CHARLESTON – State Supreme Court Justice Brent Benjamin has accused his colleagues of rewriting law to stretch the statute of limitations for a plaintiff who suffered temporary insanity.

In a July 27 dissent, Benjamin wrote that a decision in a Raleigh County case "violates all established principles of statutory construction."

He wrote that the majority effectively amended state code to remedy what they considered inadequate legislative judgment.

The majority in May reversed Raleigh Circuit Judge Robert Burnside, who dismissed a suit Michael Worley filed against Beckley Mechanical Inc.

Burnside ruled that the two-year statute of limitations ran out, but Worley argued on appeal that he was mentally ill part of the time.

Worley fell 30 feet to a concrete floor in 2000 while on a construction job. He suffered injuries but no brain trauma.

At Raleigh General Hospital, however, doctors perforated his liver while inserting a chest tube. He developed sepsis and his mental functions diminished. The hospital released him 43 days after he fell.

Two years after his release, he sued Beckley Mechanical and others. He relied on a 1923 law delaying the statute of limitations for a person who is "an infant or insane" at the time a cause of action accrues.

Burnside granted a motion to dismiss, finding that Worley was not insane when the cause of action accrued.

Worley appealed and won.

Justice Spike Maynard wrote for the majority that for mental illness to toll the statute of limitations, the mental illness must occur at the same time the person is injured.

"A strained literal application of the statute's language potentially excludes from protection many persons that the statute was intended to protect," Maynard wrote.

The majority told Burnside to make a better decision about when Worley became insane and determine whether he sued within two years of the time he regained sanity.

Benjamin wrote in dissent that, "A statute of limitations may only be tolled for reason of insanity if the person is insane at the time the cause of action accrues."

He wrote that the majority provided an interval after a wrongful act in which a plaintiff may become insane and toll the statute of limitations. He said the majority relied not on the statute or its legislative history but on a 1993 Supreme Court of Appeals decision.

"Thus, the Court relies upon itself to provide the 'legislative' intent which it now uses to disregard the plain meaning of the statute," Benjamin wrote. "This intrusion into legislative prerogative yet again shows the ready inclination by this Court to exceed its proper constitutional role ...

"... the majority has improperly acted as a superlegislature and amended clear statutory language to produce a result it desired, not what the Legislature desired."

He wrote that the majority engaged in "arrogant judicial activism which, for as long as it manifests itself, will inhibit, indeed be fatal to, the positive progress of this State."

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