Stanley v. Sewell Coal Co.

285 S.E.2d 679, 169 W. Va. 72
CourtWest Virginia Supreme Court
DecidedJanuary 8, 1982
Docket14857
StatusPublished
Cited by84 cases

This text of 285 S.E.2d 679 (Stanley v. Sewell Coal Co.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stanley v. Sewell Coal Co., 285 S.E.2d 679, 169 W. Va. 72 (W. Va. 1982).

Opinions

[73]*73Miller, Justice:

Kenneth E. Stanley appeals from a judgment of the Circuit Court of Nicholas County dismissing his retaliatory discharge action against Sewell Coal Company (Sewell) on the ground that it was time-barred by the one-year limitation period of W. Va. Code, 55-2-12(c). Stanley contends that his action sounds in contract and that the applicable limitation period is therefore five years under W. Va. Code, 55-2-6. Alternatively, Stanley argues that his action sounds in tort and should take the two-year limitation period of W. Va. Code 55-2-12(b), since his action can be considered as one for fraud and deceit which is given survivability under W. Va. Code, 55-7-8a.

I.

Stanley was an employee at-will with none of the terms or conditions of his employment being the subject of a written contract. According to the allegations of his complaint, Stanley was employed by Sewell as a section foreman from January 14, 1975, until he was discharged effective January 12, 1977. Stanley alleged that he and another employee were injured in an industrial accident in the spring of 1976. He also alleged that Sewell falsely reported the accident to the Mine Enforcement Safety Administration as a no lost-time accident, and advised him that he could miss work when necessary because of the occupational injuries.

On January 12, 1977, Stanley became ill, was unable to work, and consulted a physician who prescribed a drug which interfered with his ability to perform his duties. He notified Sewell that he would be unable to return to employment until he had completed the prescribed course of medication and had been released by his physician. When he returned to work on January 24, 1977 and presented his doctor’s certification, Stanley was advised that he was being discharged from employment for excessive absenteeism. Stanley averred that in contravention of substantial public policy principles, he was discharged by Sewell in an attempt to prevent discovery of its false reporting of accidents to the Mine Enforce[74]*74ment Safety Administration. As relief, Stanley sought to recover his lost wages and future loss of earnings due to a decreased income in his new employment.1

II.

Stanley’s contention that his action sounded in contract was resolved in Shanholtz v. Monongahela Power Company, 165 W. Va. 305, 270 S.E.2d 178, 182 (1980). There we held that an action brought by an employee at-will on the ground that he was discharged in contravention of some substantial public policy principle sounded in tort and was subject to the limitation periods embodied in W. Va. Code, 55-2-12.2 This type of cause of action has sometimes been called a retaliatory or wrongful discharge.

Although Shanholtz recognized that a “tort action must be brought within one or two years after the cause of action shall have accrued,” 270 S.E.2d at 181, it was unnecessary for the Court to decide whether the one- or two-year limitation period was applicable because the complaint in that case had been filed more than two years after the cause of action accrued. That question is squarely presented by this appeal.

Our consideration of the statute of limitations question is controlled by Snodgrass v. Sisson’s Mobile Home Sales, Inc., 161 W. Va. 588, 244 S.E.2d 321 (1978), where we made an analysis of our limitation of action statute, W. Va. Code, 55-2-12, and our survivability statute, W. Va. Code, 55-7-8(a), and concluded that these statutes had to be read in pari materia since they “were adopted as a part of a [75]*75common plan.”_ W. Va. at _, 244 S.E.2d at 324.3 We went on to state in Snodgrass that:

“[T]he provisions of subsection (a) of W.Va. Code, 55-7-8a, statutorily create survivability by the following language:
“ ‘In addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable.’ “The effect of this subsection is to create statutory survivability for the causes of action contained therein to parallel the same causes of action set out in W.Va. Code, 55-2-12(a) and (b).” _ W. Va. at _, 244 S.E.2d at 324-25.

Sewell, however, asserts that the retaliatory discharge cause of action created in Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), cannot be considered as a species of fraud and deceit, because if such a cause of action were founded upon fraud and deceit this Court simply could have utilized the common law action to create the remedy. This argument misconceives the underlying rationale of Harless, which is expressed in its single syllabus:

“The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.”

In Harless, we adopted the view of a number of other courts that concluded an employer may be liable for firing an employee for the reason that the employee chose to exercise some substantial public policy principle, and that [76]*76such a firing is founded in bad faith or maliciousness. We cited Monge v. Beebe Rubber Co., 114 N.H. 130, 133, 316 A.2d 549, 551 (1974), where the court spoke in terms of “a termination ... which is motivated by bad faith or malice or based on retaliation ...” We also referred to Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251, 1257 (1977), where the court spoke in terms of “an implied covenant of good faith and fair dealing” in connection with at-will employment. In note 4 of Harless, we listed a number of law review articles covering this subject. Most of these articles clearly favor the interposition of some equitable principles to prevent a discharge that contravenes some substantial public policy principle.

While it is true that we did not expressly utilize fraud concepts in Harless, its underlying rationale is clearly compatible with our general principles of fraud. Fraud has been defined as including all acts, omissions, and concealments which involve a breach of legal duty, trust or confidence justly reposed, and which are injurious to another, or by which undue and unconscientious advantage is taken of another. See, Dickel v. Smith, 38 W. Va. 635, 18 S.E. 721 (1893); 8B Michie’s Jurisprudence, Fraud and Deceit §§ 1 and 2 (1977); 37 Am.Jur.2d Fraud and Deceit § 1 (1968).

Fraud may be either actual or constructive. The word “fraud” is a general term and construed in its broadest sense embraces both actual and constructive fraud.

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285 S.E.2d 679, 169 W. Va. 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanley-v-sewell-coal-co-wva-1982.