Marlin v. Bill Rich Construction
Annotate this Case
September 1996 Term
___________
No. 23121
___________
JEFFREY L. MARLIN, SR., ET AL.,
Plaintiffs Below, Appellants
v.
BILL RICH CONSTRUCTION, INC., ET AL.,
Defendants Below, Appellees
_______________________________________________________
Appeal from the Circuit Court of Wetzel County
Honorable John T. Madden, Judge
Civil Action No. 90-C-30-M
REVERSED AND REMANDED
_______________________________________________________
Submitted: September 11, 1996
Filed: November 15, 1996
James B. Stoneking
James G. Bordas, Jr.
Bordas, Bordas & Jividen
Wheeling, West Virginia
Attorneys for the Appellant
James D. Gray
Robert E. Gifford
Lori A. Dawkins
Steptoe & Johnson
Clarksburg, West Virginia
and
Larry Blalock
Jackson & Kelly
New Martinsville, West Virginia
Attorneys for the Appellee,
Wetzel County Board of Education
W. E. Mohler
Charleston, West Virginia
Attorney for the Appellees,
Gandee & Partners
John Gabhart
Thaxton & Johnstone
Charleston, West Virginia
Attorney for the Appellees,
Appalachian, Hart & Milam
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "W.Va. Code, 29-12A-5(a)(11), clearly contemplates immunity for political
subdivisions from tort liability in actions involving claims covered by workers' compensation
even though the plaintiff was not employed by the defendant political subdivision at the time
of the injury." Syllabus point 6, O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992).
2. The general rule of construction in governmental tort legislation cases
favors liability, not immunity. Unless the legislature has clearly provided for immunity
under the circumstances, the general common-law goal of compensating injured parties for
damages caused by negligent acts must prevail.
3. If the claims asserted by appellants would result in no benefits under any
workers' compensation law or any employer's liability law, that is to say, if there is no
recovery of benefits under such laws in lieu of damages recoverable in a civil action, then,
notwithstanding W.Va. Code § 29-12A-5(a)(11), such claims are not "covered" within the
meaning of the immunity statute and may be asserted in the courts of this State against a
political subdivision which is not their employer, and such recovery had as may be proved
under a recognized cause of action.
4. West Virginia Code § 23-4-1 requires that one who claims workers'
compensation benefits for occupational pneumoconiosis must show: (1) the present
existence of the disease or an aggravation of the disease which has been previously
contracted and (2) exposure to the risk of occupational pneumoconiosis for a substantial
period of time, including at least the specified minimum period of exposure while at work
in West Virginia
5. Under the definition and requirements for occupational pneumoconiosis
claims set forth in W.Va. Code § 23-4-1, it is not sufficient to prove only the fear of
eventually contracting occupational pneumoconiosis or to show some exposure to the risk
of contracting the disease for a period of time less than those periods set out in the statute.
6. In order to sustain a claim under workers' compensation for an occupational
disease other than occupational pneumoconiosis, the claimant must in fact and presently
suffer from the disease, just as in the case of occupational pneumoconiosis.
7. In light of the narrow language used by the Court in Breeden v. Workmen's
Compensation Commissioner, 168 W.Va. 573, 285 S.E.2d 398 (1981), the Legislature's
subsequent rejection of mental-mental claims, and the clear statutory requirements for
establishing a claim for occupational diseases or occupational pneumoconiosis, we decline to broaden our holding in Breeden to include the fear of contracting an occupational disease
or occupational pneumoconiosis.
8. Standing alone, the physical trauma or insult of inhaling asbestos fibers or
other dust-borne particles does not constitute an injury under W.Va. Code § 23-4-1, absent
the further showing that occupational pneumoconiosis has been contracted after exposure for
the time required by statute.
9. The principle set forth in syllabus point 2 of Ricottilli v. Summersville
Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629 (1992), is applicable in a cause of action
for negligent infliction of emotional distress.
10. "An individual may recover for the negligent infliction of emotional
distress absent accompanying physical injury upon a showing of facts sufficient to guarantee
that the emotional damages claim is not spurious." Syllabus point 2, Ricottilli v.
Summersville Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629 (1992).
11. A claim for emotional distress without an accompanying physical injury
can only be successfully maintained upon a showing by the plaintiffs in such an action of
facts sufficient to guarantee that the claim is not spurious and upon a showing that the
emotional distress is undoubtedly real and serious.
12. In order to recover for negligent infliction of emotional distress based upon
the fear of contracting a disease, a plaintiff must prove that he or she was actually exposed
to the disease by the negligent conduct of the defendant, that his or her serious emotional
distress was reasonably foreseeable, and that he or she actually suffered serious emotional
distress as a direct result of the exposure.
13. In addition to other factors which may be adduced in evidence to prove
that serious emotional distress arising from the fear of contracting a disease is reasonably
foreseeable, the evidence must show first, that the exposure upon which the claim is based
raises a medically established possibility of contracting a disease, and second, that the
disease will produce death or substantial disability requiring prolonged treatment to mitigate
and manage or promising imminent death.
14. Serious emotional distress based upon the fear of contracting a disease is
a question of fact to be determined by the trier of fact. It may proven with medical and
psychiatric evidence, based on a diagnosis made with or without physical manifestations of
the distress; however, any physical injury resulting from the emotional distress is further
evidence of the degree of emotional distress suffered. In determining "seriousness",
consideration should be given to whether the particular plaintiff is a "reasonable person,
normally constituted". For the purposes of such consideration, a reasonable person is an
ordinarily sensitive person and not a supersensitive person.
15. West Virginia Code § 29-12A-5(a)(10) provides immunity for a political
subdivision's inspection functions related to assuring compliance with a law or ordinance of
the political subdivision including, but not limited to, housing, fire, zoning, and health.
Albright, Justice:
Appellants, workers who engaged in construction work at Hundred High
School in Wetzel County, appealSee footnote 1 summary judgment entered in favor of appellee, the
Wetzel County Board of Education, in a civil action brought by appellants and members of
their households as a result of appellants being exposed to asbestos. The Circuit Court of
Wetzel County, in granting appellee's motion for summary judgment with regard to the
workers only, determined that appellants had suffered "injuries" compensable under workers'
compensation. The trial court concluded that exposure to asbestos fibers resulting in a fear
of contracting an asbestos-related disease, combined with physical manifestations of that
fear, including loss of sleep, loss of appetite, anxiety, weight loss, etc., constituted such
"injuries". Therefore, the trial court determined that appellants' claims were barred under
W.Va. Code § 29-12A-5(11) because of the Board's immunity, as a political subdivision,
from claims "covered by any workers' compensation law". We find that the grant of
summary judgment was erroneous and, therefore, reverse and remand for trial.
FACTS
As part of the renovation phase of a project involving Hundred High School
in Wetzel County, appellants, plaintiffs below, began work at the high school in May, 1988.
Appellants who worked on the project, as opposed to the members of their households, were
employees of subcontractors that were hired to perform the work. Prior to the beginning of
this work, the Wetzel County Board of Education (Board) retained an asbestos consultant,
in part to conduct a pre-construction survey of Hundred High School. Test results obtained
by the consultant confirmed that asbestos was present. The consultant prepared a letter dated
May 22, 1987, addressed to the Board, which stated, in part, that certain floor tiles contained
asbestos. The letter stated that the floor tile did not pose a health hazard in its present
condition, so long as it was not drilled, cut, or sanded.See footnote 2
Appellants contend that they were never notified that asbestos was present at
the site. Consequently, workmen drilled through the asbestos floor tiles to install pipe and
conduit. The workmen also encountered asbestos that was not disclosed in the consultant's
report. Appellants allege that they broke up asbestos heating pipes with sledgehammers and
tore out overhead insulation materials, which created substantial amounts of airborne dust
and debris.
According to appellants, Herb Stevey, a union steward, eventually questioned
Jim Long, a "coordinator" for the Board's construction projects, about the existence of
asbestos at the site. Appellants assert that Mr. Long insisted that the site was asbestos free.
Thereafter, Mr. Stevey and others requested that debris at the work area be tested for
asbestos. Appellants assert that all such requests were refused. Eventually, one of the
workers took samples of the debris, which were then sent to an independent laboratory. The
results from the lab were received on July 6, 1988, and showed that there was asbestos in the
debris. Thereafter, the workers walked off the job and notified federal authorities.
