State Ex Rel. Abraham Linc. Corp. v. Bedell

722, 434 S.E.2d 394 Burdette 602 S.E.2d 542 (1993) (An consent-to-set policy’s automobile Virginia ex rel. of West STATE coverage UIM provision regarding tle ABRAHAM LINC CORPO- cover “whereby [UIM] an insured voids his RATION, Petitioner a tortfeasor by settling a claim with age obtaining the insurer’s written first without enforceable means ... is a valid and consent BEDELL, A. The Honorable Thomas ... may protect its by which an insurer Judge of the Circuit Court of Harrison Indeed, subrogat[ion][.]”). National Union Edens, Respondents County; and John any subrogation argues, it did not waive might upon Mr. and rights it have had based No. 31538. coverage. Miralles’ claim for UIM Mrs. Supreme Appeals Court of was raised below but was This issue Virginia. nor resolved the circuit

neither addressed order; there its December 18, 2003. Submitted Nov. fore, will not address it this Court Vandevender, pt. July Decided 2004. syl. at 10. appeal. See However, that, remand, prevail note on we Concurring Opinion of Justice issue, required Union is on this National July 2004. Davis prejudiced demonstrate that it has been Na Concurring Opinion Mrs. Miralles’ failure to obtain of Justice Mr. and July settle with the tort tional Union’s consent to Starcher for the full limits of feasor’s insurance carrier applicable policy. we

liability under the As syllabus point Kronjaeger

held in seven Co.,

Buckeye Ins. Union (1997),

S.E.2d 657 obtain an insured has failed to

Where settling before insurer’s consent

his/her settling pro- tortfeasor but

with a policy limits available under

cured the full policy, the insur-

the tortfeasor’s insurance prejudiced by that it was

er must show its consent to

insured’s failure to obtain justify a refusal to

settle order

underinsured motorist benefits.

IV.

CONCLUSION stated, reasons the December

For the Mononga- Circuit Court of

2002 order of the reversed, County and this case is re-

lia proceedings.

manded for further and remanded.

Reversed sor, policy writing liability that an offer to settle insurer then the claimant or the liability insurer may give made indemnifying limits has been the tortfeasor indemnifying coverage the tortfeasor. carrier notice underinsured motorist Denson, Cooper, Christopher

