Trivett v. Summers Cnty. Comm'n

• Docket Number: 22-0202
• Decision Date: 08 November 2023
• Parties: BARBARA STINE TRIVETT, ADMINISTRATRIX OF THE ESTATE OF JASPER TRIVETT, Plaintiff Below, Petitioner, v. SUMMERS COUNTY COMMISSION d/b/a SUMMERS COUNTY OFFICE OF EMERGENCY MANAGEMENT and CARMEN CALES, Defendants Below, Respondents.
• Court: West Virginia Supreme Court

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BARBARA STINE TRIVETT, ADMINISTRATRIX OF THE ESTATE OF JASPER TRIVETT, Plaintiff Below, Petitioner, v. SUMMERS COUNTY COMMISSION d/b/a SUMMERS COUNTY OFFICE OF EMERGENCY MANAGEMENT and CARMEN CALES, Defendants Below, Respondents.

No. 22-0202

Supreme Court of Appeals of West Virginia

November 8, 2023

Submitted: September 6, 2023

Appeal from the Circuit Court of Summers County The Honorable Robert A. Irons, Judge Civil Action No. 21-C-27

John J. Mize, Esq. MIZE LAW FIRM, PLLC Beckley, West Virginia Counsel for the Petitioner

Drannon L. Adkins, Esq. Wendy E. Greve, Esq. Pullin, Fowler Flanagan, Brown & Poe, PLLC

Charleston, West Virginia Counsel for the Respondents JUSTICE WOOTON delivered the Opinion of the Court. JUSTICE ARMSTEAD concurs, in part, and dissents, in part, and reserves the right to file a separate opinion. JUSTICE HUTCHISON concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. "'"'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)." Syllabus Point 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).' Syl. Pt. 2, Boone v. Activate Healthcare, LLC, 245 W.Va. 476, 859 S.E.2d 419 (2021)." Syl. Pt. 2, Judy v. E. W.Va. Cmty. & Tech. Coll., 246 W.Va. 483, 874 S.E.2d 285 (2022).

2. "'"'Appellate 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)." Syllabus Point 1, Barber v. Camden Clark Mem'l Hosp. Corp., 240 W.Va. 663, 815 S.E.2d 474 (2018).' Syl. Pt. 1, Boone v. Activate Healthcare, LLC, 245 W.Va. 476, 859 S.E.2d 419 (2021)." Syl. Pt. 1, Judy v. E. W. Virginia Cmty. & Tech. Coll., 246 W.Va. 483, 874 S.E.2d 285 (2022).

3." W.Va. Code, 29-12A-6 (1986), violates the Equal Protection Clause found in Section X of Article III of the West Virginia Constitution to the extent that it denies to minors the benefit of the statute of limitations provided in the general tolling statute, W.Va. Code, 55-2-15 (1923)."

Syl. Pt. 3, Whitlow v. Bd. of Educ. of Kanawha Co., 190 W.Va. 223, 438 S.E.2d 15 (1993).

4. "'It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.' Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925)." Syl. Pt. 2, Conseco Fin. Servicing Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).

5. The minority tolling provision set forth in the Governmental Tort Claims and Insurance Reform Act, West Virginia Code section 29-12A-6(b) (2023), does not extend to the executor or administrator of a deceased child's estate in a lawsuit brought on behalf of a child who was under the age of ten at the time of his or her death.

6. "The Medical Professional Liability Act, W.Va. Code §§ 55-7B-1 to -12, applies only when two conditions are satisfied, that is, when a plaintiff (1) sues a "health care provider" or "health care facility" for (2) "medical professional liability" as those terms are defined under the Act. These are separate and distinct conditions. If either of these two conditions is lacking, the Act does not apply." Syl. Pt. 5, State ex rel. W.Va. Div. of Corr. & Rehab. v. Ferguson, 248 W.Va. 471, 889 S.E.2d 44 (2023).

