No. 12-1206 - Master Mechanical Insulation, Inc. v. Richard Simmons 

FILED 

November 21, 2013
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Davis, Justice, dissenting: 

In the case sub judice, the Court was asked to answer certified questions from 

the Circuit Court of Cabell County regarding the evidence that the employer in this deliberate 

intention action may introduce in defense of its alleged wrongdoing. Despite this Court’s 

established jurisprudence, the majority nevertheless has ignored our prior holdings, 

concluding, instead, that the defendant employer may assert, as a defense to its alleged 

misconduct, that its employee caused the specific unsafe working condition that resulted in 

his workplace injuries. The majority also has determined that the employer herein may 

relitigate whether its employee’s injuries occurred in the course of and as a result of his 

employment even though this matter already has been definitively determined by this Court. 

The majority’s decision of both of these issues is contrary to our prevailing precedent and is 

just plain wrong. Therefore, I dissent. 

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A. An Employer May Not Assert Its Employee’s Contributory Negligence
 

As a Defense to Its Employee’s Deliberate Intention Action
 

In Syllabus point 8 of Roberts v. Consolidation Coal Company, 208 W. Va. 

218, 539 S.E.2d 478 (2000), we succinctly held that “[w]hen an employee asserts a deliberate 

intention cause of action against his/her employer, pursuant to W. Va. Code §§ 23-4-2(b)-(c) 

(1991) (Cum. Supp. 1991), the employer may not assert the employee’s contributory 

negligence as a defense to such action.” As noted by the majority’s opinion, this holding 

remains good law and has not been overruled by this Court or by the majority’s decision in 

this case. Nevertheless, the majority has begun the gradual erosion of this tenet by permitting 

“[a]n employer in a ‘deliberate intent’ action brought pursuant to West Virginia Code § 23-4­

2(d)(2)(ii) (2010) [to] introduce evidence that is relevant to the issues of whether an 

employee’s conduct created a specific unsafe working condition[.]” Syl. pt. 4, in part, Maj. 

op. Absent a significant change in the law that warrants a marked departure from our 

established holding in Roberts or express statutory language to the contrary, the majority had 

no basis for departing from our prior precedent and has, by adopting this new Syllabus point, 

started down a slippery slope of using judicial prerogative to replace legislative wisdom 

regarding the parties’ burdens of proof in a statutory deliberate intention action. 

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1. Stare decisis requires allegiance to this Court’s prior holdings. “Absent 

some compelling justification for deviation, such as a change in the law or a distinguishable 

fact pattern, the doctrine of stare decisis requires this Court to follow its prior opinions.” 

State Farm Mut. Auto. Ins. Co. v. Rutherford, 229 W. Va. 73, 83, 726 S.E.2d 41, 51 (2011) 

(Davis, J., concurring, in part, and dissenting, in part). In other words, “[a]n appellate court 

should not overrule a previous decision recently rendered without evidence of changing 

conditions or serious judicial error in interpretation sufficient to compel deviation from the 

basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and 

uniformity in the law.” Syl. pt. 2, Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 

(1974). Accord Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 202, 112 S. Ct. 

560, 564, 116 L. Ed. 2d 560 (1991) (“[W]e will not depart from the doctrine of stare decisis 

without some compelling justification.” (citation omitted)). 

With respect to the specific nature of the case sub judice, we have explained 

that our allegiance to our prior decisions is most compelling in matters involving statutory 

interpretation. “Once this Court determines a statute’s clear meaning, we will adhere to that 

determination under the doctrine of stare decisis.” Appalachian Power Co. v. State Tax 

Dep’t of West Virginia, 195 W. Va. 573, 588 n.17, 466 S.E.2d 424, 439 n.17 (1995). Accord 

Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S. Ct. 2363, 2370, 105 L. Ed. 2d 

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132 (1989) (“Considerations of stare decisis have special force in the area of statutory 

interpretation[.]”). 

