State of West Virginia Retail Compendium of Law

STATE OF WEST VIRGINIA RETAIL COMPENDIUM OF LAW

Updated in 2017 By Peter T. DeMasters Mina R. Ghantous Raymond L. Harrell, Jr. Jason L. Holliday Kaitlyn N. Pytlak Flaherty Sensabaugh Bonasso PLLC 48 Donley Street Suite 501 Morgantown, WV 26501 Tel: (304) 225-3055 Website: www.Flahertylegal.com

2017 USLAW Retail Compendium of Law

RETAIL, RESTAURANT, AND HOSPITALITY GUIDE TO WEST VIRGINIA PREMISES LIABILITY

1. WEST VIRGINIA COURT SYSTEM 1 A. West Virginia State Court System 1 i. Structure 1 ii. Judicial Selection 2 B. West Virginia Federal Court System 3 C. Arbitration 4

2. NEGLIGENCE 4 A. General Negligence Principles 4 B. Premises Liability/Slip and Fall 5 C. Open and Obvious 6 D. Landlord/Tenant and Liability for Leased Premises 6 E. Dramshop Act 7 F. Comparative Fault/Contributory Negligence 8 G. Joint and Several Liability 8 H. The “Empty Chair” Defense 10 I. Collateral Source Rule 10

3. WORKER’S COMPENSATION 11 A. Deliberate Intent 12 i. “Actual Knowledge” 13 ii. Violation of Safety Statutes and Standards 14 iii. Compensable Injury 14 iv. Verified Statement 15 B. Discrimination/Retaliation 16

4. EMPLOYMENT 18 A. Minimum Wage/Maximum Hours 18 B. Wage Payment and Collection Act 18 C. West Virginia Human Rights Act 20 D. Retaliatory Discharge 22 i. Legislative Findings 22 ii. Substantial Public Policy 23 E. Negligent Hiring, Retention and Supervision 25 F. Privacy 26

5. EMPLOYMENT CONTRACTS AND RELATED CLAIMS 27 A. Non-Compete Agreements 27 B. Tortious Interference 28

6. DAMAGES IN PREMISES LIABILITY CASES 29 A. Caps on Damages 29 B. Calculation of Damages 30 C. Available Items of Personal Injury Damages 31 i. Past medical bills 31 ii. Future medical bills 31 iii. Hedonic damages 31 iv. Increased risk of harm 32 v. Disfigurement 32 vi. Disability 32 vii. Past pain and suffering 33 viii. Future pain and suffering 33 ix. Loss of Society 33 x. Lost income, wages, earnings 33 D. Mitigation 33 i. Breach of Contract 33 ii. Specific economic damages 34 E. Punitive Damages 34 i. Intentionality 34 ii. Breach of Contract 34 iii. Recklessness 34 iv. Factors Considered 34 v. Insurability 35 F. Settlements Involving Minors 36 i. Court Approval 36 ii. Court Considerations 36 G. Recovery of Pre- and Post-Judgment Interest 36 i. Pre-judgment interest 37 ii. Post-judgment interest 37

7. INSURANCE AND INDEMNIFICATION 37 A. Insurance 37 i. Insurer’s Duty to Defend 37 ii. Insurer’s Duty to Indemnify 38 B. Indemnification 39 i. Express Indemnity 39 ii. Implied Indemnity 39

1. WEST VIRGINIA COURT SYSTEM

A. West Virginia State Court System

i. Structure—The West Virginia State Court System, as it would relate to retail, consists of three (3) courts: the Supreme Court of Appeals, circuit courts, and magistrate courts.

There is no intermediate appellate court.

(1) Supreme Court of Appeals: The Supreme Court of Appeals is the court of last resort in West Virginia and is located in the State Capital, Charleston, West Virginia. The Court has extraordinary writ powers and original jurisdiction in proceedings involving habeas corpus, mandamus, prohibition, and certiorari. It receives appeals from the circuit courts throughout the state, in addition to worker’s compensation appeals, which are made directly to the Court. The matter in controversy in civil appeals, exclusive of costs, must be of a value or amount exceeding $100.00. Every appeal, unless dismissed, will result in a decision on the merits.1

(2) Circuit Courts: West Virginia's thirty one (31) circuit courts are courts of original and general jurisdiction over all civil cases at law in which the amount in controversy, excluding interest, exceeds $2,500.00; all civil cases in equity; proceedings in habeas corpus, mandamus, quo warranto, prohibition, and certiorari; and all felonies and misdemeanors. In addition, circuit courts receive appeals from magistrate courts, municipal courts, family courts, and administrative agencies (excluding workers' compensation appeals).2

(3) Magistrate Courts: West Virginia’s fifty-five (55) magistrate courts are courts of limited jurisdiction. Magistrates hear misdemeanor cases, conduct preliminary hearings in felony cases, hear civil cases with $5,000.00 or less in dispute, and issue arrest warrants, search warrants, and emergency protective orders in cases involving domestic violence.3

1 See generally, WEST VIRGINIA JUDICIARY, Supreme Court of Appeals-About the Court, http://www.courtswv.gov/supreme-court/index.html (last visited February 13, 2017); W. VA. CODE § 51-1-3 (1923); W. VA. R. APP. P. 21, Clerk’s Comments (2010) (“The ability to enter memorandum decisions—rather than refusal orders under prior practice—is at the core of the revised process.”). Appeals are of “right,” as opposed to “permission.” W. VA. R. APP. P. 21, Clerk’s Comments (2010).

2 See generally, WEST VIRGINIA JUDICIARY, Circuit Courts-Trial Courts of General Jurisdiction, http://www.courtswv.gov/lower-courts/circuit-courts.html (last visited February 13, 2017); W. VA. CODE § 51-2- 2(b)-(d) (2008).

3 See generally, WEST VIRGINIA JUDICIARY, Magistrate Courts-Trial Courts of Limited Jurisdiction, http://www.courtswv.gov/lower-courts/magistrate-courts.html (last visited February 13, 2017); W. VA. CODE § 50- 2-1 (1994).

Additionally, a unique aspect of the West Virginia Court System is the relatively recent creation of the Business Court Division, as of June 13, 2014. The State’s Business Courts handle a specialized docket within the circuit courts, consisting of those cases involving commercial issues and disputes between businesses. See W. VA. TR. CT. R. 29.01 (2014); W. VA. TR. CT. R. 29.04(a)

(2014) (defining “business litigation”); W. VA. CODE § 51-2-15 (2010). Any party or judge may seek a referral of Business Litigation to the Division by filing a Motion to Refer to the Business

Court Division with the Clerk of the West Virginia Supreme Court of Appeals, which is ultimately reviewed and decided by the Chief Justice. W. VA. TR. CT. R. 29.06 (2014). The Business Court

Division has seven (7) judges, who can serve staggered, successive seven (7) year terms. W. VA.

TRIAL COURT R. 29.02 (2014).

ii. Judicial Selection—The rules regarding the election and appointment of judges and magistrates within West Virginia are as follows:

(1) Justices for the West Virginia Supreme Court of Appeals: Elected by the voters for twelve (12) year terms, the five (5) Justices on the Supreme Court must have practiced law for at least ten (10) years. Annually, members of the Court choose the position of Chief Justice. The Governor appoints Justices to fill vacancies on the five-member bench if they should occur between elections.4

(2) Circuit Court Judges: Elected by the voters of the Circuit, circuit judges serve terms of eight (8) years. In circuits with two or more judges, there shall be a chief judge. Circuit court judges must have practiced law for at least five (5) years. The Governor appoints judges to fill vacancies if they should occur between elections.5

4 W. VA. CONST. art. VIII § 2; W. VA. CODE §§ 51-1-1, 51-1-2 (2015). See generally, WEST VIRGINIA JUDICIARY, Supreme Court of Appeals-About the Court, http://www.courtswv.gov/supreme-court/index.html (last visited February 13, 2017).

5 W. VA. CONST. art. VIII § 5; W. VA. CODE § 51-2-1 (2015). See generally, WEST VIRGINIA JUDICIARY, Circuit Courts-Trial Courts of General Jurisdiction, http://www.courtswv.gov/lower-courts/circuit- courts.html (last visited February 13, 2017).

(3) Magistrate Court Judges: Elected for four (4) year terms, magistrates do not have to be lawyers. Circuit Court Judges appoint Magistrates to fill vacancies if they should occur between elections.6

The election of West Virginia Supreme Court Justices, circuit court judges, family court judges, and magistrate court judges are to be conducted on a non-partisan basis and by division. See W.

VA. CODE § 51-1-1 (2015); W. VA. CODE § 3-1-17 (2015); W. VA. CODE § 50-1-1 (2015).

