Senate Bill No. 564
(By Senators Caruth, Sprouse, Guills and Minear)
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[Introduced March 17, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §23-4-2 of the Code of West Virginia,
1931, as amended, relating to deliberate intent actions
generally.
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
prior to the exposure of any employee to such
specific unsafe working condition, the employer had
a subjective
realization and an appreciation of the existence actual personal
knowledge of the specific unsafe working condition and
actual
personal knowledge 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, 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,
and in
regard to which violation of a state or federal safety statute,
rule or regulation a citation was issued by an appropriate state or
federal agency if investigated by a state or federal agency, or in
regard to which by competent expert testimony it can be
demonstrated that a citation would have been issued by the
appropriate state or federal agency if an investigation had been
undertaken by such appropriate state or federal agency.
(D) That notwithstanding the existence of the facts set forth
in subparagraphs (A) through (C), inclusive, of this paragraph, the
employer nevertheless
by intentional and overt act directed
specifically at an employee, thereafter
exposed an employee to the
specific unsafe working condition intentionally; required such
employee to be exposed to the specific unsafe working condition;
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.
In order to be considered a
serious injury pursuant to this subsection, the injury suffered
must be of such severity to entitle the injured worker to a
permanent partial disability of at least twenty percent, exclusive
of psychiatric disability, as established by expert testimony
consistent with the Guide to Permanent Impairment, Fourth Edition,
or, in the case of a nonorthopedic injury, consistent with a
medical reference or treatise of equivalent authority as recognized
by the medical community in the discipline of which such injury
falls. Although psychiatric injury will not be included for the
purpose of this serious injury threshold, any degree of psychiatric
damage which is directly and proximately related to the compensable
injury may be considered by the trier of fact as an element of
damages.
(iii) The conduct of the injured employee cannot be excluded
as a direct and proximate cause of the accident and the employer
may assert as a defense the comparative negligence of the injured
employee based upon his or her failure to adequately notify the
employer of the unsafe working condition or of the substantial risk
of harm associated with an employment task; based upon the actions
or failure to act in a prudent manner of such employee at any time
or in any manner in relation to the work being performed at the
time of the injury to such employee; and/or based upon such other
acts or failures to act by such employee which are negligent and proximately caused or related to the injury sustained. Willful
self-exposure by an employee to a known dangerous condition at any
time, either with or without the knowledge of the employer and in
any situation other than under duress by the employer which is
being exercised contemporaneously or nearly contemporaneously with
the accident causing injury, will be a complete and absolute
affirmative defense to a cause of action under this section.
(iii) (iv) 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) In order to prevail upon a cause of action against the
employer under subsection (ii), the plaintiff must satisfy the
burden of proof to the trier of fact by clear and convincing
evidence;
(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 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 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.
NOTE: The purpose of this bill is to change the deliberate
intent statute to require actual personal knowledge of an unsafe
working condition by the employer in a deliberate intent action;
require that either a citation by a federal or state agency be
issued or that it be shown by expert testimony that such a citation
would have been issued; to require that the employer required the
injured employee to be exposed to an unsafe working condition by an
intentional and overt act that was specifically directed at that
employee; to require that the employee be at least 20% permanently partially disabled, not including psychiatric injury; to require
that comparative negligence on the part of the employee be
considered; and to require that the plaintiff prove his or her case
by clear and convincing evidence.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.