Transcript Slide 1

A Guide to General West
Virginia Litigation Principles
Presented by:
Kelly C. Morgan
David E. Schumacher
Basic Elements of WV Tort Law
 WV employs a traditional English common-law tort system.
 Negligence is the failure to exercise ordinary care.
 Ordinary care is that kind and degree of care or caution which
an ordinary prudent and careful person would exercise under
the same or similar circumstances.
 Negligence is doing something a reasonably prudent person
would not do in the same or similar circumstances.
 Failing or refusing to do something a reasonably prudent
persons would have done in the same, or similar circumstance.
WV Tort Law, cont.
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A negligence claim requires a claimant to prove that a
breach of duty occurred which proximately caused injury.
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Negligence cannot be presumed; it must be proven by a
preponderance of the evidence
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Contributory negligence - combined negligence of
plaintiff and defendant(s) which proximately caused the
accident.
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Must be proven by a preponderance of the evidence by
party asserting it.
WV Tort Law, cont.
 Assumption of risk - knowing full well the hazards
involved or reasonably expected hazards involved
and failing to take precautions to protect oneself.
 Proximate cause - the negligent act contributing to
the accident.
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the cause which in actual sequence, unbroken
by any independent cause, produces an event,
and without which, the event would not have
occurred.
Comparative Negligence
 West Virginia follows the 50% Rule.
 If Plaintiff is 50% or greater at fault, then Plaintiff is
barred from any recovery.
 If Plaintiff’s negligence is less than 50%, Plaintiff may
recover, but, if damages are awarded there is a
reduction or offset by the percentage of fault
attributed to Plaintiff.
 “much better than the lottery”
 Bradley v. Appalachian Power Co. 256 S.E.2d 879
(1979).
Agency
 Employer is liable for all damages proximately caused
by negligence of an agent/employee acting within the
scope of employment.
 Act doesn’t need to be one directed by employer if
employer has the “right to determine where and in
what manner the work needs to be done.”
 Limitations on exposure include necessity of employee
acting within the scope of employment and the act as
one which is deemed to be natural, direct, or logical
result of act “directed” by employer.
 Must be negligent act
Independent Contractor Defense
 Employer not responsible for independent contractor’s
acts.
 If employer has the right or reserves the right to
exercise control over where and in what manner the
work will be done, then individual is not independent
contractor but employee for whom employer will be
responsible.
 Oddities with statutes including Medical Professional
Liability Act (MPLA)
 MPLA’s immunity provisions, limitations on
damages, and ostensible agency issues
Property Damage Claims
 Total
loss or destruction of property-normally
damages are determined by the fair market value at the
time of this loss or destruction.
Personal Property
 Damaged but not totaled property – general rule is
difference between fair market value immediately
before the damage and its FMV immediately after.
 Note that if the property is not totaled then measure
of damages could also include reasonable expenses
incurred by owner due to damage.
 However, if property can be restored to previous
condition then measure of damages is the cost of
restoration to its condition prior to the accident –
Again, damages would be cost of repair plus expenses
directly related to the injury including loss of use
during repair.
Personal Property, cont.
 Note that if cannot be repaired or repair costs exceed
market value then owner may obtain lost value plus
expenses directly related to the damage including loss
of use.
 Testimony specific as to the value to a specific plaintiff,
or price paid by plaintiff is inadmissible.
 There is an odd case or two discussing cost of repairs
plus diminished value-specifically car frame damage
case – even so the total - cost of repair plus diminished
value should not exceed market value.
Realty
 Similar analysis as to damages
 Cost of repair plus expenses directly related to the
injury including loss of use. Repair costs not to exceed
fair market value – although loss of use, etc. can still be
obtained in interim including damages for annoyance
and inconvenience during loss of use.
Adjusting Property Damage Claims
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Cautionary tale
First party claims
Wrongful denial
Unreasonable delay in payment leads to foreseeable
consequential damages naturally flowing from delay
 “Substantially prevails”
 Can recover net economic loss caused by the delay as
well as an award for aggravation and inconvenience –
substantially prevailing can be low standard favoring
the claimant/first-party insured.
Adjusting Property Damage Claims, cont.
 Indicators – insurance company offers amount materially
below the damage estimate provided by the insured and
jury verdict is an amount that approximates that previously
suggested by the insured.
 Be careful when insurer provides reasonable demand in
advance of filing lawsuit since any settlement thereafter for
“an amount equal to or approximating the amount claimed
by insured” after action is filed or jury verdict of similar
amount, can be used as evidence by plaintiff to help
recover reasonable attorney fees from his insurer which
were necessitated for payment.
 Reasonable attorney fees are determined by Court not jury.
Damages
 Damages should compensate plaintiff for injuries caused by
another
 Speculation is inappropriate, normally past injuries are
compensated based on causation by “reasonable probability”
while future injuries are based on reasonable certainty or, to
a reasonable degree of medical probability vs. reasonable
degree of medical certainty.
 Damages and injuries run the gamut – preponderance of the
evidence for present and past injuries and to a reasonable
degree of medical probability including bodily injuries, with
proposed duration (to a reasonable degree of medical
certainty with regard to duration)
 Past pain and suffering and future pain and suffering.
Damages, cont.
 Again, for a determination, future requires testimony
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regarding reasonable degree of certainty and duration
whereas past requires reasonable degree of medical
probability relationship only.
Past pain and suffering
Future pain and suffering
Inconvenience and suffering as well as the ability to
enjoy life in the future
Medical expenses – reasonable and necessary.
Reasonably certain loss of earnings and/or future
earning capacity with fringe benefits analysis
Household service losses
Duration of injuries – reasonable certainty with
probable life expectancy analysis.
Non-economic Damages
 Sympathy is inappropriate but finds its way into many damage
aspects including;
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non-economic damages
Future economic damages
Wrongful death damages
Punitive damages
 So the sympathy non-sympathy relationship is cloudy, at the very
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least.
Non-economic damages or general damages equal compensation
for pain, suffering, loss of enjoyment of life and loss of
consortium. Solely left to the jury.
Loss of enjoyment of life – jury determines how injured parties
have been deprived of his or her customary activities.
Consortium – companionship, comfort, guidance, kindly offices
and advice between husband and wife or parent and child.
Non economic losses includes aggravation of pre-existing injury
– eggshell plaintiff.
Future economic damages
 Again, sympathy can be a factor and hidden in the
resulting jury verdict.
 Plaintiff’s ploy is to hire economists who provides a
high and low range for loss of earnings and future
fringe benefits which are reduced to present value
providing a large spectrum within which a jury may
make a finding.
 Without rebuttal from the defendant anything within
that spectrum is acceptable and will not be
overturned.
 Difficulty in providing rebuttal without helping to
establish a minimum for plaintiff recovery.
Punitive Damages
 Always be aware of sympathy factor.
 Even with various decisions reached by WV Supreme
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Court, the limitations on punitive damages tend to be a
moving target, however: punitive damages must bear “a
reasonable relationship” to compensatory damages and/or
injuries/harm.
West Virginia requires reasonable constraint on jury
discretion for punitive – meaningful and accurate review by
trial court and meaningful and accurate appellate review.
Punitive damages include consideration of – reasonable
relationship to the harm.
Note whether harm is relatively small or grievous.
Reprehensibility of defendants conduct.
Duration of conduct.
Punitive Damages, cont.
 Actual knowledge of effect of conduct.
 Efforts to cover-up conduct or action or harm.
 Similar past conduct.
 Efforts to settle claim.
 Also note profitability of conduct. If profits proven,
damages should exceed the profit earned from the
conduct.
 Financial position of defendant is relevant if punitive
damages awarded.
Punitive Damages, cont.
 Development of cases indicate that single digit multipliers
are a relationship of up to 9 to 1 can be considered
reasonable and constitutional. (That is the relationship
between punitive and compensatory damages.)
 However note that in the TXO case mentioned in the
handout for slander and liable against TXO, the Supreme
Court, while establishing that 5 to 1 could easily be a
reasonable relationship with higher ratios being considered
constitutional depending upon the degree of “evil
intention” of the defendant allowed a 500 to 1 ratio to stand
based on a compensatory damages of $19,000 vs. punitive
damages of $10 million.
Wrongful Death Damages
 Again, sympathy can be a factor.
 By statute, damages for wrongful death claim, include:
 Sorrow and mental anguish suffered by family and/or other
beneficiaries.
 Loss of solace, companionship, etc. – consortium by family
members and other beneficiaries.
 Compensation for reasonable expected loss of income of
decedent and services provided by the decedent – usually
through economist.
 Medical expenses for care and treatment, etc. of decedent.
 Funeral expenses.
 Note, the only two which provide hard factual content are
actual medical expenses and funeral expenses, everything else
can be expanded upon by jury determination.
Fee Shifting Statutes
 It should be noted that there are various statutes – as many
as 7 in West Virginia that allow fee shifting. In other words
attorneys fees and costs can be shifted though certain
statutes including workers’ compensation claims, WV
Surface Mining and Reclamation Act, WV Whistleblowers
Statute, Request for Freedom of Information, actions under
the Human Rights Act of WV and a few others.
 Various federal statutes allow the same thing, including
civil rights actions, family medical leave, Americans with
disability Act, Fair Labor Standards Act, age discrimination
and employment, voting rights, etc.
 These claims are used because of the significant fees that
can be awarded which are left to the Court’s discretion.
Governmental Tort Claims &
Insurance Reform Act
 Regulates
actions against political subdivisions
charged with the performance of a government
function
 Enacted “to limit liability of political subdivisions and
provide immunity to political subdivisions in certain
instances and to regulate the costs and coverage of
insurance available to political subdivisions for such
liability.”
Tort Immunities Act, cont.
 The Legislature found that the political subdivisions of
this state were unable to procure adequate liability
insurance coverage at a reasonable cost due to:
“The high cost in defending such claims, the risk of
liability beyond the affordable coverage, and the
inability of political subdivisions to raise sufficient
revenues for the procurement of such coverage
without reducing the quantity and quality of
traditional governmental services.”
Tort Immunities Act, cont.
 Employee - an officer, agent, employee, or servant
(regardless of full-time or compensated or not)
who is authorized to act and is acting within the
scope of his or her employment for a political
subdivision.
 Includes any elected or appointed official of a
political subdivision.
 Does not include independent contractors.
 Municipality - any incorporated city, town or
village and all institutions, agencies or
instrumentalities of a municipality.
Tort Immunities Act, cont.
 Political subdivision includes any of the following:
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county commission;
municipality;
county board of education;
separate corporation or instrumentality established by one
or more counties or municipalities;
any instrumentality supported in most part by
municipalities;
any public body charged by law with the performance of a
government function and whose jurisdiction is coextensive
with one or more counties, cities or towns;
a combined city-county health department;
public service districts;
volunteer fire departments;
emergency service organizations
Tort Immunities Act, cont.
 Hospitals of a political subdivision and their
employees are expressly excluded
 Not the State of the agencies
 Scope of employment - employee acting in good
faith within the duties of his or her employment or
tasks lawfully assigned by a competent authority
 does not include corruption or fraud.
Tort Immunities Act, cont.
 State - the state of West Virginia, including
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the Legislature
the supreme court of appeals
the offices of all elected state officers,
all departments, boards, offices, commissions,
agencies, colleges, and universities, institutions
Tort Immunities Act, cont.
Immunities
 A political subdivision cannot be held liable for
damages in any civil action for injury, death, or loss to
person or property allegedly caused by an act or
omission of the public entity or an employee of the
public entity
Generally speaking, a public entity can be held
liable for injury, death, or loss to person or
property caused by a negligent act or omission of
an employee who is acting within the scope of his
or her authority.
 Actions for prospective or extraordinary relief (mandamus,
injunction, prohibition, etc.) are not restricted.
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Tort Immunities Act, cont.
 A political subdivision enjoys absolute immunity,
irrespective of negligence, for losses resulting from:
 Legislative or quasi-legislative functions;
 Judicial, quasi-judicial or prosecutorial functions;
 Execution or enforcement of the lawful orders of any court;
 Adoption or failure to adopt an ordinance, policy, statute,
rule, regulation or other law;
 Civil disobedience or the method of providing police, law
enforcement or fire protection;
 Snow or ice conditions or temporary or natural conditions on
any public way or other public place, unless the condition is
affirmatively caused by the negligent act of a political
subdivision;
 Natural conditions of unimproved property;
Tort Immunities Act, cont.
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Assessment or collection of taxes;
Licensing powers;
Inspection powers relating to real or personal property;
Any claim covered by any worker's compensation law;