On July 7, 1988, Environmental Protection Agency (EPA) officials ordered
construction work to cease. EPA tests confirmed the existence of asbestos where appellants
had been working. According to appellants, John Heart, a representative of the asbestos
consulting company, admitted to EPA officials that he had knowledge of asbestos in the
heating pipes and that the failure to have the pipes abated was his oversight. The EPA
ordered that the debris be properly disposed of as asbestos.
The workmen returned to the work area on July 11, 1988, after the asbestos
consultant had advised that the site was asbestos free. However, the workmen observed that
the site was not clean. EPA officials subsequently advised the asbestos consultant to
properly perform the cleanup. The workmen ultimately returned to work on July 28, 1988.
A second exposure incident occurred in November, 1988, when Mr. Long
directed workmen to remove asbestos floor tile that remained at the site and take it to a
location at Mr. Long's residence. EPA officials were notified and discovered the illegal
dumping of the asbestos.
On February 22, 1990, this suit was filed against the Board of Education, the
general contractor, the architect, and the asbestos consultant on behalf of the workers who
were exposed to asbestos and members of their households. Although none of the workers
has been diagnosed with an asbestos-related disease, they allege that they were subjected to
a high degree of risk of contracting such an illness and they now suffer from emotional
distress, including fear of contracting an asbestos-related disease in the future. Moreover,
appellants contend that they will incur future expenses related to medical tests to determine
whether they have contracted an asbestos-related disease. The Board does not dispute the
workers' claim that they were exposed to asbestos.
The Board, the architect, and the asbestos consultant each filed motions for
summary judgment. By order entered April 20, 1995, the circuit court granted the Board's
motion as to appellants' claims and denied the motions of the architect and the asbestos
consultant. On May 13, 1995, appellants filed a motion to reconsider or, alternatively, for
amendment of the summary judgment to make it a final and appealable order. By order
entered May 22, 1995, the court denied appellants' motion to reconsider and amended its grant of summary judgment to make it a final and appealable judgment regarding appellants'
claims, leaving appellants' claims against the architect and consultant and the claims of
members of appellants' households to be further litigated. Appellants now appeal the grant
of that summary judgment.
STANDARD FOR REVIEW
On appeal, "[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). Moreover, "'[a]
motion for summary judgment should be granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify
the application of the law.' Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. pt. 2, Miller v. Whitworth, 193
W.Va. 262, 455 S.E.2d 821 (1995).
IMMUNITY
As previously stated, the trial court granted the Board's motion for summary
judgment based upon the Board's claim of immunity under W. Va. Code § 29-12A-5(a)(11),
which provides that: "A political subdivision is immune from liability if a loss or claim results from: . . . Any claim covered by any workers' compensation law or any employer's
liability law . . . ."See footnote 3
Appellants assign error to the court's ruling that the fear of contracting a future
disease, together with physical manifestations of that fear, is a compensable work-related
injury. Appellants contend that the court ignored the distinction between an occupational
disease and other injuries under West Virginia's workers' compensation law, W.Va. Code
§ 23-1-1, et seq. Moreover, appellants assert that because they have not yet manifested an
asbestos-related disease that resulted from their exposure at Hundred High School, they do
not suffer a compensable occupational disease under the workers' compensation statute
because such a disease must be presently suffered under our decision in Powell v. State
Workmen's Compensation Commissioner, 166 W.Va. 327, 273 S.E.2d 832 (1980).
Appellee Board argues in response that appellants are eligible to receive
workers' compensation benefits because they suffer from a mental condition that resulted
from the physical trauma and insult of breathing asbestos. Additionally, appellee asserts that
because appellants' mental conditions have produced physical disorders such as loss of sleep,
loss of appetite, weight loss, and headaches, their conditions are compensable under our
workers' compensation law. Finally, appellee argues that appellants are covered even for
a "so-called mental-mental" claim because their injuries occurred prior to the July, 1993
enactment of W.Va. Code § 23-4-1f, "the purpose" of which is "to clarify that so-called
mental-mental claims are not compensable" under our workers' compensation law. Thus, the
Board concludes, it is immune from the claims of appellants under W.Va. Code § 29A-12-
5(a)(11), because workers' compensation benefits may be recovered for those claims.
The Nature of the Issue Before Us
Since appellants in this action have not filed claims under our workers'
compensation law, we are called upon here to determine what is, or may, be a compensable
injury under that law without the benefit of prior factual and legal determinations by the
Workers' Compensation Commissioner and the Workers Compensation Appeal Board.
Rather than determine the merits of a claim for benefits under that legislation, we, like the
trial court, are dealing with an affirmative defense raised in a civil action by appellee Board
to avoid liability. In that posture, the Board bears both the burden of going forward with the evidence and the burden of persuasion regarding the existence of a compensable injury. Our
decision today is binding as the law of this case and is perhaps binding on the appellants here
with respect to some issues that might arise in any future claims filed by appellants under our
workers' compensation law.See footnote 4 However, since the Workers' Compensation Commissioner
is not a party to the action, our decision today cannot be fairly seen as binding on the
Commissioner or the Appeal Board on issues they have not heard or litigated, although it
may be instructive.
The Threshold Issue
As noted,See footnote 5 the threshold issue in this case is whether the claims raised by the
appellants are "covered" by workers' compensation.
It appears that our workers'
compensation law compensates for "injury" or "personal injury", as that term is defined by
W.Va. Code § 23-4-1. An examination of the definitions set forth in that section reveals
three general classifications, which may be summarized as follows: (1) accidental physical
injuries (caused by a definite, isolated, fortuitous occurrence), (2) occupational diseasesSee footnote 6, and (3) occupational pneumoconiosis.See footnote 7 In due course, our inquiry in the case sub judice, will
address these three general classifications of "injuries" or "personal injuries". However,
before proceeding to that analysis, we must address the question of whether the immunity
provided a political subdivision by W.Va. Code § 29-12A-5(a)(11) for "[a]ny claim covered by any workers' compensation law" provides protection against all tort liability to workers
injured in the course of their employment by third persons or whether "covered" has some
more precise meaning.
Appellants urge us to be mindful of the general rule that governmental
immunity statutes should be construed in a manner favoring liability rather than immunity
and urge that the claims they assert in this action are not compensable under our workers'
compensation statute.
In O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 SE.2d 551 (1992),
we found that W.Va. Code § 29-12A-5(a)(11) was not ambiguous in providing immunity for
political subdivisions where the claims raised involved workers who were not employees of
the political subdivision, but were employed by third persons who provided workers'
compensation. We held that:
W.Va. Code, 29-12A-5(a)(11), clearly contemplates immunity
for political subdivisions from tort liability in actions involving
claims covered by workers' compensation even though the
plaintiff was not employed by the defendant political
subdivision at the time of the injury.
Id. at syl. pt. 6.
In reaching that conclusion in O'Dell, this Court noted that to limit the
immunity provided by W.Va. Code § 29-12A-5(a)(11) only to claims made by the political subdivisions own employees would make the statutory immunity provided wholly duplicative
of the immunity provided the political subdivision by the Workers' Compensation Act itself.
The immunity provided an employer, including political subdivisions, by workers'
compensation is not limited to "any claim covered" by workers' compensation. That
immunity provided to employers is against "damages at common law or by statute for the
injury or death of any employee, however occurring . . . ."See footnote 8 The Local Governmental Tort
Reform Act was not needed merely to give immunity to the political subdivisions against
claims made by its own workers.
The O'Dell Court further addressed the question of whether the immunity
found in W.Va. Code § 29-12A-5(a)(11) excluded those "elements of damages, such as pain
and suffering, total lost wages, and mental anguish, not compensated by such [workers'
compensation] benefits." 188 W.Va. at 610, 425 S.E.2d at 565. The Court declined to
interpret "the word 'claim' in such a limited fashion", noting that workers' compensation
"encompasses a variety of statutory monetary benefits . . . some of which are included in the
normal tort claim." Id. (citations omitted). Thus, the Court concluded, W.Va. Code § 29-
12A-5(a)(11) "provides immunity to a political subdivision for all damages arising from a
tortious injury, not merely for those compensated by workers' compensation." Id. It has been suggested that the case sub judice is controlled by this conclusion. We do not agree.
The O'Dell Court's conclusion that the immunity under discussion extended
to all damages for a claim covered by workers' compensation, whether recoverable in an
ordinary civil action or as workers' compensation benefits, does not determine the threshold
question of whether or not appellants' claims are "covered" by workers' compensation, and
we decline to extend the thrust of O'Dell beyond its conclusion that a political subdivision
is protected as to all elements of damage arising under a "covered" claim.
