Senate Bill No. 587
(By Senators Caruth, McCabe, Jenkins and Deem)
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[Introduced February 6, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §23-4-2 of the Code of West Virginia,
1931, as amended, relating to injury or death resulting from
occupational pneumoconiosis or any other occupational disease.
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 determining
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
serious compensable injury or
compensable 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 in a claim for
benefits under this chapter, whether filed or not:
Provided, That on and after the first day of July, two thousand eight,
notwithstanding the provisions of section one, article four,
chapter twenty-three, a "serious injury or death" upon which a
cause of action against the employer may be taken under this
section does not include an injury or death resulting from
occupational pneumoconiosis or any other occupational disease
resulting from exposure to a substance that is continually present,
indigenous to, or a constituent of the employee's workplace or an
injury or death to which occupational pneumoconiosis or any other
occupational disease resulting from exposure to a substance that is
continually present, indigenous to, or a constituent of the
employee's workplace was a material contributing factor, and a
claim for workers' compensation benefits under this chapter shall
be the sole and exclusive remedy for injury or death resulting from
occupational pneumoconiosis or any other occupational disease
resulting from exposure to a substance that is continually present,
indigenous to, or a constituent of the employee's workplace and for
injury or death to which occupational pneumoconiosis or any other
occupational disease resulting from exposure to a substance that is
continually present, indigenous to, or a constituent of the
employee's workplace was a material contributing factor.
(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 sections six and 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 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 noted in section one, article four, chapter twenty-three
subsection (c) of this section whether a claim for benefits under
this chapter is filed or not as a direct and proximate result of
the specific unsafe working condition. (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) 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
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)
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 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) The amendments to this section enacted during the two
thousand five session of the Legislature shall apply to all
injuries occurring and all actions filed on or after the first day
of July, two thousand five.
(g) The reenactment of this section in the regular session of
the Legislature during the year two thousand eight 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.
NOTE: The purpose of this bill is to limit deliberate intent
in civil actions to traumatic injuries only, to exclude
occupational pneumoconiosis and other occupational diseases as a
basis for deliberate intent actions and to require that "deliberate
intent" can only be satisfied with a showing of an actual, specific
intent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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