B. West Virginia Federal Court System

West Virginia is divided into two (2) separate jurisdictions, the Northern District of West

Virginia and the Southern District of West Virginia. The Northern District is composed of thirty- two (32) counties, and four (4) points of holding court, located in Clarksburg, Elkins, Martinsburg, and Wheeling. See UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF WEST

VIRGINIA, Court Locations, http://www.wvnd.uscourts.gov/court-info/court-locations (last visited February 13, 2017). The Southern District is composed of twenty-three (23) counties, and four (4) points of holding court, located in Beckley, Bluefield, Charleston, and Huntington. See

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA, Judicial

Districts by County, http://www.wvsd.uscourts.gov/judicial-districts-county (last visited February

13, 2017). West Virginia is part of the Fourth Circuit Court of Appeals, in the company of

Maryland, Virginia, North Carolina, and South Carolina. UNITED STATES COURT of

APPEALS for the FOURTH CIRCUIT, About the Court, http://www.ca4.uscourts.gov/about-the- court (February 13, 2017).

6 W. VA. CONST. art. VIII § 10; W. VA. CODE § 50-1-1 (2015). See generally, WEST VIRGINIA JUDICIARY, Magistrate Courts-Trial Courts of Limited Jurisdiction, http://www.courtswv.gov/lower-courts/magistrate-courts.html (last visited February 5, 2016).

C. Arbitration

The Revised Uniform Arbitration Act governs arbitration proceedings in West Virginia.

Parties wishing to end a dispute may voluntarily submit the controversy to arbitration in West

Virginia. See W. VA. CODE § 55-10-1 (2015), et seq. Once a dispute is submitted to arbitration, the submission is irrevocable absent leave of court. See W. VA. CODE § 55-10-8 (2015).

Similar to the majority of states, West Virginia has held that an arbitration provision that is part of a larger contract does not require separate consideration so long as there is adequate consideration for the contract as a whole. See Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281,

737 S.E.2d 550 (2012). A court, however, must determine on a case-by-case basis whether an arbitration provision is so harsh or unfair that it should not be enforced. In an employment contract, if a court finds an arbitration provision to be one-sided or unreasonably favors one party, then the court can decide not to enforce the arbitration provision. See generally, New v. GameStop, Inc.,

232 W. Va. 564, 753 S.E.2d 62 (2013) (per curiam).

2. NEGLIGENCE

A. General Negligence Principles

West Virginia follows the traditional approach to negligence actions. In all claims of negligence, a plaintiff must prove that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach was the proximate cause of the damages sustained by the plaintiff. See generally, Rowe v. Sisters of the Pallottine Missionary Soc'y, 211

W. Va. 16, 23, 560 S.E.2d 491, 498 (2001). See also Syl. Pt. 2, Tolliver v. Shumate, 151 W. Va.

105, 150 S.E.2d 579 (1966). Proximate cause is that cause “which in actual sequence, unbroken by any independent cause, produces the event and without which the event would not have occurred.”

Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 654-655, 77 S.E.2d 180, 189

(1953) (citation omitted). In other words, there must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act, the injury would not have occurred. Rowe v. Sisters of the Pallottine Missionary Soc'y, 211 W. Va.

16, 23, 560 S.E.2d 491, 498 (2001).

B. Premises Liability/Slip and Fall

Under West Virginia law, “[t]he owner or the possessor of premises is not an insurer of the safety of every person present on the premises.” Syl. Pt. 8 (in part), Hersh v. E-T Enters., P'ship,

232 W. Va. 305, 752 S.E.2d 336 (2013) (overruled on other grounds). "In determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury." Syl. Pt. 6,

Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). Of these factors, foreseeability is the most important. Syl. Pt. 5, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). “The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Syl. Pt. 5, in part, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999) (citation omitted). The common law distinction between “licensee” and “invitees” for the purposes of premises liability has been abolished. Syl. Pt. 4, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). However, a category that remains significant is that of the trespasser, and to her or him, possessors of real property owe no duty of care, (except where a common-law right-of-action existed as of April 29,

2015), including the duty to refrain from willfully or wantonly causing the trespasser injury. W.

VA. CODE § 55-7-27(a) (2015).

C. Open and Obvious

In 2015, the West Virginia Legislature statutorily abrogated the decision of the West

Virginia Supreme Court in Hersh v. E-T Enters., P'ship, 232 W. Va. 305, 752 S.E.2d 336 (2013).7

Pursuant to the Hersh Court’s decision, all premises liability matters were to be judged under a straight negligence standard, and the “open and obvious” doctrine was not a complete defense in a premises liability action. Id. See also Syl. Pt. 6. However, W. VA. CODE §55-7-28(c) (2015) reinstated the “open and obvious” doctrine, prior to the Hersh decision, such that possessors of real property are under no duty to protect others against dangers that are in fact “open” and

“obvious.”

D. Landlord/Tenant and Liability for Leased Premises

Under West Virginia law, absent a leased provision to the contrary, a landlord is not responsible for keeping the leased premises in repair. See generally, Lennox v. White, 133

W. Va. 1, 3, 54 S.E.2d 8, 9 (1949).8 However, there are exceptions to this general rule. One such exception is the "common use" doctrine, that is, where tenants or invitees of tenants are injured on part of the premises that can be used in common by tenants or by the public, such as sidewalks,

7 A valuable resource in identifying actions of the West Virginia Legislature relevant to West Virginia retail law was the West Virginia Legislation Updates, Parts I and II, utilized in the Compendium, passim. See Joseph K. Reeder & Matthew G. Chapman, 2015 West Virginia Legislation Update: Part I, 118 W. Va. L. Rev. Online 23 (2015), http://wvlawreview.wvu.edu/west-virginia-law-review-online/2015/09/29/2015-west-virginia-legislation-update- part-i; Joseph K. Reeder & Matthew G. Chapman, 2015 West Virginia Legislation Update: Part II, 118 W. Va. L. Rev. Online 45 (2015), http://wvlawreview.wvu.edu/west-virginia-law-review-online/2015/11/05/2015-west- virginia-legislation-update-part-ii.

8 “Where property is leased to different tenants in severalty, the landlord is not responsible for the negligent use of, or failure to keep in repair, heating, lighting, or plumbing fixtures under the control of a tenant in the latter's portion of the premises; and where, as a result of such negligence, injury results to the goods of another tenant, the landlord is not liable therefor." Barker v. Withers, 141 W. Va. 713, 718, 92 S.E.2d 705, 708 (1956) (citation omitted).

passageways, bathrooms, etc. Syl. Pt. 6, Cowan v. One Hour Valet, 151 W. Va. 941, 157 S.E.2d

843 (1967). This exception applies to all cases where the landlord retains control of certain places or things in connection with the leased premises. See Cowan v. One Hour Valet, 151 W. Va. 941,

950-951, 157 S.E.2d 843, 848-849 (1967). The landlord or lessor can also be held liable in such cases where the lessor has knowledge of a defective condition at the expiration of a lease and does not disclose or repair such condition before he renews the lease or relets the premises. Id. Further,

West Virginia has recognized that a landlord can be held liable for a defective condition regardless of the general rules prohibiting such liability when the control of the premises is really with the lessor or landlord, although it may also serve the lessee or tenant, such as adjoining walls, plumbing, and electrical equipment. Id.

E. Dramshop Act

Those who sell or serve alcohol in the State of West Virginia9 should be acutely cognizant of W. VA. CODE § 11-16-18 (2016).10 Its provisions concern the sale and serving of alcohol to minors, when alcohol can and cannot be sold or served, and when liability can attach to those who sell or serve alcohol to an intoxicated individual who subsequently injures another, triggering application of West Virginia’s “dramshop act.” W. VA. CODE § 11-16-18(a)(3) (2016) renders it unlawful to sell, furnish or give non-intoxicating beer to any person under twenty-one

(21) years old. With the passage of the 2016 “Brunch Bill,” alcohol can now be sold beginning at ten o’clock a.m. on Sundays instead of the former law that prohibited sale before one o’clock p.m.

W. VA. CODE § 11-16-18(a)(1) (2016). Pursuant to W. VA. CODE § 11-16-18(a)(2) (2016), it is

9 The Code specifically speaks to “any licensee, his, her, its or their servants, agents or employees.”

10 Legislation introduced in 2016 amended several aspects of this Chapter of the West Virginia Code. Depending upon when this Compendium is reviewed, the accuracy of the statute should thus be verified.

unlawful to sell, furnish or give it to “any person visibly or noticeably intoxicated or to any person known to be insane or known to be a habitual drunkard.” Put simply, alcohol vendors can face civil liability in negligence for injuries sustained by third parties as a consequence of a purchaser’s intoxication. Anderson v. Moulder, 183 W. Va. 77, 82, 394 S.E.2d 61, 66 (1990). As in all negligence actions, questions of foreseeability and causation will be central to the determination of whether or not liability attaches.

F. Comparative Fault/Contributory Negligence

West Virginia operates under a modified comparative fault standard. W. VA. CODE § 55-

7-13a(a) (2015). Therefore, recovery in personal injury, property damage, or wrongful death cases is based upon the percentage of fault of each applicable party. W. VA. CODE § 55-7-13a(b) (2015).

However, in order to recover damages, the plaintiff’s own negligence or fault must not be equal to or greater than the defendant's negligence. If the plaintiff is less than 50% at fault, the award is decreased by the plaintiff’s percentage of fault. If the plaintiff is 50% or more at fault, she/he cannot recover. See W. VA. CODE §55-7-13c(c); Bradley v. Appalachian Power Co., 163 W. Va.