Daniel C. B. Johnson, Steptoe & Clarksburg, Virgi- West nia, Attorneys for the Petitioner. Bush, Jr., Bush, Jr., Frank P. P. Frank & Associates, Elkins, Virginia, Attorney West Respondent, for the John Edens. PER CURIAM: original proceeding This is an in which the Petitioner, (here- Corporation Abraham Line “Petitioner”), prohibi- inafter seeks writ of tion the Honorable Thomas A. Be- dell, Judge of the Circuit Court Harrison County, preventing respondent judge the al- law action since II of the common conducting a trial on Count from submitting leged the is- the Petitioner to lose its complaint and default caused Petitioner’s compensation statutory immunity.3 sue of the Petitioner’s thorough review of jury. Upon coverage to a summary a motion for The Petitioner filed matter, grant requested writ. we judgment, contending Mr. Johnson’s History and Procedural I. Factual wages did not have to be included pre- carpet computation operates a wholesale of workers’ The Petitioner Virginia. On as an inde- Bridgeport, miums since Mr. Johnson served business 25, 2001, Mr. employee, April pendent Petitioner’s contractor rather than Edens, Further, he was injuries when John sustained the Petitioner of the Petitioner. cutting carpet caught rollers of possesses between it a Certificate of asserted that co-worker, Mr. A wrapping machine. through Coverage, April valid from Johnson, incorrect pressed had an Don August issued the Workers’ spin while Mr. causing the rollers switch certifying Compensation Commission4 and machine. Mr. on the Edens was in premium account was that the Petitioner’s injury ac- personal filed a Edens thereafter of Mr. Edens’ good standing at the time against the Petitioner. tion the lower Peti- injury. response In Mr. to the Edens’ complaint alleged various of the Count One summary judgment, he for tioner’s motion a in- safety hazards and asserted deliberate wages had to be the Mr. Johnson’s asserted Petitioner, against of action tent cause employee an rather included because he was § Virginia Code 23-A- pursuant to West contractor, independent than an that failure (1994) 2(c)(2)(ii) (Repl.Vol.2002).1 Count Two default, a and that the to so include caused complaint asserted that the Petitioner immunity had its to a common Petitioner lost Virginia was in default under West negligence court de- law action. The lower had conse- Compensation Act and Workers’ summary the Petitioner’s motion for nied immunity a statutory quently forfeited judgment that the of default and ruled issue negligence. Specifically, Mr. civil action for proper of Mr. Johnson and the classification that the Petitioner was Edens maintained independent an or an contractor wages it had not included the default because proceed jury.5 should a pre- determination of of Mr. Johnson Determining II. Standard for Issuance Virginia payable under Code miums of Writ of Prohibition 23-2-5(a) (1999) a re- (Repl.Vol.2002).2 § As failure, Syllabus point one of State ex rel. alleged Mr. Edens main- sult of that Maynard, in a International the Petitioner could be sued UMWA Union tained that Coverage § 4. That is included in the W.Va.Code 23-4-2 was amend- Certificate of 1. We note that language upon and the which Mr. ed in Edens Court. We also note that the record before this allegation premises intent his deliberate Compensation Division was renamed Workers’ 4—2(d)(2)(ii) § now found in W.Va.Code 23— the Workers' Commission (2003) (Spec.Supp.2003). 23-1-1(c) § 2003. See W.Va.Code (Spec.Supp.2003). payable employer are deter- 2. Premiums gross percentage employer’s mined as wages denial, summary judgment Subsequent employees. payroll all W.Va.Code the Petitioner filed a motion for reconsideration 23-2-5(a). Although amended this section was pursuant and an alternative motion bifurcate do not affect our those amendments Virginia to Rule 42 the West Rules of Civil appeal. decision in this requested that Procedure. Petitioner against 3. A common law action phases, separated the first re- trial be into two § 23-2-8 authorized under West Code garding Mr. claim that the Petitioner had Edens' (Repl.Vol.2002) if an defaults in negligence immunity its from a common law lost compensation premi- of workers’ liability action and the second for Mr. Edens’ By procuring finding that the Petitioner ums. damages were also claims. Those motions default, permitted to was in Mr. Edens would be upon our denied the lower court. Based initiate a common law action jury that a trial on the inde- ultimate conclusion the Petitioner and would not be limited to the warranted, pendent contractor issue is statutory through the relief available compensation system. longer relevant. bifurcation issue is no (1985), discretionary determining whether a writ pro- S.E.2d 96 176 W.Va. Although prohibition issue. all shall lie as a should prohibition “A writ of vides: satisfied, it usurpation and factors need not be is clear right in all eases of five matter of factor, inferior court has that the third the existence of clear power, when the abuse of law, subject given in con- jurisdiction of the matter error as a matter of should or, troversy, having jurisdiction weight. exceeds such substantial powers.” See legitimate W.Va.Code (1923) (Repl.Vol.2000). syllabus § 53-1-1 III. Discussion point ex rel. Peacher v. Sencin- two State Mr. Edens contends that the lower court (1977), diver, S.E.2d 425 160 W.Va. correct in its decision that the issue of was prohibi- writ of explained “[a] this Court the Petitioner’s workers’ cover- prevent simple abuse tion will not issue to alleged erroneous classifi- age based only court. It will of discretion a trial independent of an contractor should cation jurisdiction where the trial court has no issue jury resolution. The be submitted to legiti- having jurisdiction exceeds its maintains, however, Petitioner W.Va.Code, powers. mate 53-1-1.”6 Compensation Commission’s issu- Syllabus point four of State ex rel. Coverage ance of a Certificate of Berger, Hoover any finding delinquency absence of (1996), in explains 12 the manner which a by the Commissioner renders such default prohibition be request for a writ of should unnecessary because there are no submission addressed, as follows: dispute regarding facts in the Peti- material determining whether to entertain and compensation coverage sta- tioner’s workers’ prohibition issue the writ of for cases not tus. involving jurisdiction but an absence of underlying principles only it claimed that the lower West where system legitimate powers, Virginia are tribunal exceeded its (1) Compen five well-established. “The Workmen’s this Court will examine factors: designed negligent Act was to remove party seeking the writ has no sation whether the means, accidents from the com ap- ly caused industrial adequate other such as direct relief; (2) system.” Mandolidis v. Elkins mon law tort peal, to obtain the desired 700, Indus., Inc., 695, 246 S.E.2d damaged petitioner will be or whether (1978), 907, by superseded statute as way 911 prejudiced in a that is correctable (3) Corp., Handley v. Carbide appeal; the lower tribunal’s stated in Union on whether Cir.1986). 265, (4th “The bene clearly a matter of 804 F.2d 269 order is erroneous as law; (4) system employ of this accrue both whether the lower tribunal’s order fits er, from common-law tort per- who is relieved repeated an oft error or manifests injuries, inflicted and liability negligently for disregard procedural for either or sistent (5) law; prompt pay employee, who is assured and whether the lower substantive Lewis, v. 172 of benefits.” Meadows important new and ment tribunal’s order raises (1983); 457, 469, 638 impres- 307 S.E.2d problems of law of first or issues Co., Persinger Peabody Coal 196 guidelines also v. general These factors are see sion. (1996).7 893 474 S.E.2d starting point a useful for W.Va. that serve as Resorts, commonly philosophy been de- Campbell, "That Inc. v. 7. In State ex rel. Chase 1995) quo quid pro in (Mo.App. on both sides: the Missouri scribed as 913 S.W.2d 832 "[¡Issuance against job- purchase of insurance explained Writ of return for the of a employer remedy injuries, receives tort im- generally appropriate related munity; Prohibition is right giving up litigation.” to sue in return for unwarranted and useless to forestall employee prohibi- employer, receives swift and S.W.2d at 837. The court held that Clark, Corp. prevent Caisson from sure benefits.” Dominion tion would lie to the lower court (D.C.1992) quoting Meiggs holding jury 614 A.2d 532-33 trial on the issue of reasonableness Builders, Inc., A.2d attorney v. Associated fees. See also State ex rel. Police cert, denied, Mummert, (D.C.1988), 490 U.S. 109 S.Ct. Sys. Retirement 875 S.W.2d 553 (Mo.1994). 104 L.Ed.2d Statutory pays premiums A. The Procedure subscribes to and into the Fund, complies require- all with other Virginia § Code 23-2-6 Act, ments is entitled to provides (Repl.Vol.2002)8 exemption from immunity any injury occurring em- liability contributing tort em common law ployee and respond shall not be liable to in ployers, as follows: damages by at common law or statute.’ subject Any employer chapter to this W.Va.Code, [1991].” 23-2-6 203 W.Va. at who shall into subscribe the work- 659, 510 S.E.2d at 493. Footnote eleven of compensation premiums pro- ers’ fund the explained: Frazier “This statute is also by chapter vided or who shall elect to ‘exclusivity’ provision, known as the as it payments compensation make direct makes workers’ benefits the provided herein shall not be liable to re- remedy personal injuries exclusive sus- damages in spond by at common law or by employee injured tained in the course injury any statute for the or death of em- resulting of and from his or her covered ployee, occurring, however after so sub- employment.” Id. at n. scribing electing, during any period at n. 11. which such shall default of such immunity provided by § 23-2-6 payments direct complied and shall have easily is not forfeited. As the District Court fully provisions with all other chap- of this for the Southern District of West ter. The continuation in the service of Co., explained in Smith v. Monsanto shall be considered a waiver “[ujnder (S.D.W.Va.1992), F.Supp. 327 employee parents Act, who is otherwise entitled to employee minor of action as immunity immunity under 23-2-6 lose aforesaid, which the or her or his only ways: one of defaulting two Provided, parents would otherwise have: payments required the Act or otherwise of employers required by That in case failing comply to with provisions the chapter pay premi- this to subscribe and Act, (2) by deliberately intending pro or to fund, compensation ums into the workers’ injury employee.” duce or death to the injured employee the in has remained such (citation omitted). F.Supp. at 330 employer’s service with notice that his em- ployer pay has elected to into the workers’ Specifically, Virginia West Code compensation premiums provided fund the § (Repl.Vol.2002), 23-2-8 provides by chapter, this or has elected to make employer statutory that an will lose the im payments direct as aforesaid. munity Virginia § of West Code if 23-2-6 it § in (emphasis supplied). payment W.Va.Code 23-2-6 is default in the of to succinctly As this Court stated in compensation State ex the worker’s fund or fails to Hrko, fully rel. Frazier v. comply 510 otherwise with provisions the (1998), S.E.2d Virginia “‘[w]hen §§ West Code 23-2-5 or 23-2-9.9 Virginia § fatally injured West Code 23-2-6 employees’ dependents was modified ees or slightly provisions in 2003. These under the alterations do not affect of section nine [§ 23-2-9] article, having appeal. this of this ed, or so subscribed or elect- same, payment be in shall default in the having fully complied or not otherwise with Virginia § 9. The full text of West Code 23-2-8 provisions the of section five or nine section provides as follows: article, § [§ 23-2-5 or 23-2-9] of this shall be employers required by chapter All this to (within employees meaning liable to their the pay premiums and subscribe to into article) the work- damages by of this for all suffered fund, compensation except ers' the state of personal injuries reason of sustained Virginia, governmental agencies West departments or employment by wrongful course of act, caused it, by municipalities created and neglect any or default of the or state, political and officers, subdivisions of the and who employer’s agents employees pay premiums do not subscribe to and into acting scope employ- while within of their compensation required by workers’ fund as employment ment and in the course of their chapter this and have not elected personal representatives to indi- and also to the vidually directly and employees or from benefit funds such where death results such from compensation expenses injured employ- personal injuries, any by any and to and in action acknowledged support shall file in preeminent to be such information issue statutory case is that the scheme does respective positions they this their deem immunity immediately addition, mandate loss proper. the division is au- mistake, employer’s delay, develop thorized to additional infor- The statutes con- compliance. or error necessary mation that it deems to be through which process a detailed em- struct parties the interests and of fairness lapse Virginia ployer is resolved. Code West keeping fiduciary obligations with the instance, 23-2-5(b), provides § regard owed to the With fund. “[fjailure ... of an to maintain an decision, ready which for a issue adequate premium deposit, shall cause the explain division shall the basis of its deci- delinquent.” employer’s account to become sions. 23-2-5(c), § Virginia Code Pursuant West 23-5-l(a) (emphasis § supplied). W.Va.Code subsequent to a that an ac- determination delinquent, required count the division Virginia The West Code of State Rules notify delinquent employer of its sta- procedures further elucidates the established explain legal consequences of a tus delinquen- for calculations and resolutions potential Virginia § Code default. West 23- cy issues, providing and default additional 2-5(d) only then when the delin- clarifies that requirements regarding particular details prescribed quency peri- is not cured within default, delinquency, notice of notice of possible. pro- od is a default That section employer may manner in which an seek employer, by who is “[f]ailure vides instance, reinstatement. For Section 85-11- required to subscribe to fund and who provides the mechanism for audits of em- delinquency within fails resolve the ployers where the division desires verifica- prescribed period, place shall account employees wages tion of the number of such default deprive default shall em- paid during periods.11 certain Section 85- ployer protection of the benefits and afforded provides authority 11-9 for the commence- by chapter....” Virginia Code ment of a civil action the division. “De- (a) (1995) (Repl.Vol.2002)10provides § 23-5-1 specifically fault” is defined West authority of the Commission to hear is- Code State Rules 85-ll-2.5a as follows: jurisdiction, within its as follows: sues The failure a subscriber or a self-in- division pay- sured not-made a power authority shall have full report ment or filed due it under questions hear and determine all within provisions of the and which has Act re- jurisdiction. arising In matters under ceived a 3.3. notice of delin- subsection seq. [§§ articles three and four 23-3-1 et quency but has further failed to make the seq.] chapter, 23-4-1 this and et of report or file the within the time promptly shall review and investi- division period specified gate parties by all to a claim the notice. claims. The Virginia employee personal representative § such thereof, 10. West Code 23-5-1 was also modi- or 2003, slightly altering primarily fied not avail himself in word defendant shall following substituting choice the word defenses: The and "commission” common-law term, rule; changes for the former "division.” The do defense of the fellow-servant the defense risk; appeal. assumption not affect this or the defense of of contributory negligence; and further shall not any avail himself of defense 23-l-19(a) (2003) Virginia § Code was that whose duties of someone (Spec.Supp.2003), effect at the time not in of Mr. Provided, prescribed by That such are statute: injury, provides civil remedies for the Edens' also depriving employer Commission, provision of a defendant Compensation Workers' as follows: under certain common-law defenses the cir- "Any corporation willfully, by ... ... apply cumstances shall not to representation, by therein set forth means of or or false statement county fact, brought against an action any ... ... concealment of material obtains education, commission], [county premium ... board mu- shall be liable to the reduced costs nicipality, political compensation or other subdivision of the workers’ commission in an required any employer equal state or not amount the amount of such three times benefits, provisions employees payments to which he cover his under or allowances or chapter. it is entitled[.]” this not (1986) (“The 106, right element 354 S.E.2d provided has also legislature wholly compensation as follows in West workers’ benefits employees, protection to v. Work- excep- statute”); Lester State 2—5(g): § “With Virginia Code creature 23— Comm’r, (h), Comp. section one subsection men’s tion noted in 161 W.Va. (“[T]he re- article, of an 443, legislature this 242 S.E.2d chapter to subscribe to by quired modify this power to this state’s industri- has the fund shall be denied compensation workers’ long as program as it sees fit so al insurance by chapter because provided benefits infringed”); provision is no constitutional or because the to subscribe employer failed Comp. Ferguson v. State Workmen’s delinquent or is either employer’s account Comm’r, 465, 163 S.E.2d W.Va. § 23-2- Virginia Code default.”12 West by grounds other (1968), overruled on 5(h)(1) provisions of this sec- “The provides: Div., Comp. Martin v. Workers’ 210 W.Va. deprive any individual of tion shall (“Alleged rights 557 S.E.2d accrued as a result which has cause of action remedies, provided by the workmen’s during occurred injury or death which statutes, recognized can not compensation delinquency not resolved any period of courts”). granted article, provisions of this with the accordance This Court must accede to comply with the subsequent failure to legislature methodology established repayment agreement.” terms of the regulations designed and the rules Responsibility to B. The Judicial employer’s continuing enii! le determine an Statutory Procedure Observe compensation coverage, im nient to workers’ consistently respected the Court has This munities, legislative defenses. This con statutory schemes preeminence of the compensation system struct for the workers’ In Bailes compensation law. body an administrative which bears envisions Compensation Commis- State Workmen’s determining responsibility of the delin (1968), sioner, 161 S.E.2d 261 152 W.Va. employers within quency or default status explained that example, “[t]he this Court system. its own wholly right to workmen’s Prop- In footnote seven of Erie Insurance any way on the statutory not in based and is Pizza, erty Casualty Stage Show Co. controlling The statutes are common law. JTS, Inc., 553 S.E.2d 257 procedure pro- rights, remedies and and the (2001), acknowledged the mecha- this Court at are exclusive.” 152 W.Va. vided them designed West Code 23- nism (citation omitted). at 263 5(d), if “specif[ying] that 2— Co., Consolidation Coal Roberts v. to the workers’ com- delinquent its duties (2000), this Court ac- 539 S.E.2d 478 fund, “ fails to pensation and the re- knowledged that has been held ‘[i]t delinquency, then the resolve that peatedly by this Court place Division choose to compensation benefits is based workmen’s ” 210 ‘in default.’ W.Va. at statutes, wholly in no sense based on the on 7, at 264 n. 7. This Court has n. 553 S.E.2d law; gen- that statutes are sui common employer that when an has been also held rights, controlling; that the reme- eris and by in determined to be default the Workers’ thereby provided are procedures dies and ” Commission, Compensation that declaration 234, 539 S.E.2d 208 W.Va. at exclusive!.]’ syllabus binding upon trial courts. In is 494, quoting Bounds v. State Workmen’s at Frazier, point this Court stated: two Comm’r, 675, 670, Compensation 153 W.Va. W.Va.Code, 23-2-5(d) [1986], (citations omitted); in Under 172 S.E.2d 382-83 Merritt, ruling by Boyd v. the absence of a final the Work- see also through adjudication dispute present that Mr. Edens an of the issue 12. There case is finding payments is an ultimate premium of Mr. Johnson's status the Petitioner made t¡¡.¡-' employee. Petitioner was in default at the Mr. that the reflected Mr. Edens’ status as immunity injury, thereby forfeiting compensation its Mr. Edens’ Edens' to obtain workers' subjecting common by itself to a the of Mr. John- and defenses benefits is not affected status by by only law action Mr. Edens. possible be derived son. The benefit to Commissioner, employer, claiming employer trial the that the had Compensation ers’ employer in default un- compensation court find an it workers’ immunities and lost Compensation court, Act. How- der the Workers’ defenses. In the lower a verdict was ever, final if the Commissioner has made a judgment and a based returned rendered default, employer in then ruling that an upon that a determination the immunities ruling binding upon the Commissioner’s and defenses had been lost. This Court re- ruling The Commissioner’s a trial court. judgment, finding versed the lower court that collaterally attacked in a sub- may not be by supplemental payments the the drivers to considering the sequent proceeding same helpers wages paid by were not the the issue, remedy employer’s proper the at employer. Id. at 76. This ruling through the to seek review not, however, question did the Court address appellate process established W.Va. procedure employed in the of whether the Code, [1990]. 23-2-17 the lower court for determination the issue 654-55, S.E.2d at 488-89. 203 W.Va. at compensation coverage of whether workers ultimately holding prem- in Frazier was proper. had been lost was upon following ised the conclusion: ‘We be- wage reporting matter at issue in the trial in exceeded lieve that this case Canterbury directly injured concerned the legitimate powers impinged its on the employee, wages, the individual whose work- jurisdiction failing of the Commissioner injury, place directly and death were in- accept the Commissioner’s determination in volved the civil action reviewed Top that Pioneer and Flite were in default of Conversely, judice, Court. the case sub compensation obligations.” their workers’ allegedly improper compliance with Thus, Id. at 510 S.E.2d at 496. the issue Compensation Act does not relate Workers’ immunity of loss of in Frazier was deter- Edens, injured employee, directly to the Mr. law, mined a matter of based fact as but rather to the contested status of a co- that Commis- underlying worker not involved civil a notice of that sioner had issued default had action. become a final order of the Commissioner employer appeal. 'failed to seek an

