656 S.E.2d 55
JUSTICES STARCHER and ALBRIGHT dissent and reserve the right to file dissenting opinions.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
5. To properly plead a prima facie case under W. Va. Code § 23-4-
2(c)(2)(I) , the statute requires an employee set out deliberate intention allegations.
Under the statute, deliberate intention allegations may only be satisfied where it is alleged
an employer acted with a consciously, subjectively and deliberately formed intention to
produce the specific result of injury. Syllabus point 9, Tolliver v. Kroger Co., 201 W. Va.
509, 498 S.E.2d 702 (1997).
6. To establish 'deliberate intention' in an action under W. Va. Code § 23-4-2(c)(2)(ii) , a plaintiff or cross-claimant must offer evidence to prove each of the five specific statutory requirements. Syllabus point 2, Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d 700 (1991).
7. The Unfair Trade Practices Act, W. Va. Code §§ 33-11-1 to 10, and the tort of bad faith apply only to those persons or entities and their agents who are engaged in the business of insurance. Syllabus point 2, Hawkins v. Ford Motor Co., 211 W. Va. 487, 566 S.E.2d 624 (2002).
Mary H. Wetzel (hereinafter Mrs. Wetzel), appellant/plaintiff below, individually and as executrix of the estate of her deceased husband Robert H. Wetzel, appeals from an order of the Circuit Court of Marshall County granting summary judgment in favor of Employers Service Corporation of West Virginia, appellee/defendant below (hereinafter ESC). In this proceeding, Mrs. Wetzel contends that the circuit court committed error in finding that (1) the workers' compensation statutes granted ESC immunity from liability, and (2) ESC was not in the business of insurance for purposes of her statutory bad faith claim. After a thorough review of the briefs and record, and having heard the arguments of the parties, we affirm the circuit court.
On September 5, 1995, Mr. Wetzel died. (See footnote 6) A year later, on September 9, 1996, Mrs. Wetzel filed the instant action against ESC. The complaint alleged that ESC's denial of the 26 payment requests contributed to Mr. Wetzel's death. The legal theories relied upon were negligence, intentional infliction of emotional distress and statutory bad faith settlement of claims. After a period of extensive discovery, ESC filed a motion for summary judgment. By order entered on August 14, 2006, the circuit court granted ESC's motion for summary judgment. In doing so, the circuit court found that (1) ESC was an agent of Chemical Leaman and, as such, enjoyed immunity from common law tort theories, and (2) ESC was not subject to a statutory bad faith claim. It is from these rulings that Mrs. Wetzel appeals to this Court.
Any employer subject to this chapter who subscribes and pays into the workers' compensation fund the premiums provided by this chapter or who elects to make direct payments of compensation as provided in this section is not 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 the employer is not in default in the payment of the premiums or direct payments and has complied fully with all other provisions of this chapter.
The extension of employer immunity to agents and others is set out in W. Va. Code § 23-2-6a (1949), (Repl. Vol. 2005) as follows:
The immunity from liability set out in the preceding section 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.
In Syllabus point 4 of Henderson v. Meredith Lumber Co., Inc., 190 W. Va. 292, 438 S.E.2d 324 (1993), this Court summarized the above statutes as follows:
W. Va. Code, 23-2-6a  extends the employer's
immunity from liability set forth in W. Va. Code, 23-2-6 
to the employer's officer, manager, agent, representative or
employee when he is acting in furtherance of the employer's
business and does not inflict an injury with deliberate intention.
Mrs. Wetzel contends that under our decision in Deller v. Naymick, 176 W. Va. 108, 342 S.E.2d 73 (1985), ESC is not an agent of Chemical Leaman. On the other hand, ESC argues that Deller does not address the issue of who may be an agent for workers' compensation purposes. We agree with the position advocated by ESC.
