INTRODUCTION
The history of the ideas and practices underlying workers’ compensation laws is varied. While many commentators attribute their origins to Prussian Germany in the latter half of the 1800s,[1] others have found early models of scheduled payments for loss of body parts under Hammurabi’s Code, which provided a set of rewards for injuries and their permanent impairments.[2] Regardless of when (or where) they began, workers’ compensation laws often have a unifying feature: in exchange for compensating an employee for work-related injuries without examination of fault, the employer is entitled to immunity from being sued under common law.[3] This quid pro quo concept has a significant role in employment discrimination cases.
Over the years, a proliferation of common law tort claims have been asserted against employers and employees in employment discrimination cases in West Virginia. These claims have taken many different forms and have included such torts as assault, battery, intentional infliction of emotional distress and the tort of outrage, negligent infliction of emotional distress, and negligent hiring, supervision, and retention.[4] These types of common law tort claims present various and unnecessary complications in litigating employment discrimination cases. They can create insurance coverage issues, require additional discovery, necessitate the filing of more pre-trial evidentiary motions, prejudice jury trials through the introduction of improper alternative theories of recovery, create the potential for plaintiffs to receive a double recovery of damages, and introduce inflammatory arguments.
It is simply not necessary to encumber employment litigation with these issues. Plaintiffs pursuing claims in employment litigation will typically be able to obtain the same or greater relief through proper statutory or common law employment-based claims. Nevertheless, when plaintiffs are intent on pursuing common law tort claims against employers and employees, it is evident that the immunity provisions of the West Virginia Workers’ Compensation Act (“WCA”) can be used to bar those claims.[5] Likewise, a great number of courts in other jurisdictions with statutes similar to the WCA have also found that the statutory remedy provided in the statute is intended to provide the exclusive remedy to those injured during the course of employment.[6] The purpose of this article is to examine the statutory basis for the workers’ compensation immunity defense, the scope of that defense, and how West Virginia courts have applied that defense to bar common law tort claims pled in employment discrimination cases.
ANALYSIS
This part of the article will detail the nature and application of workers’ compensation immunity afforded to employers and employees in employment discrimination cases. Section II.A will provide the statutory basis for immunity under the WCA.[7] Section II.B. will examine the West Virginia cases applying WCA immunity in employment discrimination cases.[8] Section II.C. will explore cases from other jurisdictions, which address the scope of workers’ compensation immunity.[9]
A. Employer and Employee Immunity Under the Workers’ Compensation Act
As a starting point, the Legislature has unequivocally declared that the common law tort system does not apply when the WCA is implicated in a civil action.[10] Indeed, current or former employees who are injured at work can recover damages in addition to workers’ compensation benefits only when they are able to prove that their employer acted with deliberate intention under the standard established by the WCA.[11] Specifically, the deliberate intention provisions of the WCA provide, in pertinent part, as follows:
It is declared that enactment of this chapter and the establishment of the workers’ compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as expressly provided in this chapter and to establish a system which compensates even though the injury or death of an employee may be caused by his or her own fault or the fault of a co-employee; that the immunity established in sections six and six-a, article two of this chapter is an essential aspect of this workers’ compensation system; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those immunized from litigation outside the workers’ compensation system except as expressly provided in this chapter; that, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter.[12]
Turning to the specific immunity provisions of the WCA, which are deemed to be an “essential aspect of this workers’ compensation system”[13] by the Legislature, employers and their employees, agents and representatives are expressly exempt from liability for common law tort claims. In relevant part, the WCA expressly confers the following immunity on employers:
[a]ny employer subject to this chapter who subscribes and pays into the workers’ compensation fund the premiums provided by this chapter or who elects to make direct payments of compensation as provided in this section is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring,[14] after so subscribing or electing, and during any period in which the employer is not in default in the payment of the premiums or direct payments and has complied fully with all other provisions of this chapter. [15]
This broad immunity also extends to employees, agents, and other representatives of an employer.[16] The companion immunity provision of the WCA provides that “[t]he immunity from liability set out in [Section 23-2-6] shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer’s business and does not inflict an injury with deliberate intention.”[17] Such a provision is of paramount importance to the effectiveness of the immunity defense because co-workers, managers and supervisors are frequently sued as individual co-defendants along with their employers in employment discrimination cases.
