Monongahela Power Co. v. Buzminsky, No. 19-0228

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN, Justice
Citation850 S.E.2d 685,243 W.Va. 686
Parties MONONGAHELA POWER COMPANY, Defendant Below, Petitioner v. Michael A. BUZMINSKY and Vickie Buzminsky, Plaintiffs Below, Respondents
Decision Date02 November 2020
Docket NumberNo. 19-0228

243 W.Va. 686
850 S.E.2d 685

MONONGAHELA POWER COMPANY, Defendant Below, Petitioner
Michael A. BUZMINSKY and Vickie Buzminsky, Plaintiffs Below, Respondents

No. 19-0228

Supreme Court of Appeals of West Virginia.

Submitted: October 7, 2020
Filed: November 2, 2020

E. Taylor George, Esq., Arden J. Cogar, Jr., Esq., MacCorkle Lavender, PLLC, Charleston, West Virginia, Attorneys for Petitioner.

Stephen B. Farmer, Esq., Robert A. Campbell, Esq., Brian E. Bigelow, Esq., Jennifer D. Roush, Esq., Farmer, Cline & Campbell, PLLC, Charleston, West Virginia, Attorneys for Respondents.

WORKMAN, Justice:

850 S.E.2d 687

This is an appeal of the Circuit Court of Kanawha County's denial of petitioner Monongahela Power Company's ("Mon Power") motion to dismiss on the basis of statutory immunity. Mon Power argued that it is immune from liability for the allegations contained in respondents Michael and Vickie Buzminsky's ("respondents") complaint because the allegations involve emergency services undertaken by a duly qualified emergency services worker, which acts are immune pursuant to West Virginia Code § 15-5-11(a) (2006). The circuit court denied the motion, finding that 1) the statutory immunity does not extend to corporate entities; 2) respondents sufficiently alleged willful misconduct, an exception to the immunity; and 3) disputed issues of fact precluded dismissal at this stage.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the circuit court correctly determined that a private corporate entity or employer is not entitled to immunity under West Virginia Code § 15-5-11(a) and therefore affirm its June 28, 2019, order.


On June 23, 2016, the Greenbrier River flooded, prompting a declaration of a state of emergency by then-Governor Earl Ray Tomblin. The City of Ronceverte's ("City") wastewater treatment plant was flooded, causing an interruption in electrical service. After the floodwaters abated, on June 29, 2016, Mon Power restored power to the plant, allegedly upon request of a City employee. After the initial restoration of power, the plant experienced a "loss of phase on the power service." This loss of phase prompted Mon Power to inspect, determining that the loss of phase was the result of a problem with the City's equipment and not Mon Power's. In their complaint, respondents allege that, despite its knowledge of the continued electrical issues, Mon Power left the plant energized. The City then hired HSC LLC (defendant below) to repair the equipment and it sent its employee, respondent Michael Buzminsky, to perform the repairs. Allegedly wearing no appropriate personal protective equipment, Mr. Buzminsky contacted a live bus bar, causing him to be electrocuted and injured.

Respondents filed a complaint against Mon Power and its parent company, First Energy, the West Virginia Department of Environmental Protection ("DEP") and one of its agents,1 and HSC LLC. Respondents pled negligence2 against Mon Power, alleging

850 S.E.2d 688

that it "negligently, carelessly and/or recklessly failed to exercise the appropriate care and follow the applicable company and industry standards in restoring power [to] the Plant."

Mon Power filed a motion to dismiss for lack of subject matter jurisdiction, asserting the court had no jurisdiction over it because it was statutorily immune. Citing the immunity extended to emergency services workers pursuant to West Virginia Code § 15-5-11(a), it argued that since the City "order[ed]" it to restore power to the plant, it was acting at the City's direction in providing emergency services and was therefore immune under the statute. The circuit court denied the motion via email from its law clerk, which ostensible ruling was immediately appealed. However, an order incorporating the ruling set forth in the email was not entered by the court until approximately two months later, on June 28, 2019.

In denying the motion, the circuit court found that a corporate entity such as Mon Power does not qualify as an "emergency service worker" under the statute, as that term is defined as including only an "employee" and not the corporate employer.3 The court alternatively found that the statutory immunity asserted by Mon Power is subject to an exception for "willful misconduct" and that respondents had sufficiently alleged facts to support such an allegation, but also granted further leave to amend their complaint in that respect. Notwithstanding these rulings which were first set out by email, in its order—entered after Mon Power had filed its notice of appeal—the court additionally found that there were material facts which "hinder[ ] and make[ ] any dispositive ruling on the issue of immunity premature at this early stage in discovery."4


This Court has held that "[a] circuit court's denial of summary judgment that is predicated on [ ] immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’ doctrine." Syl. Pt. 2, Robinson v. Pack , 223 W. Va. 828, 679 S.E.2d 660 (2009). Moreover, "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. " Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc. , 194 W. Va. 770, 461 S.E.2d 516 (1995).


This appeal requires us to determine whether a private corporate entity or employer is statutorily immune from liability under West Virginia Code § 15-5-11(a) for acts which constitute "emergency services" or, alternatively, whether it may vicariously benefit from the immunity of its employees acting as "duly qualified emergency services workers."5 We begin with a review of the applicable statutory language.


Chapter 15, article 5 of the West Virginia Code governs the "Division of Emergency Management" and section 11 establishes "[i]mmunity and exemption," providing, in pertinent part:

(a) All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions. Neither the state nor any political subdivision nor any agency of the state or political subdivision nor , except in cases
850 S.E.2d 689
of willful misconduct, any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order, rule, regulation or ordinance promulgated pursuant to this article, shall be liable for the death of or injury to any person or for damage to any property as a result of such activity . This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article, chapter twenty-three of this code, any Act of Congress or any other law.

(emphasis added). Subsection (c)(1) defines "duly qualified emergency service worker"6 as:

Any duly qualified full or part-time paid, volunteer or auxiliary employee of this state, or any other state, territory, possession or the District of Columbia, of the federal government, of any neighboring country or political subdivision thereof or of any agency or organization performing emergency services7 in this state subject to the order or control of or pursuant to the request of the state or any political subdivision thereof.

(emphasis and footnote added).

Mon Power argues that, despite the statutory language limiting the definition of "emergency services worker" to an "employee," the statute's purpose supports the conclusion that a corporate entity or employer is not necessarily expressly excluded from this immunity and, in fact, should fall within its ambit. In particular, Mon Power points to the opening statement of the immunity provision which provides that "[a]ll functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions." Id. § 15-5-11(a). It argues that it is the emergency function which is immunized under the statute, which immunity should extend to anyone—natural person or corporate entity—involved in such functions.

850 S.E.2d 690

Mon Power further cites the statement of "policy and purpose" set forth in West Virginia Code § 15-5-1 (2014), providing that it is the purpose of the article to "coordinate[ ] to the maximum extent"

with the Secretary of the Department of Military Affairs and Public Safety and with the comparable functions of the federal government including its various departments and agencies, of other states and localities and of private agencies of every type , so that the most effective preparation and use may be made of the nation's and this state's manpower, resources and facilities for dealing with any disaster or large-scale threat that may occur.

(emphasis added). In that regard, Mon Power argues that the intent of the statutory scheme is to coordinate all emergency response activities, characterize them as actions of the government, and bestow immunity upon their actors—both corporate and...

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