In Randall v. Fairmont City Police Department, 186 W.Va. 336, 412
S.E.2d 737 (1991), we recognized that the general rule of construction in governmental tort
legislation cases favors liability, not immunity. "[U]nless the legislature has clearly provided
for immunity under the circumstances, the general common-law goal of compensating
injured parties for damages caused by negligent acts must prevail." Id. at 347, 412 S.E.2d
at 748 (citations omitted).
In Randall, we applied that rule by first determining that the "immunity"
provided by W.Va. Code § 29-12A-5(a)(5) stated the common-law rule that a cause of action
is not recognized for the breach of a general duty owed the public as a whole. Randall then
recognized an exception to that rule, not expressed in the statute being construed there, allowing such an action if a "special relationship" existed between the political subdivision
protected by the statute and a particular member of the public. We said, "Lacking a clear
[statutory] expression to the contrary, that statute . . . does not immunize a breach of a
special duty to provide . . . such protection to a particular individual." Id. Thus, Randall
may be seen as determining that the "immunities" contained in W.Va. Code § 29-12A-5 are
not necessarily absolute and may be subject to exceptions or limitations.
Our task is similar here. While we have previously concluded in O'Dell that
it is clear that the Legislature intended to immunize against workers' claims for all damages
arising under claims shown to be compensable by workers' compensation, we lack clear
statutory expression with respect to what "claims covered" means in the context of
appellants' assertion here that their fear of contracting an asbestos related disease is not
compensable claims under workers' compensation. We note that if appellants' assertion is
correct -- if their claims are cognizable at law, and if the damages they claim are not, as in
O'Dell, merely damages for which workers' compensation provides an alternate form of
recovery -- they will have no remedy for their present claims of the fear of contracting the
disease and have no claim under workers' compensation until and unless their respective
conditions develop to the point where benefits would be provided. In other words, if no
benefits of any sort would be provided to appellants under workers' compensation by reason
of their conditions, we cannot conclude that the conditions are "covered."
Accordingly, in light of the rule favoring liability, not immunity, and lacking
a clear statutory expression in the circumstances we are addressing, we conclude that if the
claims asserted by appellants would result in no benefits under any workers' compensation
law or any employer's liability law, that is to say, if there is no recovery of benefits under
such laws in lieu of damages recoverable in a civil action, then, notwithstanding W.Va. Code
§ 29-12A-5(a)(11), such claims are not "covered" within the meaning of the immunity statute
and may be asserted in the courts of this State against a political subdivision which is not
their employer,See footnote 9 and such recovery had as may be proved under a recognized cause of action.
We now proceed to determine whether the claims asserted are indeed "covered" under our
workers' compensation statute.See footnote 10
Occupational Pneumoconiosis
We will first address coverage in light of the definition of "occupational
pneumoconiosis", as set out in W.Va. Code § 23-4-1, and the requirements for successful prosecution of a compensation claim therefor under that section and W.Va. Code § 23-4-15b.
Occupational pneumoconiosis was first recognized by the Legislature as a workers'
compensation injury or personal injury when W.Va. Code § 23-4-1 was amended in 1969.
Now, as then, the statute defines occupational pneumoconiosis and sets out specific
requirements for occupational pneumoconiosis claims in a manner that distinguishes those
claims from claims for more traditional workplace injuries. As applicable to the case at
hand, W.Va Code § 23-4-1 (1989) defines occupational pneumoconiosis and sets forth the
time requirements for a compensable occupational pneumoconiosis claim, as follows:
Subject to the provisions and limitations elsewhere in this
chapter . . . , the commissioner shall disburse the workers'
compensation fund to the employees . . . which employees have
received personal injuries in the course of and resulting from
their covered employment . . . .
For the purposes of this chapter the terms "injury" and
"personal injury" shall include occupational pneumoconiosis
and any other occupational disease, as hereinafter defined, and
the commissioner shall likewise disburse the workers'
compensation fund to the employees of such employers in
whose employment such employees have been exposed to the
hazards of occupational pneumoconiosis or other occupational
disease and in this state have contracted occupational
pneumoconiosis or other occupational disease, or have suffered
a perceptible aggravation of an existing pneumoconiosis or other
occupational disease, . . . according to the provisions hereinafter
made: Provided, That compensation shall not be payable for the
disease of occupational pneumoconiosis, or death resulting
therefrom, unless the employee has been exposed to the hazards
of occupational pneumoconiosis in the state of West Virginia
over a continuous period of not less than two years during the
ten years immediately preceding the date of his last exposure to
such hazards, or for any five of the fifteen years immediately
preceding the date of such last exposure. An application for benefits on account of occupational pneumoconiosis shall set
forth the name of the employer or employers and the time
worked for each, and the commissioner may allocate to and
divide any charges resulting from such claim among the
employers by whom the claimant was employed for as much as
sixty days during the period of three years immediately
preceding the date of last exposure to the hazards of
occupational pneumoconiosis. The allocation shall be based
upon the time and degree of exposure with each employer.
For the purposes of this chapter disability or death
resulting from occupational pneumoconiosis, as defined in the
immediately succeeding sentence, shall be treated and
compensated as an injury by accident.
Occupational pneumoconiosis is a disease of the lungs
caused by the inhalation of minute particles of dust over a
period of time due to causes and conditions arising out of and
in the course of the employment. The term "occupational
pneumoconiosis" shall include, but shall not be limited to, such
diseases as silicosis, anthracosilicosis, coal worker's
pneumoconiosis, commonly known as black lung or miner's
asthma, silico-tuberculosis (silicosis accompanied by active
tuberculosis of the lungs), coal worker's pneumoconiosis
accompanied by active tuberculosis of the lungs, asbestosis,
siderosis, anthrax and any and all other dust diseases of the
lungs and conditions and diseases caused by occupational
pneumoconiosis which are not specifically designated herein
meeting the definition of occupational pneumoconiosis set forth
in the immediately preceding sentence. (Emphasis added.)
This Court has consistently held that "'[w]here the language of a statute is clear
and without ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.' Syl.Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syl. pt.
1, Powers v. Union Drilling, Inc., 194 W.Va. 782, 461 S.E.2d 844 (1995). This statute defines occupational pneumoconiosis as "a disease of the lungs caused by the inhalation of
minute particles of dust over a period of time due to causes and conditions arising out of and
in the course of the employment." It specifically enumerates certain diseases, including
asbestosis, as occupational pneumoconiosis and further defines the disease as including also
"any and all other dust diseases of the lungs and conditions and diseases caused by
occupational pneumoconiosis . . . ." We believe that W.Va. Code § 23-4-1 clearly requires
that one who claims workers' compensation benefits for occupational pneumoconiosis must
show: (1) the present existence of the disease or an aggravation of the disease which has
been previously contracted and (2) exposure to the risk of occupational pneumoconiosis for
a substantial period of time, including at least the specified minimum period of exposure
while at work in West Virginia. We conclude that, under the definition and requirements for
occupational pneumoconiosis claims set forth in W.Va. Code § 23-4-1, it is not sufficient to
prove only the fear of eventually contracting occupational pneumoconiosis or to show some
exposure to the risk of contracting the disease for a period of time less than those periods set
out in the statute.See footnote 11
Appellants in the present case assert that their injuries resulted from the
inhalation of asbestos fibers, causing them to fear that, in due time, they will contract a
disease of the nature enumerated or generally defined by W.Va. Code § 23-4-1 as
occupational pneumoconiosis. We cannot conclude, on the record before us, that appellants
have, in fact and presently, contracted occupational pneumoconiosis by reason of the inhalation of minute particles of dust over a period of time or that they have suffered a
perceptible aggravation of previously existing occupational pneumoconiosis. Accordingly,
it cannot be said that, as a matter of law, appellants may successfully maintain a workers'
compensation claim for "injury" by reason of occupational pneumoconiosis.
Other Occupational Diseases
We note that W.Va. Code § 23-4-1 also provides that occupational diseases
other than occupational pneumoconiosis are to be compensated under the Workers'
Compensation Act as an "injury" or "personal injury". Again, the statute requires that any
such disease be "incurred in the course of and resulting from employment." (Emphasis
added.) This Court has determined that "W.Va. Code § 23-4-1, provides coverage for each
new occupational disease as medical science verifies it and establishes it as such, without the
need for special legislative recognition by addition to the scheduled diseases." Syl. pt. 2, in
part, Powell v. State Workmen's Compensation Commissioner, 166 W.Va. 327, 273 S.E.2d 832 (1980).See footnote 12
"Unlike traumatic injuries, the causal connection for occupational diseases
must be established by showing exposure at the workplace sufficient to cause the disease and
that the disease actually resulted in the particular case." Id., at 336, 273 S.E.2d at 837
(1980). Moreover, W.Va. Code § 23-4-1 states six criteria to be used in evaluating the
causal connection between the employment and the occupational disease.