7. "The 'discovery rule' is generally applicable to all torts, unless there is a clear statutory prohibition to its application." Syl. Pt. 2, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

8. "A five-step analysis should be applied to determine whether a cause of action is time-barred. First, the court should identify the applicable statute of limitation for each cause of action. Second, the court (or, if questions of material fact exist, the jury) should identify when the requisite elements of the cause of action occurred. Third, the discovery rule should be applied to determine when the statute of limitation began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). Fourth, if the plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action. Whenever a plaintiff is able to show that the defendant fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the potential cause of action, the statute of limitation is tolled. And fifth, the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine. Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact. Syl. Pt. 5, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

9. "'In a wrongful death action, under the discovery rule, the statute of limitation contained in W.Va. Code, 55-7-6(d) [(1992)] begins to run when the decedent's representative knows or by the exercise of reasonable diligence should know (1) that the decedent has died; (2) that the death was the result of a wrongful act, neglect, or default; (3) the identity of the person or entity who owed the decedent a duty to act with due care and who may have engaged in conduct that breached that duty; and (4) that the wrongful act, neglect or default of that person or entity has a causal relation to the decedent's death.' Syllabus point 8, Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681 (2001)." Syl. Pt. 4, Mack-Evans v. Hilltop Healthcare Ctr., Inc., 226 W.Va. 257, 700 S.E.2d 317 (2010).

WOOTON, Justice:

This appeal presents intertwined questions as to which of several possible statutes of limitation applies in a wrongful death action brought by the petitioner, Barbara Stine Trivett ("the petitioner"), administratrix of the estate of the decedent, Jasper Trivitt ("baby Jasper"), where baby Jasper was under the age of ten at the time of his death and the respondents, Summers County Commission d/b/a Summers County Office of Emergency Management ("respondent Emergency Management" or "911") and its employee Carmen Cales ("respondent Cales"), are governmental entities; and under what circumstances those statutes, if applicable, may be tolled. The circuit court granted the respondents' motion to dismiss the complaint on the ground that the petitioner's complaint had not been timely filed. Specifically, the court held that the two-year statute of limitations contained in the Governmental Tort Claims and Insurance Reform Act ("the Tort Claims Act" or "the Act"), West Virginia Code section 29-12A-6(a) (2023), applied to the petitioner's claims, and that the statute of limitations was not tolled by either the minority tolling provision contained in the Act, West Virginia Code section 29-12A-6(b), or the discovery rule as explicated in this Court's precedents.

Based on our review of the parties' briefs and oral arguments, the applicable law, the appendix record, and all other matters before this Court, we affirm, in part, reverse, in part, and remand for further proceedings consistent with this opinion.

I. Facts and Procedural Background

On September 15, 2019, at approximately 4:18 a.m., the petitioner found her five-week-old son, Baby Jasper, unresponsive. The petitioner immediately called respondent Emergency Management on its 911 line and was connected to respondent Cales. After the petitioner had described the situation, and while still on the phone with her, respondent Cales made two unsuccessful attempts to contact Emergency Medical Services ("EMS"), the first attempt taking place at 4:19 a.m. and the second at 4:20 a.m. At this point, the petitioner requested instructions on how to perform cardiopulmonary resuscitation ("CPR") on baby Jasper, a request which respondent Cales declined, stating that "we do not give directions" on how to perform CPR.^[1] The petitioner then asked whether she should transport baby Jasper to Summers County Hospital on her own, and respondent Cales instructed her to do so.

The petitioner and her husband immediately set out on a frantic trip to the hospital, with Mr. Trivett driving the car and the petitioner attempting to perform CPR on baby Jasper. By the time they arrived at the hospital baby Jasper had been deprived of oxygen for at least nine minutes, and although he was revived at the hospital and flown to Ruby Memorial Hospital, he died on September 17, 2019, two days later.

Approximately one week after baby Jasper's death, the petitioner through counsel, filed a Freedom of Information Act^[2] request for the 911 audio from September 15, 2019.^[3] The audiotape, which was received by counsel on October 14, 2019, revealed that respondent Cales had reached EMS on her third attempt, some seventeen seconds after disconnecting from the petitioner. Respondent Cales spoke to ambulance driver Jacob Woodrum, who asked for the petitioner's address so that an ambulance could be dispatched. However, respondent Cales did not provide it, identifying only the...