IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
FILED
September 26, 2013
released at 3:00 p.m.
No. 12-0632 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JOSEPH E. JACKSON and
WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS,
Defendants Below, Petitioners
V.
JOSEPH WAYNE BELCHER,
Plaintiff Below, Respondent
Appeal from the Circuit Court of Mingo County
Honorable Michael Thornsbury, Judge
Civil Action No. 11-C-333
AFFIRMED
Submitted: September 10, 2013
Filed: September 26, 2013
Gary E. Pullin Stephen P. New
Nathan J. Chill Amanda J. Gardner
Pullin, Fowler, Flanagan, The Law Office of Stephen P. New
Brown & Poe, PLLC Beckley, West Virginia
Charleston, West Virginia Attorneys for the Respondent
Attorneys for the Petitioners
JUSTICE DAVIS delivered the Opinion of the Court.
CHIEF JUSTICE BENJAMIN and JUSTICE LOUGHRY dissent and reserve the right
to file dissenting opinions.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
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. “The standard of review applicable to an appeal from a motion to alter
or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that
would apply to the underlying judgment upon which the motion is based and from which the
appeal to this Court is filed.” Syllabus point 1, Wickland v. American Travellers Life
Insurance Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).
3. “A cardinal rule of statutory construction is that significance and effect
must, if possible, be given to every section, clause, word or part of the statute.” Syllabus
point 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999).
4. “In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given their
common, ordinary and accepted meaning in the connection in which they are used.” Syllabus
point 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled
on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
i
5. Judicial decisions rendered by the Supreme Court of Appeals of West
Virginia are laws of this State.
6. The preservation of an individual’s “right . . . to receive benefits or
compensation to which he or she would otherwise be entitled under . . . any other law” set
forth in W. Va. Code § 15-5-11(a) (2006) (Repl. Vol. 2009) encompasses an individual’s
right of recovery recognized by a decision of this Court.
7. “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.” Syllabus point 2,
Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W. Va. 743, 310 S.E.2d 675
(1983).
8. W. Va. Code § 15-5-11(a) (2006) (Repl. Vol. 2009) expressly preserves
an individual’s right “to receive benefits or compensation to which he or she would otherwise
be entitled under . . . any other law” and operates to permit an individual to maintain a cause
of action against the State and/or its employee(s) to recover for injuries allegedly caused by
the provision of emergency services where the emergency services are provided by the State
ii
or by an emergency service worker who is an employee of the State and the recovery sought
is confined to the limits of the State’s liability insurance coverage.
iii
Davis, Justice:
The petitioners herein and defendants below, Joseph E. Jackson (hereinafter
“Mr. Jackson”) and the West Virginia Department of Transportation, Division of Highways
(hereinafter “DOH”), appeal from two orders entered by the Circuit Court of Mingo County.
By its first order, entered March 7, 2012, the circuit court denied the motion for summary
judgment filed by Mr. Jackson and the DOH, concluding that the language of W. Va. Code
§ 15-5-11(a) (2006) (Repl. Vol. 2009)1 contemplates exceptions to the immunity that the
statute provides to emergency service workers. In its second order, entered April 13, 2012,
the circuit court denied the joint motion filed by Mr. Jackson and the DOH to alter or amend
the court’s previous summary judgment ruling. On appeal to this Court, Mr. Jackson and the
DOH contend that the circuit court erred because Mr. Jackson was working as an emergency
service worker at the time of the subject motor vehicle accident, and, as an emergency
service worker, Mr. Jackson is entitled to immunity under W. Va. Code § 15-5-11(a). Upon
a review of the parties’ arguments, the appendix record, and the pertinent authorities, we
affirm the circuit court’s orders. In summary, we conclude that W. Va. Code § 15-5-11(a)
expressly preserves an individual’s right “to receive benefits or compensation to which he
or she would otherwise be entitled under . . . any other law” and operates to provide a limited
waiver of the emergency service worker immunity provided by W. Va. Code § 15-5-11(a)
1
See Section III, infra, for the text of W. Va. Code § 15-5-11(a) (2006) (Repl.
Vol. 2009).