332, 256 S.E.2d 879 (1979).

G. Joint and Several Liability

As a result of the 2015 Legislative session, joint liability for compensatory damages was abolished. W. VA. CODE § 55-7-13c(a) (2015).11 However, there are several exceptions to this prohibition. Joint liability may be imposed on two (2) or more defendants who “consciously conspire and deliberately pursue a common plan or design to commit a tortious act or omission.”

W. VA. CODE § 55-7-13c(a) (2015). If a defendant drives a vehicle under the influence of alcohol,

11 Section 13c does not apply to the following: W. VA. CODE §29-12A-1, et seq. (the Governmental Tort Claims and Insurance Reform Act); W. VA. CODE §46-1-1, et seq. (the Uniform Commercial Code); and W. VA. CODE §55- 7b-1, et seq. (the Medical Professional Liability Act).

a controlled substance, or any other drug or combination thereof, which is a proximate cause of the plaintiff’s damages, joint and several liability shall apply. W. VA. CODE § 55-7-13c(h)(1)

(2015). A defendant whose acts or omissions constitute criminal conduct or an illegal disposal of hazardous waste (pursuant to W. VA. CODE § 22-18-3) that is the proximate cause of the plaintiff’s damages shall also be subject to joint and several liability. W. VA. CODE § 55-7-13c(h)(2) (2015).

To calculate the judgment amount attributable to each defendant pursuant to the modified comparative fault standard, the Court multiplies the total amount of compensatory damages recoverable by the plaintiff by the percentage of each defendant’s fault, which is the maximum amount recoverable against her or him. W. VA. CODE § 55-7-13c(b) (2015). However, should the plaintiff’s fault equal or exceed that of the combined fault of all other persons responsible for the total amount of damages, then the plaintiff is barred from recovery. W. VA. CODE § 55-7-13c(c)

(2015). If the plaintiff’s fault is less than the combined fault of all other persons, then the plaintiff’s recovery is reduced in proportion to her/his degree of fault. Id.

Importantly, if a plaintiff is unable to collect from a liable defendant through good faith efforts, the plaintiff may move for “reallocation” of any uncollectible amount among the other parties found liable. W. VA. CODE § 55-7-13c(d) (2015). The plaintiff must do this “not later than one year after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later.” Id. If the Court determines that part, or all, of the defendant’s proportionate share is uncollectible from that defendant, the uncollectible amount shall be reallocated among the other liable parties, including the plaintiff, according to their percentages at fault. W. VA. CODE § 55-7-13c(d)(1) (2015). However, the Court may not reallocate to any defendant an uncollectible amount greater than the defendant’s percentage of fault, multiplied by the uncollectible amount. Id. Additionally, “[t]here shall be no reallocation against a defendant

whose percentage of fault is equal to or less than the plaintiff’s percentage of fault,” nor can fault allocated to an immune defendant, or a defendant whose liability is limited by law, be reallocated to another defendant. Id. W. VA. CODE § 55-7-13c(g) (2015). The parties may conduct discovery on the issue of collectability before a hearing on the reallocation motion. W. VA. CODE § 55-7-

13c(d)(2) (2015).

H. The “Empty Chair” Defense

The trier of fact may consider all persons who contributed to a plaintiff’s alleged damages, regardless of whether or not they could have been named as a party to the suit. W. VA.

CODE § 55-7-13d(a)(1) (2016). Consideration of the fault of such a party is permissible if the plaintiff entered into a settlement agreement with the non-party or if a defending party gives notice, no later than one hundred and eighty (180) days after service of process on said defending party, that a non-party was wholly or partially at fault. W. VA. CODE § 55-7-13d(a)(2) (2016).

Additionally, in 2016, the legislature passed Senate Bill 7.12 This legislation, aimed at changing the circumstances that can bar a plaintiff’s recovery, prohibits a plaintiff from recovering damages when the injuries at issue were caused, in whole or in part, by the plaintiff’s commission or attempted commission of an illegal act or transaction. W. VA. CODE § 55-7-13d. See S.B. 385,

82nd Leg., 2nd Sess. (W. Va. 2016). H.B. 4008, 82nd Leg., 2nd Sess. (W. Va. 2016); S.B. 7, 82nd

Leg., 2nd Sess. (W. Va. 2016).

I. Collateral Source Rule

West Virginia recognizes the collateral source rule. See generally Kenney v. Liston, 233

W. Va. 620, 760 S.E.2d 434 (2014). The rule "normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against

12 S.B. 7, 82nd Leg., 2nd Sess. (W. Va. 2016).

the damages claimed by the injured party." Syl. Pt. 7, Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d

584 (1981). The purpose of the collateral source rule is to prevent the jury from being tempted to reduce the damages "based on the amounts that the plaintiff has been shown to have received from collateral sources." Id. at Syl. Pt. 8.

3. WORKERS’ COMPENSATION

The West Virginia Workers’ Compensation Act (“WVWCA”), W. VA. CODE § 23-1-1, et seq., was developed in order to guarantee employees injured on-the-job limited benefits no matter who was at fault for the accident, while also granting the employer immunity from tort liability.

The workers’ compensation system provides the employee with compensation for medical bills paid and lost wages. The employer is, however, entitled to a set-off of any amount received or receivable by plaintiffs from workers’ compensation. Any employer who pays into the workers' compensation fund "is not liable to respond in damages at common law or by statute for the injury or death of any employee." W. VA. CODE § 23-2-6 (2003). Instead, claims that arise out of the furtherance of the employer's business must be submitted to the workers' compensation board. This compromise system between employer and employee allows an employer to foresee and prepare for the costs of on-the-job injuries, and thus pass those costs on to consumers of their products or services.

The WVWCA applies nearly universally to employers across the state, and includes all persons, firms, associations, and corporations regularly employing another person or persons for the purpose of carrying on any form of industry, service, or business in this state. W. VA. CODE §

23-2-1(a) (2005). All injuries that occur in the course of, and resulting from, such covered employment fall within the system. Employees must give written notice of work-related injuries immediately or as soon as practicable after the occurrence, and the employer must then report the

injury to the commissioner within five (5) days of receiving the employee’s notice of injury, or within five (5) days after the commissioner notifies the employer that a claim of benefits has been filed, whichever is sooner. W. VA. CODE § 23-4-1a (2003); W. VA. CODE § 23-4-1b (2005).

A. Deliberate Intent

If you do business in West Virginia, you should be familiar with not only the mandatory workers’ compensation law, but the deliberate intent exception to statutory immunity as well.

Pursuant to this exception, if an employee can prove that the employer acted with “deliberate intent” to injure the employee, the employer is stripped of its workers’ compensation immunity.

W. VA. CODE §23-4-2(d)(2) (2015). “[A]n employee, widow, widower, child, or dependent has a deliberate intention cause of action against the employer for injury or death of an employee. In the event of an employee's death, the decedent's estate has a claim." Syl. Pt. 3, in part, Murphy v. E.

Am. Energy Corp., 224 W. Va. 95, 680 S.E.2d 110 (2009). See also W. VA. CODE § 23-4-2(c)

(2015).

The traditional negligence standard is insufficient for the employee to prevail in a deliberate intent action, as the statute delineates the two (2) methods by which an employee’s claim may succeed. First, an employee can prove the employer acted with a “consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to the employee.”

W. VA. CODE § 23-4-2(d)(2)(A) (2015). This standard requires the showing of an actual, specific intent and is not satisfied by either allegation or proof of conduct that produced a result not specifically intended, conduct that was negligent, no matter how gross or aggravated, or willful, wanton or reckless misconduct. Id.

The second avenue available to an employee to establish deliberate intent is if the trier of fact determines that the following five (5) elements are proven:

(i) 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;

(ii) 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.

(iii) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer.

(iv) That notwithstanding the existence of the facts set forth in subparagraphs (i) through (iii), inclusive, of this paragraph, the person or persons alleged to have actual knowledge under subparagraph (ii) nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and

(v) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three as a direct and proximate result of the specific unsafe working condition.

W. VA. CODE § 23-4-2(d)(2)(B) (2015).

The law relating to deliberate intent underwent substantial amendment as a result of the

2015 legislative session. Notable changes made to the pre-existing deliberate intent statute concerned (i) how “actual knowledge” is established; (ii) what constitutes violation of safety statutes and standards; (iii) what constitutes “intentional exposure;” (iv) the definition of

“compensable injury;” and (v) pleading requirements regarding the “verified statement.”

i. Actual Knowledge—This must be specifically proven and not deemed or presumed. W. VA. CODE § 23-4-2(d)(2)(B)(ii)(I) (2015). It may be shown by evidence of

“intentional and deliberate failure to conduct an inspection, audit or assessment required by state or federal statute or regulation . . . specifically intended to identify each alleged specific unsafe working condition.” Id. “Actual knowledge” is not established by what an employee’s immediate supervisor or management personnel “should have known,” had reasonable care or more diligence been exercised. W. VA. CODE § 23-4-2(d)(2)(B)(ii)(II) (2015). Additionally, proof of an immediate

supervisor or management personnel’s knowledge of “prior accidents, near misses, safety complaints or citations from regulatory agencies must be proven by documentary or other credible evidence.” W. VA. CODE § 23-4-2(d)(2)(B)(ii)(III) (2015).

ii. Violation of Safety Statutes and Standards—If the specific unsafe working condition relates to a commonly accepted and well-known safety standard within the industry or business of the employer, “it must be a consensus written rule or standard promulgated by the industry or business of the employer, such as an organization comprised of industry members.”