See footnote 13
"[The] six criteria [in W.Va. Code § 23-4-1] make it clear that the occupational
disease need not have been foreseen or expected before its contraction. It thus follows that
if the claimant can establish the statutory criteria defining an occupational disease, the claim
is to be held compensable." Powell, 166 W.Va. at 334, 273 S.E.2d at 836 (1980).
Furthermore, "[i]f studies and research clearly link a disease to a particular hazard of a
workplace, a prima facie case of causation arises upon a showing that the claimant was
exposed to the hazard and is suffering from the disease to which it is connected." Id. at 336,
273 S.E.2d at 837 (emphasis added).
It is clear that in order to sustain a claim under workers' compensation for an
occupational disease other than occupational pneumoconiosis, the claimant must in fact and
presently suffer from the disease, just as in the case of occupational pneumoconiosis. In
Hobday v. Compensation Commissioner, 126 W.Va. 99, 27 S.E.2d 608 (1943), this Court
considered the compensability of an employee's death from tuberculosis. The issue was
whether such employee's death had been caused by silicosis. At the time, W.Va. Code § 23-
4-1 did not include its present definition of occupational pneumoconiosis, including silicosis.
This Court was interpreting an older definition of silicosis as a compensable condition. After
discussing the decedent's substantial amount of exposure to silicon dioxide dust, the Court
commented: "It is not the mere exposure to silicon dioxide dust, however harmful, that
justifies compensation. The exposure must produce silicosis, which, in turn, must produce
the death." Id. at 107-08, 27 S.E.2d at 612. More recently, in Ball v. Joy Mfg. Co., 755 F. Supp. 1344 (S.D.W.Va. 1990), aff'd, 958 F.2d 36 (4th Cir.1991), cert. denied, 502 U.S. 1033, 112 S. Ct. 876, 116 L. Ed. 2d 780 (1992), the United States District Court for the
Southern District of West Virginia reviewed the West Virginia Workers' Compensation Act
and relevant case law with respect to the alleged exposure of the plaintiffs to the possibility
of contracting disease by reason of exposure to chemicals. The court concluded that "while
showing an occupational exposure to a hazard of the workplace is a necessary condition to
proving an 'injury' compensable under the Workers' Compensation Statute, it is not a
sufficient condition alone -- rather an employee must establish through medical evidence that
such exposure is causally linked to a disease he/she presently suffers. In other words,
medical evidence that such exposure can cause a particular disease is not sufficient to
establish a compensable 'injury' under the Statute without the existence of the disease itself."
Id. at 1356. Once again, we note that appellants' claim in the present case is that, because
of the alleged inhalation of minute particles of dust over some period of time, appellants fear
that they will eventually contract a disease. In keeping with the cases cited, we cannot
conclude that, as a matter of law, appellants may successfully maintain a workers'
compensation claim for "injury" by reason of the fear of contracting an occupational disease,
as contrasted with having actually contracted the disease.
Is the alleged "insult" to the lungs
of appellants an injury?
Appellee Board relies heavily on evidence acquired in pre-trial proceedings
below tending to show that the mere inhalation of asbestos fibers inescapably results in an
"insult" to lung tissue, arguing that such an "insult" constitutes an injury within the
traditional concepts of workplace injuries, that is, a trauma or other physical harm to the
body of the workers. The thrust of the argument is that since such a physical "injury" has
occurred, the resulting complaints of appellants regarding loss of sleep and other conditions
resulting from the fear of contracting occupational pneumoconiosis or other occupational
disease constitutes a compensable "injury" under workers' compensation. We do not agree.
While W.Va. Code § 23-4-1 does not specifically define the term "injury" as
contemplated by the statute, this Court, considering the traditional definition of "injury", has
previously held that "West Virginia is a jurisdiction which requires proof of injury by
accident. Martin v. State Compensation Commission, 107 W.Va. 583, 149 S.E. 824 (1929)."
Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 163, 191 S.E.2d 497, 500 (1972). See also Barnett v. State Workmen's Compensation Commissioner, 153
W.Va. 796, 172 S.E.2d 698 (1970); 21 M.J., Workers' Compensation, § 30 (1987). The
classic definition of "injury" other than occupational pneumoconiosis or occupational disease
has been as follows: "A compensable accident, according to the interpretations of past cases,
is an injury incurred by an employee 'attributable to a definite, isolated, fortuitous
occurrence.' [Syl. pt. 1], Adams v. G.C. Murphy Company, a Corporation, 115 W.Va. 122, 174 S.E. 794 (1934); Jones v. Rinehart & Dennis Co., Inc., 113 W.Va. 414, 423, 168 S.E. 482 (1933)." Jordan, 156 W.Va. at 163, 191 S.E.2d at 500. See also Dickerson v. State
Workmen's Compensation Commissioner, 154 W.Va. 7, 10, 173 S.E.2d 388, 391 (1970).
This Court has recognized that: "One does not have to be struck by a truck or
to be deluged by a slate fall to receive a compensable injury within the contemplation of our
compensation law. . . . [W]hen considering compensability under the compensation law an
accident need not be a visible happening; it may be an unusual or unexpected result attending
the operation or performance of a usual or necessary act or event." Pennington v. State
Workmen's Compensation Commissioner, 159 W.Va. 370, 374, 222 S.E.2d 579, 581 (1976)
(citation omitted). We have also previously determined that a definite, isolated, fortuitous
occurrence may occur over a period of time. "Disability, due to shock, exposure, and
exhaustion, directly attributable to claimant's having become lost in a coal mine for a period
of seven days, is the result of a 'personal injury' within the meaning of the Compensation
Act (Code 1931, 23-4-1)." Syl. pt. 1, Montgomery v. State Compensation Commissioner,
116 W.Va. 44, 178 S.E. 425 (1935). See also syl. pt. 1, Lockhart v. State Compensation
Commissioner, 115 W.Va. 144, 174 S.E. 780 (1934) ("Paint poisoning contracted from a
single exposure during a five-hour period constitutes a compensable injury under the
Workmen's Compensation Act (Code 1931, 23-1-1 et seq.)"); and Adams v. G.C. Murphy
Company, a Corporation, 115 W.Va. 122, 125-26, 174 S.E. 794, 795 (1934) (Determined
under early workers' compensation legislation, found that employee who was exposed to carbon monoxide for approximately three months while working in a small kitchen that was
not properly ventilated had a compensable injury as her disability was "attributable to
exposure extending through a course of employment.").
However, none of these cases addressed the fear of contracting a disease or
the statutory requirements with respect to workers' compensation claims for occupational
pneumoconiosis and other occupational diseases. Even if, for the purposes of analysis, we
credit the conclusion that appellants' lungs have indeed been insulted by the inhalation of
asbestos fibers, and that such an insult has resulted in the fear of contracting occupational
pneumoconiosis or another occupational disease, with the attendant loss of sleep and other
effects of which appellants complain, the cited cases provide no authority from which we can
conclude, as a matter of law, that the Workers' Compensation Act provides benefits for the
fear of contracting occupational pneumoconiosis or some other occupational disease. To
conclude that such circumstances make out a compensable claim would, in our view,
obliterate the clear requirements of W.Va. Code § 23-4-1 that a claimant seeking benefits by
reason of an occupational disease must demonstrate the present existence of such disease
and, in the case of a claim for occupational pneumoconiosis, that the claimant presently
suffers from such disease and meets the statutory time requirements for exposure generally,
and in this State, particularly. From the record before us, it appears that appellants deny that
any of them are presently suffering from occupational pneumoconiosis or that any have
suffered a perceptible aggravation of an existing occupational pneumoconiosis as a result of their exposure to asbestos at Hundred High School. We believe that appellee Board must
prove the occupational disease or occupational pneumoconiosis criteria set forth in W.Va.
Code § 23-4-1, including the present existence of disease, to establish its defense that
appellants' physical trauma and insult arising from breathing asbestos fibers raises a claim
that is compensable under workers' compensation.
We recall also that the statute sets forth very specific criteria that must be met
in order to have a claim of injury from occupational disease or occupational pneumoconiosis.
To conclude that a claim would be compensable without meeting these specific statutory
requirements, solely for the fear of contracting occupational pneumoconiosis or another
occupational disease, would convert substantially every case of exposure to, and insult by,
asbestos or other dust carried agents into a currently compensable workers' compensation
case, notwithstanding the more stringent requirements for such claims set forth by law.
