Brooks v. City of Weirton

• Decision Date: 19 May 1998
• Docket Number: No. 24445.,24445.
• Citation: 503 S.E.2d 814,202 W.Va. 246
• Court: West Virginia Supreme Court
• Parties: Glenda BROOKS, Administratrix of the Estate of William Richard Brooks, deceased, Plaintiff, v. The CITY OF WEIRTON, a West Virginia municipal corporation; The City of Weirton Sanitary Board; The City of Weirton Building Agency; The City of Weirton Public Works Department; Weirton Area Ambulance & Rescue Squad, Inc., Charles Isinghood, dba Charles Isinghood Excavating; Cary McCartney; and Shelley McCartney, Defendants.

503 S.E.2d 814

202 W.Va. 246

Glenda BROOKS, Administratrix of the Estate of William Richard Brooks, deceased, Plaintiff, v. The CITY OF WEIRTON, a West Virginia municipal corporation; The City of Weirton Sanitary Board; The City of Weirton Building Agency; The City of Weirton Public Works Department; Weirton Area Ambulance & Rescue Squad, Inc., Charles Isinghood, dba Charles Isinghood Excavating; Cary McCartney; and Shelley McCartney, Defendants.

No. 24445.

Supreme Court of Appeals of West Virginia.

Submitted January 13, 1998.

Decided May 19, 1998.

Karen E. Kahle, Ancil G. Ramey, Steptoe & Johnson, Charleston, for Weirton Sanitary Board.

Richard D. Klaber, S. Jane Anderson, Dickie, McCamey & Chilcote, Wheeling, for City of Weirton Public Works Dept.

Ronald B. Johnson, Weirton, for Cary McCartney and Shelley McCartney.

Frank Cuomo, Cuomo & Cuomo, Wellsburg, for Respondent.

William E. Galloway, Weirton, for Charles Isinghood, dba Charles Isinghood Excavating.

STARCHER, Justice:

This case arises from the death of William Richard Brooks, who was killed when the walls of a trench in which he was working collapsed.¹ Mr. Brooks' widow filed a wrongful death suit in the Circuit Court of Hancock County, naming several parties as defendants, including the City of Weirton and three of its agencies and boards.

Because the City is a political subdivision of the State of West Virginia, the "Governmental Tort Claims and Insurance Reform Act" ("the Act") that governs the legal immunity of political subdivisions and their employees, is implicated in the lawsuit. The Circuit Court of Hancock County has asked this Court to answer two certified questions, which are set forth below in Section I, regarding the application of the Act to the Brooks lawsuit.

In addressing the certified questions, we conclude that the "worker's compensation claim" immunity provisions of the Act do apply to the Brooks' claims against the City. We also conclude that the Act does not in all cases bar lawsuits against employees who are acting within the scope of their employment.

I. Facts and Background

We shall refer to the City of Weirton and its agencies and boards, who are defendants below, as "the City." The plaintiff below is Glenda Brooks, who is the administratrix of the estate of her late husband William Richard Brooks.

The facts of the instant case, as they have been developed thus far in the proceedings before the circuit court, are fairly summarized in the circuit court's July 22, 1997 order certifying two questions to this Court. That order states in pertinent part:

...

This is a wrongful death action arising from the collapse of a trench in which the decedent was working. At the time of the decedent's death, he was working as an employee of the defendant, Charles Isinghood dba Charles Isinghood Excavating. The plaintiff, Glenda Brooks, wife of the decedent, has received workers' compensation benefits as the result of her husband's death. Other beneficiaries of the decedent's estate, however, such as his mother and sisters, are not eligible for workers' compensation benefits.

The plaintiff's theory of recovery against her husband's employer [Isinghood] is based on the Mandolidis statute.[²] The plaintiff's theory of recovery against the McCartneys, who owned the property upon which the excavation was being performed, is based on premises liability. The plaintiff's theory of recovery against the political subdivisions [the City of Weirton, the City of Weirton Sanitary Board, the City of Weirton Building Agency, and the City of Weirton Public Works Department] is based on allegations that their employees recklessly issued permits for the excavation work, recklessly permitted the excavation work to be performed in an unsafe manner, and recklessly performed work near the location of the trench. The plaintiff settled with the Weirton Area Ambulance & Rescue Squad, Inc., against which she asserted a failure to provide proper medical and emergency assistance, and it was dismissed as a party from the suit by order entered on the 2nd day of October, 1995.

