*1 Appeals Supreme Court of Why should this? Be- like Virginia take ease
of West public able must must.
cause we dedication impartiality and Court’s
take the protection of the and the the rule of law certainty, when rights even
People’s as a for the popular more
might be easier ought ignore the error. We simply
Court judges, we politicians. As judges,
to be safeguards all of path which
must choose vitality our into protections and breathes an issue uphold the law on
rights. When we us, despite public senti-
such as before result, we go palatable to with more
ment criminal, are we are siding with the system the excesses
protecting judgment. not a rush to
the State. Justice support, protect, justice when we
We do the federal state and enforce
defend rule of law—as difficult and the
constitutions I concur in sometimes be.
as that
majority decision. SAVILLA, Administratrix
Diana Mae Kan of Linda Good
the Estate Sue Below,
naird, Appellant Plaintiff SUPERAMERICA, LLC, dba
SPEEDWAY Company, corpora Oil Delaware
Rich Charleston, municipality;
tion; City Department; Bruce Fire
Charleston Warner,
Gentry; Defendants and Rob
Below, Appellees
Eugenia Moschgat, Intervenor.
No. 33053. Appeals of
Supreme Court of Virginia.
West
Submitted Oct. 2006. Nov. 2006.
Decided
Dissenting Opinion of Justice 1, 2006.
Davis Dec. Opinion of
Concurring Justice
Albright Dec. *2 Workman, Charleston,
Margaret Esq., L. Appellant. time of her death Ranson, not married Cynthia M. Ran- was Esq., J. Michael Euge- Charleston, daughter, adult Offices, one child—an son, Law Esq., Ranson Moschgat, Carolina. nia a resident North for Intervenor. *3 28, February 2000, Moschgat quali- Ms. Beeson, On George, Keith Joseph Esq., J. S. Charleston, McElwee, administratrix of her mother’s estate for fied as Esq., & Robinson County the Commission. America, before Kanawha Rich Speedway LLC dba Appellee 11, 2000, capacity personal in April On her as Company. Oil Ms. representative and administratrix of Steptoe & John- Phillips, Esq., Jeffrey K. estate, Moschgat a law- Kannaird’s Ms. filed Charleston, son, Appellee Charleston for County the suit in Circuit Court Kanawha Department. Fire against City Speed- and the Charleston1 way. alleged Ms. Kan- The lawsuit that STARCHER, J.: by negli- death was caused the naird’s court’s circuit case we reverse (2) by employees; gence City and conduct wrongful in a a defendant decision to dismiss by employer, that Speedway, Ms. Kannaird’s case, case for and we remand the death to the level of “deliberate intention” rose proceedings. further misconduct, Speedway as to from so remove by immunity that the from suit is conferred I. compensation our workers’ laws.2 Background & Facts 8, 2000, a Subsequently, on or about June began tragic event. with The instant ease siblings, alleg- of Linda Kannaird’s number County, February in Kanawha On recipients of ing they were Kannaird, age Virginia, Linda West Moschgat in damages the suit filed Ms. operated the boat when rescue drowned that suit pleadings connection with filed in flood City overturned wa- of Charleston (and replace) Ms. Mosch- seeking to remove ters. representative Linda gat personal the as plaintiff the in the from Kannaird’s estate and as being evacuated Ms. Kannaird was worked; Siblings potential beneficiaries lawsuit.3 are where she the convenience store statute, Speedway appellee operated the store was [1992], Code, (“Speedway”). Kannaird 55-7-6 SuperAmerica Ms. 1. The suit ters munity from a common-law ment of some claims if the result of Ms. Kannaird's is not an issue in 23-4-2(c) workers’ same City produce made cases, cases were consolidated intention” standard 2(d)(2) will Ms. widow, widower, out of other individuals the deliberate intention afforded to City W.Va.Code, If Department's are not include injury and Moschgat. accident; among employer’s and Charleston’s [2005]. Speedway [2005] states: injury there or death result to pertinent them in the term "the injury 23-2-6 the defendants other Whether such conduct also or employer participating in There have been cross-claims the instant conduct meets the employees were the death of codified at Fire [2003] to the instant suits and/or death, City of his or system may injured or Department result, apparently death also names the were provides and appeal. in the consolidated any employee cases. Those mat- as W.Va.Code, and these other filed her defendants; Speedway employee, City.” appeal. case died be removed suit "deliberate W.Va.Code, and two of occurred filed Several arising in the settle- 23-4— as em- im- we by, 3. Our numbers and effective tory language versions ployee has instant ter and er, any some [1992], states: current version or receivable (Emphasis chapter, pointed personal in the name territory sentative was any foreign country, accordance herewith. as if this opinion excess of (a) every instances, case, statute, Evety deceased whether filed or not. in this such action shall or district of the United the representative added.) a cause of are those of most but chapter such action shall be in a were privilege no previous enactments of the statu- unless noted as otherwise. duly appointed in another person any state, simplicity's consequence, claim for benefits applicable differences We note that statute, W.Va.Code, dates personal representative over the to take who has been or in If the and be distributed be recovered cited amount sake. to the facts of been amount received under