when Kosegi Pugliese, In W.Va. matter, support position In of his in this (1991), recognized this Court S.E.2d 388 Canterbury Valley Mr. Edens also cites statutory pronouncements “that an Co., Dairy 95 S.E.2d 73 Bell W.Va. obligation to remit who is default Canterbury, In this Court reviewed compensation premiums workers’ of whether an had lost immunity entitled to from com- Fund is not compensation is workers’ immunities and de- liability.” 185 at mon-law W.Va. had failed to. fenses because issue, exploring how- S.E.2d at 390. report wages paid certain sums an em- as ever, Kosegi acknowledged Court also ployee by employee’s co-worker. 142 statutory proce- intervening alteration 74. The at 95 S.E.2d at immunity which potential dure for the loss of Canterbury paid employees, had certain employee’s accomplished had been after the drivers, working helpers to its truck explained in 1982. This Court as fol- death very wage paid minimal and had lows: only upon based contesting [Employer’s] sole basis wages. The drivers who were assisted those statutorily they were in default helpers paid helpers often premium payments is the failure to remit stipend, presumably drawn from additional § amendment to 23-2-5. 1984 W.Va.Code wages. compensa- additional their own This § provisions of Code 23-2-5 as The wages help- reported tion was not as for the employer required in in that an ers, effect any premium paid by the em- nor was delinquent who was supplemental compensation. ployer on that compensation premiums “shall be helpers in a workers’ When one of the was killed accident, protection the representa- deprived of benefits workplace personal his ” chapter .... Pursuant to wrongful afforded brought tive a death action statute, employer preme an whose fail- in addressing the 1982 Court of Ohio the issue timely premiums ure to remit rendered statutory immunity through of entitlement to thereby ... delinquent him was mandator- compensation system. a workers’ That court ily subjected negligence. to common-law recognized obligation judiciary 386-87, statutory 407 S.E.2d at protocol Id. at 390-91. Pursu- to observe evaluat- when statute, ant ing delinquency to the 1982 “commissioner issues of and default. In notify required employer was not that Bridges Engineering v. National and Con- delinquency it in its rendered default....” Co., tracting 49 Ohio St.3d 551 N.E.2d However, Id. at 407 S.E.2d at 391. (1990), Supreme the Ohio Court held that requirement amendment of 1984 included a coverage a certificate of served to demon- notify that the commissioner must all delin- employer compliance strate that the inwas quent employers writing in of “their failure law, reasoning as matter of as follows timely pay premiums, timely file a syllabus point two: “Once the Industrial payroll report, adequate or to maintain an Commission employer has certified that an premium deposit.” Id. at 407 S.E.2d at has established coverage paid industrial 23-2-5(b) (1984). § quoting W.Va.Code 4123.35, premium, pursuant its R.C. provided The amendment also that failure to employer complying employer is a as a mat- delinquency prescribed resolve a within a law, ter of and is entitled to the benefits of period place would the account in default. [the act].” Kosegi apply Court refused to the 1984 Further, syllabus N.E.2d at 164. point retrospectively amendments to the 1982 em- three, Bridges court held that em- “[a]n ployee death and therefore held that ployer’s particular injured failure to include a employer’s pay appropriate premi- failure to required payroll report does ums at the time of the incident rendered the deprive employer statutory of its employer dispossessed in default and it of its immunity from a civil brought action statutory immunity.13 employee, in the absence of a final determi- amendments, applicable Those 1984 by the employer nation commission that the case, present substantially changed noncomplying employer who has not process by delinquent employer may which a liability settled its to the State Insurance default, now be found in with the resultant Fund.” Id. loss of immunities and common law defenses. us, In delinquency the case before employees in Bridges argued had employer default of the has been found or premium payment “that certificates of are declared the Workers’ only prima proper facie evidence that Commission. premium paid, has been and thus evidence us, showing employer resolving under-reported pay- the case before we find roll, analysis they here, instructive the allege employer] utilized the Su- as [the did filed, how, days Kosegi 13. Three after the decision was We under the new statute McLaughlin, notice, this Court filed W.Va. requiring give the commissioner can Shifflett (1991), 407 S.E.2d 399 and held that delinquency employer notice of to an who is compen- who failed to workers' reporting employees, all such were as part-time employees sation delinquent was facts in this case. The commissioner would mandatorily deprived and was of its way knowing employees have no that the statutory immunity for an accident which oc- being reported were not to the Fund until Kosegi, curred in 1983. As in Then, perhaps an accident would occur. un- immunity maintained that it could not lose be- statute, der the new could claim delinquency provided. cause no notice of was given delinquency. no notice was 185 W.Va. at 407 S.E.2d at 400. This Court W.Va. at n. 407 S.E.2d at 403 n. 9. again explained provisions that the in effect in statutory regulatory provi- We note that the permitted immunity upon immediate loss of regarding investigative sions audits and tools delinquency requirement with no of notice Of available Commission serve to minimize opportunity employ- to resolve and held that the instances error will remain applica- er would not entitled to retroactive (a), undiscovered. See W.Va.Code 23-5-1 subsequently-enacted pro- tion of the 1984 notice discussed above. Shifflett, visions. In footnote nine of this Court queried as follows: Moreover, proves noneompliance_” reject [plaintiffs’] 551 N.E.2d at we con- that, rejected Supreme they permitted 169-70. The Ohio Court tention had been argument present discover and as evidence and reasoned follows: the re- audit, compensation] sults of the [workers’ accuracy premium pay- While the of a they employer’s] could have [the rebutted by employer certainly depen- ment an proof compliance, because the audit re- upon reporting payroll dent the accurate sults would have served as a “final deter- by employer, employer such an who fails to noneompliance. mination” of As fully pay its does not automati- process court’s discussion of the audit cally noneomplying employer become a details, Bridges revealing an audit inaccu- subject by to a common-law action its em- payroll reporting underpayment rate or Indeed, ployees. employer once an premiums by employer an does alone payroll report, complete filed whether “noncomplying” mean that the not, thereon, paid premium find- purposes statutory for the immunity. ing noncompliance is a of fact Rather, noncomply- an becomes to be determined in the first instance ing purposes statutory immunity for the Commission, the Industrial a court only pay, after it fails to within the allowed original in an civil action. time, premium the additional ordered as the result of the audit. Bridges Id. at 170. court also noted that statutory safeguards scheme included *5; 2000 WL 1838031 at see also Walter v. employ- which ensure that “[a]s between the Inc., AlliedSignal, App.3d 131 Ohio er and the ... commission the certificate is 164,169 N.E.2d not conclusive.” Id. All records under the IV. Conclusion system, Virginia system,