In sum, it is plain that the immunity provisions of the WCA act in tandem to afford broad immunity from common law tort claims to employers and the individuals employed by or acting on behalf of employers. The WCA therefore provides a clear statutory basis for employer and employee immunity from common law tort claims asserted as part of an employment discrimination lawsuit.
B. The West Virginia Cases Analyzing the Immunity Provisions of the Workers’ Compensation Act
In this section, the authors will examine the West Virginia court decisions which now enable employers and employees to successfully assert the full scope of an immunity defense under the WCA.
1. The Workers’ Compensation Act Immunity Defense Takes Shape
Beginning in the 1990s, the Supreme Court of Appeals of West Virginia started addressing the applicability of WCA immunity in cases where common law tort claims were asserted against employers.[18] In Miller v. City Hospital, Inc.,[19] the plaintiff alleged that a nurse manager engaged in “unjust continual harassment” toward her by verbally abusing her, criticizing her work, requiring her to perform an excessive amount of work, and scheduling her work hours so that she could not attend meetings designed to improve her work performance.[20] The plaintiff further alleged that she was denied personal leave for illnesses, was forced to accept in-house healthcare, received threatening telephone calls and threats of physical harm, had some grease-like substance placed on her work station, sustained damage to her car, and was subjected to vicious rumors about having an affair with a supervisor.[21] Because of this alleged conduct, she had a severe emotional reaction and was forced to resign her employment.[22]
After conducting substantial discovery, the hospital filed a motion for summary judgment maintaining that the plaintiff’s claims were barred by the WCA.[23] The circuit court granted the hospital’s motion for summary judgment finding that the plaintiff failed to state a claim under the deliberate intention exception of the WCA.[24] On appeal, the Supreme Court of Appeals of West Virginia affirmed the circuit court’s grant of summary judgment and found that the plaintiff failed to show that there were issues of fact concerning the elements required by West Virginia Code § 23-4-2.[25]
One year after Miller was decided, in Tolliver v. Kroger Co.,[26] the Supreme Court of Appeals of West Virginia affirmed a circuit court’s grant of summary judgment to an employer where a plaintiff alleged common law tort claims for assault, battery, and intentional infliction of emotional distress.[27] As part of its analysis, the Tolliver court found that the plaintiff failed to properly plead a statutory deliberate intention cause of action against the employer pursuant to West Virginia § 23-4-2(d)(2) (formerly § 23-4-2(c)(2)).[28] In deciding what was required to adequately plead a prima facie deliberate-intention claim, the Court noted that “[u]nder the statute, deliberate intention allegations may only be satisfied where it is alleged an employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury.”[29] Because the plaintiff failed to adequately plead a deliberate intention cause of action in her complaint, there was no genuine issue of material fact in dispute as it is a prerequisite of a cause of action to be properly pled.[30]
2. Bias v. Eastern Associated Coal Corp.—Defining the Contours of Immunity Under the Workers’ Compensation Act
The most significant case decided by the Supreme Court of Appeals of West Virginia on the issue of WCA immunity is Bias v. Eastern Associated Coal Corp.[31] In Bias, the plaintiff alleged that his employer was liable for his emotional injuries as a result of being trapped in a mine and asserted a common law tort claim for negligent infliction of emotional distress.[32] On appeal, the Bias court considered the certified question of “[w]hether an employee who sustains a mental injury without physical manifestation and, as such, is precluded from receiving Workers’ Compensation benefits . . . , can maintain a common law negligence action against his employer . . . .”[33] The Bias court answered the certified question in the negative.[34]
When analyzing this specific issue, the Bias court concluded that the plain language of the WCA afforded employers “sweeping immunity” from common law tort claims, including claims of negligence:[35]
Our Legislature has thus instructed the Court that we are not to read into the immunity provision of W. Va. Code § 23-2-6 an exception not ‘expressly provided [by the legislature] in this chapter.’
