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JUSTICE WORKMAN delivered the Opinion of the Court.
The Court held in syllabus point three of Savilla that “[p]ursuant to W. Va. Code,
23-4-2(c) [2005] and W. Va. Code, 55-7-6 [1992], 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) [2005]: 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) [2005] 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 [1992].
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
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 § 23-4-2(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.