Merrill v. Dept. of Health and Human Res.

• Decision Date: 12 May 2006
• Docket Number: No. 32856.,32856.
• Citation: 632 S.E.2d 307
• Parties: Kimberly MERRILL and Teresa Mayfield, Plaintiffs Below, Appellants, v. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

632 S.E.2d 307

Kimberly MERRILL and Teresa Mayfield, Plaintiffs Below, Appellants, v.WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Defendant Below, Appellee.

No. 32856.

Supreme Court of Appeals of West Virginia.

Submitted February 15, 2006.

Decided May 12, 2006.

Syllabus by the Court

1."A circuit court's entry of summary judgment is reviewed de novo."Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755(1994).

2."`"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 & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770(1963).'Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247(1992)."Syllabus point 2, Painter v. Peavy,192 W.Va. 189, 451 S.E.2d 755(1994).

3."Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove."Syllabus point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755(1994).

4."The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial."Syllabus point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755(1994).

5."Generally, a cause of action accrues (i.e., the statute of limitations begins to run) when a tort occurs; under the `discovery rule,'the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim."Syllabus point 1, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644(1992).

6."In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury."Syllabus point 4, Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901(1997).

7."Mere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of the statute of limitations; the `discovery rule' applies only when there is a strong showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury."Syllabus point 3, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644(1992).

8."Fraudulent concealment requires that the defendant commit some positive act tending to conceal the cause of action from the plaintiff, although any act or omission tending to suppress the truth is enough."Syllabus point 3, Miller v. Monongalia County Board of Education, 210 W.Va. 147, 556 S.E.2d 427(2001).

Margaret L. Workman, Charleston, Attorney for the Appellants.

Charles R. Bailey, Billie Jo Streyle, Bailey & Wyant, P.L.L.C., Charleston, Attorneys for the Appellee.

PER CURIAM:

Kimberly Merrill and Teresa Mayfield(hereinafter collectively referred to as "Kimberly and Teresa"), plaintiffs below and appellants herein, appeal an order of the Circuit Court of Kanawha County granting summary judgment in favor of the defendant below and appellee, the West Virginia Department of Health and Human Resources(hereinafter referred to as "DHHR").¹Kimberly and Teresa have asserted various claims against DHHR arising from the services, or lack thereof, provided to them during their infancy by DHHR in relation to sexual abuse they suffered at the hands of their father.The Circuit Court of Kanawha County granted summary judgment based, in part, upon its conclusion that the discovery rule did not operate to toll the running of the statute of limitations in this case.We agree, and therefore affirm the circuit court's order.

I.FACTUAL AND PROCEDURAL HISTORY

This case involves the tragic history of two sisters who, in their childhood and youth, endured years of sexual abuse by their father, Albert Kirchmar.Kimberly Merrill(hereinafter referred to as "Kimberly") is the older of the two sisters.Kimberly's abuse was first reported to DHHR in January 1978, when DHHR received a report that her father had forced her to pose for a nude or semi-nude photograph.She was then twelve years old.Kimberly was not removed from the home by DHHR until July 24, 1982, following a subsequent report of sexual abuse.²Kimberly remained out of the home until after her eighteenth birthday.

During the four-and-a-half years between the initial report of abuse and Kimberly's removal from the home, she endured regular sexual abuse from her father.³Also during that period, her father moved temporarily out of the house, he admitted himself to a psychiatric hospital, her mother filed for divorce, her parents reconciled, and her family received counseling services.There was apparently no attempt on the part of DHHR during this time to privately interview Kimberly's younger sister Teresa to ascertain whether she was also being subjected to sexual abuse at the hands of her father.

The abuse of Teresa Mayfield(hereinafter referred to as "Teresa") was first reported to DHHR in June 1984, when it received a referral alleging that Teresa was being sexually abused by her father.In accordance with an agreed order consented to by Teresa's parents and their counsel, Teresa's Guardian ad Litem and DHHR, Teresa was removed from the home by DHHR and placed in foster care for a period of twelve months in August 1984.At the end of the twelve-month period, a counselor and psychologist who had been providing services to the family recommended that Teresa be returned to the custody of her family and that counseling be continued for six months.Accordingly, physical custody of Teresa was returned to her parents in August 1985, while DHHR maintained legal custody.At a review hearing in March 1986, the presiding circuit court found that the Kirchmars had engaged in regular counseling and there was no recurrence of the initial abuses; therefore, the court returned legal custody of Teresa to her parents.⁴After Teresa's return to her parents' home in 1985, she did not immediately disclose further abuse to DHHR; however, she later disclosed that her father resumed his sexual abuse of her.Teresa attempted to commit suicide on two occasions between the time she was returned to the custody of her parents and her eighteenth birthday.During her hospitalization for her first attempted suicide, she reported to her social worker that "nothing had changed" at home.While she was hospitalized following her second suicide attempt, she celebrated her eighteenth birthday and her DHHR file was closed.

The instant lawsuit was filed in the Circuit Court of Kanawha County on April 1, 2002, approximately one month prior to Kimberly's thirty-seventh birthday.Teresa was thirty-three at the time the suit was filed.⁵An amended complaint was later filed on November 14, 2002.The amended complaint alleged (1) negligence by DHHR in returning the girls to their parents' home and/or failing to remove them from the home, being a breach of their statutory and common law duty to protect the girls; (2) a violation of the girls' substantive due process rights by virtue of DHHR's failure to protect them from the harm imposed by their father; (3) a denial of equal protection by virtue of DHHR's failure to protect them; (4) a denial of the girls' due process rights by virtue of DHHR's failure to protect them; (5) a breach of fiduciary duty; and (6) a violation of the girls' right to affirmative protection from harm.⁶The complaint further alleged that DHHR had fraudulently concealed material facts regarding its knowledge of the sexual misconduct of Albert Kirchmar.

On November 7, 2003, DHHR filed a motion for summary judgment claiming, inter alia, that the case was barred by the statute of limitations.⁷By order entered September 27, 2004, the circuit court granted summary judgment in favor of DHHR based, in part, on its conclusion that the statute of limitations for Kimberly's and Teresa's claims were not tolled by operation of the discovery rule.This appeal followed.⁸Based upon our review of the record, the briefs submitted on appeal, and the pertinent authorities, and after hearing oral arguments, we affirm the circuit court's order granting summary judgment in favor of DHHR.

II.STANDARD OF REVIEW

This case is on appeal from an order of the circuit court granting summary judgment."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 conducting our de novo review, we apply the same standard for granting summary judgment that is applied by the circuit court.Under that standard,

"`[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 & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770(1963)."Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247(1992).

Syl. pt. 2, Painter.In other words,

[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

Syl. pt. 4, Painte...