Despite their attempts to support their adoption of new Syllabus point 4 herein, 

the majority cannot make a credible argument to modify our prior holding because there has 

been no discernible change in the law, or the fact patterns to which it has been applied, since 

we announced our holding in Syllabus point 8 of Roberts. Rather, it goes without saying that 

the majority, itself, has recognized that there have been no perceptible alterations to the law 

since we rendered our ruling in Roberts insofar as my brethren have fully embraced Syllabus 

point 8 thereof by including it on the Syllabus page of the majority’s opinion and relying 

upon it in support of its decision of the case sub judice. “[W]ithout evidence of changing 

conditions or serious judicial error in interpretation sufficient to compel deviation”1 from 

existing precedent, the majority could not diverge from our prior holding in Roberts and, in 

fact, did not do so. However, by adopting new Syllabus point 4, whereby an employer may 

now reference the fault of its employee in causing or contributing to the allegedly unsafe 

working condition, the majorityessentiallyhas overruled Syllabus point 8 of Roberts because 

the effect of its holding is to permit an employer to do precisely what Roberts admonished 

it could not do: assert an employee’s contributory negligence as a defense to a deliberate 

1

Syl. pt. 2, in part, Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 

(1974). 

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intention cause of action. I do not agree with the majority’s decision to depart so markedly 

from our existing precedent absent a compelling reason to do so. Accordingly, I dissent. 

2. This Court may not substitute its judgment for a clear expression of 

legislative intent. In granting injured employees a statutory right to bring a deliberate 

intention claim against their employers, the Legislature carefully has enumerated the 

elements of the cause of action and indicated that the injured employee has the burden of 

proving that his/her injuries resulted from the employer’s deliberate intention: 

(2) The immunity from suit provided under this section 

and under sections six [§ 23-2-6] and six-a [§ 23-2-6a], article 

two of this chapter may be lost only if the employer or person 

against whom liability is asserted acted with “deliberate 

intention.” This requirement may be satisfied only if: 

. . . . 

(ii) The trier of fact determines, either through specific 

findings of fact made by the court in a trial without a jury, or 

through special interrogatories to the jury in a jury trial, that all 

of the following facts are proven: 

(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; 

(C) That the specific unsafe working condition was a 

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violation of a state or federal safety statute, rule or regulation, 

whether cited or not, or of a commonly accepted and wellknown safety standard within the industry or business of the 

employer, as demonstrated by competent evidence of written 

standards or guidelines which reflect a consensus safety 

standard in the industry or business, which statute, rule, 

regulation or standard was specifically applicable to the 

particular work and working condition involved, as contrasted 

with a statute, rule, regulation or standard generally requiring 

safe workplaces, equipment or working conditions; 

(D) That notwithstanding the existence of the facts set 

forth in subparagraphs (A) through (C), inclusive, of this 

paragraph, the employer nevertheless intentionally thereafter 

exposed an employee to the specific unsafe working condition; 

and 

(E) That the employee exposed suffered serious 

compensable injury or compensable death as defined in section 

one [§ 23-4-1], article four, chapter twenty-three whether a 

claim for benefits under this chapter is filed or not as a direct 

and proximate result of the specific unsafe working condition. 

W. Va. Code § 23-4-2(d)(2)(ii) (2005) (Repl. Vol. 2010).2 The statute does not, however, 

allow an employer to assert as a defense to a claim of deliberate intention its employee’s 

contributory negligence. See id. See also Roberts, 208 W. Va. at 236, 539 S.E.2d at 496 

2

An alternate method of proving an employee’s deliberate intention claim, 

which is not relevant to the instant proceeding, is provided by W. Va. Code § 23-4-2(d)(2)(i) 

(2005) (Repl. Vol. 2010). See W. Va. Code § 23-4-2(d)(2)(i) (providing that an employee 

may establish his/her employer acted with deliberate intention if “[i]t is proved that the 

employer or person against whom liability is asserted acted with a consciously, subjectively 

and deliberately formed intention to produce the specific result of injury or death to an 

employee. This standard requires a showing of an actual, specific intent and may not be 

satisfied by allegation or proof of: (A) Conduct which produces a result that was not 

specifically intended; (B) conduct which constitutes negligence, no matter how gross or 

aggravated; or (C) willful, wanton or reckless misconduct[.]”). 