W. VA. CODE § 23-4-2(d)(2)(B)(iii)(I) (2015). If the specific unsafe working condition relates to a violation of a state or federal safety statute, rule or regulation, it must be “specifically applicable to the work and working condition involved” and “intended to address the specific hazard(s) presented by the alleged specific unsafe working condition.” W. VA. CODE § 23-4-

2(d)(2)(B)(iii)(II) (2015).

iii. Compensable Injury—It can only be established by one of four (4) methods delineated by statute as follows:

(I) It is shown that the injury, independent of any preexisting impairment:

(a) Results in a permanent physical or combination of physical and psychological injury rated at a total whole person impairment level of at least thirteen percent (13%) as a final award in the employees workers’ compensation claim; and

(b) Is a personal injury which causes permanent serious disfigurement, causes permanent loss or significant impairment of function of any bodily organ or system, or results in objectively verifiable bilateral or multi-level dermatomal radiculopathy; and is not a physical injury that has no objective medical evidence to support a diagnosis; or

(II) Written certification by a licensed physician that the employee is suffering from an injury or condition that is caused by the alleged unsafe working condition and is likely to result in death within eighteen (18) months or less from the date of the filing of the complaint. The certifying physician must be engaged or qualified in a medical field in which the employee has been treated, or have training and/or experience in diagnosing or treating injuries or conditions similar to those of the employee and must disclose all evidence upon which the written certification is based,

including, but not limited to, all radiographic, pathologic or other diagnostic test results that were reviewed.

(III) If the employee suffers from an injury for which no impairment rating may be determined pursuant to the rule or regulation then in effect which governs impairment evaluations pursuant to this chapter, serious compensable injury may be established if the injury meets the definition in subclause (I)(b).

(IV) If the employee suffers from an occupational pneumoconiosis, the employee must submit written certification by a board certified pulmonologist that the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis and that the occupational pneumoconiosis has resulted in pulmonary impairment as measured by the standards or methods utilized by the West Virginia Occupational Pneumoconiosis Board of at least fifteen percent (15%) as confirmed by valid and reproducible ventilatory testing. The certifying pulmonologist must disclose all evidence upon which the written certification is based, including, but not limited to, all radiographic, pathologic or other diagnostic test results that were reviewed: Provided, That any cause of action based upon this clause must be filed within one year of the date the employee meets the requirements of the same.

W. VA. CODE § 23-4-2(d)(2)(B)(v) (2015).

iv. Verified Statement—To be submitted when a complaint is served pursuant to W.

VA. CODE § 23-4-2(d)(2)(B) (2015), it must be from a person with “knowledge and expertise of the workplace safety statutes, rules, regulations and consensus industry safety standards specifically applicable to the industry and workplace involved in the employee’s injury.” W.

VA. CODE § 23-4-2(d)(2)(C)(i) (2015). The statement must set forth opinions and information on:

(I) The person’s knowledge and expertise of the applicable workplace safety statutes, rules, regulations and/or written consensus industry safety standards;

(II) The specific unsafe working condition(s) that were the cause of the injury that is the basis of the complaint; and

(III) The specific statutes, rules, regulations or written consensus industry safety standards violated by the employer that are directly related to the specific unsafe working conditions: Provided, however, That this verified statement shall not be admissible at the trial of the action and the Court, pursuant to the Rules of Evidence, common law and subclause two-c, subparagraph (iii), paragraph (B), subdivision (2), subsection (d), section two, article four, chapter twenty-three of this code,

retains responsibility to determine and interpret the applicable law and admissibility of expert opinions. Id.

Additionally, causes of action are to be brought either in the circuit court of the county in which the alleged injury occurred or where the employer’s principal place of business is located.

W. VA. CODE § 23-4-2(e) (2015). Discovery may be bifurcated upon the employer’s request to resolve liability issues prior to those concerning damages. W. VA. CODE §23-4-2(d)(2)(C)(iii)

(2015). The amendments resulting from the 2015 Legislative session apply to all injuries occurring on or after July 1, 2015. W. VA. CODE §23-4-2(g) (2015).

The affirmative defenses of comparative negligence and assumption of the risk are not available to employers in a deliberate intent case. Employers, however, are permitted to introduce evidence of the employee’s conduct leading up to the accident that would serve to negate one or more of the five elements of the statute. Syl. Pt. 4, Master Mechanical v. Simmons, 232 W. Va.

581, 753 S.E.2d 79 (2013). The battleground during the dispositive motion and trial phases is the fine line between arguing the plaintiff’s comparative negligence and presenting evidence that the employee created the specific unsafe working condition, that the employer lacked actual knowledge, or that the specific unsafe working condition was not the proximate cause of the injury.

B. Discrimination/Retaliation

When an injured employee seeks to collect benefits and pursue his or her statutory remedies, however, some employers are tempted to retaliate against that employee in some cases.

The anti-discrimination provisions of the WVWCA are designed to prohibit an employer from discriminating “in any manner against any of his present or former employees because of such

. . . employee’s receipt of or attempt to receive benefits under this chapter.” W.

VA. CODE § 23-5A-1 (1978). The Supreme Court of Appeals of West Virginia has held that in order to prevail on a claim of workers’ compensation discrimination, an employee must prove that:

(1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers’

Compensation Act, W. Va. Code 23-1-1, et seq.; and (3) the filing of a workers’ compensation claim was a significant factor in the employer’s decision to discharge or otherwise discriminate against the employee. See Syl. Pt. 1, Powell v. Wyo. Cablevision, 184 W. Va. 700, 403 S.E.2d 717

(1991).

It is a discriminatory practice under the WVWCA to “terminate an injured employee while the injured employee is off work due to a compensable injury . . . and is receiving or is eligible to receive temporary total disability benefits, unless the injured employee has committed a separate dischargeable offense.” W. VA. CODE § 23-5A-3(a) (1990).

In addition, an employee is generally entitled to reinstatement after the employee is physically able to return to work. Under the applicable provision of the W. VA. CODE § 23-5A-

3(b) (1990):

It shall be a discriminatory practice . . . for an employer to fail to reinstate an employee who has sustained a compensable injury to the employee’s former position of employment upon demand for such reinstatement provided that the position is available and the employee is not disabled from performing the duties of such position. If the former position is not available, the employee shall be reinstated to another comparable position which is available and which the employee is capable of performing. . . . In the event that neither the former position nor a comparable position is available, the employee shall have a right to preferential recall to any job which the injured employee is capable of performing which becomes open after the injured employee notifies the employer that he or she desired reinstatement. Said right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that he or she desires reinstatement: Provided, [t]hat the employee provides to the employer a current mailing address during this one-year period.

Under this statute, reinstatement is required so long as the position is available, and the employee is not disabled from performing the duties of the job, with reasonable accommodations.

If the position is not available, the employee should be reinstated to a comparable position in terms of wages, working conditions, and job duties. If no such comparable position is available, the

employee is entitled to preferential recall rights to any position the employee is capable of performing for one year from the date that the employee notifies the employer that he or she wants reinstatement. In order to exercise the reinstatement rights protected by this statute, including rights to preferential recall, an employee must prove through competent medical evidence that he has recovered from his compensable injuries and is capable of returning to work and performing his job duties. Id.

4. EMPLOYMENT

A. Minimum Wage/Maximum Hours

Employers are to pay their employees wages at a rate not less than $8.75 per hour.

W. VA. CODE § 21-5C-2(a)(5) (2014).13 No employee shall be employed for a work week exceeding forty (40) hours unless compensated for the employment in excess of the forty (40) hours. W. VA. CODE § 21-5C-3(a) (1992). Specifically, this shall be at a rate not less than one and one-half times the regular rate at which she/he is employed. Id.

