Deliberate Intent and Workplace Safety

For West Virginia employers, workplace accidents present more than just a workers' compensation issue. An injured employee can bring a civil action directly against a company, or the insured. When that happens, a team of skilled Bowles Rice trial lawyers is ready to help.

The Bowles Rice lawyers working specifically in the area of Deliberate Intent and Workplace Safety have vast experience defending insured and self-insured employers against these claims. We have successfully defended a wide range of employers in heavily regulated industries, including coal, timber, oil and gas, and industrial manufacturing, as well as contractors who provide essential services to those industries at the mines, gas wells, manufacturing and processing plants, and other worksites. Further, our legal team continually monitors the employer liability climate in West Virginia and we advise our clients on how best to navigate and adapt to that legal landscape.

Our Deliberate Intent and Workplace Safety Team has years of experience working with a client’s management team to investigate work procedures, alleged violations of specific statutes or regulations, or problems with equipment that form the basis of the employee’s civil claim against the employer.  We have also helped clients participate in an OSHA investigation, as well as address  possible negotiation of OSHA citations.  With this vast experience, we can lead a client's company, or the insured, through all the minute details and procedural hurdles that apply to employee civil claims for work-related injuries, to secure the best possible results.  

We have served as employer’s counsel in numerous deliberate intent claims alongside manufacturers of various types of equipment and machinery involved in work-related injuries.   We often coordinate our defenses to protect our clients.   These cases have involved all types of mining equipment and machinery, assembly lines, manufacturing processes and all types of construction equipment, from earth moving equipment to step ladders.   We have successfully defended employers in cases involving tools, fall protection and personal protective equipment used at a variety of work sites.  

Our Deliberate Intent and Workplace Safety Team has appeared in courtrooms across West Virginia and obtained multiple summary judgments, which have been affirmed.  We have tried cases in both state and federal court, many to defense verdicts.   We have successfully argued cases before the Supreme Court of Appeals of West Virginia and the Fourth Circuit Court of Appeals at Richmond, Virginia.  

In addition, our Team has dealt with all manner of issues that arise in the action against the employer, from subrogation to indemnification, where the claim is directed against more than one party.   We also have vigorously defended our clients’ interests by obtaining court rulings to enforce indemnity agreements between the employers and third-parties whose acts, omissions or equipment contribute to cause, or actually cause injury to employees of our clients.  

Our employers' liability practice group stays on top of new legal issues by actively pooling information and reviewing each new case decided by the West Virginia Supreme Court.  We maintain a brief bank and a unified internal memorandum to analyze the best strategy for each case.   We also maintain close ties with experts who evaluate safety and compliance with the rules and regulations promulgated by the Mine Safety and Health Administration (MSHA), the Occupational Safety and Health Administration (OSHA) and the state agencies that regulate employee health and safety.  

We participate in various groups in the West Virginia Defense Trial Counsel, and have the expertise to delve into the details to present and coordinate the best possible defense to any claim.  Our skilled staff assists with the regulatory aspects of any case, and our medical staff analyzes personal injuries and the workers’ compensation claim.   Our firm also defends employers in workers’ compensation claims, through their insurers.

Ronda Harvey, a Bowles Rice partner and leader of the Deliberate Intent Practice Group, was chosen to contribute a chapter entitled “Deliberate Intent, a Unique Cause of Action in West Virginia for Employee On-The-Job Injuries: Is it Really Negligent Intent?” in the book, The Rule of Law by Russell Sobel.

Our firm holds an AV rating from Martindale-Hubbell.  Members of the litigation group are listed in the Best Lawyers in America, Chambers USA and Super Lawyers.  Our firm has always been engaged in the vigorous defense of employers from employees’ civil suits since the 1980s, when Mandolidis v.  Elkins Industries created the employee’s commonlaw claim against his employer for a work-related injury.  

Since the codification of that “common law” claim into the current statutory cause of action, our firm has followed every development and amendment to the statute.   We have lobbied on behalf of our manufacturing and mining clients to encourage the West Virginia Legislature to modify and amend the statutes to limit the claims that may be brought by employees against their employers. 

Achieving Success for You
Our Deliberate Intent and Workplace Safety Team vigorously defends our clients with attention to detail that is second to none.   With our clients’ input, and the assistance of their carriers, we establish a team of lawyers and staff directed by a seasoned litigator who is familiar with the industry and its regulatory agencies.   Our firm’s technology permits us to control even the largest document intensive case and communicate effectively with our clients and their carriers, through the use of case plans and quarterly reports.  

The large number of cases we have tried and summary judgments we have won give us the perspective to help clients properly evaluate their case and to assist the client in making the appropriate decisions with regard to settlement, mediation and trial.

The Bowles Rice Deliberate Intent Team has developed a half-day seminar, focused on employees’ deliberate intent and liability claims against their employers. It can be presented upon request and is intended for persons in management, as well as safety officers, risk avoidance specialists and others who are charged with preventing and investigating workplace injuries. It is appropriate to those new to the field as well as those with significant experience.

