Master Mechanical Insulation v. Richard Simmons, 753 S.E.2d 79

Simmons was injured on April 9, 2004, in Portsmouth, Ohio, while assisting at an asbestos abatement site operated by Master Mechanical Insulation, Inc.
Simmons, a member of the Asbestos Worker’s Union Local 207, had last worked at the site on April 6, 2004, prior to the injury.
On April 8–9, 2004, Simmons rode with a Master Mechanical supervisor to the Portsmouth site to assist with continuing work after a long week.
At the site, Simmons helped unload materials and then helped relocate a decontamination unit on a high balcony with missing safety rails, planning to push it over the edge.
Simmons fell from the balcony and sustained injuries; his workers’ compensation claim was initially denied but later deemed compensable by this Court in 2008.
Following the compensability ruling, Simmons amended his negligence action to pursue a deliberate intent claim against Master Mechanical, which prompted the circuit court to certify three questions to the West Virginia Supreme Court of Appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the 2005 deliberate intent amendment applicable to Simmons’ claim?	Simmons argues the 2005 amendments apply only when both injury and filing occur after July 1, 2005.	Master Mechanical argues the amendments apply to injuries after July 1, 2005 and to actions filed after that date, regardless of injury date.	Yes; amendments apply to injuries after July 1, 2005 and actions filed after that date.
May an employer introduce evidence about the employee’s conduct to prove proximate causation in a deliberate intent action?	Simmons contends conduct evidence is barred under Roberts v. Consolidation Coal Co.	Master Mechanical argues conduct evidence relevant to five statutory elements may be admitted.	No; the employer may introduce conduct evidence relevant to the five statutory elements.
Is Master Mechanical barred from arguing Simmons acted at the site of his own volition given compensability rulings?	Simmons argues compensability precludes evidentiary challenges about presence at the site.	Master Mechanical asserts compensability is distinct from the deliberate intent inquiry and evidence may be admitted.	No; compensability does not preclude evidence about Simmons’ presence or voluntary actions in relation to the deliberate intent claim.

Roberts v. Consolidation Coal Co., 208 W.Va. 218 (2000) (holding employer may not plead contributory negligence in deliberate intent actions; limits defenses)
Deskins v. S.W. Jack Drilling Co., 215 W.Va. 525 (2004) (employee actions may be relevant to existence of unsafe condition and employer knowledge)
Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633 (1991) (employee actions may create unsafe conditions; employer knowledge analyzed)
Helmick v. Potomac Edison Co., 185 W.Va. 269 (1991) (five-element standard for deliberate intent; burden of proof on employee)
Marcus v. Holley, 217 W.Va. 508 (2005) (prima facie showing required on each factor to survive summary judgment)
Mumaw v. U.S. Silica Co., 204 W.Va. 6 (1998) (recognition of five statutory elements for deliberate intent action)
State v. Miller, 194 W.Va. 3 (1995) (collateral estoppel framework in state courts)
Dailey v. Bechtel Corp., 157 W.Va. 1023 (1974) (collateral estoppel for identical issues; privity and final adjudication required)
Kasserman & Bowman v. Cline, 223 W.Va. 414 (2009) (statutory interpretation; limits legislative read into rule)