Parkulo v. West Virginia Bd. of Probation and Parole

• Citation: 199 W.Va. 161,483 S.E.2d 507
• Decision Date: 11 February 1997
• Docket Number: No. 23366,23366
• Parties: Chandra K. PARKULO, Plaintiff Below, Appellant v. WEST VIRGINIA BOARD OF PROBATION AND PAROLE and the West Virginia Division of Corrections, Defendant Below, Appellees.
• Court: Supreme Court of West Virginia

Page 507

483 S.E.2d 507

199 W.Va. 161

Chandra K. PARKULO, Plaintiff Below, Appellant v. WEST VIRGINIA BOARD OF PROBATION AND PAROLE and the West

Virginia Division of Corrections, Defendant Below,

Appellees.

No. 23366.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1996.

Decided Nov. 15, 1996.

Rehearing Refused Feb. 11, 1997.

[199 W.Va. 163] Syllabus by the Court

1. "Suits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State." Syl. pt. 2, Pittsburgh Elevator v. W.Va. Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).

2. "W.Va.Code, 29-12-5(a) (1986), provides an exception for the State's constitutional immunity found in Section 35 of Article VI of the West Virginia Constitution. It requires the State Board of Risk and Insurance Management to purchase or contract for insurance and requires that such insurance policy 'shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits.' " Syl. pt. 1, Eggleston v. W.Va. Dept. of Highways, 189 W.Va. 230, 429 S.E.2d 636 (1993).

3. In the future, this Court will not review suits against the State brought under the authority of W.Va.Code § 29-12-5 unless it is alleged that the recovery sought is limited to the applicable insurance coverage and the scope of the coverage and its exceptions are apparent from the record.

4. The Legislature may direct such limitation or expansion of the insurance coverages and exceptions applicable to cases brought under W.Va.Code § 29-12-5, as, in its wisdom, may be appropriate. The Legislature has also vested in the State Board of Insurance (Risk and Insurance Management) considerable latitude to fix the scope of coverage and contractual exceptions to that coverage by regulation or by negotiation of the terms of particular applicable insurance policies.

5. If the terms of the applicable insurance coverage and contractual exceptions thereto acquired under W.Va.Code § 29-12-5 expressly grant the State greater or lesser immunities or defenses than those found in the case law, the insurance contract should be applied according to its terms and the parties to any suit should have the benefit of the terms of the insurance contract.

6. Unless the applicable insurance policy otherwise expressly provides, a State agency or instrumentality, as an entity, is immune under common-law principles from tort liability in W.Va.Code § 29-12-5 actions 7. The common-law immunity of the State in suits brought under the authority of W.Va.Code § 29-12-5 (1996) with respect to judicial, legislative, and executive (or administrative) policy-making acts and omissions is absolute and extends to the judicial, legislative, and executive (or administrative) officials when performing those functions.

[199 W.Va. 164] for acts or omissions in the exercise of a legislative or judicial function and for the exercise of an administrative function involving the determination of fundamental governmental policy.

8. "A public executive official who is acting within the scope of his authority and is not covered by the provisions of W.Va.Code, 29-12A-1, et seq., is entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate clearly established laws of which a reasonable official would have known. There is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive. To the extent that State ex rel. Boone National Bank of Madison v. Manns, 126 W.Va. 643, 29 S.E.2d 621 (1944), is contrary, it is overruled." Syllabus, State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).

9. In cases arising under W.Va.Code § 29-12-5, and in the absence of express provisions of the insurance contract to the contrary, the immunity of the State is coterminous with the qualified immunity of a public executive official whose acts or omissions give rise to the case. However, on occasion, the State will be entitled to immunity when the official is not entitled to the same immunity; in others, the official will be entitled to immunity when the State is not. The existence of the State's immunity of the State must be determined on a case-by-case basis.

10. The public duty doctrine and its "special relationship" exception apply to W.Va.Code § 29-12-5 actions against the State and its instrumentalities, unless the doctrine is expressly waived or altered by the terms of the applicable insurance contract.

11. In cases arising under W.Va.Code § 29-12-5, the question of whether a special duty arises to protect an individual from a State governmental entity's negligence is ordinarily a question of fact for the trier of the facts.