Topics covered during the presentation include:

  • How and why an injured employee can sue the employer;
  • How to prevent claims: best practices;
  • How to conduct a thorough and documented accident investigation; and
  • How to be the right witness for the company.

Articles & Alerts

  • Jodie Estep v. Agsten Construction Co., Circuit Court of Kanawha County, West Virginia, Civil Action No. 14-C-1000, April 18, 2016 (denied plaintiff’s motion to vacate prior order and thus refused a second time to allow plaintiff to amend complaint to add spoliation claim)

  • Jodie Estep v. Agsten Construction Co., Circuit Court of Kanawha County, West Virginia, Civil Action No. 14-C-1000, July 27, 2015 (granted summary judgment on deliberate intent claim and denied motion to amend complaint to add spoliation claim)

  • Cunningham v. Felman Production, LLC. (No. 13-1276) (in the Supreme Court of Appeals of West Virginia, affirmed order of Circuit Court of Mason County, Oct. 17, 2014);
  • Richmond v. Felman Production, LLC, Civil Action No. 12-C-40, in the Circuit Court of Mason County, West Virginia;
    • Won complete defense verdict in deliberate intent trial in Mason County.
  • In two recent deliberate intent matters, achieved early resolution for nuisance value that was much less than cost-of-defense amount after questioning of plaintiffs during plaintiff’s depositions established that plaintiffs could not prove all five required deliberate intent elements.
  • Cunningham v. Felman Production, LLC. Civil Action No. 11-C-146,in the Circuit Court of Mason County, West Virginia (summary motion granted Oct. 31, 2013);
  • Finley v. Dixon Electrical Systems & Contracting, Civil Action No. 13-C-210, in the Circuit Court of Cabell County, West Virginia (motion to dismiss granted Oct. 30, 2013);
  • Piasecki v. Wal-Mart Stores East, LP, Civil Action No. 2:08-cv-01302, in the United States District Court for the Southern District of West Virginia, Charleston (motion to dismiss granted Feb. 23, 2009);
  • Lemasters v. Century Aluminum of West Virginia, Inc., et al., Civil Action No. 06-C-116, in the Circuit Court of Jackson County, West Virginia (achieved summary judgment on Dec. 8, 2008);
    • Achieved summary judgment for Century Aluminum because Plaintiff was unable to establish that Century Aluminum had a subjective realization of Plaintiff's alleged specific unsafe working condition, one of the required elements of a deliberate intention cause of action.
  • Falls v. Union Drilling Inc., No. 33907 (W. Va. Dec. 10, 2008);
  • Hoffman v. Monsanto Company , 2007 U. S. Dist. LEXIS 77975 (2007);
  • Throneburg v. Perdue, 2006 U. S. Dist. LEXIS 82333 (2006) affirmed at 2007 U. S. App. LEXIS 22836 (2007);
  • State ex. rel. City of Martinsburg v. Sanders, 219 W. Va. 228, 632 S. E. 2d 914 (2006);
  • No. 33907 (W. Va. Dec. 10, 2008); , 2007 U. S. Dist. LEXIS 77975 (2007); , 2006 U. S. Dist. LEXIS 82333 (2006) affirmed at 2007 U. S. App. LEXIS 22836 (2007); , 219 W. Va. 228, 632 S. E. 2d 914 (2006);
    • Supreme Court of Appeals of West Virginia held that firefighters' concerns about future health problem as a result of exposure to diesel fumes in the workplace fell within ambit of workers' compensation statute, such that negligence action was barred.
  • Stout v. Ravenswood Aluminum Corporation, 207 W. Va. 427, 533 S. E. 2d 359 (2000) (remanded and tried to defense verdict.);
  • Kerns v. Slider Augering & Welding, Inc., 505 S. E. 2d 611 (W. Va. 1997);
    • Employee sued employer and corporation that hired employer as independent contractor, claiming that employer intentionally exposed employee to unsafe working condition.   Summary judgment in favor of employer and corporation.
  • Persinger v. Peabody Coal Co., 976 F. Supp. 1038 (S. D. W. Va. 1997);
  • Persinger v. Peabody Coal Co., 196 W. Va. 707, 474 S. E. 2d 887, (1996);
  • Jordan v. Ravenswood Aluminum Corp., 193 W. Va. 192, 455 S. E. 2d 561 (1995);
  • Smith v. Monsanto Co. , 822 F. Supp. 327 (S. D. W. Va. 1992);
    • Setting forth standards for dismissal of deliberate intent claims and partially granting defendant’s motion for summary judgment.
  • Bell v. Volkswagen of America, Inc., 836 F. 2d 545 (4th Cir. 1989) (Unpublished);
  • Boggess v. Monsanto Co., 829 F. 2d 34 (4th Cir. 1987) (Unpublished)
    • Plaintiffs appealed from jury verdict in favor of employer on deliberate intent claims.   Affirmed.
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