Misrepresentation, if unintentional;
Court-ordered work release, treatment or rehabilitation
program;
Operation or maintenance of any prison, jail or correctional
facility, or injuries resulting from the parole or escape of a
prisoner;
Claim or action based on the theory of manufacturer's
products liability or breach of warranty or merchantability or
fitness for a specific purpose;
The operation of dumps, sanitary landfills; or
Issuance or refusal to issue revenue bonds
Tort Immunities Act, cont.
 An employee of a political subdivision is immune
from liability unless one of the following applies:
 If the employee’s acts or omissions were manifestly
outside the scope of employment or official
responsibilities;
 If the employee’s acts or omissions were performed with
malicious purpose, in bad faith, or in a wanton and
reckless manner; or
 If liability is imposed upon the employee by a provision of
the West Virginia Code.
 Immunity of an employee does not affect or limit
the liability of the political subdivision for an act of
the employee.
Tort Immunities Act, cont.
 The Tort Immunities Act contains a strict prohibition
against awards of punitive or exemplary damages.
 Damages for economic losses are not capped.
 Non-economic damages are capped at $500,000.
 Procedure
 Actions against a public entity is located or where the cause of
action arose.
Tort Immunities Act, cont.
Special Duty Doctrine
 The duty imposed upon a governmental entity is one
owed to the general public, and unless the injured party
can demonstrate that some special relationship existed
between the injured person and the allegedly negligent
entity, the claim is barred. Jeffrey v. West Virginia Dep’t of
Pub. Safety, Div. of Cor., 198 W.Va. 609, 614, 482 S.E.2d 226, 231
(1996).
 The public duty doctrine is a principle independent of the
doctrine of governmental immunity, although in practice it
achieves must the same result. Benson v. Kutsch, 181 W.Va. 1, 2,
380 S.E.2d 36, 37 (1989).
Tort Immunities Act, cont.
 The public duty doctrine is not an immunity; but rests on
the principle that recovery may be had for negligence only if
a duty has been breached which was owed to the particular
person seeking recovery. Parkulo w. West Virginia Bd. of
Probation & Parole, 199 W.Va. 161, 172, 483 S.E.2d 507, 518 (1996).
 Under the public duty doctrine, the governmental entity’s liability
for nondiscriminatory governmental functions may not be
predicated upon the breach of a general duty owed to the public as
a whole; instead, only the breach of a duty owed to the particular
person injured is actionable.” Wolfe v. City of Wheeling, 182 W.Va.
252, 256, 387 S.E.2d 307, 310 (1989).
 The linchpin of the “public duty doctrine” is that some
governmental acts create duties to the public as a whole and not to
the particular private person or private citizen who may be
harmed by such acts. Parkulo, 199 W.Va. at 172, 482 S.E.2d at 518.
Tort Immunities Act, cont.
 A special relationship only exists when there exists:
(1) An assumption by state governmental entity of an
affirmative duty to act on behalf of the party who was injured;
(2) knowledge on the part of the state governmental entity’s
agents that inaction could lead to harm;
(3) some form of direct contact between the
governmental entity’s agents and the injured party; and
state
(4) that party’s justifiable reliance on the state governmental
entity’s affirmative undertaking.
Syllabus Point 10, Parkulo, 199 W. Va. At 164, 483 S.E.2d at 510.
Tort Immunities Act, cont.
 The determination of a “special duty” is generally a question
of fact for the trier of fact. Syllabus Point 11, Parkulo.
Insurance
 When a public entity or its employee is insured under a liability
insurance policy, the terms of the policy govern rights and
obligations of the public entity and the insurer with respect to the
investigation, settlement, payment, and defense of suits against
the public entity, or its employees covered by the policy. W. Va.
Code § 29-12A-5.
 Many policies incorporate by reference the language of any
applicable West Virginia statutes and expressly mandate that
statutory language supersedes policy language where
conflicts between the two are present. Parkulo v. West Virginia
Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
Tort Immunities Act, cont.
 This, of course, requires diligence on the part of the
underwriter to know and understand the statutory and
regulatory provisions of West Virginia law. W. Va. Code
§ 33-11-1, et seq
 A public entity has a right of indemnity against an
insurer up to the limits of the policy.
 A public entity and its employees cannot be held liable
for any costs, judgments or settlements paid through an
applicable policy of insurance. WV Code § 29-12A-9.
Tort Immunities Act, cont.
Judgments
 Any judgment entered against a political subdivision
for a loss caused by an act or omission of the political
subdivision or its employee cannot be satisfied by
execution, judicial sale, garnishment, or attachment of
the political subdivision’s real or personal property,
money, accounts or investments. W. Va. Code § 2912A-10(a).
 Judgments can only be paid from funds allocated
by the political subdivision allocated for that
purpose. W. Va. Code § 29-12A-10(b).
 If insufficient funds have been allocated, the
taxing authority of the political subdivision will
place the item on the next annual fiscal year
budget. Id.
Tort Immunities Act, cont.
Defense of Employees
 A political subdivision must provide for the defense
of an employee in any state or federal court in any civil
action or proceeding to recover damages for injury,
death, or loss to persons or property caused by an act or
omission of the employee if the act or omission is
alleged to have occurred while the employee was
acting in good faith and not manifestly outside the
scope of his employment or official responsibilities. W.
Va. Code § 29-12A-11.
 Funds expended by a public entity in defending its
employees can be apportioned from funds appropriated
for such a purpose or pursuant to a contractual
agreement between the public entity and its insurer.
Tort Immunities Act, cont.
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When it was plead that an officer or employee of a public entity has
acted maliciously, criminally or in bad faith, a compelling argument
can be presented that neither the political subdivision, nor its
insurer, has a duty to defend the employee.
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If a political subdivision refuses to provide a defense to an employee,
an employee may file an action for declaratory relief to determine
the veracity of such refusal. W. Va. Code § 29-12A-11(c).
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In West Virginia the duty to defend is broader than the duty to
indemnify. Bower v. Hi-Lad. Inc., 216 W.Va. 634, 651 609 S.E.2d
895, 912 (2004).
 If one allegation of the complaint would be covered then
required to defend the insured on all claims although the
company may ultimately not owe any duty to indemnify.
Tort Immunities Act, cont.
Indemnification of Employees
 The Tort Immunities Act provides that an employee
is to be indemnified for the amount of any judgment
rendered against the employee in a state or federal
court that is for damages for injury, death, or loss to
persons or property caused by an act or omission of
the employee, if the employee was acting in good
faith and within the scope of his employment or
official responsibilities.
Tort Immunities Act, cont.
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The duty to indemnify arises once a determination has
been made; however, an insurer has a greater
obligation to defend than indemnify.
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A public entity has the right to seek recoupment for fees,
costs, and payments made on behalf of an employee if it
is shown that the conduct of the employee which gave rise
to the claim or action as outside the scope of his
employment or if the employee fails to cooperate in good
faith in the defense of the claim or action.
Tort Immunities Act, cont.
 There may be instances in which the position of the
public entity and an employee are adverse and
additional counsel will need to be retained for each.
Procedure
 From a procedural standpoint, actions against a public
entity are located or where the cause of action arose.
 When a suit is instituted under the authority of the
Tort Immunities Act, the public entity must be named
as a defendant.
Tort Immunities Act, cont.
 An employee acting within the scope of his
employment cannot be named as a defendant.
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Does circumstantial evidence exist that the plaintiff
believes the employee was acting outside the scope of
employment.
As matter of practice, however, the term “scope of
employment” should be broadly construed.
If an employee is named without specific allegations
that their actions were manifestly outside the scope of
their employment or performed with malicious
purpose, in bad faith, or in a wanton and reckless
manner, that the employee is immune and must be
dismissed.
Qualified Immunity
 The common law immunity of the State in suits brought under the
authority of W. Va. Code § 29-12-5 with respect to judicial,
legislative, and executive (or administrative) policy-making acts
and omissions is absolute and extends to officials when
performing those functions. Syl. Pt. 7, Parkulo, 199 W.Va. at 161,
483 S.E.2d at 507.
 A public executive official who is acting within the scope of
this authority and is not covered by the provisions of the Tort
Immunities Act, is entitled to qualified immunity from
personal liability for official acts if the involved conduct did
not violate clearly established laws of which a reasonable
official would have known.
 There is no immunity for an executive official whose acts are
fraudulent, malicious, or otherwise oppressive. Syl. Pt 8, Parkulo.
 Although qualified immunity available to a state official is
generally also available to the State, the existence of the State’s
immunity of the State must be determined on a case-by-case basis.
Qualified Immunity, cont.
 The common law doctrine of qualified immunity is
designed to protect public officials from the threat of
litigation resulting from difficult decisions which must
be made in the course of their employment. Clark v.
Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).
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The Supreme Court of Appeals concluded that the doctrine
of qualified immunity bars a claim of mere negligence
against the Department of Natural Resources, a state
agency not within the purview of the West Virginia
Government of Tort Claims and Insurance Reform Act, and
against Officer Dunn, an officer of that department
acting within the scope of his employment, with
respect to the discretionary judgments, decisions, and
actions of its public officers. Id. at 380.
Qualified Immunity, cont.
 To overcome this immunity, a plaintiff must
establish that the agency employee or official
knowingly violated a clearly established law, or
acted maliciously, fraudulently, or oppressively.
Parkulo v. West Virginia Board of Probation and Parole,
199 W.Va. 161, 483 S.E.2d 507 (1996); Clark, 465 S.E.2d
394 (citing State v. Chase Securities, Inc., 188 W.Va.
356, 424 S.E.2d 591 (1991)).
Qualified Immunity, cont.
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The State, its agencies, officials and employees
are immune for acts or omissions arising out of
the exercise of discretion in carrying out their
duties, so long as they are not violating any
known law or acting with malice or bad faith. Syl.
pt. 8, Parkulo.
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The simple use of the words “willful, deliberate, or
intentional” is insufficient to overcome the
Defendant’s entitlement to qualified immunity. See
Pinder v. Johnson, 54 F.3d
1169, 1173 (4th Cir.
1996)(stating that for a right to be clearly established,
it must be established in a particularized and relevant
sense, not merely as an overarching entitlement to due
process.").
Qualified Immunity, cont.
 State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992) -
scrutinized the common law doctrine of qualified immunity.
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“The provision of immunity rests on the view that the threat
of liability will make federal officials timid in carrying out
their official duties, and that effective government will be
promoted if officials are freed the costs of vexations and often
frivolous damages suits.”
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Employed the standard developed by the United States
Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 812
(1982), holding that “government officials performing
discretionary functions generally are shielded from civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.”
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Defined “reasonable person” as a “a reasonable public official
occupying the same position as the defendant public official.”
Qualified Immunity, cont.
 Pearson v. Callahan, 129 S. Ct. 808, 815-16, 172 L.
Ed. 2d 565 (2009) - Supreme Court of the United
States established a rigid two-step sequence for
determining a defendant's entitlement to qualified
immunity.
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A court must first decide whether the facts alleged set
forth a violation of a constitutional right
If so, the court must decide whether the right at issue
was 'clearly established' at the time of the defendant's
alleged misconduct.
Qualified Immunity, cont.
 “Immunities under West Virginia law are more than a
defense to a suit in that they grant governmental bodies
and public officials the right not to be subject to the
burden of trial at all.” Hutchinson v. City of Huntington,
198 W.Va. 139, 479 S.E.2d 649 (1996)
 “The very heart of the immunity defense is that it
spares the defendant from having to go forward with
an inquiry into the merits of the case.” Id.
 Justice Cleckley in Hutchinson wrote:
 An assertion of qualified or absolute immunity should be
heard and resolved prior to any trial because, if the claim
of immunity is proper and valid, the very thing from which
the defendant is immune – a trial
Qualified Immunity, cont.
 Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156
(2001) - the United States Supreme Court used almost
identical reasoning when it recognized the importance
of a government official’s right to be summarily
dismissed from litigation when qualified immunity is
applicable. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.
2151, 2156 (2001).
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“The privilege of immunity from suit is an immunity rather
than a mere defense to liability, and like absolute immunity
it is effectively lost if a case is erroneously permitted to go
to trial.”
Immunities spare governmental defendants from the other
burdens of litigation.
Other burdens of litigation have been held to include
discovery.
See Yoak v. Marshall University Bd. of
Governors, 672 S.E.2d 191 (2008).
Deliberate Intent
 A “deliberate intent” cause of action is one in which an
injured employee sues his or her employer as a result
of a workplace accident resulting in bodily injury
 Seeks damages against an employer over and above
benefits provided by workers compensation insurance
coverage.
 The West Virginia Legislature has authorized these
lawsuits to proceed under the “deliberate intent”
statute, West Virginia Code § 23-4-2(d)(2).
Deliberate Intent, cont.
 There are 2 types of deliberate intent claims.

