EDITORIAL: Clarify the meaning of “deliberate intent”

Jan. 23--Our state workers' compensation arrangement is a compromise. Companies make insurance payments to the system, and workers or their families get money from the pool of funds to compensate them for injuries suffered on the job.

In exchange for paying into the system, employers get legal immunity. Injured employees can't sue them. It's a system that works well, in West Virginia as in other states.

There's one exception to employer immunity: When an employee is killed or injured as a result of the employer's "deliberate intent," the employee or his family may sue the employer in addition to collecting workers' compensation.

The exception is intended to be very narrow. West Virginia law requires strict categories of proof to show deliberate intent. Under the law, mere negligence isn't enough. Neither is "willful, wanton or reckless misconduct."

To win a lawsuit, the employee must also show that the employer had "actual knowledge" of an unsafe condition -- not merely that the employer should have known about it.

It's a high bar. And it's a bar the Legislature -- under Democratic control -- has clarified more than once.

The problem is that the West Virginia Supreme Court has ignored the plain words of the law. In its decisions, it has chipped away at the concept of deliberate intent, trying to create more ways for employees to sue.

The most egregious case was in 2013, when the court, in a 3-2 decision, ignored the Legislature and held that the "actual knowledge" provision of the law didn't require actual knowledge.

Justice Allen Loughry wrote a vigorous dissent. "It is unclear at this point what more the Legislature must do to make clear its intent to a majority of this Court so as to prevent further judicial erosion of our 'deliberate intent' standards," wrote Loughry, who was joined by Justice Brent Benjamin.

The Legislature is now trying, yet again, to tell the court that "deliberate intent" means deliberate intent. The trial bar has produced accident victims with sympathetic stories, but their quarrel is with the law as it's currently written. The proposed changes are merely clarifications.

The Legislature should pass HB 2011 and remind the court that the law means what it says. Perhaps the message will sink in this time.

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