Stover et al v. Matthews Trucking, Inc. et al

Filing 52

MEMORANDUM OPINION AND ORDER granting Robert C. Matthew's 19 MOTION to Dismiss; denying Matthews Trucking, Inc.'s 21 MOTION to Dismiss and 36 MOTION for Summary Judgment. Signed by Judge Joseph R. Goodwin on 12/9/2011. (cc: attys; any unrepresented party) (cbo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

CHARLES STOVER, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:11-cv-00180

MATTHEWS TRUCKING, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are the defendant Robert C. Matthew’s Motion to Dismiss
[Docket 19] and the defendant Matthews Trucking, Inc.’s Motion to Dismiss [Docket 21], which
has been converted into a Motion for Summary Judgment [Docket 36]. For the reasons set forth
below, the court GRANTS Robert C. Matthew’s Motion to Dismiss and DENIES Matthews
Trucking, Inc.’s Motion to Dismiss and Motion for Summary Judgment.

I.

Background
The plaintiff, Charles Stover (“Stover”), was a long-distance truck driver employed by

Matthews Trucking, Inc. (“Matthews Trucking”). Stover and his wife, Rhonda Stover, are
residents of Logan County, West Virginia, and Matthews Trucking is a Pennsylvania corporation
that transports mail in several states for the U.S. Postal Service. According to the Complaint, on
or about March 27, 2009, Stover was delivering mail to the post office in Charleston, West
Virginia. As he opened the rear door of the truck, the tensioners on the tension cable jammed
and Stover’s hand caught in the door handle, which caused him to fall to the ground. Stover
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suffered injuries to his neck, spine, and shoulders. He alleges that these injuries have resulted in
“great pain and suffering to mind and body.” (Compl. [Docket 1], at ¶ 25.)
Charles and Rhonda Stover filed their Complaint on March 21, 2011. It alleges a
deliberate intent cause of action under West Virginia Code § 23-4-2 against Matthews Trucking
and its president, Robert C. Matthews (“Matthews”), on behalf of Charles Stover, and loss of
consortium on behalf of Rhonda Stover. On July 15, 2011, Matthews and Matthews Trucking
each filed a Motion to Dismiss. Because matters outside the pleadings were presented with
Matthews Trucking’s Motion to Dismiss, the court ordered that the Motion to Dismiss be treated
as a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 12(d). A
hearing was held on November 8, 2011. These matters have been fully argued and briefed and
are now ripe for review.
II.

Matthews Trucking’s Motion for Summary Judgment
A. Standard of Review
To obtain summary judgment, the moving party must show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(a). In considering a motion for summary judgment, the court will not weigh the
evidence and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson,

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477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of
proof on an essential element of his or her case and does not make, after adequate time for
discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a
mere scintilla of evidence in support of his or her position.

Anderson, 477 U.S. at 252.

Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818
F.2d 1126, 1128 (4th Cir. 1987); Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985), abrogated on other grounds, 490 U.S. 228 (1989).
B. Discussion
Employers in West Virginia who subscribe and pay into the West Virginia Workers’
Compensation Fund are “not liable to respond in damages at common law or by statute for the
injury or death of any employee, however occurring.” W.VA. CODE § 23-2-6. However, this
immunity is lost “if the employer or person against whom liability is asserted acted with
‘deliberate intention.’” W.VA. CODE § 23-4-2(d)(2). To bring a deliberate intent cause of action,
both the employer and employee must be subject to the West Virginia Workers’ Compensation
Act (“the Act”). W. VA. CODE § 23-2-1(a); W. VA. CODE § 23-2-1a. Matthews Trucking asserts
that Stover is not subject to the Act because Matthews Trucking is a Pennsylvania corporation
that is not licensed to do business in West Virginia and Stover worked 80 percent of his shift
outside of West Virginia. The plaintiffs claim that there remain material issues of fact that
should be decided by a jury.
The Act provides that:
[A]ll persons, firms, associations and corporations regularly employing another
person or persons for the purpose of carrying on any form of industry, service or
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business in this state, are employers within the meaning of this chapter and are
required to subscribe to and pay premium taxes into the workers’ compensation
fund for the protection of their employees and are subject to all requirements of
this chapter.
W. VA. CODE § 23-2-1(a). In addition,
Employees subject to this chapter are all persons in the service of employers and
employed by them for the purpose of carrying on the industry, business, service or
work in which they are engaged, including, but not limited to: Persons regularly
employed in the state whose duties necessitate employment of a temporary or
transitory nature by the same employer without the State.
W. VA. CODE § 23-2-1a(a)(1).
In Van Camp v. Olen Burrage Trucking, Inc., the Supreme Court of Appeals of West
Virginia found that the defendant was not an employer required to subscribe to the Workers’
Compensation Fund. 184 W. Va. 567, 570 (1991). The court explained:
[T]he following factors are dispositive of the issue of whether an employer must
subscribe to the Fund pursuant to W. Va. Code § 23-2-1: (1) whether the
employer obtained authorization to do business in West Virginia; (2) whether the
employer operates a business or plant or maintains an office in West Virginia; (3)
whether the injured employee was hired in West Virginia; (4) whether the
employer regularly hires other West Virginia residents to work at a West Virginia
facility or office; and, (5) whether the employee in question worked on a regular
basis at a West Virginia facility for the employer prior to the injury at issue. If the
answer, as in this case, to each of the above questions is negative, then the
employer is not required to subscribe to the Fund as he cannot be said to regularly
employ a person for the purpose of operating “any form of industry, service or
business in the state.”
Id. The court in Van Camp found that Burrage Trucking was not authorized to do business in
West Virginia and did not own West Virginia real estate or maintain an office in West Virginia.
Additionally, Burrage Trucking had not hired employees in West Virginia. The court also noted
that Van Camp did not do any intrastate hauling. Instead:
On those few occasions when Van Camp’s employment required him to drive in
West Virginia, either his origination or destination was a West Virginia location,
but never both. Accordingly, he cannot be said to have worked for Burrage
Trucking in West Virginia on a regular basis prior to the accident at issue.
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Id. at 569-70.
In McGilton v. U.S. Xpress Enterprises, Inc., the court used these same five factors to
determine whether the plaintiff employee was subject to the Act. 214 W. Va. 600 (2003). The
court noted that “[a] key factor in this analysis is regular work by the worker in West Virginia
prior to injury, a factor originally expressed in W. Va. Code 23-2-1a covering ‘persons regularly
employed in the state.’” Id. at 603. In McGilton, the plaintiff, a West Virginia resident, was
employed as a truck driver by an Ohio corporation and injured in Texas. The court explained
that:
Although the appellants suggested that he parked his truck in West Virginia
between runs and that he might have occasionally made deliveries inside the state,
the evidence shows that the overwhelming bulk of his activity occurred outside
the state, and, in this Court’s opinion, it cannot be said that he was regularly
employed within the state prior to his injury, within the meaning of West Virginia
law, or that his employment out of state was “temporary,” so as to entitle him to
benefits of West Virginia’s Workers’ Compensation Act.
Id. at 603-04.
Applying these tests to the instant case, I must determine whether Matthews Trucking
was required to subscribe to the Fund and whether Stover is subject to the Act. The following
facts are undisputed: (1) Matthews Trucking is not authorized to do business in West Virginia;
(2) Matthews Trucking does not operate a business or plant or maintain an office in West
Virginia;1 (3) Stover was hired over the telephone, while he was in his home in West Virginia
and the employer called from Pennsylvania; (4) Matthews Trucking has forty employees total
and hired three West Virginia residents as employees, and it does not advertise positions in West
Virginia; and (5) Stover spent 80 percent of each daily shift transporting mail outside of West

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At the hearing, the plaintiff’s counsel maintained that Matthews Trucking rents a lot in Southridge and drops off
and picks up mail every day in Charleston, so a jury could conclude from this that it was operating a business in
West Virginia.

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Virginia; more specifically, Stover began each shift at a lot in Southridge where the truck was
parked overnight; he spent approximately fifteen minutes at the Postal and Distribution Center in
Charleston, West Virginia, and then he drove on Interstate 64 West toward Huntington, and
spent the remainder of his shift in Kentucky and Tennessee.
As noted earlier, “[a] key factor in this analysis is regular work by the worker in West
Virginia prior to injury.” McGilton, 214 W. Va. at 603. The importance placed on this factor by
the court in McGilton comports with the statutory language, which states that: “All . . .
corporations regularly employing another person or persons,” W. VA. CODE § 23-2-1(a), and
“Persons regularly employed in the State,” W. VA. CODE § 23-2-1a, are subject to the Act. I
FIND that Stover regularly worked in West Virginia, thereby requiring Matthews Trucking to
subscribe to the Workers’ Compensation Fund and subjecting Stover to the Act. At the hearing,
defense counsel cited McGilton to suggest that “regular” employment should be defined as
employment when the “bulk,” or more than half, of an employee’s work occurs within the state.
“Regular,” however, is defined as “steady or uniform in course, practice, or occurrence: not
subject to unexplained or irrational variation,” or “returning, recurring, or received at stated,
fixed, or uniform intervals.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1913 (2002).
For example, a truck driver may regularly work in several states if the driver drives through these
states on a recurring basis, without working the majority of his time in any given state. To say
that regularity equates to more than 50 percent is to stretch the word’s meaning beyond
plausibility. In McGilton, the plaintiff worked a majority of his time out of the state and did not
work in West Virginia on a steady basis. In the instant case, however, Stover began each shift in
West Virginia.

