In this case, Diana Savilla, as administratrix for the estate of Linda Kannaird,
filed a workers' compensation deliberate intent cause of action against Speedway
SuperAmerica under a theory that would permit damages to be distributed according to our
wrongful death statute. The circuit court dismissed the action on the grounds that the
workers' compensation statute did not authorize the cause of action brought by Ms. Savilla.
The majority opinion, relying upon dicta from a 1933 decision, reversed the circuit court's
decision. For the reasons set out below, I respectfully dissent.
Collins involved an appeal by the administratrix of the estate of a decedent who was killed during the course of his employment with the defendant. (See footnote 2) The plaintiff brought a cause of action against the employer alleging negligence and deliberate intent as theories of liability. A jury returned a defense verdict, and the plaintiff appealed. The only issue raised by the plaintiff in the appeal was that the trial court erred in ruling that compliance with the workers' compensation statute, by the employer, was a complete defense to both of her theories of liability. In Collins, this Court held that compliance with the workers' compensation statute was a defense to a negligence action, but not to a deliberate intent cause of action. This holding was set out in the sole syllabus point created by the opinion. (See footnote 3) In passing, the opinion in Collins commented upon the authority of the plaintiff to bring a cause of action against the employer in her capacity as administratrix of the decedent's estate. The sum total of the discussion on that specific issue was 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.
In the instant proceeding, the majority opinion relied upon the above dicta in Collins to permit Ms. Savilla to maintain the cause of action against Speedway on behalf of
Ms. Moschgat. I strongly assert that the majority opinion committed an error of law in
relying on the Collins' dicta.
Collins indicated that the passage “as if this chapter had not been enacted” was
intended to mean that a deliberate intent cause of action, on behalf of a widow/widower,
child or dependent, could be instituted in the name of a decedent's estate, as permitted under
our wrongful death statute. This is simply a legally wrong interpretation of the passage. The
correct meaning of this passage was stated in the case of Weis v. Allen, 147 Or. 670, 35 P.2d
478 (1934).
In Weis, the plaintiff filed a deliberate intent cause of action against his
employer after he was shot by a spring gun while on the employer's property. A jury
returned a verdict awarding the plaintiff general and punitive damages. The employer
appealed. One of the issues raised by the employer was that the plaintiff could not recover
punitive damages under the state's workers' compensation statute. The statute authorizing
a deliberate intent cause of action stated the following:
“If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman . . . shall have the privilege to take, under this act, and also have cause for, action against the employer, as if this act had not been passed, for damages over the amount payable hereunder.”
Weis, 147 Or. at 672, 35 P.2d at 479 (quoting Or. Code § 49-1828) (emphasis added). The opinion in Weis found that the language under the statute, “as if this act had not been passed,” permitted a recovery of punitive damages. The opinion explained this passage as follows:
Were it not for the special provision of our Code, the employee probably
would have to elect whether to pursue his remedy under the Workmen's
Compensation Act or sue at common law. Instead of compelling the injured
workman to elect at his peril which course to pursue, section 49-1828, Oregon
Code 1930, assures him at least the compensation which he would be entitled
to receive in any event for the injuries suffered, and in addition grants him the
right to avail himself of his common-law remedy.
. . . .
The wording of the statute . . . is that if the injury results from the deliberate
intention of the employer, the employee shall have cause of action against his
employer, “as if this act had not been passed,” for the recovery of damages in
a sum over and above that to which he is entitled as an award under the act.
The defendant does not dispute that at common law it would have been proper
to submit to the jury the question of punitive damages, in the light of the facts
in this case. The section of the act in question does not limit the amount of
recovery on the part of the injured employee, but creates an additional fund for
the payment of a part of the damages for injuries sustained.