B. Wage Payment and Collection Act

Companies that process paychecks and benefits out-of-state often find themselves in violation of the West Virginia Wage Payment and Collection Act (the “Act”), W. VA. CODE §

21-5-1, et seq. For the purposes of this Act, the definition of “employee” includes “any person suffered or permitted to work by a person, firm or corporation,” and therefore, independent contractors may also be protected by the Act. W. VA. CODE § 21-5-1(b) (2015). The term

“employer” means “any person, firm or corporation employing any employee.” W. VA. CODE §

21-5-1(m) (2015). The term “wages” is defined as “compensation for labor or services rendered

13 However, “[w]hen the federal minimum hourly wage as prescribed by 29 U.S.C. § 206(a)(1) is equal to or greater than the wage rate prescribed in the applicable provision of this subsection, every employer shall pay to each of his or her employees wages at a rate of not less than the federal minimum hourly wage as prescribed by 29 U.S.C. § 206(a)(1).” W. VA. CODE § 21-5C-2(a)(6) (2014).

by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.” W. VA. CODE § 21-5-1(c) (2015). Wages include “then accrued fringe benefits capable of calculation and payable directly to an employee.” Id. The term “fringe benefits” means “any benefit provided [to] an employee or group of employees by an employer, or which is required by law, and includes regular vacation, graduated vacation, floating vacation, holidays, sick leave, personal leave, production incentive bonuses, sickness and accident benefits and benefits relating to medical and pension coverage.” W. VA. CODE § 21-5-1(l) (2015). However, the Act does not require fringe benefits to be calculated contrary to any agreement between an employer and his employees, which does not contradict the Act. For instance, if an employer does not have a policy for paying an employee for unused sick days at the time of separation from employment, the Act does not require unused sick days to be paid as part of the fringe benefits owed at the time of separation of employment.

To be compliant with the Act, employees are to be paid at least twice a month, with no more than nineteen (19) days between settlement, absent special agreement. W. VA. CODE § 21-5-

3(a) (2015). No employee can be employed for a work week exceeding forty (40) hours, unless the employee is compensated at a rate not less than one and a half times the regular rate at which the employee is employed. W. VA. CODE § 21-5C-3(a) (1992). In terms of separation from employment, the Act contemplates three (3) scenarios. In West Virginia, if an employee is discharged, quits, or resigns, the employer shall pay the employee’s wages in full “prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable.” W. VA. CODE § 21-5-4(b) (2015). “[F]ringe benefits, as defined in section one of this article, that are provided an employee pursuant to an agreement between the employee and employer and that are due, but pursuant to the terms of the agreement, are to be paid

at a future date or upon additional conditions which are ascertainable are not subject to this subsection and are not payable on or before the next regular payday, but shall be paid according to the terms of the agreement. For purposes of this section, ‘business day’ means any day other than Saturday, Sunday or any legal holiday as set forth in section one, article two, chapter two of this code.” Id.

When the work of any employee is suspended as a result of a labor dispute, or when an employee for any reason whatsoever is laid off, the employer shall pay the employee’s wages in full no later than the next regular payday. W. VA. CODE § 21-5-4(d) (2015). Payment in all instances may be made through the regular pay channels or, if requested by the employee, by mail.

Id.

The penalties for violating the Act can be significant. If an employer fails to pay an employee wages as required, the employer, in addition to the amount that was unpaid when due, is liable to the employee for twice that unpaid amount as liquidated damages. W. VA. CODE § 21-

5-4(e) (2015). However, this section of the Act does not concern whether overtime pay is due. Id.

Additionally, “liquidated damages that can be awarded under this section are not available to employees claiming they were misclassified as exempt from overtime under state and federal wage and hour laws.” Id. Attorneys’ fees are also available in addition to the penalty. W. VA. CODE §

21-5-12(b) (1975).

C. West Virginia Human Rights Act

In West Virginia, a wrongful or retaliatory discharge claim that is not based on contract or a violation of public policy is usually brought under the West Virginia Human Rights Act

(“WVHRA”). There exists no general public policy against harassment in the workplace for purposes of wrongful discharge law. The WVHRA governs a claim where an individual was

allegedly discriminated against because of race, religion, color, national origin, ancestry, sex, age, blindness or disability. W. VA. CODE § 5-11-2 (1998).

An individual may bring a claim under the WVHRA before the West Virginia Human

Rights Commission (“the Commission”) itself or in the circuit court. W. VA. CODE § 5-11-10

(1994); W. VA. CODE § 5-11-13(b) (1998). A claim filed with the Commission must be brought within three hundred sixty-five (365) days of the adverse act. W. VA. CODE § 5-11-10 (1994). Any person against whom a complaint has been filed must respond in writing within ten (10) days of receipt of the complaint. W. VA. CODE R. § 77-2-4.2 (2015); W. VA. CODE R. § 77-2-6.1, 6.3a

(2015). The Commission rarely grants an extension for the employer to respond to a complaint.

When a claim is brought before the Commission, an assistant attorney general may represent the claimant. W. VA. CODE R. § 77-2-3.3 (2015).

The Rules allow for written discovery in the form of interrogatories and requests for production of documents. W. VA. CODE R. § 77-2-7.16.b; 7.16.c (2015). Requests for admissions are not provided for in the Commission’s Procedural Rules. The Commission’s Procedural Rules only provide a period of ten (10) days for answering interrogatories and twenty (20) days for responding to requests for production. W. VA. CODE R. § 77-2-4.5, 7.26.b (2015). Depositions may be taken at the discretion of the Administrative Law Judge (“ALJ”) upon motion by a party. W.

VA. CODE R. § 77-2-7.16.a, 7.22 (2015). Motions must be made in writing. W. VA. CODE R. § 77-

2-7.11 (2015). Any response to a motion must be submitted within five (5) days, regardless of whether a hearing has been set on the motion. Id. The ALJ may use discretion in scheduling arguments upon a motion or making a ruling based upon the written submissions alone. Id. Once a hearing is scheduled, agreed-to resolutions short of adjudication remain favored.

Aggrieved parties may file petitions for administrative appeal with the Commission within thirty (30) days of receipt of the decision. W. VA. CODE § 5-11-11(a) (1989). Any party aggrieved by a final order of the Commission may appeal the decision to the Supreme Court. Any final order of the Commission in which the complainant is awarded back pay in excess of $30,000.00 or other damages in excess of $5,000.00 may be appealed into the circuit court of Kanawha County. Id.

A party may forego filing a claim with the Commission and pursue claims brought under the Act directly in the circuit court, for which there is a two (2) year statute of limitations. See

Syl. Pt. 1, Price v. Boone County Ambulance Auth., 175 W. Va. 676, 37 S.E.2d 913 (1985); W.

VA. CODE § 5-11-13(b) (1998). Additionally, it should be noted that the statute of limitations for claims brought before the Commission is tolled during the period in which the claim(s) are pending before the Commission. See Conaway v. E. Associated Coal Corp., 178 W. Va. 164, 168, 358

S.E.2d 423, 427 (1986). However, additional claims not included in the plaintiff’s Complaint to the Commission are not tolled during this time. Id.

D. Retaliatory Discharge

i. Legislative Findings—Employees of the State of West Virginia are entitled to be free from wrongful discharge and unlawful retaliation. W. VA. CODE § 55-7E-2(a)(1) (2015).

Citizens and employers alike are entitled to a legal system that adequately and reasonably compensates those subjected to unlawful employment actions, and the system should be fair, predictable in its outcomes, and it should function within the “mainstream of American jurisprudence.” W. VA. CODE § 55-7E-2(a)(2) (2015). However, the Legislature’s sweeping intentions are tempered by the fact that the goal of compensation remedies in employment law cases is to make the victim “whole.” W. VA. CODE § 55-7E-2(a)(3) (2015). Lack of uniformity in damage awards, “inconsistent with established federal law and the law of surrounding states,” puts

West Virginia and its businesses at a competitive disadvantage. W. VA. CODE § 55-7E-2(a)(4)

(2015). The purpose of Article 7Eis to “provide a framework for adequate and reasonable compensation to those persons who have been subjected to an unlawful employment action, but to ensure that compensation does not far exceed the goal of making a wronged employee whole.” W.

VA. CODE § 55-7E-2(b) (2015) (emphasis added).

ii. Substantial Public Policy—The general rule under West Virginia law is that employment is at-will and freely terminable by either party, subject to the exception that if the employee can show that the employer’s motivation for discharge “contravenes some substantial public policy.” Syl. Pt. 1, Harless v. First Nat’l Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978). It is well-established that in West Virginia, retaliatory discharge cases are generally based on a public policy articulated under the constitution, legislative enactments, legislatively approved regulations, and judicial opinions. Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp. 188

W. Va. 371, 424 S.E.2d 606 (1992). The basis of such claims is that it serves the greater good to prohibit employers from taking disciplinary action against employees for opposing employer wrongdoing. Inherent in the concept of a “public policy” claim is that the public has an interest in the supposed wrongdoing identified and reported by the plaintiff asserting such a claim in order for it to be actionable.

A substantial public policy should be easily recognizable so as to provide specific guidance to a reasonable person. Id. at Syl. Pt. 3. To obtain relief under a claim for wrongful discharge in violation of a substantial public policy, a former employee must show:

(1) a clear public policy existed and was manifested in a state or federal constitution, statute, administrative regulation, or in the common law;

(2) whether dismissing employees under circumstances like those involved in the Plaintiff's dismissal would jeopardize the public policy;

(3) whether the Plaintiff's dismissal was motivated by conduct related to the public policy; and;

(4) whether the employer lacked an overriding business justification for the dismissal.

Feliciano v. 7-Eleven, 210 W. Va. 740, 750, 559 S.E.2d 713, 723 (2001) (citation omitted).

