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Roger D. Forman
David B. Thomas
David S. Skeen Paula Durst Gillis
South Charleston, West Virginia Spilman Thomas & Battle
Attorneys for Appellant Charleston, West Virginia
Raymond Michael Ripple
Donna L. Goodman
Attorneys for Appellees
The Opinion of the Court was delivered PER CURIAM.
JUDGE RISOVICH, sitting by temporary assignment.
JUSTICE MCGRAW dissents.
JUDGE RISOVICH dissents and reserves the right to file a dissenting opinion.
1. A circuit court's entry of summary judgment is reviewed de novo.
Syllabus Point 1, Painter v. Peavy, 192W. Va. 189, 451 S.E.2d 755 (1994).
2. A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syllabus Point 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148W. Va. 160, 133 S.E.2d 770 (1963).
3. In order for a plaintiff employee to prevail on the narrowly construed
cause of action by the employee against an employer for fraudulent misrepresentation
concerning the employee's workers' compensation claim, the employee must (1) plead his or
her claim with particularity, specifically identifying the facts and circumstances that
constitute the fraudulent misrepresentation, and (2) prove by clear and convincing evidence
all essential elements of the claim, including the injury resulting from the fraudulent conduct.
A plaintiff employee is not entitled to recover unless the evidence at trial is persuasive
enough for both the judge and jury to find substantial, outrageous and reprehensible conduct
which falls outside of the permissible boundary of protected behavior under the statute. If
the pleadings or evidence adduced is insufficient to establish either of the two factors stated
above, the trial court may dismiss the action pursuant to Rule 12(b), Rule 56 or Rule 50 of
the West Virginia Rules of Civil Procedure. Syllabus Point 4, Persinger v. Peabody Coal
Co., 196W. Va. 707, 474 S.E.2d 887 (1996).
4. The essential elements in an action for fraud are: '(1) that the act
claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was
material and false; that plaintiff relied upon it and was justified under the circumstances in
relying upon it; and (3) that he was damaged because he relied upon it.' Horton v. Tyree,
104W. Va. 238, 242, 139 S.E. 737 (1927). Syllabus Point 1, Lengyel v. Lint, 167W. Va.
272, 280 S.E.2d 66 (1981).
On March 15, 1995, Ms. Cobb filed a claim for workers' compensation
benefits. Ms. Cobb alleged in her worker's compensation claim that she suffered asthma,
hypertension, immune systems deficiency and stress disorder, due to exposure to heavy
concentrations of chemical dusts, soot and powders. Ms. Cobb's workers' compensation
claim was processed by Mary Parsons, a claims analyst for the Workers' Compensation
Division. Consistent with regular procedures followed at the workers' compensation office,
Ms. Parsons requested duPont complete and submit the employer's section of Ms. Cobb's
workers' compensation claim form.See footnote 2
Also, consistent with the workers' compensation
internal procedures, Ms. Parsons requested that duPont submit copies of its air monitoring
records at the job site where Ms. Cobb worked. On April 24, 1995, duPont faxed to Ms.
Parsons a letter regarding its air monitoring, along with the air monitoring results.See footnote 3
receiving all requested information from duPont, and after reviewing all of the evidence
submitted by Ms. Cobb, Ms. Parsons made the following entry in her file log on April 25,
Received air checks from duPont. I feel I can reject on this and claimant numerous other health problems as not related to the job. Medical reports do not specifically state claimant's problems are a direct result of employment and emphasis is directed to claimant's multiple physical non-work related problems. I do not feel claimant's work environment is the cause of claimant's problems, and I am, therefore, rejecting the claim as not in the course of or resulting from employment. Not an occupational disease nor an occupational injury.
On April 26, 1995, Ms. Cobb's workers' compensation claim was officially denied by the Workers' Compensation Division. See footnote 4 4
Thereafter, Ms. Cobb protested the denial of her claim to the Workers' Compensation Office of Judges (hereinafter referred to as OOJ). While the workers' compensation case was pending before the OOJ, Ms. Cobb filed the instant action in the Circuit Court of Kanawha County on January 31, 1997.See footnote 5 5 The basis of Ms. Cobb's action in the circuit court was the allegation that duPont made fraudulent misrepresentations to workers' compensation which precluded Ms. Cobb from receiving workers' compensation benefits. After a period of discovery, duPont moved for summary judgment. By order dated October 22, 1998, the circuit court granted summary judgment in favor of duPont. Ms. Cobb now appeals the circuit court's October 22, 1998, order.