12. The four requirements for the application of the "special relationship" exception to W.Va.Code § 29-12-5 cases are as follows: (1) An assumption by the state governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the state governmental entity's agents that inaction could lead to harm; (3) some form of direct contact between the state governmental entity's agents and the injured party; and (4) that party's justifiable reliance on the state governmental entity's affirmative undertaking.

13. In cases arising under W.Va.Code § 29-12-5, the Board of Probation and Parole, being a quasi-judicial body, is entitled to absolute immunity from tort liability for acts or omissions in the exercise of its judicial function, unless such immunity is expressly waived by the applicable insurance contract.

John F. Parkulo, Anderson, Parkulo, Stansbury & Associates, L.C., Beckley, and David L. White, White, Smith, Morgan & Scantlebury, L.C., Bluefield, for Appellant.

David P. Cleek, McQueen, Harmon, Potter and Cleek, Charleston, for Appellee, West Virginia Board of Probation and Parole.

Cheryl Lynne Connelly, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for Appellee, The West Virginia Division of Corrections.

ALBRIGHT, Justice:

Appellant, Chandra Parkulo, is appealing ¹ a final order of the Circuit Court of Cabell

[199 W.Va. 165] County, West Virginia, granting summary judgment to the West Virginia Division of Corrections and the West Virginia Board of Probation and Parole, refusing to grant a motion for reconsideration of an earlier order dismissing the action on the motion of the West Virginia Board of Probation and Parole, and refusing to grant a motion by appellant to file an amended complaint, all for the reason that the trial court considered appellant's civil action barred by the so-called "public duty doctrine" and considered that appellant did not meet the requirements of the so-called "special relationship" exception to that doctrine. After reviewing the record, we find that, on common-law principles, the Board of Probation and Parole may claim quasi-judicial immunity and the West Virginia Division of Corrections may claim the benefit of the public duty doctrine. However, we further find that there is insufficient evidence regarding whether the insurance applicable to this action, acquired by the State Board of Insurance (Risk and Insurance Management) of West Virginia, waived either or both of these defenses. Therefore, we reverse and remand for a determination as to whether the State's insurance contract provides coverage notwithstanding the availability of these defenses.

FACTS

Late on the evening of February 9, 1992, as appellant was walking across the campus of Marshall University in Huntington, West Virginia, she was hit and knocked to the ground by a vehicle being driven by Emmitt Dawson McCrary, Jr., a convicted criminal who had been released from prison. McCrary then struck appellant in the head with a blunt object and dragged her into the vehicle, which McCrary then drove from the scene. Following the abduction, McCrary repeatedly raped appellant, sexually assaulted her with a screwdriver, beat her, and eventually left her nude beside the roadway near the West Virginia-Kentucky state line. A passing motorist observed her, rescued her, and took her to the hospital, where she underwent treatment for the physical injuries she sustained. McCrary, later arrested in Boyd County, Kentucky, was tried for the crimes involving appellant and sentenced to prison. He subsequently died there. According to appellant, at the time McCrary committed the crimes involving appellant, he had been released from prison by the West Virginia Board of Probation and Parole and was then under parole supervision by the West Virginia Division of Corrections.

Appellant brought this action in January, 1994, naming as defendants the West Virginia Board of Probation and Parole (the "Board" or the "Parole Board") ² and the West Virginia Division of Corrections ("Corrections" or the "Division of Corrections"). ³ Appellant's complaint sought recovery from the two public bodies, as entities, and did not seek recovery against their respective officers or employees. The complaint alleged that the Board, in granting McCrary parole, and the Division of Corrections, in supervising McCrary while he was on parole, violated their respective statutory duties, acted outside the scope of their respective official responsibilities, and, through their respective employees, acted negligently, in bad faith, and in a wanton and reckless manner. As a proximate result, the complaint alleged, appellant was injured, for which she sought damages. Appellant subsequently served a motion to amend the complaint, but the record does not reflect the proposed amendments.

On March 1, 1994, the Parole Board filed a motion to dismiss, assigning multiple grounds. It appears that the motion was By letter of February 1, 1995,...