Goodwin v. Hale
Annotate this Case
September 1996 Term
_____________
No. 23265
_____________
JON R. GOODWIN AND DIANA L. GOODWIN,
Plaintiffs Below, Appellees
v.
ROBERT AND FLORENCE HALE,
Defendants Below, Appellees
AND
PATWIL HOMES, INC., A PENNSYLVANIA CORP.
REGISTERED IN WEST VIRGINIA,
Defendant and Third-Party Plaintiff Below, Appellee
v.
ROBERT SMITH, DBA R & S CONSTRUCTION,
Third-Party Defendant Below, Appellant
________________________________________________________________
Appeal from the Circuit Court of Monongalia County
Honorable Larry V. Starcher, Judge
Civil Action No. 93-C-608
REVERSED AND REMANDED
________________________________________________________________
Submitted: September 18, 1996
Filed: December 13, 1996
Cheryl A. McCray, Esq. Debra Scudiere, Esq.
Hamstead, Hamstead & Williams Furbee, Amos, Webb & Critchfield
Morgantown, West Virginia Morgantown, West Virginia
Attorney for the Goodwins Attorneys for Patwil Homes
Monica N. Haddad, Esq. Laurie L. Cryster, Esq.
Meyer, Darragh, Buckler, Susan S. Brewer, Esq.
Bebenek & Eck Steptoe & Jonson
Charleston, West Virginia Morgantown, West Virginia
Attorneys for the Hales Attorneys for Robert Smith
JUDGE RECHT, sitting by temporary assignment, delivered the Opinion of the Court.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1996 Term
_____________
No. 23266
_____________
JON R. GOODWIN AND DIANA L. GOODWIN,
Plaintiffs Below, Appellees
v.
ROBERT AND FLORENCE HALE,
Defendants Below, Appellees
AND
PATWIL HOMES, INC., A PENNSYLVANIA CORP.
REGISTERED IN WEST VIRGINIA,
Defendant and Third-Party Plaintiff Below, Appellant
v.
ROBERT SMITH, DBA R & S CONSTRUCTION,
Third-Party Defendant Below, Appellee
________________________________________________________________
Appeal from the Circuit Court of Monongalia County
Honorable Larry V. Starcher, Judge
Civil Action No. 93-C-608
REVERSED AND REMANDED
________________________________________________________________
Submitted: September 18, 1996
Filed: December 13, 1996
Cheryl A. McCray, Esq. Debra Scudiere, Esq.
Hamstead, Hamstead & Williams Furbee, Amos, Webb & Critchfield
Morgantown, West Virginia Morgantown, West Virginia
Attorney for the Goodwins Attorneys for Patwil Homes
Monica N. Haddad, Esq. Laurie L. Cryster, Esq.
Meyer, Darragh, Buckler, Susan S. Brewer, Esq.
Bebenek & Eck Steptoe & Jonson
Charleston, West Virginia Morgantown, West Virginia
Attorneys for the Hales Attorneys for Robert Smith
JUDGE RECHT, sitting by temporary assignment, delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. It is always the duty of the trial court to instruct the jury on all correct
principles of law. Instructing a jury on a correct statement of the law applicable to the case
is essential to a fair trial.
2. "When a jury verdict is premised upon erroneous conclusion of law by
the trial court, as stated in the judge's charge to the jury, it must be set aside." Syllabus Point
5, State v. Morgan Stanley & Co., Inc., 194 W. Va. 163, 459 S.E.2d 906 (1995).
Recht, Judge:See footnote 1
This case presents for consideration two appeals emerging from a jury verdict
returned in the Circuit Court of Monongalia County in favor of the plaintiffs below, Jon R.
