BROTHERTON, Chief Justice:
This case is before this Court on an appeal by the West Virginia Workers' Compensation Commissioner from the April 1, 1993, final order of the Circuit Court of Kanawha County, West Virginia. In that order, the court affirmed a prior order granting the appellee's motion for a summary judgment.
The facts in this case are relatively simple. McCompton & Son Lumber Company did business as a sawmill and was incorporated in West Virginia on July 5, 1985. The articles of incorporation list L.D. Compton, his son, Kenny Compton, and Frederick J. McGroary as incorporators. L.D. Compton held 180 shares, while Frederick McGroary and Kenny Compton each held 60 shares. All three men were considered directors, although they were not specified as officers in the articles of incorporation. All three men signed the articles of incorporation.
The appellee, Fred McGroary, began working for Mr. Compton in his various enterprises, most of which included coal companies, in 1982. He worked for him as a purchasing agent until 1988. At the time of the incorporation of the lumber company in 1985, Compton had given McGroary an interest in the McCompton & Son Lumber Company. McGroary paid nothing for the interest in that corporation. McGroary did not manage or operate McCompton & Son Lumber Company until June, 1988, when Compton made McGroary manager of the McCompton & Son Lumber Company sawmill located in Ethel, West Virginia. The sawmill was the sole asset of the lumber company. It was totally destroyed by a fire in November, 1989, and was never rebuilt or reopened for business.
Prior to McGroary becoming manager of the sawmill in June, 1988, there were unpaid premium account balances due the Workers' Compensation Fund from the McCompton & Son Lumber Company. From June, 1988, until November, 1989, when the sawmill business was destroyed by fire, McGroary saw that all current premiums due on the quarterly reports were paid.
The McCompton & Son corporation was dissolved in Kanawha County Circuit Court on April 22, 1992. L.D. Compton is deceased, while Kenny Compton and Mr. McGroary still live. McGroary claims that he has never received any dividend or other benefit by virtue of the stock, except for the salary he was paid as an employee.
The Workers' Compensation Commissioner argues that McGroary should be considered an employer for the purposes of the statute and the Code of State Regulations (C.S.R.) and, thus, be personally liable for the unpaid workers' compensation premiums and interest totalling $149,659.58. Mr. McGroary disagrees, pointing out that the regulation that the Workers' Compensation Commissioner uses to identify him as an employer was not adopted until April 30, 1990, after the sawmill was destroyed. The circuit court agreed, granting McGroary's summary judgment motion.
West Virginia Code § 23-2-1(a) (1994 Supp.) states:
Title 85 C.S.R. 11-2.8 (1990), adopted April 30, 1990, expanded the definition of employer found in W.Va.Code § 23-2-1:
Next, W.Va.Code § 23-2-5a (1984) provides that "any payment and interest thereon due and unpaid under this chapter shall be a personal obligation of the employer...." Consequently, the Workers' Compensation Commissioner argues that McGroary is an "employer" who is responsible for the unpaid premiums and interest for McCompton & Son Lumber Company from the date of incorporation, July 5, 1985, until the company was dissolved in 1992 in Kanawha County Circuit Court.
While we agree that W.Va.Code § 23-2-1(a), in combination with 85 C.S.R. 11-2.8, provides for personal responsibility for workers' compensation premiums on the part of a delinquent employer, nothing in W.Va.Code § 23-2-1(a) or 85 C.S.R. 11-2.8, which expanded the definition of "employer," provides that 85 C.S.R. 11-2.8 should be applied retroactively.
The Commissioner counters that Cato v. Silling, 137 W.Va. 694, 73 S.E.2d 731 (1952), cert. denied, 348 U.S. 981, 75 S.Ct. 572, 99 L.Ed. 764 (1955), furthers his argument that such responsibility on the part of a director or officer was anticipated by this Court. However, our reading of Cato lends support to McGroary's claim that he is not liable for the unpaid balance and interest from 1990:
Id., 73 S.E.2d at 745 (emphasis added). The appellant then points to a somewhat more recent case in support of his opinion, stating: "[T]hough directors and officers are not liable for debts of a corporation in the absence of wrongdoing, there is evidence in this case he [McGroary] willfully, (or, at least, by gross negligence) violated his duty imposed by state statute. Wheeling Kitchen Equipment Co. v. R & R Sewing Center, Inc., 154 W.Va. 715, 179 S.E.2d 587 (1971)."
As noted above, the appellant admits that officers are not liable absent wrongdoing. Based upon the rule set forth in Cato, our review of the record shows that McGroary in no way controlled, influenced, directed, sanctioned, or participated in the acts which led to this suit, i.e., failing to pay the workers' compensation premiums from 1985 until 1988. In fact, for the period of time in which he was the general manager, he paid the premiums in a timely fashion. Further, there is no evidence of willful or negligent wrongdoing on the part of Mr.
"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." Syllabus point 3, Aetna Casualty and Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). In this case, the expanded definition of employer was not effective until April, 1990, after the sawmill was destroyed and out of business. Since the appellee was not considered an "employer" under the statute and regulations existing at that time, and since we hold today that 85 C.S.R. 11-2.8 is not to be applied retroactively, we cannot say that the Circuit Court of Kanawha County abused its discretion in granting the summary judgement motion.