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Feltner v. Consol of Kentucky, Inc.

United States District Court, S.D. West Virginia, Charleston Division

May 15, 2018

JESS W. FELTNER, JR., Plaintiff,
CONSOL OF KENTUCKY, INC., et al., Defendants.



         Pending before the Court is Plaintiff Jess W. Feltner's (“Feltner”) Motion to Remand, (ECF No. 7), and Defendant Consol Energy, Inc.'s (“CEI”) motion to dismiss. (ECF No. 5.) For the reasons discussed more fully below, the Court DENIES Feltner's motion to remand. (ECF No. 7.) The Court further GRANTS CEI's motion to dismiss and DISMISSES Count II of the Complaint. (ECF No. 5.)

         I. BACKGROUND

         Some time prior to August 4, 2015, Feltner was hired by Defendant CONSOL of Kentucky, Inc. (“COK”), CEI's subsidiary, as an equipment operator to haul rock at the Twin Branch surface mine in Mingo County, West Virginia. (ECF No. 7-3 at ¶ 6; see also ECF No. 6 at 7.) Feltner's position required him to operate a CAT 789 mining truck that Feltner alleges was owned by CEI. (See Id. at ¶¶ 14, 20.) Feltner alleges that the mining truck's access ladder was defective and not properly maintained. (See Id. at ¶¶ 14.)

         On August, 4, 2015, Feltner was injured while climbing the access ladder on the mining truck. (See ECF No. 8 at 1.) The second rung of the access ladder failed, causing Feltner to fall. (See id.) During the fall, Feltner attempted to grab the access ladder with both hands, but was only successful with his right hand. (See id.) As a result, Feltner states that he felt a pull in his right arm and severe pain shoot down his right hip and leg. (See id.) Feltner alleges that he suffered severe and permanent injuries. (See id.)

         Plaintiff filed the present action on July 31, 2017 in the Circuit Court of Mingo County, West Virginia, against COK and CEI. (See ECF No. 1-1.) Plaintiff, however, did not immediately serve his Complaint because, statutorily, he had to wait for a final award on his workers' compensation claim. (See ECF No. 8 at 2.) On October 18, 2017, Plaintiff received a final award from the State of West Virginia Workers' Compensation Office of Judges. (See ECF No. 7-2.) COK had thirty days to appeal the order. (See id.) On November 22, 2017, having received no notice of an appeal by COK, Plaintiff filed an Amended Complaint which alleged the following two counts: deliberate intent under West Virginia Code § 23-4-2(d)(2)(B) against COK (Count I) and negligence against CEI (Count II). (See ECF No. 7-3.)

         Defendants timely removed the instant action to this Court on December 27, 2017. (ECF No. 1.) On January 2, 2018, CEI filed the present motion to dismiss Count II of the Complaint. (ECF No. 5.) Feltner timely responded to CEI's motion, (ECF No. 9), and CEI timely replied. (ECF No. 10.) On January 16, 2018, Feltner filed the present motion to remand, (ECF No. 7) to which CEI timely responded, (ECF No. 12), and Feltner timely replied. (ECF No. 13.) As such, both motions are fully briefed and ripe for adjudication.

         As each motion is governed by different standards, the Court will address each motion separately. Because the Court must first determine whether it has jurisdiction over the instant action, the Court will address Feltner's motion to remand before turning to CEI's motion to dismiss.


         In his motion to remand, Feltner argues that the 2015 Amendments to the West Virginia deliberate intent statute bar the removal of deliberate intention actions. (See ECF No. 8 at 8-12.) Specifically, Feltner argues that the 2015 Amendments' requirement that a plaintiff asserting a deliberate intent claim demonstrate that “a total whole person impairment level of at least thirteen percent as a final award in the employees workers' compensation claim” deviates from the common law, thus making deliberate intent claims an integral part of the workers' compensation scheme.[1] (See Id. at 10.)

         “A defendant may remove any action from a state court to a federal court if the case could have originally been brought in federal court.” Yarnevic v. Brink's, Inc., 102 F.3d 753, 754 (4th Cir.1996) (citing 28 U.S.C. § 1441). “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).

         The party asserting federal jurisdiction bears the burden of proving federal jurisdiction by a preponderance of the evidence. Landmark Corp. v. Apogee Coal Co., 945 F.Supp. 932, 935 (S.D. W.Va. 1996). Because removal of civil cases from state to federal court infringes on state sovereignty, federal courts strictly construe the removal statute and resolve all doubts in favor of remanding cases to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941); see also Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction.” (citation omitted)).

         Under 28 U.S.C. § 1445(c), “[a] civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.” In Arthur v. E.I. DuPont de Nemours &Co., the Fourth Circuit addressed whether § 1445(c) bars removal of West Virginia deliberate intention claims. See 58 F.2d 121 (4th Cir. 1995). In resolving this issue, the Fourth Circuit first defined “workmen's compensation laws” as “a statutorily created insurance system that allows employees to receive fixed benefits, without regard to fault, for work-related injuries.” Id. at 125.

         The Court next examined the history of deliberate intention claims in West Virginia to determine whether deliberate intent arise under workers' compensation law within the meaning of § 1445(c). See Id. at 125. In reviewing this history, the court observed that these claims are rooted in the West Virginia's Supreme Court of Appeal's decision in Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907 (W.Va. 1978). See Arthur, 58 F.3d at 123. The Court further noted that, following the Mandolidis decision, the West Virginia legislature amended the Workers' Compensation Act to provide a statutory definition of “deliberate intention.” Id. at 126. The Fourth Circuit found that “the legislature made clear that it was not removing Mandolidis suits from the ‘common law tort system'” but instead simply intended “to create a ...

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