W Va. Code § 23-2-6 expressly provides employers with ‘immunity from common lawsuit’ and ‘litigation’ for common-law claims, such as the so-called ‘mental-mental’ negligence claim asserted herein by plaintiff. We conclude that the Legislature intended for W. Va. Code § 23-2-6 to provide qualifying employers with a sweeping immunity from common-law tort liability for negligently caused work-related injuries. We are compelled to respect this intention and apply the plain language of W. Va. Code § 23-2-6.[36]
In addition, the Bias court went on to provide some guidance as to the scope of the immunity conferred upon employers under the Act.[37] Specifically, the Court held that the immunity provided to employers under the WCA can only be forfeited in one of three distinct situations:
[A]n employer who is otherwise entitled to the immunity provided by W. Va. Code § 23-2-6 (1991) may lose that immunity in only one of three ways: (1) by defaulting in payments required by the Workers’ Compensation Act or otherwise failing to be in compliance with the Act; (2) by acting with ‘deliberate intention’ to cause an employee’s injury as set forth in W. Va. Code § 23-4-2(d); or (3) in such other circumstances where the Legislature has by statute expressly provided an employee a private remedy outside the workers’ compensation system.[38]
If none of these three situations exist, then an employer enjoys the full scope of immunity provided by the WCA.[39]
The Bias decision certainly defines the contours of an employer’s immunity defense under the WCA.[40] As demonstrated in the foregoing cases, the foundation cast in Bias and the other cases decided by the Supreme Court of Appeals of West Virginia have eliminated employer and employee liability for common law tort claims asserted in the context of employment discrimination cases.[41]
3. Post-Bias Cases Addressing the Workers’ Compensation Immunity Defense in Employment Discrimination Cases
In the aftermath of Bias, West Virginia courts have applied the WCA immunity and exclusivity concepts contained in that decision to dismiss common law tort claims asserted in the context of employment discrimination cases. The West Virginia district courts and circuit courts have been explicit in citing to Bias in support of dismissing such claims. While the Supreme Court of Appeals of West Virginia has not cited its decision in Bias when affirming the dismissal of common law tort claims in employment cases, it has applied the immunity and exclusivity provisions of the WCA to affirm the dismissal of those claims. The remainder of this section will examine the post-Bias trend of dismissing common law tort claims based on the immunity and exclusivity provisions of the WCA.
i. Supreme Court of Appeals of West Virginia Cases
While the Supreme Court of Appeals of West Virginia has not specifically cited Bias in disposing of common law tort claims in the employment discrimination context, it has issued decisions faithful to the principles established by that case. For instance, in Bowens v. Allied Warehousing Services, Inc., the Supreme Court of Appeals of West Virginia affirmed a circuit court’s summary judgment ruling which held that an employee’s negligence and negligent hiring claims were barred by the immunity provisions of the WCA.[42] In Bowens, the plaintiff, who was a temporary warehouse employee, was injured in an accident and brought an action against a warehouse operator that had contracted with a temporary employment agency for his services.[43] The plaintiff then filed suit asserting various claims against the temporary agency and warehouse operator, including “negligence, unsafe workplace, negligent hiring, workers’ compensation fraud, and common law fraud.”[44] On appeal, the Supreme Court of Appeals of West Virginia analyzed the immunity provisions of West Virginia Code §§ 23-2-6 and 23-2-6a and concluded that the warehouse operator was the plaintiff’s “special employer” and was entitled to statutory immunity from his negligence claims under the WCA.[45]
Shortly thereafter, in Gibson v. Shentel Cable Co.,[46] the Supreme Court of Appeals of West Virginia affirmed a circuit court’s ruling which granted the defendant’s motion to dismiss a plaintiff’s first amended complaint alleging negligence in a wrongful discharge case. In Gibson, a former employee brought an action against his employer and supervisor alleging deliberate intent, negligence, violation of the West Virginia Human Rights Act, intentional infliction of emotional distress, and retaliatory discharge.[47] While the Court affirmed the dismissal of all claims, it affirmed the dismissal of the plaintiff’s negligence claims against the employer and employee based on the immunity provided by West Virginia Code §§ 23-2-6 and 23-2-6a.[48] The Court reasoned that employers and employees “are immune from negligence claims under the West Virginia workers’ compensation system.”[49]
Based on the clear statutory language of the WCA, as interpreted and discussed by the Supreme Court of Appeals of West Virginia, it is clear that common law tort claims have no role in an employment discrimination case.
