Mooney v. Eastern Associated Coal Corp.

326 S.E.2d 427, 174 W. Va. 350

• Court: West Virginia Supreme Court
• Decided: February 6, 1985
• Docket: 15931, 15932
• Status: Published

Opinions

HARSHBARGER, Justice:

These are appeals of a final judgment of the Circuit Court of Boone County in a civil suit involving the deliberate intent provisions of our former Workers’ Compensation Act, W.Va.Code, 23-4-2 [1969],¹ that we discussed at length in Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). Upon a jury verdict of $850,000 for Sandra K. Mooney and her daughter, the court awarded $35,062.00 damages, plus costs. Eastern Associated Coal Corporation claims that there was insufficient evidence of deliberate intent to support any verdict, and Mrs. Mooney pleads that the trial court erroneously reduced the jury award by the value of workers’ compensation benefits to which she and her daughter are entitled, and wrongly calculated those benefits.

On February 2, 1977, Roger Dale Mooney, a twenty-eight-year-old coal miner employed by Eastern, died of injuries he sustained in a roof fall two days before. His widow and their seven-year-old daughter, Melissa, were awarded workmen’s compensation dependents’ death benefits per W.Va.Code, 23-4-10.

In her civil suit for compensatory and punitive damages for Eastern’s willful, wanton and reckless misconduct in directing her husband to work on premises it knew were extremely dangerous and violated federal and state safety standards, causing his death, the jury was not permitted to hear evidence about worker’s compensation benefits. It returned a verdict against Eastern specifying that $350,000 was compensatory damages for Mrs. Mooney and $500,000 was compensatory damages for Melissa, but awarding no punitive damages.

Thereafter, the trial judge took evidence to determine whether to reduce the jury award by the amount of the Mooneys’ compensation benefits. Both parties presented experts to testify about the present value of future benefits.

W.Va.Code, 23-4-2 provides, in pertinent part:

If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter. (Emphasis supplied.)

I.

In the Syllabus of Cline v. Joy Mfg. Co., 172 W.Va. 769, 310 S.E.2d 835 (1983), we stated the burden of proof a plaintiff carries in a Mandolidis action:

Under Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978), it is essential, in order for an injured employee to recover, that the employer’s misconduct must be of an intentional or wilful, wanton and reckless character, that the employer must have knowledge and appreciation of the high degree of risk of physical harm to another created by such misconduct, and, of course, that the employer's action must be the proximate cause of the injury.

Acts that are simply negligent do not meet this test. Id.

Here, it was admitted that the roof in the section of the mine where Mooney was killed was in an extremely dangerous and hazardous condition, that there had been roof falls there both before and after the fall that killed him, including one a few days before, and that Eastern had received a number of citations for federal mine safety standards violations in that section. Most of the evidence related to measures taken by Eastern and its supervising employees to correct the safety violations and to control the condition of the roof up to the day of the fall. The principal issue was whether Eastern’s actions were so inadequate as to constitute wilful, wanton and reckless misconduct.

Our review of the voluminous trial transcript supports our conclusion that reasonable minds could differ about whether the evidence warranted a finding of deliberate intent to produce injury or death, and that the issue was properly submitted to a jury. See Weirton Savings and Loan Co. v. Cortez, 157 W.Va. 691, 203 S.E.2d 468 (1974). Accordingly, we will not reverse the jury’s verdict on liability.

II.

Mrs. Mooney contends that Eastern could not offset workers’ compensation benefits against her and her child’s damages; or alternatively, that the amount of any offset was a jury question.

The plain language of W.Va.Code, 23-4-2 evinces an intent that damages in a Mandolidis-type suit are “for excess damages” above those provided by compensation.

The statute is silent, however, about how this intent is implemented mechanically at trial. These parties have assumed that the statute contemplates an offset in mitigation of damages in the nature of a proceeding for remittitur, to be decided by the trial court after the return of the jury’s verdict. This approach has been taken by the only jurisdiction that appears to have decided the question. In Bibby v. Hillstrom, 260 Or. 367, 490 P.2d 161 (1971), the Supreme Court of Oregon concluded that a provision of that state’s workmen’s compensation law virtually identical to the above-quoted portion of W.Va.Code, 23-4-2,² required submission of any claim of offset for compensation benefits to the trial court in supplemental proceedings after jury trial on liability and the amount of the plaintiff’s total damages. The court concluded that introduction of any evidence about compensation benefits during the jury trial would be highly prejudicial to the plaintiff, since “[jjurors have humane instincts and ordinarily do not like to penalize persons for their acts, even intentional ones, when the party injured by such acts has another means of being reimbursed which will not immediately cost any individual anything.” 260 Or. at 370, 490 P.2d at 162. See also Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934).

This interpretation cannot be sustained against the plain language of W.Va.Code, 23-4-2 that provides a “cause of action ... for any excess of damages over the amount” of the plaintiff’s compensation award. Implicit is a requirement that a fact finder know what the compensation award will be.

Assessment of damages is the jury’s job. See, e.g., Kesner v. Trenton, 158 W.Va. 997, 216 S.E.2d 880 (1975); Campbell v. Campbell, 146 W.Va. 1002, 124 S.E.2d 345 (1962); Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); Legg v. Jones, 126 W.Va. 757, 30 S.E.2d 76 (1944). Unlike other instances in which the method of adjusting damages has been left to the trial court or the parties, see Groves v. Compton, 167 W.Va. 873, 280 S.E.2d 708 (1981); Butler v. Smith’s Transfer Corp., 147 W.Va. 402, 128 S.E.2d 32 (1962), in a Mandolidis action, evidence of the value of compensation benefits must be submitted to the jury with instructions that any verdict for the plaintiff shall be for damages in excess of such benefits.