this personal in the so current version brought by and States, enacted, we the under this recovered quoted statutory duly ap- employ- use 55-7-6 statute repre- chap- state, state. or said January On following several ments to pleadings, among cross-claims de- fendants, hearings, dispositive the circuit court found there various motions— hostility germane Moschgat none which are between Ms. and her issues appeal. the instant siblings late Moschgat mother’s and that Ms. estranged had been from her mother Meanwhile, apparently July year’s. number of The circuit court ordered Moschgat, acting indepen- Moschgat that Ms. be removed as adminis dently Savilla, of Ms. agree- entered into an tratrix and (neither of Ms. ment nor the date text of the Kannaird’s plaintiff estate and as the named record) agreement are in the Speed- in which City Speedway, case way promised pay Moschgat sum of *4 and replaced money that she be as the administra for a release of Moschgat’s all of Ms. personal plaintiff by trix appellant, Speedway, and claims Diana contin- gent upon Speedway’s Savilla, being Linda dismissed from Kannaird’s sister.4 the lawsuit. proceeded The case then discovery; with Speedway brought thereafter filed and however, it was sidetracked into federal hearing for a motion to dismiss before the nearly years court for two due to removal court, raising arguments. circuit two petition by Speedway; ultimately filed case was returned to First, the circuit court Speedway Savilla, argued that Ms. August of 2004. There were also personal representative amend- as the of Linda Kan- States, territory decedent; (C) or district of the provided by United or in and assistance any foreign country, personal representa- care, such expenses hospital- for the treatment and shall, filing tive post complaint, time of of the injury ization of the decedent incident to the corporate surety bond with a au- thereon death; (D) resulting in and reasonable funeral state, thorized to do business in this of one hundred personal representative in the sum expenses. dollars, conditioned that such jury its sepa- verdict the shall set forth pay shall all costs ad- rately damages, any, the amount of if awarded judged against him or and her that he she or funeral, hospital, it for reasonable medical comply provisions shall with the of this sec- expenses and said incurred as a result of may tion. The circuit court increase or de- act, neglect or default of the bond, good crease the amount of said for defendant or defendants which resulted in cause. death, any and such amount recovered for (b) death, every such action expenses expended by shall so be jury, jury, or in a case tried without a personal representative. court, may damages may award such as to it (d)Every and, such action shall be commenced just, may seem and direct in what fair years
proportions within two after the of such damages de- shall be distributed to children, person, subject surviving spouse provisions ceased of sec- including and brothers, two, adopted stepchildren, eighteen, chapter fifty-five. children and tion sis- article ters, any parents persons provisions apply were of this section shall not finan- cially dependent upon the decedent at the time person any actions the death equita- his or her death or would othenvise occurring prior day July, to the first one bly entitled to share in such distribution after eighty-eight. thousand nine hundred making provision expenditures, for those if W.Va.Code, added.) (Emphasis siblings, As to any, specified (c) in subdivision subsection [2005j 23-4-10(d) "dependent” defines as in- survivors, of this If section. there are no such cluding only wholly an "invalid brother sister damages then the shall be distributed in accor- support upon for his or her the earn- or, dance with the decedent’s will there no ings employee....” of the will, in accordance with the laws descent chapter forty- distribution as set forth in Following Moschgat’s Ms. removal as jury only two of general code. If this renders plaintiff, and named she unsuc- damages pro- verdict on and does not Court, cessfully petitioned asking that we thereof, vide for the distribution the court shall review and the circuit reverse court's order. Ms. distribute the in accordance with the argues appeal Savilla in the instant provisions of this subsection. challenge Court’s refusal to hear Ms. Kannaird's (c)(1) include, jury The verdict of the shall to the circuit court's order established the "law to, but following: not limited for the case,” asserting Speedway and bars from Sorrow, (A) anguish, mental arguments that are in the instant discussed society, companion- solace which include opinion. agree comfort, We cannot with Ms. Savilla’s ship, guidance, kindly offices and ad- decedent; (B) appeal contention. The issues in the instant vice of the (i) Moschgat’s petition reasonably expected decedent, were raised in Ms. loss of income (ii) services, protection, care Court. Collins, standing Associates estate, to assert no naird’s arising from S.E.2d claims intention” “deliberate Ms. Savilla death because Kannaird’s Ms. named employee widower, one of the ...” W.Va.Code, see note specific 23-4-2(c) supra dependent of persons who are for full [2005] (“the text) Discussion III. A. must address is first that we intention” issue having a “deliberate potentially as anyone Moschgat Ms. other than participating em- whether against a action employee’s had or has of an death.
