Grim v. E. Elec., LLC

234 W.Va. 557

767 S.E.2d 267

Gregory GRIM, et al., Plaintiffs Below, Petitioners

v.EASTERN ELECTRIC, LLC, Defendant Below, Respondent.

No. 13–1133.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 2014.

Decided Nov. 3, 2014.

Chief Justice Davis Nov. 7, 2014.

Nov. 25, 2014.

Vincent Trivelli, Esq., The Law Office of Vincent Trivelli, PLLC, Morgantown, WV, for Petitioners and Amicus Curiae, West Virginia State Building and Construction Trades Council, AFL–CIO.

Joseph U. Leonoro, Esq., Steptoe & Johnson, PLLC, Charleston, WV, for Respondent.

Opinion

WORKMAN, Justice:

Petitioners, former workers on a public works project, filed this civil action to recover statutory wages and liquidated damages under the Prevailing Wage Act¹ and Wage Payment and Collection Act² from the contractor on the project, Eastern Electric, LLC (“Eastern Electric”). Petitioners appeal an order entered October 7, 2013, by the Circuit Court of Kanawha County granting summary judgment in favor of Eastern Electric. On appeal to this Court, petitioners argue the circuit court erred in its holdings under these laws and failed to follow the appropriate standard regarding summary judgment determinations. This case presents the following questions: (1) what is the statute of limitations in a Prevailing Wage Act claim; (2) whether summary judgment was appropriate on the issue of Eastern Electric's “honest mistake or error” affirmative defense; and (3) whether the circuit court was correct to dismiss petitioners' Wage Payment and Collection Act claims.³

After a careful review of the briefs, appendix record, and consideration of the arguments of the parties, we hold the circuit court erred in dismissing petitioners' Prevailing Wage Act claims as untimely because the statute of limitations applicable to those claims is five years. We find the record establishes disputed issues of material fact with regard to Eastern Electric's “honest mistake or error” affirmative defense, rendering the circuit court's entry of summary judgment erroneous. Finally, we affirm the circuit court in its dismissal of petitioners' Wage Payment and Collection Act claims. We therefore affirm, in part, reverse, in part, and remand the case for further proceedings.⁴

I. FACTUAL AND PROCEDURAL HISTORY

Eastern Electric is an electrical contractor. Petitioners are seven electricians who were employed by Eastern Electric on several public works projects for the State of West Virginia in and around the City of Charleston. Petitioners filed the instant action alleging violations of West Virginia Code §§ 21–5A–1 to –10 (“Prevailing Wage Act” or “PWA”), and West Virginia Code §§ 21–5–1 to –18 (“Wage Payment Collection Act” or “WPCA”). The parties dispute whether the PWA applied to the specific contract at issue—a contract Eastern Electric entered into with the West Virginia Department of Administration in 2007. Petitioners performed electrical construction work pursuant to this contract at several government buildings including the State Capitol and the Governor's mansion. Work on this contract began in May of 2007, and with the renewal of the contract in 2008, continued through May of 2009.

Throughout the term of this contract, Eastern Electric performed electrical work on a variety of projects at various State-owned facilities. Each project was given to Eastern Electric on a purchase order or work order. Upon completion or partial completion of a job or project, the lead electrician, Petitioner Gregory Grim, completed an installation/service report, which was usually approved and signed by the Department of Administration official in charge of that particular building or location. Thereafter, Eastern Electric sent the invoice to the Department of Administration. Each invoice contained a brief description of the work performed, the number of hours spent to perform the work, and material costs. The appendix record submitted to this Court includes a generous sampling of those documents; the work is repeatedly described as demolishing existing wiring, lighting and receptacles and installing new. In their deposition testimony, petitioners also describe the work performed pursuant to the contract as demolishing electrical systems in various office spaces to install new systems.

Petitioners were paid timely under the terms of their employment agreements, but they were not paid prevailing wages. Petitioners performed identical work for Eastern Electric on other public works construction projects during this same time period and were paid prevailing wages.⁵ Petitioners asked members of Eastern Electric about this discrepancy and they were told that prevailing wages were not paid because it was a maintenance contract.

