Mark L. French, Esq.
Thomas V. Flaherty, Esq.
Matthew S. Criswell, Esq.
Christopher A. Brumley, Esq.
Charleston, West Virginia
Nathaniel K. Tawney, Esq.
Justin D. Jack, Esq.
Dennis H. Curry, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC
Spencer, West Virginia
Charleston, West Virginia
Attorneys for Appellant
Attorneys for Appellee S. W. Jack Drilling Co.
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. 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).
2. Where the language of a statute is clear and without ambiguity the plain
meaning is to be accepted without resorting to the rules of interpretation. Syl. Pt. 2, State
, 152 W. Va. 571, 165 S.E.22d 108 (1968).
3. Under the clear and unambiguous terms of West Virginia Code § 23-4-2(c)
(2005), an employee, widow, widower, child, or dependent has a deliberate intention cause
of action against the employer for injury or death of an employee. In the event of an
employee's death, the decedent's estate has a claim. To the extent that syllabus point three
of Savilla v. Speedway SuperAmerica
, 219 W. Va. 758, 639 S.E.2d 850 (2006),
conflicts with this holding, it is expressly overruled.
4. A personal representative who is not one of the statutorily-named
beneficiaries of a deliberate intention cause of action authorized by W. Va. Code
 has standing to assert a deliberate intention claim against a decedent's employer on
behalf of a person who has such a cause of action in a wrongful death suit filed pursuant to W. Va. Code
, 55-7-6 . Syl. Pt. 2, Savilla v. Speedway Superamerica, LLC
, 219 W.
Va. 758, 639 S.E.2d 850 (2006).
The estate of an employee who suffers death as the result of deliberate intent
-type conduct that is recognized by the provisions of West Virginia Code § 23-4-2(c) (2005)
has a claim on behalf of the beneficiaries thereof, for any excess of damages over the amount
received or receivable in a claim for benefits under the workers' compensation statutes,
regardless of whether a claim seeking such benefits is filed. In the case of an employee's
death, a personal representative of the decedent's estate may assert a deliberate intention
claim against a decedent's employer on behalf of any person(s) identified in West Virginia
Code § 55-7-6 (2000), so long as the decedent could have maintained the action against the
employer by satisfying the deliberate intention statutory
criteria as this is the only method for
vindicating the worker's right to an action under the provisions of West Virginia Code § 23-
This case is before the Court upon the appeal of an Order Granting Motion for
Summary Judgment entered by the Circuit Court of Logan County, Judge Eric H. O'Briant
presiding, on March 21, 2007. The circuit court determined that while the Appellant, Evelyn
"Peach" Murphy, had standing to maintain the deliberate intent action pursuant to West
Virginia Code § 23-4-2(c)(2005), she could do so only on behalf of the persons who have a
cause of action under the statute, which, according to the circuit court, would be widows and
widowers, children, and dependents. In reaching this decision, the circuit court relied upon
the decision reached by this Court in Savilla v. Speedway Superamerica, LLC
, 219 W. Va.
758, 639 S.E.2d 850 (2006). Additionally, the circuit court rejected the Appellant's
arguments that she was a dependent and that the limitation of beneficiaries in a deliberate
intent action violated the Equal Protection Clauses of the West Virginia Constitution or the
United States Constitution. Based upon our review of the record before the Court, the
parties' briefs and arguments, and all other matters presented, we reverse the lower court's
decision and remand this case to the circuit court for further proceedings. In so reversing,
we hereby expressly overrule the language of syllabus point three of Savilla
, as well as any
other language in the opinion to the extent that it holds there is no cause of action for an
employee's death in a deliberate intention action filed by the decedent's personal
representative against the decedent's employer.
I. Factual and Procedural Background
On November 2, 2005, Andrew John Murphy, the decedent, had been working for S.
