CHARLESTON – The state Supreme Court improperly granted an exception from workers' compensation law to the parents of a logger who died on the job, according to Justice Brent Benjamin.

On July 26, he dissented from a decision allowing the estate of Clarence Coleman to pursue a deliberate intent claim against R.M. Logging in Fayette County.

"As unfortunate as this accident was, the record shows it to have simply been that: an accident," Benjamin wrote. "This is precisely the kind of negligence action intended to be covered by the workers' compensation system."

Workers' compensation law generally prohibits lawsuits over job injuries, but workers can sue if they allege deliberate intent.

In 2003, Coleman cut a tree. It didn't fall, but lodged among other trees. He walked under the hung tree, and it broke loose and fell on his head.

His father, Clarence Coleman, and his mother, Helen Adkins, sued R.M. Logging.

Circuit Judge Paul Blake granted summary judgment to R.M. Logging in 2006, ruling that the parents did not establish all the elements of deliberate intent.

The Supreme Court of Appeals reversed Blake in 2008.

Last year, after hearing further evidence, Blake granted summary judgment again. He found the parents failed to prove that R.M. Logging intentionally exposed Coleman to an unsafe condition.

He wrote that Coleman was properly trained and that, "but for the decedent's own negligence, the accident would not have occurred."

The parents appealed, and again the Justices reversed Blake.

They identified the hung tree and his decision to walk under it as manifestations of his allegedly inadequate training.

In dissent, Benjamin called the decision a troubling departure from prior jurisprudence and from the deference the Justices are obligated to give to the Legislature.

"In failing to give legal effect to the express language of the deliberate intent statute, the majority now trespasses into the prerogative of the Legislature," he wrote. "By ignoring certain statutory language and by overwriting other statutory language, the majority has now expanded through the common law a narrowly crafted legislative cause of action."

The parents presented no evidence that R.M. Logging was aware of prior incidents when Coleman walked under a hung tree or hung a tree, he wrote.

They presented no evidence other than the accident itself that he had not received adequate training to recognize the hazards of the job, he wrote.

He wrote that eyewitness Kelcey Nichols said the main reason it happened was neglect on Coleman's part.

"I fear that the majority's decision will now cause trial judges to become reluctant to grant summary judgment in deliberate intent cases even though it is appropriate and the statute specifically compels it," he wrote.

He predicted that West Virginia employers would settle cases that lack merit to avoid costly litigation.

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