lost opportunity, must show how
his or her [economic] situation has been impeded.” Cook v. Cook, 216 W. Va. 353, 360-361, 607
S.E.2d 459, 466-467 (2004). Such proof is necessary to keep with the doctrine of avoidable
consequences, which states that “a party cannot recover damages flowing from consequences that
the party could reasonably have avoided.” Cook v. Cook, 216 W. Va. 353, 361, 607 S.E.2d 459,
467 (2004) (citing 22 Am. Jur. 2d Damages § 340 (2003)).
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E. Punitive Damages
i.
Intentionality—Punitive damages may be awarded to punish a defendant for
"willfulness" or an intentional infliction of damages. See Syl. Pt. 1, O’Brien v. Snodgrass,
123
W. Va. 483, 16 S.E.2d 621 (1941).
ii.
Breach of contract—Punitive damages, however, are normally only recoverable
in actions based in tort. Generally, "absent an independent, intentional tort committed by the
defendant, punitive damages are not available in an action for breach of contract." Goodwin v.
Thomas, 184 W. Va. 611, 614, 403 S.E.2d 13, 16 (1991) (per curiam) (citing Berry v. Nationwide
Mut. Fire Ins. Co., 181 W. Va. 168, 175, 381 S.E.2d 367, 374 (1989)).
iii.
Recklessness—The jury may assess exemplary, punitive, or vindictive damages
in tort actions ''where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or
criminal indifference to civil obligations affecting the rights of others appear, or where legislative
enactment authorizes it." Syl. Pt. 1, Goodwin v. Thomas, 184 W. Va. 611, 403 S.E.2d 13 (1991)
(per curiam).
iv.
Factors Considered—Factors considered when a jury assesses punitive damages
include:
(1) Whether they bear a reasonable relationship to the harm that is likely to occur from
the defendant's conduct as well as to the harm that actually has occurred.
(2) The reprehensibility of the defendant's conduct, such as how long the defendant
continued in his actions, whether he was aware his actions were causing or were
likely to cause harm, whether he attempted to conceal or cover up his actions or the
harm caused by them, whether/how often the defendant engaged in similar conduct
in the past, and whether the defendant made reasonable efforts to make amends by
offering a fair and prompt settlement for the actual harm caused once his liability
became clear to him.
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(3) If the defendant profited from his wrongful conduct, the punitive damages should
remove the profit and should be in excess of the profit, so that the award discourages
future bad acts by the defendant.
(4) Whether the punitive
compensatory damages.
damages
bear
a
reasonable
relationship
to
(5) The financial position of the defendant.
Syl. Pt. 3, Garnes v. Fleming Landfill, 186 W. Va. 656, 413 S.E.2d 897 (1991).
When the trial court reviews a jury’s award, the Garnes Court instructs that the following
additional factors should be considered:
(1) The costs of the litigation;
(2) Any criminal sanctions imposed on the defendant for the conduct;
(3) Any other civil actions against the same defendant, based on the same conduct; and
(4) The appropriateness of punitive damages to encourage fair and reasonable
settlements when a clear wrong has been committed. A factor that may justify
punitive damages is the cost of litigation to the plaintiff.
Id. at Syl. Pt. 4.
v.
Insurability—Punitive damages are insurable under West Virginia law. See
Hensley v. Erie Ins. Co., 168 W. Va. 172, 179, 283 S.E.2d 227, 231 (1981) (citations omitted)
("Where punitive damages are permitted to be recovered under the insurance policy, the insurance
company is only liable to its policy limits as to both types of damages."). Even though gross,
reckless, or wanton negligence are difficult words to define, "they are nonetheless species of
negligence and therefore, from a public policy standpoint, should not be precluded from insurance
coverage." Hensley v. Erie Ins. Co., 168 W. Va. 172, 181, 283 S.E.2d 227, 231-32 (1981).
Insurance companies, however, may exclude punitive damages from the policy. See W. VA. CODE
35
R.
§ 114-63-5.14 (2015) ("Underinsured motor vehicle coverage may include an exclusion
for punitive damage liability.").
F. Settlements Involving Minors
i.
Court approval—W. VA. CODE § 44-10-14 (2002) requires court approval prior to
the entry of a proposed settlement, release and distribution of settlement proceeds involving a
minor.
ii.
Court considerations—W. VA. CODE§ 44-10-14(g)(1) (2002) states:
In allowing the payment of settlement proceeds for attorney fees, legal expenses,
court costs and other costs of securing the settlement in such reasonable amounts
as the court finds in its discretion to be appropriate, the court shall consider the
amount to be paid as damages, the age and necessities of the minor, the nature of
the injury, the difficulties involved in effecting the settlement, legal expenses and
fees paid to attorneys in similar cases and any other matters which the court
determines should be considered in achieving a proper and equitable distribution of
settlement proceeds.
