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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2006 Term
WILLIAM L. SEDGMER, JR., ET. AL.,
Plaintiff Below, Appellant
McELROY COAL COMPANY; CONSOLIDATION COAL COMPANY; CONSOL,
INC.; AND EUGENE L. SAUNDERS,
Defendants Below, Appellees
Appeal from the Circuit Court of Marshall County
Honorable John T. Madden, Judge
Civil Action No. 96-C-135M
Submitted: October 4, 2006
Filed: October 27, 2006
Ronald W. Kasserman, Esq.
Kasserman & Bowman, PLLC
Wheeling, West Virginia
Attorney for Appellant
| James R. Miller, Esq.
Rodger L. Puz, Esq.
Dickie, McCamey & Chilcote, P.C.
Attorneys for Appellees
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinions.
1. A circuit court's entry of summary judgment is reviewed de novo. Syl. Pt.
1, Painter v. Peavy, 192 W. 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. Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co.
of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963); Syl. Pt. 1, Williams v. Precision Coil,
Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
3. To establish 'deliberate intention' in an action under W. Va. Code §
23-4-2(c)(2)(ii) (1983), a plaintiff or cross-claimant must offer evidence to prove each of the
five specific statutory requirements. Syl. Pt. 2, Helmick v. Potomac Edison Co., 185 W. Va.
269, 406 S.E.2d 700 (1991), cert. denied 502 U.S. 908.
4. The legislature has plainly indicated the type of allegations which do not
sustain a cause of action under W. Va. Code § 23-4-2(c)(2)(i) (1994), which specifically
provides that a cause of action under its provision may not be satisfied by an allegation 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. The language of this provision demands overcoming a high threshold to
establish a cause of action under W. Va. Code § 23-4-2(c)(2)(i). Syl. Pt. 8, Tolliver v.
Kroger Co., 201 W. Va. 509, 498 S.E.2d 702 (1997).
This case is before the Court on appeal from a January 31, 2005, Order of the
Circuit Court of Marshall County, which granted summary judgment in favor of Appellees
in Appellant's deliberate intention action. This Court has before it the petition for appeal,
the response to the petition, the briefs of the parties, and all matters of record. Following the
arguments of the parties and a review of the record herein, this Court finds that the circuit
court did not err in granting summary judgment. Accordingly, this Court affirms the January
31, 2005, Order of the circuit court.
In October of 1987, following a rail haulage fatality at its Osage Mine,
Consolidation Coal Company issued new Underground Rail Transportation Procedures for
all underground operations or main line haulage where 38-ton or larger locomotives are in
use. Those procedures included a provision whereby it was established that:
When clearing up or waiting in a passing track in order to allow
trips of loads or empties to pass, all individuals are required to
dismount all rail equipment smaller than 38 ton locomotives and
position themselves in a safe location; e.g., crosscut, shelter
hole, unless such equipment is parked in a designated safe area
or oncoming traffic is traveling with the switch.
A year later, the McElroy Coal Company (a division of Consolidation Coal Company),
established certain Haulage Safety Rules and Procedures, which included the following:
Vehicles stopped waiting for clearance _ are to make sure that
they are back in a switch at a safe location. When clearing up
or waiting in a passing track, in order to allow trips of loads or
emptys [sic] to pass, all individuals are required to dismount all
rail equipment smaller than a 38 ton locomotive and position
themselves in a safe location _ crosscut, shelter hold unless such
equipment is parked in a designated safe area or oncoming
traffic is traveling with the switch.
On July 28, 1994, Appellant was working at a mine owned by McElroy Coal
Company. He and his co-workers were passengers on three man buses which had stopped
on the 3 North passway waiting for a train loaded with coal to pass on the main line. As the
coal car traveled on the main line, a piece of tubing sprung up from out of the coal load in
the thirteenth or fourteenth car and tripped an overhead toggle switch which controlled the
track. As the cars still attached to the locomotive proceeded on the main line, the remaining
cars were diverted onto the 3 North passway. A call came over the radio warning of the
separation of the cars and a signal light in the passway changed from green to yellow,
indicating the diversion. Foreman Eugene Saunders yelled for the passengers on the three
man buses to jump to safety. Appellant was unable to disembark in time, and he suffered
physical injuries to his left shoulder, left arm, and ribs when the man bus in which he was a
passenger was struck by the diverted coal cars.
