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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Richard Friel, 

Plaintiff Below, Petitioner 

vs) No. 12-1470 (Randolph County 11-C-199) 

Kenton Meadows Company, Inc., 

Defendant Below, Respondent 

MEMORANDUM DECISION

Petitioner Richard Friel, by counsel Roger D. Forman, appeals the order of the Circuit 

Court of Randolph County granting summary judgment in favor of respondent. Respondent 

Kenton Meadows Company, Inc., by counsel Kurt E. Entsminger, William J. Hanna, and Phillip 

Estep, filed a response in support of the circuit court’s order. Petitioner has filed a reply. 

This Court has considered the parties= briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

 Petitioner Richard Friel was injured on January 19, 2011, while employed as a rock 

crusher operator by Respondent Kenton Meadows Company, Inc. Petitioner’s normal duties 

consisted of controlling the feeding of rocks into the jaws of a rock crusher. At times, a specially 

installed hydraulic hammer was used to help break up larger rocks, thereby speeding up the 

overall rock crushing process. However, respondent had operated its rock crushing equipment at 

this quarry without the hydraulic hammer for approximately fifteen years before installing the 

hammer. Petitioner had worked at the quarry for approximately eight years. 

At the time of petitioner’s accident, the hammer was not in use and had not been in use 

for several days. During the course of the rock crushing operations, it was common for a large 

rock to become lodged in the jaws of the crusher. On the day of the incident, this occurred at 

least twice, once during the morning hours and once at approximately 4:00 p.m. According to the 

testimony of respondent’s employees, the normal procedure is to allow other rocks to continue to 

pass through the crusher until the larger rock becomes dislodged. Petitioner testified to the same, 

stating that the “normal routine was to run extra rock up on it to try to get it where it would feed 

through and get it to crush up.” 

On the first occasion of a lodged rock on the date in question, petitioner’s foreman, Ezra 

FILED 

October 18, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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Westfall, was present. At that time, petitioner followed the normal procedure and continued to 

feed other rocks into the machine until the large rock became dislodged. However, during the 

second incident of a lodged rock, Westfall was not present. Petitioner initially followed normal 

procedures and continued to feed rocks through the crusher in an attempt to dislodge the large 

rock. However, petitioner then climbed down from his operator’s station and entered the feeder 

area next to the jaws of the crusher. Prior to entering the machine, petitioner locked out and 

tagged the feeder but did not lock out and tag the jaws of the crusher; therefore, the jaws of the 

crusher continued to operate. Respondent’s employees testified that it was a known safety policy 

that employees were not to enter the feeder without locking out the jaws of the crusher or 

without putting on fall protection to prevent the employee from falling into the operating jaws. 

Petitioner also testified that he knew that entering the feeder in the manner he did was a violation 

of Mine Health and Safety Administration (“MSHA”) guidelines. In order to enter the feeder, 

petitioner passed around a safety cable that was in place to prevent a person from entering the 

feeder. He did not wear a harness or any other form of fall protection. Upon entering the feeder, 

he shoveled and threw rocks into the jaws of the crusher in an attempt to dislodge the larger rock. 

As he was doing so, a rock rolled down, struck him in the leg, and knocked him on top of the 

large rock that was lodged in the jaws of the machine. Two coworkers pulled petitioner to safety, 

but not before his leg was injured. 

Immediately following the accident, petitioner was transported to the hospital by 

Westfall. During the ride, petitioner and Westfall concocted a story that they agreed they would 

tell others regarding how the accident occurred in which they would report that petitioner injured 

his foot from slipping on a ladder due to snowy conditions. There is sharp dispute regarding 

whether petitioner was a willing participant in making up the story or whether Westfall coerced 

him into telling the false story. After this false story was discovered, Westfall was demoted from 

his supervisory position. 