Public policy only protects an employee’s actions allegedly in opposition to his employer’s conduct where the employee has complained to an outside party or taken other action reasonably calculated to prevent the objectionable conduct. If the cause of action is based upon the employee’s pursuit or anticipated pursuit of violations of administrative or statutory procedures, then notice to the employer of such action or intention is essential to the claim. Factual support that the employer was informed or in some way found out about the plaintiff’s pursuit of remedies is essential to a retaliatory discharge action.

In terms of damages, an employee has an affirmative duty to mitigate, regardless of whether the cause of action arises from a legislatively-created statutory right or the West Virginia common law. W. VA. CODE § 55-7E-3(a) (2015). This duty exists whether or not the employer acted with malice, malicious intent, or willful disregard of the employee’s rights. Id. There is no malice exception, and unmitigated or flat back pay and front pay awards are not an available remedy. Id. As a threshold matter, “the trial court shall make a preliminary ruling on the appropriateness of the remedy of reinstatement versus front pay if such remedies are sought by the plaintiff.” W. VA. CODE § 55-7E-3(b) (2015). The amount of front pay to be awarded is an issue for the trial judge to decide. Id.

E. Negligent Hiring, Retention and Supervision

In West Virginia, a claim for negligent hiring or retention is premised on the question of when the employee was hired or retained, whether the employer conducted a reasonable

investigation into the employee’s background vis-à-vis the job for which the employee was hired and the possible risk of harm or injury to co-workers or third parties that could result from the conduct of an unfit employee. See McCormick v. W. Va. Dep’t of Pub. Safety, 202

W. Va. 189, 503 S.E.2d 502, 506 (1998) (per curiam) (citing State ex rel. W. Va. State Police v.

Taylor, 201 W. Va. 554, 499 S.E.2d 283, 289, n.7 (1997)); See generally, Thomson v. McGinnis,

195 W. Va. 465, 465 S.E.2d 922 (1995). In other words, should the employer have reasonably foreseen the risk caused by hiring or retaining an unfit employee? See McCormick v. W. Va. Dep’t of Pub. Safety, 202 W. Va. 189, 503 S.E.2d 502, 506 (1998) (per curiam) (citing State ex rel. W.

Va. State Police v. Taylor, 201 W. Va. 554, 499 S.E.2d 283, 289, n.7 (1997)).

Whether an employer may be held liable on a theory of negligent hiring or retention depends on the nature of the employee’s job assignment, duties and responsibilities. Id. An employer has a duty to consider any risks to third persons associated with the employee’s particular job. Id. Examples of factors that West Virginia courts have considered include: (1) whether the employee was given access to certain locations strictly controlled by the company; (2) the extent to which the employee’s job duties involved contact with other employees or the public; (3) whether the employer gave express or implied authority or status which would lead co-workers or the public to believe that the employee was trustworthy or reliable; (4) did the employer condone or permit any conduct by the employee which was inconsistent with his job duties; (5) whether the employer had knowledge of the employee’s past behavior that is relevant to the recent conduct;

(6) the inherent dangers associated with the employee’s job duties; and (7) whether the employer had knowledge of the alleged inappropriate or illegal incident.

F. Privacy

West Virginia law recognizes a right to privacy, and an employer’s infringement upon an employee’s right to privacy may give rise to a cause of action. Syl. Pt. 2, Cordle v. General Hugh

Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984). Recognized examples of activities infringing upon this right include employee drug testing and pre-employment polygraph exams.

W. VA. CODE §21-5-5b (2015); Id. at Syl. Pt. 3; Syl. Pt. 1, Twigg v. Hercules Corp., 185 W. Va.

155, 406 S.E.2d 52 (1990). Concerning the law as it pertains to drug testing, the right to privacy protects an employee from employer intrusion in this form, under certain circumstances. Syl.

Pts. 1, 2, Twigg v. Hercules Corp., 185 W. Va. 155, 406 S.E.2d 52 (1990). Only two recognized exceptions exist that allow for drug testing. An employer may drug test where the employer has a

“reasonable good faith objective suspicion” regarding the employee’s drug use. Id. Additionally, the employer may drug test where the employee’s work concerns the “public safety or the safety of others.” Id. Such employees are commonly referred to as being employed in a osafety sensitive”afety sens

West Virginia also recognizes employees’ right to privacy in terms of their employment files and records which prevents the disclosure of a non-litigant employee’s file as part of any discovery request or response to a subpoena. This protection may also extend to former employees.

See State ex rel. Westbrook Health Servs., Inc. v. Hill, 209 W. Va. 668, 674, 550 S.E.2d 646, 550

S.E.2d 646, 652 (2001) (per curiam) (“[w]hen a litigant seeks personal and/or personnel information concerning nonlitigant employees or former employees . . . production of the requested information may invade the nonlitigant employees' or former employees' right to privacy.”). See also, State ex rel. W. Va. Fire & Cas. v. Karl, 202 W. Va. 471, 505 S.E.2d 210

(1998) (per curiam).

5. EMPLOYMENT CONTRACTS AND RELATED CLAIMS

A. Non-Compete Agreements

Employment agreements assist employers in controlling employee activity vis-à-vis their customers, and also allow the employer to have more involvement in the departure from employment. This is of particular significance if the employee has announced, or is believed to be, leaving to compete directly with the now-former employer. Because non-compete and non- solicitation agreements are viewed by many courts (especially those in West Virginia) as a restraint of trade and the ability to earn a living, if an employer wishes to enter into an express employment agreement or a non-compete and non-solicitation agreement with some of its employees, then certain provisions and considerations are preferred or necessary.

West Virginia courts look less favorably on attempts to change the terms and conditions of employment with existing employees. Courts consider whether a non-compete agreement is specifically and narrowly tailored to the specific job, information, and limitations on competition that will reasonably suit the employee. A reasonable geographic and temporal scope to the agreements is absolutely critical to enforce the agreement in West Virginia courts. See Syl. Pt. 1,

Huntington Eye Assocs. v. LoCascio, 210 W. Va. 76, 553 S.E.2d 773 (2001) (per curiam) ("An employee covenant not to compete is unreasonable on its face if its time or area limitations are excessively broad, or where the covenant appears designed to intimidate employees rather than to protect the employer's business, and a court should hold any such covenant void and unenforceable, and not undertake even a partial enforcement of it, bearing in mind, however, that a standard of 'unreasonable on its face' is to be distinguished from the standard of 'reasonableness' used in inquiries adopted by other authorities to address the minor instances of overbreadth to which restrictive covenants are naturally prone." (quoting Syl. Pt. 2, Reddy v. Community Health

Foundation of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982)). The more limited the non-compete

provisions are with regard to their length and the distance within which the employee is prohibited from competing will enhance the odds that they will be found to be enforceable.

B. Tortious Interference

A claim for tortious interference is typically seen in West Virginia under circumstances such as: (1) Company A interferes with the employer-employee relationship of Company B; (2)

Company A interferes with the business relationship between Company B and its clients or vendors; (3) Company A successfully interferes with the employer-employee relationship of

Company B, and the former employee of Company B and Company A begin to tortiously interfere with the client, vendor, and/or employee relationships of Company B; or (4) Company A successfully interferes with the employment relationship, thereafter Company B takes measures to protect its proprietary information and goodwill such as filing an injunction or lawsuit, Company

A terminates the employee as a result, and the former employee and/or Company A sue Company

B alleging tortious interference. Theory four (4) is premised on the concept of fair and legal competition in the business market.

The elements of a prima facie tortious interference claim as defined by West Virginia law include:

(1) the existence of a contractual or business relationship or expectancy;

(2) an intentional act of interference by a party outside that relationship or expectancy;

(3) proof that the interference caused the harm sustained; and

(4) damages.

Syl. Pt. 2, Torbett v. Wheeling Dollar Sav. & Trust Co., 173 W. Va. 210, 314 S.E.2d 166 (1983).

A claim for tortious interference can be challenging to prove. Often times, the evidence necessary to support a claim is not available until the harm has already occurred. There is also a

high likelihood that Company A will assert a counterclaim for tortious interference against

Company B that could result in lengthy and expensive litigation.

