Kosegi v. Pugliese
In Kosegi v. Pugliese, 185 W.Va. 384, 407 S. E.2d 388 (1991), the Court recognized the statutory pronouncements "that an employer who is in default of its obligation to remit workers' compensation premiums to the Fund is not entitled to immunity from common-law liability." 185 W.Va. at 386, 407 S.E.2d at 390.
In exploring that issue, however, the Kosegi Court also acknowledged an intervening alteration in the statutory procedure for the potential loss of immunity which had been accomplished after the employee's death in 1982.
The Court explained as follows:
"Employer's sole basis for contesting that they were statutorily in default for failure to remit premium payments is the 1984 amendment to W.Va. Code 23-2-5. The provisions of W.Va. Code 23-2-5 as in effect in 1982 required that an employer who was delinquent in the payment of workers' compensation premiums "shall be deprived of the benefits and protection afforded by this chapter...." Pursuant to the 1982 statute, an employer whose failure to timely remit premiums rendered him delinquent ... was thereby mandatorily subjected to common-law negligence." Id. at 386-87, 407 S.E.2d at 390-91.
Pursuant to the 1982 statute, the "commissioner was not required to notify an employer that its delinquency rendered it in default...." Id. at 387, 407 S.E.2d at 391.
However, the amendment of 1984 included a requirement that the commissioner must notify all delinquent employers in writing of "their failure to timely pay premiums, to timely file a payroll report, or to maintain an adequate premium deposit." Id. at 387, 407 S.E.2d at 391, quoting W.Va. Code 23-2-5(b) (1984).
The amendment also provided that failure to resolve a delinquency within a prescribed period would place the account in default.
The Kosegi Court refused to apply the 1984 amendments retrospectively to the 1982 employee death and therefore held that the employer's failure to pay appropriate premiums at the time of the incident rendered the employer in default and dispossessed it of its statutory immunity.