1
where the emergency service worker is an employee of this State and the recovery sought is
confined “to the limits of the State’s liability insurance coverage.” Syl. pt. 2, in part,
Pittsburgh Elevator Co. v. West Virginia Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675
(1983).
I.
FACTUAL AND PROCEDURAL HISTORY
The underlying facts giving rise to the instant appeal are not disputed by the
parties. In early May 2009, Mingo County, West Virginia, experienced severe storms that
caused devastating flooding, mudslides, landslides, and stream blockages. Afterwards, then-
Governor Joe Manchin, III, declared a State of Emergency encompassing Mingo County and
other similarly-affected counties in the region. Ultimately, the State of Emergency was in
place through July 10, 2009, to permit clean-up and repairs to damaged property and
roadways.
On June 23, 2009, Mr. Jackson, an employee of the DOH, was operating a
dump truck in Gilbert, West Virginia, and performing clean-up work pursuant to the existing
State of Emergency declaration.2 At the time of his accident with the respondent herein and
2
The DOH and its employees were insured under the State of West Virginia’s
policy of liability insurance. See generally W. Va. Code § 29-12-5 (2006) (Repl. Vol. 2008).
2
plaintiff below, Joseph Wayne Belcher (hereinafter “Mr. Belcher”), Mr. Jackson was backing
up his dump truck when he struck the front and side of Mr. Belcher’s automobile. Mr.
Jackson alleges that he did not see Mr. Belcher’s vehicle because it was in his blind spot.
Mr. Belcher claims that, as a result of the accident, he suffered neck and back injuries, and
his car was totaled.
Mr. Belcher filed the instant civil action against Mr. Jackson and the DOH on
June 21, 2011, alleging negligence and vicarious liability. After they answered Mr. Belcher’s
complaint, Mr. Jackson and the DOH then moved for summary judgment3 claiming that they
were entitled to immunity because the subject accident occurred while Mr. Jackson was
serving as an emergency service worker, and W. Va. Code § 15-5-11(a) (2006) (Repl. Vol.
2009)4 provides immunity to emergency service workers. The circuit court held a hearing
on the summary judgment motion and initially contemplated certifying the immunity question
to this Court. However, the circuit court ultimately determined certification to be
unnecessary, and, in its March 7, 2012, summary judgment order, the court ruled as follows:
The Court FINDS that the decision in Pittsburgh Elevator [Co.
v. West Virginia Board of Regents, 172 W. Va. 743, 310 S.E.2d
675 (1983),] would qualify as an exception to the statutory
3
West Virginia Rule of Civil Procedure 56(c) permits an award of summary
judgment where “there is no genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.”
4
The text of W. Va. Code § 15-5-11(a) (2006) (Repl. Vol. 2009) is set forth in
Section III, infra.
3
immunity of the above-cited statute [W. Va. Code § 15-5-11]
under the “any other law” exception. While the case of
Pittsburgh Elevator dealt with constitutional immunity, it is
logical to assume that the West Virginia Supreme Court of
Appeal[s] would extend it to statutory immunity. Additionally,
by the language of West Virginia Code § 15-5-11, in which it
carves out the possibility of exceptions, it does not appear that
the statute intended to close the door on all suits against the
State.
(Emphasis added).
After this ruling, Mr. Jackson and the DOH timely filed a motion to alter or
amend the circuit court’s judgment pursuant to Rule 59(e) of the West Virginia Rules of Civil
Procedure.5 Thereafter, the circuit court, by order entered April 13, 2012, denied the motion
to alter or amend judgment filed by Mr. Jackson and the DOH, reiterating its prior ruling in
its summary judgment order and stating that “[t]he Court stands b[y] the aforementioned
language in its decision to deny the Motion For Summary Judgment[.]”
Following these adverse rulings, Mr. Jackson and the DOH appeal to this
Court.
5
Rule 59(e) of the West Virginia Rules of Civil Procedure requires that “[a]ny
motion to alter or amend the judgment shall be filed not later than 10 days after entry of the
judgment.”
4
II.