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(“Apart from intoxication and a self-inflicted injury, however, the governing statutes do not 

provide employers with any other defenses to a claim for workers’ compensation benefits. 

Similarly, our adoption, by way of implication, of additional defenses sounding in 

contributory negligence would be inconsistent with the definite legislative intent . . . ‘to 

establish a system which compensates even though the injury or death of an employee may 

be caused by his own fault.’ W. Va. Code § 23-4-2(c)(1).”3 (emphasis added; internal 

footnote omitted)). 

Be that as it may, the majority essentially has added an employer’s defense of 

contributory negligence to the statutory deliberate intention cause of action by holding, in 

new Syllabus point 4, in part, that an employer “may introduce evidence that is relevant to 

the issue[] of whether an employee’s conduct created a specific unsafe working condition.” 

(Emphasis added). Because the governing statute does not specifically permit employers to 

assert this defense, this Court is not at liberty to add to the workers’ compensation statutes 

that which the Legislature purposefully has omitted. 

It has been held repeatedly by this Court that the right to 

workmen’s compensation benefits is based wholly on statutes, 

in no sense based on the common law; that the rights, remedies 

and procedures thereby provided are exclusive; that the 

commissioner is authorized to award and pay benefits and that 

3

The statutory language quoted by Roberts that formerly was found in W. Va. 

Code § 23-4-2(c)(1) (1991) (Cum. Supp. 1991) is now set forth in W. Va. Code § 23-4­

2(d)(1) (2005) (Repl. Vol. 2010). 

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a claimant is authorized to demand payment of benefits only in 

such manner and in such amounts as are authorized by 

applicable statutes. 

Bounds v. State Workmen’s Comp. Comm’r, 153 W. Va. 670, 675, 172 S.E.2d 379, 382-83 

(1970) (citations omitted). 

As such, this Court is bound to enforce the express legislative intent of the 

workers’ compensation statutes, including those that govern deliberate intention actions. “It 

is not the province of the courts to make or supervise legislation, and a statute may not, under 

the guise of interpretation, be modified, revised, amended, distorted, remodeled, or 

rewritten[.]” State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 145, 

107 S.E.2d 353, 358 (1959) (citation omitted). Neither is this Court 

at liberty to read into a statute that which simply is not there. . . . 

“If the Legislature has promulgated statutes to govern a specific 

situation yet is silent as to other related but unanticipated 

corresponding situations, it is for the Legislature to ultimately 

determine how its enactments should apply to the latter 

scenarios.” 

Kasserman & Bowman, PLLC v. Cline, 223 W. Va. 414, 421, 675 S.E.2d 890, 897 (2009) 

(quoting Soulsby v. Soulsby, 222 W. Va. 236, 247, 664 S.E.2d 121, 132 (2008)). Accord 

Young v. Apogee Coal Co., LLC, No. 12-0835, ___ W. Va. ___, ___, ___ S.E.2d ___, ___, 

slip op. at 18 (Nov. 6, 2013) (noting, with respect to petitioner’s policy arguments regarding 

deliberate intention statutory provisions, that “it is simply not the place of this Court to opine 

as to the wisdom or efficacy of those concerns in this area which the Legislature has 

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unmistakably set out to manage wholly by statutory enactment” (citations omitted)); Banker 

v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (“It is not for this Court 

arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate 

through judicial interpretation words that were purposely included, we are obliged not to add 

to statutes something the Legislature purposely omitted.” (citations omitted)). 

These authorities make clear that this Court cannot substitute its judgment in 

a matter reserved to the legislative branch of government. Accordingly, I dissent from the 

majority’s decision to grant to employers an additional defense to a statutory deliberate 

intention cause of action that has not been sanctioned by the Legislature. 