Each shift required him to pick up his truck in West Virginia, spend

approximately fifteen minutes at the Postal and Distribution Center in West Virginia, and drive

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through West Virginia to Kentucky. This constitutes regular employment in West Virginia, even
though he did not work the majority of any given work day within the state. Therefore, I FIND
that Stover is subject to the Act and eligible to bring a deliberate intent cause of action under it,
and DENY Matthews Trucking’s Motion for Summary Judgment. 2
III.

Robert C. Matthews’s Motion to Dismiss
A. Standard of Review
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or

pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil
Procedure 8 requires that a pleading contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” FED. R. CIV. P. 8. As the Supreme Court reiterated in
Ashcroft v. Iqbal, that standard “does not require ‘detailed factual allegations’ but ‘it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.’” 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) for the
proposition that “on a motion to dismiss, courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation’”). A court cannot accept as true legal conclusions in
a complaint that merely recite the elements of a cause of action supported by conclusory
statements. Iqbal, 129 S. Ct. at 1949-50. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. at 1949 (quoting Twombly, 550 U.S. at 570). To achieve facial plausibility, the
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I note that under W. Va. Code § 23-2-1c, parties can agree to be bound by the laws of another state and the rights
under the laws of that state become the exclusive remedy against the employer, regardless of where the injury
occurred. In the instant case, no such agreement existed between Stover and Matthews Trucking.

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plaintiff must plead facts that allow the court to draw the reasonable inference that the defendant
is liable, and those facts must be more than merely consistent with the defendant’s liability to
raise the claim from merely possible to probable. Id.
In determining whether a plausible claim exists, the court must undertake a contextspecific inquiry, “[b]ut where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that
the pleader is entitled to relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). A complaint must
contain enough facts to “nudge[] [a] claim across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
B. Discussion
The immunity provided for by the Act extends to officers and employees of such
employers when they are “acting in furtherance of the employer’s business and [do] not inflict an
injury with deliberate intention.” W. VA. CODE § 23-2-6a. A plaintiff can prevail on the
deliberate intent cause of action in two ways. First, a plaintiff can prove “that the employer or
person against whom liability is asserted acted with a consciously, subjectively and deliberately
formed intention to produce the specific result of injury or death to an employee.” W. VA. CODE
§ 23-4-2(d)(2)(i). Alternatively, a plaintiff can prove the following five elements:
(A) That a specific unsafe working condition existed in the workplace which
presented a high degree of risk and a strong probability of serious injury or
death;
(B) That the employer, prior to the injury, had actual knowledge of the existence
of the specific unsafe working condition and of the high degree of risk and the
strong probability of serious injury or death presented by the specific unsafe
working condition.
(C) That the specific unsafe working condition was a violation of a state or federal
safety statute, rule or regulation, whether cited or not, or of a commonly
accepted and well-known safety standard within the industry or business of
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the employer, as demonstrated by competent evidence of written standards or
guidelines which reflect a consensus safety standard in the industry or
business, which statute, rule, regulation or standard was specifically
applicable to the particular work and working condition involved, as
contrasted with a statute, rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A)
through (C), inclusive, of this paragraph, the employer nevertheless
intentionally thereafter exposed an employee to the specific unsafe working
condition; and
(E) That the employee exposed suffered serious compensable injury or
compensable death as defined in section one [§ 23-4-1], article four, chapter
twenty-three whether a claim for benefits under this chapter is filed or not as a
direct and proximate result of the specific unsafe working condition.
W. VA. CODE § 23-4-2(d)(2)(ii) (emphasis added). The Stovers rely solely on § 23-4-2(d)(2)(ii).
Matthews asserts that this provision applies only to employers, and not to individual officers or
co-workers, as evidenced by the statutory language within § 23-4-2(d)(2)(ii). In contrast, the
Stovers point to the introductory language that refers to both employers and persons.3 The
Supreme Court of Appeals of West Virginia has not reached this question, and the case law
diverges.
The plaintiffs cite Weekly v. Olin Corp., 681 F. Supp. 346 (N.D. W. Va. 1987) for
support. In that case, Robert Weekly brought suit against his out-of-state employer and Robert
Higgins, a citizen of West Virginia, alleging a deliberate intent cause of action. Id. at 347. In
determining whether Higgins was fraudulently joined, the court held that Weekly stated a claim
against Higgins sufficient to prevent remand. Id. at 352. Addressing the applicability of § 23-42(d)(2)(ii) to co-workers, the court first noted that while § 23-4-2(d)(2)(i) applies to an
“employer or person,” § 23-4-2(d)(2)(ii) only uses the word “employer.” Id. at 351-52. The

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The introductory language states: “The immunity from suit provided under this section and under sections six
[§ 23-2-6] and six-a [§23-2-6a], article two of this chapter may be lost only if the employer or person against whom
liability is asserted acted with ‘deliberate intention’.” W. VA. CODE § 23-4-2(d)(2).

