Workers' Comp Immunity Covers W. Va. Driver who Backed Truck over Coworker

                               

Bluefield, WV (WorkersCompensation.com) – In West Virginia, employers are generally immune from suit for injury or death of their employees if they are subscribers to workers’ compensation. As illustrated by Goodman v. Auton, No. 21-0578 (W.Va. Sup. Ct. App. 11/03/22), that immunity also may apply when an employee injures a coworker.

In Goodman, a city garbage truck driver struck something, knocking a coworker off the back of the truck. The driver then accidentally backed the truck over the coworker, dragging him 30 feet down the road. The coworker suffered serious and permanent injuries and had to have a leg amputated.

Immediately following the accident, the driver tested positive for controlled substances and for opiates, oxycodone, hydrocodone, and hydromorphone.

The injured coworker applied for and received workers' compensation for his injuries. He then sued the driver for negligence. The driver argued that he was immune from tort liability under the state’s workers' compensation statute.

Under West Virginia law, the court explained, employers are generally immune from suit for injury or death of their employees if they are subscribers to workers’ compensation. This immunity, the court added, extends to acts of employees of a subscribing employer when the "employee of such employer . . . is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.”

The court rejected the injured workers’ argument that the driver was not immune to lawsuit because he was on drugs. The driver was acting outside the scope of his employment, and therefore not immune from suit, the injured employee argued. But the court noted that the question is not whether the driver was acting outside the scope of his employment, but whether he was acting "in furtherance of the employer's business."

Here, the driver was performing the duties assigned to him at the time of the injury, the court observed. He was operating the garbage truck with the city’s permission, albeit while he was apparently under the influence.

“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,” the court wrote.

Thus, the driver was clearly acting in furtherance of the employer's business when the accident occurred, thereby entitling him to workers' compensation immunity, and effectively barring the injured worker from pursuing a negligence action that might supplement his workers’ compensation benefits.

The court remanded the case to the circuit court within instructions to grant the driver summary judgment.

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