STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

National Union Fire Insurance Company of Pittsburgh FILED 

Pennsylvania, Petitioner June 24, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 12-0455 (Wyoming County 10-C-221) OF WEST VIRGINIA 

Timothy Tyree,
 

Plaintiff Below, Respondent
 

MEMORANDUM DECISION 

Petitioner National Union Fire Insurance Company of Pittsburgh, Pennsylvania, by 

counsel Jeffrey B. Brannon, Philip J. Sbrolla, and Gerald E. Lofstead III, appeals the order of the 

Circuit Court of Wyoming County entered March 8, 2012, which granted respondent’s motion to 

reduce a worker’s compensation statutory subrogation lien. Respondent Timothy Tyree, by 

counsel Guy Bucci, Mark A. Barney, and Christopher J. Heavens, filed a response. Petitioner 

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. 

Respondent was employed as a “red hat,” an underground coal miner in training, by 

Newhall Contracting, Inc., and Parsley Enterprises, Inc. (Parsley). He worked at Brooks Run 

Mining, LLC (Brooks Run), and Alpha Natural Resources, LLC (Alpha), Wyoming No. 2 Mine. 

Parsley purchased workers’ compensation insurance from petitioner, a private carrier. 

Respondent was injured in a mining accident on August 8, 2010. His left foot was 

severely damaged and his toe was amputated. Petitioner determined the claim was compensable 

and has paid respondent $129,843 in workers’ compensation benefits. 

On December 30, 2010, respondent filed a civil action arising out of the mining accident 

in the Circuit Court of Wyoming County. He filed suit against his employer, Parsley, alleging a 

deliberate intent claim in accordance with West Virginia Code § 23-4-2(d)(2)(ii). He also 

brought negligence claims against third parties Brooks Run and Alpha. Following discovery and 

mediation, the parties reached a settlement agreement on December 14, 2011. The parties agreed 

to the apportionment of payment and responsibility between the defendants, with Brooks Run 

being responsible for 45% and Parsley being responsible for 55%. The settlement figure is 

confidential. Following that settlement, the parties herein commenced discussions concerning 

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repayment of the statutory workers’ compensation subrogation lien. 

On January 27, 2012, respondent filed a motion to strike or reduce the workers’ 

compensation subrogation claim with a notice of hearing, setting the matter for disposition 

before the circuit court. On February 6, 2012, petitioner filed a motion to strike respondent’s 

motion. 

The circuit court conducted a hearing in this matter on February 15, 2012. Following oral 

argument of counsel, the circuit court denied petitioner’s motion to strike respondent’s motion to 

reduce the subrogation lien. By order entered March 8, 2012, the circuit court granted 

respondent’s motion to reduce the workers’ compensation subrogation lien, and reduced the lien 

from $129,843 to $17,660. The court arrived at this amount, in part, based upon the 

apportionment agreed at settlement, with a deduction for attorney’s fees and costs.1 Through this 

appeal, petitioner asks this Court to reverse the circuit court’s decision regarding the reduction of 

the lien.2 

We articulated the controlling standard of review for rulings issued by a circuit court in 

Syllabus Point 2 of Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 

(1997), which states, 

In reviewing challenges to the findings and conclusions of the circuit court, we 

apply a two-prong deferential standard of review. We review the final order and 

the ultimate disposition under an abuse of discretion standard, and we review the 

circuit court’s underlying factual findings under a clearly erroneous standards. 

Question of law are subject to a de novo review. 

With these standards in mind, we proceed to determine whether the circuit court committed error 

by reducing the workers’ compensation statutory subrogation lien at issue in this case. 

In challenging the circuit court’s ruling granting respondent’s motion to reduce the 

subrogation lien, petitioner asserts two arguments. As an initial ground of appeal, petitioner 

contends that it was not provided appropriate notice of respondent’s motion, and not provided a 

meaningful opportunity to address the allegations.3 Petitioner also argues that it is entitled to the 

full amount of the statutorily created lien, minus attorney’s fees and costs. 

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The transcript of the hearing held in this matter reflects that respondent incurred costs in 

excess of $30,000, and that he had a contingent fee arrangement with his attorney. 

2

Alternatively, petitioner requests this Court remand the matter to the circuit court for an 

evidentiary hearing so that it may conduct discovery regarding respondent’s attorney’s fees and 

costs. However, at no time during the hearing held before the circuit court did petitioner move to 

undertake additional discovery. Therefore, we decline to remand this matter for further 

discovery. 

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Petitioner also asserts that the circuit court lacked jurisdiction in this matter because 

respondent failed to take action to join or properly serve petitioner. We find this argument to be 

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This Court finds petitioner’s first assignment of error to be without merit. Petitioner was 

clearly given the opportunity to be heard. It had notice of the hearing and filed a motion to strike 

respondent’s motion to reduce the statutory subrogation lien. Furthermore, petitioner appeared at 

the February 15, 2012, hearing before the circuit court, represented by three attorneys. 