ployer in the event
employer, as a
Speedway,
Kannaird’s
Ms.
alternative,
argued that
In the
her
result of
death.
fully
Moschgat
satis-
agreement
its
23-4-2(c)
W.Va.Code,
noted,
intention claims
possible
previously
all
As
fied
Speedway arising from
the death of
[2005]
specifically
provides
“widow,
Kannaird,
Moschgat
because Ms.
widower,
of an
dependent”
a claim under
have such
one who could
has a cause of
23-4~2(e) [2005],
W.Va.Code,
Speed-
arising
employee’s
of an
a result
*5
the
way’s
required based on
dismissal was
alleged
intention”
employer’s
an
“deliberate
agreement.
settlement
as Ms. Kan-
Moschgat,
Ms.
misconduct.
daughter,
only person identified
naird’s
is the
8, 2005,
circuit court dis-
April
the
On
by
party who fits within this definition.
either
as a defendant
Speedway
missed
way’s
way as defendant.
representative of a decedent
lawsuit.
tlement
the other
party
persons
plaintiff and administratrix
sentative,
those
[2005]
Speedway’s first
death suit
Speedway as
against Speedway.
erate
Savilla
estate,
could recover “deliberate
circuit court erred
alternative
statutorily-named persons themselves.
intention claim
filed the instant
was a
circuit court
Speedway
by Ms.
listed in
potential beneficiaries
intention
but
not be
proper
Speedway,
circuit court
defendant,
argument
argument,
mandated
Moschgat of her claim
asserted
claims on behalf of
did not address
Ms.
party
W.Va.Code,
be asserted
on behalf of another
appeal, asserting
intention”
Savilla,
dismissing Speed-
—that
to
because none
by
personal repre-
the dismissal
concluding that
contingent set-
assert
in a
agreed
even if Ms.
the named
Kannaird’s
23~A-2(c)
wrongful
damages
Speed-
delib-
suit
of
of
wrongful death
were
instant
intention
mentioned in the statute.
mention
est
mention
fied
6 [1992]:
chin v.
another
dent),5
Despite
surviving
exclusion
exclusio
specifically
siblings
not
“[T]he
also have
case,
an
Dunfee,
[.]”
of one
of
against
financially dependent
certain
Syllabus
spouse like
Applying
W.Va.Code,
alteráis
familiar maxim
of other
language, Ms. Savilla
thing
damages;
shall
174 W.Va.
herself,
an
23-4-2(c)
persons
statute,
persons
death
employer
implies the
for deliberate intention
Point
be distributed
[means]
persons
who
23-4-2(c)’s
children,
because
who have
W.Va.Code,
damages implies
principle
is authorized
532, 327 S.E.2d
[2005]
cause of action
expressio
are not identi-
for deliberate
who
exclusion
part,
(and
including
express
express
are not
argues
award
Man
55-7-
unius
dece-
who
of
adopted
stepchildren,
broth-
children
II.
ers, sisters,
any persons
parents and
who
Review
Standard of
financially dependent
the dece-
were
his or her death or
ruling on a
dent at the time
A
motion
trial court’s
equitably
entitled
Kopelman &
would otherwise
de novo.
dismiss is reviewed
sentence,
last
n. 3.
See
[23-4-2(b)
mailing
question
in such distribution after
The statute in
share
]
expenditures,
any,
gives
if
provision
chapter
action “as
those
tion causes
we
W.Va.
from whom an
give
tion; and that
forth the
munity for
No.
into a
pand
beyond
statutes.
intent] cause
23-4-2(e)
suggested by
death
section, clause,
2S-4-2(c)
must
(citing
5.E.2d 717
statute
of their
(1959);
_”
Our
To
specified in
of this
limitation
must
51, 8,
effect
adopt
nullity.
reading
Mitchell v.