Mental-Physical and Mental-Mental Claim
With respect to immunity, appellee Board argues finally that appellants' mental
conditions -- their fear of contracting an occupational disease or occupational
pneumoconiosis -- have produced certain physical manifestations, resulting in an injury
compensable under workers' compensation as a mental-physical claim or, in the alternative,
that the workers suffer a so-called mental-mental condition, compensable under the workers'
compensation law as it existed at the time of the injury. Appellee relies on Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966), in support of its argument that appellants
have a compensable mental-physical claim. Further, appellee relies on Breeden v.
Workmen's Compensation Commissioner, 168 W.Va. 573, 285 S.E.2d 398 (1981), in support
of its argument regarding both a mental-physical and mental-mental claim.
Bennett involved a civil suit filed by one employee against another for an
injury sustained on the premises of the employer. The primary issue before the Court was
whether the defendant employee was entitled to immunity because the employer subscribed
to the workmen's compensation fund. The Court's discussion focused upon its finding that
the injury was compensable because it was sustained "within the 'zone of employment.'"
Bennett, 150 W.Va. at 652, 149 S.E.2d at 204. Appellee's reliance on this case apparently
rests upon a comment in the statement of facts that "plaintiff became fearful that the
defendant was losing control of the pickup truck, jumped from it and, as a consequence
sustained the personal injuries . . . ." Id. at 650, 149 S.E.2d at 202. Other than this single
comment, the Court did not discuss the plaintiff's mental condition or its relationship to
compensability. Appellants in this case are suing for the fear of contracting an asbestos-
related disease or occupational pneumoconiosis. As discussed above, any condition that
results from the inhalation of asbestos particles or that is based upon some other claim of
occupational disease must be evaluated under the statutory criteria set forth for such claims,
including the requirement that the disease has been presently contracted.
In Breeden, the claimant filed a workers' compensation claim for a mental
disability which she suffered after being subjected to continuous and intentional harassment
from her immediate supervisor. In that case, we held that "[a]n employee who sustains
mental or emotional injury which occurs as a result of continuous and intentional harassment
and humiliation from her supervisor extending over a period of time has suffered a personal
injury as required by W.Va. Code § 23-4-1 (1981 Replacement Vol.)." Syl. pt. 2, Breeden
v. Workmen's Compensation Commissioner, 168 W.Va. 573, 285 S.E.2d 398 (1981).
Thereafter, in 1993, the West Virginia Legislature rejected the compensability of mental-
mental claims when it added W.Va. Code § 23-4-1fSee footnote 14 to the workers' compensation statute.
In light of the narrow language used by the Breeden Court, the Legislature's subsequent
rejection of mental-mental claims, and the clear statutory requirements for establishing a
claim for occupational diseases or occupational pneumoconiosis, we decline to broaden our
holding in Breeden to include the fear of contracting an occupational disease or occupational
pneumoconiosis.
In summary, we conclude that, standing alone, the physical trauma or insult
of inhaling asbestos fibers or other dust-borne particles does not constitute an injury under
W.Va. Code § 23-4-1, absent the further showing that occupational pneumoconiosis has been
contracted after exposure for the time required by statute.
See footnote 15
Accordingly, in order for the
appellee Board to establish immunity under W.Va. Code § 29-12A-5(a)(11) as to any of
appellants, it must show that the particular appellant has contracted occupational
pneumoconiosis as a result of the exposure at Hundred High School. Additionally, the Board
must show that the particular appellant meets the exposure requirements set forth in W.Va.
Code § 23-4-1 for occupational pneumoconiosis.See footnote 16 Nothing in the record before us suggests
that appellee Board can meet those requirements with respect to any appellants.
COMMON LAW EMOTIONAL DISTRESS CLAIMS
Appellants' complaint alleged negligent and intentional infliction of emotional
distress. With regard to their claim of negligent infliction of emotional distress, the court below determined that in order to recover, appellants must establish a physical injury.See footnote 17
Appellants assert that West Virginia has abandoned the "physical injuries" requirement as
a prerequisite for negligent infliction of emotional distress when there has been an actual
exposure to the disease. Appellants argue that in such case physical injury is not the
controlling issue in determining whether recovery may be had for the fear of contracting the
disease; rather, they argue, the test is whether such fear is reasonable under the
circumstances. Appellants assert that they have met that test by their offer of uncontroverted
evidence of an actual exposure to asbestos, which they assert puts them at significant risk of
contracting an asbestos-related disease.
Appellants rely in part on Johnson v. West Virginia University Hospital, Inc.,
186 W.Va. 648, 413 S.E.2d 889 (1991). In Johnson, we concluded that an action for
negligent infliction of emotional distress could be maintained where exposure to the AIDS virus had been sufficiently shown when it was proved that the plaintiff had been physically
injured by being bitten by an AIDS victim and the plaintiff's blood came into contact with
that of the AIDS victim as a result of the bite.See footnote 18 Appellees respond that the deciding factor
in Johnson was plaintiff's physical injury, the bite, rather than exposure to the risk of a
disease.
Appellants also rely on Ricottilli v. Summersville Memorial Hospital, 188
W.Va. 674, 425 S.E.2d 629 (1992). That case represents a transition from our earlier law
requiring that a claim for negligent infliction of emotional distress be accompanied by
demonstrable physical injuries. West Virginia had previously confronted the physical
injuries issue in Monteleone v. Co-Operative Transit Co., 128 W.Va. 340, 36 S.E.2d 475
(1945), overruled
Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992)
. In that case,
the plaintiff was riding in a car that was struck by a trolley wire that had broken free from
above. When the wire struck the car, it shattered the windshield and plaintiff received a cut
on her face that was "about the size of a pimple." The Monteleone Court concluded that
"[t]here can be no recovery in tort for an emotional and mental trouble alone without ascertainable physical injuries arising therefrom, . . . through the simple negligence of the
defendant, when the defendant's wrongful conduct has caused no impact resulting in
substantial bodily injury." Syllabus, Id.
More recently, having decided Gregory and Johnson on other grounds, we
revisited this issue in Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992). In
Heldreth we recognized that "this Court's view on the issue of plaintiff recovery for the
negligent infliction of emotional distress has never been fully developed." Id. at 484, 425 S.E.2d at 160. The Heldreth Court observed that cases following Monteleone v. Co-
Operative Transit Co. indicated a general rule that, absent a physical injury or intentional
tort, there is no allowable recovery for negligent infliction of emotional distress. Id.See footnote 19
Nevertheless, the Heldreth Court acknowledged a trend in other courts toward abandoning
the rule prohibiting recovery absent physical injury and determined that the rule established
in Monteleone was "quite simply, outdated." Heldreth at 485, 425 S.E.2d at 161. The Court
commented that "the Monteleone court, in 1945, did not fully envision the advancements
that were ultimately made in the medical and psychiatric sciences, which have been recognized by other courts, that have enabled physicians to diagnose serious emotional
distress and identify malingers." Id. (citations omitted). The Court then held that:
A defendant may be held liable for negligently causing
a plaintiff to experience serious emotional distress, after the
plaintiff witnesses a person closely related to the plaintiff suffer
critical injury or death as a result of the defendant's negligent
conduct, even though such distress did not result in physical
injury, if the serious emotional distress was reasonably
foreseeable. To the extent that Monteleone v. Co-Operative
Transit Co., 128 W.Va. 340, 36 S.E.2d 475 (1945), is
inconsistent with our holding in cases of plaintiff recovery for
negligent infliction of emotional distress, it is overruled.
Id. at syl. pt. 1.
Ricottilli v. Summersville Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629
(1992), the principal case upon which appellants rely, was decided four days after Heldreth.
This Court, in an opinion written by Justice Workman, held there that "[a]n individual may
recover for the negligent infliction of emotional distress absent accompanying physical injury
upon a showing of facts sufficient to guarantee that the emotional damages claim is not
spurious." Id. at syl. pt. 2.