W. Drilling Company for a little over a month, when he was directed to beat down foam on
a mudpit. While working around the mudpit, Mr. Murphy noticed that the liner, which held
contaminants, had fallen off the bank of the mudpit. Mr. Murphy was attempting to pull the
liner out of the mudpit when he fell into the mudpit and died. Mr. Murphy was nineteen
A family friend, Larry Jett, was first appointed administrator of Mr. Murphy's estate,
and filed the instant deliberate intention action against various defendants, (See footnote 1)
under the provisions of West Virginia Code § 23-4-2(d) (2005), (See footnote 2)
on May 17, 2006. (See footnote 3)
however, died unexpectedly, causing Mr. Murphy's mother, the Appellant, to be appointed
administratrix of his estate on December 12, 2006. The Order substituting the Appellant was
entered on December 18, 2006. Mr. Murphy's only surviving heirs were his mother and a
Subsequently, the Appellee, S. W. Jack Drilling, Co., filed for summary judgment,
claiming that under Savilla
, while the administratrix had standing to bring a deliberate intent
action, the representative can only maintain that action on behalf of those designated in West
Virginia Code § 23-4-2(c). The Appellant, however, did not qualify as a dependent under
the statute, based upon the determination made by Workers' Compensation. (See footnote 4)
the Appellee asserted that there were no persons with the statutory right to maintain the
action and recover damages.
The lower court, relying upon Savilla,
agreed with the Appellee and it is this ruling
that forms the basis for the instant appeal.
II. Standard of Review
This Court's standard of review for a circuit court's entry of summary judgment is de
novo. Syl. Pt. 1, Painter v. Peavy
, 192 W. Va. 189, 451 S.E.2d 755 (1994). Pursuant to Rule
56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the
record shows that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. Id
. Thus, the Court has held 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). Applying the foregoing standard, we now turn consider to the
issues before the Court in this case.
At the center of the case before us is Savilla, a decision rendered by the Court less
than three years ago. See 219 W. Va. at 758, 639 S.E.2d at 850. Because of the confusion
that has been caused by one of the holdings reached by the Court in Savilla, it is incumbent
upon this Court to now critically examine both the facts and law of that case in conjunction
with the case sub judice.
The Savilla case involved a tragic set of facts in which Linda Kannaird, who was
fifty-four years old, drowned when a rescue boat operated by the City of Charleston
overturned in flood waters on February 18, 2000. 219 W. Va. at 760, 639 S.E.2d at 852. Ms.
Kannaird was being evacuated from a Speedway SuperAmerica (Speedway) convenience
store where she worked. Id. She was not married at the time of her death and had only one
adult child, Eugenia Moschgat, who was a resident of North Carolina and who had been
estranged from her mother for a number of years. Id. at 760-61, 639 S.E.2d at 852-53.
Ms. Moschgat was appointed administratrix of her mother's estate on February 28,
2000. Ms. Moschgat filed a lawsuit against the City of Charleston and Speedway on April
11, 2000, alleging negligence against the City and deliberate intention against Ms.
Kannaird's employer, Speedway. Id. at 760, 639 S.E.2d at 852.
Subsequently, on June 8, 2000, a number of Ms. Kannaird's siblings, alleging that
they were potential recipients of damages in the suit filed by Ms. Moschgat, sought to have
Ms. Moschgat removed as administratrix and personal representative of Ms. Kannaird's
estate, because of her hostility towards and estrangement from her mother. Id. The circuit
court, upon hearings, found that Ms. Moschgat's hostility toward her late mother's siblings
necessitated her removal as personal representative of the estate. Id. at 761, 639 S.E.2d at
853. Diana Savilla, Ms. Kannaird's sister, was appointed as the administratrix of the estate. Id.
The case proceeded with discovery and took other procedural twists, including an
attempted removal to federal court. Id. During this time, Speedway and Ms.
acting independently from Ms. Savilla, entered into an agreement in which Speedway
promised to pay Ms. Moschgat a sum of money for a release of all Ms. Moschgat's personal
claims against Speedway. Id. The agreement was contingent upon Speedway's dismissal
from the action. Id.