ii. West Virginia Federal Cases
Recently, in Fugate v. Frontier West Virginia, Inc.,[50] the United States District Court for the Southern District of West Virginia analyzed the defendant’s motion to dismiss plaintiff’s common law tort claims for negligent infliction of emotional distress and outrage[51] in an employment discrimination/wrongful discharge case.[52] Critically, in following the dictates of Bias, the district court noted that the WCA creates “‘sweeping immunity’ for employers for all common law tort actions by employees for injuries occurring ‘in the course of and resulting from employment.’”[53] The district court also found that the Supreme Court of Appeals of West Virginia’s prior decisions in Bias and Miller supported the proposition that the immunity provided by the WCA “encompasses an action for negligent or intentional infliction of emotional distress.”[54]
Turning to the crux of the plaintiff’s argument, the district court indicated that the plaintiff “invoke[d] the third exception to immunity, arguing that because his emotional injuries arise from discriminatory conduct, not a workplace injury, the exclusivity provision is inapplicable.”[55] The Court dispensed with this argument with the understanding that the “immunity provided by § 23-2-6 is not so easily forfeited.”[56] The Court observed that
Plaintiff offers an unduly broad reading of Messer, contending that causes of action arising from an employer’s alleged discriminatory conduct, whether rooted in common law or statute, are outside the reach of the Act’s exclusivity provision. Messer does not support Plaintiff's novel interpretation. Messer harmonized two seemingly conflicting statutory schemes, both designed to preserve sound policy interests. The need to further the objectives of both statutes—the Act and the [West Virginia Human Rights Act]—persuaded the Supreme Court of Appeals to recognize the third, limited exception to the “expansive immunity” that an employer typically enjoys under workers’ compensation laws. For that reason, the holding in Messer cannot be divorced from the statutory scheme that compelled the decision in the first place.[57]
The district court’s decision in Fugate utilized the same rationale as a prior decision issued by the United States District Court for the Northern District of West Virginia in Councell v. Homer Laughlin China Co.[58] In Councell, an employment discrimination case, the district court considered whether the plaintiff’s claims for intentional and negligent infliction of emotional distress were subject to dismissal as being barred by the WCA.[59] Citing to the “sweeping immunity” analysis of Bias, the district court found these claims were barred to the extent they fell within the immunity and exclusivity provisions of the WCA:
The plaintiffs argue that the emotional distress claimed in this action was not a result of a workplace incident or accident, but instead was a result of Ms. Councell’s termination. While true, the plaintiffs misunderstand the breadth of the West Virginia Workers’ Compensation Act in that it provides almost complete immunity from common law tort liability for negligently inflicted injuries to employees as a result of their employment. . . . Emotional distress which results from termination from employment does, in turn, result of employment.[60]
Accordingly, both the United States District Court for the Northern District of West Virginia and the United States District Court for the Southern District of in West Virginia have followed the Supreme Court of Appeals of West Virginia’s analysis to hold that common law tort claims in employment discrimination cases are barred by the immunity and exclusivity provisions of the WCA.[61]
iii. Circuit Court Cases
Since the issue of whether WCA immunity bars common law tort claims in an employment discrimination case presents a question of law, West Virginia circuit courts have found the issue ripe for adjudication at the motion to dismiss stage.[62] Accordingly, the Circuit Courts of Cabell, Kanawha, Raleigh, and Wood counties have dismissed common law tort claims asserted against employers and employees in employment discrimination or wrongful discharge cases based on WCA immunity.[63] The courts issuing these decisions have applied the straightforward immunity and exclusivity provisions of the WCA and incorporated the broad immunity analysis set forth in Bias.