Weis, 147 Or. at 683-84, 35 P.2d at 483. Weis is instructive in explaining that the phrase, “as
if this act had not been passed,” means that for the cause of action authorized by the workers'
compensation statute, a plaintiff is entitled to all remedies afforded by the law for injury or
death. The phrase means nothing more. (See footnote 4)
In this case, our workers' compensation statute provides that if an employee
is killed, a deliberate intent cause of action against the employer may be brought “as if this
[statute] had not been enacted.” W. Va. Code § 23-4-2(c). The quoted phrase does not mean
that in order for a widow/widower, child or dependent to bring a cause of action, it must be
done in the name of a decedent's estate as provided by our wrongful death statute. The
rationale for this is that our workers' compensation statute establishes the right to a cause of
action in specifically named plaintiffs, as discussed further below, such that no other
authority is required for bringing an action. Therefore, to the extent Collins may be read as
requiring a widow/widower, child or dependent to bring a cause of action in the name of a
decedent's estate, it was legally wrong. By adopting the Collins dicta, the majority opinion
has perpetuated this legal error.
To accept the logic of Collins and the majority opinion, I would also have to
conclude that persons who may recover under a deliberate intent cause of action are those
who may recover under our wrongful death statute. Under the present wording of our
wrongful death statute, persons who may recover include a decedent's “spouse and children
. . . brothers, sisters, parents and any persons who were financially dependent upon the
decedent[.]” W. Va. Code § 55-7-6(b). Ms. Savilla argued that she was a beneficiary in this
case because of our wrongful death statute and therefore sought damages under that statute.
The majority opinion, like Collins, has selectively prohibited use of the provision of our
wrongful death statute that permits recovery by those not mentioned in our workers'
compensation statute. This is disingenuous. Either the wrongful death statute has no
application to a deliberate intent cause of action, as I contend, or all of its provisions must
apply. The issue cannot legally be piece-mealed as the majority opinion has done in its
reliance upon Collins' ill-conceived dicta.
In essence, the ultimate point I make is that under W. Va. Code § 23-4-2(c),
a representative of the estate of a decedent is not authorized to bring a cause of action for a
widow/widower, child or dependent. Collins was wrong in suggesting this by way of dicta,
and the majority opinion is wrong in making this dicta the law in our State.
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.
W. Va. Code § 23-4-2(c). Under the statute, a deliberate intent cause of action exists for an
injury or death to an employee. For the purposes of my dissent, I will examine both causes
of action separately.
1. Nonfatal injury. Under W. Va. Code § 23-4-2(c), a deliberate intent cause
of action for an injury to an employee may be brought by “the employee, the widow,
widower, child or dependent of the employee[.]” In other words, for a nonfatal injury there
are four categories of plaintiffs under the statute: employee, widow/widower, child or
dependent. Obviously, if a nonfatal injury occurs, a “widow/widower” does not exist.
Therefore, our cases have logically and implicitly recognized that for a nonfatal injury
“widow/widower” means “spouse.” As a result of this implicit recognition that
“widow/widower” means spouse, our cases have not questioned the right of a spouse to bring
a separate claim in a deliberate intent cause of action for a nonfatal injury.
For example, in the case of Cecil v. D and M Inc., 205 W. Va. 162, 517 S.E.2d
27 (1999), the plaintiffs, Eric Cecil and his wife, Esther Cecil, brought a deliberate intent
cause of action against the employer as a result of injuries Mr. Cecil sustained during the
course of his employment. The jury returned a verdict in favor of the plaintiffs, and the
defendant appealed. This Court affirmed the jury verdict, but found the employer was
entitled to a reduction in the amount awarded by the jury. More importantly, for the purposes
of my dissent, this Court noted that “Mrs. Cecil was awarded compensatory damages for past
and future loss of consortium, kindly offices, society and companionship of her husband.” Cecil, 205 W. Va. at 171 n.11, 517 S.E.2d at 36 n.11. The award granted to Mrs. Cecil was
not made in the capacity of a widow because her husband was not dead. The award was
made to her in her capacity as a spouse of an injured employee. See Tolley v. ACF Indus.,
Inc., 212 W. Va. 548, 575 S.E.2d 158 (2003) (nonfatal deliberate intent cause of action where
spouse brought separate claim); Nutter v. Owens-Illinois, Inc., 209 W. Va. 608, 550 S.E.2d
398 (2001) (same); McBee v. U.S. Silica Co., 205 W. Va. 211, 517 S.E.2d 308 (1999) (same); Jones v. Patterson Contracting, Inc., 206 W. Va. 399, 524 S.E.2d 915 (1999) (same); Harris
v. Martinka Coal Co., 201 W. Va. 578, 499 S.E.2d 307 (1997) (same); Tolliver v. Kroger
Co., 201 W. Va. 509, 498 S.E.2d 702 (1997) (same); Blake v. John Skidmore Truck Stop,
Inc., 201 W. Va. 126, 493 S.E.2d 887 (1997) (same); Gentry v. Mangum, 195 W. Va. 512,
466 S.E.2d 171 (1995) (same); Sias v. W-P Coal Co., 185 W. Va. 569, 408 S.E.2d 321 (1991)
(consolidated actions wherein two of the cases involved claims by spouses).