Thereafter, Speedway filed a motion to dismiss. Id. Speedway argued that Ms.
Savilla, as the personal representative of Ms. Kannaird's estate, had no standing to assert a
deliberate intention claim arising from Ms. Kannaird's death because Ms. Savilla was not
within one of the specific classifications of persons who are named in West Virginia Code
§ 23-4-2(c), referring to the widow, widower, child or dependent of the employee[.] Id. at
761-62, 639 S.E.2d at 853-54. Speedway also argued that its agreement with Ms. Moschgat
satisfied all possible deliberate intention claims against Speedway because Ms. Moschgat
was the only potential individual who could have a deliberate intention claim under West
Virginia Code § 23-4-2(c) and, therefore, the claims against Speedway required dismissal.
219 W. Va. at 762, 639 S.E.2d at 854.
The circuit court granted Speedway's motion, concluding that deliberate intention
claims could only be brought on behalf of the persons listed in West Virginia Code § 23-4-
2(c) and could not be pursued by the personal representative of a decedent in a wrongful
death suit. Id. at 762, 639 S.E.3d at 854. The circuit court did not address Speedway's
alternative argument regarding the settlement reached with Ms. Moschgat. Id. Ms. Savilla
appealed to this Court. Id.
On appeal, the Court examined whether anyone other than Ms. Moschgat had or has
a potential cause of action against Speedway, Ms. Kannaird's employer, as a result of her
death. Id. The Court began its analysis of this question by stating [a]s previously noted,
W. Va. Code, 23-4-2(c)  specifically provides that the 'widow, widower, child or
dependent' of an employee has a cause of action against an employer as a result of an
employee's death arising from an employer's alleged 'deliberate intention' misconduct. Savilla, 219 W. Va. at 762, 639 S.E.2d at 854. The Court then applied the principle of
expressio unius est exclusio alterius[,] which means the express mention of one thing
implies the exclusion of another[.] Id. (quoting, in part, Syl. Pt. 3, Manchin v. Dunfee, 174
W. Va. 532, 327 S.E.2d 710 (1984)). In applying this maxim, the Court concluded that W.
Va. Code, 23-4-2(c)'s express mention of certain person who have a cause of action against
an employer for deliberate intention wrongful death damages implies the exclusion of other
persons who are not mentioned in the statute. Savilla, 219 W. Va. at 762, 639 S.E.2d at 854.
Thus, the Court found that potential damages recovery under a cause of action authorized
by W. Va. Code, 23-4-2(c)  is limited to a smaller class of beneficiaries than those
persons who are set forth in W. Va. Code, 55-7-6 (See footnote 5) [commonly referred to as the
wrongful death statute]. Savilla, 219 W. Va. at 763, 639 S.E.2d at 855 (footnote added).
The Court held in syllabus point three of Savilla that [p]ursuant to W. Va. Code,
23-4-2(c)  and W. Va. Code, 55-7-6 , the persons who can potentially recover
deliberate intention damages from a decedent's employer are the persons specified in W.
Va. Code, 23-4-2(c) : the employee's widow, widower, child, or dependent of the
employee. 219 W. Va. at 759, 639 S.E.2d at 851, Syl. Pt. 3.
The circuit court's application of this holding resulted in the summary judgment,
which is the subject of this appeal. It is important to note at the onset that Savilla was
decided by a simple three to two majority, with Justice Davis and Justice Maynard dissenting.
The dissenting opinion pointed out the undeniable flaws in the majority's application of West
Virginia Code § 23-4-2(c). West Virginia Code § 23-4-2(c) provides:
If injury or death result to any employee from the deliberate
intention of his or her employer to produce the injury or death, the
employee, the widow, widower, child or dependent of the employee has the
privilege to take under this chapter and has a cause of action against the
employer, as if this chapter had not been enacted, for any excess of
damages over the amount received or receivable in a claim for benefits
under this chapter, whether filed or not.
