West Virginia Legislature Proposes Substantial Changes to Deliberate Intent Statute

West Virginia Legislature Proposes Substantial Changes to Deliberate Intent Statute

JURIST Guest Columnist Christopher Edwards, of Bowles Rice, LLP in Charleston, WV, discusses the proposed legislative changes to West Virginia’s workers’ compensation scheme …

Workers’ Compensation programs provide important benefits to both employees and employers. If an employee is injured or exposed to illness while on the job, the applicable Workers’ Compensation Fund will attempt to compensate that employee for the impairment caused by his illness or injury by granting him a monetary award. In return for paying into the Workers’ Compensation Fund, employers are generally immune from any tort liability that could arise as a result of that employee’s damages.

However, some workers’ compensation schemes provide for an exception to this general rule of immunity that is commonly referred to as the “deliberate intent” exception. In these states, the deliberate intent exception is a narrow one that applies when an employer acts with a “deliberate intention” to harm its employee.

The 1978 West Virginia Supreme Court of Appeals case of Mandolidis v. Elkins Indus., Inc. was the catalyst that inspired West Virginia’s current deliberate intent law. After Mandolidis, the West Virginia Legislature adopted several of the rules articulated in that decision.

On its face, West Virginia’s current deliberate intent statute is unexceptional. The statute mandates that a participating West Virginia employer can lose its workers’ compensation immunity in two instances. The first such instance is when an employer acted with a consciously, subjectively and deliberately formed intent to injure or kill an employee.

The second exception is broader and can only be met if five criteria are satisfied. These criteria can be summarized as requiring:

(A) The existence of a specific unsafe working condition which presented a high degree of risk and a strong probability of serious injury/death;

(B) The employer’s actual knowledge of that specific unsafe working condition and the risk it posed;

(C) That the specific unsafe working condition violated a state or federal safety statute, rule or regulation, or violated a commonly accepted and well-known safety standard (as demonstrated by written evidence) within the industry or business of the employer;

(D) That despite the existence of the first three criteria, the employer nonetheless exposed the employee to the specific unsafe working condition; and

(E) That the employee suffered a compensable injury or death as a result of being exposed to the specific unsafe working condition.

Pursuant to West Virginia law, all five of these elements must be met in order for a plaintiff/employee to successfully prove deliberate intent. Failure to satisfy even one of these elements necessitates that a deliberate intent claim be resolved in favor of the defendant/employer. However, in practice, this requirement is sometimes not strictly applied. As such, West Virginia has a relatively high number of deliberate intent cases per year, and parties routinely settle claims that would probably not be viable in other states.

Ten members of the West Virginia House of Delegates and six members of the West Virginia Senate are trying to change the language of the state’s deliberate intent statute in an effort to modify how it’s applied. West Virginia House Bill 2011 (“HB 2011”) and Senate Bill No. 11 (“SB 11”) were introduced this January. The bills attempt to modify the deliberate intent statute in an effort to restrict that cause of action in West Virginia. Thus far, these efforts have concentrated exclusively on limiting the second method by which a plaintiff/employee can claim a case of deliberate intent.

The original drafts of the bills proposed three changes to the second exception. Perhaps the most significant of these proposed changes was the addition of language that articulated what was necessary in order for a plaintiff/employee to satisfy the “actual knowledge” requirement of subparagraph (B), stated above. These bills made clear that “constructive knowledge,” or proof of what an employer should have known, are not enough to satisfy the actual knowledge standard and further stated that such actual knowledge can never be presumed. The bills further noted that these proposed changes were in direct response to the 2013 West Virginia Supreme Court case McComas v. ACF Industries, LLC. In that case, the West Virginia Supreme Court said that employers should not be allowed to turn a “blind eye” to workplace hazards. McComas further held that if a safety statute, rule, regulation or commonly accepted and well-known safety standard within the relevant industry imposed a specific duty upon the employer to inspect for a given danger and that such inspection would have revealed the specific unsafe working condition at issue, that the employer may be found to have actual knowledge of the specific unsafe working condition for purposes of subparagraph (B).

On January 30, 2015, the West Virginia House Judiciary Committee substituted the original draft of HB 2011 for a modified version of the bill. This new version both adds to and subtracts from the changes proposed in the original draft, but nonetheless contains similar language explaining the requirements necessary for a plaintiff/employee to satisfy the actual knowledge prong of subparagraph (B).

There have been mixed reactions to the bills. Proponents argue the proposed changes would make West Virginia’s deliberate intent law more consistent with the law of other states. These proponents further claim that such tort reform is necessary in order to attract new business to the state and protect existing businesses from expensive litigation. Supporters of the bill also point out that deliberate intent lawsuits will remain an option when an employer acts intentionally or truly possessed actual knowledge of the specific unsafe working condition. Opponents argue the bill puts the state’s workers at risk and unfairly insulates businesses from liability. This opposition cites events like the 2010 Big Branch mine disaster as proof that West Virginia needs a robust deliberate intent law.

While the bills being considered in the legislature are still in their early stages, this proposed legislation could result in significant changes to the deliberate intent law of a state that has historically applied that law in a very distinctive way. While tort reform is usually not the most publicized of issues, anyone who has a job or runs a business in West Virginia could be affected by this change that would modify more than 35 years of West Virginia’s Workers’ Compensation law. Such a proposed change is certainly worth following.

Christopher Edwards is an associate attorney at Bowles Rice, LLP, in Charleston, West Virginia. His practice focuses on litigation, deliberate intent, workplace safety and education law. Christopher received his JD from Washington and Lee University School of Law, where he graduated cum laude.

Suggested citation: Christopher Edwards, West Virginia Legislature Proposes Substantial Changes to Deliberate Intent Statute, JURIST – Professional Commentary, Feb. 5, 2015, http://jurist.org/professional/2015/02/christopher-edwards-workers-compensation.php.


This article was prepared for publication by Joseph Macklin, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org.

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