“The Legislature did not intend to allow employers to shirk responsibilities imposed by specific statutes, rules, regulations, or standards by turning a blind eye to workplace hazards. Willful ignorance of a specific unsafe working condition is no defense” – From the Charleston Supreme Court decision McComas v. ACF Indus., LLC, 232 W. Va. 19, 27 (W. Va. 2013) which your tort reform legislators want to overturn and provide immunity to employers who wish to turn a blind eye towards unsafe working conditions that they put our Charleston workers in.
Introducing these two bills, tort reform legislators want to severely limit and/or abolish coal miners & other Charleston worker rights against people like Don Blankenship and other employers who may knowingly put their employees in harm’s way. Think about that for a second…this bill is not meant to help create jobs or bring in new business; it’s to take away your rights as a Charleston worker against employers who puts you in harm’s way.
First off, the more egregious of the two bills is the Senate version (http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=sb251%20intr.htm&yr=2015&sesstype=RS&i=251) by Senators Mullins, Karnes, Leonhardt and Gaunch. As you can see in the bill’s text and as Chris Regan of Bordas & Bordas points out, the Senate version of the bill attempts to abolish deliberate intent claims, “leaving the families of recklessly killed coal miners with a small administrative payment coming nowhere near replacing even their lost wages. The GOP bill would reduce coal miners lives to a small ‘cost of doing business’ and threaten to leave their families on public assistance.” §23-4-2(e)(6) even goes as far as to make an “employee, the widow, widower, child or dependent” file a SECOND claim with the Workers’ Compensation Office of Judge, which adds more costs to the WV worker and his family, just to get a small administrative payment for the death or injury of their family member.
The House version of the bill is equally as insulting to Charleston workers and coal miners. Delegate Roger Hanshaw is the lead sponsor with Delegates Shott, E. Nelson, Rohrbach, Sobonya, Weld, Espinosa, Statler, Fast and Miller also sponsoring this irresponsible bill (http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb2011%20intr.htm&yr=2015&sesstype=RS&i=2011 ).
The extremely troubling language of this bill is twofold. First, the language of 23-4-2(d)(2)(iii)(C) states that the “‘actual knowledge’ requirement shall not be satisfied by “constructive knowledge” or by proof of what an employer should have known had it exercised reasonable care or been more diligent.” By Delegate Hanshaw’s proposed standard, employers don’t need to use reasonable care or be diligent when dealing with Charleston worker safety.
Second, as you can see hidden at the bottom in the last sentence of the bill, it states specifically that HB2011 will “overrule the decision of the Supreme Court of Appeals of Charleston in the case of McComas v. ACF Industries, LLC, Case No. 12-0548 (October 17, 2013).” The McComas case, which was quoted at the beginning of this post, dealt with a Charleston worker was injured by a 480-volt box that was installed in the 1950s or early 1960s and had NEVER been inspected by the employer despite an industry standard that imposed a specific identifiable duty on the employer to inspect the switch box, which non-electrician employees commonly used. The employer had no “’actual knowledge’ of the deteriorated condition of the electrical box because it performed no inspection or maintenance on the box.” Justice Loughery Dissenting Opinion, McComas v. ACF Industries, LLC.
This is the case that tort reform legislators want to overturn and these are the types of situations that tort reform legislators want to give the businesses immunity for not using “reasonable care” or inspecting or maintaining unsafe working conditions which can affect the well-being and safety of their employees.
Ask yourself, are these tort reform bills going to bring in new business as promised by tort reform legislators, or is it a way to give employer’s immunity for intentionally putting our Charleston workers and coal miners in harm’s way? We choose the safety of the Charleston people.