In Deller, the plaintiff sued a doctor who worked out of a facility provided by the employer. The trial court certified questions to this Court asking that we determine whether the doctor was an employee of the employer, and therefore immune from suit. This Court found that the doctor was an employee and, in doing so, formulated the following test for determining whether a professional person is an employee of an employer:
A professional person is an employee for workers' compensation purposes when he or she provides his or her services to an employer largely to the exclusion of otherwise special employment, for a certain fixed and determined period, at a regular salary, and hold[s] [himself or herself] in readiness at all times to serve [his or her] employer[.]
Syl. pt. 1, Deller, 176 W. Va. 108, 342 S.E.2d 73, (quoting West Virginia Coal & Coke Corp.
v. State Comp. Comm'r, 116 W. Va. 701, 704, 182 S.E. 826, 828 (1935)). Clearly, Deller's test for determining whether a professional person is an employee of an employer has no
relevancy to determining whether ESC is an agent of Chemical Leaman.
The definition of an agent is not provided by W. Va. Code § 23-2-6a. In Syllabus point 4 of State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars of the United States, 144 W. Va. 137, 107 S.E.2d 353 (1959), we held that [g]enerally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use. See Syl. pt. 1, Thomas v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d 905 (1980) (In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meanings.). Prior decisions of this Court have addressed the meaning of agent. In Syllabus point 3 of State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276 (1923), we stated, in part, that [a]n agent in the restricted and proper sense is a representative of his principal in business or contractual relations with third persons[.] Accord Syl. pt. 3, Thomson v. McGinnis, 195 W. Va. 465, 465 S.E.2d 922 (1995). We have also said that
[a]n agent is one who represents another, called the
principal, in dealings with third persons. He is one who
undertakes some business or to manage some affair for another
by authority of or on account of the latter and to render an
account of it.
State ex rel. Clark v. Blue Cross Blue Shield of West Virginia, Inc., 203 W. Va. 690, 714, 510 S.E.2d 764, 788 (1998) (quoting 1A Michie's Jurisprudence Agency § 2, at 666 (1993)). See Warden v. Bank of Mingo, 176 W. Va. 60, 64, 341 S.E.2d 679, 683 (1985) (The common law definition of an agent [is] a person authorized by another to act for him[.]).
Under the precedents of this Court defining the meaning of agent, we have no hesitancy in finding that ESC was an agent of Chemical Leaman for workers' compensation purposes. The record is clear. As a self-insured employer, Chemical Leaman had a statutory duty to provide for processing and making payments on workers' compensation claims that were found compensable. In 1987, Chemical Leaman entered into an agreement with ESC that gave ESC the responsibility of carrying out Chemical Leaman's statutory duty to process and make payments for workers' compensation claims. Consequently, the circuit court correctly found that ESC acted in place of or conducted business on behalf of Chemical Leaman and was, therefore an agent or representative of Chemical Leaman. (Internal quotation marks omitted).
Mrs. Wetzel has asserted that even if ESC is an agent of Chemical Leaman, she may still maintain a cause of action against ESC for intentionally refusing to pay a total of $662.94 in claims. (See footnote 7) We disagree.
The Legislature has specifically provided in W. Va. Code § 23-4-2(d)(2) (2005) (Repl. Vol. 2005) the type of intentional tort action that may be brought to defeat the immunity afforded to employers and their agents. The statutory intentional tort is called deliberate intention. We held in Syllabus point 1 of Mayles v. Shoney's, Inc., 185 W. Va. 88, 405 S.E.2d 15 (1990), that [t]he statute creating a legislative standard for loss of employer immunity from civil liability for work-related injury to employees found in W. Va. Code Sec. 23-4-2  essentially sets forth two separate and distinct methods of proving 'deliberate intention.' The two deliberate intent causes of action have been summarized by this Court as follows:
To properly plead a prima facie case under W. Va. Code § 23-4-2(c)(2)(I) (1994) (See footnote 8) , the statute requires an employee set out deliberate intention allegations. Under the statute, deliberate intention allegations may only be satisfied where it is alleged an employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury.