G. Recovery of Pre- and Post-Judgment Interest
Pursuant to W. VA. CODE § 56-6-31(b) (2006), “the rate of interest on judgments and
decrees for the payment of money, including prejudgment interest, is three percentage points above
the Fifth Federal Reserve District secondary discount rate in effect on the second day of January
of the year in which the judgment or decree is entered: Provided, that the rate of prejudgment and
post-judgment interest shall not exceed eleven percent per annum or be less than seven percent per
annum.”
i.
Prejudgment interest—Prejudgment interest is a “form of compensatory damages
intended to make an injured plaintiff whole as far as loss of use of funds [is] concerned.” Syl. Pt.
1, in part, Buckhannon-Upshur County Airport Auth. v. R & R Coal Contractor, 186 W. Va. 583,
413 S.E.2d 404 (1991).
36
ii.
Post-judgment interest—Post-judgment interest compensates an individual for
“the delay between the judgment and the receipt of actual payment.” Adams v. Nissan Motor Corp.
in U.S.A., 182 W. Va. 234, 241, 387 S.E.2d 288, 295 (1989).
7. INSURANCE AND INDEMNIFICATION
A. Insurance
i.
The Duty to Defend—“As a general rule, an insurer's duty to defend is tested by
whether the allegations in the plaintiff's complaint are reasonably susceptible of an interpretation
that the claim may be covered by the terms of the insurance policy.” Aetna Cas. & Sur. Co. v.
Pitrolo, 176 W. Va. 190, 194, 342 S.E.2d 156, 160 (1986) (citations omitted). “Furthermore, it is
generally recognized that the duty to defend an insured may be broader than the obligation to pay
under a particular policy. This ordinarily arises by virtue of language in the ordinary liability policy
that obligates the insurer to defend even though the suit is groundless, false, or fraudulent.” Id.
(citations omitted). In addition, any ambiguities in the language of insurance policies must be
construed liberally in favor of the insured. See Syl. Pt. 5, Wehner v. Weinstein, 216 W. Va. 309,
607 S.E.2d 415 (2004) (per curiam) (citations omitted). See also Syl. Pt. 1, Hensley v. Erie
Insurance Co., 168 W. Va. 172, 283 S.E.2d 227 (1981) (quoting Syl. Pt. 3, Polan v. Travelers Ins.
Co., 156 W. Va. 250, 192 S.E.2d 481 (1972)). As a result, any question concerning an insurer's
duty to defend under an insurance policy must be construed liberally in favor of an insured.
B. Indemnification
West Virginia recognizes two (2) basic types of indemnity: express indemnity, based on a
written agreement, and implied indemnity, arising out of the relationship between the parties. Syl.
Pt. 1, Valloric v. Dravo Corp., 178 W. Va. 415, 357 S.E.2d 207 (1987) (per curiam).
37
i.
Express Indemnity—“[A]n express indemnity agreement can provide the person
having the benefit of the agreement, the indemnitee, indemnification even though the indemnitee
is at fault. Such result is allowed because express indemnity agreements are based on contract
principles. Courts have enforced indemnity contract rights so long as they are not unlawful.” Id.
ii.
Implied Indemnity—Implied indemnity is based on principles of equity and
restitution. Syl. Pt. 3, Harvest Capital v. W. Va. Dept. of Energy, 211 W. Va. 34, 560 S.E.2d 509,
512 (2002) (citing Syl. Pt. 2, Sydenstricker v. Unipunch Prods., Inc., 169 W. Va. 440, 288 S.E2d
511 (1982)). The right to seek implied indemnity belongs only to a person who is without fault.
See, e.g., Hager v. Marshall, 202 W. Va. 577, 585, 505 S.E.2d 640, 648 (1998). The requisite
elements of an implied indemnity claim in West Virginia are a showing that:
(1) an injury was sustained by a third party;
(2) for which a putative indemnitee has become subject to liability because of a positive
duty created by statute or common law, but whose independent actions did not
contribute to the injury; and
(3) for which a putative indemnitor should bear fault for causing because of the
relationship the indemnitor and indemnitee share.
Syl. Pt. 4, Harvest Capital v. W. Va. Dept. of Energy, 211 W. Va. 34, 560 S.E.2d 509, 512 (2002).
This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The
compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This
compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue
an attorney-client relationship with any attorney or law firm identified as an author, editor, or contributor. The contents
should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should
not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all
laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for
which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for
which you are investigating and/or seeking legal advice.
38