Senate Bill No. 200
(By Senators Caruth and Jenkins)
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[Introduced January 13, 2010; 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 disbursement where injury is
self-inflicted or intentionally caused by the employer.
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 However, 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.
If any test for intoxication is
given following an accident, at the request of the employer or
otherwise, and the results are as follows, there shall be a
rebuttable presumption, which can only be overcome by clear and
convincing evidence, that the employee was intoxicated and that the
intoxication was the proximate cause of the injury:
(1) If a test is administered within two hours of the event
that results in injury and the test results indicate that there
was, at that time, more than five hundredths of one percent, by
weight, of alcohol in the employee's blood; or
(2) If the test results indicate that there was either on or
off the job use of a nonprescribed controlled substance as defined
in the West Virginia Uniform Controlled Substances Act, West Virginia Code §60A-2-201, et seq., Schedules I, II, III, IV, and V.
(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.
The following definitions apply to this section:
(1) "Amounts receivable" means future benefits related to the
serious injury or death giving rise to the asserted cause of action
that the employee or the employee's dependent is eligible to
receive under this chapter, established with reasonable certainty.
(2) "Amounts received" means all amounts paid under this
chapter by the self-insured employer or the employer's workers'
compensation insurer related to the serious injury or death giving
rise to the asserted cause of action.
(3) "Commonly accepted and well-known safety standard within
the industry or business of the employer" means a consensus written
safety standard promulgated by an organization or group generally
recognized as representing the entire industry or business of the
employer, such as an organization that includes a majority of
industry members, and not by any state or federal body. Equipment
or machinery operator's manuals, maintenance manuals, or similar
product materials, and safety standards or rules promulgated or
suggested by industries or businesses other than the industry or
business of the employer are not competent evidence to prove subparagraph (d)(2)(ii)(C) of this section unless specifically
adopted in writing as a consensus safety standard by the industry
or business of the employer.
(4) "Compensable injury" or "compensable death" means an
injury or death that is determined to be compensable under this
chapter. In the event a worker's compensation claim is denied or
where compensability is in dispute and has not been decided, a
cause of action under this section does not exist and does not
accrue until the time such claim is finally ruled compensable and
any lawsuit asserting a cause of action under this section must be
filed within one year of such determination, or within two years of
the injury or death, whichever is longer: Provided, That the
statute of limitations for a deliberate intent action is tolled
until the compensability of such worker's compensation claim has
been finally ruled upon.
(5) A "dependent" is a person(s) who is determined to be a
dependent as defined in this chapter. Any administrative
determination of such dependent or dependents, shall be binding in
a cause of action maintained under this section.
(6) "Employer" means a person, firm, association, corporation,
partnership, governmental agency or legal entity regularly
employing the employee for the purpose of carrying on any form of
industry, service or business in this state. No supervisory or
management personnel of the employer may be personally sued in an action filed pursuant to this section.
(7) "Serious injury" means an injury that in and of itself and
not in combination with any other compensable injury or condition
results in a permanent total disability award under this chapter;
(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 in a claim for benefits under this chapter, whether
filed or not. If an employee suffers serious injury or death as a
result of the "deliberate intention" of his or her employer to
produce such serious injury or death:
(1) In the case of serious injury, the employee has a cause of
action against the employer for excess damages over and above
amounts received or receivable in a claim for benefits under this
chapter; or
(2) In the case of death, the employee's dependents as defined
in this chapter, have a cause of action against the employer for
excess damages over and above amounts received or receivable in a
claim for benefits under this chapter. This cause of action must
be maintained by the personal representative of the deceased
employee for the benefit of the employee's dependents. In the event no such dependents exist, no cause of action may be
maintained under this section for the employee's death.
(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, which statute, rule, regulation or standard was
specifically applicable to the work and working condition involved
and was intended to address the specific hazard(s) presented by the
alleged specific unsafe working condition, as contrasted with a
statute, rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth
in subparagraphs (A) through (C), inclusive, of this paragraph, the
employer nevertheless intentionally
thereafter exposed an employee
to the specific unsafe working condition; and
(E) That the employee exposed suffered serious compensable
injury or compensable death
as defined in section one, article
four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and as a 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) The cause of action is the exclusive right of an injured
employee or other person(s) entitled to recover under this section.
No part of this section may be read or interpreted so as to allow
any party who is not an injured employee or other person(s)
entitled to recover to assert a cause of action directly against an
employer for deliberate intention. A third party claim for
contribution may only be made against an employer where the injured
employee or other person(s) entitled to recover under this section
asserts a deliberate intention cause of action against the employer
in addition to other causes of action against other defendants. In
that situation, the trier of fact must apportion, either through
specific findings of fact made by the court in a trial without a
jury, or through a special interrogatory to the jury, fault among
all defendants against whom liability is found, including a
percentage of fault for the "deliberate intention" of the employer
if it so finds. Only in this particular instance may a nonemployer
defendant recover for contribution from the employer. A finding by
the trier of fact that the employer acted with deliberate intention does not equate to a finding that the employer acted with the
intention of inflicting injury or death pursuant to West Virginia
Code §55-7-24(b)(1). Contribution and implied indemnity claims
against the employer by third parties are not permitted and a third
party who is sued by an injured employee or other person(s)
entitled to recover under this section may not implead the employer
into the action seeking implied indemnity or contribution upon a
deliberate intention theory; express indemnity claims may be
asserted.
In the event the employee or other person(s) entitled to
recover under this section asserts claims against parties other
than the employer for a compensable injury or compensable death
claimed to be caused by "deliberate intention," and such employee
or other person(s) entitled to recover under this section prevails
against the employer and the nonemployer party or parties or
settles with the employer, then such nonemployer party or parties
shall be entitled to the same offset for amounts received or
amounts receivable under this chapter for the injury or death as
the employer. A settlement by the employee or other person(s)
entitled to recover under this section with the employer shall not
affect the nonemployer defendants' entitlement to this offset, and
the nonemployer defendant(s) shall in addition be entitled to an
offset for any settlement amount paid by the employer. However,
any subrogation amount recoverable by the self-insured employer or workers' compensation insurer from the employee pursuant to West
Virginia Code §23-2A-1 shall be deducted from the nonemployer
defendants' total offset.
(C) Where the injured or deceased employee is a supervisor or
member of management of the employer, no recovery may be had by the
employee or other person(s) entitled to recover under this section
unless the employee or other person(s) entitled to recover under
this section satisfies subparagraphs (d)(2)(ii)(B) and (D) as to
supervisors of injured or deceased employee(s) or members of
management superior to the injured or deceased employee.
(D) If multiple alleged specific unsafe working conditions
combine to cause injury or death, the employee or other person(s)
entitled to recover under this section must prove subparagraphs
(d)(2)(ii)(A) through (E) for each alleged specific unsafe working
condition.
(E) The "actual knowledge" required in subparagraph
(d)(2)(ii)(B) may not be presumed under any circumstances and must
specifically be proven by the employee or other person(s) entitled
to recover under this section in every case.
(B) (F) 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) (G) 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 remainder 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 2010 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 2010 session of the Legislature shall apply to all
injuries occurring and all actions filed on or after July 1,
two
thousand five 2010.
NOTE: The purposes of this bill are to amend portions of the
current statute to clarify deliberate intention litigation, and to
add new provisions to the statute.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.