iv. Other Jurisdictions
West Virginia law is consistent with the law of other jurisdictions as to the scope of workers’ compensation immunity. While each state’s workers’ compensation system is unique, the statutory laws in many states contain explicit immunity and exclusivity provisions. Indeed, similar to West Virginia courts, courts in many other jurisdictions have found employers to be immune from common law tort claims, including claims of intentional and negligent infliction of emotional distress and negligent hiring, retention, and supervision, based on the provisions of their state workers’ compensation acts.[64] Therefore, states with workers’ compensation schemes similar to West Virginia’s scheme have held that common law tort claims asserted in employment discrimination cases are barred by the immunity and exclusivity provisions of the WCA.
CONCLUSION
The fundamental policy rationale behind most workers’ compensation acts—and indeed, West Virginia’s WCA—supports the argument that employers are entitled to sweeping immunity from common law tort claims when they contribute to the workers’ compensation system. Thus, the scope of the workers’ compensation immunity defense is appropriately broad, as recognized by the Supreme Court of Appeals of West Virginia, federal district courts and state circuit courts. Accordingly, the WCA can be successfully used to obtain pre-trial dismissal of common law tort claims which are improperly interjected into an employment discrimination case. It is clear that the immunity and exclusivity provisions of the WCA apply to employers and their employees, agents and representatives to bar such claims.
[i] Member, Jackson Kelly PLLC, Charleston, West Virginia; J.D., West Virginia University College of Law, 1998.
[ii] Associate, Jackson Kelly PLLC, Charleston, West Virginia; J.D., West Virginia University College of Law, 2015.
[1] Ann Clayton, Workers’ Compensation: A Background for Social Security Professionals, 65 Soc. Security Bull., https://www.ssa.gov/policy/docs/ssb/v65n4/v65n4p7.html (last visited Oct. 21, 2019); Jonathan L. Schaffer, The History of Pennsylvania’s Workmen’s Compensation: 1900-1916, 53 Pa. Hist. 26 https://journals.psu.edu/phj/article/viewFile/24554/24323, 26 (1986).
[2] Gregory P. Guyton, A Brief History of Workers’ Compensation, 19 Iowa Orthopedic J. 106 (1999), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1888620/.
[3] See Javins v. Workers’ Comp. Comm’r, 320 S.E.2d 119, 131 (W. Va. 1984) (“Employers are shielded from common law liability by the Workers’ Compensation Act. The quid pro quo for the employees is the guarantee that they will be afforded due process, and proper restitution for injuries they receive in their line of work.”).
[4] See, e.g., Fugate v. Frontier W. Va., Inc., No. 2:17-cv-00559, 2017 WL 3065216 (S.D. W. Va. July 19, 2017); Gibson v. Shentel Cable Co., No. 12-0132, 2013 WL 500202 (W. Va. Feb. 11, 2013) (mem.); Bowens v. Allied Warehousing Servs., Inc., 729 S.E.2d 845 (W. Va. 2012); Bias v. E. Associated Coal Corp., 640 S.E.2d 540 (W. Va. 2006); Tolliver v. Kroger Co., 498 S.E.2d 702 (W. Va. 1997); see also infra note 65.
[5] See W. Va. Code § 23-4-2(d)(1).
[6] See infra note 65.
[7] See infra Section II.A.