West Virginia Code § 23-4-2(d)(2)(i) - permits
claimants to bring suit where the employer's conduct
is done with the deliberate intention to produce the
specific resulting injury or death.
 Requires a showing of an employer’s actual,
specific intent to harm the employee.
 Merely establishing negligence, gross negligence,
willful, wanton or reckless conduct does not meet
the threshold required under part (i) of the
statute.
 Punitive damages are available.
 Very uncommon
Deliberate Intent, cont.
 West Virginia Code § 23-4-2(d)(2)(ii), the claimant need
not establish that the employer intended to cause injury,
but rather, that the employer intentionally exposed the
employee to an unsafe working condition.
 The 5 element test set forth in part (ii) is as follows:
(A)That a specific unsafe working condition
existed in the workplace which presented a high
degree of risk and a strong probability of serious
injury or death;
(B)That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe
working condition and of the high degree of risk and
the strong probability of serious injury or death
presented by the specific unsafe working condition
Deliberate Intent, cont.
(C) That the specific unsafe working condition was a
violation of a state or federal safety statute (such
as OSHA, ANSI, MSHA), rule or regulation or of a
commonly
accepted
and
well-known
safety
standard;
(D) the employer nevertheless intentionally thereafter
exposed an employee to the specific unsafe working
condition; and
(E) That the employee exposed suffered serious
compensable injury or compensable death whether a
claim for benefits is filed or not as a direct and
proximate result of the specific unsafe working
condition.”
 Punitive damages are not recoverable.
Deliberate Intent, cont.
 Common items used to establish unsafe working
conditions include:
 lock out/tag out failures (repairing vehicles, repairing





equipment);
improper or lack of training and safety training
(operation of equipment such as forklifts or cranes by
untrained employees);
improper or lack of safety equipment (crib blocks,
barriers);
improper modification of equipment (using equipment
outside the scope of its intended use, or adding devices
to equipment);
improperly constructed work areas (slopes, ditches,
scaffolding);
unsafe and improper loading and unloading procedures.
Deliberate Intent, cont.
 Typical
examples of demonstrating
knowledge requirement are as follows:
the
actual
 prior similar accidents;
 prior complaints;
 prior safety violations and/or fines;
 employer having observed the workplace condition or
conduct;
 employer directing the employee to engage in unsafe
conduct;
 employer having prior knowledge of the actual unsafe
condition;
 failure to perform mandatory hazard assessment.
Deliberate Intent, cont.
A few things should be noted when defending against a
deliberate intent lawsuit:
 There is no consideration of contributory negligence
on the part of the claimant, except when the employer has
proof of the employee's intent to self-injure or commit
suicide, or if there is evidence of drug/alcohol intoxication
(Roberts v. Consolidated Coal Co., 590 S.E.2d 651 (2000)).
 An employer does not have the requisite actual knowledge
of an unsafe working condition if the unsafe working
condition existed solely as a result of the employees
conduct. Deskins v. SW Jack Drilling, 600 S.E.2d 237
(W.Va. 2004).
 If an accident is a completely anomaly with no prior similar
incidents, there may be no evidence that the employer
exposed its employee to an unsafe condition in violation of
any rule or regulation. Sedgmeyer v. McElroy Coal, 640
S.E.2d 129 W.Va. (2006).
Deliberate Intent, cont.
 An employer cannot avoid liability by claiming
ignorance of an unsafe working condition as a
result of failing to do a mandatory hazard assessment.
Ryan v. Clonch Indust., 639 S.E.2d 756 (W.Va. 2006).
 With respect to an unsafe working condition allegedly
arising out of a failure to train, not remembering and
not knowing regulations and safety procedures and
precautions are two different things, and so long as the
requisite training was provided, not remembering
certain aspects as an employee does not automatically
render the employer liable. Ramey v. Contractor
Enterprises, Inc., No. 34804 (2010).
Deliberate Intent, cont.
 “Actual knowledge is a high threshold that cannot be successfully
met by speculation or conjecture; this requirement is not
satisfied merely by evidence that the employer
reasonably should have known of the specific unsafe
working condition and of the strong probability of serious
injury or death presented by that condition. It must be shown
that the employer actually possessed such knowledge.
Moreover, knowledge of the specific unsafe working condition
alone is insufficient; rather, a defendant must also have realized
the high degree of risk and strong probability of serious injury or
death presented by the specific unsafe working condition.”
Harbolt v. Steel of W. Va., Inc., 640 F. Supp. 2d 803, (S.D.W. Va.
2009).
 In the case of an employee's death, a personal representative of
the decedent's estate may assert a deliberate intention claim
against a decedent's employer on behalf of any persons so long as
the decedent could have maintained the action against the
employer. Murphy v. E. Am. Energy Corp., 680 S.E.2d 110 (W.Va.
2009).
Deliberate Intent, cont.
 Employers are entitled to an offset for whatever sums have
been paid to a claimant under workers' compensation
benefits. This is generally the entirety of the claimant's
medical bills, his or her lost wages (typically around 70%),
and any disability payments.
 In cases where the injury is severe, permanent, and
debilitating, a claimant can allege and demonstrate
damages in the millions of dollars, which workers
compensation does not pay, including pain and suffering,
loss of household services, future lost wages and benefits
until retirement age, loss of the capacity to enjoy life, costs
for future medical services and life-care plans, and spousal
loss of consortium.
Deliberate Intent, cont.
 As a practical matter, even when the hurdles to a
deliberate intent action are explained, the jury will
nonetheless tend towards employing a negligence
standard in rendering its decision.
 The immunity from liability extended to political
subdivisions by West Virginia Code § 29-12A5(a)(11) (1992) includes immunity from “deliberate
intent” causes of action brought. Syl. Pt. 4, Michael
v. Marion Cty Bd. of Educ., 198 W.Va. 523, 482 S.E.2d
140 (1996).
Deliberate Intent, cont.
Smith v. KWV Operations, LLC, U.S. Dist Lexis 18827 (S.D.W.Va. 2011)
 An employee's deliberate intent and loss of consortium action can be
maintained in federal court based on diversity jurisdiction.
Persinger v. Peabody Coal Company, 196 W. Va. 707 (1996)
 WV Supreme Court created a new cause of action for fraudulent
misrepresentation, which takes place in the context of an employer’s
defense of a worker’s compensation claim. An employee was injured
while driving a coal truck and brought an action against the employer for
knowingly filing a false statement with the WV Workers' Compensation
Fund in opposition to the employee's claim. A claimant could maintain
the private cause of action for fraudulent misrepresentation against an
employer for knowingly and intentionally filing a false statement, even
though he or she is ultimately awarded workers’ compensation benefits.
The rationale was that the employee was not attempting to recover
damages for the initial workplace injury, but instead for the harm
suffered from the fund originally denying benefits. Punitive damages
and attorney's fees were recoverable
Joint & Several Liability
 The law of joint and several liability is codified in WV
Code § 55-7-24 and applies to causes of action that
accrued on or after July 1, 2005.
 If any defendant is found to be 30% or less at fault,
then such defendant’s liability to the plaintiff will
be several and not joint, which means that the
defendant is only liable to the plaintiff for the damages
attributable to the defendant.

For example, if a particular defendant is found to be
20% at fault and the damages are determined to be
$10,000.00, then that defendant is only liable to the
plaintiff in the amount of $2,000.00 (subject to
reallocation as discussed below).
Joint & Several Liability, cont.
 The exceptions to the new joint and several liability
rule apply to those defendants who are determined by
a jury to have:
(1)
Acted with intent to inflict injury or
damage
(2)
Acted in concert with other defendants as
part of a common plan or design resulting
in harm;
(3)
Negligently or willfully caused the unlawful
emission or disposal or spillage of a toxic or
hazardous substance; or
(4) Manufactured or sold a defective product in
which strict liability is imposed.
Joint & Several Liability, cont.
 If a claimant is unable to collect from a defendant, the claimant may,
no later than 6 months after the judgment becomes final, request
reallocation of any uncollected amount among the other parties.
 It is for the Court to decide whether uncollectible and to
reallocate among the other parties based upon the percentages of
fault at issue, which includes the plaintiff’s percentage, if
partially at fault.
 However, a court cannot reallocate to any defendant an uncollectable
amount greater than that defendant’s percentage of fault multiplied by
such uncollected amount.
 A defendant subject to reallocation still maintains any rights and
obligations of indemnity and contribution which the defendant
may maintain or owe as against any other party.
 An exception to reallocation is triggered when a defendant’s
percentage of fault is equal to or less than the plaintiff’s
percentage of fault or the percentage of fault of the
defendant is less than 10%.
Joint & Several Liability, cont.
 Under the Tort Immunities Act, the joint and
several liability doctrine is modified.

