Workman

CHARLESTON – As an attorney, Margaret Workman failed to persuade the West Virginia Supreme Court of Appeals to lengthen the list of beneficiaries in wrongful death suits against employers.

But as a Justice, she succeeded.

In a June 23 decision against S.W. Jack Drilling, Workman applied wrongful death law where the Court three years ago applied workers' compensation law.

The prior decision favored Speedway SuperAmerica over estate administrator Diana Savilla, a client of Workman.

"Although this Court is loath to overturn a decision so recently rendered, it is preferable to do so where a prior decision was not a correct statement of law," Workman wrote.

Delivering a unanimous opinion, she announced "the inevitable conclusion in this case that our prior decision in Savilla must be reversed."

In Savilla, three of five Justices held that when an employer causes wrongful death, only spouses and children or other dependents can recover through the estate.

The Savilla decision meant no employer would have to compensate anyone for causing the death of a worker who left neither spouse nor children.

Such a death had occurred in 2005 at a mud pit.

S.W. Jack Drilling worker Andrew John Murphy, 19, struggling to keep contaminants from spilling into the pit, fell into it.

His mother and his sister survived him.

His estate sued S.W. Jack Drilling, three other businesses and four individuals in Logan Circuit Court.

Circuit Judge Eric O'Briant dismissed some claims and approved settlements in the rest except for a deliberate intention claim against S.W. Jack Drilling.

West Virginia workers' compensation law prohibits a wrongful death suit against an employer unless the estate proves deliberate intention on the employer's part.

Although deliberate intention sounds as if an employer meant to kill a worker, it means an employer's unreasonable disregard for safety created a foreseeable risk.

As the Murphy case advanced, the Supreme Court ruled that Savilla and her brothers and sisters could not recover from Speedway SuperAmerica for the death of their sister, Linda Kinnaird.

Three Justices applied workers' compensation law that limits benefits to spouses and dependents, and two Justices dissented.

The decision spelled apparent victory for S.W. Jack Drilling. The business moved for summary judgment. In 2007, O'Briant granted it.

Murphy's mother, Evelyn "Peach" Murphy, appealed as administrator in hopes that the Court would erase the Savilla precedent.

The Court reached a unanimous decision and handed Workman the eraser.

She wrote that the majority in Savilla "simply ignored plain, unambiguous terms set forth by the Legislature."

She wrote that "it would be an incredible miscarriage of justice for this Court to allow the legally incorrect holding in Savilla to stand."

She wrote, "It is difficult to fathom that West Virginia law would ever allow an employer to act with complete intentional disregard for an employee's life, deliberately intend the employee's death and then be allowed to walk away unscathed."

In the Savilla case, Justice Robin Jean Davis and former Justice Spike Maynard dissented. Former Justices Larry Starcher wrote that decision in 2006, and the late Justice Joseph Albright concurred. Current Chief Justice Brent Benjamin had disqualified himself from the case because his former law firm was involved, and Circuit Judge Thomas C. Evans III sat in his place. Evans agreed with Starcher and Albright.

The five current Justices -- Workman, Davis, Benjamin, Thomas McHugh and Menis Ketchum -- remanded the case to O'Briant.

Mark French and Matthew Criswell of Charleston represented Peach Murphy, along with Dennis Curry of Spencer.

Thomas Flaherty, Christopher Brumley, Nathaniel Tawney and Justin Jack, all of Flaherty, Sensabaugh and Bonasso of Charleston, represented S.W. Jack Drilling.

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