Appellant sued McElroy Coal, Consolidation Coal, Consol, and Saunders. (See footnote 1)
The suit against McElroy Coal, Consolidation Coal, and Consol centered around a
deliberate intention cause of action. Following a period of discovery, Appellees filed a
disposition motion seeking summary judgment. Appellees alleged that Sedgmer failed to
prove each of the five elements of deliberate intent. The Circuit Court of Marshall County
granted Appellee's motion for summary judgment, finding that the accident was a singular
incident not indicative of a specific unsafe working condition. The court further concluded
that Appellant's case against Appellees was no more than an attempt to turn a negligence
claim into a deliberate intent action, which was simply not legally cognizable under West
Virginia law. Sedgmer now appeals.
STANDARD OF REVIEW
We proceed, having held that [a] circuit court's entry of summary judgment
is reviewed de novo. Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
Furthermore, we observe that [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. Syl. Pt. 3, Aetna Cas. & Sur. Co.
v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963); Syl. Pt. 1, Williams
v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). With these standards in mind,
we turn to the case before us.
Appellant argues that the circuit court erred in granting summary judgment
because the evidence creates a genuine issue of material fact as to whether a specific unsafe
working condition existed (i.e., parking an occupied man bus too close to a railroad track
switch in an underground mine), whether the Appellees had a subjective knowledge and
appreciation of that specific unsafe working condition, and whether that specific unsafe
working condition violated a specific safety regulation. Appellant stresses that there is a
dispute as to how far from the switch the man bus was located at the time of the accident.
Appellant asserts that this goes straight to the heart of whether there was a specific unsafe
working condition given that, according to the mine's safety regulations, a stopped passenger
vehicle weighing less than 38 tons awaiting clearance must be positioned in a safe location
near a cross-cut or a shelter hole and that all passengers in that vehicle must disembark and
find safety in the cross-cut or shelter hole. Appellant asserts that Appellees must have had
a subjective realization of this unsafe working condition because the coal company
specifically put this safety regulation into effect after two prior train derailment accidents.
Appellant further points out that the West Virginia Board of Coal Mine Health & Safety
Legislative Rules find that [w]hen in the vicinity of a switch, all persons shall get into an
area of safety, either in a shelter hold or a crosscut, when trips are approaching. 36 C.S.R.
Appellees, on the other hand, argue that the evidence shows that the situation
herein amounted to a singular extraordinary and unexpected accident that does not rise to
the level of a specific unsafe working condition; that the Appellees had no subjective
realization and appreciation of a specific unsafe working condition; and that there was no
violation of a specific safety statute, regulation, or industry standard. Appellees assert that
this was a freak accident _ Rube Goldbergian, they say _ and there is no way that it can be
termed an unsafe working condition. The Appellees argue that they could not have foreseen
or appreciated that a piece of tubing would find its way into a load of coal, that it would get
pressed down by the leveler at the coal loading site, that it would then pop back up before
coming to the overhead switch, and that it would trip the overhead switch causing the train
to divert to the 3 North Passway. Appellees further argue that the man buses were parked
a sufficient distance from the switch, and that no unsafe working condition existed there.
West Virginia law expressly provides an exemption from employee civil
liability claims for work-related injuries to employers who are in good standing with the
Workers' Compensation laws of the state W. Va. Code § 23-2-6 (1991). In 1994, West
Virginia Code § 23-4-2(c)(2)(ii) provided, however, that an employer could lose this workers
compensation immunity if:
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 such specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by such specific
unsafe working condition;
(C) That such 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 such 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
(D) That notwithstanding the existence of the facts set forth in
subparagraphs (A) through (C) hereof, such employer
nevertheless thereafter exposed an employee to such specific
unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or
death as a direct and proximate result of such specific unsafe
This is the so-called deliberate intention statute. (See footnote 2)
This Court has held that [t]o establish 'deliberate intention' in an action under
W. Va. Code § 23-4-2(c)(2)(ii) (1983), a plaintiff or cross-claimant must offer evidence to
prove each of the five specific statutory requirements. Syl. Pt. 2, Helmick v. Potomac Edison
, 185 W. Va. 269, 406 S.E.2d 700 (1991), cert. denied 502 U.S. 908. The record shows
a history of at least one prior derailment of cars in another mine. The record is unclear about
any prior diversions of cars. Appellees were aware of a danger of collisions; however, they
took measures to prevent such accidents from occurring as well as measures to promote the
safety of their employees. There is no evidence in the record before the Court that the mine
exposed its employees to an unsafe working condition in violation of any state or federal
safety statute, rule, or regulation. While Consolidation Coal was initially cited for a violation
of 36 C.S.R. 33-4.1, the West Virginia Office of Miners' Health, Safety & Training later
reviewed the evidence. The Notice of Violation was subsequently vacated, with the Coal
Mine Safety Board of Appeals noting that, [t]he evidence indicates that the cited regulation
was not violated as alleged in the Notice of Violation.