Goodwin and Diana L. Goodwin (hereinafter "Goodwin") in the amount of $330,000 against
one of the defendants below, Patwil Homes, Inc. (hereinafter "Patwil"). Following the
verdict, Patwil filed a motion for judgment notwithstanding the verdict under West Virginia
Rules of Civil Procedure 50(b), which was denied by the circuit judge. Patwil appeals the
order denying the motion notwithstanding the verdict. Also following the verdict, the trial
court entered a judgment in favor of Patwil against the third-party defendant, Robert Smith
d/b/a R & S Construction (hereinafter "R & S"), upon an express indemnity agreement
between Patwil and R & S. R & S appeals the judgment order requiring it to indemnify
Patwil for any amount that Patwil must pay to Goodwin flowing from the verdict.See footnote 2
Also following the verdict, the trial court reduced the amount of the verdict by
a workers' compensation offset received by Goodwin from his employer, R & S. Goodwin
has filed a cross-appeal challenging any workers' compensation offset.
Because the verdict is a result of an erroneous application of the legal standard
of fault on the part of Patwil, we reverse the judgments against Patwil and R & S, and
remand this case for a new trial consistent with the principles announced in this opinion.
I.
FACTS
Patwil is in the business of designing and having constructed residential
dwellings. The method and manner that Patwil chooses to perform its business purpose is
as follows: after designing a residential dwelling, it then enters into a series of contracts with
various subcontractors whose specialty is a particular phase of residential construction, who
collectively are engaged to complete the construction of the dwelling. Consistent with this
construction scheme, Patwil entered into a contract to construct a Patwil home for Robert and
Florence Hale. Patwil subcontracted the construction of the frame and roof of the dwelling
to R & S. R & S is an experienced roofing contractor with whom Patwil had an ongoing
relationship based on prior construction projects.
One of R & S's employees was Jon R. Goodwin who had been employed by
R & S for a period of approximately two years prior to the events that form the basis of this
civil action. Mr. Goodwin was a laborer for R & S and, at the time of the accident in August
1992, he was carrying a load of shingles to the roof of the single-story dwelling being
constructed for the Hales and during the performance of that task, Goodwin slipped on a
section of allegedly wet tar paper that was covering the roof, causing him to fall a
considerable distance with a quantity of the shingles trailing him as he was falling, forcing him into a footer surrounding the perimeter of the dwelling. Mr. Goodwin sustained multiple
injuries as a result of the fall, including a severe spinal fracture.
The Goodwins instituted a civil action in the Circuit Court of Monongalia
County against Patwil and Robert and Florence Hale, the people for whom the residence was
being constructed.See footnote 3 In reading the complaint, we find the possible source of confusion that
has infected this case and requires our reversal. For some reason, the plaintiff alleges a
"deliberate intention" theory of recovery under W. Va. Code 23-4-2(c)(2)(ii) (1994)See footnote 4 against
Patwil even though all parties properly concede that Patwil was not Goodwin's employer.See footnote 5
Patwil filed a third-party complaint, as authorized by W. Va. R. Civ. P. 14(a),See footnote 6
contending that R & S was obligated to indemnify Patwil under an express indemnification agreement between Patwil and R & S. R & S responded to the third-party complaint by
attempting to avoid the application of the express indemnity provision, contending that the
claim was barred by virtue of the exclusive remedy provisions of the West Virginia Workers'
Compensation Act.See footnote 7
At the conclusion of the plaintiff's case, Patwil decided to rest without offering
any evidence. The trial court then proceeded to instruct the jury that they could return a
verdict in favor of Goodwin if they found by a preponderance of the evidence that Patwil had
violated the "deliberate intention" elements imposed upon an employer under W. Va. Code
23-4-2(c)(2)(ii) (1994). As we have mentioned, Patwil was not Goodwin's employer. The
specific language of the instruction is as follows:
With respect to plaintiffs claim against Patwil, the Court has
ruled as a matter of law that Mr. Goodwin's claim is based upon
conduct of his employer, R & S Construction, a sub-contractor,
which is imputed to the general contractor, Patwil. In this case,
therefore, any liability of the defendant Patwil is derivative from
the conduct of its sub-contractor, R & S Construction.
The Court has further ruled that since any liability of Patwil is
derivative from the employer/employee relationship of the
plaintiff and his employer, that the statutory standard for such
a relationship must be met to establish the liability of the defendant Patwil. The law provides that an employee may
recover against an employer, and here the defendant Patwil, for
a work-related injury . . . .
It is this instruction that is at the center of this appeal and is the reason why we
are required to reverse and to remand this case.
II.
DISCUSSION
The trial court has made a valiant attempt to harvest some legal theory of
liability derived from a complaint and proof which, to not put too fine a point on it, were
extremely confusing.
As we read the complaint and the elements of the plaintiff's case-in-chief, the
legal theory upon which the plaintiff sought to recover against Patwil was that the conduct
of an independent contractor (R & S) can be imputed to one who engages that independent
contractor (Patwil) providing that the injured employee (Goodwin) proves that the person
who engages the independent contractor deliberately intended to injure the employee within
the meaning of W. Va. Code 23-4-2(c)(2)(ii) (1994). This formula was the basis of the
instruction that was given by the trial court upon which Patwil (as a non-employer) was held
to the deliberate intention standard of an employer. That simply is not the law in West
Virginia nor in any other jurisdiction as far as our research has developed.See footnote 8 The correct formulation of the theory of liability that Goodwin could assert against Patwil is found in
Syllabus Point 1, Hall v. Nello Teer Co., 157 W. Va. 582, 203 S.E.2d 145 (1974):
A general contractor or the employer of an independent
contractor [Patwil] has the duty to exercise ordinary care for the
safety of an employee [Goodwin] of the independent contractor
[R & S], and to furnish such employee [Goodwin] a reasonable
safe place to work.
Because this entire case was built upon a fallacious legal foundation that made
its way through an erroneous instruction to the jury, this verdict must be set aside.
It is always the duty of the trial court to instruct the jury on all correct
principles of law. Instructing a jury on a correct statement of the law applicable to the case
is essential to a fair trial. "When a jury verdict is premised upon erroneous conclusions of
law by the trial court, as stated in the judge's charge to the jury, it must be set aside."
Syllabus Point 5, State of West Virginia v. Morgan Stanley & Co., Inc., 194 W. Va. 163, 459 S.E.2d 906 (1995).See footnote 9
We realize that by remanding this case for a new trial we are forcing the
plaintiff to retry their case, thereby expending additional time and resources, even though the
prevailed under a heightened deliberate intention standard rather than a Hall v. Nello Teer
Co. ordinary negligence standard, which is the theory of recovery the circuit court should
have applied. However, the utter confusion that surrounds this verdict is so pervasive that
we have no other alternative other than to remand this matter to the Circuit Court of Monongalia County for purposes of a new trial, only this time guided by a correct legal
standard of liability.See footnote 10,See footnote 11
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
R & S also has appealed the judgment against Patwil in favor of Goodwin reasoning
that if the judgment fails, it has no obligation under the indemnity agreement.Footnote: 3
Plaintiff chose not to join his employer, R & S. The Hales were dismissed as
defendants upon the granting of their motion for summary judgment at the pretrial conference
on January 25, 1995. There has been no appeal from that decision.Footnote: 4
W. Va. Code 23-4-2(c)(2)(ii) (1994) is commonly referred to as the "deliberate
intention statute" by which an employer's workers' compensation immunity is removed,
assuming that the elements of this section are met. See Bell v. Vecellio & Grogan, Inc., ___
W. Va. ___, 475 S.E.2d 138 (1996).Footnote: 5
As we will discuss, the "deliberate intention" theory under W. Va. Code 23-4-
2(c)(2)(ii) (1994) against Patwil was the only theory of recovery that was embraced within
the jury instructions and which totally confounds this verdict.Footnote: 6
W. Va. R. Civ. P. 14(a) provides, in relevant part:
At any time after commencement of the action a defending
party, as a third-party plaintiff, may cause a summons and
complaint to be served upon a person not a party to the action
who is or may be liable to him for all or part of the plaintiff's
claim against him.Footnote: 7
We need not decide the merits of this contention; however, we are constrained to
offer our comment that the deliberate intent exception contained in W. Va. Code 23-4-2
(1994) does permit a defendant to bring a third-party action on a contribution theory against
the employer of the injured plaintiff. However, the ultimate recovery can only be obtained
in the third-party action if the employer was guilty of a "deliberate intention" injury under
W. Va. Code 23-4-2(c)(2)(i) or (ii) (1994). See Sydenstricker v. Unipunch Products, Inc.,
169 W. Va. 440, 288 S.E.2d 511 (1982). Of course, Sydenstricker applies to a contribution,
as opposed to an express indemnity theory of recovery.Footnote: 8
A variation on the formula of liability suggested by Goodwin is found in Peneschi
v. National Steel Corp., 170 W. Va. 511, 295 S.E.2d 1 (1982) where we held that when a
party engages an independent contractor for the purposes of working with an abnormally
dangerous instrumentality and an employee of the independent contractor is injured as a
result of the abnormally dangerous instrumentality, there is no strict liability on the part of
the person engaging the independent contractor. Certainly, if there is no liability on the part
of one engaging an independent contractor to perform an abnormally dangerous task, there
should be no imputed liability under a deliberate intention theory on the part of one engaging
an independent contractor to perform a non-dangerous task.Footnote: 9
The appellants did not precisely attack the jury instructions on the ground that it
failed to instruct the jury on the correct principle of law. We have previously noted,
however, that "while we would ordinarily not take note of errors not called to our attention,
we have the plenary power--indeed, the duty--to notice errors to which no exception has
been taken, if the error is obvious from the record or appellate briefs, and if it would
otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings,
or otherwise result in a misleading application of the law." Alkire v. First Nat'l Bank of
Parsons, ___ W. Va. ___, ___ n.8, 475 S.E.2d 122, 127 n.8 (1996) (citing United States v.
Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936); Silber v. United States, 370 U.S. 717, 718, 82 S. Ct. 1287, 1288, 8 L. Ed. 2d 798 (1962) (per curiam)); see also New York
Cent. R.R. Co. v. Johnson, 279 U.S. 310, 318-19, 49 S. Ct. 300, 303-04, 73 L. Ed. 706, as
amended by 49 S. Ct. 417 (1929) ("[F]ailure of counsel to particularize an exception will not
preclude this Court from correcting the error."); Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky.
1991) ("When the facts reveal a fundamental basis for decision not presented by the parties,
it is our duty to address the issue to avoid a misleading application of the law.").Footnote: 10
See supra note 9.Footnote: 11
Because we are setting aside the verdict, we need not address the issues relating to
the express indemnity between Patwil and R & S which should be resolved following the
trial on the merits. Further, the issues raised within the cross-appeal of Goodwin relating to
the workers' compensation offset need not be addressed because the entire workers'
compensation scheme, including a deliberate intention standard within the meaning of
W. Va. Code 23-4-2(c)(2)(ii) (1994) was not appropriate in this case and is expressly
disavowed in this opinion. See Bell v. Vecellio & Grogan, Inc., ___ W. Va. ___, 475 S.E.2d 138 (1996). We do remind the trial court of the application of the collateral source rule in
West Virginia in Jones v. Appalachian Electric Power Co., 145 W. Va. 478, 488, 115 S.E.2d 129, 134-35 (1960) (stating that while it is well settled that a partial satisfaction of the
injured plaintiff by one joint tort-feasor is a satisfaction, pro tanto, as to all, "it is
inapplicable where a plaintiff has received compensation from a collateral source such as .
. . [workers'] compensation benefits, accident and health insurance, or otherwise").
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