The court in assigning the total amount awarded as
damages shall enter judgment of joint and several
liability against every defendant who bears 25% or more
of the negligence attributable to all defendants. W. Va.
Code § 29-12A-7(d).

The judgment is several, but not joint, among all
defendants who bear less than 25% of the negligence
attributable to all defendants.
Joint & Several Liability, cont.
 A right of contribution exists in favor of each
defendant who has paid to a plaintiff more than the
percentage of the dollar amount awarded attributable
to him relative to the percentage of negligence
attributable to him.
 No
right of contribution exists against a
defendant who engages in a good faith settlement
with the plaintiff prior to the jury’s report of its
findings to the court or the court’s findings as to total
dollar amount awarded as damages.
Collateral Source
 Money a plaintiff has received from a collateral
source is not admissible. Pack v. Van Meter, 177
W.Va. 485, 354 S.E.2d 581 (1986).
 The collateral source rule normally operates to preclude the
offsetting of payments from health and accident companies
and other collateral sources against the damages claimed
by the injured party. Ratlief v. Yokum, 167 W.Va. 779, 280
S.E.2d 584, 589-590 (1981).
 “The collateral source rule was established to prevent the
defendant from taking advantage of payments received by
the plaintiff as a result of his own contractual arrangements
entirely independent of the defendant.”
Collateral Source, cont.
 Harmless error applies where evidence of a
collateral source was introduced, but the jury
found against the plaintiff on liability therefore it
never addressed the issue of damages.
 The West Virginia Supreme Court of Appeals has
not specifically addressed the issue of write-downs
or write-offs.

However, West Virginia law does not require that
a plaintiff actually have paid medical expenses in
order to recover them. Syllabus Point 14, Long v.
Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975).
Collateral Source, cont.
 Public entities, however, are granted greater leeway in
collateral sources when it comes to temporary total
disability benefits under the West Virginia Workers’
Compensation system.


West Virginia Code § 23-4-1(a) sets forth that when an
employee of the state and its political subdivisions, who
have received personal injuries in the course of and
resulting from their covered employment, the employees
are ineligible to receive compensation while the employees
are at the same time and for the same reason drawing sick
leave benefits.
State employees may collect sick leave benefits until
receiving temporary total disability benefits. The employee
may have sick leave benefits restored following the receipt
of temporary total disability benefits by paying the
employer the temporary total disability benefits received or
an amount equal to the temporary total disability benefits
received.
Offers of Judgment
 Either party may serve upon the adverse party an
Offer to allow judgment to be taken against the
defending party for the money or property or to the
effect specified in the offer, with costs then accrued.
 If the offer is accepted the parties then file with the
court a notice of acceptance with proof of service and
the court shall direct entry of the judgment by the
clerk.
Offers of Judgment, cont.
 When there is a statutory provision that
specifically creates a right to attorney fees, the
circuit court must determine attorney’s fees
separately from the offer of judgment.


When the offer of judgment does not explicitly
provide that the amount of the offer is inclusive of
costs and attorney fees, the circuit court then must
determine costs and fees in addition to the amount of
the offer of judgment.
It is imperative that an offer of judgment
explicitly state that is inclusive of costs and
attorney fees.
Offers of Judgment, cont.
 If the offer is not accepted then it is considered
withdrawn.
 Should the case proceed to trial and the
judgment obtained by the opposing party is
not more favorable the opposing party then
bears the costs incurred following the making
of the offer.
 Costs do not include attorney fees incurred in
defending the case but include costs such as
expert costs, travel, exhibits, etc.
Offers of Judgment, cont.
 The fact that an offer is made but not accepted, or
accepted as part payment, does not preclude a
subsequent offer.
 There is a difference in the West Virginia and
Federal Rules of Civil Procedure for Offers of
Judgment.


In state court, an offer of judgment must be at any
time more than 10 days before the trial begins.
Under the Federal rules an offer of judgment must be
made at least 14 days before the date set for trial.
Third Party Practice
 West Virginia Rules of Civil Procedure Rule 13(a) requires that a
pleading state as a counterclaim any claim which at the time of
serving the pleading the pleader has against the opposing party,
if it arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claims and does not require for its
adjudication the presence of third parties of whom the court
cannot acquire jurisdiction.
 A defendant may bring a third-party complaint at any time after
commencement of the action. W. Va. R. Civ. Pro. Rule 14(a).
 Leave of the court is not required if the third-party complaint is
filed within ten (10) days after serving the original answer
otherwise the party must obtain leave of court.

Leave is to be freely given.
Third Party Practice, cont.
 Under Rule 18 of the West Virginia Rules of Civil
Procedure a party is permitted to assert a claim of relief
as an original claim, counterclaim, cross-claim, or
third-party claim, as the party has against an opposing
party.
 Joinder is also permitted if
(1) in the person’s absence complete relief cannot be accorded
among those already parties, or
(2) the person claims an interest relating to the subject of the
action and is so situated that the disposition of the action
in the person’s absence may
(i) as a practical matter impair or impede the person’s ability to
protect that interest, or
(ii) leave any of the persons already parties subject to substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest. W. Va. R. Civ.
Pro. Rule 19(a).
Third Party Practice, cont.
 A party may join an existing action as a plaintiff is they assert any
right to relief jointly, severally, or in the alternative in respect of
or arising out of the same transaction, occurrence, or series
of transactions or occurrences and if any question of law or fact
common to all these persons will arise in the action. W. Va. R.
Civ. Pro. Rule 20(a).
 Misjoinder of parties is not a ground for dismissal of the action
and parties may be added or dropped by order of the court or on
motion of any party or of its own initiative at any stage of the
action and on such terms as are just. W. Va. R. Civ. Pro. Rule 21.
 When a party has a claim against the plaintiff he/she may be
joined as a defendant and required to interplead when their
claims are such that the plaintiff is or may be exposed to double
or multiple liability. W. Va. R. Civ. Pro. Rule 22.
Uninsured/Underinsured Motorist
 West Virginia uninsured and underinsured motorist
coverage is controlled by statute found at West Virginia
Code § 33-6-31. These two coverages are not the same, and
have different laws applicable to each.
UM/UIM, cont.
Uninsured coverage (UM)
 Mandatory in West Virginia.
 There are 4 possible scenarios as to how a vehicle may be “uninsured” by
statute:
1. No bodily injury and property damage liability insurance as
required
 currently $20,000 per person and $40,000 per occurrence
for bodily injury claims, and $10,000 in property damage
claims
2. The insurance carrier denies coverage;
3. There is no certificate of self-insurance issued; or
4. If the owner or operator is unknown (i.e., John Doe driver).
 In uninsured motorist claims involving John Doe drivers, West Virginia
law requires that there be physical contact between the John Doe
vehicle and your insured’s vehicle.
 If there is not physical contact, the insured can still maintain an
uninsured motorist claim by establishing a close and substantial
physical nexus between an unidentified hit-and-run vehicle and the
insured vehicle.
UM/UIM, cont.
Underinsured coverage (UIM)
 underinsured coverage is optional
 At the time of the initial application, the insured is presented
with the option of purchasing underinsured coverage at an
additional cost.
 An “underinsured” motor vehicle means a vehicle with respect to
the ownership, operation or use of which there is liability
insurance applicable at the time of the accident, but the limits of
that insurance are either:
1. Less than limits the insured carried for underinsured motorists'
coverage; or
2. Has been reduced by payments to others injured in the accident
to limits less than limits the insured carried for underinsured
motorists' coverage.
UM/UIM, cont.
 If the claimant has injuries which then exhaust the
tortfeasor’s available liability coverage, then the claimant
will then turn to his or her own underinsured coverage.
 Constructive exhaustion - if the claimant does not exhaust
the available liability limits, he may nonetheless assert a
claim for underinsured coverage. However, the
underinsured insurance carrier will be given “credit” for
the amount of the liability limits.

For example, let’s assume State Farm, as the liability carrier, for
the tortfeasor, has a policy with bodily injury limits of
25/50. The claimant settles her claim with State Farm for
$18,000. The claimant then asserts a UIM claim. The UIM
carrier gets “credit” for the entire $25,000 before its liability
would begin such that, if the matter went to trial and the jury
returned a verdict in the amount of $22,000, the UIM carrier
would not be required to pay anything towards the judgment (as
opposed to paying $4,000 [$22,000-$18,000]).
Unfair Trade Practices
 Insurance is regulated by the West Virginia Insurance




