- posted: May 15, 2019
In general, employers in West Virginia that pay premiums into the state workers’ compensation fund are immune from any legal action on the basis of negligence. There are some exceptions to this rule, however, including the deliberate intent exception.
Under this exception, if an employee can prove the employer acted with “deliberate intent” to hurt the employee, the employer is not eligible for workers’ compensation immunity.
In a deliberate intent lawsuit, it is not enough for the employee (or his or her estate) to prove the employer was negligent — there is a much higher standard than that. Instead, there are two methods by which the employee can succeed in the case:
- “Actual, specific intent to cause injury” — The employee must be able to prove the employer acted with what is described in West Virginia code as a “consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to the employee.” This is very different from a claim of negligence, gross negligence or reckless misconduct. The element of intent here separates it from these other, more common cases.
- The “Five-Part Test” — The second means by which an employee can establish deliberate intent requires every one of the following elements to exist:
- An unsafe working condition that posed significant risk and strong probability of serious injury
- Actual knowledge by the employer of the unsafe working condition before the injury and actual knowledge that it posed a strong probability of serious injury resulting from that condition
- The condition was a violation of a state or federal safety law or other accepted well-known consensus safety standard
- A purposeful, intentional exposure of the employee to the unsafe condition
- A serious “compensable” injury that was directly caused by the unsafe working condition
A failure to prove any of these five elements is considered grounds for summary judgment.
The construction industry is one of the most dangerous fields of work in the United States when it comes to workplace injuries and deaths. It is important for construction companies to retain skilled legal counsel to protect their businesses if an accident occurs on a job site.
For more information about deliberate intent lawsuits and workers’ compensation claims, contact an experienced West Virginia attorney at Pullin, Fowler, Flanagan, Brown & Poe, PLLC. Call us at 304-344-0100 or contact us online to schedule an initial consultation.