State General Daniel
It
those
is to be
dependent”)
Wilson v.
read
terms, if possible.
give
section,
persons
is axiomatic
[2005]would
list
[2005] sets
(1951)).
deliberate intention causes
to
persons
in a
significance
*6
Whereas,
W.Va.Code,
subdivision
all
Speedway
employer
W.Va.Code,
action—will
under ram-deliberate
action”
word
treated as
[emphasis
the statutes
persons
Savilla’s
who
fashion
of the
Hix,
City Wheeling,
who
set forth in
that these
forth certain
be to make the
to
—that
“have a
and effect to
does not have im
part
(“widow, widower,
55-7-6
reasoning
language
adopt
added].6
recover
meaningless
23-4-2(c)
give
“[N]o
harmonize
is not
subsection
Morgan
of a
two statutes
W.Va.Code,
W.Va.Code,
effect to
[1992]
[deliberate
part
wrongful
unprece-
ex —to
persons
in both
reading
statute
words
[2005]
inten
every
Post
of a
sets
ac
(c)
all
whether deliberate intention claims on behalf
ployee.
persons
ate intention”
hold that
[2005]
employer
under a
phasis
Code,
ow,
class of beneficiaries than those
are set forth in
Code,
advocates —that
ficiaries
ject to
recovery.
widower,
its limitation of
accordance with
The next
terms would be
4-2. Since
the extent not inconsistent with
Code,
act the
widower,
reading
23-4r-2(c)
personal representative
23-4-2(c)
added).
potential
Based
enacted,
who can
55-7-6,
personal representative
are the
pursuant
who
been enacted.”7
W.Va.Code,
difference
issue
of the statutes that
child,
on
235-236,
Code, 2S-J,-2,
Collins is
[2005]
take,
[2005]:
beneficiaries of such
potential damages
then for
potentially
and that
action authorized W.Va.
W.Va.Code,
persons specified
distributed
that we must address is
recovery,
Code,
to
foregoing
dependent”
in distribution
W.Va.Code,
765
Lambert,
63,
Syllabus
4
In
Point
of McClure v.
In Miller v.
195 W.Va.
464
McClure,
(1995),
649,
S.E.2d
S.E.2d 582
held that an
184 W.Va.
403
197
we
adminis
(1991)
required
trator was
to obtain court approval
we held:
of wrongful
settlement
death claim
W.Va.Code,
(1985),
Under
55-7-6
might
where all beneficiaries who
receive
statute,
wrongful
personal repre-
death
potential damages
not,
from
claim did
fiduciary obligation
sentative has
to the
not, agree
could
to the settlement. And in
because
beneficiaries
the deceased
Valley
Estate
Postlewait v. Ohio
Medical
representative
personal
merely
nomi-
Center, Inc.,
668,
214
591
S.E.2d 226
party
passes
any recovery
nal
(2003),
compromises
we held that all
designated
wrongful
beneficiaries
wrongful
approved by
claims
death
must be
death statute and
to the decedent’s
also,
Transpor
court. See
Stone v. CSX
estate.
tation,
(S.D.W.Va.
Inc.,
F.Supp.2d
10
602
said in
We
McClure: “We have been sensi-
(court
1998)
approval
necessary
of settlement
problems
tive to
occur between the
non-consenting
to bind
adult
beneficiaries
wrongful
of a
beneficiaries
death suit
claim;
wrongful
public policy strongly
death
personal representative ....”
184 W.Va. at
protecting
favors
the interests of all benefic
654,
In the
compensation statute did not au-
workers’
record,
the trial
nor
have a decision
do we
by Ms.
brought
cause of action
thorize the
addressing the various issues as the
court
majority opinion, relying upon
Savilla. The
them,
appropriate findings
parties
with
see
decision,
the cir-
dicta from a 1933
reversed
have no
We therefore
basis
and conclusions.
For the reasons set out
cuit court’s decision.
attempt
whether
to decide
even
and/or
below,
respectfully
I
dissent.
upon
degree
what conditions
what
Legally
Majority Opinion
A. The
was
Mosehgat
permit-
Speedway and Ms.
be
Wrong Relying upon
Dicta fi'om the
of action that Ms.
ted to resolve the cause
Contracting
of Collins v. Dravo
Case
against
in the con-
Mosehgat
Speedway
Company
Ms. Savil-
text
lawsuit which
overall
repre-
la
the court-denominated
The
of this
that Ms. Savilla
facts
case show
plaintiff.
named
sentative and
of the decedent. She
sister
as the
for the es-
this action
administratrix
matters that must
addressed
These are
Ms,
tate of the decedent.