[8] See infra Section II.B.
[9] See infra Section II.C.
[10] See W. Va. Code § 23-1-1(b).
[11] § 23-4-2(c).
[12] § 23-4-2(d)(1).
[13] See § 23-4-2(d)(1).
[14] The phrase “however occurring,” which is used in this section, has been construed as meaning “an employ[ee] who is injured in the course of and as a result of his employment, and one who, under the common-law principles of master and servant, could have maintained an action against his employer.” Cox v. U.S. Coal & Coke Co., 92 S.E. 559, 561 (W. Va. 1917).
[15] See § 23-2-6. The immunity provisions in the WCA have been described interchangeably as both immunity and exclusivity provisions. State ex rel. Frazier v. Hrko, 510 S.E.2d 486, 493 n.11 (W. Va. 1998) (referring to the employer immunity provisions of Section 23-2-6 and also noting that “[t]his statute is also known as the ‘exclusivity’ provision, as it makes workers’ compensation benefits the exclusive remedy for personal injuries sustained by an employee injured in the course of and resulting from his or her covered employment.”); see also Wisman v. William J. Rhodes & Shamblin Stone, Inc., 447 S.E.2d 5, 7 (W. Va. 1994) (finding that “[t]he purpose of coemployee (and employer) immunity under the Workers’ Compensation Act is to replace the common-law tort claims and defenses between or among employers and employees with the no-fault, exclusive remedy of workers’ compensation.”) (quoting Deller v. Naymick, 342 S.E.2d 73, 80–81 (W. Va. 1985).
[16] See § 23-2-6.
[17] § 23-2-6a.
[18] Miller v. City Hosp., Inc., 475 S.E.2d 495 (W. Va. 1996).
[19] Id.
[20] Id. at 498.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id. at 501–502.
[26] 498 S.E.2d 702, 716 (W. Va. 1997).
[28] Id. at 713.
[29] Id. at Syl. Pt. 9.
[30] Id. at 716 n.26.
[31] 640 S.E.2d 540 (W. Va. 2006).
[32] Id. at 542.
[33] Id. at 541.
[34] Id.
[36] Id. (citing § 23-2-6a). As previously indicated, this “sweeping immunity” extends to employees under the provisions of W. Va. Code § 23-2-6a.
[37] Id.
[38] Id. The Supreme Court of Appeals of West Virginia’s decision in Messer v. Huntington Anesthesia Group, Inc., 620 S.E.2d 144 (W. Va. 2005), is illustrative of the third exception to employer immunity identified in Bias. In Messer, the plaintiff, who was a certified registered nurse anesthetist, sustained a herniated disc from a workplace back injury and had medical restrictions that imposed lifting restrictions and precluded her from working over eight hours a day. Id. at 147–48. The plaintiff alleged that her employer ignored her restrictions and claimed that her physical condition progressed and worsened to the point that she was no longer able to perform her job. Id. She then sued her employer under the West Virginia Human Rights Act for failing to provide a reasonable accommodation for her disability. Id. In analyzing this cause of action, the Supreme Court of Appeals found that the employee essentially alleged two separate types of injuries. Id. at 160–61. Accordingly, the Messer court held that the workers’ compensation exclusivity bar applied to injuries for which workers’ compensation benefits may be sought, including aggravations and physical and nonphysical conditions that flow directly and uniquely from the injury, but did not apply to injuries that are caused by the unlawful discriminatory acts of an employer which are not otherwise recoverable under the WCA. Id.
[39] See id.; see also Fugate v. Frontier W. Va., Inc., No. 2:17-cv-00559, 2017 WL 3065216, at *5 (S.D.W. Va. July 19, 2017).
