Lori Simpson Davis, Esq.
W. Andrews, Esq.
Charleston, West Virginia Offutt, Fisher & Nord
Attorney for Appellants Huntington, West Virginia
Attorney for Bush & Burchett, Inc.
Theresa Kirk, Esq.
Gary E. Pullin, Esq. Darrell V. McGraw, Jr.
Pullin, Knopf, Fowler & Flanagan Attorney General
Charleston, West Virginia Robert D. Williams
Attorneys for West Virginia Department Assistant Attorney General
of Transportation, Division of Highways Charleston, West Virginia
Attorneys for State Board of Risk and
JUSTICE STARCHER delivered the Opinion of the Court.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision of this case.
JUSTICE MAYNARD concurs in part, and dissents in part.
JUDGE MICHAEL THORNSBURY, sitting by special assignment.
2. Comity is a court-created doctrine through which the forum court may give the laws or similar rights accorded by another state effect in the litigation in the forum state. Comity is a flexible doctrine and rests on several principles. One is legal harmony and uniformity among the co-equal states. A second, grounded on essential fairness, is that the rights and expectations of a party who has relied on foreign law should be honored by the forum state. Finally, and perhaps most important, the forum court must ask itself whether these rights are compatible with its own laws and public policy. Syllabus Point 1, Pasquale v. Ohio Power Co., 187 W.Va. 292, 418 S.E.2d 738 (1992).
3. There is a public policy that the full range of rights provided to workers under West Virginia law should protect and be available to workers on a West Virginia state- funded construction project.
general rule of construction in governmental tort legislation cases favors liability,
not immunity. Unless the legislature has clearly provided for immunity under
the circumstances, the general common-law goal of compensating injured parties
for damages caused by negligent acts must prevail. Syllabus Point 2, of
Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).
4. Where the policy language involved is exclusionary, it will be strictly construed against the insurer in order that the purpose of providing indemnity not be defeated. Syllabus Point 5, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987).
6. W.Va. Code, 29-12-1 evidences a remedial legislative purpose that the State establish mechanisms that will assure that the State is financially responsible and accountable for injuries occasioned by culpable State action.
7. The requirement of selecting a responsible bidder in W.Va. Code, 17- 4-19  does not impose a mandatory duty upon the West Virginia Department of Transportation/Division of Highways (DOH) to ascertain and take into account the worker safety history or performance of a contractor/bidder; however, this language does require the DOH to ascertain and take reasonable steps to assure the financial responsibility of a contractor/bidder for accidents and injuries to workers on a state-funded project. Such financial responsibility must include full compliance with West Virginia workers' compensation laws, including showing adequate insurance or other resources to cover damages arising from deliberate intention claims under W.Va. Code, 23-4-2 .
In the instant case, we
reinstate a deliberate intention personal injury claim that was
made by an employee of a bridge construction company against his employer.
The employee was injured while working on the Kentucky end of
a West Virginia Division of Highways bridge construction project on the Tug
Fork River; the circuit court dismissed the claim against the bridge construction
company. We also reverse the circuit court's decision to dismiss the Division
of Highways as a defendant in the same case.
(See footnote 1)
The appellants are
Fred Russell and Rebecca Russell, husband and wife. In November of 1996, Mr.
Russell, a Kentucky resident, was working for the appellee, Bush & Burchett,
Inc., a Kentucky corporation that is owned by the appellee, Joe Burchett.
(We will refer to both Mr. Burchett and his company as B&B.)
B&B had contracted with the appellee, the West Virginia Department of Transportation, Division of Highways (DOH), a State agency, to build a bridge for the DOH across the Tug Fork River from Williamson, West Virginia to South Williamson, Kentucky.
While Mr. Russell was working
for B&B on the DOH's Tug Fork bridge project, the cable of a crane released,
causing an 800-pound headache ball to fall and strike Mr. Russell
on his head and shoulder. He was knocked off the bridge scaffolding and fell
approximately 30 feet onto the rocks and land below; he suffered serious and
permanent injuries from the fall.
Mr. and Mrs. Russell filed suit in the Circuit Court of Kanawha County against several defendants, including B&B and the DOH. The Russells based their claim against B&B on the deliberate intention provisions of our workers' compensation law, W.Va. Code, 23-4-2(c) . (See footnote 2)
The Russells based their claim
against the DOH on the theory that the DOH was negligent in selecting and retaining
B&B as a bridge contractor -- because B&B, according to the Russells,
allegedly operated unsafely and had a significant history of injuries to workers.