In addition, West Virginia has long adhered to the principle that an agent/employee “is not liable to one with whom he contracts for a breach of the contract” when he is “authorized to make the contract that he makes on behalf of his principal.” Hoon v. Hyman, 87 W. Va. 659, 661-662,

105 S.E. 925, 926 (1921); See also Koerber v. Wheeling Island Gaming, Inc., 2013 U.S. Dist.

LEXIS 5923 (N.D.W. Va. Jan. 15, 2013) (noting that an employee cannot be held liable for breach of contract entered into between his employer and other individuals); Powell v. Bank of America,

N.A., 842 F. Supp. 2d 966 (S.D.W. Va. 2012); Grubbs v. Westfield Ins. Co., 430 F. Supp. 2d 563

(N.D.W. Va. 2006); Green v. Flanagan, 730 S.E.2d 161 (Ga. Ct. App. 2012); Davis v. Fisher, 90

W. Va. 417, 111 S.E. 155 (1922).

6. DAMAGES IN PREMISES LIABILITY CASES

A. Caps on Damages—Recovery of punitive damages in West Virginia was significantly limited in 2015. Specifically, a plaintiff must establish “by clear and convincing evidence” that the damages suffered resulted from a defendant’s conduct that was committed with actual malice towards the plaintiff or in a “conscious, reckless and outrageous indifference to the health, safety and welfare of others.” W. VA. CODE § 55-7-29(a) (2015). The amount of punitive damages that may be awarded “may not exceed the greater of four times the amount of compensatory damages or $500,000, whichever is greater.” W. VA. CODE § 55-7-29(c) (2015). A defendant may request a bifurcated trial in which liability for compensatory damages is first determined, followed by a court determination as to whether the consideration of punitive damages is proper. W. VA. CODE

§ 55-7-29(b)(1)-(2) (2015). Should the court find that sufficient evidence exists to consider the

issue of punitive damages, the jury shall then determine whether a defendant is in fact liable for punitive damages. W. VA. CODE § 55-7-29(b)(3) (2015).

An additional cap placed on damages exists in the Medical Professional Liability Act

(“MPLA”). Pursuant to the statute’s limitations, non-economic damages are capped at $250,000.00 per occurrence, or $500,000.00 per occurrence in the case of (1) wrongful death, (2) permanent and substantial physical deformity, loss of use of a limb or loss of use of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities.

W. VA. CODE § 55-7B-8(a-b) (2015).

B. Calculation of Damages—In West Virginia, a plaintiff bringing a cause of action for personal injuries may recover for various damages including, but not limited to:

(1) Current and future pain and suffering; (2) Current and future loss of enjoyment of life or disability; (3) Reasonable expense of past and future medical care; (4) Loss of society; (5) Lost past or future earnings; (6) Deformity or disfigurement; (7) Emotional distress and mental anguish; (8) Embarrassment, humiliation or degradation; and (9) Increased risk of harm.

Personal injury damages are normally divided between economic damages (tangible losses) and non-economic damages (intangible losses, such as pain and suffering). To determine economic damages, the jury can consider tangible items, such as bills, statements, receipts, etc.

Calculating non-economic damages is more difficult because of the subjective analysis it requires for each case. A determination of such an amount rests in the sound discretion of the jury. See

Sargent v. Malcomb, 150 W. Va. 393, 400, 146 S.E.2d 561, 566 (1966) (“There is no exact formula or standard for placing a money value on such matters as pain, suffering and mental anguish

resulting from personal injuries or embarrassment resulting from bodily disfigurement or scars. The law recognizes that the aggregate judgment of twelve duly selected and properly qualified jurors represents the best method yet devised for fixing the amount of just compensation to the injured plaintiffs in such cases.”). In fact, in West Virginia, counsel is prohibited from suggesting a lump-sum or making per diem arguments to request specific dollar amounts reflective of non-economic damages. Syl. Pt. 5, Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961).

C. Available Items of Personal Injury Damages

i. Past medical bills—The jury may consider the necessary medical expenses the plaintiff incurred as a result of the injury. See Kretzer v. Moses Pontiac Sales, Inc., 157

W. Va. 600, 201 S.E.2d 275 (1973). It does not matter if the plaintiff did not have to pay for the services. Id.

ii. Future medical bills—A plaintiff can recover for future reasonable and necessary medical services that are reasonably certain to be incurred. See Syl. Pt. 2, Shreve v. Faris, 144 W.

Va. 819, 111 S.E.2d 169, 175 (1959). Additionally, in West Virginia, a present physical harm is not needed to sustain a claim for future medical expenses. See Bower v. Westinghouse Elec. Corp.,

206 W. Va. 133, 140, 522 S.E.2d 424, 431 (1999).

iii. Hedonic damages—Hedonic damages, also known as damages for the loss of enjoyment of life, are recognized in West Virginia. They compensate the plaintiff "for the permanent effect of the injury itself on the ‘capability of an individual to function as a whole man.’" Wilt v. Buracker, 191 W. Va. 39, 43, 443 S.E.2d 196, 200 (1993) (citations omitted). Part of the general measure of damages flowing from a permanent injury, damages concerning “loss of enjoyment of life” are not subject to an economic calculation because economic theories are not admissible in the calculation of general damages. Id. at Syl. Pt. 4.

iv. Increased risk of harm—West Virginia courts recognize a claim for medical monitoring if the defendant's tortious conduct has exposed the plaintiff to an increased risk of contracting a serious disease. See Bower v. Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.2d

424 (1999). A claim for the recovery of medical monitoring costs can be successful when it is proven that such expenses are necessary and reasonably certain to be incurred as a result of the defendant's tortious conduct. Id. at Syl. Pt. 2. The plaintiff must also prove she/he has been significantly exposed to a proven hazardous substance by the tortious conduct of the defendant, and as a proximate result of this exposure, the plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population. Id. Additionally, the increased risk of disease must render it reasonably necessary to undergo periodic “diagnostic medical examinations” that are different than those that would have been prescribed absent such exposure, and monitoring procedures exist that make it possible to detect the disease early. Id. Punitive damages, however, may not be awarded on a cause of action for medical monitoring. Syl. Pt. 5,

Perrine v. E.I. DuPont de Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).

v. Disfigurement—West Virginia recognizes disfigurement as a type of compensatory damage. Hardy v. Hardy, 186 W. Va. 496, 413 S.E.2d 151 (1991).

vi. Disability—West Virginia recognizes disability as a type of compensatory damage.

Hardy v. Hardy, 186 W. Va. 496, 413 S.E.2d 151 (1991).

vii. Past pain and suffering—An injured plaintiff may recover pain and suffering damages in West Virginia, even if the underlying injuries are not of a permanent nature. Syl.

Pt. 1, Keiffer v. Queen, 155 W. Va. 868, 189 S.E.2d 842 (1972).

viii. Future pain and suffering—Future pain and suffering damages can be awarded to a plaintiff when the evidence shows it is reasonably certain that future expenses proximately

related to the negligence of the defendant will be incurred. Delong v. Kermit Lumber & Pressure

Treating Co., 175 W. Va. 243, 244-245, 332 S.E.2d 256, 257-58 (1985).

ix. Loss of society—West Virginia courts recognize a claim for loss of society in wrongful death cases, and the evidence of a relationship with the decedent may be admitted for purposes of determining damages. See W. VA. CODE § 55-7-6 (1992). See also, Syl. Pt. 2, Voelker v. Frederick Bus. Props. Co., 195 W. Va. 246, 465 S.E.2d 246 (1995).

x. Lost income, wages, earnings— A plaintiff can be awarded lost income, wages, and earnings. Gault v. Monongahela Power Co., 159 W. Va. 318, 223 S.E.2d 421, 427 (1976).

Lost earnings comes in two forms: past and future. Id. Evidence of a plaintiff’s past earnings is pertinent and admissible when the jury is determining lost future earning capacity. Id.

D. Mitigation

Injured parties have a duty to use ordinary care to minimize damages. See Taylor v. Sturm

Lumber Co., 90 W. Va. 530, 111 S.E. 481 (1922). See also Hardman Trucking, Inc. v. Poling

Trucking Co., Inc., 176 W. Va. 575, 579, 346 S.E.2d 551, 555 (1986) (per curiam) (citing Oresta v. Romano Bros., Inc., 137 W. Va. 633, 650, 73 S.E.2d 622, 632 (1952)).

i. Breach of Contract—In breach of contract cases, the aggrieved party has a duty to mitigate damages if he or she can do so without unreasonable effort or expense. See Syl. Pt. 4, in part, Taylor v. Sturm Lumber Co., 90 W. Va. 530, 111 S.E. 481 (1922).

ii. Specific economic damages—A “plaintiff seeking damages for future losses in the form of specific income or capacity to earn a living, including lost opportunity, must show how his or her [economic] situation has been impeded.” Cook v. Cook, 216 W. Va. 353, 360-361, 607

S.E.2d 459, 466-467 (2004). Such proof is necessary to keep with the doctrine of avoidable consequences, which states that “a party cannot recover damages flowing from consequences that

the party could reasonably have avoided.” Cook v. Cook, 216 W. Va. 353, 361, 607 S.E.2d 459,

467 (2004) (citing 22 Am. Jur. 2d Damages § 340 (2003)).

E. Punitive Damages

i. Intentionality—Punitive damages may be awarded to punish a defendant for

"willfulness" or an intentional infliction of damages. See Syl. Pt. 1, O’Brien v. Snodgrass, 123

W. Va. 483, 16 S.E.2d 621 (1941).

ii. Breach of contract—Punitive damages, however, are normally only recoverable in actions based in tort. Generally, "absent an independent, intentional tort committed by the defendant, punitive damages are not available in an action for breach of contract." Goodwin v.