The court below opined that Ricottilli did not apply to the case sub judice
because the holding in Ricottilli was limited to cases involving the "dead body exception"
to the rule prohibiting recovery for emotional distress absent an injury. While it does appear
that the decision in Ricottilli raised the issue of applying the "dead body exception" and proceeded to apply the exception to the facts of that case, we believe that the holding in the
case, expressed in syllabus point 2, quoted above, clearly indicated a progression by this
Court away from the requirement of a precedent physical injury in order to recover in cases
involving negligent infliction of emotional distress. Such a progression in other courts has
been recognized in Stuart M. Speiser, et al., The American Law of Torts, §16:2, at 949-50
(1987):
Although there are courts that still adhere to the early view, the
scholars assert that such artificial barriers to recovery are
unnecessary. The unqualified requirement of physical injury is
no longer justifiable . . . . It supposedly serves to satisfy the
cynic that the claim of emotional distress is genuine. Yet we
perceive two significant difficulties with the scheme. First, the
classification is both overinclusive and underinclusive when
viewed in the light of its purported purpose of screening false
claims. It is overinclusive in permitting recovery for emotional
distress when the suffering accompanies or results in any
physical injury whatever, no matter how trivial. If physical
injury, however slight, provides the ticket for admission to the
courthouse, it is difficult for advocates of the "floodgates"
premonition to deny that the doors are already wide open. More
significantly, the classification is underinclusive because it
mechanically denies court access to claims that may well be
valid and could be proved if the plaintiffs were permitted to go
to trial. (Footnotes omitted.)
Therefore, we hold that the principle set forth in syllabus point 2 of Ricottilli v. Summersville
Memorial Hospital is applicable in a cause of action for negligent infliction of emotional
distress. Thus, we reiterate that "[a]n individual may recover for the negligent infliction of
emotional distress absent accompanying physical injury upon a showing of facts sufficient to guarantee that the emotional damages claim is not spurious." Syl. pt. 2, Ricottilli v.
Summersville Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629 (1992).
However, we emphasize the requirements that a claim for emotional distress
without an accompanying physical injury can only be successfully maintained upon a
showing by the plaintiffs in such an action of facts sufficient to guarantee that the claim is
not spurious and upon a showing that the emotional distress is undoubtedly real and serious.
As this Court recognized in Ricottilli:
[w]here the guarantee can be found, and the mental distress is
undoubtedly real and serious, there may be no good reason to
deny recovery. But cases will obviously be infrequent in which
"mental disturbance," not so severe as to cause physical harm,
will clearly be a serious wrong worthy of redress and
sufficiently attested by the circumstances of the case.
Id., at 680, 425 S.E.2d at 635 (quoting W. Page Keeton, et al., Prosser and Keeton on the
Law of Torts § 54, at 362 (5th ed. 1984 & Supp. 1988)). In the case before us, the trial court
must be concerned with both the guarantee against a spurious action and a showing of real
and serious emotional distress. The burden rests on appellants to meet these requirements.
To determine the extent of plaintiff's burden to show that his or her claim is
not spurious and that he or she suffers from real and serious emotional distress, we again
look to this Court's opinion in Heldreth v. Marrs. While the Court's holding in Heldreth was limited to cases involving emotional distress that resulted when a plaintiff witnessed the
critical injury or death of a person closely related to the plaintiff, we believe that certain
principles set forth in that case are applicable to a cause of action resulting from the fear of
contracting a disease. The Heldreth Court held:
[A] plaintiff's right to recover for the negligent infliction of
emotional distress, after witnessing a person closely related to
the plaintiff suffer critical injury or death as a result of
defendant's negligent conduct, is premised upon the traditional
negligence test of foreseeability. A plaintiff is required to prove
under this test that his or her serious emotional distress was
reasonably foreseeable, that the defendant's negligent conduct
caused the victim to suffer critical injury or death, and that the
plaintiff suffered serious emotional distress as a direct result of
witnessing the victim's critical injury or death.
Heldreth v.Marrs, 188 W.Va. at 494, 425 S.E.2d 169. Similarly, we hold that in order to
recover for negligent infliction of emotional distress based upon the fear of contracting a
disease, a plaintiff must prove that he or she was actually exposed to the disease by the
negligent conduct of the defendant, that his or her serious emotional distress was reasonably
foreseeable, and that he or she actually suffered serious emotional distress as a direct result
of the exposure.
The Heldreth Court also discussed the factors necessary to proving the
foreseeability of serious emotional distress when a plaintiff witnessed the critical injury or
death of a person closely related to the plaintiff. While the factors discussed there are not
directly helpful where the claim is based upon the fear of contracting a disease, they do suggest two factors which we believe to be essential to such a claim based solely on the fear
of contracting a disease. We conclude that, in addition to other factors which may be
adduced in evidence to prove that serious emotional distress arising from the fear of
contracting a disease is reasonably foreseeable, the evidence must show first, that the
exposure upon which the claim is based raises a medically established possibility of
contracting a disease, and second, that the disease will produce death or substantial disability
requiring prolonged treatment to mitigate and manage or promising imminent death.
With regard to establishing serious emotional distress, the Heldreth Court
recognized that "serious emotional distress can be diagnosed even in the absence of any
physical manifestation, and can be proven with medical and psychiatric evidence.
Furthermore, any physical injury resulting from the emotional distress is further evidence of
the degree of emotional distress suffered. Paugh v. Hanks, 451 N.E.2d at 765." Heldreth,
188 W.Va. at 490, 425 S.E.2d at 166. The Heldreth Court further commented that:
[W]e believe, in determining the "seriousness" of the emotional
distress, consideration should also be given to whether the
particular plaintiff is a "reasonable person, normally
constituted." More specifically, we recognize that the Paugh
court found that "serious emotional distress may be found where
a reasonable person, normally constituted, would be unable to
cope adequately with the mental distress engendered by the
circumstances of the case." 451 N.E.2d at 765 (citations
omitted) (emphasis added); . . . . A "reasonable person," in this
context, has been found to be an "ordinarily sensitive person
and not the supersensitive, 'eggshell psyche' plaintiff."
Id. at 490, 425 S.E.2d at 166 (citations omitted). In addition, the Court observed that "[t]he
reasonableness of the plaintiff's reaction to the event will normally be a jury question." Id.
at 491, 425 S.E.2d at 167.
In light of the Heldreth guidance, we hold that serious emotional distress based
upon the fear of contracting a disease is a question of fact to be determined by the trier of
fact. It may be proven with medical and psychiatric evidence, based on a diagnosis made
with or without physical manifestations of the distress; however, any physical injury
resulting from the emotional distress is further evidence of the degree of emotional distress
suffered. In determining "seriousness", consideration should be given to whether the
particular plaintiff is a "reasonable person, normally constituted". For the purposes of such
consideration, a reasonable person is an ordinarily sensitive person and not a supersensitive
person.
Finally, we note that appellants plead a claim of intentional infliction of
emotional distress. That claim does not, in any event, require an incidental physical injury.
See Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).
Such a claim does, however, require proof of the requisite intent. No mere showing of
neglect will satisfy the element of intent necessary to an action for intentional infliction of
emotional distress. Nor do we see in the record before us evidence of outrageous conduct
sufficient to support the allegation of intentional conduct. Nevertheless, since this issue and those essential to the claim of negligent infliction of emotional distress just discussed may
be further developed in this litigation as it proceeds, we leave those issues for further
decision by the trial court.
Accordingly, we conclude that the trial court erred in granting summary
judgment to appellee Board with respect to the claims alleged by appellants and will reverse
and remand for further proceedings consistent with this opinion.
APPELLEE'S CROSS ASSIGNMENTS OF ERROR
By way of cross assignment of error, appellee Board complains that the circuit
court erred by ruling that the Board was not statutorily immune to appellants' claims under
W.Va. Code § 29-12A-5(a)(10), which states:
(a) A political subdivision is immune from liability if a
loss or claim results from:
* * *
(10) Inspection powers or functions, including failure to
make an inspection, or making an inadequate inspection, of any
property, real or personal, to determine whether the property
complies with or violates any law or contains a hazard to health
or safety . . . .
Appellee contends that W.Va. Code § 29-12A-5(a)(10) provides immunity to
the Board for claims resulting from its inspection powers. Appellee submits that the Tort
Claims Act provides immunity for two types of inspections: (1) inspections to determine
whether the property complies with or violates any law; or (2) inspections of buildings for
hazards to health or safety. Thus, appellee argues that the Tort Claims Act clearly
contemplates immunity in the instant claim.
Appellants respond that W.Va. Code § 29-12A-4(c)(4) provides that political
subdivisions "are liable for injury . . . to persons . . . that is caused by the negligence of their
employees and that occurs within or on the grounds of buildings that are used by such
political subdivisions . . . ." Moreover, under general negligence law, the Board, as a
premises owner, must provide a reasonably safe work place and warn its invitees of latent
dangers. Appellants contend that W.Va. Code § 29-12A-5(a)(10) was not intended to limit
the Board's duty to maintain its premises or its liability for a breach of that duty. Rather, the
immunity under that section is given for the exercise of a specific governmental power,
namely inspecting and permitting the premises of others.