Savilla filed
foregoing-
the trial court.
remand
Speedway,
against
of action
the em-
any
suggest that
such settle-
cited authorities
decedent,
ployer
upon
W. Va.
based
must
determined
ment or dismissal
23-4-2(c)
(Repl.Vol.2005),
Code
po-
unfairly prejudice the
to not
court
provides
injury
which
or death re-
“[i]f
lawsuit,10
tential beneficiaries of
any employee
from the
sult
person-
to the
provide
must
...,
intention of his
her
expenses in
for her
connec-
al
widow, widower,
employee, the
child or de-
including appropriate
litigation,
tion
with
pendent
employee ... has
a cause of
fees,
creating unfairness to
attorney
without
employeif.]”
Ms. Savilla
separate
Mosehgat
and her
counsel.11
sought damages under W. Va.Code
55-7-
6(b) (1992) (Repl.Vol.2000),
which allows
IV.
jury
award
decedent’s
brothers, sisters,
...
“spouse and children
Conclusion
parents
any persons
financially
who were
Speedway
appellee
The dismissal of the
dependent
Insofar as
decedent[.]”
reversed and this case is remanded
qualify
as the
Ms. Savilla did
proceedings
for further
consis-
circuit court
Kannaird,
the circuit
of Ms.
opinion.
tent
with
court found that she could
maintain
Reversed
Remanded.
deliberate intent cause of action
Speedway.
DAVIS, C.J., dissenting:
majority opinion
agreed
(Filed
2006)
Dec.
personal-
circuit
that Ms. Savilla cannot
court
Savilla,
case,
administra-
In this
Diana
ly
in-
money from a deliberate
recover
Kannaird,
of Linda
trix for the estate
filed
tent cause of action
compensation deliberate
intent
so,
workers’
death statute. Even
Speedway SuperAm-
has determined
theory
permit
that would
dam-
erica under
maintain her
on behalf of
Savilla can
lawsuit
according
ages to
to our
daughter, Eugenia
be distributed
adult
Ms. Kannaird’s
Mosehgat.1
keep
statute. The circuit court
In order to
Ms. Savilla
*9
3, supra.
The
beneficiaries in a
death
will there-
10. See notes
decedent's
case
Mosehgat
siblings,
example,
po-
utility
resolving
Ms.
are
fore have little
in
the issues be-
tential beneficiaries of the claims
the
fore the trial court.
City.
result,
majority opin-
In order to reach
the
1.
moment,
present
11. At the
Ms. Savilla and Ms.
disregarded
Moschgat's
ion
intervenor brief
Mosehgat,
personal
both of whom have been
appeal wherein she informed this Court
in this
case,
plaintiffs
representatives and
in the instant
with
that she had reached a settlement
positions.
appear
in
Reliance
to be
adversarial
represent her
Ms. Savilla does not
inter-
that
fiduciary
generally applicable
duty
the
that a
on
personal representative
fact, Ms. Savilla is adverse to the inter-
ests. In
has toward the
plaintiff,
majority
question gives
this ease as a nominal
the
The statute in
the
of
upon dicta in
1938 decision
decision relied
the
chapter
action “as if this
had not been
Contracting
Dravo
Collins v.
enacted,
If it had
enacted.”
not been
then
(1933).