Thomas, 184 W. Va. 611, 614, 403 S.E.2d 13, 16 (1991) (per curiam) (citing Berry v. Nationwide

Mut. Fire Ins. Co., 181 W. Va. 168, 175, 381 S.E.2d 367, 374 (1989)).

iii. Recklessness—The jury may assess exemplary, punitive, or vindictive damages in tort actions ''where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it." Syl. Pt. 1, Goodwin v. Thomas, 184 W. Va. 611, 403 S.E.2d 13 (1991)

(per curiam).

iv. Factors Considered—Factors considered when a jury assesses punitive damages include:

(1) Whether they bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred.

(2) The reprehensibility of the defendant's conduct, such as how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.

(3) If the defendant profited from his wrongful conduct, the punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant.

(4) Whether the punitive damages bear a reasonable relationship to compensatory damages.

(5) The financial position of the defendant.

Syl. Pt. 3, Garnes v. Fleming Landfill, 186 W. Va. 656, 413 S.E.2d 897 (1991).

When the trial court reviews a jury’s award, the Garnes Court instructs that the following additional factors should be considered:

(1) The costs of the litigation;

(2) Any criminal sanctions imposed on the defendant for the conduct;

(3) Any other civil actions against the same defendant, based on the same conduct; and

(4) The appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed. A factor that may justify punitive damages is the cost of litigation to the plaintiff.

Id. at Syl. Pt. 4.

v. Insurability—Punitive damages are insurable under West Virginia law. See

Hensley v. Erie Ins. Co., 168 W. Va. 172, 179, 283 S.E.2d 227, 231 (1981) (citations omitted)

("Where punitive damages are permitted to be recovered under the insurance policy, the insurance company is only liable to its policy limits as to both types of damages."). Even though gross, reckless, or wanton negligence are difficult words to define, "they are nonetheless species of negligence and therefore, from a public policy standpoint, should not be precluded from insurance coverage." Hensley v. Erie Ins. Co., 168 W. Va. 172, 181, 283 S.E.2d 227, 231-32 (1981).

Insurance companies, however, may exclude punitive damages from the policy. See W. VA. CODE

R. § 114-63-5.14 (2015) ("Underinsured motor vehicle coverage may include an exclusion for punitive damage liability.").

F. Settlements Involving Minors

i. Court approval—W. VA. CODE § 44-10-14 (2002) requires court approval prior to the entry of a proposed settlement, release and distribution of settlement proceeds involving a minor.

ii. Court considerations—W. VA. CODE§ 44-10-14(g)(1) (2002) states:

In allowing the payment of settlement proceeds for attorney fees, legal expenses, court costs and other costs of securing the settlement in such reasonable amounts as the court finds in its discretion to be appropriate, the court shall consider the amount to be paid as damages, the age and necessities of the minor, the nature of the injury, the difficulties involved in effecting the settlement, legal expenses and fees paid to attorneys in similar cases and any other matters which the court determines should be considered in achieving a proper and equitable distribution of settlement proceeds.

G. Recovery of Pre- and Post-Judgment Interest

Pursuant to W. VA. CODE § 56-6-31(b) (2006), “the rate of interest on judgments and decrees for the payment of money, including prejudgment interest, is three percentage points above the Fifth Federal Reserve District secondary discount rate in effect on the second day of January of the year in which the judgment or decree is entered: Provided, that the rate of prejudgment and post-judgment interest shall not exceed eleven percent per annum or be less than seven percent per annum.”

i. Prejudgment interest—Prejudgment interest is a “form of compensatory damages intended to make an injured plaintiff whole as far as loss of use of funds [is] concerned.” Syl. Pt.

1, in part, Buckhannon-Upshur County Airport Auth. v. R & R Coal Contractor, 186 W. Va. 583,

413 S.E.2d 404 (1991).

ii. Post-judgment interest—Post-judgment interest compensates an individual for

“the delay between the judgment and the receipt of actual payment.” Adams v. Nissan Motor Corp. in U.S.A., 182 W. Va. 234, 241, 387 S.E.2d 288, 295 (1989).

7. INSURANCE AND INDEMNIFICATION

A. Insurance

In general, the language in an insurance policy should be given its plain, ordinary meaning.

Syl. Pt. 1, Soliva v. Shand, Morahan & Co., 176 W. Va. 430, 345 S.E.2d 33 (1986); Syl. Pt. 2,

Russell v. State Auto. Mut. Ins. Co., 188 W. Va. 81, 422 S.E.2d 803 (1992). “[W]here the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.”

Keffer v. Prudential Ins. Co., 153 W. Va. 813, 815–16, 172 S.E.2d 714 (1970) (citations omitted).

While policy provisions that are ambiguous are liberally construed in favor of the insured, Aetna

Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 194, 342 S.E.2d 156 (1986), a policy provision is only ambiguous if it is “reasonably susceptible of two different meanings or . . . of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning.” Glen Falls Inc.

Co. v. Smith, 217 W. Va. 213, 617 S.E.2d 760, 768 (2005) (quoting Syl. Pt. 5, Hamric v. Doe, 201

W. Va. 615, 499 S.E.2d 619 (1997)).

i. Insurer’s Duty to Defend—“As a general rule, an insurer's duty to defend is tested by whether the allegations in the plaintiff's complaint are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policy.” Aetna Cas. &

Sur. Co. v. Pitrolo, 176 W. Va. 190, 194, 342 S.E.2d 156, 160 (1986) (citations omitted).

“Furthermore, it is generally recognized that the duty to defend an insured may be broader than the obligation to pay under a particular policy. This ordinarily arises by virtue of language in the

ordinary liability policy that obligates the insurer to defend even though the suit is groundless, false, or fraudulent.” Id. (citations omitted). In addition, any ambiguities in the language of insurance policies must be construed liberally in favor of the insured. See Syl. Pt. 5, Wehner v.

Weinstein, 216 W. Va. 309, 607 S.E.2d 415 (2004) (per curiam) (citations omitted). See also Syl.

Pt. 1, Hensley v. Erie Insurance Co., 168 W. Va. 172, 283 S.E.2d 227 (1981) (quoting Syl. Pt. 3,

Polan v. Travelers Ins. Co., 156 W. Va. 250, 192 S.E.2d 481 (1972)). As a result, any question concerning an insurer's duty to defend under an insurance policy must be construed liberally in favor of an insured. “However, ‘a liability insurer need not defend a case against the insured if the alleged conduct is entirely foreign to the risk insured against.” State Bancorp, Inc. v. United States

Fid. & Guar. Ins. Co., 199 W. Va. 99, 104, 483 S.E.2d 228 (1996).

ii. Insurer’s Duty to Indemnify—“It is well established that ‘an insurer is only obligated to indemnify its insured for claims that actually fall within the terms of the policy.’”

State el.rel. Nationwide Mut. Ins. Co. v. Wilson, 236 W. Va. 228, 778 S.E.2d 677, 682 (2015); see also Perdue Farms, Inc. v. Travelers Cas. & Sur. Co., 448 F.3d 252, 259 (4th Cir. 2006) (“[A]n insurer has no obligation to remunerate its insured for claims not covered under its policy.”).

“[A]n insurer’s duty to indemnify its insured under a CGL policy is narrower than its duty to provide a defense. In assessing whether an insurer is obligated to indemnify under a CGL policy, each claim is examined individually. When only some, but not all, of the claims in a lawsuit fall within the terms of a CGL policy, the insurer is not obligated to indemnify its insured for those claims that do not fall within the CGL policy's terms.” Wilson, 778 S.E.2d at 683.

B. Indemnification

West Virginia recognizes two (2) basic types of indemnity: express indemnity, based on a written agreement, and implied indemnity, arising out of the relationship between the parties. Syl.

Pt. 1, Valloric v. Dravo Corp., 178 W. Va. 415, 357 S.E.2d 207 (1987) (per curiam).

i. Express Indemnity—“[A]n express indemnity agreement can provide the person having the benefit of the agreement, the indemnitee, indemnification even though the indemnitee is at fault. Such result is allowed because express indemnity agreements are based on contract principles. Courts have enforced indemnity contract rights so long as they are not unlawful.” Id.

ii. Implied Indemnity—Implied indemnity is based on principles of equity and restitution. Syl. Pt. 3, Harvest Capital v. W. Va. Dept. of Energy, 211 W. Va. 34, 560 S.E.2d 509,

512 (2002) (citing Syl. Pt. 2, Sydenstricker v. Unipunch Prods., Inc., 169 W. Va. 440, 288 S.E2d

511 (1982)). The right to seek implied indemnity belongs only to a person who is without fault.

See, e.g., Hager v. Marshall, 202 W. Va. 577, 585, 505 S.E.2d 640, 648 (1998). The requisite elements of an implied indemnity claim in West Virginia are a showing that:

(1) an injury was sustained by a third party;

(2) for which a putative indemnitee has become subject to liability because of a positive duty created by statute or common law, but whose independent actions did not contribute to the injury; and

(3) for which a putative indemnitor should bear fault for causing because of the relationship the indemnitor and indemnitee share.

Syl. Pt. 4, Harvest Capital v. W. Va. Dept. of Energy, 211 W. Va. 34, 560 S.E.2d 509, 512 (2002).

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor, or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice.