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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2008 Term _____________ No. 33452 _____________

FILED June 16, 2008
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


CLARENCE T. COLEMAN ESTATE
by Co-Administrators
CLARENCE COLEMAN and HELEN M. ADKINS,
Plaintiffs Below, Appellants
v. R. M. LOGGING, INC., a West Virginia Corporation; CLONCH INDUSTRIES, INC., a West Virginia Corporation; and JOHN ROBINSON, individually, Defendants Below, Appellees ______________________________________________________ Appeal from the Circuit Court of Fayette County
Honorable Paul M. Blake, Jr., Judge
Civil Action No. 05-C-182
REVERSED AND REMANDED _____________________________________________________ Submitted: April 15, 2008 Filed: June 16, 2008

John R. Mitchell, Esq. John R. Mitchell, LC Charleston, West Virginia Joshua I. Barrett, Esq. Lonnie C. Simmons, Esq. Heather M. Langeland, Esq. DiTrapano, Barrett & DiPiero Charleston, West Virginia Attorneys for the Appellants

Mary H. Sanders, Esq. Shawn D. Nines, Esq. Ashley W. French, Esq. Huddleston Bolen, LLP Charleston, West Virginia Attorneys for Appellees R. M. Logging, Inc., and John Robinson

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT


1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

2. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56 (f) of the West Virginia Rules of Civil Procedure." Syl. pt. 3, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

3. "Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which

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the circuit court finds relevant, determinative of the issues and undisputed." Syl. pt. 3, Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997).

4. "In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify." Syl. pt. 5, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995).

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Per Curiam:

This action is before this Court upon the appeal of Clarence Coleman and Helen M. Adkins, co-administrators of the Estate of Clarence T. Coleman, from the September 20, 2006, order of the Circuit Court of Fayette County, West Virginia, granting summary judgment in favor of the appellees, R. M. Logging, Inc., and its foreman, John Robinson. The appellants' son, Clarence T. Coleman, employed by R. M. Logging, Inc., as a timber cutter, suffered fatal injuries when he was struck by a falling tree.1 In seeking recovery, the appellants relied upon the statutory "deliberate intention" exception to the immunity from common law tort liability granted to employers under the West Virginia Workers' Compensation Act.

In entering summary judgment, the Circuit Court concluded that the appellants failed to present evidence upon one of the key requirements of the "deliberate intention" exception, namely, that, prior to the accident, R. M. Logging, Inc., through its foreman, John Robinson, had a "subjective realization and an appreciation" of a specific unsafe working

In a separate order entered on September 20, 2006, the Circuit Court also granted summary judgment in favor of Clonch Industries, Inc., the operator of a sawmill to which cut timber was delivered. The Circuit Court determined that Clonch was an independent contractor and did not exercise control over Clarence T. Coleman's duties or the work site where he was employed. The appellants do not contest that ruling and have not made Clonch Industries, Inc., a party to this appeal. 1

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condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition.

Underlying the Circuit Court's ruling, however, were two unresolved motions: (1) the appellees' motion to exclude the evidence of Homer S. Grose, the appellants' expert safety consultant and (2) the appellants' motion to continue the scheduled trial date for "not more than sixty days" to take the deposition of Kelcey Nicholas, an employee of R. M. Logging, Inc., who was the first person to discover Coleman underneath the fallen tree and who may have witnessed the accident. Neither motion was addressed by the Circuit Court.2

This Court has before it the petition for appeal, the record designated by the parties and the briefs and argument of counsel. For the reasons set forth below, and particularly in view of the two unresolved motions, this Court is of the opinion that the summary judgment granted in favor of appellees R. M. Logging, Inc., and John Robinson was premature and constituted error. The Circuit Court, in failing to address the motion to exclude, rendered unclear whether the evidence of safety consultant Grose was considered in granting summary judgment in favor of the appellees. Moreover, as discussed below, this

The record before this Court contains no orders addressing the motion to exclude or the motion to continue. Nor were any transcripts of hearings setting forth rulings upon those motions included in the record. 2

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Court is of the opinion that, under the circumstances, the appellants should have been permitted a reasonable additional time period to discover the evidence of Kelcey Nicholas.

Accordingly, the September 20, 2006, order of the Circuit Court of Fayette County granting summary judgment in favor of R. M. Logging, Inc., and John Robinson is set aside, and this action is remanded to that Court for further proceedings consistent with this opinion.

I.
Factual Background


R. M. Logging, Inc., and its foreman, John Robinson were engaged in the business of timber removal in the Cannelton Hollow area near Smithers, West Virginia. After trimming and cutting into logs, the timber was transported to a sawmill operated by Clonch Industries, Inc. One of the timber cutters employed by R. M. Logging, Inc., was Clarence T. Coleman, age 24. As the Circuit Court found, Coleman had 1 year of experience as a timber cutter prior to being hired.

On December 2, 2003, Coleman, using a chainsaw, cut three trees immediately prior to the accident. The first, a large maple tree, fell to the ground. The second, a 15-inch diameter hickory tree, fell in part, leaving its butt end lodged approximately 20 feet above 3


the ground upon a 4 to 6-inch limb.3 The third tree, an 18-inch hickory, fell but also remained partly lodged above the ground. The record includes a map showing that the second tree, the 15-inch diameter hickory, was between the other two trees. Coleman then proceeded back toward the maple tree and walked under the butt end of the 15-inch diameter hickory. At that moment, the 4 to 6-inch limb failed, and the 15-inch diameter hickory tree fell striking Coleman on the head. Although Coleman was wearing a hard hat, his injuries were fatal. A report subsequently filed by the federal Occupational Safety and Health Administration ("OSHA") indicated that, instead of passing under the lodged tree, Coleman could have walked 5 feet around the tree's butt end.

The only co-worker near Coleman when the accident occurred was Kelcey Nicholas who was operating a skidder, a vehicle used to pull cut timber from the woods. The record indicates that Nicholas may have seen the tree strike Coleman.4 In any event, Nicholas, aware that an accident had occurred, ran to Coleman, pulled him from beneath the tree and drove the skidder to the area where John Robinson was operating a dozer. A 911

Upon remand, the Circuit Court may find it helpful to clarify whether the 15-inch diameter hickory tree was suspended upon its own 4 to 6-inch limb or whether that limb belonged to another tree.
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During his deposition, John Robinson testified as follows:

Q. Okay. Did Kelcey indicate that he saw the tree hang up? A. He said he seen the tree hit [Coleman]. That's all he told me. He didn't say nothing about anything else. 4

call for an ambulance was placed, and Robinson administered CPR to Coleman at the scene until the paramedics arrived. Coleman was pronounced dead at the hospital.

Soon after, an OSHA investigation was conducted, and a number of citations were issued against R. M. Logging, Inc., for violations of the Occupational Safety and Health Standards of the United States Department of Labor. While many of the citations did not directly concern the accident of December 2, 2003, two are particularly relevant to the proceedings below. The first citation cited 29 C.F.R.

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