Jessica Marie Mize, individually and as the administratrix of
the estate of Justin Mize, ("Mr. Mize" or "the
decedent") and guardian and next friend of B. M., K. M.,
and A. M., minor children of Justin Mize, by counsel Timothy
C. Bailey, J. Ryan Stewart, Kyle G. Lusk, and William A.
Hayes, appeal the order of the Circuit Court of Raleigh
County that dismissed her deliberate intent claim for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the
West Virginia Rules of Civil Procedure. Respondents
Commonwealth Mining, LLC; Cox Enterprises, LLC; and LC
Management, LLC; by counsel Kevin L. Carr and Mitchell J.
Rhein, filed a response. Petitioner submitted a reply brief.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
decedent was a resident of Tennessee at the time of his
death. Respondent Commonwealth Mining, is a West Virginia
limited liability company with its principal place of
business in Beckley, West Virginia. Respondent is engaged in
the business of mining and selling coal through operations in
Kentucky and West Virginia.
March 6, 2012, respondent hired Mr. Mize to work at the
Tinsley Branch mine in Pineville, Kentucky. The circuit court
found that respondent received "brief" training in
West Virginia, but his entire work at issue here was spent in
the Commonwealth of Kentucky. On October 7, 2014, the decedent
was killed while working as a forklift operator on the day
shift at the Tinsley Branch mine. On October 5, 2015,
Petitioner Jessica Mize, individually and as guardian of
petitioner's three children, filed a deliberate intent
action against respondent pursuant to West Virginia Code
§ 23-4-(2)(d)(2) in Raleigh County Circuit
November 30, 2015, respondent filed a motion to dismiss
petitioner's deliberate intent action for lack of subject
matter jurisdiction under West Virginia Rule of Civil
Procedure 12(b)(1). Respondent argued that Mr. Mize was not
an "employee" subject to the West Virginia
Workers' Compensation Act ("WVWCA") because he
was hired in Kentucky, worked in Kentucky, and died in
Kentucky. Respondent asserted that the Kentucky Workers'
Compensation Act applied to the deliberate intent claim, and,
"because plaintiff pled her action under West Virginia
law, " the court could not grant the relief demanded.
Petitioner filed a response arguing that under West Virginia
Code § 23-2-1, the circuit court had subject matter
jurisdiction over the West Virginia deliberate intent claim.
January 21, 2016, the circuit court heard oral argument on
the motion. On March 25, 2016, the circuit court dismissed
petitioner's complaint holding that the WVWCA does not
apply to petitioner's deliberate intent action against
respondent. Citing McGilton v. U.S. Xpress Enterprises,
Inc., 214 W.Va. 600, 603, 591 S.E.2d 158, 161
(2003), the circuit court found that Mr. Mize was
"never regularly employed in West Virginia and his death
did not occur while he was temporarily working in
Kentucky." The circuit court held further that the
decedent "would be covered under the Kentucky
Workers' Compensation Act, inasmuch as defendant
Commonwealth Mining is insured in the Commonwealth of
Kentucky, " and that petitioner's rights lie
exclusively under the laws of the Commonwealth of Kentucky.
The circuit court also dismissed petitioner's wrongful
death claims stating that pursuant to lex loci
delicti, Kentucky law applies to petitioner's
wrongful death claim, and therefore petitioner failed to
state a claim upon which relief could be granted pursuant to
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.
Petitioner now appeals the dismissal of her deliberate intent
claim in the circuit court of Raleigh County.
asserts three assignments of error on appeal. Petitioner
complains that (1) the circuit court's decision is
contrary to the express language of West Virginia Code §
23-2-1c and West Virginia C.S.R. § 85-8-7.3 and 7.4.;
(2) the circuit court's decision is contrary to this
Court's precedent set forth in Easterling v. Am.
Optical Corp., 207 W.Va. 123, 133-34, 529 S.E.2d 588,
598-99 (2000), McGilton, and Gallapoo v.
