Jerome J. McFadden
Gibson, McFadden & Ash
Princeton, West Virginia
Counsel for Appellant
W. T. Cranfill, Jr.
Michael V. Matthews
Blakeney & Alexander
Charlotte, North Carolina
Wayne L. Evans
Katz, Kantor & Perkins
Bluefield, West Virginia
Counsel for Appellee
JUSTICE WORKMAN Delivered the Opinion of the Court.
1. "The rule that an employer has an absolute right to
discharge an at will employee must be tempered by the principle
that where the employer's motivation for the discharge is to
contravene some substantial public policy principle, then the
employer may be liable to the employee for damages occasioned by
this discharge." Syllabus, Harless v. First Nat'l Bank in
Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
2. A cause of action for wrongful discharge may exist under
West Virginia Code § 17C-15-1(a) (1991), § 17C-15-31 (1991) and §
24-5-5(j) (1992), where an employee is discharged from employment
in retaliation for refusing to operate a motor vehicle with brakes
that are in such an unsafe working condition that operation of the
vehicle would create a substantial danger to the safety of the
This case is before the Court upon a February 25, 1992, order
from the United States Court of Appeals for the Fourth Circuit
which certified the following question to this Court: "[W]hether
sections 17C-15-1(a) [(1991)], 17C-15-31 [(1991)], and 24A-5-5(J)
[(1992)] of the West Virginia Code (and the regulationSee footnote 1 issued
thereunder) establish a substantial public policy of West Virginia
so that an employee may maintain an action for wrongful discharge
under the alleged circumstances of this case[?]" Upon review of
the arguments of the parties and all the matters of record
submitted before this Court, we hold that a cause of action may
exist under West Virginia Code §§ 17C-15-1(a), 17C-15-31 and 24-5-5(j).
This action began when the Plaintiff below and Appellant
herein, Mr. Lilly, filed suit in the Circuit Court of Mercer
County, West Virginia, against the Defendant, Overnight
Transportation Company, Inc. ("Overnight"), for wrongful discharge,
negligent administration of employment procedure, breach of
contract, breach of covenant of good faith and fair dealing, and
intentional infliction of emotional distress. Overnight removed
the action to the United States District Court for the Southern
District of West Virginia based on diversity of citizenship. The
district court subsequently granted Overnight's motion for summary
judgment on all claims, and Mr. Lilly appealed to the United States
Circuit Court of Appeals for the Fourth Circuit. The Fourth
Circuit has affirmed the district court's granting of summary
judgment on all of the Appellant's claims except the action for
The Appellant was employed as a truck driver by Overnight from
November 17, 1972, until November 2, 1988. On August 14, 1988, he
was scheduled to drive a shipment of veneer from Bluefield, West
Virginia, to Norfolk, Virginia, for shipment overseas. He left the
Overnight yard and performed brake tests on the trailer containing
the veneer. After determining that the trailer brakes were not
working at all he returned to the Overnight yard. He contacted the
mechanic on duty, Darrell Blanton, so that the brakes could be
repaired. Mr. Blanton attempted to repair the brakes. The
Appellant once again left the Overnight yard, but was concerned
that the vehicle was still unsafe to operate when the brakes once
again failed, so he returned again to the Overnight yard.
The Appellant attempted to contact Dennis Cole, his immediate
supervisor and terminal manager of the Overnight yard. Mr. Cole
was not at home. Consequently, the Appellant contacted Marty
Howell, a manager with Overnight in Gaffney, South Carolina. The
Appellant told Mr. Howell that he felt that the truck was unsafe to
operate on the road due to the brake failures. Mr. Howell agreed
and instructed Mr. Lilly not to take the vehicle out of the yard
until the brakes were fixed.
The next morning, August 15, 1988, the Appellant reported to
work and conveyed the events from the previous day to Dennis Cole.
Mr. Lilly alleges that thereafter his relationship with Mr. Cole
deteriorated because the load of veneer was not delivered to
Norfolk and failed to make the overseas shipment.
On November 2, 1988, when the Appellant was driving his truck
on Interstate 77, Overnight Safety Supervisor Donald Cole, the
brother of Dennis Cole, used a radar gun to clock the Appellant's
speed at "'approximately 70 miles per hour.'" Donald Cole then
contacted the Appellant by citizens' band radio and ordered him to
pull off the road at the next safe exit. After the Appellant
exited, Donald Cole told Mr. Lilly that he had been speeding and
immediately terminated him.
