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Mize v. Commonwealth Mining, LLC

Supreme Court of West Virginia

April 7, 2017

Jessica Marie Mize, et al., Plaintiff Below, Petitioner
v.
Commonwealth Mining, LLC, et al., Defendants Below, Respondents

         Raleigh County 15-C-872

          MEMORANDUM DECISION

         Petitioners 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.

         This 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.

         The 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.

         On 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.[1] 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 Court.[2]

         On 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.

         On 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)[3], 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.

         Petitioner 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.

         Our 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 (1975).

         Petitioner 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 written agreement.

         Pursuant 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).

         An 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.

         Likewise, the precedent cited by petitioner does not support her position.

         We have held,

[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 [1976], and W.Va. Code, 23-2-1a [1975], under which statutes 'employers' and ...

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