H. B. 3143
(By Mr. Speaker, Mr. Kiss)
[Introduced March 22, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §23-4-2 of the Code of West Virginia,
1931, as amended, relating to clarifying the criteria for an
employee to sustain a lawsuit for intentional injury.
Be it enacted by the Legislature of West Virginia:
That §23-4-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or
intentionally caused by employer; legislative
declarations and findings; "deliberate intention"
defined.
(a) Notwithstanding anything contained in this chapter, no
employee or dependent of any employee is entitled to receive any
sum from the Workers' Compensation Fund, from a self-insured employer, or otherwise under the provisions of this chapter, on
account of any personal injury to or death to any employee caused
by a self-inflicted injury or the intoxication of the employee.
Upon the occurrence of an injury which the employee asserts, or
which reasonably appears to have, occurred in the course of and
resulting from the employee's employment, the employer may require
the employee to undergo a blood test for the purpose of determining
the existence or nonexistence of evidence of intoxication pursuant
to rules for the administration of the test promulgated by the
board of managers:
Provided, That the employer must have a
reasonable and good faith objective suspicion of the employee's
intoxication and may only test for the purpose of determinating
whether the person is intoxicated.
(b) For the purpose of this chapter, the Commission may
cooperate with the Office of Miners' Health, Safety and Training
and the State Division of Labor in promoting general safety
programs and in formulating rules to govern hazardous employments.
(c) If injury or death result to any employee from the
deliberate intention of his or her employer to produce the injury
or death, the employee, the widow, widower, child or dependent of
the employee has the privilege to take under this chapter and has
a cause of action against the employer, as if this chapter had not
been enacted, for any excess of damages over the amount received or receivable under this chapter.
(d) (1) It is declared that enactment of this chapter and the
establishment of the Workers' Compensation System in this chapter
was and is intended to remove from the common law tort system all
disputes between or among employers and employees regarding the
compensation to be received for injury or death to an employee
except as expressly provided in this chapter and to establish a
system which compensates even though the injury or death of an
employee may be caused by his or her own fault or the fault of a
coemployee; that the immunity established in sections six and six-
a, article two of this chapter is an essential aspect of this
Workers' Compensation System; that the intent of the Legislature in
providing immunity from common lawsuit was and is to protect those
immunized from litigation outside the Workers' Compensation System
except as expressly provided in this chapter; that, in enacting the
immunity provisions of this chapter, the Legislature intended to
create a legislative standard for loss of that immunity of more
narrow application and containing more specific mandatory elements
than the common law tort system concept and standard of willful,
wanton and reckless misconduct; and that it was and is the
legislative intent to promote prompt judicial resolution of the
question of whether a suit prosecuted under the asserted authority
of this section is or is not prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section and
under section six-a, article two of this chapter may be lost only
if the employer or person against whom liability is asserted acted
with "deliberate intention". This requirement may be satisfied
only if:
(i) It is proved that the employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee. This standard requires a showing of
an actual, specific intent and may not be satisfied by allegation
or proof of: (A) Conduct which produces a result that was not
specifically intended; (B) conduct which constitutes negligence, no
matter how gross or aggravated; or (C) willful, wanton or reckless
misconduct; or
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that
all of the following facts are proven:
(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
a subjective realization and an appreciation of 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, which
statute, rule
or regulation
or standard was specifically applicable
to the particular work and working condition involved, as
contrasted with a statute, rule
or 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 and by an overt act thereafter
exposed an employee to the specific unsafe working condition
intentionally; and
(E) That the employee exposed suffered serious
compensable
injury or
compensable death as a direct and proximate result of the
specific unsafe working condition,
and in the case of an injury,
said injury was allocated a permanent disability award of at least
thirty percent. The statute of limitations begins to run upon
issuance of said permanent award.
(iii) In cases alleging liability under the provisions of
paragraph (ii) of this subdivision:
(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;
(B) The negligence or fault of the employee who suffered
serious injury or death is a defense and shall be apportioned and
compared with the fault, if any, of the employer as determined
under paragraph (ii) and the negligence or fault of any other
parties whose conduct contributed to the serious injury or death,
and responsibility for damages shall be allocated according to the
law governing comparative fault. The full amount of any offset to
which the employer is entitled under subsection (c) shall be
subtracted from whatever amount of damages is determined to be the
employer's responsibility.
(B) (C) Notwithstanding any other provision of law or rule to
the contrary, and consistent with the legislative findings of
intent to promote prompt judicial resolution of issues of immunity
from litigation under this chapter, the court shall dismiss the
action upon motion for summary judgment if it finds, pursuant to
rule 56 of the rules of civil procedure that one or more of the
facts required to be proved by
clear and convincing evidence under
the provisions of subparagraphs (A) through (E), inclusive,
paragraph (ii) of this subdivision do not exist, and the court shall dismiss the action upon a timely motion for a directed
verdict against the plaintiff if after considering all the evidence
and every inference legitimately and reasonably raised thereby most
favorably to the plaintiff, the court determines that there is not
sufficient evidence to find each and every one of the facts
required to be proven by the provisions of subparagraphs (A)
through (E), inclusive, paragraph (ii) of this subdivision; and
(C) (D) The provisions of this paragraph and of each
subparagraph thereof are severable from the provisions of each
other subparagraph, subsection, section, article or chapter of this
code so that if any provision of a subparagraph of this paragraph
is held void, the remaining provisions of this
act article and this
code remain valid.
(e) The reenactment of this section in the regular session of
the Legislature during the year one thousand nine hundred eighty-
three does not in any way affect the right of any person to bring
an action with respect to or upon any cause of action which arose
or accrued prior to the effective date of the reenactment.
(f) All causes of action brought pursuant to section two,
article four of this chapter, including each one of the five
elements set forth in paragraph (ii) subdivision (2), subsection
(d), must be proven to a clear and convincing evidentiary standard.
NOTE: The purpose of this bill is to clarify the criteria for
an employee to sustain a lawsuit for intentional injury.
Strike-throughs indicate language that would be stricken from
present law and underscoring indicates new language that would be
added.