Both the DOH and B&B asked the circuit court to dismiss them as defendants. B&B argued before the circuit court (and it was not disputed by the Russells) that the specific location or situs of the accident where Mr. Russell was struck by the headache ball was on the Kentucky end of the Tug Fork bridge, and that Mr. Russell landed on the ground in Kentucky. (The parties stipulate that the West Virginia/Kentucky state line is in the middle of the river.) Therefore, argued B&B, West Virginia law, including the provisions of W. Va. Code, 23-4-2(c) , does not apply to Mr. Russell's accident.
Specifically, B&B contended that the choice-of-laws doctrine of lex loci delicti (the law of the situs of the injury applies) was applicable and dispositive: if Mr. Russell was injured in Kentucky, Kentucky law applies -- and the Russells may not make a deliberate intention claim against B&B under W.Va. Code, 23-4-2(c) . The circuit court, in an order dated February 17, 2000, agreed with B&B's argument and dismissed the Russells' claim against B&B.
The DOH, in support of its request for dismissal, made two arguments. First, the DOH argued that the provisions of West Virginia Constitution, Article VI, Section 35 (See footnote 3) barred the Russells from bringing suit against the DOH because exclusionary language in the insurance policy provided for the DOH by the state Board of Insurance [Risk and Insurance Management] (BRIM) bars claims relating to bridges. Second, the DOH argued that it has no selection or retention duty to with respect to a contractor's worker-safety record or performance; and that even if the DOH did have such a worker-safety-related duty, a breach of that duty could not lead to the DOH having liability in connection with an injury to a worker on a DOH-funded project.
The circuit court did not agree with the DOH's first, exclusionary language, argument. However, the circuit court did agree with the DOH's second, no duty argument. Therefore the circuit court dismissed the Russells' claim against the DOH, in an order dated June 1, 2000.
Mr. and Mrs. Russell have appealed the circuit court's dismissal of B&B and the DOH. The DOH has cross-appealed the circuit court's decision that exclusionary language did not bar the Russells' suit. For the reasons discussed below, we vacate the circuit court's dismissals of the DOH and B&B and we remand the case for further proceedings consistent with this opinion.
The circuit court's rulings regarding the DOH and B&B were rulings granting or denying summary judgment. We review a circuit court's ruling granting a motion for summary judgment de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
We hold, based on the foregoing,
that there is a public policy that the full range of rights provided to workers
under West Virginia law should protect and be available to workers on a West
Virginia state-funded construction project. B&B was unquestionably aware
of and contractually agreed to comply with this policy. No countervailing factors
weigh heavily against applying West Virginia law in this circumstance. Accordingly,
the pertinent factors in a comity analysis weigh conclusively on behalf of the
Russells being authorized to bring a deliberate intention action against B&B
under West Virginia law.
For the foregoing reasons, we reverse the circuit court's grant of summary judgment to B&B.
10. An insurer wishing to avoid liability on a policy purporting to give general or comprehensive coverage must make exclusionary clauses conspicuous, plain, and clear, placing them in such a fashion as to make obvious their relationship to other policy terms, and must bring such provisions to the attention of the insured.[ (See footnote 8) ]
We stated in Syllabus Point
2 of Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620
(1996) (a case that dealt with local government, not State, liability, and
with the local government liability statutes, W.Va.Code, 29-12A-1
The general rule of construction in governmental tort legislation cases favors liability, not immunity. Unless the legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail. (See footnote 9)
In connection with State liability, the Legislature, in authorizing BRIM to create the policy that is at issue in the instant case, stated:
Recognition is given to the fact that the state of West Virginia owns extensive properties of varied types and descriptions representing the investment of vast sums of money; that the state and its officials, agents and employees engage in many governmental activities and services and incur and undertake numerous governmental responsibilities and obligations; that such properties are subject to losses, damage, destruction, risks and hazards and such activities and responsibilities are subject to liabilities which can and should be covered by a sound and adequate insurance program;
W.Va.Code, 29-12-1 Id. (emphasis added). (See footnote 10)
W.Va.Code, 29-12-1 
evidences a remedial legislative purpose that the State establish mechanisms
that will assure that the State is financially responsible and accountable for
injuries occasioned by culpable State action. That remedial purpose must be
given substantial weight -- along with the foregoing principles that narrowly
construe exclusionary policy language and favor governmental tort liability
-- in examining, applying, and interpreting the exclusionary language in the
Applying the foregoing principles, we believe the circuit judge was correct in concluding that the bridge related exclusionary language of the DOH's policy did not as a matter of law bar the Russells' claim against the DOH. Any negligence in the DOH's bidder selection process was separate and remote in time and place from and anterior to any bridge construction. While bidder selection and retention could be arguably said to be related to bridge construction, such a relatedness connection could also be made to the most distant and tenuous activities. Applying the principles of law that narrowly construe exclusionary language, that favor liability over immunity, and that favor state accountability, we cannot read the DOH policy language as categorically excluding the Russells' claim. Therefore we affirm the circuit judge's refusal to dismiss the DOH on the basis of the exclusionary language.