STANDARD OF REVIEW
The case sub judice comes to this Court on appeal from the circuit court’s order
granting summary judgment to Mr. Belcher and from the circuit court’s order denying the
joint motion of Mr. Jackson and the DOH to alter or amend the court’s summary judgment
ruling. We previously have held that “[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.” Syl. pt. 3, Aetna Cas. & Sur.
Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). When a lower
court has entered an order awarding summary judgment, we accord a plenary review to the
court’s ruling: “[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).
We likewise will review the circuit court’s ruling denying the motion to alter
or amend its judgment de novo because
[t]he standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W. Va.
R. Civ. P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and from
which the appeal to this Court is filed.
Syl. pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657
(1998).
5
Mindful of these standards, we proceed to consider the parties’ arguments.
III.
DISCUSSION
On appeal to this Court, Mr. Jackson and the DOH contend that Mr. Belcher’s
suit against them is barred by the immunity granted to emergency service workers by W. Va.
Code § 15-5-11(a) insofar as Mr. Jackson was working as an emergency service worker at
the time of his accident with Mr. Belcher. In finding that the immunity provided by W. Va.
Code § 15-5-11(a) does not bar Mr. Belcher’s lawsuit, the circuit court determined that this
Court’s prior decision in Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172
W. Va. 743, 310 S.E.2d 675 (1983), should be interpreted to permit Mr. Belcher to recover
from the State’s liability insurance for his injuries that were allegedly caused by Mr. Jackson.
The statute providing immunity to emergency service workers, W. Va. Code
§ 15-5-11(a) (2006) (Repl. Vol. 2009), provides that
[a]ll 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
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
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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). Interpreting the “any other law” language of W. Va. Code § 15-5-11(a)
as encompassing decisions of this Court, the circuit court determined that this Court’s
holding in Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W. Va. 743, 310
S.E.2d 675 (1983), applied to permit Mr. Belcher to maintain his cause of action against Mr.
Jackson and the DOH. In Syllabus point 2 of Pittsburgh Elevator, we held, with respect to
a claim of constitutional immunity, that “[s]uits 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.”
Id.
Before this Court, the parties agree that Mr. Jackson was employed by the
DOH and that he was serving as an emergency service worker at the time of the subject
accident as contemplated by W. Va. Code § 15-5-11(a). See also W. Va. Code § 15-5
11(c)(1) (2006) (Repl. Vol. 2009) (“As used in this section, ‘duly qualified emergency
service worker’ means: [a]ny duly qualified full or part-time paid, volunteer or auxiliary
employee of this state . . . performing emergency services in this state subject to the order or
control of or pursuant to the request of the state or any political subdivision thereof.”).
However, they disagree as to whether the statute’s preservation of recovery rights that are
7
available to an individual under “any other law” permits Mr. Belcher to maintain his cause
of action against Mr. Jackson and the DOH or whether they are immune from suit pursuant
to W. Va. Code § 15-5-11(a).
Mr. Jackson and the DOH contend that W. Va. Code § 15-5-11(a) preserves
Mr. Belcher’s recovery rights that are secured by statutory law, but that this Court’s prior
decisions, including Pittsburgh Elevator, do not constitute “any other law” as contemplated
by the statute. Moreover, they argue that Mr. Belcher’s negligence claims do not allege
“willful misconduct” by either Mr. Jackson or the DOH so as to bring the claims within the
stated exception to the immunity provided by W. Va. Code § 15-5-11(a).
By contrast, Mr. Belcher agrees with the circuit court’s interpretation of this
unique statutory language as including this Court’s judicial decisions within the phrase “any
other law” because judicial decisions are laws of the state in which the tribunal sits. Citing
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949);
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). In further
support of his argument, Mr. Belcher contends that W. Va. Code § 15-5-11(a) permits him
to seek recovery up to the limits of the State’s insurance because W. Va. Code § 29-12-5
(2006) (Repl. Vol. 2008) authorizes the Board of Insurance to purchase liability insurance
on behalf of the State to insure it against tort claims. Additionally, Mr. Belcher asserts that
8
a logical extension of this Court’s prior decision in Pittsburgh Elevator would entitle him to
seek recovery from the State’s liability insurance coverage despite the statute’s grant of
immunity to emergency service workers because his recovery would be limited to the State’s
insurance coverage and would not be against the State, itself.
