W.Va. Supreme Court Decisions Hindering Job Retention, Creation

The West Virginia Chamber of Commerce has identified several recent decisions of the West Virginia Supreme Court of Appeals that illustrate how the court is hindering job retention and spoiling job creation.  The listing, compiled using legal analysis and research done as part of the Chamber’s CourtWatch program, is part of the Restore Balance W.Va. education initiative.

 “These decisions of the West Virginia Supreme Court, among others, are having a significant and detrimental impact on West Virginia ’s ability to retain and compete for new jobs,” said Steve Roberts, President of the West Virginia Chamber of Commerce.  He noted that other legal analysis reports issued over the past couple years have indicated this as well.

  “Since 2000, more than 45,000 jobs have been eliminated in West Virginia , and our state’s ‘out of balance’ judicial situation is making it more difficult to retain jobs, much less create more jobs,” he added.  “ West Virginia ’s anti-jobs judicial climate, driven by the Supreme Court, is a primary reason for the state’s continued economic woes amid increasing international competition,” Roberts continued. “These ten cases clearly illustrate the anti-job and anti-growth bias of the existing majority of our state Supreme Court, which is placing our state further out of step for new jobs and investment.”

 The cases are:

1) Lipscomb v. Tucker County Commission, 475 SE2d 84 and 197 WVA 84 (1999)

The case involved interpretation of an employment manual and policy.  The court ruled that any ambiguity in an employer’s policies goes to the benefit of the employee.  This poses significant new challenges on employers and exposes them to potentially unlimited opportunities for lawsuits.

 2) Mitchell v. Broadnax, 537 SE2d 882 and 208 WVa 36 (1999)

This case involved forcing an insurance company to provide coverage even though the policyholder had not specifically bought the coverage.  The court ruled that unless something is specifically excluded, then a carrier may be liable to provide coverage.  The decision greatly broadened the overall liability that an insurance carrier could have in West Virginia .

 3) Gerver v. Benavides, 530 SE2d 701 and 207 WVa 228 (WV 1999)

In this case, the Supreme Court refused to allow for a retrial of a case after new evidence was presented regarding the plaintiff’s fraudulent misrepresentation in a medical malpractice case, which resulted in a multi-million-dollar judgment.  In doing this, the court weakens efforts to forestall the filing of fraudulent claims and, ultimately, encourages abuse of our judicial system.

 4) Bower v. Westinghouse Electric, 522 SE2d 433 and 206 WVa 133 (1999)

In this landmark case, the Supreme Court created an unprecedented “judge-made” law by establishing a “no proof, no problem” standard for claimants who allege they may have been exposed to hazardous substances and might possibly have health effects in the future.  The business community points to this case as one of the most far-reaching and egregious examples of an activist court.  The case has become a red flag for businesses wanting to locate or expand in West Virginia .

 5) Plummer v. B.F. Goodrich Company, 551 SE2d 46 and 209 WVa 710 (2002)

This case involved a Workers’ Comp claim that had been submitted after the expiration of a filing period of an established regulatory deadline.  In spite of this, the Supreme Court ruled to allow the appeal and ultimately issued the award.  The main issue with this case is that, even after a legislative “fix” had been enacted to clarify this filing deadline, the Supreme Court still ruled in a 3-2 opinion to invalidate the statutory fix and issue the award.  The court, thereby, issued a “veto” and usurped the expressed will of the Legislature.

 6) Farmers Mutual Insurance v. Tucker, 576 SE2d 261 and 213 WVa 16 (2002)

This case involved forcing an insurance company to provide coverage for a claim where no policy provisions were in effect nor any premiums for these provisions had been paid.  In making this decision, the court increased greatly insurance liability costs and, thereby, added to higher insurance premiums for West Virginians .

 7) Rohrbaugh v. Wal-Mart Stores Inc., 572 SE2d 881 and 212 WVa 358 (2002)

This case allowed for an employee to receive monetary damages from an employer without having to prove actual damages.  This is another example of “judge-made” law and exposes employers to potential lawsuits and monetary damages when embroiled in disputes with employees.

8) Thomas W. Taylor v. Nationwide Mutual Insurance, 589 SE2d 55 (2003)

This case involves an insurance claims adjustor who was held to be personally liable for actions of the company. This decision now exposes a worker to being sued and personally liable just for doing his or her job.

 9) Gary Dailey v. Board of Review, W.Va. Bureau of Employment Programs, 589 SE2d 797 (2003)

The court found that an employer cannot discharge an employee for falsely claiming on an employment application to have a valid driver’s license, even when the job was to perform driving duties.  This decision undermines an employer’s ability to provide for safety, legality and employment-at-will in the workplace.  

10) Benson v. AJR, #31542 (2004)

This case involved the discharge of a supervisor who failed a drug test during working hours, and his cocaine amount was three times the level to impair an average person.  The court ruled that the employee had not been dishonest.  This decision greatly undermines an employer’s ability to maintain a safe and drug-free workplace, much less enforce legitimate and proper company policies.

 “ West Virginians need to understand that just three justices, voting together, on our state’s highest court have a major impact on their jobs and livelihood.  Supreme Court decisions such as these affect business decisions and, thereby, have an impact on whether or not people are going to stay employed here,” Roberts added. “We can’t make it any simpler than that – a person’s job could be riding on the actions of the West Virginia Supreme Court.”

April 2004