will
769 widow/widower, wrong- of beneficiary employee, in this our depen- case because sought Obviously, occurs, ful injury death statute and therefore dam- dent. if nonfatal ages majority opin- The that statute. does exist. There- “widow/widower” Collins, ion, selectively prohibited fore, like logically implicitly our cases have provision use of of the our recognized injury that for nonfatal “wid- recovery by permits statute that those not “spouse.” means As a result of ow/widower” mentioned in our workers’ implicit recognition this that “widow/widow- disingenuous. statute. This Either er” spouse, means not ques- eases have application death statute has no to spouse bring sepa- of tioned the action, a deliberate intent cause as I of con- rate claim in a deliberate intent of cause tend, or provisions all of apply. its must injury. for a action nonfatal legally piece-mealed issue cannot as example, For of v. D case Cecil has done in reliance its Inc., 162, M 205 W.Va. 27 517 S.E.2d Collins’ ill-conceived dicta. wife, plaintiffs, Eric Cecil and his Esther essence, point the ultimate I make is Cecil, brought a intent of 23-4-2(c), § a repre- under W. Va.Code action as a result of sentative of the estate of decedent is not injuries Mr. Cecil during sustained bring authorized cause of action for course employment. jury of his re- widow/widower, dependent. or child Collins plaintiffs, turned a verdict favor of the dicta, wrong suggesting by way was this appealed. the defendant af- This Court majority opinion wrong mailing and the verdict, jury firmed the but found the em- this dicta the law our State. ployer was entitled a reduction 23-4-2(c) § out B.W. Va.Code Sets jury. impor- amount awarded More Two Causes Action and Four tantly, dissent, purposes my for the Categories of Plaintiffs Court noted that “Mrs. Cecil awarded Collins,
Except compensatory past and for the dicta in future the instant consortium, offices, kindly presented opportunity society case the first for this loss Cecil, proper persons Court to determine companionship of her husband.” 205 may bring a 11, cause of action under W. Va. at 171 n. 36 W.Va. 517 S.E.2d at n. 11. 23-4-2(c). § Code This statute states full: granted The award Cecil Mrs. was not injury any capacity
If
made
her
employee
or death result to
a widow because
from the deliberate intention of
or her
husband was not dead. The award was made
his
death,
produce
injury
capacity
spouse
an
or
her in her
as a
widow, widower,
employee,
Indus.,
or
injured employee.
child
Tolley
See
v. ACF
dependent
(2003)
privi-
Inc.,
548,
has the
212 W.Va.
causes S.E.2d 702 Blake v. John Inc., Stop, Tmck Skidmore injury. 1. Nonfatal W. Under Va.Code (1997) (same); Gentry 493 S.E.2d v. 23-4-2(c), a deliberate intent cause of ac- Mangum, 195 W.Va. injury employee may tion to an (same); Sias W-P Coal brought by employee, “the widow- (1991) (consolidat er, S.E.2d In W.Va. employee[.]” words, ed involved injury for a there actions wherein two cases nonfatal are categories plaintiffs by spouses). four statute: claims under the
770
(1996)
523,
(spouse
S.E.2d 140
198 W.Va.
482
that a deliberate
never held
Court has
This
brought
intent cause
injury
of decedent
deliberate
for a nonfatal
of action
intent cause
individually
as
assumed,
of action
employee.
have
We
limited to
estate);
v.
representative of decedent’s
Cline
bar, that
Va.Code
W.
as has the bench
589,
Co., 177
355
Min.
W.Va.
Jumacris
23-4-2(c)
a cause of action
§
extends such
(1987) (same).5
5.E.2d 378
v.
dependent. See Roberts
child or
spouse,
a
Co.,
218, 539
208 W.Va.
Consolidation Coal
recognition that the
implicit
This Court’s
(the
(2000)
injured employee, his
478
S.E.2d
separate
has a
estate
a deceased
in-
filed
children
deliberate
spouse and two
expressly
of action was
addressed
cause
employer).
action
tent cause of
Oregon in
Supreme
the ease
Court
Management Corp., 323
Day
v.
Kilminster
Although
injury.
there
Fatal
2.
474
Or.
919 P.2d
as
in our cases
to who
no confusion
injury
for a nonfatal
bring a
of action
cause
Kilminster,
of a deceased
father
In
majority
of the
the decision
employee,
to an
intent cause
employee brought
has muddied
waters
opinion in this case
on behalf of
injury
employee.
respect to fatal
to an
rejected
his
The lower courts7
son’s estate.6
majority opinion,
Under
part
com-
the claim in
because the workers’
bring
can
a cause
estate
provide
a decedent’s
expressly
did not
pensation statute
widow/widower, child or
only a
action for
of decedent.
of action for the estate
any recovery can be distrib-
dependent;
following:
provided the
The statute
widow/widower,
only
child or
uted
injury
“If
or death results to worker
demonstrate, this inter-
I will
dependent. As
em-
intention of the
from the deliberate
23-4-2(c)
§
by the
Va.Code
pretation of W.
produce
inju-
ployer
worker
wrong
grossly
legally
majority opinion is
widow,
death,
tvorher,
ry or
widow-
unsound.
er,
dependent of the
child or
worker
have
chapter, and also
take under this
23-4-2(c) express
§
begin, W. Va.Code
To
if
employer,
as
cause for action
intent
ly
that a deliberate
states
passed,
had not been
such statutes
employee may be
action for
death of
payable
damages over the amount
employee, the
brought by “the
widow
those statutes.”
