Don M. Stacy
Beckley, West Virginia
Attorney for the Appellant
Robert S. Jacobson
Lewisburg, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
Chief Justice Brotherton did not participate.
Retired Justice Miller sitting by special assignment
1. "By reason of the provisions of Sections 6 and 6a,
Article 2, Chapter 23 of Code, 1931, as amended, an employee of a
subscriber to the workmen's compensation fund who negligently
injures a fellow employee during the course of their employment is
not liable to respond in damages to the injured fellow employee for
the personal injuries thus caused to him." Syllabus point 2,
Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966).
2. "If there is no genuine issue as to any material fact
summary judgment should be granted but such judgment must be denied
if there is a genuine issue as to a material fact." Syllabus point
4, Aetna Casualty & Surety Company v. Federal Insurance Company of
New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
This is an appeal by Daniel Franklin Redden from an order
of the Circuit Court of Greenbrier County granting the defendant,
Harold C. McClung, summary judgment in a personal injury action
instituted by the appellant against Mr. McClung. On appeal, the
appellant claims that the circuit court erred in granting the
motion for summary judgment since, he argues, there were issues of
material fact in the case at the time of the entry of the summary
judgment order. After reviewing the issues presented and the
documents filed, the Court disagrees with the appellant's
contentions. The judgment of the Circuit Court of Greenbrier
County is, therefore, affirmed.
The appellant, Daniel Franklin Redden, was injured in an
automobile collision which occurred on December 22, 1989, at or
near a coal mine owned and operated by Diamond Black Mining
Company, near Clearco, Greenbrier County, West Virginia. At the
time of the accident, both the appellant, Daniel Franklin Redden,
and the appellee, Harold C. McClung, the individual with whose
vehicle the appellant's vehicle collided, were employees of Diamond
Black Mining Company.
Following the accident, the appellant filed a workers'
compensation claim for his injuries, and he also instituted the
present personal injury action against Harold C. McClung. In his complaint in the personal injury action, the appellant charged that
the negligence of Harold C. McClung was the proximate cause of the
injuries which he sustained.
Harold C. McClung filed an answer to the appellant's
complaint, and subsequently extensive discovery was conducted. In
the course of the development of the case, Harold C. McClung
essentially took the position that since both he and the appellant
were employees of Diamond Black Mining Company, a subscriber in
good standing to the Workers' Compensation Fund, and since at the
time the accident giving rise to the action occurred, both were
acting in the course of their employment, the Workers' Compensation
Act barred the action.
In response to an interrogatory, Mr. McClung described
the circumstances surrounding the accident:
I did not complete my work before the accident. The owner of the mine where I worked had ordered shot guns at Aids Store in Rainelle for the employees and he asked me to go to Aids to pick up the guns, which I did. The guns cost approximately $2000 and these were billed to the Company. As I was going back to the mine with the guns the accident occurred.
In a deposition, Mr. McClung testified that he was
superintendent of the Diamond Black Mining Company, Inc., and that
immediately prior to the accident with the appellant he, acting in
the course of his employment, had picked up shotguns at a local store, which were to be Christmas presents from his employer to the
men who worked for the Diamond Black Mining Company. He indicated
that at the time of the accident he was returning to the mine with
the shotguns. His actual testimony was:
I was -- picked the shotguns -- he [the owner of the mine] had bought everybody a shotgun for Christmas. And I picked those up. I was running a little late between shift changes or -- I don't recall whether we even had a second shift on that day. I think it was the last shift we was going to work before Christmas. And I passed a coal truck coming out and he told me there wasn't nobody else on the road, other than there was another truck starting to load, but I would be at the mines before he got there. And that's -- I was in a hurry, but I didn't know Mr. Redden was on the road.
At the time, Mr. McClung was in his personal vehicle.
Mr. McClung testified that Mr. Redden had stopped his vehicle on
the road, which was icy and slick, when his own, that is, Mr.
McClung's vehicle, slid into Mr. Redden. Mr. McClung, did not
sustain an injury and did not file a workers' compensation claim as
a result of the accident.
At the close of discovery, Harold C. McClung filed a
motion for summary judgment in the case. A hearing was conducted
on the motion. At that hearing, it appears that the principal
factual question presented was whether both parties were acting in
the course of their employment at the time of the accident and the
principal legal question was whether the Workers' Compensation Act, W.Va. Code § 23-2-6a, barred the appellant's personal injury action
against Mr. McClung.
