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 intent actions.

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.

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