Ohio as in the West subject are to audit the commission. requests The Petitioner a writ of “Moreover, employ- the determination of an prohibition preventing the lower court from ... comply er’s failure to is an administrative seeking jury resolution of this matter. Bridges determination.” Id. The court ulti- support request, of its the Petitioner con mately explained agree with “we genuine tends that no issue of material fact that, holding of several lower courts summary remains for resolution and that alone, the failure of an who has judgment compensa on the issue of workers’ complied otherwise to include one or more coverage appropriate stage. tion at employees payroll report on a ‘is not agree We with the Petitioner’s contentions deprive omission which will grant requested relief. We base this (citations immunity.’” Id. at 170-71 omit- statutory determination the elaborate ted). employer’s Bridge of its “omission above, regulatory provisions summarized Project employees payroll reports from its duty provisions, our to adhere to such was a matter between it and the commis- inescapable if conclusion that even ...” employ- sion. Id. at 171. “Whether [the allegations by Mr. advanced Edens were ac duty report employees’ er] had a proven jury, curate and before a the first decided, payroll is a matter to be in the first penalty to be suffered the Petitioner instance, Id.; by the commission.” see also finding pre would be a that it owes further (Ohio Schroeder, Keeler v. 1992 WL desig miums and that account should App.1992). statute, delinquent. nated as Pursuant issued, delinquency notice of would then be Relying upon principles enumerated in given oppor and the Petitioner would be Bridges, Appeals the Court of of Ohio held tunity delinquency. to cure If no resolu that a certificate of “served to dem- delinquency tion of the occurred within statu [employer] complying onstrate the was a em- frames, tory time a default would result. ployer as a matter of law.” Fuhrman v. Co., Further, Garrison Feist Const. 2000 WL we observe that the certificate (Ohio App.2000). The Fuhrman court rea- to the Petitioner covered the time issued occurred; soned as follows: in which the accident there period amendment, challenge, employer. This is not the intent of the evidence of is no certificate; statutory- legislative to that scheme. revocation clearly stages procedure identifies jury Submission of a to a is neces- through a default determination must which sary only genuine there is a when issue administratively; injured proceed and the 56(c) material fact to be decided. As Rule compensation benefits worker’s own workers’ Rules of Civil Procedure properly jeopardized, wages his were are not specifies, summary judgment appropriate thereon, premiums paid and reported with depositions, pleadings, where “the answers involves alleged error the Petitioner file, interrogatories, and admissions on to- employee than the classification of other affidavits, gether any, if with the show that injured question. worker genuine there is no issue as to material moving party entitled to a fact and that the Providing regard legislative due judgment a matter of law.” A material as plan addressing perceived delinquencies for fact has been defined as one “that has the obligations and eventual defaults in the capacity sway litigation the outcome of the employers compen- file accurate workers applicable under the law.” Williams v. Pre- fully pay reports sation and all due Coil, Inc., n. cision wages reported, apparent on the it is that the disputes S.E.2d 337 n. 13.14 “Factual legislative means scheme allows reasonable unnecessary that are irrelevant or will not be addressing oversights both errors Liberty Lobby, counted.” Anderson v. might preparation arise in the which U.S. 106 S.Ct. 91 L.Ed.2d 202 filing reports and of such the calculation appropriate compensa- workers’ specified by premiums. procedure tion Finding justification the lower legislature allows for the correction of action, proposed court’s we conclude that wage report arising from the errors there is no basis which this Court or employee, of an individual the mis- omission may deprive the trial court the Petitioner of earned, wages statement of actual or even a immunity or defenses from suit for com- good dispute regarding proper faith clasr genuine law and no mon issue of particular person of a to whom sification might material fact warrant submis- compensation might paid. have been Cer- jury. to a sion of this matter The writ shall tainly, legislative scheme does not envi- granted prohibiting litigation of the issue wage report, sion that an error in the such as compensation of the Petitioner’s workers’ employee by of an the omission individual coverage pending in the civil action below error, simple, unintended the misstate- prohibiting maintenance of an un- action wage by computational ment of a or scriven- allegations der the of Count II of Mr. Edens’ error, immediately er would result in the loss complaint. immunities, coverage, and defenses. Such Writ Granted. fact, adjudg- error of law or in the case of ing independent to be an con- MAYNARD, Chief Justice Justice DAVIS tractor, trigger would not the loss of cover- and Justice STARCHER concur and reserve immunities, age, and defenses without right concurring opinions. to file litigate with opportunity to the issue Commission and Justice dissents and reserves McGRAW any delinquency finding. upon an adverse dissenting opinion. to file procedure prelimi- of a the absence DAVIS, concurring: Justice nary delinquency of a notification and even- default, proceeding majority opinion tual declaration of a such as the In this has devised, legislature prohibition prevents inno- a writ even the most issued cent, allowing circuit from accidental errors could be the basis for John Edens (hereinafter Edens”) coverage denying referred to as “Mr. Chrysler Corp., party 14. "When a cannot show a material fact Lattr&ll v. S.W.3d issue, (Texas jury[J” nothing App.2002). there is to submit to a HI pointed appellate that an court law cause of action have out pursuing a common from (hereinaf- authority duty to Corporation the inherent and sua against Abraham Line Line”). standing, sponte I con- address the issue of even referred to as “Abraham ter parties to raise the the writ. Howev- when the have failed cur in the decision to issue below, during er, I writ at the trial court level or a illustrated believe the issue as proceeding appellate the court. See for another reason. before should have issued Sanders, Youngblood 212 State ex rel. v. Raising Standing of A. the Issue (2002) 885, 894, 864, 575 875 W.Va. S.E.2d Sponte Sua (“[TJhis (Davis, J., concurring) ha[s] Court sought litigate to a common law Mr. Edens authority duty and the to address employer, action his Abra- Syl. standing sponte.”); pt. of ... issue sua Line, theory ham on the that Abraham Line’s 2, M., part, Carolyn 193 James M.B. v. compensation account was de- (1995) (“Where 289, 456 S.E.2d 16 it failed to on fault because raises, briefs, party appeal to an or neither employee, of another Don Johnson behalf argues jurisdictional question presented, a (hereinafter Johnson”). referred to as “Mr. power duty this Court has the inherent below, party pro- or in Neither raised unilaterally authority to to determine hear ceeding, the issue of whether or not Mr. particular ju- cannot confer case. Parties standing litigate employ- to Edens had directly indirectly or risdiction on this Court previ- of Mr. have ment status Johnson. We lacking.”).1 my It where it is otherwise “ ously ‘[sjtanding noted that is an element of opinion that this Court should have sua ” subject jurisdiction over the matter.’ State standing, sponte invoked the issue of 256, Hill, 248, ex rel. Paul B. v. 201 W.Va. this case on that issue. resolved (1997) 198, (quoting 21A Mi- 496 S.E.2d 206 Standing Principles B. General Jurisprudence ehie’s Words & Phrases 380 (1987)). Further, “[gjenerally, “[sjtanding This Court has indicated that jurisdic- is a waived, standing party’s is defined as requirement ‘[a] tional that cannot be judicial up any legal make a claim or enforce- brought be at time in a seek ” duty right.’ Findley v. State Cleckley, ment of a or proceeding.” Franklin D. Robin Co., 80, 94, Palmer, Litigation Davis & Louis J. Farm Mut. Auto. Ins. Jean 807, (quoting 821 Black’s on West Rules Civil Handbook of ed.1999)). (7th 12(b), Procedure, Dictionary Ulti- p. (Supp.2004). 21 The Law 1413 standing jurisdictions mately, “the of is whether of this Court and other decisions Coast, Inc., 329, (5th FW/PBS, Dallas, 215, 301 F.3d 331-332 Inc. v. 493 U.S. See also Gulf Cir.2002) 230-231, 596, 607, standing (Although 110 S.Ct. 107 L.Ed.2d 603 was not ... raised (1990) ("Neither court, the District Court nor the Court parties or considered the district petitioners Appeals whether had of determined necessary it sua we must —where —raise standing challenge any particular provision of Ventures, Seattle, City sponte.")-, RK Inc. v. 307 Although neither side raises ordinance. ("We (9th Cir.2002) also hold F.3d 1056 here, required to issue we are address issue standing appellants to seek that do not have it, passed even if the courts below have not on standing declaratory relief. We raise this issue parties and even if the fail to raise the issue Chong sponte, requires.”); v. the law Dis- (3rd sua States, us."); v. United 354 F.3d before Delorme Director, I.N.S., 264 trict Cir.2001) ("[CJourts F.3d Cir.2004) (8th ("[Appellant] claims that standing ... must decide standing not before this court the issue of issues, parties, even when not raised be- the district court did not dismiss on that because merits.”); turning S.E.C. Basic fore however, jurisdictional requirement, b.csis. As standing Resources, Inc., Energy 273 F.3d & Affiliated sponte at can be raised court sua Cir.2001) ("The (6th litigants present USA, litigation.”); any during the Pandrol time of the movants’ case have not raised the issue Prods., Inc., Ry. LP v. Airboss 320 F.3d standing appeal of the district the orders ("It (Fed.Cir.2003) is well-established court, issue, sponte, because we raise this sua but sponte, party, and even the sua can obligation police independent we are under standing for the first time at raise the issue jurisdiction.”); Dillard v. Baldwin our own City any stage litigation[.]”); Rector v. & (11th Comm'rs, County Cir. 225 F.3d Denver, (10th County 348 F.3d Cir. 2000) ("We standing obliged sua are to consider 2003) ("Standing jurisdictional ques- ... raises sponte parties not raised the even if the have required and we are to consider the issue tions issue.”). [.]"); sponte Ford v. NYLCareHealth Plans sua (b) litigant the court de- actual or imminent and not is entitled have larized Second, dispute particular conjectural hypothetical. merits of the cide the there 490, 498, Seldin, 422 U.S. Warth v. be a causal between issues.” must connection 2197, 2205, 45 L.Ed.2d 343 injury forming 95 S.Ct. and the conduct basis Cohen, 83, 99-100, Third, likely See also Flast 392 U.S. it the lawsuit. must injury 88 S.Ct. 20 L.Ed.2d through will be redressed (“In words, placed when other decision of the favorable court. case, whether issue in is 80, 576 S.E.2d 213 W.Va. 807.2 challenged person standing whose is is a party proper request adjudication an of a standing may The context in which second issue[.]”). Furthermore, “standing particular analyzed litigant be occurs when a seeks to common-law, specific statu- gauged is rights party. assert of a third This party that a tory constitutional claims commonly standing issue “is also known as presents.” International Protec- Primate jus standing.” Psych. Pennsylvania tertii League tion v. Administrators Tulane Servs., Inc., Spring Soc. v. Health 280 Green of Fund, 1700, 72, 77, S.Ct. Cir.2002). Educ. 500 U.S. 111 278, (3rd n. 7 F.3d 287 In this (1991). 1704,114 L.Ed.2d 134 “[ijt is a rule that situation well-established may only legal litigant rights assert his own recog- of this have The decisions Court and and cannot rest to relief interests a claim First, types standing inquiries. two of nized legal rights par- on third interests of standing may presented of in the issue be 3 Lawyers, Clergy, ties.” Coalition and of litigant asserting alleged context of a an (9th Bush, 1153, v. 310 F.3d 1163 Professors unique her. right that is to him or This is Cir.2002). previously We have noted that party standing!.]” known “as first Romano 675, Harrington, F.Supp. v. 664 679 [traditionally, courts have been reluctant (E.D.N.Y.1987). context, specific In this we persons standing to claim allow vindi- establishing articulated the elements for rights of a party cate third on the standing syllabus point Findley 5 of grounds parties generally third are follows: the most effective their own advocates of Standing comprised rights will litigation of three elements: that such result in First, party attempting unnecessary adjudication rights to establish an of standing “injury-in- must have suffered which the holder either does wish to protected enjoy regardless fact” —an invasion of a or will legally assert be able to of (a) particu- interest concrete the outcome case. requirements party standing legal rights, person’s barring adjudica- 2. first are the rule requirements!-]” generalized grievances appropriate- “constitutional Granite State tion of more Clearwater, Advertising, branches, City ly representative Inc. v. Outdoor addressed of Fla., 1112, (11th Cir.2003). 351 F.3d 1116 Jus- requirement plaintiff’s complaint that a fall Cleckley Sopher, tice stated in Coleman v. "Sec- protected the zone within of interests the law 737, 751, [and 6] 3 of Article tion[s] VIII Wright, invoked.” Allen v. 468 U.S. 3315, 3324, (1984). Constitution word refer[ ] to the 'contro- 104 S.Ct. 82 L.Ed.2d 556 versyf.]’ Further, One of the [the] incidents of controver- appropriately it has been noted that " requirement sy litigant is that a have stand- ‘[pjrudential standing help limitations courts ” 90, 6, 367, ing[.]' 194 W.Va. 95 n. 459 S.E.2d identify proper questions judicial adjudication, of (1995). 6 373 n. judiciary’s and further define the role in the ” separation powers.’ Ashcroft, of v. McClure 404, (5th Cir.2003) (quoting 411 prohibits litigating 335 F.3d v. party rule that from Ruiz Estelle, 814, 1998)). (5th 161 Cir. rights standing F.3d 829 n. 22 prudential of another is a rule However, concerns, "[pjrudential standing constitutionally un- See that is based. American ones, abrogated by like can Employees, Rumsfeld, constitutional be Gov’t v. Fed’n AFL-CIO (“Prudential (D.C.Cir.2003) legislature].” [the act of Mclnnis-Misenor v. 321 F.3d 142 Ctr., (1st Cir.2003). standing, standing, Maine Med. 319 F.3d unlike Article III 68 based not is, Constitution, legislature "may grant express prudent judi- That on the but instead on (internal persons quotation cial administration.” of action to who otherwise would marks omitted)). generally by prudential standing and citation are three There barred rules.” Warth Seldin, 490, 501, 2197, 2206, recognized prudential standing gen- "the v. 422 U.S. rules: 95 S.Ct. prohibition litigant's raising eral on a 343 another 45 L.Ed.2d