Generally compensation benefits will be sums certain, and only when there are awards of death benefits and life awards extending indefinitely will a jury need to decide them to arrive at its verdict for excess damages. Juries are called upon to value future damages everyday. See, e.g., Turner v. Heston, 172 W.Va. 80, 303 S.E.2d 718 (1983); Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982); Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). There is no reason why they cannot competently determine future compensation benefits for purposes of finding damages for plaintiffs’ injuries exceeding those amounts.

III.

We should provide guidance about how the value of dependent’s death benefits may be proved.³

The principal controversy here is about the way the aggregate value of compensation benefits payable in the future should be computed. Mrs. Mooney contends that the court based its calculations on such speculative factors as the assumption that she would remain eligible to receive death benefits throughout her projected lifetime,⁴ that the state average wage would increase at a constant per an-num percentage rate throughout that period, and that she would at some point in the future become eligible to receive benefits from the disabled worker’s relief fund.⁵

Matters that can be proved with reasonable certainty by accepted scientific evidence or expert testimony, such as proof of life expectancy by reliable mortality tables or proof of expectancy of remarriage by reliable evidence, may be considered in computing the value of a compensation award for purposes of establishing the basic amount from which damages may be calculated under W.Va.Code, 23-4-2. And while there may be competent and reliable evidence upon which economic trends may be predicted, the proof here falls far short of such certainty as would sustain the calculations presented.⁶

There was evidence that in certain cases, the Workers’ Compensation Commission establishes a “reserve fund figure” that represents the Commissioner’s estimate of the total value of an award of dependents’ death benefits. There was little evidence about how this fund figure is achieved or the purpose for which it is used. If it is shown, by testimony of a qualified representative of the Commission, that such a figure or fund does exist, or is required to be set aside by a self-insured employer, and that it is calculated with reasonable certainty, it would be by far the best proof of compensation benefits for purposes of calculating excess damages under W.Va.Code, 23-4-2.⁷

This trial court reduced the entire verdict to present value. A verdict in a wrongful death action may include both pecuniary and non-pecuniary damages. Although we have never reached the issue, the general rule in most jurisdictions appears to be that while an award of pecuniary damages, such as loss of future income, should be reduced to present value, non-pecuniary damages, such as mental anguish, should not. See 22 Am.Jur.2d Damages § 108 (1965); 22 Am.Jur.2d Death § 124 (1965). On remand, the trial court should instruct the jury to reduce any pecuniary damages to present value in accordance with accepted standards, but to make no reduction for non-pecuniary losses for which they find Mrs. Mooney entitled to damages.⁸

For the reasons stated above, we conclude that the trial court erred in not submitting the issue of the value of the plaintiff’s worker’s compensation award to the jury. Accordingly, we reverse the judgment of the Circuit Court of Boone County and remand the case for a new trial on the issue of damages in accordance with the principles enunciated herein.

Affirmed in part; reversed in part; and remanded.

1 . The 1983 amendments to this provision are not in issue in this case. See 1983 W.Va.Acts, ch. 192.

2 . Or.Rev.Stat. § 656.156(2) (1983) provides:

"If injury or death results to a worker from the deliberate intention of his employer to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may take under ORS 656.001 to 656.794, and also have a cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes.”

3 . An employer has the burden of proof because, although, its right to credit for benefits paid or payable is not a remittitur, it is a reduction of an employer’s exposure to damages. See Huntington Easy Payment Co. v. Parsons, 62 W.Va. 26, 57 S.E. 253 (1907).

4 . Under W.Va.Code, 23-4-10, the eligibility of the widow of a deceased employee to receive death benefits terminates upon her remarriage. The eligibility of a dependent child to receive death benefits ordinarily terminates at age eighteen, but may continue up to age twenty-five so long as the child is a full-time student.

5 . W.Va.Code, 23-4A-1, et seq. (1981 Replacement Vol.) establishes the disabled worker’s relief fund to provide additional benefits to individuals whose monthly life award or death benefits payments fall below one-third of the state average weekly wage per month. The money comprising the fund is derived from annual transfers of funds from interest earned during the previous year on the Commission’s investments and from the assessments levied against self-insurers under W.Va.Code, 23-2-9.

6 . One of the expert witnesses projected a 9% annual increase in the state average weekly wage for the year 1980 based on his analysis of growth rate data available for the years 1973-1979. He then projected Mrs. Mooney’s entitlement to disabled workers’ relief fund benefits, which are tied to the state average weekly wage, and the amount thereof, by assuming that the average weekly wage would increase at the same annual rate for the rest of Mrs. Mooney’s life. While such a projection may be reasonably accurate for a period of one, or even several years, there was absolutely no evidence to show that the growth rate would remain constant for a period of almost fifty years, Mrs. Mooney’s projected life expectancy. Accordingly, the evidence of disabled workers’ relief fund benefits was entirely speculative.

7 . Of course, the parties may challenge the Commission’s calculations with their own competent proof.

8 . In reducing damages for loss of the decedent’s future income to present value, the total value of the compensation award should first be subtracted from the total loss of income found to have been suffered by the beneficiaries and the resulting figure reduced to present worth.