[40] See Fugate, 2017 WL 3065216, at *5 (“To effect that purpose, the Act creates ‘sweeping immunity’ for employers for all tort actions by employees for injuries occurring ‘in the course of and resulting from employment.’”) (citing Bias, 640 S.E.2d at 544); Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 384 (N.D.W. Va. 2011) (citing Bias, 640 S.E.2d at 544–46 (W. Va. 2006); see also W. Va. Code § 23-4-1 (“The Workers’ Compensation Act creates “sweeping immunity” for employers from all tort negligence actions by employees for injuries, including emotional distress, that occur “in the course of and resulting from employment.”).
[41] It is clear that claims typically asserted by plaintiffs in employment discrimination cases for intentional infliction of emotional distress, assault, battery and negligent hiring, retention and supervision and assault constitute common law tort claims within the meaning of the immunity provisions of the WCA. Posey v. Davis, No. 11-1204, 2012 WL 5857309, at *3 (W. Va. Nov. 16, 2012) (mem.) (“Plaintiff’s Complaint alleges [] causes of action [for] … the common law torts of intentional infliction of emotional distress, assault, and battery.”); Sipple v. Starr, 520 S.E.2d 884, 891 (W. Va. 1999) (analyzing the tort of negligent hiring).
[42] 729 S.E.2d 845, 853–54 (W. Va. 2012).
[43] Id. at 848–50.
[44] Id. at 850.
[45] Id. at 854–60.
[46] No. 12-0132, 2013 WL 500202 (S.D.W. Va. Feb. 11, 2013).
[47] Id. at *1.
[48] Id. at *4.
[49] Id.
[50] No. 2:17-cv-00559, 2017 WL 3065216 (S.D.W. Va. July 19, 2017).
[51] In West Virginia, the tort of outrage is also known as intentional infliction of emotional distress. See Hines v. Hills Dep’t Stores, Inc., 454 S.E.2d 385, 389 (W. Va. 1994).
[52] Fugate, 2017 WL 3065216, at *5.
[53] Id.
[54] Id. (citing Bias v. Eastern Associated Coal Corp., 640 S.E.2d 540, 544 (W. Va. 2006); Miller v. City Hosp., Inc., 475 S.E.2d 495, 501–02 (W. Va. 1996)).
[55] Id. at *6.
[56] Id.
[57] Id. at *6.
[58] 823 F.Supp.2d 370 (N.D.W. Va. 2011).
[59] Id. at 384.
[60] Id.
[61] These cases are distinguishable from cases where the outrageous conduct is alleged in the manner of terminating an individual’s employment. Allman v. Chancellor Health Partners, Inc., No. 5:08CV155, 2009 WL 1468457, at *7–8 (N.D.W. Va. May 26, 2009) (holding that WCA immunity does not apply where the alleged injuries giving rise to the claim of intentional infliction of emotional distress result from alleged conduct surrounding the plaintiff’s termination of employment as such conduct would occur outside the course of her employment); see also Syl. Pt. 2, Dzinglski v. Weirton Steel Corp., 445 S.E.2d 219 (W. Va. 1994) (holding that conduct surrounding the termination of an individual’s employment may constitute outrageous conduct).
[62]The Supreme Court of Appeals of West Virginia has held that “[t]he ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine.” Syl. Pt. 1, in part, Hutchinson v. City of Huntington, 479 S.E.2d 649 (W. Va. 1996). Accordingly, “the need for early resolution in cases ripe for summary disposition is particularly acute when the defense is in the nature of an immunity.” Id. at 657.