H3 265, 279, itself, Snyder Callaghan, injury 284 but W.Va. whose members have been (citation omitted). (1981) See injured action, S.E.2d challenged as a result of the Sanders, Leung v. also State ex rel. standing solely repre- have to sue as the (2003) W.Va. 584 S.E.2d (1) sentative of its members when: its mem- curiam) (“In (per light long- of our clear and standing bers would have to sue their own precedent third-party (2) right; protect it interests seeks to are standing, the circuit court committed clear germane organization’s purpose; legal in permitting error Ms. Schell to liti- (3) neither the claim asserted nor the relief gate Wanger’s poten- Dr. and Shenandoah’s requested requires participation of indi- (footnote omitted)); rights.” tial Board lawsuit.”); Syl. pt. vidual members in the County Taylor Educ. v. Board Edue. Latimer, Shobe Marion, 182,189, County (“For standing under the Declara- (“To S.E.2d extent Act, tory Judgments it is not essential that a request the transfer form used the Mar- party personal legal have a right or inter- clause, County ion Board contains a similar est.”); Ctr., Tug Valley Recovery Inc. v. Taylor County simply Board is without Comm’n, Mingo County 94, 103, 164 W.Va. enforcement.”); standing to seek its v. Kessel 165, (1979) (holding 261 S.E.2d 170-171 Leavitt, 95, 117, 720, 204 W.Va. 511 S.E.2d taxpayer interested resident or (1998) (“[W]e 742 authority discern [no] to standing to contest assessment of land not permit [standing] challenge defendant to her). belonging himto Because of the personal jurisdiction of a codefendant ease, presented facts in the instant I believe eodefendant, by when that acts or his/her obligated general Court was to set out a omissions, has waived to chal- his/her determining litigant test for may when a lenge personal jurisdiction.”); v. Guido rights party. assert the of a third Guido, 198, 203, 511, 202 503 W.Va. S.E.2d Standing Principles C. Jus Tertii (1998) curiam) (“In (per 516 the instant mat- adopted Federal courts have quite ter it is a three clear that Mr. Guido lacks pronged jus standing standing tertii bring any appeal issues test determine directly litigant may parents. justi- rights involve whether a assert the of a his He has no Ohio, party. third parents.”); ciable interest the claims of his Powers v. the United Virginia AAA Supreme succinctly Statewide Ass’n v. Pub- Court set out the .States Virginia, pronged lic Serv. Comm’n West 186 developed three test that was in its of 287, 3, 481, prior 288 n. 412 n. litigant S.E.2d 482 3 decisions: must “[t]he have suf- (1991) (“Because appellant entity ...; injury is not an litigant fered an in fact must issue, subject who is to the tariffs at AAA party; have a close relation to the third procedural does not have to raise there must exist some hindrance to the third pertaining issues to a PSC-administered rate party’s ability protect her his or own increase.”). 1364, interests.” U.S. 111 S.Ct. 499 (1991) 1370-71, (internal 113 L.Ed.2d 411 recognized exceptions While Court has omitted). quotations and citations See also general may litigant rule that a F.D.I.C., 37, Lepelletier v. 164 F.3d 43 rights party, assert of a third we have (D.C.Cir.1999) case); (applying test in civil general jus never articulated a tertii stand- Cemetery City Mount Elliott Ass’n v. ing determining litigant test whether a of 398, (6th Cir.1999) Troy, (apply- 171 F.3d 404 See, rights party. assert the of a third case); ing Wauchope test in civil v. United e.g., Clarksburg, Local Div. No. 812 W. State, 1407, Dep’t Va., States 985 F.2d 1411 Amalgamated v. Transit Union Cen- (9th Cir.1993) ease); Auth., (applying test in civil tral West Transit 179 W.Va. (1987) 31, 2, 76, Upper Freilich v. Ches- Board Directors 34 n. 79 n. 2 (“[L]abor Health, Inc., 679, apeake F.Supp.2d 142 699 organization may sue or be sued as (D.Md.2001) case); entity employees (applying and in test in civil behalf of the Co., 1116, 2, F.Supp.2d represents.”); Syl. pt. Snyder whom it v. Moreno v.G&M Oil 88 (C.D.Cal.2000) 265, Callaghan, (applying test in civil 284 S.E.2d 241 1118 (1981) (“An case); 249, State, association which has suffered Clark v. 585 So.2d 250