Id. (Emphasis added).
The majority in Savilla omitted any discussion or analysis of the words the
employee from the persons whom the statute clearly and expressly states has a claim for
injury or death. 219 W. Va. at 762-764, 639 S.E.2d at 854-855; see W. Va. Code §
23-4-2(c). This omission was discussed at length in the dissenting opinion to Savilla in
which Justice Davis opined that under the deliberate intent statute, a cause of action exists
for an injury or death to an employee. 219 W. Va. at 769, 639 S.E.2d at 861. Further,
Justice Davis stated that under West Virginia Code § 23-4-2(c), in a fatal injury case, the
'employee' means the estate of the employee. 219 W. Va. at 770, 639 S.E.2d at 862.
Justice Davis found that the majority opinion in Savilla, abolished a right granted to an
employee to have a separate cause of action for his/her death through his/her estate. Id. at
771, 639 S.E.2d at 863.
Justice Davis' dissenting opinion was consistent with this Court's prior decision in Zelenka v. City of Weirton, 208 W. Va. 243, 539 S.E.2d 750 (2000). In Zelenka, the estate
of a city employee who was killed in a work-related accident filed a wrongful death action
against the city, alleging that the city acted with deliberate intent. 208 W. Va. at 245-46, 539
S.E.2d at 752, 53. The plaintiff's decedent was forty-six years old at that time of his death
and was survived by his parents, three sisters, and a brother. Id. at 246, 539 S.E.2d at 753
n.4. A workers' compensation claim was filed as a result of the death and because the
decedent had no dependents, the workers' compensation benefits available to his estate were
limited to $5,000 in funeral expenses. Id. at 246, 539 S.E.2d at 753. It was clear in Zelenka that the case was prosecuted by the apparent non-dependent executrix of the decedent's
estate. Id. at 249, 539 S.E.2d at 756.
The dissenting opinion in Savilla was correct in that the majority's omission muddied
the waters with respect to a fatal injury to an employee. 219 W. Va. at 770, 639 S.E.2d at
862. This occurred when the majority simply ignored plain, unambiguous terms set forth by
the Legislature in West Virginia Code § 23-4-2(c). This omission and the concomitant
confusion it has created cannot be ignored by this Court.
Although this Court is loathe to overturn a decision so recently rendered, it is
preferable to do so where a prior decision was not a correct statement of law. As the United
States Supreme Court stated regarding the consideration of this difficult decision and its
impact on the well-established principle of stare decisis:
The Court has said often and with great emphasis that the doctrine of
stare decisis is of fundamental importance to the rule of law. Welch v. Texas
Dept. of Highways and Public Transportation, 483 U.S. 468, 494, 107 S.Ct.
2941, 2957, 97 L.Ed.2d 389 (1987). Although we have cautioned that stare
decisis is a principle of policy and not a mechanical formula of adherence to
the latest decision, Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 241, 90
S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970), it is indisputable that stare decisis
is a basic self-governing principle within the Judicial Branch, which is
entrusted with the sensitive and difficult task of fashioning and preserving a
jurisprudential system that is not based upon an arbitrary discretion. The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton). See also
Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 624, 88 L.Ed.2d 598
(1986) (stare decisis ensures that the law will not merely change erratically
and permits society to presume that bedrock principles are founded in the law
rather than in the proclivities of individuals).
Our precedents are not sacrosanct, for we have overruled prior
decisions where the necessity and propriety of doing so has been established. See Patterson v. McLean Credit Union, supra, 485 U.S., at 617-618, 108 S.Ct.,
at 1420-1421 (citing cases). Nonetheless, we have held that any departure
from the doctrine of stare decisis demands special justification. Arizona v.
Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164 (1984).
Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989), superceded in part on other
grounds by the Civil Rights Act of 1991.