Central to our resolution of the instant controversy is the meaning and effect
of W. Va. Code § 15-5-11(a). We previously have held that “[t]he primary object in
construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt.
1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). In
order to fulfill a statute’s legislative intent, it is necessary to give effect to every word and
part of a statute in order to effectuate its true meaning. “It is a well known rule of statutory
construction that the Legislature is presumed to intend that every word used in a statute has
a specific purpose and meaning.” State ex rel. Johnson v. Robinson, 162 W. Va. 579, 582,
251 S.E.2d 505, 508 (1979). As such, “[a] cardinal rule of statutory construction is that
significance and effect must, if possible, be given to every section, clause, word or part of
the statute.” Syl. pt. 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676
(1999). Accord Syl. pt. 7, Ex parte Watson, 82 W. Va. 201, 95 S.E. 648 (1918) (“It is
presumed that the legislature had a purpose in the use of every word, phrase and clause found
in a statute and intended the terms so used to be effective, wherefore an interpretation of a
statute which gives a word, phrase or clause thereof no function to perform, or makes it, in
9
effect, a mere repetition of another word, phrase or clause thereof must be rejected as being
unsound, if it be possible so to construe the statute as a whole, as to make all of its parts
operative and effective.”). Simply stated, this Court is required to consider the entire
language of a legislative enactment when presented with a case questioning the statute’s
meaning; we are not at liberty to selectively read a portion of the challenged statutory section
and to disregard the remainder of the language employed by the Legislature. When the
statute, read in its entirety, is clear and unambiguous, we apply, rather than construe, the
statute. “Where the language of a statute is clear and without ambiguity the plain meaning
is to be accepted without resorting to the rules of interpretation.” Syl. pt. 2, State v. Elder,
152 W. Va. 571, 165 S.E.2d 108 (1968). Accord Appalachian Power Co. v. State Tax Dep’t
of West Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995) (“We look first to the
statute’s language. If the text, given its plain meaning, answers the interpretive question, the
language must prevail and further inquiry is foreclosed.”).
In the case sub judice, the parties differ as to the meaning of the phrase “any
other law.” W. Va. Code § 15-5-11(a) employs this phrase to identify one of the sources
from which an individual’s right to recover has been preserved despite the statute’s grant of
immunity to emergency service workers. Mr. Jackson and the DOH argue that “any other
law” does not include judicial decisions, while Mr. Belcher, and the circuit court, contend
that “any other law” encompasses the decisions of this Court. The term “any” has not been
10
defined by the Legislature in this statute. “In the absence of any definition of the intended
meaning of words or terms used in a legislative enactment, they will, in the interpretation of
the act, be given their common, ordinary and accepted meaning in the connection in which
they are used.” Syl. pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941),
overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477
(1982). Therefore, we must look to the common, ordinary meaning of the term “any” to
determine the intended scope of this phrase.
We previously have determined “any” to be an inclusive term meaning “all”:
In common parlance, the adjective “any” refers to “‘all.’” Tracy
v. Cottrell ex rel. Cottrell, 206 W. Va. 363, 379, 524 S.E.2d 879,
895 (1999) (quoting Harward v. Virginia, 229 Va. 363, 366, 330
S.E.2d 89, 91 (1985)). Accord Sussex Cmty. Servs. Ass’n v.
Virginia Soc’y for Mentally Retarded Children, Inc., 251 Va.
240, 243, 467 S.E.2d 468, 469 (1996) (“The word ‘any’ . . . is
generally considered to apply without limitation.”); Cox v. Cox,
16 Va. App. 146, 148, 428 S.E.2d 515, 516 (1993) (“The plain
and unambiguous meaning of the word ‘any’ is one or more
indiscriminately from all those of a kind.” (internal quotations
and citation omitted)).