As an employee of respondent, petitioner was covered under respondent’s healthcare 

plan, wherein respondent paid 75% of the cost of the healthcare premiums while petitioner paid 

25%. Prior to the incident in question, the 25% was deducted from petitioner’s checks. However, 

after petitioner was injured by the rock crusher, no money was collected because petitioner was 

not receiving a weekly check from respondent. Petitioner remained off work for fourteen 

months. Between January 19, 2011, and October 31, 2011, respondent continued to pay its 75% 

share of the premium, but petitioner did not pay his own 25% share. Moreover, during this same 

period, respondent paid petitioner’s 25% share. In August of 2011, respondent decided to initiate 

steps to terminate petitioner’s health insurance benefits due to his failure to pay his portion of the 

premium. Respondent’s personnel manager, Matt Dittman, contacted its insurance agent, Sherry 

Thomas. On October 11, 2011, respondent sent a letter to petitioner informing him that he had 

not paid his share of the premiums, and noted that if he did not return to work by October 28, 

2011, they would no longer continue to pay his premium. Petitioner did not respond to this letter 

and did not return to work. In pertinent part, the letter, drafted by Thomas then placed on 

letterhead by Dittman, stated as follows: 

Our records indicate that you have been away from work at Kenton Meadows 

Company Inc. since January 19, 2011. During this time period Kenton Meadows 
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Company Inc. has paid your medical benefits so you continue to be covered under 

the Kenton Meadows Company Inc. Group Medical Plan. 

Although Kenton Meadows Company Inc. has paid your premiums from January 

19, 2011 to current, effective October 28, 2011, if you have not returned to work, 

we will no longer pay your premium. 

If you do not return to work by October 28, 2011, you will terminate from the 

Kenton Meadows Company Inc. effective October 31, 2011, with the right to 

elect COBRA (Consolidated Omnibus Budget Reconciliation Act). 

Thereafter, Ceridian Company subsequently sent petitioner a COBRA notice advising him that 

he had the right to continue his health insurance benefits by paying the full amount of his 

premiums. The notice stated that the qualifying event for COBRA coverage was “termination of 

employment.” 

Petitioner then filed an action asserting claims of deliberate intent, fraud, and wrongful 

termination against respondent. Both petitioner and respondent filed motions for summary 

judgment, and a hearing was held on October 23, 2012. On November 15, 2012, the circuit court 

entered an order granting summary judgment in favor of respondent. As to the deliberate intent 

claim, the circuit court found that petitioner failed to prove all of the elements of West Virginia 

Code § 23-4-2(d)(2)(ii), specifically subparagraphs (A) and (B). The court found that the 

hydraulic hammer was not a safety device and was not required to run the rock crusher. The 

court also found no intentional exposure as there was no unsafe working condition and that 

petitioner’s actions were taken against the directives of his employers. As to the fraud count, the 

court concluded petitioner did not rely upon any false representations by respondent and he was 

not the victim of any deception, as he was a participant in the deception. As to wrongful 

termination, the circuit court found that there was no decision ever made to terminate petitioner. 

The court found that the letter contained a typographical error and that none of the 

communication should have been construed to terminate petitioner’s employment. Petitioner 

now appeals from the order granting summary judgment in favor of respondent. 

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. 

Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). “[T]he party opposing summary judgment must 

satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce 

evidence sufficient for a reasonable jury to find in a nonmoving party’s favor. Anderson [v. 

Liberty Lobby, Inc.], 477 U.S. [242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214 

[1986].” Williams v. Precision Coil, Inc., 194 W.Va. 52, 60, 459 S.E.2d 329, 337 (1995). 

Petitioner asserts three assignments of error on appeal. First, petitioner argues that the 

court erred by ruling that petitioner had not been wrongfully discriminated against in violation of 

West Virginia Code § 23-5A-1. Petitioner relies on the October 11, 2011, letter, arguing that the 

letter served as a termination notice and that he was terminated based on his injury. Respondent 

states that the letter related to the termination of petitioner’s health insurance benefits based on 

his failure to pay his portion of the premium, and although it contained a typographical error, the 
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letter clearly was not intended as a termination notice. 

“In order to make a prima facie case of discrimination under W.Va. Code, 23–

5A–1, the employee must prove that: (1) an on-the-job injury was sustained; (2) 

proceedings were instituted under the Workers’ Compensation Act, [§] W.Va. 