Commissioner.
Framework for regulation is primarily set forth with
Chapter 33 of the West Virginia Code.
Primary change as a result of the implementation of the
2005 statute was the removal of third-party claims from
civil actions.
Previously they were numerous third-party claims being
filed on a regular basis against insurers which have since
been barred – at least in the civil setting.
Primary issues with regard to violations even for thirdparty claims involve promptness, timeliness, delays, or
reasonable explanations.
Unfair Trade Practices, cont.
 In the handout you’ll note that nearly every first and
third-party claim that can be filed with the Insurance
Commission contains a timeliness issue or
“reasonable” language.
 Whether it is:
 Acknowledgement
 Payment Affirmation of coverage denial
 Delayed investigation
 Failure to submit preliminary claim report
 Prompt settlement
 Prompt provision of a reasonable explanation
 All lead to potential fines from the Commissioner
Unfair Trade Practices, cont.
 Commissioner has significant independent powers but
the primary concern should be with regard to penalties
which can be for as much as $10,000 per act “of
intentional violation” of the West Virginia Code and
general business practices can be found based upon
multiple occurrences, even as few as 3 occurrences of
substantially similar violations for which the
Commissioner can impose penalties up to $250,000.
 The $10,000 penalty can be imposed per penalty and so
can become very significant.
 In addition to penalties there are unlimited awards for
economic damages and they can include penalties
such as license revocation.
Unfair Trade Practices, cont
 It should be noted that the findings within a third-
party claim of “egregious acts” or “general business
practice” can serve as evidence in a first-party claim to
support a punitive damage claim.
Regulatory Laws
 114 Code of State Regulations 14-1, etc.
 Really need to be looked at closely.
 Should be incorporated into claims adjustment system.
 Nearly every state has similar regulations.
 Primary note again, timeliness issues, in particular, specific
timeframes within which responses may be due including:
 15 days to provide Commissioner with a complete written
response to any inquiry made to the Commissioner and
provided to the insurer other than a Third-Party
Administrative Complaint.
Regulatory Laws, cont.
 Within the prompt investigation fair and equitable
settlement requirements set forth in the regulation is a
15 day working day requirement to commence an
investigation of any claim after receiving notice of the
claim.
 Insurer has 15 working days after receiving notice of
claim to notify first-party claimant of everything,
statements, forms, etc. that the insurer reasonably
believes will be required from the claimant.
 10 days after completing investigation to deny the
claim in writing or make an offer subject to the limits.
Regulatory Laws, cont.
 Insurance Commissioner has the power to determine whether an
offer is “unreasonably low” and has various factors he or she can
look at.
 Any denial of a claim must include the specific policy provision,
condition or exclusion upon which insurer is relying.
 Any denial must be in writing or a notation made in insureds
file.
 One of the issues that continues to arise is that if an insurer
needs more than 30 days after receipt of proof of loss from the
first-party claimant or a notice of claim from a third-party
claimant to determine whether the claim should be accepted or
denied, the insurer must provide written notification to claimant
within 15 working days after the initial 30 day period expires as to
the delay and the reasons for the delay and they must do so
thereafter every 45 calendar days.
Regulatory Laws, cont.
 Timing of the payment following settlement. Once a
settlement is reached, the insurer has 15 working says
to pay any amount finally agreed upon in the
settlement!!!
 Although most insurers contain internal rules
requiring it, the state regulations in West Virginia
require all communications and transactions from or
by the insured to be dated and maintained in the claim
file and further require the date and substance of all
oral communications be recorded in the claim file and
requires a record or copy of all forms sent to claimants
to be in the claim file.
Regulatory Laws, cont
 One of the things you have to be aware of is that under
the definition section of the statutory law which sets
up the regulations, (Chapter 33 of WV Code insurer is
every person engaged in the business of making
contracts of insurance).
 We recently represented an agent who was sued as an
insurer and could have been held to all the standards
set forth in the regs.
 Even though the agent only performed work at the
specific direction of insurer for adjustment purposes,
including pictures and collecting medical records,
with the insurer being responsible for making any
determinations.
Regulatory Laws, cont.
 Egregious act is defined within the regulations.
 It means conduct that is either 1) fraudulent or 2)
malicious and reckless whether or not the act
constituted a pattern corresponding to an unfair claim
settlement practice committed with such frequency as
to constitute a general practice.
 Failure to act due to negligence, lack of judgment and
incompetence or bureaucratic confusion is not an
egregious act.
Regulatory Laws, cont.
 Additional penalties available to the Commissioner can be found
within the handout.
 Can include cease and desist orders directed to the respondent
and penalties of $1,000 for each UTPA violation to an aggregate
of 10 of the violations which are not intentional, $5,000 for each
UTPA violation to an aggregate of $100,000 in a 6 month period
if the insurer knew or should have known it was a UPTA
violation and up to $10,000 for each UTPA violation without an
aggregate limit if the Commissioner finds an act was intentional
but not conducted with such frequency as to constitute general
practice.
 Fine of up to $250,000 if Commissioner finds that a violation
occurred with such frequency as to constitute a general business
practice.
 License revocation or suspension is also available as is restitution
to the claimant including actual economic damages and up to
$10,000 for non-economic damages.
Insurance Related Case Law
 Interesting cases
 State ex rel. Erie Insurance v. Mazzone
 Nationwide v. Kauffman
 State Farm v. Bedell
 Michael v. Appalachian Heating and State Auto
 Casaccio v. Curtiss
Coverage Principals
 Duty to defend is broader than duty to indemnify
 Clear and unambiguous language is not subject to
interpretation, however ambiguities are always
construed against the insurer and, if ambiguous,
doctrine of reasonable expectations apply.
 Exclusionary language within a policy is always
interpreted strictly against the insurer.
 From a defense standpoint if any claim made within a
complaint is subject to coverage, or, cannot be
excluded from coverage, then the insurer has a duty to
defend all claims with the complaint.
Handling Indemnity Issues
 Two types of indemnity
 Express/Contractual
 Implied/Equitable
 There are various aspects to consider when attempting
to determine the scope of the indemnitors’ obligations
and a review of the precise language contained within
any contract is required to determine the trigger.
 Trigger can be based on fault or triggering of
indemnity can occur without consideration of fault.
Handling Indemnity Issues, cont.
 The initial consideration to be determined if you are
going to assert implied indemnity is to confirm that
the insured/client bears no fault.
 Anyone who bears fault is barred from seeking implied
indemnity.
 Frankly, implied indemnity is a difficult claim to
prosecute.
Handling Indemnity Issues, cont.
 Contractual Indemnity
 Basically contractual indemnity is subject to all the rules of





contractual interpretation.
Contractual indemnity is valid and not contrary to public
policy.
Determine the intent of the parties to indemnity language.
Plain and unambiguous language within the indemnity
provision is not to be interpreted; simply because two
parties don’t agree to the construction of a contract does
not mean it is ambiguous.
A question of ambiguity is a question of law and, as always,
the preparer is going to be held responsible for any
uncertainty.
In otherwords, uncertainties are interpreted against the
preparer.
Handling Indemnity Issues, cont.
 Fault based indemnity
 Obviously the indemnity language within the contract
must be closely reviewed and analyzed.
 An argument can often be made that indemnity is not
due from one party to the other based on the language
of the contract unless and until the party providing
indemnity is actually found to be negligent.
 However, this is a risky position to take, if liability
appears certain.
Handling Indemnity Issues, cont.
 No fault contract indemnity
 Broadens the scope of the duties imposed on the
indemnitor or the likelihood the indemnitor will be
required to defend and hold another party harmless.
 If the language includes the requirement that indemnitor
have committed acts of negligence an argument can be
made that until such findings occur, no defense or
indemnity is required.
 On the other hand, if basic work or performance is the sole
requirement for indemnification being provided to another
party, without the necessity of negligence, then defense
and indemnification should be required from the outset.
Handling Indemnity Issues, cont.
 Liability is distinct from indemnity.
 Very simply put, whether a party can be held liable and
whether it is owed indemnity are two different issues.
 Often decisions with regard to accepting the tender of
indemnity are made more from the position of strategy
or tactics as the indemnitor will be able to control the
defense should it agree to accept the tender.
Handling Indemnity Issues, cont.
 Enforcing the right of indemnity
 The duty to indemnify most often relies upon the facts and
therefore fact gathering is of primary significance.
 Typically the items that should be in hand before issuing a
tender or demand letter include
 Copies of any and all complaints, responsive pleadings and




dispositive motions.
Copies of all contracts that are at issue.
Copies of any and all contracts that could provide insurance
coverage.
Be sure to obtain a written summary from defense counsel as
to the role of any parties who may arguably owe indemnity.
Information regarding business registration and service of
process information.
Handling Indemnity Issues, cont.
 After all the basic information has been gathered and
analyzed the first step is to draft a demand or tender
letter which should be sent by defense counsel to
counsel for the potential indemnitor, if such counsel
exists at that time.
 Place a time limitation on the response to the tender.
 Be sure to follow up.
Handling Indemnity Issues, cont.
 Reaction and/or response to tender letter.
 While written tender or demand is best, there is no suggestion in
WV that a verbal request is inappropriate, thus any time any
form of demand or tender is made with regard to defense duties,
etc., whether in writing, or orally, it should be considered as
notice.
 Similar actions should be taken from the defense of the tender
demand, as those taken to determine whether to demand
defense.
 In other words, immediately gather all facts and information if
not previously in hand, conduct a thorough review of the facts
and legal analysis including the specific terms involved in order
to determine if any ambiguity exists and whether indemnity is
fault based or simply action based.
Handling Indemnity Issues, cont.
 Be sure defense counsel is involved in the analysis/
strategy, including a thorough review of the potential
insurance policies involved.
Handling Indemnity Issues, cont.
 Insured,
additional
insured
and
certificates of
insurance.
 Crucial determination of “additional insured” under any
potential policy.
 Especially in light of potential first-party bad faith claim
if indeed indemnitee is “additional insured”.
 Again, be aware of Unfair Trade Practices Act and all of
its implications if a party is additional insured.
 Probably best practice to retain coverage counsel as soon
as possible under these circumstances.
Handling Indemnity Issues, cont.
 Obviously, certificates of insurance are important as
they may include evidence that an indemnitee is
actually covered under the policy.
Employment Law for Public Entities
Malice in Employment Termination
 West Virginia is an at-will doctrine state; however, an
employer may not terminate an employee for any
reason that contravenes a substantial public policy.
 Generally, an employee has a duty to mitigate their
damages by accepting a similar employment.
 However, if a jury finds that the “wrongful discharge
was malicious” mitigation is not to be considered
by a jury when awarding damages and a jury may
award front pay, back pay, incidental damages (i.e.,
humiliation, embarrassment, emotional and mental
distress, loss of personal dignity, etc.).
Employment Law for Public Entities, cont.
 Malice - “the discharging agency or official willfully and
deliberately violated the employee's rights under
circumstances where the agency or individual knew or with
reasonable diligence should have known of the employee's
rights …”
Mason County Bd. of Educ. v. State
Superintendent of Sch., 295 S.E.2d 719 (W. Va. 1982); see
also, Peters v. Rivers Edge Mining, Inc., 680 S.E.2d 791, 815
(W. Va. 2009).
For example, a Plaintiff is 40 years old and was making
$40,000 per year when she was terminated. If a jury
finds that the termination was malicious, she is
entitled to back and front pay (up to the age of 67)
regardless of the fact that she found a new job 3
months after she was terminated and began
making $50,000 per year. If there are not specific
immunities against punitive damages, a jury may
also award punitive damages.
Employment Law for Public Entities, cont.
 Punitive damages are normally available in these cases
 Punitive damages are not available against public entities.
 The rule that an employer has an absolute right to
discharge an at will employee must be tempered by the
principle that where the employer’s motivation for the
discharge is to contravene some substantial public policy
principal, then the employer may be liable to the employee
for damages occasioned by this discharge. Syllabus Point 1,
Harless v. First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270
(1978).
Employment Law for Public Entities, cont.
 A determination of the existence of public policy in
West Virginia is a question of law, rather than a
question of fact for the jury. Swears v. RM Roach and
Sons, Inc., 225 W.Va. 699, 696 S.E.2d 1 (2010);
 It is only when a given policy is so obviously for or
against the public health, safety, morals or welfare that
there is a virtual unanimity of opinion in regard to it,
that a Court may constitute itself the voice of the
community so declaring. Swears, 174 W.Va. at 705, 696
S.E.2d at 7.
Employment Law for Public Entities, cont.
Substantial public policy exists in circumstances





where an employee is terminated following the filing of a
grievance with the West Virginia Public Employees
Grievance Board; (Armstrong v. W. Va. Division of Culture
& History, 229 W.Va. 538, 729 S.E.2d 860 (2012));
sexual discrimination or sexual harassment in employment
(Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997));
refusal to take a polygraph test (Cordle, 174 W.Va. at 321, 325
S.E.2d at 111);
employee making a claim for overtime wages not paid
(McClung v. Marion County Comm’n, 178 W.Va. 444, 360
S.E.2d 221 (1987));
self defense (Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 559
S.E.2d 713 (2001);
Employment Law for Public Entities, cont.
Substantial public policy is not violated when :



