H. B. 4713
(By Mr. Speaker, Mr. Kiss, and Delegates
Michael, Trump, Amores, Caruth and Kominar)
[Introduced
February 27, 2004
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §23-4-2 of the code of West Virginia,
1931, as amended, relating to setting a "clear and convincing"
standard for determining whether an employer acted with
"deliberate intention" in causing a worker injury which would
waive the employer's immunity from suit under workers'
compensation provisions.
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; and 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 by clear and convincing evidence 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 the 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 had a subjective realization and an
appreciation 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, 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 thereafter exposed an employee to the
specific unsafe working condition intentionally; and
(E) That the employee exposed suffered serious injury or death
as a direct and proximate result of the specific unsafe working
condition.
(iii) (3) In cases alleging liability under the provisions of
paragraph (ii) subdivision (2) of this subdivision (A) subsection
no punitive or exemplary damages shall may be awarded to the
employee or other plaintiff.
(B) (4) 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 or 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 judgement as a matter of law if it 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) that the defendant acted
with deliberate intention as described in subdivision (2) of this
subdivision subsection. and
(C) (5) The provisions of this paragraph subdivision and of
each subparagraph paragraph thereof are severable from the
provisions of each other subparagraph paragraph, subdivision,
subsection, section, article or chapter of this code so that if any
provision of a subparagraph paragraph of this paragraph subdivision
is held void, the remaining provisions of this act and this code
remain valid.
(e) The reenactment reenactments of this section in the
regular session sessions of the Legislature during the year one thousand nine hundred eighty-three and two thousand four 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 reenactments.
NOTE: The purpose of this bill is to set a "clear and
convincing" standard for determining whether an employer acted with
"deliberate intention" in causing a worker injury which would waive
the employer's immunity from suit under workers' compensation
provisions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.