This Court has never held that a deliberate intent cause of action for a nonfatal
injury is limited to the employee. We have assumed, as has the bench and bar, that W. Va.
Code § 23-4-2(c) extends such a cause of action to a spouse, child or dependent. See Roberts
v. Consolidation Coal Co., 208 W. Va. 218, 539 S.E.2d 478 (2000) (the injured employee,
his spouse and two children filed deliberate intent cause of action against employer).
2. Fatal injury. Although there has been no confusion in our cases as to who
may bring a cause of action for a nonfatal injury to an employee, the decision of the majority
opinion in this case has muddied the waters with respect to a fatal injury to an employee.
Under the majority opinion, a representative of a decedent's estate can bring a cause of action
for only a widow/widower, child or dependent; and any recovery can be distributed to only
the widow/widower, child or dependent. As I will demonstrate, this interpretation of W. Va.
Code § 23-4-2(c) by the majority opinion is legally wrong and grossly unsound.
To begin, W. Va. Code § 23-4-2(c) expressly states that a deliberate intent
cause of action for the death of an employee may be brought by “the employee, the widow,
widower, child or dependent of the employee[.]” In other words, for a fatal injury, there are
four categories of plaintiffs under the statute: employee, widow/widower, child or dependent.
Obviously, if a fatal injury occurs, the “employee” cannot bring a direct action. However,
just as our opinions have logically inferred “widow/widower” to mean spouse, so too have
we implicitly recognized that “employee” means the estate of the employee. See Michael v.
Marion County Bd. of Educ., 198 W. Va. 523, 482 S.E.2d 140 (1996) (spouse of decedent
brought 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)
(same). (See footnote 5)
This Court's implicit recognition that the estate of a deceased employee has a
separate cause of action was expressly addressed by the Supreme Court of Oregon in the case
of Kilminster v. Day Management Corp., 323 Or. 618, 919 P.2d 474 (1996).
In Kilminster, the father of a deceased employee brought a deliberate intent
cause of action against the employer on behalf of his son's estate. (See footnote 6) The lower courts (See footnote 7) rejected
the claim in part because the workers' compensation statute did not expressly provide a cause
of action for the estate of a decedent. The statute provided the following:
“If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may take under this chapter, and also have cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes.”
Kilminster, 323 Or. at 628, 919 P.2d at 480 (quoting Or. Rev. Stat. § 656.156(2)) (emphasis added). The Supreme Court reversed the ruling of the lower courts. In doing so, the opinion addressed the issue as follows:
Defendants argue, “[a]s a threshold matter, [that p]laintiff[ ] lack[s] standing to maintain a claim under” ORS 656.156(2), because that statute explicitly gives a right to bring an action under that subsection only to the worker, widower, child, or dependent of the worker. Defendants reason that, because a personal representative is not in any of those listed categories, plaintiff may not maintain this action. That argument is not well taken.
Under ORS 656.156(2), in the event of a worker's death resulting from
the employer's deliberate intention to produce such death, “the worker . . . may
. . . have cause for action against the employer, as if such [workers'
compensation] statutes had not been passed, for damages over the amount
payable under those statutes.” That statute thus removes the bar that otherwise
would prevent a worker from maintaining an action for damages against the
employer, even though the worker is dead. Logically, the only party who can
pursue that action, and thereby effectuate the substantive right afforded the
deceased worker by ORS 656.156(2), is the worker's personal representative.
Plaintiff is a person who may bring a claim, the bar to which has been removed
by ORS 656.156(2), in the circumstances.
Kilminster, 323 Or. at 629, 919 P.2d at 480.
