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Charleston, W.Va. (August 4, 2022) – A federal
judge in the U.S. District Court for the Northern District of West
Virginia has dramatically changed the landscape for employers to
litigate against personal injury and wrongful death claims by
employees. In a recent matter, the plaintiff brought a deliberate
intent action under West Virginia Code § 23-4-2 against his
employers for injuries that he allegedly suffered while working as
a coal miner. He contended that the injuries were caused by unsafe
workplace and dangerous mining activities.
The employers filed a motion requesting leave to assert the
affirmative defense of comparative fault pursuant to 2015 statutory
revisions to West Virginia’s comparative negligence law –
West Virginia Code § 55-7-13a et seq. The employee opposed the
motion, citing futility because employers were prohibited from
asserting comparative fault as an affirmative defense in deliberate
The Chief Judge issued a ruling on July 26, 2022, determining
that a plain reading of the statute revealed that the West Virginia
legislature explicitly manifested that the comparative fault theory
applied to all causes of action, including deliberate intent
actions brought under West Virginia Code § 23-4-2. The ruling
is very significant because it opens the door for employers to
argue, among other things, that employees violated their own
training and created the unsafe working condition. Under existing
West Virginia comparative negligence law, a claimant is completely
barred from recovery if determined to be 51% or more at fault. The
ruling will help level the playing field for employers in the
courts of West Virginia.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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