United States District Court, S.D. West Virginia, Charleston Division
JOHN R. LUCAS, et al., Plaintiffs,
ICG BECKLEY, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
before the Court is Defendants ICG Beckley, LLC (“ICG
Beckley”) and Arch Coal, Inc.'s (“Arch
Coal”) unopposed Motion for Summary
Judgment. (ECF No. 41.) For the reasons below, the
Court GRANTS the motion.
case arises out of an injury Plaintiff John Lucas
(“Lucas”) suffered on May 5, 2013, while rock
dusting an approximately half-mile portion of slope inside
the Beckley Pocahontas Mine in Raleigh County, West Virginia.
(ECF No. 1-1 at 7-8 ¶¶ 8, 10, 15-16.) ICG Beckley,
a subsidiary of Arch Coal, operated that mine. (Id.
at 6 ¶ 2.) Lucas was working with two co-workers to rock
dust the slope “by means of a rock duster . . .
attached to the end of a lowboy, which lowboy was attached to
a hoist car.” (Id. at 8 ¶ 11.) According
to the Complaint, the lowboy held eight pallets loaded with
forty- to eighty-pound bags of rock dust. (Id.
¶ 12.) The three workers sat inside the hoist car while
the rock dust was applied, and when the rock duster emptied,
the workers exited the hoist car to refill the rock duster
tank with the bags of rock dust located on the pallets.
(Id. ¶¶ 13-14.) To refill the rock duster,
Lucas “remove[d] bags of rock dust and carr[ied] them
at ¶ 18-percent slope” to the two other workers
who dumped the bags' contents into the rock duster.
(Id. ¶ 14.) They repeated this process until
the rock duster was refilled. (Id.)
time during the day, the rock duster needed refilled. The
co-worker operating the hoist car stopped it so the employees
could exit the car. (Id. ¶ 15.) Lucas went down
to the lowboy “to retrieve 50-pound bags of rock dust
at which time the brake failed, causing the hoist car and
lowboy to free fall approximately 20-25 feet before coming to
a stop.” (Id.) The parties dispute whether the
car(s) actually moved at this time. (See ECF No. 42
at 4 (citations omitted).) Four pallets, holding a total of
approximately seventy forty- to eighty-pound bags of rock
dust, allegedly struck Lucas, causing him to fall against the
rock duster and his leg to be pinned against it. (ECF No. 1-1
at 8-9 ¶ 16.) Lucas' co-workers freed him, but as a
result of the hoist car brake's failure, Lucas allegedly
suffered leg and back injuries. (Id. at 9
¶¶ 17-18; 12 ¶ 38(e).) Defendants, however,
assert that Lucas only suffered injury to one of his legs
from this incident.(See ECF No. 42 at 4-5.)
Beckley employees interviewed Lucas for an internal accident
report, and according to the Complaint Lucas drove himself to
Raleigh General Hospital after one of those other employees
allegedly cancelled the summoned ambulance. (ECF No. 1-1 at 9
¶¶ 17-22. But see ECF No. 41-1 at 31
(Griswold Dep.) (noting that an ambulance was never called in
the first place).) Upon receiving a medical examination by an
emergency room physician, Lucas was discharged from the
hospital and returned to work the next day on light-duty
before resuming regular duty the day after. (ECF No. 1-1 at 9
¶¶ 29-31.) Within approximately two weeks of his
return, ICG Beckley employee Keith Goins allegedly threatened
Lucas with termination if he and his co-workers did not sign
a document presented to them indicating that they were at
fault for the incident. (Id. at 11 ¶ 32.)
Finally, Lucas alleges that ICG Beckley's employees did
not complete an accident or occupational injury report nor
did the company submit either of the same to the proper
regulatory authorities regarding the incident and Lucas'
injuries. (Id. ¶ 33.) Lucas continued to work
for ICG Beckley for approximately one-and-a-half years after
the incident. (ECF No. 42 at 7 (citing ECF No. 41-1 at 36
originally filed this suit in the Circuit Court of Kanawha
County, West Virginia, on May 4, 2015, before filing an
Amended Complaint (“Complaint”) on August 27,
2015. (See ECF No. 1-1 at 6, 17.) The Complaint
asserts four causes of action: (1) deliberate intent against
both Defendants in violation of West Virginia Code §
23-4-2(d)(2)(ii); (2) common law negligence against Arch
Coal; (3) “coercion” against the two Defendants;
and (4) Plaintiff Barbara Lucas' loss of consortium
claim. (See Id. at 13-16.) Lucas seeks relief in the
forms compensatory and punitive damages under West
Virginia law in addition to attorneys' fees and costs.
