Nelson v. West Virginia Public Employees Ins. Bd.

• Decision Date: 04 March 1982
• Docket Number: No. 15468,15468
• Citation: 34 A.L.R. 4th 438,171 W.Va. 445,300 S.E.2d 86
• Parties: , 34 A.L.R.4th 438 Robert R. NELSON, et al. v. The WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE BOARD, et al.
• Court: West Virginia Supreme Court

Page 86

300 S.E.2d 86

171 W.Va. 445, 34 A.L.R.4th 438

Robert R. NELSON, et al. v. The WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE BOARD, et al.

No. 15468.

Supreme Court of Appeals of West Virginia.

March 4, 1982.

Concurring Opinion Jan. 20, 1983.

Syllabus by the Court

1. It is well established that the word "shall," in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.

2. W.Va.Code § 5-16-18 bestows upon all spouses and dependents of deceased members of the West Virginia Public Employees Group Insurance Plan, a clear right to continue their participation and coverage in the group insurance plan administered by the West Virginia Public Employees Insurance Board. The language of the statute is mandatory, and therefore also imposes a non-discretionary legal duty on the part of the respondents to extend coverage to the petitioners.

3. It is settled that in mandamus proceedings where a public officer willfully fails to obey the law, costs will be awarded.

4. In mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded.

Marjorie Martorella, Huntington, for petitioners.

Chauncey H. Browning, Atty. Gen. and Thomas Trent, Asst. Atty. Gen., Charleston, for respondents.

McGRAW, Justice:

This is an original proceeding in mandamus. The petitioners are Robert Nelson, Kathleen Via and Leoda Fortney. Petitioner Nelson is a member of the Senate of West Virginia and the chairman of the Senate Committee on Banking and Insurance. Petitioners Via and Fortney are surviving spouses of former employees of the State of West Virginia and its political subdivisions. The respondents are the West Virginia Public Employees Insurance Board, a body created and established in 1971 under the provisions of W.Va.Code § 5-16-3 (1979 Replacement Vol.) to provide group health and life insurance for all public employees, and Board members Glen B. Gainer, Jr., Auditor of the State of West Virginia, Gretchen Lewis State Workmen's Compensation Commissioner, and Larrie Bailey, Treasurer of the State of West Virginia. The petitioners seek to compel the respondents to comply with the provisions of W.Va.Code § 5-16-18 (1979 Replacement Vol.) which directs the Board to promulgate rules and regulations providing for the participation of dependents of deceased members of the group insurance plan administered by the Board. We find that the respondents have not fulfilled the mandate imposed by statute and award the writ.

Petitioner Via's husband was an employee of the Cabell County Board of Education for 37 years until his retirement in June of 1978. Petitioner Fortney's husband was an employee of the State of West Virginia for 42 years until he retired in August of 1981. Mr. Via and Mr. Fortney were participating members in the Board's Public Employees Group Insurance Plan during their years of employment. Upon retiring, both men elected to continue to participate in the insurance plan and paid to the Board the monthly premiums for continuing full coverage. Mr. Via died in May of 1981, and Mr. Fortney died in August of 1981. Both Mrs. Via and Mrs. Fortney wished to continue to participate in the group insurance plan, but were told that they could purchase insurance coverage under the Board's plan for only 90 days after their husbands' deaths. These petitioners purchased full coverage under the Board's plan for the three months following the death of their spouses, but were not permitted to participate in the plan thereafter. It is not contested that Mrs. Via and Mrs. Fortney were dependent spouses of their deceased husbands.

Mrs. Via contacted Senator Robert Nelson and informed him that her benefits under the Board's insurance plan had been terminated. Before the 1982 regular session of the West Virginia Legislature, the Senator had a bill drafted to provide for continued coverage of the dependents of deceased members of the insurance plan, but, upon introducing the bill to the Senate, discovered that an existing statute, W.Va.Code § 5-16-18 (1979 Replacement Vol.), already provided for such extended coverage. The Senator wrote to the executive secretary of the Board requesting an explanation for the Board's failure to extend coverage to dependents of deceased employees. In reply, the executive secretary admitted that the Board was fully aware that the law provided for extended coverage to dependents of deceased members, but indicated that it had been the policy of the Board since the inception of the program in 1972 to allow participation of such persons in the program only for a limited time following the death of the plan member.

