Here we are rounding out the 11th month of the year and headed into the Holiday Season. November has been a prosperous month for your attorneys at Bailey & Wyant PLLC. We hope you have been enjoying the fall season and wish you the best as you celebrate the upcoming holidays with your friends, family and co-workers. Please continue reading to learn more and enjoy the latest news for you and know how thankful we are for your continued support.

Bailey & Wyant PLLC is proud to announce Managing Member, Charles R. Bailey will be presenting at the Gavel National Conference VII at the Ocean Reef Club in Key Largo, Florida this coming January. The topic of interest focuses around Ethics in Claims Handling.

Bailey & Wyant PLLC's Managing Member, Charles R. Bailey and Equity Member, Justin C. Taylor secured a complete dismissal for their client NCI Nursing Corp. Plaintiff was a coal miner who brought a lawsuit against NCI Nursing Corp. and MedTox asserting professional malpractice, negligence, and violations of statute regarding a positive employment related drug test and suspension of his mining certifications.

The Circuit Court of Harrison County granted NCI Nursing Corp.’s Motion to Dismiss pursuant to the West Virginia Medical Professional Liability Act, holding that the Court did not have jurisdiction over the matter and the plaintiff failed to state a claim upon which relief could be granted.

The West Virginia Supreme Court of Appeals recently published a notable decision in Goodman v. Auton, No. 21-0578, 2022 W. Va. LEXIS 687 (Nov. 3, 2022). The case decision dealt with an appeal from the lower court’s Order denying the defendants’, Adam Goodman’s and Paul Underwood’s, motions for summary judgment arising from an accident in which plaintiff Blake Auton was injured. Goodman and Underwood filed motions for summary judgment arguing they were both immune from suit under both West Virginia’s workers’ compensation statutes and the West Virginia Governmental Tort Claims and Insurance Reform Act. One of the issues on appeal, and the focal point of this article, was whether Goodman was entitled to workers’ compensation immunity from suit because he was under the influence of drugs at the time of the accident.

For background purposes, on March 28, 2018, Goodman was the driver of a City of Bluefield garbage truck while Underwood and Auton were riding on the back of the truck, picking up garbage. During the trash pick-up, Goodman placed the truck in reverse, accidentally causing Auton to fall off the back of the truck. Goodman then backed the truck up, running Auton over, and then dragged Auton approximately 30 feet down the road, causing serious and permanent injuries. Ultimately, Goodman was tested for controlled substances and tested positive for opiates, oxycodone, hydrocodone, and hydromorphone. Auton applied for and received workers’ compensation for his injuries and then sued Underwood and Goodman for their alleged negligence. In denying the motions for summary judgment for both defendants, the lower court found that there was a material issue of fact as to whether Goodman was operating the truck under the influence of drugs, thereby acting outside the scope of his employment.

What makes this case notable is the Court’s discussion of whether Goodman acted outside the scope of his employment when under the influence of drugs. Under the workers’ compensation statutes in the West Virginia Code, employers are generally immune from suit for injury or death of their employees if they are subscribers to the State’s workers’ compensation program. This immunity extends to employees if the employee is “acting in furtherance of the employers’ business and does not inflict an injury with deliberate intention.” On the appeal, Auton argued that Goodman could not be entitled to the workers’ compensation immunity from suit since Goodman was under the influence of drugs at the time and, therefore, was acting outside the scope of his employment. The Court disagreed, stating that the operative question was not whether Goodman was acting outside the scope of his employment, but instead, whether Goodman was acting “in furtherance of the employer’s business.”

The Court noted that there were no West Virginia cases discussing the specific phrase “in furtherance of the employers’ business” in the context of the case at hand. Relying on authority outside of West Virginia, the Court found that Goodman was performing the duties assigned to him at the time Auton was injured. Under the allegations in the complaint, Goodman was operating the garbage truck with permission and authorization from the City of Bluefield, albeit while he was apparently under the influence of controlled substances. Though under the influence of such controlled substances, he performed his job duties, arguably in a negligent manner, by operating a City-owned garbage truck on its assigned garbage collection route. From those facts and relying on Black’s Law Dictionary’s definition of “furtherance,” the Supreme Court of Appeals determined Goodman was clearly acting in furtherance of the employer's business when the accident occurred, thereby entitling him to workers' compensation immunity.

After almost two years the Charleston office of Bailey & Wyant PLLC was able to celebrate Thanksgiving the old fashioned way, gathered at the same table. For the past couple of holidays we all have been at the mercy of social distancing due to the Covid-19 pandemic. This year we brought back some holiday tradition and shared a lovely meal amongst our family here at B&W. Believe it or not, Cousin Eddie even made an appearance this year as we streamed National Lampoon's Christmas Vacation during our meal. As always, we give thanks to you for your continued support.

To discuss your case, e-mail us (baileywyant@gmail.com) or give us a call.