Code, 23–1–1 et seq.; and (3) the filing of a workers’ compensation claim was a 

significant factor in the employer’s decision to discharge or otherwise 

discriminate against the employee.” Syl. Pt. 1, Powell v. Wyoming Cablevision, 

Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991). 

Syl. Pt. 4, Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 741 S.E.2d 845 (2013). We 

agree with the circuit court’s finding in its “Proposed Order Granting Defendant’s Motions for 

Summary Judgment and Denying Plaintiff’s Motions for Summary Judgment” that “there is no 

credible evidence in this case from which it may reasonably be inferred that [respondent] made 

any decision to terminate [petitioner’s] employment.” This finding is further supported by this 

Court’s holding in Smith that a clerical error cannot be the basis of a workers’ compensation 

discrimination claim. The letter dealt solely with insurance benefits and COBRA coverage, and 

did not contain any of the normal terminology related to termination of employment. Thus, we 

find no error in the circuit court’s grant of summary judgment on the workers’ compensation 

discrimination claim. 

Next, petitioner argues that the court erred by ruling that petitioner had not proven a 

prima facie case of deliberate intent. Petitioner argues that the circuit court erred in finding that 

he had not proven two of the statutory elements found in West Virginia Code § 

23-4-2(d)(2)(ii)(A) and (B). The provisions the circuit court found unproven were as follow: 

(A) That a specific unsafe working condition existed in the workplace 

which presented a high degree of risk and a strong probability of serious injury or 

death; 

(B) That the employer, prior to the injury, had actual knowledge of the 

existence of the specific unsafe working condition and of the high degree of risk 

and the strong probability of serious injury or death presented by the specific 

unsafe working condition; . . . . 

This Court finds no error in the circuit court order granting summary judgment regarding the 

deliberate intent claim in this action. The circuit court concluded, as a matter of law, that the 

hydraulic hammer was not a safety device and was used only to expedite petitioner’s job. 

Moreover, the circuit court noted that respondent was never cited by MSHA for a safety 

violation regarding the absence of this hammer in the fifteen years it operated the quarry without 

the hammer, and even petitioner’s expert agreed that there was no legal requirement that the 

hammer be used with the rock crusher. As to petitioner’s allegation that he was required to enter 

the feeder in order to dislodge the large rock from the jaws of the crusher, we agree with the 

circuit court’s finding that there is no genuine issue of material fact in this regard. The facts show 

that petitioner was aware and had been previously warned that he was not to enter the feeder 

while the jaws of the crusher were still running and without fall protection. Thus, this Court 
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agrees with the finding that there was no specific unsafe working condition created by 

respondent. As we have previously stated, “[w]here an employee creates a specific unsafe 

working condition by not following expected procedures, a deliberate intention action cannot be 

maintained against the employer.” Mumaw v. U.S. Silica Co., 204 W.Va. 6, 12, 511 S.E.2d 117, 

123 (1998). Additionally, we find that there was no intentional exposure to an unsafe working 

condition. This Court finds that summary judgment as to this count was properly granted. 

Finally, petitioner argues that the court erred by granting summary judgment against 

petitioner in his claim that respondent committed a fraud against him. Specifically, petitioner 

argues that the foreman, Ezra Westfall, committed fraud by filing a false statement to MSHA, 

and by threatening petitioner with termination should he fail to agree to falsifying the story as to 

how the injury occurred. In West Virginia, the essential elements in an action for fraud are: 

(1) That the act claimed to be fraudulent was the act of the defendant or induced by 

him; (2) that it was material and false; that plaintiff relied upon it and was justified 

under the circumstances in relying upon it; and (3) that he was damaged because he 

relied upon it. 

Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981). We agree with the circuit court’s 

findings that petitioner did not prove fraud in this matter. Petitioner did not rely upon any false 

representations made by Westfall, as he was well aware of how the accident occurred. Moreover, 

as the circuit court noted, petitioner continued to tell the false story of how the accident occurred 

months afterward. Without showing that petitioner was a victim of a deception committed against 

him by petitioner or that he relied on the deception to his detriment, petitioner cannot prove an 

actionable claim for fraud. Thus, the grant of summary judgment was proper in this matter. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 18, 2013 

CONCURRED IN BY:

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II