Until the decision in the instant case, the reasoning used in Kilminster was the
basis for this Court's implicit recognition that the estate of a deceased employee had a
separate cause of action against an employer. Under today's majority opinion, a
representative of the employee's estate may bring a cause of action, but only on behalf of a
widow/widower, child or dependent. In other words, the majority opinion has abolished a
right granted to an employee to have a separate cause of action for his/her death through
his/her estate. See Zelenka v. City of Weirton, 208 W. Va. 243, 249, 539 S.E.2d 750, 756
(2000) (Davis, J., concurring) (observing that the deliberate intent death action “was not filed
in the circuit court by the spouse, children, or other dependents of the decedent[,] [because]
the decedent[] did not have a spouse, child or any other dependents”). This unacceptable
result was reached because the majority was determined to allow Ms. Savilla to stay in this
case, even though she ultimately recovers nothing under the ill-advised majority opinion. (See footnote 8)
In summation, under W. Va. Code § 23-4-2(c), if an employee sustains a
nonfatal injury, a separate deliberate intent cause of action is provided for the employee,
his/her spouse, child or dependent. Further, under the statute, if an employee dies, a separate
deliberate intent cause of action has been reserved for the estate of the employee, his/her
widow/widower, child or dependent. (See footnote 9) In the context of a death claim, the estate of an
employee is not authorized to bring a cause of action for a widow/widower, child or
dependent. The latter three categories of plaintiffs have been given independent causes of
action by W. Va. Code § 23-4-2(c).
Justice Starcher articulated the purpose of Rule 17(a) in Keesecker v.
Bird, [200 W. Va. 667, 490 S.E.2d 754 (1997)]. The opinion held that the
purpose of the rule is to ensure that the party who asserts a cause of action
possesses, under substantive law, the right sought to be enforced. Rule 17(a)
allows circuit courts to hear only those suits brought by persons who possess
the right to enforce a claim and who have a significant interest in the litigation.
The requirement that claims be prosecuted only by a real party in interest
enables a responding party (1) to avail him/herself of evidence and defenses
that he/she has against the real party in interest, (2) to assure him/her of finality
of judgment, and (3) to protect him/her from another suit later brought by the
real party in interest on the same matter.
Franklin D. Cleckley, Robin J. Davis, and Louis J. Palmer, Jr., Litigation Handbook on West
Virginia Rules of Civil Procedure, § 17(a), at p. 528-29 (2d ed. 2006). It is clear from the
text of Rule 17(a), and the purposes behind the rule, that the majority opinion is simply
wrong in granting Ms. Savilla standing to assert a deliberate intent cause of action on behalf
of Ms. Moschgat. (See footnote 10)
Ms. Savilla initiated this litigation against Speedway with the hopes of
recovering damages through our wrongful death statute. The majority opinion correctly
closed that door. With that door being closed, under the majority opinion Ms. Savilla has
absolutely no interest in the outcome of the litigation against Speedway. The majority has
expressly stated that she cannot obtain any recovery from Speedway. In spite of this fact, the
majority opinion nevertheless has permitted Ms. Savilla to continue the litigation against
Speedway on behalf of Ms. Moschgat. This decision sets horrendous precedent.
There are three extreme scenarios that can result from the majority decision,
all of which are present in the instant case. First, the majority opinion now permits lawyers
to intervene in a prior, validly commenced deliberate intent litigation on behalf of a client
that has no interest in the litigation. Second, the opinion permits an intervenor to oust the
only party who has an interest against an employer. Third, and most importantly, the
majority opinion allows the intervenor to control the destiny of the litigation. This latter
point is critical under the facts of the instant case because the record clearly demonstrates that
Ms. Savilla is hostile towards Ms. Moschgat. This hostility may very well cause Ms. Savilla
to adversely compromise the action in order to limit the amount of damages Ms. Moschgat
could recover. Obviously, Ms. Savilla's counsel will attempt to prevent this. But, ultimately,
the disposition of the claim is a decision to be made by the party bringing the action_not that
party's attorney.
All three of the above-described extreme scenarios form part of the reason that
Rule 17(a) requires litigation to be prosecuted by the real party in interest.