W.Va. SC reinstates widow's lawsuit

By Jessica M. Karmasek | Nov 8, 2010


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals last week reversed a lower court's order to dismiss a wrongful death lawsuit against a construction company.

The Court, in its opinion filed Nov. 1, wrote that because the Cabell County Circuit Court converted the motion to dismiss into a motion for summary judgment without providing the appellant -- Irma Riffle, wife of the deceased Edgar Riffle, Jr. -- with notice or opportunity to respond, it reversed the circuit court's final order and remanded the case for further proceedings.

Edgar, a resident of Mason County, died on July 28, 2004, at a work site in Virginia while employed by Contractors Rental Corporation.

Contractors had been hired by C.J. Hughes Construction Company, also an appellee in the case, to remove old gas pipelines at a Columbia Gas Transmission substation in Culpepper, Va.

Contractors and Hughes are both West Virginia corporations that have their principle places of business in Cabell County.

Nearly a year after her husband's death, on June 1, 2005, Irma filed a wrongful death action in Cabell Circuit Court.

In the complaint, she asserted that Contractors hired her husband, a union laborer, to load old gas pipelines onto a flatbed trailer for purposes of disposal.

She contended that on the evening of July 27, 2004, Hughes employees parked a flatbed trailer, on which the old pipes were to be loaded the next day, directly underneath a high-voltage power line. The following morning, on July 28, 2004, a crane operator working for Contractors began moving pipes onto this flatbed trailer.

Edgar allegedly stood on the trailer and helped guide the pipes by grasping a wire chain that was securing them.

Edgar's wife asserted that about 10 a.m., while Edgar was holding the wire chain, the crane operator struck the primary conductor line above the trailer and he was shocked with 7,200 volts of electricity. The shock allegedly knocked Edgar to the ground and he died shortly thereafter.

The man's wife contended that a Hughes employee, Keith Hill, was supposed to be supervising the work site, but that he was not present on July 27 or July 28.

Justice Margaret Workman, who authored the Court's opinion, wrote that the widow raised two issues in the appeal.

First, she contended that the circuit court erred by dismissing Contractors "on the basis of facts not contained in the pleadings."

Second, she argued that "sufficient facts" existed to state a claim against Contractors under West Virginia's deliberate intent statute.

Workman wrote that because the Court concluded that the circuit court committed "reversible error" in dismissing the lawsuit, it would not address the second issue raised.

However, it said the circuit court "clearly relied" on matters outside the pleadings in its order dismissing the appellant's claims against Contractors.

The circuit court's order, the Court said, never indicates that it is treating the appellees' motion to dismiss as a motion for summary judgment. Instead, the court simply dismisses the claims, it said.

"From the face of the order, however, it is clear that the circuit court relied on the facts presented for the first time in Mr. (Timothy B.) Donahoe's (the chief financial officer of Contractors) affidavit to conclude that the Appellant was barred from bringing a deliberate intent claim," Workman wrote for the Court.

The justice continued, "While these factual allegations, if true, may ultimately justify summary judgment, discovery was not yet complete and the Appellant had neither notice of the conversion nor an opportunity to develop and present her own additional facts."

Also, the Court wrote, the appellees' introduction of new facts two days before the hearing on their motion to dismiss "certainly created" an "unfair surprise" to the appellant.

The Court noted the widow attempted, to no avail, to persuade the circuit court that more time was necessary to afford her a reasonable opportunity to respond.

"Not only was she not given the additional time necessary, nothing in the record indicates that the circuit court ever even notified the Appellant that it did, in fact, intend to convert the motion to dismiss to a motion for summary judgment," Workman wrote.

"Under these facts, the circuit court's failure to notify the Appellant of its intentions, coupled with its failure to provide reasonable opportunity to develop and present pertinent material, was not harmless and constitutes reversible error."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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