an employer terminates an employee for the reporting
of potential criminal misconduct
there is another mechanism available to enforce the
public policy at issue
general admonitions as to the requirement of good
care for patients by social workers do not constitute
substantial and clear public policy
Employment Law for Public Entities, cont.
Whistleblower
 The West Virginia
Whistleblower statute is
found in West Virginia
Code § 6C-1-1, et seq.
An employer may not discharge, threaten or otherwise
discriminate or retaliate against an employee by changing the
employee’s compensation, terms, conditions, locations or
privileges of employment because the employee, acting on his
own volition, or a person acting on behalf or under the direction
of the employee, makes a good faith report or is about to report,
verbally or in writing, to the employer or appropriate authority an
instance of wrongdoing or waste. W. Va. Code § 6C-1-3(a).
Employment Law for Public Entities, cont.
 Or because the employee is requested or subpoenaed
by an appropriate authority to participate in an
investigation, hearing or inquiry held by an
appropriate authority or in a court action. W. Va. Code
§ 6C-1-1-3(b).
 Good
faith report - made without malice or
consideration of personal benefit and which the
person making the report has reasonable cause to
believe is true. W. Va. Code § 6-C-2(d).
Employment Law for Public Entities, cont.
 A report of waste - conduct or omissions which result
in substantial abuse, misuse, destruction or loss of
funds or resources belonging to or derived from
federal, state, or political subdivision sources. W. Va.
Code § 6C-1-2(f).
 Wrongdoing - a violation which is not of a merely
technical or minimal nature of a federal or state
statute or regulation, of a political subdivision
ordinance or regulation or of a code of conduct or
ethics designed to protect the interest of the public or
the employer. W. Va. Code § 6C-1-2(h).
Employment Law for Public Entities, cont.
 An individual qualifies as a whistleblower when the
individual witnesses or has evidence of wrongdoing or
waste while employee with a public body and who
makes a good faith report of, or testifies to, the
wrongdoing or waste, verbally or in writing, to one of
the employee’s superiors, to an agent of the employer
or to an appropriate authority. W. Va. Code § 6C-12(g).
Employment Law for Public Entities, cont.
 All reports must be made to an “appropriate authority”
which includes a federal, state, county, or municipal
government body, agency, including the office of the
attorney general, the office of the state auditor, the
commission on special investigations, the Legislature.
W. Va. Code § 6C-1-2(a).
 It is the employees’ burden to establish by a
preponderance of the evidence that he/she had
reported or was about to report in good faith, verbally
or in writing, an instance of wrongdoing or waste to
the employer or an appropriate authority. W. Va. Code
§ 6C-1-4(b).
Employment Law for Public Entities, cont.
 The defense of a Whistleblower action occurs when
the employer proves by a preponderance of the
evidence that the action complained of occurred for
separate and legitimate reasons, which are not
merely pretexts. W. Va. Code § 6C-1-4(c).
 The court may order reinstatement of the employee,
the payment of back wages, full reinstatement of
fringe benefits and seniority rights, actual damages or
any combination of remedies, including all or a
portion of the costs of litigation, including attorney’s
fees and witness fees. W. Va. Code § 6C-1-5.
Employment Law for Public Entities, cont.
 civil fine of not more than $500 except for public
office holders

however, if the court specifically finds that the person,
while in the employment of the state or a political
subdivision, committed a violation with the intent to
discourage disclosure of the information, may order
the person’s suspension from public service for not
more than six months. W. Va. Code § 6C-1-6.
 Any cause of action asserting a Whistleblower
claim under West Virginia Code § 6C-1-1, et seq.,
must be brought within 180 days of the underlying
claim. W. Va. Code § 6C-1-4(a).
42 U.S.C. § 1983
Under this provision:
 Every person who, under color or any statute,
ordinance, regulation, custom, or usage, of any state or
territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and law, shall be liable
to the party injured in an action at suit, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983, cont.
 The number of cases that have dramatically
increased since 1961 when the Supreme Court
decided Monroe v. Pape, 365 U.S. 167 (1961).

A police officer was acting “under color of state law”
even though his actions violated state law. This was
the first case in which the Supreme Court allowed
liability to attach where a government official acted
outside the scope of the authority granted to him by
state law.
42 U.S.C. § 1983, cont.
 Only “persons” under the statute are subject to
liability. Will v. Michigan Dept. of State Police, 491
U.S. 58 (1989).
 A state is not a person subject to suit under
section 1983 but a state officer can be sued in his
official capacity for prospective or injunctive
relief despite the fact that a suit against a government
official in his official capacity represents nothing more
than a suit against the government entity itself. Hafer
v. Melo, 502 U.S. 25, 31 (1991).
42 U.S.C. § 1983, cont.
 A state may not be sued for damages, but may be
sued for declaratory or injunctive relief. Monell v.
Dept. of Social Services of New York, 436 U.S. 658, 701
(1978); Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
 Municipalities and local governments are persons
subject to suit for damages and prospective relief,
but the United States government is not.
42 U.S.C. § 1983, cont.
 Individual employees of federal, state, and local
government may be sued in their individual capacities
for damages, declaratory or injunctive relief
 Acting under the color of state law requires that the
defendant have exercised power “possessed by virtue of
state law and made possible only because the wrongdoer is
clothed with the authority of state law,” and such actions
may result in liability even if the defendant abuses the
position given to him by the state. West v. Atkins, 487 U.S.
42, 49 (1988), Monroe, 365 U.S. at 172.
42 U.S.C. § 1983, cont.
 A private actor may also act under color of state law
under certain circumstances. Wyatt v. Cole, 504 U.S.
42 (1988).
 There must be a causal connection between the
defendant’s action and the harm that results. Pratt v.
Taylor, 451 U.S. 527 (1981), overruled in part, Daniels v.
Williams, 474 U.S. 327 (1986); Mt. Healthy City School
Bd. of Educ. V. Doyle, 429 U.S. 274, 285-87 (1977).
42 U.S.C. § 1983, cont.
 In order to hold a local government liable under section
1983, the Supreme Court has interpreted this causation
element to require that the harm be the result of action on
the part of the government entity that implemented or
executed a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s
officers, or the result of the entity’s custom. Monell v. Dept.
of Social Services of the City of New York, 436 U.S. 658, 69091 (1978).


The entity’s policy or custom must have been the “moving force”
behind the alleged deprivation. Id., 436 U.S. at 694.
This “custom or policy” requirement is a dramatic departure from
the rule of respondeat superior that prevails in many common
law actions. Id., 436 U.S. at 691-95.
42 U.S.C. § 1983, cont.
 Section 1983 is not itself a source of
substantive rights, it merely provides a
method for the vindication of rights elsewhere
conferred in the United States Constitution
and Laws. Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617 (1979).

A plaintiff may prevail only if he can demonstrate
that he was deprived of rights secured by the
United States Constitution or federal statutes.
42 U.S.C. § 1983, cont.
 There is no requirement that the plaintiff sue in
federal court because state courts have concurrent
jurisdiction, and the usual rule is exhaustion of
administrative and judicial state remedies is not a
prerequisite to a section 1983 action. Howlett v. Rose,
496 U.S. 356 (1990); Monroe, 365 U.S. at 183.
 The Supreme Court has noted that the basic
purpose of a section 1983 damages award is to
compensate the victims of official misconduct,
and therefore held that there is no limit on actual
damages if they can be proven. Carey v. Piphus, 435
U.S. 247 (1978).
42 U.S.C. § 1983, cont.
 But where they are not proved, only nominal damages of $1.00
may be awarded.
 Punitive damages may also be awarded, but not against a
municipality. Farrar v. Hobby, 506 U.S. 103, 112 (1992).
 While States and state agencies are entitled to Eleventh
Amendment immunity in federal court, local governments have
no immunity from damages flowing from their constitutional
violations, and may not assert the good faith of its agents as a
defense to liability. Edelman v. Jordan, 415 U.S. 651 (1974); Owen
v. City of Independence, MO, 445 U.S. 621 (1980).
 State law sovereign immunity and state law limitations on
damages do not protect local governments from liability under
section 1983
42 U.S.C. § 1983, cont.
 State laws requiring pre-suit notification prior to
initiating an action against the state or its subdivisions
do not apply. Howlett, 496 U.S. at 356; Felder v. Casey,
487 U.S. 131 (1988).
 Individual capacity defendants are protected by
qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800
(1982).
42 U.S.C. § 1983, cont.
 The qualified immunity inquiry is purely objective—
the subjective intentions of the actor is irrelevant.
Crawford-El v. Britton, 523 U.S. 574 (1998).
 Qualified immunity is not only immunity from
liability, but it is immunity from suit as well, and
shields individual capacity defendants even where a
constitutional violation may have occurred. Siegert v.
Gilley, 500 U.S. 226, 232 (1991).
42 U.S.C. § 1983, cont.
 Supervisory inaction can expose municipalities to § 1983 liability
if plaintiff can show:
(1) that the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed “a pervasive and
unreasonable risk” of constitutional injury to citizens like the
plaintiff;
 (2) that the supervisor’s response to that knowledge was so
inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices”; and
 (3) that there was an actual “affirmative causal link” between the
supervisor’s inaction and the particular constitutional injury
suffered by the plaintiff. Johnson v. Baltimore City Police Dep’t, 2013
U.S. Dist. LEXIS 13780 (4th Cir., January 29, 2013).
 Generally, 42 U.S.C. § 1983 causes of action revolve around
police practices and prison conditions.
Americans with Disabilities Act
 Title II of the Americans With Disabilities Act
(“ADA”)
prohibits “public entities”
from
discriminating against disabled individuals. 42
U.S.C. § 12132.
 Public entity - any state or local government, any
department, agency, special purpose district, or other
instrumentality of the State or States or local
government. 42 U.S.C. § 12131(1).
ADA, cont.
 The provisions of the ADA do not apply in
employment cases. Elwell v. Okla. ex rel. Bd. of
Regents of Univ. of Okla., 693 F.3d 1303 (10th Cir. 2012).
 Many ADA cases are also considered under the
West Virginia Human Rights Act, West Virginia
Code § 5-11-9, which requires employers to make
reasonable
accommodations
for
disabled
employees.
ADA, cont.
 Reasonable accommodation – reasonable modifications or
adjustments to be determined on a case-by-case basis
which are designed as attempts to enable an individual
with a disability to be hired or to remain in the position for
which he or she was hired.
 The Human Rights Act does not necessarily require an
employer to offer the precise accommodation an employee
requests, at least so long as the employer offers some other
accommodation that permits the employee to fully perform
the job’s essential functions. Syllabus Point 1, Skaggs v. Elk
Run Coal Co., 198 W.Va. 51.
ADA, cont.
 In order to state a claim for breach of the duty of
reasonable accommodation a plaintiff must allege the
following:
(1) Plaintiff is a qualified person with a disability;
(2) the employer was aware of the plaintiff’s disability;
(3) the plaintiff required an accommodation in order
to perform the essential functions of a job;
(4) a reasonable accommodation existed that met the
plaintiff’s needs;
(5) the employer knew or should have known of the
plaintiff’s need and of the accommodation; and
(6)the employer failed to provide the accommodation.
 Syllabus Point 2, Skaggs v. Elk Run Coal Co., 198 W.Va. 51.
ADA, cont.
 An employer may defend against a claim of reasonable
accommodation by disputing any of the essential elements
of the employee’s claim or by proving that making the
accommodation imposes an undue hardship on the
employer.
 Once an employee requests a reasonable accommodation,
the employer must assess the extent of an employee’s
disability and how it can be accommodated.
 When the employee cannot be accommodated in the
current position, restructuring or other job opportunities
within the company may be considered by the employee.
Alternative Dispute Resolution
Arbitration








