Albright, Justice:
City of Martinsburg (hereinafter referred to as “Martinsburg”) invokes this
Court's original jurisdiction (See footnote 1) by seeking a writ of prohibition to bar the Circuit Court of
Berkeley County from conducting further proceedings in an action based on a negligence claim
seeking award of medical monitoring expenses brought against Martinsburg by current and
former firefighters (hereinafter referred to as “Respondents”) employed by the city.
Martinsburg maintains that the lower court committed clear legal error by denying its motion
for judgment on the pleadings, thereby requiring Martinsburg to proceed with litigating the
case, despite the statutory immunity afforded it by the provisions of the Governmental Tort
Claims and Insurance Reform Act (hereinafter referred to as “Governmental Tort Claims Act”),
West Virginia Code Chapter 29 Article 12A. After careful consideration of this matter, we
grant the writ as requested for the reasons stated below.
(1) whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way that
is not correctable on appeal; (3) whether the lower tribunal's
order is clearly erroneous as a matter of law; (4) whether the
lower tribunal's order is an oft repeated error or manifests
persistent disregard for either procedural or substantive law; and
(5) whether the lower tribunal's order raises new and important
problems or issues of law of first impression.
Syl. Pt. 4, in part, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). We
have further noted that “[t]hese factors are general guidelines that serve as a useful starting
point” in our deliberations of a petition for writ of prohibition, and “[a]lthough all five factors
need not be satisfied, . . . the existence of clear error as a matter of law [
] should be given
substantial weight.” Id. It is with these principles in mind that we consider the merits of the
petition.
The Court further finds that the defendant has failed to meet the
burden set forth in Marlin v. Bill Rich Construction, Inc., 198
W.Va. 635, 482 S.E.2d 620 (1996)[,] to establish to the
satisfaction of the Court that each plaintiff has or could bring a
claim covered by the West Virginia workers compensation law or
some other employer liability law. The Court finds that the
plaintiffs' claims for medical monitoring are based upon the
increased risk of contracting future diseases and not upon any
present injury that would be covered under any workers
compensation law or other employer liability law. The Court
further finds that . . . under the plain language of W.Va. Code §
29-12A-5(a)(11) the statutory immunity only applies to claims
covered by workers' compensation law or other employer's
liability law. The Court cannot conclude on the record before it,
that the plaintiffs have, in fact and presently, contracted any
occupational disease by reason of the inhalation of minute
particles of diesel exhaust over a period of time or that they have
suffered a perceptible aggravation of a previously existing
occupational disease. Accordingly, it cannot be said that, as a
matter of law, plaintiffs may successfully maintain a workers'
compensation claim for “injury” by reason of any occupational
disease. The Court further finds that plaintiffs' claims for fear of
contracting lung cancer or heart disease also would not meet the
statutory requirements necessary to establish a claim
compensable under workers compensation. The Court finds that
the defendant has failed to meet its burden to establish its right to
immunity under W.Va. Code § 29-12A-5(a)(11) . . . [and] DENIES
the defendant's motion for judgment on the pleadings.
In Marlin, the question before this Court was whether a board of education had
governmental immunity under West Virginia Code § 29-12A-5(a)(11) from claims of
construction workers not employed by the board but performing services at a school through
an independent contract. The workers alleged that they were exposed to asbestos fibers at the
worksite, but they claimed no physical injury. The board argued in Marlin that the construction
workers' claims against it were barred under West Virginia Code § 29-12A-5(a)(11) because
the claims were covered by this state's Workers' Compensation law. The issue addressed in Marlin was “whether the claims . . . [were] 'covered' at all by workers' compensation.” 198
W.Va. at 641 n. 3, 482 S.E.2d at 626 n. 3. We concluded in syllabus point three of Marlin that:
If the claims asserted by appellants would result in no
benefits under any workers' compensation law or any employer's
liability law, that is to say, if there is no recovery of benefits
under such laws in lieu of damages recoverable in a civil action,
then notwithstanding W.Va. Code § 29-12A-5(a)(11), such claims
are not “covered” within the meaning of the immunity statute and
may be asserted in the courts of this State against a political
subdivision which is not their employer, and such recovery had
as may be proved under a recognized cause of action.