At the time the Appellant was discharged, he was operating a
replacement tractor-trailerSee footnote 2 which the Appellant believed had a
faulty speedometer. The Appellant had reported the faulty
speedometer to Overnight in a driver's vehicle inspection report on
October 30, 1988. The vehicle's speedometer was not repaired by
Overnight. Moreover, Mr. Lilly's truck had a speedometer which was
attached to a recording device which records the speed of the
vehicle on a circular chart. The Appellant alleges that at the
time of his discharge, his chart speed was sixty-eight miles per
hour.See footnote 3
The issue before this Court is one of first impression.
Whether the plaintiff has a cause of action for wrongful discharge
depends upon whether West Virginia Code §§ 17C-15-1(a), 17C-15-31
and 24A-5-5(j) establish a substantial public policy in this state.
The Appellant argues that West Virginia Code §§ 17C-15-1(a), 17C-15-31 and 24A-5-5(j) establish a substantial public policy for regulating the safety of both motor vehicles and common carriers in this state. Moreover, the Appellant argues that had he actually driven the trailer with defective brakes, it would have placed both him and the public in danger.See footnote 4 The Appellee, however, argues that 1) the certification of the question is clearly improper in this case and was granted in contravention of West Virginia law because ample controlling precedent exists; and, 2) the facts underlying the Appellant's purported claim are insufficient to support a meaningful expansion of wrongful discharge law.
West Virginia Code § 51-1A-1 (1981) clearly provides that
[t]he supreme court of appeals of West
Virginia may answer questions of law certified
to it by . . . a court of appeals of the
United States . . . when requested by the
certifying court if there are involved in any
proceeding before it questions of law of this
State which may be determinative of the cause
then pending in the certifying court and as to
which it appears to the certifying court there
is no controlling precedent in the decisions
of the supreme court of appeals of this State.
There is no controlling precedent as to whether West Virginia Code §§ 17C-15-1(a), 17C-15-31, and 24A-5-5(j) establish a substantial public policy from which an employee may base a wrongful discharge action. Consequently, certification is a proper means to determine this issue.
We first examine this Court's decision in Harless v. First
National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
In Harless, the plaintiff alleged that he was discharged from his
employment at the bank because he brought to the attention of his
superiors that the bank "'had intentionally and illegally
overcharged customers on prepayment of their installment loans and
unintentionally did not make proper rebates.'" Id. at 118, 246
S.E.2d at 272. This Court held that
[t]he rule that an employer has an
absolute right to discharge an at will
employee must be tempered by the principle
that where the employer's motivation for the
discharge is to contravene some substantial
public policy principal [sic], then the
employer may be liable to the employee for
damages occasioned by this discharge.
Id. at 116, 246 S.E.2d at 271. Moreover, we concluded that a substantial public policy would be frustrated if an employee was terminated because of his efforts to ensure that his employer complied with the West Virginia Consumer Credit and Protection Act and was denied a cause of action. See id. at 125-26, 246 S.E.2d at 275-76.
This Court has already recognized rights of action for
wrongful discharge in favor of an employee who worked in a mine and
who refused to "'falsify certain safety reports'" concerning a
safety inspection at the employee's plant in violation of the West
Virginia Mine Safety Act. Collins v. Elkay Mining Co., 179 W. Va.
549, 550, 371 S.E.2d 46, 47 (1988). Also, in Wiggins v. Eastern
Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987), we
recognized that where the administrative remedy was inadequate, it
was not an exclusive remedy and that a cause of action existed for
an employee who was reprimanded and transferred for ordering a roof
bolting machine be shut down to correct a problem with ventilation
and then was discharged for refusing to operate an improperly wired
roof bolting machine until it was fixed. See generally Theresa
Ludwig Kruk, Annotation, Liability for Discharge of At-Will
Employee for In-Plant Complaints or Efforts Relating to Working
Conditions Affecting Health or Safety, 35 A.L.R. 4th 1031 (1985).
Here, the Appellant alleges that, similar to Collins and
Wiggins, West Virginia Code §§ 17C-15-1(a), 17C-15-31 and 24A-5-5(j) form the basis for a substantial public policy against
terminating an employee for reporting safety violations. West
Virginia Code § 17C-15-1(a) provides, in pertinent part, that:
It is a misdemeanor for any person to
drive or move or for the owner to cause or
knowingly permit to be driven or moved on any
highway any vehicle or combination of vehicles
which is in such unsafe condition as to
endanger any person, or which does not contain
those parts or is not at all times equipped
with such lamps and other equipment in proper
condition and adjustment as required in this
article, or which is equipped in any manner in
violation of this article, or for any person
to do any act forbidden or fail to perform any
act required under this article.