The Senator found this response unacceptable and informed the executive secretary that extending an option to the dependents of deceased members to pay premiums and continue coverage was not a discretionary function of the Board, but, rather, was mandated by statute. Thereafter, Senator Nelson, Mrs. Via and Mrs. Fortney filed this petition for a writ of mandamus to compel the Board to: (1) reinstate coverage for dependents who have been wrongly terminated from group coverage; (2) cease forthwith from terminating citizens of the State entitled to group insurance under the law; (3) adopt rules and regulations permitting dependents of deceased members of the Public Employees Group Insurance Plan to continue participation and coverage in the plan to the same extent as any public employee or member of the group, upon payment of total cost for coverage; and (4) terminate from employment those administrators who have knowingly and willfully terminated from coverage citizens whom they knew were entitled to benefits under the law. The petitioners also pray for court costs and attorney fees and such other further and general relief as may seem proper.

The Public Employees Insurance Board was established by the Legislature in 1971 "to provide major medical insurance, and group life and accidental death insurance for all employees" of the State and its political subdivisions, including elected officers. W.Va.Code § 5-16-3 (1979 Replacement Vol.). The statute we are here asked to consider mandates that the Board extend the opportunity to participate voluntarily in the group insurance plan to retired employees, their spouses and dependents and the dependents of any deceased member:

The board shall promulgate such rules and regulations as may be required for the effective administration of the provisions of this article....

Such regulations shall provide that ... the dependents of any deceased member shall be entitled to continue their participation and coverage upon payment of the total cost for such coverage .... (Emphasis added.) W.Va.Code § 5-16-18 [1972].

It is well established that the word "shall," in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation. See Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981); Woodring v. Whyte, 161 W.Va. 262, 242 S.E.2d 238 (1978); Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).

The Board, by its answer, admits that it is required by W.Va.Code § 5-16-18 to extend optional coverage under its group plan to petitioners Via and Fortney, and other surviving dependents of deceased members. The Board contends, however, that the issues raised by the petitioners have been resolved by the Board's approval of a resolution proposing extension of coverage to surviving spouses and dependents of deceased covered members, and therefore moves to discharge the rule to show cause. The petitioners resist this motion contending the resolution, which was adopted after the petition herein was filed, is unclear with respect to the cost of coverage for dependents of deceased employees. The petitioners' concern is understandable. The resolution would be unacceptable if it places surviving spouses and dependents in a unique category of special risk participants, thereby destroying the character and purpose of the group insurance plan in opposition to the public policy statement of the relevant statutes.

The purpose of a group health insurance plan is to provide insurance protection at the lowest possible participant cost. The low participant cost is achieved by the efficiencies of administration inherent in issuing insurance to groups, and by the distribution of risk over the entire participating group.

The West Virginia plan is especially attractive to the employee for it provides that upon the death of the employee, his dependents "shall be entitled to continue their participation and coverage upon payment of the total cost for such coverage." W.Va.Code § 5-16-18. The public employee who participates in the group insurance plan authorized by the act should be secure in his belief that after his death his family will continue to receive adequate insurance protection at low group rates. The employee's survivors have a constitutional right to the benefits provided by extant statute. See Cooper v. Gwinn, supra.

However if the Board creates a unique category of special risk for surviving spouses and dependents it substantially reduces, if not eliminates, the advantages of group insurance to those dependents in a manner which is not contemplated by the act. The statutes contemplate that spouses and dependents of deceased employees will be entitled to continue to participate in the insurance plan at the same average premium rate chargeable to the members of the pool of which their decedents were members. Otherwise the size of the dependents' class and the number of claims that can be expected from a group with its characteristics will raise their premium rate to such a level as to eviscerate the advantages that normally attend participation in a group insurance plan.

While it is true that the Board is authorized to separately rate for claims experience purposes "any ......