er,
employee!.]” In
dependent of the
child or
Kilminster,
words,
P.2d at 480
injury,
four
Kilminster,
Until the decision in the of the “persons instant the the reasoning potentially who can recover used Kilminster ‘deliberate inten- was the basis tion’ implicit decedent’s recognition this Court’s that the Va.Code, persons specified are the employee W. 23- separate estate of deceased had a 4r-2(c) employee’s widow, the [2005]: widow- cause of action an employer. Under er, child, employee.” today’s majority opinion, addition to distorting W. Va.Code 23-4- employee’s may bring the estate a cause of 2(c) rights separate order to abolish the action, only but on behalf a widow/widow employee, estate of deceased the ma- er, words, dependent. child or In other jority opinion also Rule violates majority opinion grant a right has abolished Virginia West Rules of Civil Procedure. The employee separate ed to an to have a majority in syllabus point does so wherein through his/her his/her majority gave opinion standing to “[a] Weirton, City estate. See Zelenka v. personal representative who is not one of the (2000) W.Va. 539 S.E.2d statutorily-named beneficiaries of a deliber- J., (Davis, concurring) (observing that ate intention cause ... of action to assert a deliberate intent death action “was not filed intention claim dece- children, the circuit spouse, court person dent’s on behalf of a who decedent[,] dependents [be a cause of action[.]” spouse, cause] did not have a decedent[ ] other dependents”). This unac Virginia Pursuant to West Rule Civil ceptable 17(a), result was “[e]very reached because the ma- Procedure action shall be 8. I Any would have affirmed the be- dismissal that is made the estate of an cause Ms. Savilla this action to recover according is distributed will his/her death statute. She or, will, where is no there accordance seeking recovery was not that would have been forth laws descent distribution as set distributed will decedent's or under our 41-1-1, etseq. W. Va.Code descent distribution statutes. lawyers permits now party of the real the name prosecuted in 17(a), prior, validly de- in a commenced commentary on intervene Rule interest.” litigation behalf of client intent liberate said: following Second, litigation. has no interest purpose articulated Justice Starcher opinion permits an intervenor to oust the 17(a) Bird, [200 in Keesecker of Rule only party interest ]. Third, importantly, and most employer. purpose of the rule is opinion that the held opinion allows the intervenor con- majority party who asserts ensure destiny litigation. This latter trol possesses, under substan- point the facts of the instant is critical under law, right sought to be enforced. tive *14 clearly because the record demonstrates case 17(a) to circuit courts hear Rule allows Ms. is hostile Ms. that Savilla towards persons brought by who only suits those may very Moschgat. hostility This well right to enforce claim possess the adversely compromise Ms. Savilla to litiga- significant interest who have a in to limit amount of the action order the requirement that claims be The tion. Moschgat Ms. could recover. Obvi- party by a real in interest prosecuted ously, attempt will to Ms. Savilla’s counsel (1) party responding to avail enables a But, prevent ultimately, disposition this. the and defenses that of evidence him/herself by the claim is decision to be made the party in against the real inter- he/she party’s party bringing the action —not that (2) finality est, assure to him/her attorney. (3) protect to from judgment, and him/her brought by par- later the real suit of the above-described extreme another All three ty part matter. that interest on the same form of the reason Rule in scenarios 17(a) prosecuted by requires litigation to Davis, Cleckley, Robin J. Franklin D. party in the real interest. Palmer, Jr., Litigation Handbook Louis J. Procedure, Moschgat Virginia Rtdes Civil has Settled her on West D. Ms. 528-29(2d ed.2006). 17(a), against Speedway It is clear p. at Claim 17(a), purposes text of Rule the from the point I in this The final wish make rule, majority opinion the is the behind Moschgat’s Ms. efforts dissent involves granting Ms. Savilla stand- simply wrong against Speedway. claim resolve the she filed intent cause of ing to assert opinion, way, majority apologetic in an Moschgat.10 behalf Ms. action on acknowledges that a settlement was reached litigation Savilla initiated this Ms. by Moschgat she filed Ms. the claim recovering hopes dam- Speedway. This settlement con- was ages through our death statute. affirming tingent upon this Court the dis- opinion correctly majority closed by missal the claim Savilla closed, under the being that door door. With majori- against Speedway. As result of the absolutely Savilla has decision, ty’s been re- the