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No. 28461 - Barbara L. Seymour v. Pendleton Community Care and Michael
Davis, J., concurring, in part, and dissenting, in part:
This Court has steadfastly held that verdicts made by a jury are to remain, for
the most part, undisturbed by the court in which they sit. Courts must not set aside jury
verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure,
unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or
corruption. Syl. pt. 1, Addair v. Majestic Petroleum Co., 160 W. Va. 105, 232 S.E.2d 821
(1977).See footnote 1
For this reason, I concur with the Court's decision in this case that the circuit court
erred by reducing the jury's punitive damages award when the evidence sufficiently
supported such an award. Therefore, I agree with the majority's ultimate decision to reverse
and remand this case for further proceedings to reinstate the jury's verdict in this regard.
I do not agree, though, with my brethren's subsequent determination that Ms.
Seymour attempted to mitigate her damages. First, such a conclusion is simply unnecessary
to the Court's decision of this case. It is true that a plaintiff in a wrongful discharge action
is required to mitigate his/her damages arising therefrom by seeking other employment.
However, the employee's mitigation duty is obviated when a judge or jury concludes that the
employer acted maliciously in wrongfully discharging said employee:
Unless a wrongful discharge is malicious, the wrongfully
discharged employee has a duty to mitigate damages by
accepting similar employment to that contemplated by his or her
contract if it is available in the local area, and the actual wages
received, or the wages the employee could have received at
comparable employment where it is locally available, will be
deducted from any back pay award; however, the burden of
raising the issue of mitigation is on the employer.
Syl. pt. 2, Mason County Bd. of Educ. v. State Superintendent of Schs., 170 W. Va. 632, 295
S.E.2d 719 (1982) (emphasis added). In the case sub judice, such a finding was, in fact,
made as the jury's award of punitive damages was based upon a finding of malice or other
wrongful conduct equivalent thereto.See footnote 2
Thus, the malice with which the defendants acted in
wrongfully discharging Ms. Seymour obviated her duty to mitigate her damages and renders
the Court's discussion thereof unnecessary to its ultimate decision of this case.
Moreover, I disagree with the majority's determination that Ms. Seymour
did, in fact, attempt to mitigate her damages. Such a finding is just plain wrong. On the
contrary, the record evidence before this Court requires the opposite conclusion, i.e., that
Ms. Seymour's efforts did not constitute the mitigation required of a plaintiff employee in
a wrongful discharge case who seeks an award of back pay. In the Mason County case,
we explained vis-a-vis mitigation that the wrongfully discharged employee who has not
secured employment must be prepared to demonstrate that he or she did not make a
voluntary decision not to work, but rather used reasonable and diligent efforts to secure
acceptable employment. 170 W. Va. at 638, 295 S.E.2d at 725-26.See footnote 3
Here, even if the resolution of the instant appeal required a finding of
mitigation, which, given the jury's finding of malice, it does not, there is absolutely no
evidence that such mitigation occurred. As the majority plainly points out in its statement
of facts, Ms. Seymour, herself, testified that she failed to take any affirmative steps to find
employment comparable to her prior position: I've watched the paper, and I've kept my
eye on things -- and kept an eye for what's out there, and kept my eyes open. I just
haven't gone to apply. Maj. Op. at 2. Given the previously stated requirement that a
wrongfully discharged employee must use reasonable and diligent efforts to obtain
replacement employment, Mason County, 170 W. Va. at 638, 295 S.E.2d at 726, and Ms.
Seymour's admitted failure to do so, the majority's determination to the contrary blatantly
ignores the evidentiary record upon which such a conclusion is based. With this result,
I cannot and do not agree.
Accordingly, for the foregoing reasons, I respectfully concur, in part, and
dissent, in part.
1See also Syl. pt. 2, Walker v. Monongahela Power Co., 147 W. Va. 825, 131
S.E.2d 736 (1963) ('When a case involving conflicting testimony and circumstances has
been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless
plainly contrary to the weight of the evidence or without sufficient evidence to support it.'
Point 4, Syllabus, Laslo v. Griffith, 143 W. Va. 469[, 102 S.E.2d 894 (1958)].). But see
Syl. pt. 2, Keiffer v. Queen, 155 W. Va. 868, 189 S.E.2d 842 (1972) ('A verdict of a jury
will be set aside where the amount thereof is such that, when considered in the light of the
proof, it is clearly shown that the jury was misled by a mistaken view of the case.' Syllabus,
Point 3, Raines v. Faulkner, 131 W. Va. 10[, 48 S.E.2d 393 (1947)].).
2See generally Syl. pt. 4, Harless v. First Nat'l Bank in Fairmont, 169 W. Va.
673, 289 S.E.2d 692 (1982) ('Punitive or exemplary damages are such as, in a proper case,
a jury may allow against the defendant by way of punishment for wilfulness, wantonness,
malice, or other like aggravation of his wrong to the plaintiff, over and above full
compensation for all injuries directly or indirectly resulting from such wrong.' Syllabus
Point 1, O'Brien v. Snodgrass, 123 W. Va. 483, 16 S.E.2d 621 (1941).).
3Accord Syl. pt. 4, Paxton v. Crabtree, 184 W. Va. 237, 400 S.E.2d 245
(1990) (Once a claimant establishes a prima facie case of [employment] discrimination
and presents evidence on the issue of damages, the burden of producing sufficient evidence
to establish the amount of interim earnings or lack of diligence shifts to the defendant. The
defendant may satisfy his burden only if he establishes that: (1) there were substantially
equivalent positions which were available; and (2) the claimant failed to use reasonable
care and diligence in seeking such positions. (emphasis added)).