114 prong (applying in crimi- L.Ed.2d 826 Under the third (Ala.Crim.App.1991) test Morris, ease); Cal.App.4th Powers, People 107 nal v. it must be shown that “there (2003) 872, 402,131 (applying Cal.Rptr.2d 879 genuine party’s] obstacle to third [the some case); Alterra Healthcare rights.]” Singleton, test in criminal [of assertion his 128 936, Shelley, Corp. 827 So.2d 941 116, v. Estate U.S. at 96 S.Ct. at 2875. (Fla.2002) ease); (applying test in civil State I that the Powers factors are sound believe 116, Velez, (La.Ct.App.1991) 125 v. 588 So.2d assessing litigant may whether assert ease); New Mexico (applying test criminal Therefore, rights party. of a third I Johnson, Right 126 to Choose/NARAL following principle of law should believe (1998) (applying P.2d N.M. jus adopted have been in this case: The case); County test in civil New York Law- standing requirements that must be tertii Pataki, 776, 727 yers’ Ass’n v. 188 Misc.2d by litigant seeking established to assert (2001) (applying N.Y.S.2d test (1) rights party litigant of a third are: Orwick, ease); App.3d 153 Ohio civil State v. injury-in-fact; have must suffered (2003) (applying 791 N.E.2d test litigant have must a close relation to case); Co., Gray’s Disposal in criminal Inc. party; and there exist some third must Nashville, Metropolitan Gov’t of party’s ability pro- to the third hindrance (Tenn.Ct.App.2002) (apply- S.W.3d tect own interests. his/her ease); State, ing Salazar v. test civil Applying Standing D. Tertii Prin- Jus (Tex.Crim.App.1991) (apply- S.W.2d ciples Attempt Mr. Edens’ to Liti- case). ing test criminal gate Rights Party the of a Third test, prong of the Under the first Powers sought litigate Mr. Edens to a common law only possible party to find third stand- “it is Line, negligence against claim Abraham un- injury in ing when there is also an fact theory that der the Abraham Line was plaintiff.” alleged party the first Storino Compensation with the default Workers’ Beach, Borough v. Point Pleasant 322 injury. Commission at the time of his (3rd Cir.2003). 293, Thus, party F.3d 299 record is clear that the sole basis which must show that he or she “suffered a con- relies, Mr. Edens in order to show that Abra- injury[.]” Wauchope crete v. States United default, ham Line em- (9th was involves the State, Dep’t 985 F.2d Cir. Indeed, ployment status of Mr. Johnson. the 1993). satisfy prong To the second of Pow- expressly circuit court that “an found issue enjoyment litigant ers a must show that “the material fact to John- exists as whether Don inextricably up right of the bound with the ‘employee’ ‘independent ... son was an or activity litigant pursue, ... [or] wishes to ” employment contractor.’ I believe that the litigant relationship between the and the of Mr. an party fully, third status Johnson is issue that Mr. such that the former is [is] may very nearly, proponent standing litigate, Johnson have to if he as effective a Singleton Wulff, injured working right the latter.” v. while for Abraham Line.4 as 106, 114-15, McLaughlin, v. 428 U.S. 96 S.Ct. See Shifflett that, entitled[.]”); 23-2-5a(a) § attempting I W. 4. will note addition to it is not Va.Code also ("The litigate rights, (Spec.Supp.2003) to Mr. Mr. Edens is also workers’ com- Johnson's litigate rights pensation may attempting commission ... commence a civil to of the Workers' Com- is, who, notice, against pensation Commission. That to the extent action after due categorized any payment required by chap- have Mr. defaults in that Abraham Line should this ter."). employee paid Obviously, com- I am concerned about the Johnson as an pensation workers' accordingly, possibility rights Mr. and the the Workers' that Johnson Compensation may injured was and is Workers’ Commission be in Commission " However, judiciary’s statutorily empowered jeopardy. '[b]ecause to seek redress. See W. 23-1-19(a) (2003) primary adjudicate rights (Spec.Supp.2003) ... role is to Va.Code it, willfully, by private parties ("Any corporation ... that the ... before the mere fact rights parties may jeopardy representation, ... means of false statement or of third fact, provides justification judicial ... concealment of material ... obtains no for interven- ' Dist., High premium reduced costs ... shall be liable to the tion." Cole Oroville Union Sch. Cir.2000) (9th (quoting in an 228 F.3d workers' commission Note, "Standing equal Constitutional Jus Ter- amount benefits, to three times the amount of such Assert tii," (1974)). payments or allowances to which he or 88 Harv. L.Rev. curiam) (where establishing specific facts Edens. “Absent (per injuries fairly traceable decedent, palpable distinct who had been the estate of status], employment [Mr. Johnson’s [Mr. to maintain was allowed part-time employee, at the satisfy burden Edens] [his] cannot negligence action law a common summary judgment stage to establish employer failed to employer because requirement [jus tertii] injury in fact specifically compensation premiums workers’ decedent).5 Hous- standing[.]” Arkansas ACORN Fair as Mr. Insofar on behalf Dev., Co., 160 Greystone Ltd. ing, Inc. v. litigate rights that Mr. John- Edens seeks (8th Cir.1998). Thus, Mr. have, i.e., right categorized F.3d to be son standing on jus not have tertii enjoy work- Edens does therefrom, permit that would dispositive issue flowing compensation benefits ers’ proceed law action satisfy jus tertii common must I Mr. Edens believe these circum- against Abraham Line. Under requirements.6 stances, Line is entitled to the writ. Abraham standing require- jus tertii Applying Charleston, F.3d City See Burke case, go I no of this need ments to the facts (4th Cir.1998) (“[J]us tertii 405 n. 2 In requirement. order further than the first initial matter to obligated as an plaintiff employment litigate the Mr. Edens to injury[.]”). palpable a distinct [establish] Johnson, establish an he must status of Mr. foregoing, I In view of the concur. Mr. Johnson’s injury-in-faet that flows from independent con- employment status as an Justice, McGRAW, dissenting: This he cannot do. tractor. 2004) (Filed July allegations proceeding there are action, underlying John alleged As to inform the Abraham Line failed Edens, Corpo- employee Abraham Line Compensation Commission ration, catastrophic injury as a suffered a employee. There is no was an Mr. Edens The co- injured of the actions of a co-worker. was he result dispute that after Mr. Edens Line working for Abraham had been compensation benefits. worker obtained per- year 1 and had been approximately for by Abraham Line’s was covered Mr. Edens employ- as the other forming the same duties reporting premium compliance with the Line never premises. Abraham ees on the requirements of the Com- Workers’ wages in the deter- Consequently, the included the co-worker’s pensation Commission.7 com- premiums for workers’ mination of its Mr. Johnson Abraham Line listed fact that Thus, dispute arose pensation purposes. paid no independent contractor as an Line Abraham was concerning premiums on his be- whether compensation workers’ Compensation the default under Workers’ injury-in-fact to Mr. half did not cause an litigate giving employee Stage provision an the Property and Cas. Co. v. 5. See also Erie Ins. JTS, Inc., Pizza, the employment 553 S.E.2d worker for the status of another Show (2001) (noting employer was in default that proving 257 in default purpose was of compensation obligations workers’ to the of its fund for failure to failing premium payments on behalf make for date the premiums on the of the other worker. injured.); plaintiff State ex rel. was Frazier Hrko, 486 W.Va. compensation workers’ ben- are aware that 7.We (where injured employee to main- was allowed merely em- because an cannot be denied efits negligence against em- law action tain common pay- required premium ployer failed to make Compensation Commis- ployers after Workers' 2—5(g) See W. Va.Code ments. 23— declaring employers were orders sion issued (”[N]o employ- employee (Spec.Supp.2003) anof injured); employee Kose- the date was default on required by chapter to the this to subscribe er gi Pugliese, W.Va. 407 S.E.2d 388 compensation be denied ben- fund shall workers’ (1991) (estate allowed to main- of the decedent by chapter em- provided because the efits action law tain a common employ- ployer to subscribe or because failed pay any employer, failed to because the default.”). delinquent or in during pe- account is either er's However, killed). dispute that is no in this case there was riod decedent Mr. payments made that reflected premium were carefully com- examined the workers’ I have employee. as an Edens’ status statutory pensation statutes. I have found Act, dependent ruling. of which the resolution court’s ultimate The of utilization question procedure, the factual whether the co- such a where no action has been Commissioner, worker was an Abraham Line or by taken eliminate would independent contractor. The accident oc- by expressed majority concern that 2001, and, April yet, curred in as of simple, errors unintended could result in Compensation Commissioner Workers’ employer’s immunity. loss of an other addressed this situation than to statutory regulatory process The de- perfunctory Coverage issue a Certificate of majority opinion scribed in the constitutes request. Contrary at Abraham Line’s to the Legislature’s concept fair method am majority, opinion view of the I that an administrative determination of whether much can of this dilemma be resolved employer’s delinquent account is inor Hrko, adherence to rel. State ex Frazier v. method, however, default. That is ineffective I, S.E.2d if the Commissioner takes no action in the therefore, respectfully dissent. majority first instance. As the acknowl- holds, Syllabus Frazier point part, occurs, edges, until an accident the Commis- “[ujnder W.Va.Code, 23-2-5(d) [1986], may employees sioner not have known that ruling by the absence of a final the Workers’ were being reported to the Fund. Such Commissioner, Compensation a trial court support reasoning circumstances in Fra- may find an in default under the zier. Specifically, Act.” Frazier indicates that a Circuit Court action, underlying Abraham Line find an employer in default as a matter of obtained a of Coverage Certificate from the and, necessary, law questions where submit stating premium Commissioner ac- of fact jury. 203 W.Va. at good standing during count was in period aspect Frazier, S.E.2d at 494.1 That how- question. majority opinion empha- ever, majority is not discussed in this sizes the as an important, Certificate if not case, and, it at inasmuch as odds with the dispositive, factor ultimate determina- is, therefore, majority opinion, Frazier over- tion of whether Abraham Line inwas default. ruled implication. However, the Certificate contains the follow- ing limiting language: ultimate whether an em- ployer inis default under the Workers’ Com- indicated, As of the date this account pensation Act, protections and has lost the good named insured is in afforded the Act from a common law Division. with the This certifi- action negligence, is a matter of law cate is as a matter of issued information may, circumstances, in limited involve only rights no and confers the certifi- fact, questions attendant such as whether cate holder. This certificate does a employee employer worker was an amend, alter coverage extend or the af- independent or an contractor. In that re- policy forded below. the that, gard, clarify I would stating Frazier in the ruling by absence of a final the Work- The existence the Certificate of Cover- Compensation Commissioner, ers’ age a circuit would not warrant a foreclosure of may legal court legal make inquiry concerning determination of or factual the status event, whether the default any under the the Abraham Line account. In genuine Act. If a of material issue fact exists Certificate could be considered at the level, concerning Frazier, employ- along whether a worker was an Circuit under Court contractor, ee or independent may that with concerning issue other relevant matters de- be jury submitted to a facilitate the circuit fault. opinion questions As the states: matter if no fact of law of material Frazier W.Va.Code, that, exist. A submit 2—5(d) trial court We believe under 23— [1986], jury a if the Commissioner has made no deter- payroll when an fails to file reports, employer’s any rulings by mination of an default ma- and in the absence of and the failure, concerning dispute. terial such facts are in 203 W.Va. at Commissioner employer may held to be in default as a 510 S.E.2d at 494.