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court, however, found the plaintiff’s construction of the statute—that a plaintiff can bring a cause
of action against a co-worker under § 23-4-2(d)(2)(ii)—“more plausible,” relying on the
introductory language.
The plaintiffs also point to a 2006 Memorandum Opinion and Order that I wrote granting
a motion to remand. Burch v. Monarch Rubber Co., No. 2:06-cv-760 (S.D. W. Va. Dec. 8,
2006). In that case, the plaintiff, David Burch, brought a deliberate intent cause of action under
§ 23-4-2(d)(2)(ii) against his employer and his supervisor, Mr. Greathouse. In denying the
motion to remand, I explained that “[t]he court must examine West Virginia law to determine
whether there is ‘no possibility’ that the plaintiff would be able to establish a cause of action
against Mr. Greathouse, the in-state defendant.”

Id. at 3. (emphasis added).

Noting the

difference in language in the introduction and the elements in § 23-4-2(d)(2)(ii), I explained that
it is possible for the introductory language to be interpreted to apply to both subsections. Id. at 5.
I also pointed to the Weekly decision and held that although I did not need to find that the statue
applies to employees, there was a “glimmer of hope” for the plaintiff’s claim against Mr.
Greathouse. Id. at 6.
A number of subsequent decisions have denied claims of fraudulent joinder and found
that there is a possibility that the plaintiff can establish a cause of action against a co-worker
under § 23-4-2(d)(2)(ii).

Bledsoe v. Brooks Run Mining Co., No. 5:11-cv-464, 2011 WL

5360042, at *3 (S.D. W. Va. Nov. 4, 2011) (Berger, J.); Williams v. Harsco Corp., No. 1:10-cv206, 2011 WL 3035272, at *3 (N.D. W. Va. July 22, 2011) (Keeley, J.); Hoffman v.
Consolidation Coal Co., No. 1:10-cv-83, 2010 WL 4968266, at *4 (N.D. W. Va. Dec. 1, 2010)
(Stamp, J.).

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In support of its Motion to Dismiss, the defendant relies on Evans v. CDX Services,
L.L.C., where the court found that a non-diverse co-employee was fraudulently joined. 528 F.
Supp. 2d 599 (S.D. W. Va. 2007) (Johnston, J.). In Evans, the court recognized the Weekly
decision and its reliance on the introductory language. Id. at 604-05. But it disagreed with the
conclusion in Weekly. In doing so, the court explained that “‘when the language . . . is clear and
unambiguous and the legislative intent is clearly disclosed by such language, it is the duty of the
courts to apply such a statute according to the legislative intent therein clearly expressed.’” Id. at
605 (citing Roberts v. Consolidation Coal Co., 208 W. Va. 218, 233 (2000)). The court then
cited another West Virginia Supreme Court of Appeals case, stating that two statutes “must be
read in a fashion to give effect to all of their terms, if possible. No part of a statute is to be
treated as meaningless and we must give significance and effect to every section, clause, word or
part of a statute.” Id. (citing Savilla v. Speedway Superamerica, L.L.C., 219 W. Va. 758, 763
(2006)). Accordingly, the court found that § 23-4-2(d)(2)(ii) applies only to actions against
employers and dismissed the individual co-defendant. See also Hager v. Cowin & Co., Inc., No.
2:10-cv-1138, 2011 WL 2175075, at *3 (S.D. W. Va. June 3, 2011) (Johnston, J.); King v. Sears
Roebuck & Co., No. 1:10-1024, 2011 WL 672065, at * 4 (S.D. W. Va. Feb. 14, 2011) (Faber, J.).
In the instant case, I examine § 23-4-2(d)(2)(ii) in the context of a motion to dismiss,
rather than a motion to remand alleging fraudulent joinder. I do not determine, like I did in the
fraudulent joinder context in Burch v. Monarch Rubber Co., whether there is a “glimmer of
hope” that the plaintiff could maintain a cause of action. Instead, I must determine whether the
statutory provision in fact applies to “persons” or only to employers. See Cartwright v. Superior
Well Servs., Inc., No. 1:11-cv-298, 2011 WL 4528251, at * 3 (S.D. W. Va. Sept. 28, 2011)
(Faber, J.) (holding that § 23-4-2(d)(2)(ii) applies only to employers and dismissing the suit

11

against the individual defendant).

I find Judge Johnston’s reasoning in Evans persuasive.

Looking to the statutory language and giving effect to each section and word, I hold that
Matthews is “not subject to suit under § 23-4-2(d)(2)(ii) because that subsection only provides
for actions against employers.”

Evans, 528 F. Supp. 2d at 605.

Therefore, I GRANT

Matthews’s Motion to Dismiss. The court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.

ENTER:

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December 9, 2011