November 09, 2023


Until 2015, employers in West Virginia were not able to rely upon contributory negligence or comparative fault of the plaintiff as a defense in deliberate intent actions filed under W. Va. Code § 23-4-2.  Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000).  In 2013, the Supreme Court of Appeals clarified that an employer in a deliberate intent action brought pursuant to West Virginia Code § 23–4–2(d)(2)(ii)(2010) may introduce evidence that is relevant to the issues of whether an employee's conduct created a specific unsafe working condition; whether the employer had actual knowledge of that alleged specific unsafe working condition; and whether the injuries at issue were the proximate result of that specific unsafe working condition.  Syl. Pt. 4, Master Mechanical Insulation, Inc. v. Simmons, 232 W.Va. 581, 753 S.E.2d 79 (2013).  While the Court’s decision in Master Mechanical opened the door for employers to introduce factual evidence of the plaintiff’s improper conduct to defend the elements of a deliberate intent claim, this decision did not permit plaintiffs to be placed on the verdict form for allocation of fault under comparative fault principles.

In 2015, the West Virginia Legislature made major changes to this State's general liability statute, W. Va. Code § 55-7-1-31.  The changes abolished joint and several liability and instituted a new modified comparative fault system.  See W. Va. Code § 55-7-13a, -13b, -13c, -13d.  Under the amended statute, liability is several and defendants are responsible for only their proportion of fault.  As the Supreme Court of Appeals of West Virginia has noted, these relatively new statutes “purport to fully occupy the field of comparative fault and the consideration of ‘the fault of parties and nonparties to a civil action.’”  Modular Bldg. Consultants of W. Va., Inc. v. Poerio, Inc., 235 W.Va. 474, 486, 774 S.E.2d 555, 567 n.12 (2015).

A plain reading of the amended statute suggests that the Legislature intended that comparative fault principles apply to all civil causes of action in West Virginia, including deliberate intent actions against employers.  W. Va. Code § 55-7-13a(b) provides:

In any action based on tort or any other legal theory seeking damages for personal injury, property damage, or wrongful death, recovery shall be predicated upon principles of comparative fault and the liability of each person, including plaintiffs, defendants and nonparties who proximately caused the damages, shall be allocated to each applicable person in direct proportion to that person's percentage of fault. (emphasis added).

“Comparative fault” is defined as “the degree to which the fault of a person was a proximate cause of an alleged personal injury or death or damage to property, expressed as a percentage.”  W. Va. Code § 55-7-13a(a).  Fault is determined according to § 55-7-13c. Id.

In W. Va. Code § 55-7-13b, the Legislature defines “fault” to mean:

an act or omission of a person, which is a proximate cause of injury or death to another person or persons, damage to property, or economic injury, including but not limited to, negligence, malpractice, strict product liability, absolute liability, liability under section two, article four, chapter twenty-three of this code [the deliberate intent statute] or assumption of risk.

Notably, nowhere in the amended statute does the Legislature explicitly exempt deliberate intent claims from these principles.  Rather, the Legislature explicitly states that these comparative fault principles apply to “any action based on tort or any other legal theory.”

There is not yet any reported decision from the Supreme Court of Appeals of West Virginia that holds that comparative fault principles apply to deliberate intent actions.  However, the Honorable Thomas Kleeh, federal district judge in the Northern District of West Virginia, has issued a memorandum opinion in the case of Woodford v. Arch Coal, Inc., 2022 WL 2961573, that could support the argument that comparative fault principles do apply in deliberate intent actions in West Virginia.  At the very least, the Woodford opinion does not foreclose the possibility that comparative fault may be a valid defense in deliberate intent actions.

In Woodford, the defendant filed a motion to amend its Answer to include the affirmative defense of comparative fault in a deliberate intent case.  The plaintiff opposed the motion citing Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000) for the proposition that such principles do not apply in deliberate intent cases.  However, Judge Kleeh rejected the plaintiff’s reliance on Roberts stating, “This case too is unsupportive of Plaintiffs’ position.  A plain reading of the statute now reveals the West Virginia Legislature explicitly manifested that the comparative fault theory applies to all causes of action, including actions brought under West Virginia Code § 23-4-2.”  Having rejected the plaintiff’s reasoning and after a detailed analysis of the amended 2015 statute, Judge Kleeh permitted the defendant to amend its Answer to include the affirmative defense of comparative fault in a deliberate intent case.

In reaching his decision, Judge Kleeh summarizes his analysis in Woodford as follows:

Again, this Court does not perceive W. Va. Code § 55-7-13a to ‘purport’ to address comparative fault issues presented in this case.  Instead, this Court believes these sweeping statutory provisions completely govern civil actions seeking recovery for the actionable negligence of others. Because comparative fault is contemplated within the language of W. Va. Code § 55-7-13a, and no prejudice to Plaintiffs exist, Defendants are granted leave to assert their defense.

While the applicability of comparative fault principles to deliberate intent actions against employers in West Virginia has not yet been expressly decided by the Supreme Court of Appeals, the wind certainly does appear to be blowing in that direction.  Indeed, one could argue that it would take incredible analytical gymnastics to read the amended 2015 statute any other way.  Citing the plain language of the amended 2015 statute, employers should be mindful of this potential new defense in deliberate intent actions and should be asserting comparative fault as an affirmative defense in responsive pleadings.

If you have any questions, please contact Cy Hill, Esq. at or (304) 341-0500.


The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.