B. Mr. Simmons’ Status As an Employee At the Time of His Accident
 

Has Already Been Finally Determined and May Not Be Relitigated
 

Through its resolution of the third certified question in this case, the majority 

essentially has decided to allow the employer herein to dispute that Mr. Simmons sustained 

his injuries in the course of and as a result of his employment even though this issue has been 

definitively determined by this Court in a prior proceeding holding Mr. Simmons’ claim for 

workers’ compensation benefits to be compensable as a work-related injury. See generally 

Simmons v. West Virginia Office Ins. Comm’r/Master Mech., Insulation, Inc., No. 33788 

(W. Va. Sept. 19, 2008) (mem. order). Historically, this Court has frowned upon the 

relitigation of issues that have been finally determined in a proceeding involving the same 

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issues and the same parties insofar as such determinations serve as collateral estoppel to 

prevent the revisiting of decided issues in subsequent proceedings involving the same issues 

and the same parties. 

We previously have held that “[c]ollateral estoppel is designed to foreclose 

relitigation of issues in a second suit which have actually been litigated in the earlier suit 

even though there may be a difference in the cause of action between the parties of the first 

and second suit.” Syl. pt. 2, in part, Conley v. Spillers, 171 W. Va. 584, 301 S.E.2d 216 

(1983). This preclusive effect of collateral estoppel operates as follows: 

Collateral estoppel will bar a claim if four conditions are 

met: (1) The issue previously decided is identical to the one 

presented in the action in question; (2) there is a final 

adjudication on the merits of the prior action; (3) the party 

against whom the doctrine is invoked was a party or in privity 

with a party to a prior action; and (4) the party against whom the 

doctrine is raised had a full and fair opportunity to litigate the 

issue in the prior action. 

Syl. pt. 1, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Furthermore, “[i]n order for 

. . . collateral estoppel to apply, the party against whom the doctrine is invoked must have 

been a party in the prior action or in privity with a party in the prior action.” State ex rel. 

Clifford v. West Virginia Office of Disciplinary Counsel, 231 W. Va. 334, ___, 745 S.E.2d 

225, 234 (2013). 

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Applying this analysis to the facts of the case sub judice, it is apparent that the 

issue of whether Mr. Simmons had volunteered to perform the work in question is of no 

moment because, regardless of whether such work was voluntary or whether his employer 

had commanded him to do the same, this Court already has determined that Mr. Simmons 

was injured in the course of and as a result of his employment when we held his claim for 

workers’ compensation benefits to be compensable. See generally Simmons, No. 33788 

(W. Va. Sept. 19, 2008). In other words, we previously concluded that Mr. Simmons, 

whether voluntarily or not, was performing work for his employer when he sustained the 

injuries he herein ascribes to his employer’s deliberate intention. This same issue was 

litigated in Mr. Simmons’ workers’ compensation claim; we rendered a final decision on the 

issue therein; Mr. Simmons’ employer was a party to the compensability proceeding; and, 

during that case, the employer vigorously challenged Mr. Simmons’ ability to receive 

workers’ compensation for his injuries claiming that he was at the job site voluntarily and, 

thus, was not injured in the course of and as a result of his employment. See Syl. pt. 1, State 

v. Miller, 194 W. Va. 3, 459 S.E.2d 114. 

Despite the definitive nature of our earlier determination, the majority has 

found it prudent to allow Mr. Simmons’ employer to “argu[e] that Mr. Simmons voluntarily 

agreed to remove the decontamination unit from the second floor of Building B.” Maj. op. 

at p. 17. Whether Mr. Simmons volunteered for this specific job assignment or not, our prior 

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ruling and the indisputable evidence in this case establish that the employer gave Mr. 

Simmons specific instructions and directions regarding the removal of this equipment. 

Moreover, whether Mr. Simmons volunteered for this particular job assignment is of no 

moment insofar as we already have determined that he was injured in the course of and as 

a result of his employment. Therefore, it is clear that the doctrine of collateral estoppel 

applies to bar the relitigation of this issue in the case sub judice. To the extent the majority 

has reached a contrary conclusion, I respectfully dissent. 

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