United Bank, Inc. v. Stone Gate Homeowners Ass’n, Inc., 220 W. Va. 375, 380, 647 S.E.2d
811, 816 (2007). Therefore, it appears that the phrase “any other law” includes law from
“all” sources. One such source of law is the jurisprudence of this Court. In Erie Railroad
Company v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938), the
United States Supreme Court explicitly recognized that “the law of the state shall be declared
11
by its Legislature in a statute or by its highest court in a decision.” (Emphasis added). The
Court further explained that “law in the sense in which courts speak of it today does not exist
without some definite authority behind it. . . . The authority . . . is . . . the voice adopted by
the State as its own (whether it be of its Legislature or of its Supreme Court) . . . .” Erie, 304
U.S. at 79, 58 S. Ct. at 822, 82 L. Ed. 1188 (emphasis added) (internal quotations and citation
omitted). Summarizing its decision in Erie, the United States Supreme Court subsequently
succinctly stated that “judicial decisions are laws of the states.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 555, 69 S. Ct. 1221, 1230, 93 L. Ed. 1528 (1949) (citing Erie, 304
U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188). In recognition of these pronouncements, we now
expressly hold that judicial decisions rendered by the Supreme Court of Appeals of West
Virginia are laws of this State. Applying this holding to the facts of the case sub judice, we
further hold that the preservation of an individual’s “right . . . to receive benefits or
compensation to which he or she would otherwise be entitled under . . . any other law” set
forth in W. Va. Code § 15-5-11(a) (2006) (Repl. Vol. 2009) encompasses an individual’s
right of recovery recognized by a decision of this Court.
Having established that the decisions of this Court constitute “any other law”
under W. Va. Code § 15-5-11(a), we now must determine whether a prior decision of this
Court allows Mr. Belcher to recover under the facts of this case. In Pittsburgh Elevator
Company v. West Virginia Board of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983), we
12
considered whether a suit could be maintained against a State agency entitled to
constitutional immunity where the recovery sought was confined to the limits of the State’s
liability insurance coverage. We first observed that, although the West Virginia Constitution
bars suits against the State generally, our Constitution simultaneously secures an individual’s
right to access the courts of this State to seek redress for his/her injuries regardless of the
person or entity who is responsible for causing or inflicting such harm:
Our constitution clearly contemplates that every person
who is damaged in his person, property, or reputation shall have
recourse to the courts to seek the redress of his injuries. See
W. Va. Const. art. III, §§ 9, 10, 17. See generally Cooper v.
Gwinn, 171 W. Va. 245, [250,] 298 S.E.2d 781, 786 (1981).
The fact that the wrongdoer is an instrumentality of state
government should not eviscerate these constitutional rights,
inasmuch as the Bill of Rights contained in article III is designed
to protect people from government.
Pittsburgh Elevator, 172 W. Va. at 754, 310 S.E.2d at 686.
Reconciling the general grant of immunity afforded to the State by our
Constitution and the coexisting constitutional right of individuals to seek and obtain recovery
for their injuries in the Courts of this State, we observed that “[t]he paramount justification
underlying the constitutional grant of immunity is to protect the financial structure of the
State.” Id., 172 W. Va. at 756, 310 S.E.2d at 688 (footnote and citation omitted). Insofar as
“W. Va. Code § 29-12-5 . . . authorizes the Board of Insurance to procure liability insurance
on behalf of the State, and . . . further prohibits the insurer from whom a policy has been
13
purchased from relying upon the constitutional immunity of the State against claims or suits,”
we concluded that “a suit seeking recovery against the State’s insurance carrier is outside the
bounds of the constitutional bar to suit contained in W. Va. Const. art. VI, § 35.” Id.
(footnote omitted). This is so, we explained, because “where recovery is sought against the
State’s liability insurance coverage, the doctrine of constitutional immunity, designed to
protect the public purse, is simply inapplicable.” Pittsburgh Elevator, 172 W. Va. at 756,
310 S.E.2d at 689. In short, “‘[w]here liability insurance is present, the reasons for immunity
completely disappear.’” Id. (quoting Gooden v. County Comm’n of Webster Cnty., 171
W. Va. 130, 132, 298 S.E.2d 103, 105 (1982)). Therefore, we held that “[s]uits 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, 172 W. Va. 743, 310 S.E.2d 675.