On the 25th day of April, 1997, the Court entered an order ruling that the plaintiff's claim is covered by workers' compensation and, under W.Va.Code, 29-12A-5(a)(11) (1986), the political subdivisions are immune from liability. This Court also ruled, however, that because the plaintiff has alleged that the "acts or omissions" of employees of the political subdivisions "were with malicious purpose, in bad faith, or in a wanton or reckless manner," but within the "scope of employment," summary judgment for the political subdivisions would not be granted.[³]

Given their novelty, as well as their importance in other cases pending, this Court has determined to certify the following questions to the Supreme Court of Appeals of West Virginia:

1. Does W.Va.Code, 29-12A-5(a)(11) (1986) grant immunity to political subdivisions in a wrongful death case where the claim is covered by workers' compensation, but where not all of the beneficiaries of the decedent's estate are eligible for workers' compensation benefits? The Court answers this question in the affirmative.

2. May a political subdivision be held liable although the plaintiff's claim is covered by workers' compensation and would otherwise be barred by W.Va. Code, 29-12A-5(a)(11) (1986), where the plaintiff alleges that the employees of the political subdivision acted in a "wanton or reckless manner" under W.Va. Code, 29-12A-5(b)(2) (1986)? The Court answers this question in the affirmative.

Thus, in summary, the circuit court's certified questions and the answers that the circuit court made to those questions reflect two determinations by the circuit court.

First, the circuit court determined that the workers' compensation immunity provisions of the Act set forth in W.Va.Code, 29-12A-5(a)(11) [1986] for claims against political subdivisions bar the claims of the plaintiff against the City.

Second, the circuit court determined that the language in W.Va.Code, 29-12A-13(b) [1986] bars all suits against political subdivision employees who are acting within the scope of their employment. The circuit court further concluded that therefore the plaintiff's claims based upon allegations of reckless or wanton conduct by City employees acting within the scope of their employment may—indeed must—be brought against the City itself, despite the immunity of the City that is otherwise conferred by W.Va.Code, 29-12A-5(a)(11) [1986].

Having identified the parties, the factual background and the issues presented, we note the applicable standard of review and then address the questions posed by the circuit court.

II. Standard of Review

The appellate standard of review of questions of law answered and certified by a circuit court is de novo. Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Additionally, we note that the general rule of construction in governmental tort legislation cases favors liability, not immunity. Unless the Legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail. Syllabus Point 2, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).

III. Discussion

A.

The Workers' Compensation Immunity Question

The first certified question we address is:

Does W.Va.Code, 29-12A-5(a)(11) [1986] grant immunity to political subdivisions in a wrongful death case where the claim is covered by workers' compensation, but where not all of the beneficiaries of the decedent's estate are eligible for workers' compensation benefits?

The statute referenced by the circuit court in this question, W.Va.Code, 29-12A-5(a)(11) [1986], states in pertinent part:

A political subdivision is immune from liability if a loss or claim results from ... [a]ny claim covered by any workers' compensation law or any employer's liability law[.]⁴

This Court has previously addressed the scope of the immunity conferred upon political subdivisions by W.Va.Code, 29-12A-5(a)(11) [1986].

In Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996), we held that whether W.Va.Code, 29-12A-5(a)(11) [1986] provides a political subdivision with immunity for a claim initially depends upon determining whether the claim is "covered" by a worker's compensation law or other employer's liability law.⁵ We determined in Marlin that because "fear of cancer" is not a cognizable claim under our workers' compensation law, the claims in that case, based upon fear of cancer from asbestos exposure, were not subject to political subdivision immunity.

We held in Marlin in Syllabus Point 3 that:

If the claims asserted by appellants would result in no benefits under any workers' compensation law or any employer's liability law, that is to say, if there is no recovery of benefits under such laws in lieu of damages recoverable in a civil action, then, notwithstanding W.Va.Code Sec. 29-12A-5(a)(11), such claims are not "covered" within the meaning of the immunity statute and may be asserted in the courts of this State against a political subdivision which is not their employer, and such recovery had as may be proved under a recognized cause of action.

We went on to state in Marlin that a political subdivision is immune from suit as to "all elements of damage arising under a `covered' claim," 198 W.Va. at 643, 482 S.E.2d at 628. We further stated:

... if appellants' assertion is correct—if their claims are cognizable at law, and if the damages they claim are not ... merely damages for which workers' compensation provides an alternate form of recovery— they will have no remedy for their present claims of the fear of contracting the disease and have no claim under workers' compensation until and unless their respective conditions develop to the point where benefits would be provided. In other words, if

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