WV Update – The Supreme Court of Appeals of West Virginia Finds Jury Permitted to Consider Statutorily Immune Non-Party in Fault Apportionment
On March 21, 2022, the Supreme Court of Appeals of West Virginia issued an opinion in State ex rel. March-Westin Co. v. Gaujot, 2022 W. Va. LEXIS 201 (W. Va. 2022), holding, in part, that a statutorily immune party must still be considered for purposes of fault apportionment under West Virginia Code § 55-7-13d.
In January 2018, March-Westin, Co. was serving as general contractor on a renovation project of the Monongalia County courthouse plaza. David Raymond Weston was working on the project as an employee of the County Commission. He and another county employee were lowering a light pole to the ground with a rope when a third employee shifted the bottom of the cut pole and injured Mr. Weston. Following this incident, Mr. Weston resolved his Workers Compensation claim with the County Commission and separately filed suit against March-Westin related to his injuries.
March-Westin filed a notice under West Virginia Code §55-7-13d claiming that some or all of the fault should be attributed to Mr. Weston’s employer, the County Commission. Mr. Weston moved to strike such notice based on the County Commission’s status as statutorily immune and because March-Westin failed to allege deliberate intention by the County Commission. The circuit court agreed and granted Mr. Weston’s motion to strike, finding that (1) West Virginia Code §55-7-13d did not allow apportionment of fault to a statutorily immune nonparties; (2) that provision also did not allow apportionment of fault without March-Westin proving “deliberate intent” by the County Commission; and (3) that apportionment of fault to Mr. Weston’s employer would cause an “inequitable double reduction” due to the worker’s compensation benefits already paid to Mr. Weston. The circuit court furthermore reasoned that March-Westin could not argue to the jury that the County Commission was wholly or partially at fault for Mr. Weston’s injuries because Mr. Weston had already successfully resolved his workers’ compensation claim with the County Commission. As such, the circuit court granted Mr. Weston’s motion to strike and forbade any consideration of the County Commission’s fault at trial. March-Westin sought a writ of prohibition from the Supreme Court of Appeals to prevent the circuit court from enforcing its order to strike the County Commission from the verdict form as a nonparty defendant to which the jury could assign fault.
Statutory Immunity: There was no dispute that the County Commission was statutorily immune by virtue of its settlement of Mr. Weston’s workers’ compensation claim such that Mr. Weston could not recover any additional damages against it at trial. The Supreme Court of appeals distinguished between apportioning liability and apportioning fault under West Virginia Code §55-7-13d, finding that a prior settlement with a nonparty would not prohibit a trier of fact from considering “the fault of all persons who contributed to the alleged damages regardless of whether the person was or could have been named as a party to the suit.” (emphasis in original). The Court further reasoned that any apportionment of fault by the jury as to a nonparty would not affect that nonparty’s immunity, and was assessed solely for purposes of apportioning liability to the parties. As such, the Supreme Court of Appeals held, “in assessing percentages of fault under West Virginia Code §55-7-13d, the trier of fact must consider the fault of all persons who contributed to the alleged damages regardless of whether immunity or some other principle of law would prevent such person from being named as a party to the suit.”
Deliberate Intent: The Supreme Court of Appeals further addressed the question of whether March-Westin was required to show “deliberate intention” by the County Commission in order to consider the Commissions in apportioning fault. Generally, the worker’s compensation statute provides for “deliberate intention” liability as an exception to the rule of statutory immunity and allows an employee to seek excess compensation for an employer’s particularly egregious conduct. The Court again distinguished between liability and fault, finding that the showing of “deliberate intention” pertained only to overcoming statutory immunity for purposes of imposing liability, not apportioning fault. Therefore, the Court held, “when a defendant seeks to have fault assessed to a nonparty employer pursuant to West Virginia Code §55-7-13d,” the defendant need only “show that the nonparty employer’s act or omission was a proximate cause of the employee’s injury or death and was a breach of a legal duty of some kind.” For those reasons, the Supreme Court of Appeals ruled that March-Westin was permitted to present evidence of the County Commission’s degree of fault for Mr. Weston’s injuries at trial.
Double Reduction: Although the circuit court found that apportioning fault to the County Commission would cause “inequitable double reduction” due to the County Commission’s right to recover workers’ compensation benefits already paid to Mr. Weston, the Supreme Court of Appeals found such ruling was clear error. Specifically, the Court held that “the solution plaintiff propose[d] create[d] its own absurdity: that defendants be liable for their own portion of fault and for the County Commission’s portion of fault”. As such, the Court would not seek to find absurdity in the effect of §55-7-13d as the question of propriety of the worker’s compensation lien was beyond the scope of the issue of apportionment of fault. The Supreme Court therefore ruled that if the fault apportionment statutes caused an unanticipated impact on other statutes, it would be the Legislature’s duty to address such consequences.
In so reasoning, the Supreme Court of Appeals held “that the circuit court committed clear error in ruling that the County Commission could not be named as a nonparty defendant under West Virginia Code §55-7-13d and, further, that the statute does not require March-Westin to meet the deliberate-intention standard in order for fault to be assigned to the County Commission. The Court granted the writ of prohibition and remanded the case to the circuit court.
Chief Justice John A. Hutchinson issued a separate opinion, concurring that West Virginia Code §55-7-13d allowed apportionment of fault as to a statutorily immune employer, but dissenting as to the Court’s finding that March-Westin was required only to show that the County Commission proximately caused Mr. Weston’s injuries by breaching a duty of some kind rather than showing deliberate intention under West Virginia Code §23-4-2.