198 W.Va. at 638, 482 S.E.2d at 623 (emphasis added).
The facts in the case at hand are critically different from those on which Marlin was decided. Unlike the political subdivision in Marlin, Martinsburg is the employer of the
workers. As the above-cited syllabus point makes clear, Marlin does not address a cause of
action between an employer and employee and thus is inapplicable to the facts presented
herein. The lower court's reliance on Marlin, therefore, was misplaced.
Respondents have alleged a negligence claim against their employer seeking an
award for medical monitoring. In order to sustain a claim to support an award of medical
monitoring expenses in this state, a plaintiff must prove the following: (1) significant
exposure; (2) to a proven hazardous substance; (3) through the tortious conduct of the
defendant; (4) which proximately caused an increased risk of plaintiff contracting serious
latent disease; (5) with the increased risk making it reasonably necessary for the plaintiff to
undergo periodic diagnostic testing; and (6) early detection of a disease is possible through
existing monitoring procedures. Syl. Pt. 3, Bower v. Westinghouse Elec. Corp., 206 W.Va.
133, 522 S.E.2d 424 (1999). All six elements must be proven before recovery is available to
any plaintiff. In re Tobacco Litigation, 215 W.Va. 476, 480, 600 S.E.2d 188, 192 (2004).
Of the six areas of proof required according to Bower, the “tortious conduct of the defendant”
element is central to our decision of the matter now pending. Expounding on the meaning of
the tortious conduct element, this Court stated in Bower:
3. Tortious Conduct. Liability for medical monitoring is
predicated upon the defendant being legally responsible for
exposing the plaintiff to a particular hazardous substance. Legal
responsibility is established through application of existing
theories of tort liability. 'Recognition that a defendant's conduct
has created the need for future medical monitoring does not
create a new tort. It is simply a compensable item of damage
when liability is established under traditional theories of tort
recovery.' . . . This is not to say that a plaintiff may not, as a
matter of pleading, assert a separate cause of action based upon
medical monitoring; rather, it means that underlying liability
must be established based upon a recognized tort _ e.g.,
negligence, strict liability, trespass, intentional conduct, etc.
206 W.Va. at 142, 522 S.E.2d at 433 (emphasis added) (internal citations omitted). Hence,
it is necessary to examine whether or not Respondents' claim based on the recognized tort of
negligence is a legally sufficient independent cause of action within the context of an
employer/employee relationship.
Respondents in this case claim no present injury and on that basis contend that
their claim falls outside of the provisions of the Workers' Compensation law. In support of
this position, Respondents direct us to this Court's decision in Jones v. Rinehart & Dennis
Co., 113 W.Va. 414, 168 S.E. 482 (1933), wherein it was held that employers are not exempt
from liability when a disease caused by the negligence of an employer is noncompensable
under Workers' Compensation. Id. at Syl. Pt. 4. We do not believe that the Jones decision has
bearing on the instant case. At the time Jones was decided, the only occupational diseases
covered by Workers' Compensation were those specifically enumerated in the statute, West
Virginia Code § 23-4-1 (1931). By amendment in 1949, the Legislature expanded Workers'
Compensation coverage to any occupational disease proven to be incurred in the course of and
resulting from employment. Powell v. State Workmen's Compensation Comm'r, 166 W.Va.
327, 273 S.E.2d 832 (1980). Accordingly, the type of potential harm Respondents allege falls
within the definition of occupational disease contemplated by the Legislature as within the
scope of Workers' Compensation and to which the employer immunity provision of the
Workers' Compensation Act may apply.
The employer immunity provision of the Workers' Compensation law appears
in West Virginia Code § 23-2-6 (2003) (Repl. Vol. 2005), which states in relevant part:
[a]ny 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 by 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. . . .