We agree with the lower court's finding that W.Va. Code § 29-12A-5(10)
clearly deals with inspection functions related to assuring compliance with a law or
ordinance of the political subdivision, such as housing, fire, zoning, health, etc. With a few
exceptions, the majority of the seventeen immunities from liability contained in W.Va. Code § 29-12A-5(a) are related to the public service functions of a political subdivision.See footnote 20
"'It is a fundamental rule of construction that, in
accordance with the maxim noscitur a sociis, the meaning of a
word or phrase may be ascertained by reference to the meaning
of other words or phrases with which it is associated.
Language, although apparently general, may be limited in its
operation or effect where it may be gathered from the intent and
purpose of the statute that it was designed to apply only to
certain persons or things, or was to operate only under certain conditions.' Syllabus point 4, Wolfe v. Forbes, 159 W.Va. 34,
217 S.E.2d 899 (1975)." Syllabus point 1, Banner Printing Co.
v. Bykota Corp., 182 W.Va. 488, 388 S.E.2d 844 (1989).
Syl. pt. 1, Darlington v. Mangum, 192 W.Va. 112, 450 S.E.2d 809 (1994). Thus, we
conclude that W.Va. Code § 29-12A-5(a)(10) provides immunity for a political subdivision's
inspection functions related to assuring compliance with a law or ordinance of the political
subdivision including, but not limited to, housing, fire, zoning, and health.
Appellee next argues that the circuit court erred by ruling that the derivative
claims of appellants' wives and children were not statutorily barred. Appellee contends the
Tort Claims Act also affords immunity for all derivative claims arising from the alleged
exposure of appellant/workers. Appellee asserts that this argument is supported by O'Dell
v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992), in which this Court held
that W.Va. Code § 29-12A-5(a)(11) "provides immunity to a political subdivision for all
damages arising from a tortious injury, not merely for those compensated by workers'
compensation." Id. at 610, 425 S.E.2d at 565 (emphasis added). Appellee does not dispute
that any direct exposure claims by the wives and children are not barred by immunity under
the Tort Claims Act.
Appellants respond that the families of the workers have a claim in their own
right, not a derivative claim. Consequently, appellants contend, the trial court correctly determined that the families' claims were not covered by workers' compensation and the
Board was, therefore, not immune under W.Va. Code § 29-12A-5(a)(11).
In its order dated April 20, 1995, granting summary judgment, the court
commented with regard to its discussion of the workers' compensation issues involved in this
claim that "[t]his argument does not apply to the wives and children of the workmen who
were not covered by The Act." We observe that appellants' complaint contains two separate
allegations with regard to the members of the workers' households. The complaint alleged
derivative claims for loss of love, society, comfort, companionship, and services that would
not survive immunity under W.Va. Code § 29-12A-5(a)(11), if the Board could establish
such immunity as set forth above. However, the complaint also alleges independent claims
that "the plaintiffs and members of their households were subject to a high degree of risk of
contracting . . . pneumoconiosis . . . ." These independent claims are not subject to any
immunity the Board may have regarding the workers' claims.See footnote 21 It is not clear from the
court's order whether its comment was related to both of the claims involving the members
of the workers' households, or whether it was related only to the independent claims.
However, in light of the fact that we have reversed the court's ruling granting summary
judgment, we need not decide this issue. We note only that the derivative claims for loss of
love, society, comfort, companionship, and services stand or fall with appellants' claims and that the remaining claims by members of the household relative to their fear of contracting
disease are subject to the provisions of this opinion, particularly those relating to the
requirement of proving serious emotional distress.
CONCLUSION
For the foregoing reasons, we find that the court erred in granting summary
judgment on behalf of the Wetzel County Board of Education with regard to the claims of
the appellants based upon its finding that appellants suffered a compensable "injury."
Having reviewed the record submitted to us, we conclude that the evidence before the court
below was insufficient upon which to find, as a matter of law, that appellants' claim is
covered by our workers' compensation statutes. We have previously stated that "the use of
summary judgment is disfavored where development of the facts of a case is desirable so as
to clarify the application of the law." Lengyel v. Lint, 167 W.Va. 272, 281, 280 S.E.2d 66,
71 (1981) (citation omitted).
We, therefore, reverse the May 22, 1995 order of the Circuit Court of Wetzel
County and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia
Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton,
Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on
that same date. Pursuant to an administrative order entered by this Court on October 15,
1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of
Appeals commencing October 15, 1996, and continuing until further order of this Court.Footnote: 2
The letter mentioned other asbestos findings, but appellants do not complain
of exposure resulting from these sources.Footnote: 3
Although appellants were not employees of the Board, this Court has
determined that "W.Va. Code, 29-12A-5(a)(11), clearly contemplates immunity for political
subdivisions from tort liability in actions involving claims covered by workers' compensation
even though the plaintiff was not employed by the defendant political subdivision at the time
of the injury." Syl. pt. 6, O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551
(1992). The plaintiffs in O'Dell
were three workers not employed by the political
subdivisions sued, but injured in the course of their employment by other employers. All
three plaintiffs had sustained physical injuries and had applied for and been awarded
workers' compensation, establishing beyond question that the injuries were "covered" by
workers' compensation. As we will discuss, the threshold issue in the case sub judice is
whether the claims here are "covered" at all by workers' compensation. Footnote: 4
We mention, but do not decide, the collateral effects of our ruling on workers'
compensation claims any appellants may later file.Footnote: 5
See footnote 3.Footnote: 6
The West Virginia Legislature first explicitly provided for compensation for
disability or death resulting from an occupational disease when it defined and provided
compensation for silicosis in the Workmen's Compensation amendments of 1935, by adding
article six to the statute. 1935 Acts of the Legislature, Regular Session, c. 79. In 1945, the
Legislature repealed article six and moved the provisions relating to silicosis to article four
of the workmen's compensation statute. 1945 Acts of the Legislature, Regular Session, c.
131. In 1949, the Legislature added occupational disease to the definition of "injury" or
"personal injury" found in W.Va. Code § 23-4-1. 1949 Acts of the Legislature, Regular
Session, c. 136. Prior to the statutory recognition of occupational disease in 1949, the issue
of whether occupational diseases were compensable was first discussed in Davis v. State
Compensation Commissioner, 110 W.Va. 25, 156 S.E. 844 (1931). The Davis Court could
not determine whether an occupational disease was compensable under the workmen's
compensation statute, because that question was not properly before it. However, the Court
discussed the issue and observed that the intent of the Legislature with regard to the
compensability of occupational diseases was questionable. Therefore, the Court invited the
Legislature to clarify its policy regarding occupational diseases. Id. However, the Court
subsequently determined that "[d]isease contracted in the course of and resulting from
employment is not compensable under the West Virginia Compensation Act, Code 1931, 23-
4-1, unless directly attributable to a definite, isolated, fortuitous occurrence." Syl. pt. 3,
Jones v. Rinehart & Dennis Co., Inc., 113 W.Va. 414, 168 S.E. 482 (1933) (found that an
employees death from silicosis, which resulted from the inhalation of silica dust over a
period of time, was not compensable under the West Virginia Workmen's Compensation
Act).
See also syl. pt. 1,
Montgomery v. State Compensation Commissioner, 116 W.Va. 44,
178 S.E. 425 (1935)
(Definite, isolated, fortuitous occurrence may occur over a period of
time. Held
"[d]isability, due to shock, exposure, and exhaustion, directly attributable to
claimant's having become lost in a coal mine for a period of seven days, is the result of a
'personal injury' within the meaning of the Compensation Act . . . .")
.
Footnote: 7
See 1969 Acts of the Legislature, Regular Session, c. 152, which defined and
provided compensation for occupational pneumoconioses (OP). That enactment also moved
the definition of and provisions for compensation of silicosis to the occupational
pneumoconiosis provisions of the law. Footnote: 8
See W.Va. Code § 23-2-6 and 6a; cf. W.Va. Code § 23-2-8.Footnote: 9
Our holding here is not intended to imply that an action could be maintained
against the political subdivision as an employer. Such political subdivision's immunity as
an employer is controlled by W.Va. Code § 23-2-6, et seq., as previously noted, while the
rights of employees to benefits under Chapter 23 are particularly defined by W.Va. Code §
23-4-1 and related sections.Footnote: 10
Our research has produced no case addressing the threshold issue of whether
a claim was "covered" by workers' compensation for the purpose of determining
governmental immunity. In all the cases we found, workers' compensation coverage had
been conclusively established.Footnote: 11
We are aware that this Court, in Powell v. State Workmen's Compensation
Commissioner, 166 W.Va. 327, 273 S.E.2d 832 (1980), appeared to find that lung cancer
was a compensable "occupational disease" based upon the testimony of a physician regarding
studies that showed a causal connection between lung cancer and asbestos exposure.
However, this Court subsequently held that "[o]ur decision in Powell . . . did not change the
statutory definition of occupational pneumoconiosis and did not affect the processing system
for an occupational pneumoconiosis claim." Syl. pt. 3, Newman v. Richardson, 186 W.Va.
66, 410 S.E.2d 705 (1991). The Newman Court granted a writ of mandamus to compel the
Workers' Compensation Commissioner to refer certain dependents' claims to the
Occupational Pneumoconiosis Board for review. The Commissioner had determined, based
upon an erroneous interpretation of this Court's holding in Powell, that claims involving
mesothelioma and other cancers arising from occupational exposure to asbestos were to be
treated as an occupational disease and not as occupational pneumoconiosis. The Court
explained that:
Powell simply held that the exposure of Mr. Powell to asbestos
resulted in an occupational disease, namely lung cancer. In
Powell, the claim was processed as an occupational
pneumoconiosis claim. After the Commissioner held that Mr.
Powell's exposure met the requirements of the Act, the claim
was referred to the Occupational Pneumoconiosis Board. The
Board determined 'that the employee's death was not due to
occupational pneumoconiosis and that occupational
pneumoconiosis was not a contributing factor in his death.'
Based on the Board's findings, the Commissioner and the
Appeal Board rejected Mrs. Powell's claim.
In Powell, we then held that the Appeal Board was wrong
in failing to recognize the clear "causal connection between
exposure and the disease . . . ." . . . Our decision that the
decedent's widow in Powell made a prima facie case showing
that Mr. Powell's death was due to (or was contributed to) by an
occupational disease did not change the statutory definition of
occupational pneumoconiosis and did not affect the processing
system for occupational pneumoconiosis claims.
Newman at 70, 410 S.E.2d at 709 (citations omitted).Footnote: 12
By discussing "other occupational diseases" here, we do not alter our holding
in syllabus point 3 of Newman v. Richardson, discussed in footnote 11 of this opinion. We
address the question of "other occupational diseases" here because it is not clear beyond
doubt what occupational diseases other than occupational pneumoconiosis appellee Board
may undertake to prove in pressing its immunity defense.Footnote: 13
The six criteria read as follows:
Except in the case of occupational pneumoconiosis, a disease
shall be deemed to have been incurred in the course of or to
have resulted from the employment only if it is apparent to the
rational mind, upon consideration of all the circumstances
(1) that there is a direct causal connection between the
conditions under which work is performed and the occupational
disease, (2) that it can be seen to have followed as a natural
incident of the work as a result of the exposure occasioned by
the nature of the employment, (3) that it can be fairly traced to
the employment as the proximate cause, (4) that it does not
come from a hazard to which workmen would have been equally
exposed outside of the employment, (5) that it is incidental to
the character of the business and not independent of the relation
of employer and employee, and (6) that it must appear to have
had its origin in a risk connected with the employment and to
have flowed from that source as a natural consequence, though
it need not have been foreseen or expected before its
contraction.
. . . An employee shall be deemed to have contracted an
occupational disease within the meaning of this paragraph if the
disease or condition has developed to such an extent that it can
be diagnosed as an occupational disease.
W.Va. Code § 23-4-1 (1994).
Footnote: 14
West Virginia Code § 23-4-1f states:
For the purposes of this chapter, no alleged injury or
disease shall be recognized as a compensable injury or disease
which was solely caused by nonphysical means and which did
not result in any physical injury or disease to the person
claiming benefits. It is the purpose of this section to clarify that
so-called mental-mental claims are not compensable under this
chapter.Footnote: 15
Nothing in the record before us suggests that any of the appellants' employers
provide workers' compensation coverage under any workers' compensation statute or
employer's liability law other than the West Virginia Workers' Compensation Act, W.Va.
Code § 23-1-1, et seq. Footnote: 16
While we have discussed other occupational diseases in the course of this
opinion, the facts of the case before us relate to the fear of contracting occupational
pneumoconiosis, as defined W.Va. Code § 23-4-1, to include dust-borne risks generally and
asbestosis, particularly. Footnote: 17
The trial court concluded that if appellants established an injury, the Board
would be entitled to the immunity discussed above. Because our holding today determines
that the fear of contracting an occupational disease or occupational pneumoconiosis is not
covered by workers' compensation, we recognize that we are leaving open the possibility that
appellants will choose to prove that the alleged negligent infliction of emotional distress
resulted from physical injury to their lungs, i.e., the insult of the asbestos fibers in their
lungs. Ironically, should appellants choose to adopt this approach, they will in essence adopt
the approach first asserted by the Board. However, for the reasons previously stated, the
establishment of that particular physical injury would not establish a compensable workers'
compensation claim unless the additional statutory requirements for occupational
pneumoconiosis or an other occupational disease were also established by appellee Board. Footnote: 18
Conversely, a short time before Johnson, this Court denied recovery in
Gregory, Inc. v. Bluefield Community Hospital, 186 W.Va. 424, 413 S.E.2d 79 (1991),
overruled on other grounds, Courtney v. Courtney, 190 W.Va. 126, 437 S.E.2d 436 (1993).
In Gregory, a mortician sought recovery for the fear of contracting AIDS after being given
the body of an AIDS victim to prepare for burial. We held that the fear of contracting a
disease was not actionable in the absence of evidence of actual exposure to the disease
causing agent (the AIDS virus). Also, it should be noted that no physical injury to the
plaintiff was shown in Gregory. Footnote: 19
The Heldreth Court also observed that "we noted in Belcher v. Goins, 184
W.Va. 395, 408, 400 S.E.2d 830, 843 (1990) and in Harless v. First National Bank, 169
W.Va. 673, 689, 289 S.E.2d 692, 702 (1982), although not central to the decision in those
cases, that a cause of action for negligent infliction of emotional distress may lie where the
plaintiff witnesses a physical injury to a closely related person, suffers mental anguish that
manifests itself as a physical injury and is 'within the zone of danger.'" Id. at 484, 425 S.E.2d at 160 (footnote omitted). However, the Heldreth Court went on to reject the zone
of danger rule.Footnote: 20
West Virginia Code § 29-12A-5(a) provides:
(a) A political subdivision is immune from liability if a
loss or claim results from:
(1) Legislative or quasi-legislative functions;
(2) Judicial, quasi-judicial or prosecutorial functions;
(3) Execution or enforcement of the lawful orders of any
court;
(4) Adoption or failure to adopt a law, including, but not
limited to, any statute, charter provision, ordinance, resolution,
rule, regulation or written policy;
(5) Civil disobedience, riot, insurrection or rebellion or
the failure to provide, or the method of providing, police, law
enforcement or fire protection;
(6) Snow or ice conditions or temporary or natural
conditions on any public way or other public place due to
weather conditions, unless the condition is affirmatively caused
by the negligent act of a political subdivision;
(7) Natural conditions of unimproved property of the
political subdivision;
(8) Assessment or collection of taxes lawfully imposed
or special assessments, license or registration fees or other fees
or charges imposed by law;
(9) Licensing powers or functions including, but not
limited to, the issuance, denial, suspension or revocation of or
failure or refusal to issue, deny, suspend or revoke any permit,
license, certificate, approval, order or similar authority;
(10) Inspection powers or functions, including failure to
make an inspection, or making an inadequate inspection, of any
property, real or personal, to determine whether the property
complies with or violates any law or contains a hazard to health
or safety;
(11) Any claim covered by any workers' compensation
law or any employer's liability law;
(12) Misrepresentation, if unintentional;
(13) Any court-ordered or administratively approved
work release or treatment or rehabilitation program;
(14) Provision, equipping, lawful operation or
maintenance of any prison, jail or correctional facility, or injures
resulting from the parole or escape of a prisoner;
(15) Any claim or action based on the theory of
manufacturer's products liability or breach of warranty or
merchantability or fitness for a specific purpose, either
expressed or implied;
(16) The operation of dumps, sanitary landfills, and
facilities where conducted directly by a political subdivision; or
(17) The issuance of revenue bonds or the refusal to issue revenue bonds.Footnote: 21 We note that questions regarding the merits of these claims are not presently before us.
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