Moreover, West Virginia Code § 17C-15-31 sets forth in specific detail the brake equipment required for all types of motor vehicles, the performance ability of the brakes and the requirement that the brakes be maintained in good working order. Finally, West Virginia Code § 24A-5-5(j) provides in pertinent part for the "[p]romulga[tion] [of] safety rules and regulations applicable to motor vehicles subject to the provision of this chapter [which deals specifically with motor carriers. . . .]"See footnote 5
West Virginia Code § 24A-1-1 (1992) best sets forth the public
policy of the state:
It is hereby declared to be the purpose
and policy of the Legislature in enacting this
chapter [concerning motor carriers for hire]
to confer upon the public service commission
of West Virginia . . . the . . . duty to
supervise and regulate the transportation of
persons and property for hire by motor
vehicles upon or over the public highways of
this state so as to: (a) Protect the safety
and welfare of the traveling and shipping
public in their use of transportation agencies
by motor vehicle. . . .
It is not necessary to go into an in-depth analysis of each of
these respective statutes in order to conclude that the legislature
intended that a motor vehicle should not be operated on the streets
and highways of this state if the vehicle is in such an unsafe
working condition as to endanger the safety of the general public.
It is clear that operating a motor vehicle, especially one such as
in this case a 40,000 pound tractor-trailer, with defective brakes
would certainly contravene the intention of the legislature as
reflected by the above-mentioned statutes and particularly, the
criminal sanction provided for wilful violations of West Virginia
Code § 17C-15-1(a).
Consequently, we conclude that the legislature intended to
establish a clear and unequivocal public policy that the public
should be protected against the substantial danger created by the
operation of a vehicle in such an unsafe condition as to endanger
the public's safety. Thus, we hold that a cause of action for
wrongful discharge may exist under West Virginia Code § 17C-15-1(a), § 17C-15-31 and § 24-5-5(j), where an employee is discharged
from employment in retaliation for refusing to operate a motor
vehicle with brakes that are in such an unsafe working condition
that operation of the vehicle would create a substantial danger to
the safety of the public. Whether the nature of the unsafe
condition of a vehicle is sufficient to create a substantial danger
to the safety of the public is a factual determination.See footnote 6 Clearly,
however, where such substantial danger is created, the Appellant's
discharge from employment for refusing to operate such a vehicle
would certainly thwart a substantial public policy.
The recognition of a cause of action in the present case is in
line with this Court's previous decisions where causes of action
were recognized for wrongful discharge involving violations of
substantial public policies. The common denominator of all these
cases is that they not only involve individual employment rights
for the employee, but also further the strong public policy of
protection of the general public. See Collins, 179 W. Va. at 549,
371 S.E.2d at 46; Wiggins, 178 W. Va. at 63, 357 S.E.2d at 745;
Harless, 162 W. Va. at 116, 246 S.E.2d at 270.
Based upon the foregoing opinion, the certified question
presented to this Court by the United States Circuit Court of
Appeals for the Fourth Circuit has been answered. The action is
hereby dismissed from the docket of this Court.
Footnote: 1The regulation referred to is section 2.3 "Safety rules and regulations" of § 150-9-2 which is essentially rules and regulations applicable to all motor carriers. 10 W. Va. C.S.R. § 150-9-2.3. This regulation is essentially an adoption by the West Virginia Public Service Commission of the federal regulations concerning brake performance of motor vehicles. See 49 C.F.R. §§ 393.52(a)(1)-(3) and 393.48(a) (1991).
Footnote: 2The tractor-trailer he usually operated had broken down during a trip he was making from the west coast.
Footnote: 3According to the deposition of Dennis Cole contained in the record, the significance of the 68 miles per hour is that pursuant to Overnight's "Policy on Speeding and Following Too Close, and Accidents," if a driver is observed driving under 69 miles per hour and it is his first violation, the violation would not result in his termination from employment.
Footnote: 4It is important to note that the Appellee does not acknowledge that the employee was fired for the reason alleged. Moreover, all the factual determinations are ones which must be left to a jury.
Footnote: 5It is from this statute that section 2.3 "Safety rules and regulations" of § 150-9-2 of the rules and regulations applicable to all motor carriers was enacted. See 10 W. Va. C.S.R. § 150-9-2.3.
Footnote: 6Likewise, whether the employee was terminated in retaliation for refusal to operate such a vehicle is a factual determination in each case.