The Request for Quotation (“RFQ”) for this contract was entitled “Electrical Construction, Maintenance and Repair.” The RFQ indicated the contract was “to provide electrical construction, maintenance, and repair services to a variety of equipment housed in numerous Department of Administration owned facilities located throughout West Virginia[.]” The term “construction” was defined within the RFQ as: “work associated with the addition, removal, or re-location of electrical circuits[.]” When Eastern Electric submitted its bid for this contract, it did so at non-prevailing wage rates.⁶ Eastern Electric's bid was accepted and it entered into the contract with the Department of Administration. The contract did not specify that prevailing wages were applicable to the work being performed, and did not include the general boilerplate language⁷ usually included in prevailing wage contracts.⁸

In February of 2009, the West Virginia Division of Labor commenced an investigation with regard to some of the work performed pursuant to the contract and determined that Eastern Electric should have paid prevailing wages to the workers. The investigation began with work performed on State Building 74, a three-story building. Petitioners removed all of the existing wiring and lighting, as well as all the existing receptacles and switches in the building. After this demolition was complete, petitioners installed new conduit, wiring, lighting, receptacles and switches on all three floors. The Division of Labor issued a letter to Eastern Electric dated August 6, 2009, and stated that an audit revealed that Eastern Electric failed to pay proper prevailing wages for work performed on State Building 74.⁹ The results of that investigation were reflected in an audit that found the workers were owed prevailing wages in the amount of $135,330 for work performed just on that particular project. The letter advised Eastern Electric that if it did not agree with the audit findings, it could contest those findings under the provisions of the State Administrative Procedures Act. See West Virginia Code § 29A–5–1 (2002).¹⁰ Eastern Electric contested those findings but for reasons not clear from the record, the Division of Labor did not schedule this matter for an administrative hearing.

After learning of the investigation by the Division of Labor, Eastern Electric, with the assistance of counsel, contacted the Department of Administration regarding this issue. A meeting was held between members of Eastern Electric, its counsel, the Department of Administration's general counsel, and other officials from the Department of Administration. Eastern Electric contends that during the course of that meeting, the Department of Administration reassured Eastern Electric that the work performed pursuant to the contract was not subject to prevailing wages.¹¹

Recognizing that it would lose money if it had to pay prevailing wages to its employees, Eastern Electric cancelled the contract. Petitioners last performed work under this contract in May of 2009. Petitioners filed this civil action in July of 2011. In the pleadings below, petitioners estimate their damages at $275,000 in lost wages and fringe benefits on all the various jobs performed under the contract.

Following discovery, the parties submitted cross-motions for summary judgment. Petitioners argued it was uncontested that the electrical construction work performed by them was construction work within the meaning of the PWA and that Eastern Electric failed to pay wages and fringe benefits due under the PWA. Conversely, Eastern Electric maintained: (1) petitioners' PWA claims were barred by the two-year statute of limitations set forth in West Virginia Code § 55–5–12 (2008); (2) Eastern Electric's failure to pay prevailing wages was an “honest mistake or error;” and (3) petitioners had no cause of action under the WPCA. By order entered October 7, 2013, the circuit court granted Eastern Electric's motion for summary judgment. Petitioners appeal this order.

II. STANDARD OF REVIEW

The issue before us is whether Eastern Electric is entitled to summary judgment as to petitioners' claims. An order granting summary judgment engenders plenary review. “A circuit court's entry of summary judgment is reviewed de novo. ” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

In this case, the circuit court was presented with cross-motions for summary judgment. Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure “[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 Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963) ; Syl. Pt. 2, Consolidation Coal Co. v. Boston Old Colony Ins. Co., 203 W.Va. 385, 390, 508 S.E.2d 102, 107 (1998). In making this ruling, “ ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden.’ ” Williams v. Precision Coil, Inc., 194 W.Va. 52, 62, 459 S.E.2d 329, 339 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). “In cases of substantial...