Moreover, there is no evidence that Appellees exposed Appellant to an unsafe
working condition. On the contrary, Appellees made every effort to establish safety
protocols to ensure the safety of their employees. Nonetheless, an accident still occurred. (See footnote 3)
It is an unfortunate reality that no employer will ever be able to prevent all possible
accidents, no matter what its efforts. For that reason, the West Virginia Legislature enacted
the Workers Compensation Act, at Chapter 23 of the West Virginia Code. This enactment
included the aforesaid grant of immunity for employers in good standing from civil suit by
injured employees. The Legislature also expressly provided that this immunity is not
absolute in the area of deliberate intention injuries, setting forth mandatory requirements
at W. Va. Code §23-4-2(c) (See footnote 4)
which must be met before an employer's immunity is lost and
an employee may recover outside the workers' compensation system. To underscore the
exceptional nature of deliberate intention claims, the Legislature also expressly encouraged
the summary disposition of such claims on motion absent an employee's ability to meet the
requisite showing of proof on each and every statutory requirement for maintenance of a
deliberate intention action. W. Va. Code § 23-4-2(c)(2)(iii)(B). (See footnote 5)
It is unclear why the men in the mine on that July day, including Appellant, did
not disembark from the man buses as they had been instructed through the mine's safety
regulations. Perhaps it was negligence on the part of the foreman to not instruct his men to
stand clear; however, that is irrelevant to a discussion of deliberate intention. We have held
The legislature has plainly indicated the type of allegations
which do not sustain a cause of action under W.Va. Code §
23-4-2(c)(2)(i) (1994), which specifically provides that a cause
of action under its provision may not be satisfied by an
allegation 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. The language of this provision demands
overcoming a high threshold to establish a cause of action under
W.Va. Code § 23-4-2(c)(2)(i). Syl. Pt. 8, Tolliver v. Kroger Co.,
201 W.Va. 509, 498 S.E.2d 702 (1997).
We agree with the findings and conclusions of the circuit court below. The
record before us does not permit the inference that there existed here a specific unsafe
working condition of which Appellees had a subjective realization and to which Appellees
nevertheless intentionally exposed their employees, consistent with the requirements of West
Having established that there is insufficient evidence to support Appellant's
deliberate intention cause of action on Appellees' dispositive motion, we affirm the circuit
court's Order of January 31, 2005, granting summary judgment in favor of Appellees.
The complaint also included the Watt Car & Wheel Company; Mine Technik
America, Inc.; National Castings, Inc.; and Unitrac Systems Incorporated. Those parties
have previously settled Appellant's claims against them and/or were dismissed from the
The statute has since been amended, but is, in sum and substance, the same statute
today as it was in 1994. The new deliberate intention statute is found at W.Va. Code §
We observe that Appellee, Eugene Saunders, who was Appellant's foreman, was
exposed at all relevant times herein to the same potential risks as Appellant. There is no
indication that can be gleaned from the record that Mr. Saunders intended himself or anyone
else to be injured.
That is, the mandatory requirements are at W. Va. Code §23-4-2(c) in the 1994 Code.
Those requirements are now at W. Va. Code §23-4-2(d).
Likewise, the requirement of showing proof of each element is at W. Va. Code §23-
4-2(c)(2)(iii)(B) in the 1994 Code. Those requirements are now at W. Va. Code §23-4-