Generally, an employer is immune from civil liability under WV workers' compensation law. An injured employee who can prove deliberate intent on the employer's part, however, may pursue a separate civil action against the employer for alleged damages above and beyond the amount of workers' compensation benefits.

Limit Exposure with Experienced Legal Counsel

Workers' compensation is a distinct field in both the insurance and legal sectors. In West Virginia, deliberate intent adds one more layer of complexity to an already complicated area of litigation.

What Are Deliberate Intent Claims?

Despite having the word "deliberate" in the name of this cause of action, employees are not necessarily required to prove that the employer intentionally meant to cause injury or death in order to prevail in these cases. Rather, the plaintiff must have evidence to support five specific elements that, if proven, equate to an employer's "deliberate intent" to cause an injury. These five elements are, generally speaking:

1. The existence of a specific unsafe working condition that posed a high degree of risk and strong probability of serious injury or death;
2. The employer had actual knowledge of that unsafe condition and high degree of risk and strong probability;
3. That the unsafe working condition violated a safety statute, regulation, rule, or other industry standard;
4. That notwithstanding the above, the employer nevertheless intentionally exposed an employee to that unsafe condition; and
5. As a result, the employee suffered serious bodily injury or death

WV Deliberate Intent Claims: Not Garden-Variety Personal Injury Cases

The defense of a deliberate intent case can differ from routine personal injury litigation. The interplay of the workers' compensation system, insurance liability coverage, and legal nuances-based on both statutes and case precedent-often render these matters multifaceted and complex. To be successful, an employer or insurer should turn to counsel who is well-versed in the intricacies of defending against these allegations.

High-Risk Industries Need an Experienced WV Deliberate Intent Defense Lawyer

Many of the key industries in WV and the tristate area bear high risk for workplace injuries. These industries include the following sectors:

• Building industry materials and construction;
• Chemicals and polymers;
• Coal mining;
• Fulfillment distribution;
• Manufacturing;
• Metals;
• Oil and gas; and
• Trade, transportation, and utilities

Businesses that operate in these areas must make safety a priority. Thoughtful planning of safety policies and procedures, as well as ongoing training of employees in matters of safety, can help prevent incidents and injuries. Unfortunately, injuries and accidents still occur.

Employers sometimes think they need a WV deliberate intent defense lawyer only when facing a deliberate intent claim. But experience handling these claims also makes these attorneys knowledgeable and able to assist with issues involving personal injury, insurance coverage, and compliance with the federal Occupational Safety and Health Act (OSHA) and West Virginia health and safety laws and regulations.

Is Insurance against WV Deliberate Intent Claims Enough?

Purchasing insurance to provide coverage for deliberate intent claims is not mandatory and employers have, not infrequently, been unaware that such coverage was available. In those cases, employers have been faced with the burdens of litigation costs and fees as well as the prospect of economic liability if the plaintiff prevails. Employers should consult with their insurance agents to confirm that they have all appropriate insurance coverages in place before a significant accident occurs.

Nathanial A. Kuratomi is a WV deliberate intent defense lawyer with Jenkins Fenstermaker. He is part of a team of attorneys who are well-equipped to address potentially significant exposure when facing WV deliberate intent claims. For more information, you can reach Nate by completing his online contact form or by calling (304) 523-2100 in the greater Huntington area or (866)617-4736 toll-free across the tristate.