Wal-Mart Stores, 197 W.Va. 172, 475 S.E.2d 172 (1996);
and (3) the circuit court's decision applying the
principles of lex loci delicti is contrary to this
Court's precedent which expressly requires application of
the principles of comity.
review of a circuit court's order granting a motion to
dismiss is de novo. Syl. Pt. 2, State ex. Rel. McGraw v.
Scott Runyan Pontiac Buick, 194 W.Va. 770, 461 S.E.2d
516 (1995). Moreover, "[w]henever it is determined that
a court has no jurisdiction to entertain the subject matter
of a civil action, the forum court must take no further
action in the case other than to dismiss it from the
docket." Syl. Pt. 1, Hinkle v. Bauer Lumber &
Home Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705
first argues that the circuit court's decision directly
contradicts the language contained in West Virginia Code
§ 23-2-1c, and West Virginia C.S.R. §85-8-7.3 and
7.4. Petitioner also argues that, in granting the motion to
dismiss, the circuit court mistakenly applied the holdings of
Easterling, Gallapoo, and
McGilton. Petitioner complains that at the time of
Mr. Mize's death, Respondent Commonwealth Mining was a
West Virginia employer with workers' compensation
coverage provided by BrickStreet Insurance and required to
provide this coverage for Mr. Mize pursuant to West Virginia
Code § 23-2-1c. Petitioner argues that the determination
of coverage is governed by West Virginia C.S.R. §
85-8-7.3, which provides that an employer "does not have
to provide West Virginia workers' compensation coverage
for employees who perform work for the employer in a state
other than the State of West Virginia on a non-temporary
basis;" and West Virginia C.S.R. § 85-8-7.4, allows
for employers and employees to mutually agree to be bound by
the worker's compensation laws of a particular state.
Petitioner argues further that under these provisions, Mr.
Mize was working for a West Virginia employer with West
Virginia workers' compensation coverage, and was eligible
for coverage under the West Virginia workers'
compensation scheme. Petitioner asserts that Mr. Mize's
employment was covered under Kentucky and West Virginia law,
and that under Rule 7.4, the only basis under which
respondent could claim that Mr. Mize's claim is only
covered under Kentucky law would be under the provisions of a
to West Virginia Code § 23-2-1c(c),
If [an] employee is a resident of a state other than this
state and is subject to the terms and provisions of
the workers' compensation law or similar laws of a state
other than this state, the employee and his or her
dependents are not entitled to the benefits payable under
this chapter on account of injury, disease or death in
the course of and as a result of employment temporarily
within this state, and the rights of the employee and
his or her dependents under the laws of the other state shall
be the exclusive remedy against the employer on account of
any injury, disease or death.
W.Va. Code § 23-2-1c(c) (emphasis added).
application of this code section to this case reveals that
the circuit court did not err in finding that the West
Virginia Workers' Compensation Act does not apply to
petitioner's claim. The circuit court found that Mr. Mize
was never regularly employed in West Virginia, and that at
the time of his death Mr. Mize was employed, and worked in
Kentucky. As a result, the circuit court held that Mr. Mize
was covered under the Kentucky Workers' Compensation Act,
and that the West Virginia Workers' Compensation Act did
not apply. We agree with the circuit court. Commonwealth
Mining carries workers' compensation insurance for its
employees in the Commonwealth of Kentucky. It is clear from
the record that Mr. Mize was hired by Commonwealth Mining as
a forklift operator in its Tinsley Branch mine in Pineville,
Kentucky. Although the record reflects that Mr. Mize received
some training in West Virginia, Mr. Mize's employment was
performed in the State of Kentucky.
the precedent cited by petitioner does not support her
[a]n employee injured in another state in the course of and
resulting from his employment is entitled to seek
workers' compensation benefits in West Virginia, where
the employee's employment in the other state is temporary
or transitory in nature within the meaning of W.Va. Code,
23-2-1 , and W.Va. Code, 23-2-1a , under which
statutes 'employers' and ...