The sole exception to the immunity provision in the Workers' Compensation statutes is
discussed in West Virginia Code § 23-4-2 (2005) (Repl. Vol. 2005), where the intent of the
Legislature regarding employer liability is set forth as follows:
(d)(1)It is declared that enactment of this chapter and the
establishment of the workers' compensation system in this
chapter was and is intended to remove from the common law tort
system all disputes between or among employers and employees
regarding the compensation to be received for injury or death to
an employee except as expressly provided in this chapter and to
establish a system which compensates even though the injury or
death of an employee may be caused by his or her own fault or the
fault of a coemployee; that the immunity established in sections
six [§ 23-2-6] and six-a [§ 23-2-6a], article two of this chapter is
an essential aspect of this workers compensation system; that the
intent of the Legislature in providing immunity from common
lawsuit was and is to protect those immunized from litigation
outside the workers' compensation system except as expressly
provided in this chapter; that, in enacting the immunity provisions
of this chapter, the Legislature intended to create a legislative
standard for loss of that immunity of more narrow application and
containing more specific mandatory elements than the common
law tort system concept and standard of willful, wanton and
reckless misconduct; and that it was and is the legislative intent
to promote prompt judicial resolution of the question of whether
a suit prosecuted under the asserted authority of this section is or
is not prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section
and under sections six [§ 23-2-6] and six-a [§ 23-2-6a], article
two of this chapter may be lost only if the employer or person
against whom liability is asserted acted with “deliberate
intention”. . . .
We adhered to these statutory principles in O'Dell v. Town of Gauley Bridge,
188 W.Va. 596, 603, 425 S.E.2d 551, 558 (1992), when we explained that “persons covered
by workers' compensation forfeit their common law tort remedies against their employers,
absent willful injury.” (See footnote 3) In O'Dell, the constitutionality of West Virginia Code § 29-12A-
5(a)(11) was examined and upheld. In the course of that discussion we stated that “W.Va.
Code, 29-12A-5(a)(11), provides immunity to a political subdivision for all damages arising
from a tortious injury, not merely for those compensated by workers' compensation.” 188
W.Va. at 610, 425 S.E.2d at 565. The plaintiffs in O'Dell argued that, by using the phrase
“[a]ny claim covered by any workers' compensation law” in West Virginia Code § 29-12A-
5(a)(11), the Legislature intended to provide immunity only to the extent that plaintiffs are or
could be compensated for their injuries by the Workers' Compensation benefits received. The O'Dell plaintiffs interpreted the word “claim” to mean a claim for Workers' Compensation and
asserted on this premise that political subdivisions have no immunity from liability for
elements of damages not compensated by such benefits. In rejecting such limited meaning of
the term “claim,” this Court said in O'Dell that “it must be remembered that a claim is not
based on negligence. It encompasses a variety of statutory monetary benefits . . . some of
which are included in the normal tort claim.” 188 W.Va. 596, 610, 425 S.E.2d 551, 565. We
then concluded that West Virginia Code § 29-12A-5(a)(11) extends immunity to a political
subdivision for all damages in tort, not merely those compensated by Workers' Compensation.
In the case before us, Respondents in essence also urge a narrow reading of the
term “claim” by arguing that since there is no present injury, a Workers' Compensation claim
may not be maintained. We again refuse to assign such a limited meaning to the word “claim”
in light of the Legislature's expressed intention regarding employer immunity from suit. The
potential injury Respondents fear falls within the ambit of the Workers' Compensation system
as an occupational disease arising out of and during the course of employment for which
negligence actions against the employer are barred by the immunity provisions of the Workers'
Compensation law. (See footnote 4)
The immunity from liability afforded all employers participating in the Workers'
Compensation system through West Virginia Code § 23-2-6 protects employers, including a
political subdivision such as Martinsburg, against awards of medical monitoring damages based
on common law tort theories. Syllabus point three of Bowers by its terms indicates that
medical monitoring is only a compensable item of damage when liability is established under
traditional theories of recovery. Traditional theories of recovery are simply not available in
this instance since Workers' Compensation is intended to insulate Martinsburg as a
participating employer from incurring liability based upon common law grounds with regard
to occupational disease claims. Insofar as Respondents try to raise claims against the
employer for negligent conduct, emotional distress or the like, Martinsburg is protected by
the statutory remedy available through the Workers' Compensation system. (See footnote 5) Accordingly, the
immunity provision of the Governmental Tort Claims Act, granting immunity to political
subdivisions for “any claim covered by any workers' compensation law or any employer's
liability law” demands dismissal of this suit. W.Va. Code § 29-12A-5(a)(11).
Since the lower court's denial of the motion for judgment on the pleadings
represents a clear legal error, the writ of prohibition requested by Martinsburg is granted.