We find the same reasoning we employed in Pittsburgh Elevator applies with
equal force to the issue presented by the instant proceeding. In the case sub judice, the
immunity afforded to emergency service workers, and state agencies providing emergency
services, has been granted by the Legislature’s enactment of W. Va. Code § 15-5-11(a).
However, in establishing this emergency service worker immunity, the Legislature
correspondingly also has preserved the rights of individuals to receive compensation or
benefits secured to them by law. In Pittsburgh Elevator, we reconciled the competing
14
constitutional rights of the State’s immunity and an individual’s right to access the courts to
seek redress for his/her injuries by concluding that the potential injury to the State’s purse
by allowing the maintenance of a suit against the State is no longer a concern where the
recovery sought is not from the State, itself, but from the State’s insurance coverage. See
Pittsburgh Elevator, 172 W. Va. at 756, 310 S.E.2d at 689. Here, applying our prior holding
in Pittsburgh Elevator to allow recovery from the State’s insurance for injuries resulting from
the provision of emergency services by the State and/or its employees is entirely consistent
with the Legislature’s express preservation of an individual’s recovery rights. By permitting
an individual to recover from the State’s insurance coverage, the public treasury remains
protected while the individual, him/herself, retains the “right . . . to receive benefits or
compensation to which he or she would otherwise be entitled . . . .” W. Va. Code § 15-5
11(a). Therefore, we hold that W. Va. Code § 15-5-11(a) (2006) (Repl. Vol. 2009) expressly
preserves an individual’s right “to receive benefits or compensation to which he or she would
otherwise be entitled under . . . any other law” and operates to permit an individual to
maintain a cause of action against the State and/or its employee(s) to recover for injuries
allegedly caused by the provision of emergency services where the emergency services are
provided by the State or by an emergency service worker who is an employee of the State and
the recovery sought is confined “to the limits of the State’s liability insurance coverage.”
15
Syl. pt. 2, in part, Pittsburgh Elevator, 172 W. Va. 743, 310 S.E.2d 675.6 Applying this
holding to the facts of this case, we conclude that the circuit court correctly permitted Mr.
Belcher to maintain his cause of action against Mr. Jackson and the DOH for the injuries he
allegedly sustained during Mr. Jackson’s provision of emergency services, and, further, that
the circuit court correctly upheld its ruling. Therefore, we affirm the circuit court’s orders.
6
Our review of the law of other jurisdictions indicates that W. Va. Code § 15-5
11(a) (2006) (Repl. Vol. 2009) is a unique statute insofar as only one other state, Arkansas,
has enacted a statute that expressly provides immunity to emergency service workers and
preserves an individual’s recovery rights. See Ark. Code Ann. § 12-75-128 (West 2009).
While the preservation of rights language of both our statute and the Arkansas statute is
similar, the language employed by the Arkansas Legislature is more restrictive insofar as it
does not preserve the recovery rights afforded to an individual under “any other law” as does
our statute. Compare Ark. Code Ann. § 12-75-128(d) (“The provisions of this section shall
not affect the right of any person to receive benefits to which he or she would otherwise be
entitled to under this chapter, under the Workers’ Compensation Law, § 11-9-101 et seq., or
under the retirement system laws of Arkansas nor the right of any such person to receive any
benefits or compensation under any act of Congress.”) with W. Va. Code § 15-5-11(a) (“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.”). Moreover, while several jurisdictions have considered
whether a city or county providing emergency services has waived immunity up to the limits
of its liability insurance, only one jurisdiction has considered this issue in a context similar
to the case sub judice regarding a state’s provision of emergency services. In Pauley v.
Reinoehl, 848 A.2d 569 (Del. 2004), the Delaware Supreme Court determined that
Delaware’s emergency vehicle statute specifically waives sovereign immunity up to the
amount of the State’s insurance coverage.
16
IV.
CONCLUSION
For the foregoing reasons, the March 7, 2012, and April 13, 2012, orders of the
Circuit Court of Mingo County are hereby affirmed.
Affirmed.
17