H7 situations, Finally, majority opinion suggests In that certain factual the kind of Edens, plaintiff underlying John tripartite analytic formulation set forth in action, cannot raise the default issue because Ohio, Powers v. 499 U.S. 111 S.Ct. standing employment he lacks to contest the (1991) may 113 L.Ed.2d 411 be useful to a co-worker, his classification of terms in dealing standing with a issue. But compensation premi- of workers’ there strong are several reasons not to use opinion ums. I am of the that a such result case, analysis this in the instant and not to contrary public policy. great to' To a adopt approach a princi- black-letter extent, compen- the success of ple Virginia briefly of West law. I will dis- system depends upon compliance sation cuss those reasons. employers accurately reporting wages specific The first reason is to the instant paying premiums and in into the workers’ case—the fact that standing the issue of was compensation fund. The result of such com- not raised or parties. briefed either of the pliance, noneompliance, wide-rang- has a ing employee effect—from the individual stating The concurrence is correct in that region. economics the entire There- this Court can reach issue sua fore, virtually any citizen should have stand- sponte. particularly some where eases— ing to assert that an not in apply sponte there is settled law to —sua compliance Compensation with the Workers’ appropriate. action is But what this Court Act. almost never up should do is to take an issue Moreover, where the Commissioner has that has not argued, been briefed or and then action, taken forthcoming, and no action is proceed to alter the basic law of the State— it is unfair to that conclude who opportunity without the for either the liti- catastrophic injury suffered from the ac- gants many or the members of the Bar and standing tions of co-worker has no to assert public who weigh follow this Court’s work to that immunity forfeited its subject. in on the negligence, from common law action for always It is almost the ease that the com- especially employee’s since: peting arguments voices and well-pre- would not have been an had issue the Com- pared, zealous advocates on all sides of an missioner taken action and found a default issue that has been in a raised concrete case employees, injured other without the (and permit this Court to craft decisions co-worker, free, involvement of a would be especially syllabus points) will be endur- according majority, pursue the de- (That ingly fault useful. is one reason that we issue. Those distinctions from the cir- injured employee advisory opinions.) put cumstances of the in this eschew To forth a case are not found in the West advocacy new “rule” without the benefit of Act and constitute input public legal profes- from or the premise upon “too tenuous a which to anchor especially apply a rule that would to a sion— any steady standard of law.” State ex rel. substantively range wide of cases—-is not R.A.I., J.L.K. v. how common law should be built. 142,149 S.E.2d again focusing specific on the Moreover — ease is before this Court —the Powers STARCHER, concurring: Justice standing analysis, that focuses on “when one doctrine, “[Sjtanding complex a defying is person can ‘rights’ belonging assert to anoth- generalizations analytical structuring.” person,” er does not fit the facts of the Hamill, Timothy Martha Colhoun and “Envi- instant case. Standing ronmental in Ninth Circuit: Wading through Quagmire,” 15 Pub. plaintiff argues The in the instant case that Land L.Rev. injured in workplace he was a where the being worker’s laws were per I in opinion. concur the Court’s curiam followed; argues and he that there is a also separately express I write to per- another penalty prescribed by Legislature clear spective standing on the issue of that is employers for law—the concurring opinion raised in the who do not follow the filed Jus- tice statutory immunity Davis. loss of from suit. attempting get preme standing a Court denial of to citizens plaintiff is not to belonging challenging company or to a “third to file toxic

