Kanawha Valley Power Co. v. Justice, 181 W. Va. 509; 383 S.E.2d 313 (1989)

Lead counsel in representation of KVP in an action it brought to recover the return of overpayments made to its employee under a sick leave allowance plan. The employee filed a counterclaim for damages for mental distress. After summary judgment was granted to KVP, the employee appealed, arguing that the sick leave allowance plan required KVP to have reduced each sick leave payment by the amount of any actual or potential workers' compensation benefits. The court disagreed and affirmed the summary judgment, holding that the sick leave allowance plan was clear and unambiguous and that the trial court properly applied the contract as written and did not construe it. The employee also argued that the allowance for restitution of overpayments was an unlawful waiver of his right to have received workers' compensation, in violation of W. Va. Code § 23-2-7. The court held that the sick leave allowance plan did not in any sense impair the employee's ability to have applied for or received worker's compensation benefits. Finally, the court held that the averments set forth in the employee's counterclaim fell short of the level of proof required for the tort of outrageous conduct.