We have also indicated that [t]he question to be decided on a motion for summary judgment
is whether there is a genuine issue of material fact and not how that issue should be
determined. Syl. pt. 5, Aetna Cas., 148W. Va. 160, 133 S.E.2d 770. Moreover, we have
Roughly stated, a genuine issue for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed material facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.
Syl. pt. 5, Jividen v. Law, 194W. Va. 705, 461 S.E.2d 451 (1995).
All reasonable doubts regarding the evidence must be resolved in favor of the
non-moving party. A party who moves for summary judgment has the burden of showing
that there is no genuine issue of material fact and any doubt as to the existence of such issue
is resolved against the movant for such judgment. Syl. pt. 6, Aetna Cas., 148W. Va. 160,
133 S.E.2d 770. In order for summary judgment to be proper, the movant must demonstrate
that there is no evidence to support the non-movant's case and that the evidence is so
one-sided that the movant must prevail as a matter of law. Tolliver v. The Kroger Co.,
201W. Va. 509, 513, 498 S.E.2d 702, 706 (1997). Applying this standard of review to the
instant case, we will examine the facts and application of the law to determine whether there
is any genuine issue of fact to be tried.
Assuming arguendo, that the air monitoring samples were misleading, Ms.
Cobb failed to show that Ms. Parsons relied on the air monitoring samples when making her
decision to reject the claim. The circuit court's order addressed the critical issue of reliance
Plaintiff cannot prove reliance, a necessary element of fraudulent misrepresentation. Mary Parsons, a Claims Analyst 2 for Workers' Compensation, testified in deposition that she made the decision to deny plaintiff's workers' compensation claim based on the plaintiff's medical evidence. At the time of her denial, Ms. Parsons made a contemporaneous log note which corroborates her deposition testimony. Plaintiff argues that Ms. Parsons' notes prove otherwise, and that the defendant friendly Ms. Parsons is not being truthful. Plaintiff's counsel, however, points to no evidence to establish facts at issue on the element of reliance, although requested by the Court to do so during oral argument. Plaintiff's counsel simply asserts that Ms. Parsons is not being truthful. This does not meet the requisite burden that plaintiff bears once a motion for summary judgment has been filed.
Ms. Cobb contends that because Ms. Parson's log notes suggested reliance on the air monitoring samples, a material issue of dispute exists. In this regard, we fail to see any material factual dispute. It is quite clear to this Court, as it was to the circuit court, that Ms. Parsons clarified her log note by stating that she did not rely on the air monitoring samples. In fact, Ms. Parson's log entry on April 25, 1995, simply documents that she received the air checks from duPont the previous day, April 24, 1995. During her deposition, Ms. Parsons confirmed that fact by testifying that she relied on the medical reports submitted by Ms. Cobb.See footnote 6 6 Despite the circuit court's repeated request that Ms. Cobb identify some evidence that Ms. Parsons relied upon anything other than the medical evidence submitted by Ms. Cobb, or that Ms. Parsons had not truthfully testified, Ms. Cobb could identify no such evidence. Therefore, Judge Berger properly ruled that no dispute existed on the issue.See footnote 7 7
7. Building was renovated more than 3 years ago. No medical
documentation of illness or problems from stress or chemical exposure
due to work environment prior to 9/15/94. Medical documentation
provided does not relate condition was due to work environment
8. Air monitoring indicates that area is in compliance with Environmental Regulations. Mrs. Cobb left the Company under the CTP/TPS Program that was being offered to our employees to terminate their employment on November 30, 1994 under an involuntary termination status to continue a job for another Belle Plant person who would otherwise be excess. She did not leave under any type of Medical retirement.
fumes. Despite the fact, imminent actions were taken to alleviate employees
The claimant in this instance did not complain before or since the monitoring was performed in 1989.
It is the employer's position that there was no harmful exposure in this or related cases. If it is determined that a harmful exposure occurred, it is the employer's position that the actions taken in 1989 corrected the situation.
There have been no subsequent exposures and any claim filed at this late date is untimely.
was unsuccessful. See Cobb v. E.I. duPont deNemours & Co., 153 F.3d 719 (4th Cir. 1998), cert denied, ___ U.S. ___, 119 S. Ct. 1096, 143 L. Ed. 2d 96 (1999).
A. Basically the medical information that I had was what I was going by.
Q. The medical information from Dr. Kostenko and Dr. Rasmussen?
The medical information upon which Ms. Parsons relied was submitted by Ms. Cobb. In fact, Ms. Cobb's own treating physicians, Dr. Kostenko and Dr. Rasmussen specifically stated that they could not establish a medical relationship between the claimant's bronchial asthma and her workplace.