right or benefit for failure (that case, Jason, party, “Standing in the instant would party” reports); King, chemical in injured plaintiff and the worker who Garbage: be Flow Control and the Problem of Compensa- not listed with who was Worker’s Standing,” Consumer 32 Ga.L.Rev. 1227 tion).- Rather, seeking right plaintiff (1998) (criticizing denying citi- federal cases namely, ability benefit to or standing challenge garbage importa- zens himself — advantage legislative penalty of take of the tion); Johnathan, Levy, Response “in immunity. employer’s loss of Employment Fair Council Wash- Greater ington, Marketing Corp.: Inc. v. BMC Em- short, the facts of the instant case do ployment Leg Do Testers Have to Stand party” standing not fit the “third situation (1995) On,” (criticizing 80 Minn. L.Rev. 123 that addresses. Powers private federal cases undercut enforce- Next, beyond going the circumstances laws); E., Myriam employment ment of fair case, specific adoption instant “Representational Standing: ex rel Ste- U.S. formulation a black-letter rale Powers as Litiga- vens and the Future of Public Law likely inappropriate unhelpful would (2001) tion,” (discussing 89 Cal.L.Rev. 315 development Virginia for the of our West sharp public litigation cutback in law law. Supreme standing created Court’s case, is because Powers a federal This Kelso, past years); jurisprudence in the “third-party” prudential standing for- and its Randall, “Standing Charles D. and R. to Sue: larger mulation is tied into the framework of Supreme Transformations Court Method- jurisdiction, jurisdiction federal court Doctrine, Results,” ology, quite limited under the States Con- United (1996) (describing U.Tol.L.Rev. 93 the shift- quite stitution —and is different from the ing standing and inconsistent rationales used general jurisdiction sovereign States Supreme Century); Court in the 20th Adopting and their courts. the Powers for- Driesen, David, “Standing Nothing: development mulation would tend to tie the Demanding Paradox of Concrete Context for standing past of our law to and future stand- Adjudication,” Formalist 89 Cornell L.Rev. ing decisions of the federal court decisions (2004) (“[SJtanding doctrine nev- grounded fundamentally that are in a differ- applied consistently, many er been critics jurisprudential ent soil. noted.”). frequently have Moreover, going in-depth without into an standing with has wrestled law, complex of this area of suffice discussion many up contexts. have issues We come say it to that the recent federal decisions principles with some sound decisions and standing seriously ques- area have been applied law that our courts have without many examples tioned scholars. For noticeable trauma or drama to evaluate the criticism, Mendelson, Joseph, see See, often-competing concerns this area. Standing? “Should Animals Have A Review e.g., the discussion and cases cited in State ex Act,” Standing Under the Animal Welfare Sanders, Leung rel. (1997) (criti- 24 B.C. Envtl. Aff. L.Rev. 795 curiam). (per S.E.2d 203 The con- cizing denying per- federal cases currence lists some of our other decisions in abuse); seeking prevent sons animal Mila- area; notably, the concurrence iden- ni, Adam, “Wheelchair Users Who Lack error, inconsistency, inadequacy tifies Standing: Another Procedural Threshold past rulings analytical of our for- Blocking Enforcement of Titles II and III of mulations. ADA,” ports any adopt need this Court to discrimination); Sheldon, Karin, “Steel Com- additional Procrustean formulation to ad- pany v. Citizens a Better Environment: dress issues. Satisfaction,” Psychic Citizens Can’t Get No (1998) (criticizing Accordingly, Su- I concur. Tul.Envtl.LJ.

(Filed 15, 2004) July 39 Wake Forest L.Rev. notes deny- (criticizing 61-83 federal cases Simply put, argument sup- no evidence or ing standing persons challenging disability

Case Details

Case Name: State Ex Rel. Abraham Linc. Corp. v. Bedell

Court Name: West Virginia Supreme Court

Date Published: Jul 15, 2004

Citation: 602 S.E.2d 542

Docket Number: 31538

Court Abbreviation: W. Va.