settlement has litigation no interest outcome Moschgat’s po- moved from table. Ms. majority against Speedway. The has ex- recovery tential now the hands of rests pressly stated that she cannot obtain plaintiff does not to have want her spite Speedway. of this penny. single fact, majority opinion nevertheless has principles per- One of the bedrock litiga- permitted Ms. Savilla continue litigation system lofty our civil meates Speedway on behalf of Ms. tion goal encouraging parties to In- settle. Moschgat. This decision sets horrendous deed, recognized it Su- “[t]he has been precedent. preme policy made Court has clear that encourage three extreme scenarios that is to settlements.” There are law Handbook, decision, Cleckley al., majority Litigation all of et can result from the 1, First, 16(a)(5), p. Syl. pt. 482. See Sanders present are in the instant case. which exceptions encompass recognizes recognized Obviously, do Rule 17 situations amorphous majority prosecuted by repre- creature created where an action However, opinion. party in real interest. sentative of a 773 Gardens, Inc., ought reject merely 152 it v. Roselawn Mem’l because it ” (1968) (“The Rose, 587, 91, v. law favors comes late.’ Bass (2004) 1, 848, n. S.E.2d 854 n. 1 encourages the resolution of controver (Davis, dissenting) compromise (quoting J. and settle Henslee v. sies contracts Un Bank & ion Planters Nat’l Trust litigation; ment rather than 600, 290, 293, U.S. 69 S.Ct. 93 L.Ed. policy uphold of the law and enforce such (1949) curiam) (Frankfurter, J., (per fairly dis they contracts are made and are not Harris, senting)). State v. Accord public poli contravention some law or 281 n. 531 S.E.2d n. 1 cy.”). expressed Albright great Justice (Davis, J., concurring). grave Because of the importance of settlement Riner Newb negative impact decision, majority I 137, 141, raugh, 211 W.Va. urge majority reconsider the that, he “[i]n when wrote those precedent opinion. unwise out its set agreement instances where settlement signed by parties, reached but not stated, respectfully For the I reasons dis- agreement may provided still be enforced I am state sent. authorized to that Justice parties produce sufficient evidence concern Maynard joins dissenting opinion. me ing agreement of an and the attainment *15 ALBRIGHT, agreed J., concurring: mutually upon agree terms of the ment.” (Filed 2006) 27, Dec. proceeding, majority In the instant has I opinion, concur with this Court’s I destroyed unbending our heretofore commit- separately only write to matters address encouraging ment ratifying to settle- raised the dissent. dissent The concludes Speedway attempted buy its
ments.
has
first section
that
its
with
statement
peace
ton,
Moschgat.
with Ms.
Ms.
holding
Court’s
in Collins v. Dravo Contract
Speedway’s
Moschgat
accepted
has
offer
Co.,
229,
ing
114
S.E. 757
W.Va.
171
buy peace.
nothing
There is
in the record to
flatly
asserts,
wrong.1 The
dissent
con
that
indicate
conditional settlement
Collins,
trary
holding
a repre
that
agreement
reached between
sentative of the estate of
decedent is not
Moschgat
is somehow unfair to either
bring
of action for a
authorized
so,
party.
majority opinion
Even
has widow/widower, child,
dependent
or
of that
agreement
destroyed
Speed-
and forced
decedent.
way
party
to endure a trial
has
authority
personal rep-
of a decedent’s
absolutely
no interest in the action
it.
resentative
assert
deliberate intention
logic
Where is the
this situation?
claim on behalf of
decedent’s widow/wid-
child,
ower,
I
noted on
or
has
dependent
have
several occasions
been settled
“ ‘[wjisdom
comes,
eighty year's.2
too often
and so one
this State for over
It is
never
law
Inc.,
Sendee,
suggests
erroneously
employee:
1. The dissent
the hold-
Keeseev. General
Refuse
Collins,
quoted
199,
(2004);
ing
majority opinion,
216 W.Va.
church could Opinion Concurring of Justice ages. 4, 2007. Benjamin Jan. majority also chastises That dissent Savilla, intervenor,
permitting as an *16 only party Mosghat, the who had
oust Ms. against Speedway. It
claim for note, however, ironic
somewhat justices
dissenting voted to refuse Ms. Mos- appeal
ghat’s petition to the circuit court’s Moreover, Mosghat.3 despite
ouster of Ms. contrary, to the dissent’s utterances
nothing in Court’s separately
precluded Mosghat from com- particular
promising her claim simply Court affirms West
Speedway. This compromise must
Virginia law that ongoing- in the broader context
occur regard governing
litigation, with due law.
settled error, improper tampering hindsight, appears justify another With benefit governing personal representa- allowing law the lower with settled Court made a mistake management wrongful death representatives. their tives and substitution court’s however, Court, propose. certainly litigation that dissent would One error does