Submitted: May 22, 2002
Filed: July 2, 2002
| Scott S. Blass, Esq.
James B. Stoneking, Esq.
Bordas, Bordas & Jividen
Wheeling, West Virginia
Attorneys for Appellant
| Michael G. Gallaway, Esq.
Burns, White & Hickton
Wheeling, West Virginia
Attorney for Appellee
JUSTICE McGRAW dissents and reserves the right to file a separate opinion.
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. Syllabus Point 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).
employee is entitled to compensation for an injury sustained in going to or
from his work, only where such injury occurs within the zone of his employment,
and that zone must be determined by the circumstances of the particular case
presented. Syllabus Point 1, Carper v. Workmen's Compensation Comm'r,
121 W.Va. 1, 1 S.E.2d 165 (1939).
4. An injury incurred by a workman, in the course of his travel to his place of work and not on the premises of the employer, does not give right to participation in such [Workers' Compensation] fund, unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment, of its use by the servant in going to and returning from his work. Syllabus Point 2, De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88 (1914).
5. Workmen's compensation law generally recognizes that an employee is entitled to compensation for an injury received while traveling on behalf of his employer's business. Syllabus Point 1 of Calloway v. State Workmen's Compensation Comm'r, 165 W.Va. 432, 268 S.E.2d 132 (1980).
or death of an employee of a subscriber to the Compensation Fund occurring
upon a public highway and not on the premises of the employer, gives right
to participate in the fund, when 'the place of injury was brought within the
scope of employment by an express or implied requirement of the contract of
employment, of its use by the servant in going to and returning from work.'
De Constantin v. Commission, 75 W.Va. 32 Pt. 2, Syl., 83 S.E. 88, L.R.A.
1916A, 329. Syllabus, Canoy v. State Com- pensation Comm'r, 113
W.Va. 914, 170 S.E.2d 184 (1933).
In this appeal from the Circuit Court of Ohio County, the appellant challenges a circuit court order granting summary judgment. The appellant, on behalf of the estate of Leah Brown, had sued Mrs. Brown's employer, the City of Wheeling. Mrs. Brown and a co- worker were returning from an out-of-town work-related training session when Mrs. Brown died in a one-vehicle automobile accident. Mrs. Brown's co-worker was the driver of the automobile. As a result of the accident, the appellant filed the lawsuit against Mrs. Brown's employer. The circuit court entered a summary judgment order finding the employer immune from liability.
As set forth below, we affirm the circuit court's order.
On September 9, 1997, Mrs. Brown and a co-worker rode together in the co- worker's personal vehicle from Wheeling to the training session at the State Police Academy in Institute, West Virginia. The co-worker drove the vehicle. As Mrs. Brown and her co-worker were returning from the training session, they were involved in a one-car accident. Mrs. Brown died in the accident. (See footnote 1)
The appellant, Douglas Brown, is the surviving spouse and the administrator of the estate of Leah Brown. Following the accident, the appellant wrote the Wheeling City Solicitor inquiring whether the appellant would be eligible for certain pension benefits from the City's Employees Retirement and Benefit Fund. Under W.Va. Code, 8-22-9(c)  (See footnote 2) the appellant would only be entitled to money that Mrs. Brown had contributed to the City pension fund. However, W.Va. Code, 8-22-9(a)(1)  (See footnote 3) provides that additional benefits be paid to a surviving spouse if an employee of a municipality die[s] as a result of personal injury or disease arising out of and in the course of his employment with the city.
The Wheeling City Solicitor responded to the appellant in a letter dated October 9, 1998, stating that:
Mrs. Brown's death did not occur in the course of her employment under the existing law. Thus I cannot advise the Board of Trustees that there is a clearly established legal basis for them to recognize a claim for benefits under the provision of W.Va. Code 8-22-9(a)(1) in this particular case. Therefore, any such claim made to this pension fund as a result of the death of Leah Brown could not be approved as a legitimate expenditure by the Board of Trustees.
Instead of challenging the City Solicitor's opinion and seeking a legal determination regarding his entitlement to pension benefits based on Mrs. Brown's employment, under W.Va. Code, 8-22-9(a)(1) , or applying for dependents benefits from the Worker's Compensation Fund, the appellant filed the instant action solely against the City of Wheeling. In his complaint, the appellant alleged that the driver was acting within the course and scope of his employment so as to bind the City to liability based on the employee driver's negligence. At the same time, the complaint alleged that Mrs. Brown was not acting within the scope of her employment with the City.
