# Zelenka v. City of Weirton

> West Virginia Supreme Court · July 20, 2000 · 208 W. Va. 243

URL: https://www.frixlaw.com/law-library/cases/9599386

## Case

- **Full name:** Stamatia C. ZELENKA, Executrix of the Estate of James G. Kapiris, Plaintiff, v. CITY OF WEIRTON, Et Al., Defendants
- **Court:** West Virginia Supreme Court
- **Decided:** July 20, 2000
- **Citations:** 208 W. Va. 243; 539 S.E.2d 750
- **Precedential status:** Published
- **Opinion:** Dissent by Starcher
- **Judges:** Maynard, Davis, Starcher
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9599386

## How later opinions describe it (automated extraction)

- recognizing that fact that workers' compensation does not expressly provide compensation for damage elements such as pain and suffering “ 'does not require conclusion that there has been no recovery of benefits ... in lieu of damages recoverable in a civil action’ ”
- recognizing “the failure of workers’ compensation law to provide compensation for ‘elements of damages such as pain and suffering ... ’ ” (quoting O’Dell v. Town of Gauley Bridge, 188 W.Va. 596, 610, 425 S.E.2d 551, 565 (1992))
- observing that the deliberate intent death action “was not filed in the circuit court by the spouse, children, or other dependents of the decedent[,] [because] the decedent[ ] did not have a spouse, child or any other dependents”
- stating that "this Court will not consider certified questions not necessary to the decision of a case" (citation omitted)

## Opinion text

STARCHER, Justice,
dissenting:
(Filed July 20, 2000)
Footnote 8 of Brooks v. Weirton reserved our right to decide whether a minuscule workers’ compensation benefit could constitute “coverage” so as to allow the Legislature to divest a plaintiff from their right to sue a negligent tortfeasor.
The majority has now decided that — under the specific facts of the instant case — a $5,000 funeral benefit is sufficient “coverage” to allow a grant of immunity for negligently taking a person’s life. I wonder what the majority would do with a $5.00 benefit!
It should be remembered that the constitutionality of taking away people’s right to sue tortfeasors is contingent upon there being other avenues for those injured people to obtain redress of their injuries. Randall and O’Dell, supra. If the majority’s reasoning stands, I believe we may have to revisit those cases, and to throw out at least some of our local governmental immunity statutes, as unconstitutional.
But I am hopeful that when we next return to this issue, we will choose the more prudent route of undoing the damage done by the majority opinion in the instant case.
Accordingly, I dissent. I am authorized to say that Justice McGraw joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9599386. Public record. Not legal advice.