Thus, after substantial deliberation, this Court comes to the inevitable conclusion in
this case that our prior decision in Savilla must be reversed, in part, due to the majority
opinion's omission of certain salient statutory language and any substantial discussion
thereof. The majority opinion's omission abolished the right of the employee's estate to
bring a deliberate intention action against an employer in cases involving the employee's
death. W. Va. Code § 23-4-2(c). The omission unquestionably provides this Court with the
special justification necessary for the departure from the doctrine of stare decisis.
Additionally, from a pure public policy perspective, it would be an incredible
miscarriage of justice for this Court to allow the legally incorrect holding in Savilla to stand.
The Court in Savilla obliterated any means of providing for compensation to those who lose
a loved one at the hands of an employee's deliberate intent-type conduct. It is difficult to
fathom that West Virginia law would ever allow an employer to act with complete intentional
disregard for an employee's life, deliberately intend the employee's death and then be
allowed to walk away unscathed by such conduct. (See footnote 6)
Consequently, it is time to correct the erroneous holding reached by the Court in Savilla. Where the language of a statute is clear and without ambiguity the plain meaning
is to be accepted without resorting to the rules of interpretation. Syl. Pt. 2, State v. Elder,
152 W. Va. 571, 165 S.E.2d 108 (1968). Thus, we hold that under the clear and
unambiguous terms of West Virginia § 23-4-2(c) (2005), an employee, widow, widower,
child, or dependent has a deliberate intention cause of action against the employer for injury
or death of an employee. In the event of an employee's death, the decedent's estate has a
claim. To the extent that syllabus point three of Savilla v. Speedway SuperAmerica, LLC,
219 W. Va. 758, 639 S.E.2d 850 (2006), conflicts with this holding, it is expressly overruled.
Moreover, West Virginia Code § 23-4-2(c) provides that the employee, the widow,
widower, child or dependent of the employee . . . has a cause of action against the employer, as if this chapter had not been enacted . . . . Id. (emphasis added). Regarding the
meaning of this phrase, the majority in Savilla relied upon Collins v. Dravo Contracting Co.,
114 W. Va. 229, 171 S.E. 757 (1933). In Collins, the Court addressed the phrase as follows:
The question is raised that no recovery can be had in this action by the
administratrix because Code, 23-4-2, gives the right of action to the widow,
widower, child or dependent of the employee. We do not think this
contention well founded. The statute in question gives the right of action as
if this chapter had not been enacted. If it had not been enacted, then for death
by wrongful act the personal representative sues under Code, 55-7-6, and that
section, including its limitation of recovery, would apply to the extent not
inconsistent with Code, 23-4-2. Since Code, 23-4-2, names the beneficiaries
who take, the recovery under its terms would be distributed to the widow,
widower, child or dependent and not in accordance with Code, 55-7-6. But
it is the personal representative who sues subject to the difference in
distribution of any recovery.
Collins, 114 W. Va. at 235-36, 171 S.E. at 759. The foregoing discussion was dicta in Collins, however, the majority in Savilla relied on this dicta to ultimately hold that
[a] personal representative who is not one of the statutorily-named
beneficiaries of a deliberate intention cause of action authorized by W. Va.
Code, 23-4-2(c)  has standing to assert a deliberate intention claim
against a decedent's employer on behalf of a person who has such a cause of
action in a wrongful death suit filed pursuant to W. Va. Code, 55-7-6 .
219 W. Va. at 759, 764, 639 S.E.2d at 851, 855 Syl. Pt. 2.
We continue to uphold this point of law made by the Savilla court. Adherence to this
holding is also found in a recent decision of the Supreme Court of Oregon in Behurst v.
Crown Cork & Seal USA, Inc., 203 P.3d 207 (Ore. 2009). In Behurst, the Oregon court was
presented with a certified question from a federal district court asking whether the Oregon
Workers' Compensation statute concerning deliberate intention, which is similar to the
instant statute, allows the personal representative of a deceased workers' estate (See footnote 7) to bring a
wrongful death action against the employer where the only beneficiaries of the claim were
the workers' non-dependent parents. Id. at 208-09.