The parties filed cross motions
for summary judgment on the issue of whether Mrs. Brown was acting within the
scope of her employment at the time of the accident. On September 15, 2000,
the circuit court ruled that Mrs. Brown's attendance and travel to the training
session was a special act or special errand performed
for the benefit of the City. The circuit court ruled that Mrs. Brown was within
the scope of her employment at the time of her death, and that the City
was entitled to governmental
immunity based on W.Va. Code, 29-12A-5 , unless the plaintiff
[appellant] can show that the City
should be estopped from raising
the immunity created by the [political
subdivision immunity] statute.
In response to the civil action filed by the appellant, the City asserted that both the driver and the decedent were employees of the City, and that the City was therefore, inter alia, immune under the Workers' Compensation Act.
After reviewing the parties' briefs on the estoppel issue, the circuit court entered an order on February 6, 2001, ruling that the appellant had not satisfied the elements for proving estoppel and dismissed the appellant's action. The appellant now appeals the lower court's rulings.
Workmen's compensation law
generally recognizes that an employee is entitled to compensation for an injury
received while traveling on behalf of his employer's business.
The Workers' Compensation Act states that if an employee is injured or dies in the course of and as a result of his or her employment, and the employer subscribes to the Workers' Compensation Fund, then the employer is immune from most lawsuits arising from the injury or death. W.Va. Code, 23-2-6  states, in pertinent part:
Any employer subject to this chapter who shall subscribe and pay into the workers' compensation fund the premiums provided by this chapter or who shall elect to make direct payments of compensation as herein provided shall not be 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 such employer shall not be in default in the payment of such premiums or direct payments and shall have complied fully with all other provisions of this chapter. The continuation in the service of such employer shall be considered a waiver by the employee . . . of the right of action as aforesaid, which the employee . . . would otherwise have[.]
It is the general rule in West Virginia that when an employee is injured while going to and coming from work, that employee is not considered to be in the course of his or her employment. De Constantin v. Public Service Comm'n, 75 W.Va. 32, 83 S.E. 88 (1914); Buckland v. State Compensation Comm'r, 115 W.Va. 323, 175 S.E. 785 (1931). In other words, the employee may not recover workers' compensation benefits, and the employer is not immune from a negligence action. As we stated, in Syllabus Point 1 of Carper v. Workmen's Compensation Comm'r, 121 W.Va. 1, 1 S.E.2d 165 (1939):
An employee is entitled to compensation for an injury sustained in going to or from his work, only where such injury occurs within the zone of his employment, and that zone must be determined by the circumstances of the particular case presented.
We further stated that no definite rule can be laid down as to what is the zone of employment, and each case must be decided on its own facts and circumstances. 121 W.Va. at 3, 1 S.E.2d at 166.
Under normal circumstances, an employee's use of a public highway going to or coming from work is not considered to be in the course of employment. The reasoning underlying this rule is that the employee is being exposed to a risk identical to that of the general public; the risk is not imposed by the employer. As we indicated in Syllabus Point 2 of De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88 (1914) (with emphasis added):
An injury incurred by a workman in the course of his travel to his place of work and not on the premises of the employer, does not give right to participation in such [Workers' Compensation] fund, unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment, of its use by the servant in going to and returning from his work.
Hence, when an employee's use of a public highway is not required by the employment contract, injuries received on the highway are not compensable under the Workers' Compensation Act. As we stated in the Syllabus of Buckland v. State Compenation Comm'r, 115 W.Va. 323, 175 S.E. 785 (1934):
An injury, resulting in death, received by an employee while traveling upon a public highway in the same manner and for like purposes as the general public travels such highway, and not in performance of his duties for his employer, is not an injury received in the course of employment within the meaning of the Workmen's Compensation Act and is, therefore, not compensable.
In accord, Williams v. Compensation Comm'r, 124 W.Va. 238, 20 S.E. 116 (1942).
However, when the employee's risk of being injured on a public highway is a risk imposed by the contract of employment, then an injury on a public highway may be compensable under the Workers' Compensation Act. In Buckland, we further suggested that injuries that occur from the ordinary use of streets and highways are compensable if such use is required of the employee in the performance of his duties for the employer. 115 W.Va. at 326, 175 S.E. at 787. For example, one exception to the going and coming rule is that if employees are required, as a condition of their employment, to routinely journey from place to place, then injuries incurred by those employees while traveling are compensable. We stated, in Syllabus Point 1 of Calloway v. State Workmen's Compensation Comm'r, 165 W.Va. 432, 268 S.E.2d 132 (1980):
Based on the facts in the record
of this case, Mrs. Brown was clearly acting within the course of her employment
when she died while returning from a mandatory training session. Her death occurred
on a public highway which was brought within the scope of her employment by
the City's requirement that she attend training at the State Police Academy.
The appellant is therefore entitled to benefits under the Worker's Compensation
Act, and the City is entitled to immunity as provided for in W.Va. Code,
23-2-6 . We find no genuine issue fact remained to be tried on this question,
and summary judgment was therefore proper.