It appears to this Court that two provisions of the
Workers' Compensation Act, acting in tandem, grant an employee,
acting in furtherance of his employer's business, immunity from
actions for non-intentional torts inflicted on co-employees who are
also acting in the course of the employer's business. The first
provision, W.Va. Code § 23-2-6a, provides:
The immunity from liability set out in the preceding section [§ 23-2-6] shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.
The second provision, W.Va. Code § 23-2-6, provides:
Any employer subject to this chapter who
shall subscribe and pay into the workers'
compensation fund the premiums provided by
this chapter or who shall elect to make direct
payments of compensation as herein provided,
shall not be liable to respond in damages at
common law or by statute for the injury or
death of any employee, however occurring,
after so subscribing or electing, and during
any period in which such employer shall not be
in default in the payment of such premiums or
direct payments and shall have complied fully
with all other provisions of this chapter
. . . .
After construing these provisions, this Court concluded
in syllabus point 2 of Bennett v. Buckner, 150 W.Va. 648, 149
S.E.2d 201 (1966), that:
By reason of the provisions of Sections 6 and 6a, Article 2, Chapter 23 of Code, 1931, as amended, an employee of a subscriber to the workmen's compensation fund who negligently injures a fellow employee during the course of their employment is not liable to respond in damages to the injured fellow employee for the personal injuries thus caused him.
In ruling on Mr. McClung's motion for summary judgment,
the trial court correctly concluded that if the evidence showed
that both parties were acting in the course of their employment at
the time of the accident giving rise to the cause of action, the
action would be barred by these principles. The court then found
that the evidence developed by the interrogatories, pleadings, and
depositions in the case was uncontradicted and showed that both the
appellant and Harold C. McClung were acting within the course of
their employment at the time the accident occurred and that the
appellant's action was barred. The court, therefore, awarded Mr.
McClung summary judgment.
On appeal, the appellant essentially claims that there is
a material question of fact in the case, that fact being whether
Mr. McClung was actually acting in the course of and as a result of
his employment at the time of the accident in question, and, under
the circumstances, summary judgment was improper.
In Aetna Casualty & Surety Company v. Federal Insurance
Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this
Court discussed at some length the circumstances under which summary judgment could properly be granted under the West Virginia
Rules of Civil Procedure. In that case, the Court indicated that
the question to be decided on a motion for summary judgment was
whether there was a genuine issue of material fact in the case. In
syllabus point 4 the Court concluded:
If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact.
See also, Oakley v. Wagner, 189 W.Va. 337, 431 S.E.2d 676 (1993); Everly v. Peters, 183 W.Va. 613, 397 S.E.2d 416 (1989); Wysong v. Stowers, 166 W.Va. 211, 273 S.E.2d 379 (1980); Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978); Beaver v. Hitchcock, 151 W.Va. 620, 153 S.E.2d 886 (1967); Deane v. Kirsch, 148 W.Va. 429, 135 S.E.2d 295 (1964).
It appears that in the present case Mr. McClung rather
clearly stated that at the time of the accident which gave rise to
the case he was returning to his work site with shotguns that had
been ordered by his employer as Christmas gifts for the employee of
the mine. He indicated that he was late in returning to work and
that the shotguns, which cost approximately $2,000.00, had been
billed to the company.
The appellant did not introduce evidence which in any way
rebutted the evidence that the shotguns had been billed to the
company or that Mr. McClung was returning to the work site with Christmas gifts for the men. He merely argued that, under the
circumstances, it was improbable that Mr. McClung would be
returning with Christmas gifts after the men had already left for
their Christmas break.
In reviewing the evidence as developed, this Court
believes that the plausibility issue raised by the appellant is
adequately explained by Mr. McClung's statement that he was late in
returning to the mine with the guns. The Court also believes that
there is nothing to contradict Mr. McClung's allegations that he
was actually acting in the course of his employment at the time the
Under the circumstances of this case, the Court believes
that there were no genuine issues as to any material fact and that
the Circuit Court of Greenbrier County was correct in concluding
that W.Va. Code § 23-2-6a effectively bars the appellant's claim
against Mr. McClung.
Under the principle set forth in syllabus point 4 of
Aetna Casualty & Surety Company v. Federal Insurance Company of New
York, the trial court did properly grant summary judgment.
The judgment of the Circuit Court of Greenbrier County is, therefore, affirmed.