Syl. pt. 9, Tolliver v. Kroger Co., 201 W. Va. 509, 498 S.E.2d 702 (1997) (footnote added) (finding assault and battery not recognized as cause of action against employer by employee). (See footnote 9)
To establish deliberate intention in an action under W. Va. Code § 23-4-2(c)(2)(ii) (1983) (See footnote 10) , 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) (footnote added). (See footnote 11)
Mrs. Wetzel failed to plead in her complaint or argue before this Court a
deliberate intention cause of action against ESC as provided by W. Va. Code § 23-4-2(d)(2).
Instead, in this appeal Mrs. Wetzel contends that this Court should recognize a cause of
action against ESC for intentionally refusing to honor and timely pay workers'
compensation benefits. To support this alleged cause of action, Mrs. Wetzel cites to our
decision in Persinger v. Peabody Coal Co., 196 W. Va. 707, 474 S.E.2d 887 (1996), wherein
this Court created a cause of action against an employer for engaging in fraud to deny an
employee workers' compensation benefits. Insofar as Mrs. Wetzel did not allege fraud
against ESC in her complaint nor in her brief on appeal, we do not find Persinger applicable.
Further, Persinger actually supports ESC's position that a cause of action for nonfraudulently
contesting a claim is not actionable. We made this point quite clear in Persinger when we
indicated that, [i]n recognizing the existence of this type of [fraud] action, we do not wish
to open a Pandora's box of litigation, nor do we wish to infringe upon an employer's right
to contest an employee's claim. Persinger, 196 W. Va. at 717, 474 S.E.2d at 897 (emphasis
Consequently, we decline to recognize the cause of action urged by Mrs. Wetzel. (See footnote 12) See Bias v. Eastern Associated Coal Corp., 220 W. Va. 540, 640 S.E.2d 540 (2006) (declining to recognize a cause of action against an employer for a mental-mental claim); State ex rel. Darling v. McGraw, 220 W. Va. 322, 647 S.E.2d 758 (2007) (same); State ex rel. City of Martinsburg v. Sanders, 219 W. Va. 228, 632 S.E.2d 914 (2006) (immunity from liability afforded to employers protects against awards of medical monitoring damages based on common law tort theories). In sum, the circuit court properly found that Mrs. Wetzel's tort theories of liability against ESC were precluded by the immunity granted under W. Va. Code § 23-2-6a. (See footnote 13)
The Unfair Trade Practices Act, W. Va. Code §§ 33-11-1 to 10, and the tort of bad faith apply only to those persons or entities and their agents who are engaged in the business of insurance.
Syl. pt. 2, Hawkins, 211 W. Va. 487, 566 S.E.2d 624.
Although we agree with Mrs. Wetzel that Hawkins is factually distinguishable from the instant case, we agree with ESC that the outcome must be the same. To hold otherwise would lead to an absurd result. For example, if this Court followed the logic of Mrs. Wetzel, we would have a rule of law which holds that an employer that is self-insured and processes its own claims, for both general liability and workers' compensation liability, cannot be sued as an insurer under the Act for bad faith settlement of general liability claims because of Hawkins, but may be sued as an insurer under the Act for bad faith settlement of workers' compensation claims. There is simply no tenable legal justification for such a different outcome. See Stafford EMS, Inc. v. J.B. Hunt Transp., Inc., 270 F. Supp. 2d 773, 778 -79 (S.D. W. Va. 2003) (Inasmuch as West Virginia law is clear that a self-insured entity, such as J.B. Hunt, is not liable for bad faith, either statutory or common law, [plaintiff] can receive no relief from J.B. Hunt on those grounds. Moreover, inasmuch as the court has determined that independent adjusters retained by a self-insured entity have no greater liability for bad faith claims than that of the self-insured entity, [plaintiff] is not entitled to relief from Custard or Robertson.). Nor do we believe the Legislature intended the Act to apply to entities like ESC that simply process claims for self-insured workers' compensation employers. (See footnote 16) Therefore, we affirm the trial court's dismissal of Mrs. Wetzel's bad faith claim.