Senate Bill No. 661
(By Senators Caruth, Jenkins, McCabe, Barnes, Guills, Williams,
K. Facemyer, Hall, Boley and Sypolt)
____________
[Introduced March 20, 2009; 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 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 2009 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 2009 session of the Legislature shall apply to all
injuries occurring and all actions filed on or after July 1,
2005
2009.
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.