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No. 33053 - Diana Mae Savilla, Administratrix of the Estate of Linda Sue Good Kannaird
v. Speedway SuperAmerica, LLC dba Rich Oil Company, a Delaware
Corporation, City of Charleston, a municipality; Charleston Fire Department;
Bruce Gentry; and Rob Warner
Albright, J., concurring:
I concur with this Court's opinion, and I write separately only to address
matters raised by the dissent. The dissent concludes its first section with the statement that
this Court's holding in Collins v. Dravo Contracting Co.
, 114 W.Va. 229, 171 S.E. 757
(1933), was flatly wrong. (See footnote 1)
The dissent asserts, contrary to the holding in Collins
, that a
representative of the estate of a decedent is not authorized to bring a cause of action for a
widow/widower, child, or dependent of that decedent.
The authority of a decedent's personal representative to assert a deliberate
intention claim on behalf of the decedent's widow/widower, child, or dependent has been
settled law in this State for over eighty years. (See footnote 2)
It is therefore disingenuous for the dissent to
accuse the majority of distorting the law when the majority is actually applying settled West
The dissent also suggests that the statutory provision for recovery by an
employee in a deliberate intention case permits the recovery by the estate of that employee.
The dissent suggests that the majority opinion has destroyed this right, but cites no instance
in which such right has actually been recognized in West Virginia. The infirmity in the
dissent's reading of the statute is illustrated by the following example: if an employee leaves
his or her estate to a church, under the dissent's clearly expressed view, the church could
collect deliberate intention damages.
That dissent also chastises the majority for permitting Ms. Savilla, as an
intervenor, to oust Ms. Mosghat, the only party who had a claim for damages against
Speedway. It is somewhat ironic to note, however, that the dissenting justices voted to refuse
Ms. Mosghat's petition to appeal the circuit court's ouster of Ms. Mosghat. (See footnote 3) Moreover,
despite the dissent's utterances to the contrary, nothing in this Court's majority opinion has
precluded Ms. Mosghat from separately compromising her particular claim against
Speedway. This Court simply affirms West Virginia law that any such compromise must
occur in the broader context of the ongoing litigation, with due regard to the governing
The dissent erroneously suggests that the holding of Collins
, as quoted in the
majority opinion, is dicta. In Collins
, however, the defendant contended that no recovery
can be had in this action by the administratrix because the administratrix was neither the
'widow, widower, child or dependent of the employee.' 114 W.Va. at 235, 171 S.E. at
759. If such contention had been correct, this Court would have agreed with the defendant
. However, this Court stated that the defendant's contention was erroneous and
required the defendant to proceed to trial. Thus, the statement in Collins
upon which the
majority relies is not strictly dicta.
As evidence of such practice and understanding, a cursory search of this
Court's opinions finds the following instances wherein personal representatives are named
plaintiffs in deliberate intention actions resulting from the death of an employee: Keesee v.
General Refuse Service, Inc
., 216 W.Va. 199, 604 S.E.2d 449 (2004); Zelenka v. City of
, 208 W.Va. 243, 539 S.E.2d 750 (2000); Mumaw v. U.S. Silica Co.
, 204 W.Va. 6,
511 S.E.2d 117 (1998); Costilow v. Elkay Min. Co.
, 200 W.Va. 131, 488 S.E.2d 406 (1997); Michael v. Marion County Bd. of Educ
., 198 W.Va. 523, 482 S.E.2d 140 (1996); Powroznik
v. C. & W. Coal Co.
, 191 W.Va. 293, 445 S.E.2d 234 (1994); Sias v. W-P Coal Co.
W.Va. 569, 408 S.E.2d 321 (1991); Dunn v. Consolidation Coal Co.
, 180 W.Va. 681, 379
S.E.2d 485 (1989); Cline v. Jumacris Min. Co.
, 177 W.Va. 589, 355 S.E.2d 378 (1987); Duty
180 W.Va. 149, 375 S.E.2d 781 (1988); Mooney v. Eastern Associated Coal
., 174 W.Va. 350, 326 S.E.2d 427 (1984); Chambers v. Sovereign Coal Corp
W.Va. 537, 295 S.E.2d 28 (1982); Maynard v. Island Creek Coal Co.
, 115 W.Va. 249, 175
S.E. 70 (1934).
With the benefit of hindsight, it appears that this Court made a mistake in
allowing the lower court's substitution of personal representatives. One error by this Court,
however, certainly does not justify another error, the improper tampering with settled law
governing personal representatives and their management of wrongful death litigation that
the dissent would propose.