The Oregon court found that the deliberate intention statute within the workers'
compensation statutory scheme removes the exclusive liability bar. Id. at 208. In order
to answer the certified question, however, the Behurst court reasoned as follows:
The answer to the certified question depends on the legislative intent
behind ORS 656.156(2) (See footnote 8) and ORS 30.020. (See footnote 9) ORS 656.156(2) does not provide
a cause of action to nondependent parents or, for that matter, to any person.
Rather, that statute states that a worker, spouse, child, or dependent may take
under this chapter and also may have cause for action against the employer,
as if such statutes had not been passed * * *.(Emphasis added.) The phrase,
have cause for action, if read in isolation, might signify a grant of a
substantive right to bring an action. But the phrase, as if such statutes had not
been passed, clarifies that matter. The legislature intended to remove a
statutory obstacle to the initiation of an action, not to authorize a new basis for
civil liability that the law does not already recognize. The phrase such
statutes can only refer back to the phrase this chapter, meaning the
Workers' Compensation Law. Accordingly, ORS 656.156(2) necessarily
assumes that the designated persons--workers, spouses, children, and
dependents--may pursue an action against an employer based on some other
source of law, as if the exclusive liability bar in ORS 656.018(1)(a) did not
exist, as long as they allege that the employer caused a worker's injury or death
by deliberate intention. This court implicitly recognized as much in Kilminster when it stated that ORS 656.156(2) removes the bar that otherwise would
prevent a worker from maintaining an action for damages against the employer
* * *. 323 Or. at 629, 919 P.2d 474 (emphasis added).
203 P.2d at 209-10.
In addressing the employer's argument that a personal representative can only bring
an action for the benefit of the persons, i.e., the employee, widow, widower, children and
dependent, identified in the statute, the Supreme Court of Oregon first recognized that [i]t
is the right of the worker that the personal representative enforces in bringing a wrongful
death action against the employer under ORS 30.020(1). Id. at 211. Moreover, the Behurst
Court reasoned that
[t]he proper question, therefore, is not whether ORS 656.156(2) lists
parents as potential claimants under that statute. Rather, the question is
whether parents are among those persons on whose behalf a personal
representative may institute an action for the deliberate wrongful death of a
worker under ORS 30.020. The answer is yes. ORS 30.020(1) authorizes an
action for wrongful death on behalf of surviving parents if the decedent
might have maintained an action against the wrongdoer for the same injurious
act or omission. ORS 30.020(2)(d) authorizes an award of damages in a
wrongful death action to compensate decedent's * * * parents for pecuniary
loss and for loss of the society, companionship and services of the decedent;
* * *. If the personal representative's wrongful death claim satisfies the
deliberate intention criterion, the claim is one that the decedent might have
maintained * * *[,] had the decedent lived, against the wrongdoer * * *. ORS
30.020(1). Accordingly, the personal representative's claim for wrongful death
for the benefit of decedent's parents properly vindicates the worker's right to
an action under ORS 656.156(2).
Behurst, 203 P.3d at 210-211.
We find the Supreme Court of Oregon's reasoning in Behurst persuasive.
Accordingly, we hold that the estate of an employee who suffers death as the result of
deliberate intent-type conduct that is recognized by the provisions of West Virginia Code §
23-4-2(c)(2005) has a claim on behalf of the beneficiaries thereof, for any excess of damages
over the amount received or receivable in a claim for benefits under the workers'
compensation statutes, regardless of whether a claim seeking such benefits is filed. In the
case of an employee's death, a personal representative of the decedent's estate may assert
a deliberate intention claim against a decedent's employer on behalf of any
identified in West Virginia Code § 55-7-6 (2000), so long as the decedent could have
maintained the action against the employer by satisfying the deliberate intention statutory criteria as this is the only method for vindicating the worker's right to an action under the
provisions of West Virginia Code § 23-4-2(c)(2005). (See footnote 10)
In reaching this decision, this Court is following the express statutory language of
West Virginia Code § 23-4-2, which as the Supreme Court of Oregon found in Behurst,
guides one to the wrongful death statute in those cases where an employee dies as a result of
an employer's deliberate intent-type conduct. Moreover, the wrongful death statute, West
Virginia Code § 55-7-6, follows the laws of descent and distribution found in West Virginia
Code § 42-1-1, et seq., (2004), for purposes of distributing any damages obtained by the
filing of action by the employee's estate.
