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Workers' Compensation

WV: Intentional Tort Exception to Exclusivity Applies to Employers Only, Not Co-Employee Supervisors

Answering a certified question presented by a U.S. District Court (S. D. W. Va.) regarding whether a “deliberate intent” cause of action pursuant to W. Va. Code § 23–4–2(d)(2)(ii) may be brought against a non-employer “person,” such as a supervisor or co-employee, the Supreme Court of Appeals recently concluded that a non-employer “person,” who enjoys the immunity contained in West Virginia Code § 23–2–6a may not be made a defendant in a cause of action brought pursuant to W. Va. Code § 23–4–2(d)(2)(ii). Accordingly, the high court answered the certified question in the negative. A worker was allegedly instructed by his supervisor to remove a counterweight on an end loader to access the fuel tank. While the worker was removing the counterweight, it fell on top of him and killed him. The worker’s widow filed a “deliberate intent” cause of action in state court against the employer and the worker’s supervisor. The employer removed the case to federal court, contending in pertinent part that the diversity-defeating defendant–the supervisor–had been fraudulently joined inasmuch as West Virginia Code § 23–4–2(d)(2)(ii) provided a cause of action against an employer only and that individuals, such as supervisors or co-employees, were not proper party defendants. The West Virginia high court concluded that it was the legislature’s clear intent not to extent potential liability for intentional torts to defendants such as the worker’s supervisor. A non-employer person is not a viable defendant in a (ii) case.

Reported by Thomas A. Robinson, J.D.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See Young v. Apogee Coal Co., LLC, 2013 W. Va. LEXIS 1229 (Nov. 6, 2013) [2013 W. Va. LEXIS 1229 (Nov. 6, 2013)]

See generally Larson’s Workers’ Compensation Law, §§ 103.04, 111.03 [103.04, 111.03]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.



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