(Id. at 16.)
removed the case to this Court on September 29, 2015,
asserting diversity jurisdiction as the basis of removal
pursuant to 28 U.S.C. § 1332. (ECF No. 1 at 2-4.) The
pending summary judgment motion was filed on October 17,
2017. (ECF No. 41.) Plaintiffs filed no response. As such,
the motion is ripe for adjudication.
of the Federal Rules of Civil Procedure governs motions for
summary judgment. This rule provides, in relevant part, that
summary judgment should be granted if “there is no
genuine issue as to any material fact.” Summary
judgment is inappropriate, however, if there exist factual
issues that reasonably may be resolved in favor of either
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). “Facts are ‘material' when
they might affect the outcome of the case, and a
‘genuine issue' exists when the evidence would
allow a reasonable jury to return a verdict for the nonmoving
party.” News & Observer Publ. Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010). When evaluating such factual issues, the Court
must view the evidence “in the light most favorable to
the opposing party.” Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970).
moving party may meet its burden of showing that no genuine
issue of fact exists by use of “depositions, answers to
interrogatories, answers to requests for admission, and
various documents submitted under request for
production.” Barwick v. Celotex Corp., 736
F.2d 946, 958 (4th Cir. 1984). Once the moving party has met
its burden, the burden shifts to the nonmoving party to
“make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). If a party fails to make a sufficient
showing on one element of that party's case, the failure
of proof “necessarily renders all other facts
immaterial.” Id. at 323. Courts do not
automatically grant motions for summary judgment when they
are unopposed. See Fed. R. Civ. P. 56(e). The court
“must review the motion, even if unopposed, and
determine from what it has before it whether the moving party
is entitled to summary judgment as a matter of law.”
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403,
409 n.8 (4th Cir. 2010) (quoting Custer v. Pan Am. Life
Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993)).
Count I: Deliberate Intention
first alleges that Defendants violated West Virginia Code
§ 23-4-2(d)(2)(ii) by deliberately intending for Lucas
to be injured. Generally, employees who are injured at their
place of work must seek compensation through the West
Virginia Workers' Compensation Act. See W.Va.
Code § 23-2-6 (2003); State ex rel. Frazier v.
Hrko, 510 S.E.2d 486, 493 n.11 ( W.Va. 1998). This
legislation serves the dual purposes of allowing an employee
to recover even when he is at fault while immunizing
employers from civil litigation. “There is an exception
to this immunity, however, when the employee's injury is
the result of the employer's ‘deliberate
intention' to cause that injury.” Helmick v.
Potomac Edison Co., 406 S.E.2d 700, 705 ( W.Va. 1991).
The standard for “deliberate intention” as
codified by West Virginia law at the time of Lucas'
alleged injury provides, in pertinent part, the following:
(2) The immunity from suit provided under this section and
under section six-a, article two of this chapter may be lost
only if the employer or person against whom liability is
asserted acted with “deliberate intention”. This
requirement may be satisfied only if:
. . .
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury,
or through special interrogatories to the jury in a jury
trial, that all of the following facts are proven:
(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer had a subjective realization and an
appreciation 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;
(C) 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, which statute, rule, regulation or
standard was specifically applicable to the particular work
and working condition involved, as contrasted with a statute,
rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth
in subparagraphs (A) through (C), inclusive, of this
paragraph, the employer nevertheless thereafter exposed an
employee to the specific unsafe working condition
(E) That the employee exposed suffered serious injury or
death as a direct and proximate result of the specific unsafe
W.Va. Code § 23-4-2(D)(2)(ii) (2003).
on this claim hinges on the existence of evidence proving all
five specific requirements enumerated above in subsections
(A) through (E). See Keesee v. Gen. Refuse Serv.,
Inc., 604 S.E.2d 449, 459 ( W.Va. 2004) (citing Syl.
pt. 2, Mayles v. Shoney's, Inc., 405 S.E.2d 15 (
W.Va. 1990)). These elements will not be met where there
is no evidence that (1) the machine violated any safety
standard, (2) the defective condition was obvious, or (3) a
past injury arose from it. See Kane v. Corning Glass
Works, 331 S.E.2d 807, 809 ( W.Va. 1984); see also
Smith v. ACF Indus., Inc., 687 F.2d 40, 43 (4th Cir.
1982); Nedley v. Consolidation Coal Co., 578 F.Supp.
1528, 1532-33 (N.D. W.Va. 1984). Importantly, the statute
“does not abrogate immunity for employers who engage in
objectively hazardous enterprises such as coal mining or
chemical production.” Handley v. Union Carbide
Corp., 620 F.Supp. 428, 436 (S.D. W.Va. 1985),
aff'd, 804 F.2d 265 (4th Cir. 1986).
(A) “requires proof by the employee of a specific
unsafe working condition which presented a high degree of
risk and a strong probability of serious injury or
death.” McComas v. ACF Indus., 750 S.E.2d 235,
240 ( W.Va. 2013). The Complaint continuously references
“specific unsafe working conditions” in Count I
as supporting a claim of deliberate intention. (See
ECF No. 1-1 at 13-14 ¶¶ 39-41.) The Complaint is no
more specific and does not pinpoint a single condition as
required by the statute. See W.Va. Code §
23-4-2(D)(2)(ii)(A). Parsing through the facts alleged in the
Complaint, Lucas identifies the failure of the hoist
car's brake as the cause of the injury. (See ECF
No. 1-1 ...