However, the fact that exclusionary language does not bar the Russells' negligent selection and retention claim against the DOH does not mean that the DOH has duties related to worker safety in connection with selecting and retaining a contractor, that can run to a worker on a DOH-funded project. This is the issue on which the circuit court ruled for the DOH, and on which the Russells have appealed.
Specifically, the Russells claim that the DOH has a due care duty to select and retain a contractor that does not expose workers on a state-funded project to unreasonable dangers and risks. (See footnote 11) The Russells principally derive this asserted duty from W.Va. Code, 17-4-19 , that requires the DOH to award contracts to a responsible bidder:
. . . the contract for the work, or for the supplies or materials required therefor shall, if let, be awarded by the commissioner to the lowest responsible bidder for the type of construction selected.
The Russells do not cite
us to any case, from West Virginia or otherwise, that has held that such general
responsible bidder language, commonly found in public works contracting
law, imposes a specific and mandatory duty upon a public agency like the DOH
to ascertain and take into account a company's worker safety history and performance.
While the DOH disputes the Russells' position, the DOH does acknowledge that the DOH's evaluation of a contractor's responsibility should and does include ascertaining and assuring that a bidder/contractor is fully financially responsible for liabilities arising out of accidents and injuries to workers.
We have held that under statutes like W.Va. Code, 17-4-19  and responsible bidder language, a government agency has substantial discretion in establishing criteria for determining bidder responsibility. Syllabus Point 5, Pioneer Co. v. Hutchinson, 159 W.Va. 276, 220 S.E.2d 894 (1975). Thus, the DOH presumably would not exceed its authority by including specific worker-safety-related criteria within its ambit of concern in evaluating bidders and contractors.
But the discretion afforded to the DOH by the general responsible bidder language of W.Va. Code, 17-4-19  does not afford this Court a similar discretion to judicially impose a broad and novel duty in the area of worker safety upon the DOH. We do note, however, that the worker-safety-related duties that the DOH does not dispute having -- assuring that a contractor is financially responsible and accountable to injured workers -- do benefit workers on state-funded projects like Mr. Russell. This duty is also consistent with the public policy of assuring full financial accountability for injuries to workers on State- funded projects that we discussed in III.A infra.
We hold, therefore, that the requirement of selecting a responsible bidder in W.Va. Code, 17-4-19  does not impose a mandatory duty upon the West Virginia Department of Transportation/Division of Highways (DOH) to ascertain and take into account the worker safety history or performance of a contractor/bidder; however, this language does require the DOH to ascertain and take reasonable steps to assure the financial responsibility of a contractor/bidder for accidents and injuries to workers on a state-funded project. Such financial responsibility must include full compliance with West Virginia workers' compensation laws, including showing adequate insurance or other resources to cover damages arising from deliberate intention claims under W.Va. Code, 23-4-2 .
In the instant case, the circuit court's dismissal of the DOH was based on the court's conclusion as a matter of law that although the BRIM policy did not exclude the Russells' claim, the DOH had no worker-safety-related duties that could inure to Mr. Russell's benefit.
However, we have held that the DOH does have the duty of assuring a contractor's financial responsibility and accountability for worker injuries and accidents; and we cannot say as a matter of law that the breach of this duty cannot under any circumstances give rise to a negligent selection or retention claim by a worker on a DOH-funded project. The record before this Court does not provide a basis for determining whether the DOH may have breached this duty in the instant case. We therefore reinstate the Russells' claim against the DOH and remand the case for consideration under the foregoing principles. (See footnote 12)
Virginia bridge project was not temporary in the sense contemplated by the aforesaid regulations. Mr. Russell did, after his accident, receive some workers' compensation benefits under Kentucky law, apparently because B&B submitted a claim to B&B's Kentucky workers' compensation insurer; but, like the situs of the accident, this fact is not dispositive in a comity analysis.