[63] See Order Regarding Def.’s Mot. to Dismiss, Elswick v. Kanawha Valley Reg’l Transp. Auth., Civil Action No. 19-C-542 (Circuit Court of Kanawha County, Oct. 11, 2019) (dismissing claim for intentional infliction of emotional distress based upon immunity and exclusivity provision of WCA); Order Granting Def.’s Motions to Dismiss, Hamilton v. First Bankshares, Inc., et al., Civil Action No. 18-C-244 (Circuit Court of Cabell County, Mar. 19, 2019) (dismissing claim for intentional infliction of emotional distress based on the immunity provisions of the WCA); Order Granting Def.’s Mot. to Dismiss, Markley v. Larry Simmons, Inc., et al., No. 16-C-316 (Circuit Court of Wood County, West Virginia, Mar. 8, 2017) (dismissing plaintiff’s claim for negligent hiring and retention); Order Regarding Def.’s Mot. to Dismiss, Fitzer v. Hawkins et al., No. 14-C-1169 (Circuit Court of Wood County, West Virginia, Aug. 21, 2014) (dismissing plaintiff’s claim for tort of outrage); Op. Order Granting Def.’s Mot. to Dismiss Pl.’s First Am. Comp., Shumate v. Arch Coal Inc., et al., No. 13-C-648-B (Circuit Court of Raleigh County, West Virginia, Feb. 25, 2014) (dismissing plaintiff’s claims for negligent retention and intentional infliction of emotional distress); and Op. Order Granting Def.’s Motion for Partial Summary Judgment, Harper v. Redden, et al., No 05-C-2498 (Circuit Court of Kanawha County, West Virginia, Oct. 31, 2007) (dismissing plaintiff’s claims for negligent and intentional infliction of emotional distress). The Circuit Court orders referenced in this footnote are on file with the authors.
[64] See, e.g., Baylay v. Etihad Airways P.J.S.C., 881 F.3d 1032, 1036 (7th Cir. 2018), reh’g denied (Mar. 7, 2018), cert. denied, 139 S. Ct. 175 (2018) (affirming dismissal of negligent retention claim based on Illinois Workers’ Compensation Act’s exclusivity provisions where commercial pilot alleged he was attacked by a co-worker); Burton v. Real Prop. Inv. Services, Inc., No. CV–10–8081–PCT–LOA, 2010 WL 300002, at *5 (D. Ariz. July 27, 2010) (dismissing, with prejudice, claims for negligent hiring, negligent supervision, and negligent retention based on the exclusivity provisions in Arizona’s workers’ compensation system); Vanzant v. Wash. Metro Area Transit Auth., 557 F. Supp. 2d. 113, 118 (D.D.C. 2008) (District of Columbia’s Workers’ Compensation Act precluded claims of intentional and negligent infliction of emotional distress, negligent hiring and supervision, and assault where Plaintiff alleged that his supervisor delivered a “physical attack as punishment for his failure to follow his supervisor’s instructions”); Norman v. Southern Guar. Ins. Co., 191 F. Supp. 2d 1321, 1336 (M.D. Ala. 2002) (dismissing claims for negligent training, supervision and retention against an employer after finding that Alabama’s Workers’ Compensation Act preempts those claims); Rheineck v. Hutchinson Tech. Inc., 171 F. Supp. 2d 915 (D. Minn. 2000) (holding that plaintiff’s common law claims, including intentional and negligent infliction of emotional distress, were barred by the exclusive remedy provisions of the Wisconsin Workers’ Compensation Act); Demby v. Preston Trucking Co., Inc., 961 F.Supp. 873 (D. Md. 1997) (granting summary judgment and dismissing common law claims for negligent supervision and retention); Reed v. Avian Farms, Inc., 941 F. Supp. 10 (D. Me. 1996) (holding that an intentional infliction of emotional distress claim brought as part of a sexual harassment case was barred by the exclusivity and immunity provisions of the Maine Workers’ Compensation Act); see also Guillory v. Gukutu, 534 F. Supp. 2d. 267, 275 (D.R.I. 2008); Abbatiello v. Cty. of Kauai, Civ. No. 04-0562 SOM/BMK, 2007 WL 473680, at *1 (D. Haw. Feb. 7, 2007); Fuller v. Tenn. Valley Auth., No. 1:04-cv-113, 2005 WL 1130381, at *3 (E.D. Tenn. May 13, 2005); Drozdowski v. Smile Sensations, LLC, No. FSTCV126014629S, 2013 WL 3958244 (Conn. Super. Ct. July 9, 2013).