Don’t assume that arbitration is preferable to litigating a case
in court. Facts to consider:
Venue
Local counsel should provide significant information
regarding positive and negatives of the venue.
Conservative v. liberal
Size of jury verdicts
Relationship of client to community
Primary legal issues regarding dismissal
Obviously, if dismissal is strong possibility then arbitration is
less preferable.
Alternative Dispute Resolution, cont.
Rules
 Be sure to understand the rules that will apply to the
arbitration or negotiate with regard to those rules which
you believe provide a preference for your client.
Alternative Dispute Resolution, cont.
Arbitrator
 Be sure the arbitrator chosen is both well versed in the law,
and the specific facts involved



Construction
Medical
Etc.
 Structure is very important under these circumstances and
normally a lawyer, judge, or retired judge is preferred or
someone with significant experience as arbitrator.
 Be aware the federal law and other state statutes may impose
severe limitations on overturning an arbitrator’s decision
 Arbitration may be better suited for complicated issues or
multiple parties which can sometimes be difficult for the
jury setting.
Alternative Dispute Resolution, cont.
Mediation
 Mediation is the most common method of
resolution of cases in West Virginia.
 The number of cases that result in a jury verdict falls
below 5% and probably approaches 3%, most of
which are settled in mediation.
 As a general rule in West Virginia, mediation has
become part of the requirement set forth within a
Scheduling Order. It is rare that a Scheduling Order
does not include a requirement of mediation.
Alternative Dispute Resolution, cont.
 As noted earlier, a representative of the insurance carrier
will be required to be present in person and the WV Trial
Court Rules allow enforcement of this requirement even
though the insurance carrier is not a party and can result in
severe penalties for non appearance.
 If there is not going to be an appearance, there must be an
agreement among the parties and the mediator in advance
of the mediation. Again Court Order will likely require
specifically that a representative of the insurance carrier
who has complete authority to settle the claim, be present
and, under such circumstances it may be necessary to
obtain approval of the Court for the representative to
appear by phone.
Alternative Dispute Resolution, cont.
 Be sure local counsel is involved heavily in the selection of
the mediator.
 Again, the experience of the mediator is of primary
importance, especially with regard to complicated cases.
 Lawyers or judges who have handled a number of medical
malpractice should be involved in medical claims.
Similarly, construction claims can be complicated as to
parties and contract law and should involve lawyers or
judges who have handled a number of construction cases.
 Be sure to decide in advance what information you will
divulge or what information the mediator is to keep private
and not to be disclosed. While you can determine this in
advance, you can obviously change your mind during the
mediation if it appears the information will assist in
settling the claim.
Alternative Dispute Resolution, cont.
 Premediation reports
 Should contain complete information about the extent
of damages, economic damages and non economic
analysis together with expert reports, breakdown of
exposure for each defendant as well as potential
contributory or comparative negligence of plaintiff,
venue, likely jury pool, etc.
Medicare Secondary Payer Act
 Due to the subrogation rights as well as penalty
provisions involved in the reporting requirements, it is
of the utmost importance that any exposure to
Medicare/Medicaid, etc. be determined as early as
possible in the process.
 When a claim is filed, initial inquiries should be made
of claimant’s counsel as to payment of medical bills
and the parties involved.
 If a complaint is filed initial discovery should include
all relevant information regarding whether or not
claimant received or is entitled to receive Medicare
benefits, etc.
Medicare Secondary Payer Act, cont.
 Be sure to include a consent to release form which can
be provided to Medicare so as notify them of the claim
and the insureds involvement and to initiate
discussions with Medicare regarding benefits paid.
 If there is any possibility of a Medicare lien of any kind
discussions should
begin immediately with
claimant/plaintiff’s counsel to assure that all parties
are protected, especially in light of the fact that all
parties and individuals involved in the process can be
exposed to the subrogation claim including insurers,
attorneys and claimant.
Medicare Secondary Payer Act, cont.
 Medicare lien must be confirmed if at all possible prior to
settlement and certainly before payment is made.
 Steps should be taken to protect all parties to assure
adequate payment to Medicare.
 This may be an opportunity to delay payment under the
WV Insurance Commissioner rules previously mentioned
as the parties can agree to delay payment until such time as
plaintiff’s counsel or all parties involved are able to confirm
the status of the subrogation claim or amount of Medicare
lien.
 If payment it to made out of settlement proceeds be sure to
obtain local defense counsel’s input regarding claimant's
counsel and the terms of the release and settlement
agreement to be entered before payment processed.
Medicare Secondary Payer Act, cont.
 Note recent WV Legal Ethics decision regarding
inappropriate inclusion of plaintiff’s counsel as
indemnitor within release and settlement agreement.
Privacy and Social Media
in the Workplace
1.11 billion
monthly active users on
Facebook
(Over 100 million of
those users are pets,
objects or brands)
554,750,000 active registered users on Twitter
200 million registered LinkedIn users worldwide
Privacy and Social Media, cont.
27% of total U.S. internet time is
spent on social networking sites
15% of total U.S. mobile internet
time is spent on social networking sites
Privacy and Social Media, cont.
Privacy and Social Media, cont.
Social Media Stats of Employees
 39% have befriended a colleague or business contact




on Facebook or LinkedIn
14% have posted a status update or tweeted about their
work
22% have posted a status update or tweeted about a
work colleague
28% have posted photos of colleagues or business
activities
1% have posted confidential business information
Source: Lexis Nexis
Privacy and Social Media, cont.
Fascinating Social Media Stats
 23% of Facebook’s users check their account five or more





