You purchased your workers’ compensation insurance and made all premium payments when due, so your business cannot be sued for injuries occurring in the workplace, right?  Unfortunately, this is not always the case. West Virginia law allows an injured worker to sue his or her employer for excess damages when an injury results from the “deliberate intention” of the employer.

Ah, you would never deliberately cause an employee to be injured, so you are safe, right?  Again, not so fast. “Deliberate intention” has two forms. First, and most obviously, an employee may sue for excess damages when their workplace injury results from the actual, specific intent of the employer. But he or she may also pursue a suit for excess damages under certain other specific circumstances. The law provides that an injury is a result of “deliberate intention” when:  (1)  A specific unsafe working condition exists in the workplace that presents a high degree of risk and strong probability of serious injury or death; (2) the employer has a subjective realization and an appreciation of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition; (3) the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, or of a commonly accepted and well-known safety standard within the industry or business of the employer; (4) the employer nevertheless exposed an employee to the specific unsafe working condition intentionally; and (5) the employee exposed suffered serious injury or death as a direct and proximate result of the specific unsafe working condition. See W.Va. Code Section 23-4-2.

Obviously, there are many specific things that a plaintiff must prove in order to succeed in a claim for “deliberately” caused workplace injuries. However, even if a claim has little or no merit, such cases are often very expensive to defend. There are usually many witnesses involved, requiring extensive pretrial discovery, and furthermore, experts are usually required to address issues of whether a particular condition was unsafe, whether it presented a high degree of risk and strong probability of serious injury or death, and whether the condition violated a particular safety statute or regulation, or an accepted and well-known safety standard or practice within the employer’s particular industry. 

You can purchase separate insurance, known as “Employer’s Liability” coverage, to protect your business from such suits.  Currently, BrickStreet Mutual Insurance Company is the sole provider of workers’ compensation insurance in West Virginia, and it also offers separate coverage for “deliberate intent” suits, but this coverage must be purchased separately. Some other insurance carriers also write “deliberate intent” coverage. We recommend that you inquire of your insurance agent whether you currently have Employer’s Liability coverage, and if not, obtain a quote and determine whether such coverage would be economical for your business. Also, if you would like Jenkins Fenstermaker, PLLC or any other particular law firm to defend your business in the event of a claim or suit, inform your agent before purchasing the policy, as insurance carriers sometimes have established relationships with other law firms, but may be willing to negotiate with you to make sure your business is represented by your preferred lawyers. Please do not hesitate to contact us if you have any questions about “deliberate intent” claims, Employer’s Liability coverage, or any other issues related to workplace injuries.