We are similarly unconvinced by the argument that the circuit court ignored the plain and 

unambiguous language in the statute to deprive petitioner the full amount of its statutorily 

created lien. Under the West Virginia workers’ compensation scheme, a private carrier is entitled 

to subrogation. Nevertheless, such subrogation shall be reduced by attorney’s fees and costs and 

may be negotiated. The plain language of the statute provides no absolute right to full 

subrogation. West Virginia Code § 23-2A-1, states, in pertinent part, 

(a) Where a compensation injury or death is caused, in whole or in part, by 

the act or omission of a third party, the injured worker or, if he or she is deceased 

or physically or mentally incompetent, his or her dependents or personal 

representative are entitled to compensation under the provisions of this chapter, 

and shall not by having received compensation be precluded from making claim 

against the third party. 

(b) Notwithstanding the provisions of subsection (a) of this section, if an 

injured worker, his or her dependents or his or her personal representative makes 

a claim against the third party and recovers any sum for the claim: 

(1) With respect to any claim arising from a right of action that arose or 

accrued, in whole or in part, on or after January 1, 2006, the private carrier or selfinsured employer, whichever is applicable, shall be allowed statutory subrogation 

with regard to indemnity and medical benefits paid as of the date of the recovery. 

. . . 

(c) For claims that arose or accrued, in whole or in part, prior to the 

effective date of the reenactment of this section in 2009, and all claims thereafter, 

the party entitled to subrogation shall permit the deduction from the amount 

received reasonable attorneys’ fees and reasonable costs and may negotiate the 

amount to accept as subrogation. 

(d) In the event that an injured worker, his or her dependents or personal 

representative makes a claim against a third party, there shall be, and there is 

without merit. The determination of subrogation cannot be separated from the underlying 

workers’ compensation action as they are intertwined. A cause of action under West Virginia 

Code § 23-4-2(d)(2)(ii), is not separate and distinct from the workers’ compensation scheme. 

This Court has specifically recognized that a deliberate intent cause of action is governed by 

workers’ compensation statutory law. Roberts v. Consolidation Coal Co., 208 W.Va. 218, 234, 

539 S.E.2d 478, 494 (2000). It is within an employee’s claim under West Virginia Code § 23-4­

2(d)(2(ii) that an amount paid pursuant to workers’ compensation is to be determined and off-set. 

See W.Va. Code § 23-4-2(c). Therefore, the circuit court had jurisdiction over the subrogation 

claim as it flowed from respondent’s deliberate intent and third party negligence claims. 

Petitioner, as private insurance carrier of respondent’s employer, Parsley, took part in the 

settlement at issue in this matter. 

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hereby created, a statutory subrogation lien upon the moneys received which shall 

exist in favor of the Insurance Commissioner, private carrier or self-insured 

employer, whichever is applicable. 

W.Va. Code § 23-2A-1 (emphasis supplied). 

In this case, the circuit court considered the particular facts and circumstances as 

represented by the parties’ counsel at the hearing. Thereafter, the circuit court made specific 

factual findings, including: 

6. That one of the Plaintiff’s claims was alleged as a first party or deliberate intent 

claim against Parsley and the other claim alleged was a third party or negligence 

claim against Defendant Brooks Run. The settlement effectively apportioned the 

recovery through the parties’ agreement by requiring Brooks Run to pay fortyfive percent (45%) of the settlement and Parsley and another entity fifty-five 

percent (55%). 

7. That as a result of the parties’ agreement, equivalent of a final order of the 

Court apportioning liability, the Plaintiff could not possibly recover fifty-five 

percent (55%) of the workers compensation benefit paid on behalf of the 

employer by its private insurer because the employer is permitted as a matter of 

law an offset or credit for all such payments, or in this case, its agreed upon share. 

Upon consideration of the facts and arguments presented, the circuit court ordered 

respondent to pay petitioner the sum of $17,600, to resolve the subrogation claim arising out of 

the workers’ compensation statute. The circuit court found this pro rata amount was based upon 

the responsibility apportionment petitioner, and its agent, Parsley, agreed to at the settlement, 

with a deduction for attorney’s fees and costs. 

Upon our review of the record, this Court finds that the circuit court did not abuse its 

discretion in this matter. Petitioner, a private workers’ compensation carrier, is entitled to the 

statutory subrogation lien. Nevertheless, under the plain language of the statute, this subrogation 

lien shall be reduced by attorney’s fees and costs and may be negotiated. See West Virginia Code 

§ 23-2A-1(c). Therefore, we find that the circuit court did not err in considering the settlement 

between respondent, Brooks Run, and Parsley, to reduce the amount of the subrogation lien. 

For the foregoing reasons, the decision of the Circuit Court of Wyoming County is 

affirmed. 

Affirmed. 

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ISSUED: June 24, 2013 

CONCURRED IN BY: 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

NOT PARTICIPATING: 

Chief Justice Brent D. Benjamin 

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