Based upon the foregoing, because we overrule that portion of the Savilla
relied upon by the circuit court in granting summary judgment in favor of the employer, this
Court reverses the circuit court's grant of summary judgment and remands this case for
further proceedings consistent with this opinion.
The Defendants included Easter American Energy Corp, Kenneth Greathouse,
Rodney Paxton, Dorothy Lewis, Dennis Lewis, The Jack Company, S. W. Jack Drilling Co.,
and Turner Excavating, Inc.; however, this appeal was filed only on behalf of S. W. Jack
The Appellant also alleged counts sounding in failure to train, negligent hiring,
vicarious liability, joint venture, strict liability, and outrage.
The Appellant filed an Amended Complaint with the Court on June 9, 2006, adding
an additional Defendant, Turner Excavating, Inc., to the action, and omitting a named
Defendant, Kermit Tyree Contracting, Inc., from the action. Subsequently, Kermit Tyree
Contracting, Inc. and The Jack Company were dismissed from the action pursuant to an
Agreed Orders voluntarily dismissing them entered on June 9, 2006, and July 12, 2006,
The circuit court, by Order entered August 24, 2006, granted the Plaintiff's Motion
to Amend and allowed the Plaintiff to file a Second Amended Complaint, wherein the
Plaintiff added causes of action sounding in wrongful death, premises liability, and
negligence on the part of the non-employer Defendants. The Plaintiff also omitted the
outrage cause of action from the Complaint.
By Order entered August 15, 2006, the circuit court granted then Defendant, Eastern
American Energy Corp.'s Motion to Dismiss the strict liability against it, and recognized the
omission of the outrage claim from the Plaintiff's Amended Complaint.
By Order entered September 15, 2006, the circuit court granted the Motion to Dismiss
filed by the Defendants, Kenneth Greathouse, Rodney Paxton, and S. W. Jack Drilling Co.,
determining that the Plaintiff's causes of action for failure to train, negligent hiring, vicarious
liability, joint venture, strict liability, and outrage, are outside the scope of the deliberate
intention statute and could not be maintained against the employer Defendants because of
immunity pursuant to West Virginia Code § 23-4-2.
As a result of a mediation of the case, which occurred on January 9, 2007, a settlement
of the Plaintiff's claims against the Defendants, Dorothy Lewis, Dennis Lewis, and Turner
Excavating, Inc., was reached and those parties were dismissed from the action.
The decision reached today is consistent with prior decisions of this Court in which
the personal representative of an decedent's estate has pursued a deliberate intention cause
of action. See Zelenka, 208 W. Va. at 243, 539 S.E.2d at 750(allowing non-dependent
executrix of decedent's estate to pursue deliberate intention claim); Michael v. Marion
County Bd. of Educ., 198 W. Va. 523, 482 S.E.2d 140(1996)(allowing decedent's spouse to
bring deliberate intent cause of action against employer individually and as representative of
decedent's estate); Cline v. Jumacris Min. Co., 177 W. Va. 589, 355 S.E.2d 378
(1987)(allowing widow of employee to proceed in her own capacity as well as representative
of employee's estate); see also Roney v. Gencorp, 431 F.Supp.2d 622 (S.D. W. Va.
2006)(allowing executor of estate to pursue deliberate intention claim against employer).