times EVERY DAY
President Obama’s victory Facebook post was the most
liked photo with over 4 million likes
25% of Facebook users don’t bother with any privacy
control
There are 175 million tweets sent from Twitter everyday
More than 2.6 million companies have LinkedIn company
pages
56% of Americans have a profile on a social networking site
Source: Huffington Post, Media Bistro, Convince & Convert
Privacy and Social Media, cont.
Balancing an Employer’s Right to Know vs.
Employee’s Privacy
 Technology has greatly increased the ability of employers to
monitor employees both inside and outside of the workplace. At
the same time, technologies such as smart phones have blurred
the lines between personal and business, allowing employees to
work from home and conduct personal matters at work.
 Social networking sites such as Facebook and Twitter present
particularly pressing privacy questions because they integrate
several services: e-mail like communication, photographs, and
instant messaging.
 Oftentimes, social networking sites allow users to post items
“privately” or to a select list of “friends” or contacts. This further
blurs the line between public and private and creates difficult
questions regarding the reasonable expectations of privacy and
consent for employees.
Privacy and Social Media, cont.
 The Pew Research Center released data in February
2013 indicating that 67% of online adults use social
networking sites.
 In recent years Employers have increasingly sought to
monitor and screen current and potential employees
through private e-mail accounts and social media
networking sites.
Privacy and Social Media, cont.
 Public employees are granted more protections regarding
their privacy rights than private employees
 The First Amendment of the United States Constitution
protects public employees’ right to freedom of speech.
 A public employee’s speech may be protected if it (a)
pertains to a matter of public concern and (2) the
employee is speaking as a citizen rather than an
employee.
 If these facts have been met, a reviewing court will
conduct a balancing test to determine whether the
public employee’s interest in maintaining an effective,
non-disruptive workplace outweighs the public
employee’s right to speak freely. If these factors have
not been met, free speech protections do not apply.
Privacy and Social Media, cont.
 The Fourth Amendment of
the United States
Constitution protects public employees from
unreasonable searches and seizures.
 Searches and seizures by government employers or
supervisors of the private property of their employees
are subject to the restraints of the Fourth Amendment.
 “[T]he touchstone of the Fourth Amendment is
reasonableness.” United States v. Kriesel, 508 F.3d 941,
947 (9th Cir. 2007).
 In determining reasonableness, courts look at “the
totality of the circumstances to determine whether a
search is reasonable.” United States v. Kriesel, 508 F.3d
941, 947 (9th Cir. 2007).
Privacy and Social Media, cont.
 Public employees’ expectations of privacy in their
offices, desks, and file cabinets…may be reduced by
virtue of actual office practices and procedures, or by
legitimate regulation.” O’Connor v. Ortega, 480 U.S.
709, 715 (1987).
 Courts have found that the question of whether an
employee has a reasonable expectation of privacy must
be addressed on a case-by-case basis. O’Connor v.
Ortega, 480 U.S. 709, 718 (1987).
Privacy and Social Media, cont.
 Even if an employee has a reasonable expectation of
privacy in the item seized or the area searched, he
must also demonstrate that the search was
unreasonable to prove a Fourth Amendment violation.
 Courts have held that “public employer intrusions on
the constitutionally protected privacy interests of
governmental employees for noninvestigatory, workrelated purposes, should be judged by the standard of
reasonableness under all the circumstances.”
O’Connor v. Ortega, 480 U.S. 709, 725-6 (1987).
 The search must be “justified at its inception,” and
“reasonably related in scope to the circumstances
which justified the interference in the first place.”
O’Connor v. Ortega, 480 U.S. 709, 726 (1987).
Privacy and Social Media, cont.
 City of Ontario, Cal. v. Quon, 130 S.Ct. 2619 (2010) –
the Supreme Court of the United States considered the
limits of public-employee monitoring and the effect of
employee monitoring practices.
 While Quon involved a public employer, and while it
involved text messages sent by pager, it is nonetheless
instructive for all employers with regard to the
reasonable expectation of privacy issue.
 In Quon the City of Ontario’s police department issued
pagers to its SWAT team members, and warned the
members that they would be responsible for any
charges incurred in excess of the contractual
agreement.
Privacy and Social Media, cont.
 The
Official department policy was that the
Department had the right to monitor “network activity
including e-mail and internet use” and that officers
“should have no expectation of privacy” in those
communications.
 The Lieutenant who issued the pagers had an informal
policy of not examining officers’ messages as long as
they voluntarily paid for charges incurred for excessive
use.
 Sergeant Jeff Quon, a member of the SWAT team,
exceeded the permitted use several times, but
voluntarily paid the charges each time.
Privacy and Social Media, cont.
 Reversing a judgment for the City of Ontario at the trial –
the Ninth Circuit held that the plaintiffs’ right to privacy
under the federal and state constitutions had been violated
because the search was not reasonable in scope.
 On petition for a writ of certiorari to the Supreme Court of
the United States, the City of Ontario asked the Court to
decide the scope of the various plaintiffs’ reasonable
expectations of privacy in the text messages, including the
effects of seemingly contradictory formal and informal
policies.
 The petition also asked the Court to resolve a conflict
among the circuit courts of appeals on whether a “less
intrusive means” analysis was appropriate.
Privacy and Social Media, cont.
 The Supreme Court of the United States declined to
rule on whether or not Sergeant Quon had a
reasonable expectation of privacy in his text messages.
 The Court cited swiftly changing technology as a
reason for its failure to answer that question, saying
“[r]apid changes in the dynamics of communication
and information transmission are evident not just in
the technology itself but in what society accepts as
proper behavior. At present, it is uncertain how
workplace norms, and the law’s treatment of them,
will evolve.” City of Ontario, Cal. v. Quon, 130 S.Ct.
2619 (2010).
Privacy and Social Media, cont.
 Thus, for the purposes of its holding in Quon, the
Court assumed that Sergeant Quon had a reasonable
expectation of privacy in his text messages, that the
City of Ontario’s review of the transcript constituted a
Fourth Amendment search, and that the principles
applicable to a government employer’s search of an
employee’s physical office apply as well in the
electronic sphere. City of Ontario, Cal. v. Quon, 130
S.Ct. 2619 (2010).
Privacy and Social Media, cont.
 The Quon Court then turned on whether or not the
search itself was reasonable and found that it was
because it was motivated by a legitimate work-related
purpose, and because it was not excessive in scope.
 Thus, the Court found that there were “reasonable
grounds for [finding it] necessary for a
noninvestigatory work-related purpose,” as the Police
Chief had ordered the audit to determine whether the
City of Ontario’s contractual character limit was
sufficient to meet the City’s needs. City of Ontario,
Cal. v. Quon, 130 S.Ct. 2619, 2623 (2010).
Privacy and Social Media, cont.
 Although Sergeant Quon exceeded his monthly
allotment of texts a number of times, the City of
Ontario requested transcripts only for August and
September 2002 in order to obtain a large enough
sample to decide the character limits’ efficacy, and all
the messages that Quon sent while off duty were
redacted.” City of Ontario, Cal. v. Quon, 130 S.Ct. 2619,
2623 (2010).
 Additionally, from the City of Ontario’s perspective,
the fact that Sergeant Quon likely had only a limited
privacy expectation lessened the risk that review
would intrude on highly private details of Sergeant
Quon’s life.
Privacy and Social Media, cont.
Monitoring and Creating Policies
Regarding Electronic Devices
 The Electronic Privacy Communications Act (“EPCA”) (18 U.S.C.
§§ 2510 et seq.) protects most electronic communications, including
e-mail, from interception, attempted interception, disclosure and
unauthorized access.
 The application of the statute depends upon the medium of the
message, the system upon which the message is located, and whether
the message is in transit or stored.
 Three exceptions relieve an employer from liability for monitoring
its employees’ e-mails:
(1) consent (which includes implied consent)
(2) the “provider” exception (which applies when a company
provides its own e-mail service or communications system),
and
(3) the “intra company communications” exception (when the
employer accesses stored communication files).
Privacy and Social Media, cont.
Wireless Devices and Employee’s
and Employer’s Privacy Violations
 The Stored Communications Act (“SCA”) (18 U.S.C. §§
2701 et seq.) prohibits unauthorized access to stored
electronic communications, giving a private cause of
action for unauthorized access to stored data found on a
computer’s hard drive or e-mail servers.
 There is a “provider” exception which would apply to
employer-provided accounts, equipment, etc.
 Generally, an employer may monitor an employee’s use of
company provided e-mail systems, internet usage, and the
like.
Privacy and Social Media, cont.
Use of Social Networking
Sites in the Employment Context
 Employers have begun to use social networking sites as
part of their background checks on applicants. There
is a wealth of information which can be found on an
applicant’s Facebook or Twitter page. This can include
job attitude, political affiliation, age, and marital
status.
 Because information posted on social networking sites
is generally considered public, and because
information posted on web page profiles generally
consists of voluntary disclosures, employers are not
generally restricted from accessing such information.
Privacy and Social Media, cont.
Social Media Stats of Employers
 21% have taken disciplinary action because of
information an employee has posted about a co-worker
 25% have taken disciplinary action because of
information an employee has posted about their
activities at work
 31% have taken disciplinary action because of
information an employee has posted about the
organization
 30% have taken disciplinary action because of the level
of an employee’s social media use at work
Source: Lexis Nexis
Privacy and Social Media, cont.
Use of Social Networking Sites
In the Employment Context
 However, an employer should be aware of two
important caveats:
 Authentication—everything on the internet is not
infallibly true and correct.
 An employer CANNOT use information gathered
through social networking to screen out applicants
based upon membership in protected classes, such as
racial groups, ethnic groups, religious affiliations, etc.
 Additionally, because review of candidate profiles on
social networking sites is likely to retrieve isolated bits
of personal information, the employer who utilizes a
search risks making judgments out of context.
Privacy and Social Media, cont.
NLRB and Social Media
 Section 7 of the National Labor Relations Act grants
employees (with or without a union) the right to engage in
“concerted activities for the purpose of…mutual aid or
protection.”
 This right is enforceable under Section 8(a) of the NLRA,
which prohibits employers from interfering, restraining or
coercing employees who exercise their rights under Section
7, or from discriminating against employees because of
their protected activity.
 The NLRB has long held that employee communications
amounting to concerted activity for mutual aid and
protection, having to do with wages, hours or terms and
conditions of employment, is protected under the NLRA
and cannot be restricted by the employer.
Privacy and Social Media, cont.
 In recent decisions the NLRB has held that blanket
employer restrictions on employees discussing work
are illegal.
 The NLRB views such restrictions as infringing on
workers rights to discuss work conditions freely and
without fear of retribution, whether the discussion
takes place at the office or on Facebook, Twitter, etc.
 However, the NLRB has allowed companies to
discipline employees acting as lone worker on the
internet.
Privacy and Social Media, cont.
 In Hispanics United of Buffalo, a nonprofit social services
provider in upstate New York, a caseworker threatened to
complain to the boss that others were not working hard
enough.
 Another worker, Mariana Cole-Rivera, posted a Facebook
message asking, Lydia Cruz, a coworker feels that we don’t
help our clients enough at Hispanics United of Buffalo. I
about had it! My fellow co-workers, how do you feel?”
 Several colleagues posted angry, sometimes expletive-laden
responses.
“Try doing my job.
I have five
programs,”…”What the hell, we don’t have a life as is,”
Privacy and Social Media, cont.
 Hispanics United fired Ms. Cole-Rivera and four other
caseworkers who responded to her saying they violated
company harassment policies.
 The NLRB concluded, in a 3-1 decision, the
caseworkers were unlawfully terminated.
 The decision was based on the NLRB concluding the
posts were the type of “concerted activity” for “mutual
aid” that is expressly protected by the National Labor
Relations Act.
Privacy and Social Media, cont.
 The NLRB, however, did not find protected activity for
a reporter at the Arizona Daily Star.
 After being frustrated by a lack of stories the reporter
posted several Twitter comments. One said “What!?!?!
No overnight homicide. …You’re slacking, Tucson.”
Another began, “You stay homicidal, Tucson.”
 The newspaper fired the reported and the NLRB found
the dismissal legal, saying the posts were offensive, not
concerted activity and not about working conditions.
Privacy and Social Media, cont.
 The NLRB further considered concerted activity in In re:
Tasker Healthcare Group d/b/a Skinsmart Dermatology.
 Several employees participated in a private Facebook group
message during which one of the employees disapproved of
the employer’s rehiring of a former employee.
 The employee posted a string of expletives about the
employer, said the employer should fire the posting
employee.
 Another employee who was part of the discussion showed
the message string to the employer and determined it was
“obvious” the employee no longer wanted to be employed
by the company and terminated employment.
Privacy and Social Media, cont.
 The NLRB determined the messages were not protected
concerted activity and upheld the termination because the
message string contained no shared employee concerns
over their terms and conditions of employment.
 An employee engaging in “mere griping” without any
though of forward action is not protected activity.
 Employers should understand that employees’ legitimate
complaints about work conditions are protected, and they
may not discipline employees for such complaints, even if
they are overly critical or ultimately are not well founded.
Privacy and Social Media, cont.
 The NLRB issued a Memorandum OM 12-59 (May 30,
2012), summarizing a series of memoranda from the
Division of Advice involving social medial policies.
 Under this Memorandum a rule will be found to unlawfully
chill-protected activity if:
(a) employees reasonably would construe the rule
to prohibit such activity;
(b) the rule was issued in response to union
activity; or
(c) the rule has been applied to restrict protected
activity.
The West Virginia Judiciary
 The organizational structure of the West Virginia
judiciary is defined by provisions in the state's
constitution and supplementary statutory provisions.
 The Judicial Reorganization Amendment to the state’s
Constitution, adopted in 1974 and effective in 1976,
established a “unitary” or hierarchical judicial system
within the state.
The Supreme Court
of Appeals of West Virginia
 The Supreme Court of Appeals of West Virginia is the
court of last resort for disputes arising under the laws
of West Virginia and is the state's only appellate court.
 Appeals of circuit court decisions.
 No intermediate courts of appeal have been created,
although they are legislatively permitted.
 All petitioners must petition the justices to docket or list




the case for consideration.
There are five justices, each of whom is elected for
staggering twelve year terms using a partisan ballot.
Almost all of the justices elected to the Court during the
past 20 years have been Democrats
The current court consists of Chief Justice Margaret L.
Workman, Justice Robin Jean Davis, Justice Brent D.
Benjamin, Justice Menis Ketchum, and Justice Thomas E.
McHugh. (all registered democrats, although Justices
Benjamin and McHugh previous private practices were
primarily defense-oriented)
Justices Ketchum and Workman were both prominent
plaintiffs’ attorneys. Justice Davis is married to Scott Segal,
one of the preeminent plaintiffs’ attorneys in the State of
West Virginia.
Circuit Courts
 The circuit courts are West Virginia's only general




jurisdiction trial courts of record.
Circuit courts have jurisdiction over all civil cases
exceeding $300 in value; all civil cases in equity;
proceedings in habeas corpus, mandamus, quo warranto,
prohibition, and certiorari; and all felonies and
misdemeanors.
The circuit courts act as an appellant court with respect to
appeals from magistrate court, municipal court, family
court, and administrative agencies, except workers'
compensation appeals.
West Virginia's 55 counties are divided into 31 circuits with
66 circuit judges.
The circuits vary in size.
For example, the 13th Circuit has seven judges, and eleven circuits
have one judge.
 Each of the 55 counties has a courthouse where the
circuit court judge presides.
 Circuit court judges are elected to 8 year terms in
partisan elections.



Must have practiced law for at least 5 years.
When a vacancy occurs, the governor appoints the
replacement.
The current salary of a circuit judge is $116,000/year.
Other Courts
 Magistrate Court - the Constitution grants magistrates
county-wide limited jurisdiction over criminal matters
and civil claims with values of $3,000 or less.



Magistrates cannot preside over matters involving equity,
eminent domain, real estate titles and liens, false
imprisonment, malicious prosecution, or slander and libel.
The criminal jurisdiction of the magistrate courts is fairly
broad, particularly with preliminary criminal issues.
West Virginia is one of only two states, the other being
Texas, that afford the right to a jury trial in the lowest court
of the judicial system.
The Court of Claims is more or less a legislative agency




Composed of three judges appointed by the President of
the Senate and the Speaker of the House with the advice
and consent of the State Senate.
personal injury and property damage against state officers
and employees, and also claims for unjust arrest and
imprisonment.
equitably decides claims against the State which are
otherwise barred by the doctrine of sovereign immunity.
The majority of claims paid are vendor claims for
nonpayment of goods and services provided to the State,
claims by State inmates, and road hazard claims for damage
to private vehicles from potholes in state.