West Virginia Department of Health & Human Resources v. Payne

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term FILED
June 12, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 11-1701 SUPREME COURT OF APPEALS
OF WEST VIRGINIA

THE WEST VIRGINIA DEPARTMENT OF HEALTH

AND HUMAN RESOURCES; THE WEST VIRGINIA OFFICE OF BEHAVIORAL

HEALTH SERVICES; THE WEST VIRGINIA BUREAU FOR

MEDICAL SERVICES; and THE WEST VIRGINIA OFFICE OF

HEALTH FACILITY LICENSURE AND CERTIFICATION,

Defendants Below, Petitioners

v.

GREGORY PAYNE, individually and as Executor of the Estate of

CRAIG ALLEN PAYNE, and BETTY JO PAYNE, individually,

Plaintiffs Below, Respondents

Appeal from the Circuit Court of Kanawha County

The Honorable Carrie Webster, Judge

Civil Action No. 07-C-1407

REVERSED AND REMANDED

Submitted: March 26, 2013

Filed: June 12, 2013

M. Andrew Brison, Esq. William C. Forbes, Esq.
Joshua R. Martin, Esq. W. Jesse Forbes, Esq.
ALLEN, KOPET & ASSOCIATES, PLLC FORBES LAW OFFICES, PLLC
Charleston, West Virginia Charleston, West Virginia
Attorneys for Petitioners Attorneys for Respondents

JUSTICE WORKMAN delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “This Court reviews de novo the denial of a motion for summary

judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley

v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

2. “A circuit court’s denial of summary judgment that is predicated on

qualified 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).

3. “Although our standard of review for summary judgment remains de

novo, a circuit court’s order granting summary judgment must set out factual findings

sufficient to permit meaningful appellate review. Findings of fact, by necessity, include

those facts which the circuit court finds relevant, determinative of the issues and

undisputed.” Syl. Pt. 3, Fayette County National Bank v. Lilly, 199 W. Va. 349, 484

S.E.2d 232 (1997).

4. A circuit court’s order denying summary judgment on qualified

immunity grounds on the basis of disputed issues of material fact must contain sufficient

detail to permit meaningful appellate review. In particular, the court must identify those

material facts which are disputed by competent evidence and must provide a description

i
of the competing evidence or inferences therefrom giving rise to the dispute which

preclude summary disposition.

5. “The ultimate determination of whether qualified or statutory

immunity bars a civil action is one of law for the court to determine. Therefore, unless

there is a bona fide dispute as to the foundational or historical facts that underlie the

immunity determination, the ultimate questions of statutory or qualified immunity are

ripe for summary disposition.” Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va.

139, 479 S.E.2d 649 (1996).

6. “In the absence of an insurance contract waiving the defense, the

doctrine of qualified or official immunity bars a claim of mere negligence against a State

agency not within the purview of the West Virginia Governmental Tort Claims and

Insurance Reform Act, W. Va. Code § 29–12A–1, et seq., and against an officer of that

department acting within the scope of his or her employment, with respect to the

discretionary judgments, decisions, and actions of the officer.” Syl. Pt. 6, Clark v. Dunn,

195 W.Va. 272, 465 S.E.2d 374 (1995).

7. “‘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. [the

West Virginia Governmental Tort Claims and Insurance Reform Act], is entitled to

qualified immunity from personal liability for official acts if the involved conduct did not

ii
violate clearly established laws of which a reasonable official would have known. . . .’

Syllabus, State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).” Syl.

Pt. 3, in part, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).

8. “If a public officer is either authorized or required in the exercise of

his judgment and discretion, to make a decision and to perform acts in the making of that

decision, and the decision and acts are within the scope of his duty, authority, and

jurisdiction, he is not liable for negligence or other error in the making of that decision, at

the suit of a private individual claiming to have been damaged thereby.” Syl. Pt. 4, Clark

v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

iii
WORKMAN, Justice:

The West Virginia Department of Health and Human Resources

(“DHHR”), Office of Behavior Health Services (“BHS”), Bureau for Medical Services

(“BMS”), and Office of Health Facility Licensure and Certification (“OHFLAC”)

(hereinafter collectively “DHHR defendants”) appeal the November 10, 2011, order of

the Circuit Court of Kanawha County, denying their motion for summary judgment on

qualified immunity grounds. On appeal, the DHHR defendants contend that the circuit

court erred in finding that genuine issues of material fact existed as to whether the actions

of the DHHR defendants were discretionary, thereby precluding summary judgment.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and

the applicable legal authority, we find that the DHHR defendants are entitled to qualified

immunity; therefore, we reverse the order of the circuit court and remand the case for

entry of an order granting summary judgment and dismissing the action against them.

I. FACTS AND PROCEDURAL HISTORY

On February 12, 2007, Craig Allen Payne, 22 (hereinafter “Payne”), died

after choking on a hot dog fed to him at the D.E.A.F. Education and Advocacy Focus,

Inc. (hereinafter “DEAF”) day habilitation center in Nitro, known as the “West Sattes”

site. Payne suffered from severe cerebral palsy and had feeding and swallowing

difficulties as a result. Following Payne’s death, investigations of DEAF by OHFLAC

1

and West Virginia Advocates (“WVA” or the “WVA report”) 1 revealed serious

deficiencies which posed a threat to the health, safety and welfare of its clients, leading to

the revocation of DEAF’s license in March, 2007.

In particular, the investigations revealed that Payne’s potential for food

aspiration was evident and medically documented, but the facility failed to provide him

with a modified diet. 2 Moreover, the investigations revealed that the direct-care staff

member feeding him at the time of the incident was a newly-hired, former felon,3 who

had not been trained on Payne’s needs, nor had he received proper training on the

1
WVA is a private, non-profit agency which describes itself as “the federally
mandated protection and advocacy system for people with disabilities in West Virginia.”
2
The investigation revealed deficiencies involving the facility’s awareness of, yet
failure to provide for Payne’s medical needs relative to his feeding and swallowing
difficulties and inconsistent documentation regarding same, as follows: 1) notes from a
November 2006 meeting documenting complaints by staff that they feared Payne was
going to “choke to death” during feedings; 2) a 2004 swallowing study revealing that he
had swallowing dysfunction and could not swallow solid foods, which was not properly
documented in his nursing assessment; 3) inaccurate references in Payne’s medical
documentation to him being on a “regular diet”; 3) notations in his chart that he was to be
fed in the presence of a nurse, despite the nurse on duty at the time of his death being
unaware of this requirement; 4) Payne’s most recent Individual Program Plan identified a
need for additional nursing units to provide “closer care and medical supervision” as well
as development of a feeding protocol, although no protocol had been developed as of the
date of his death.
3
The record reveals that the direct-care worker had been convicted of armed
robbery. He had been employed by DEAF for approximately one month.

2

Heimlich maneuver. 4 The investigation further revealed that the facility had no

emergency plan in place; therefore, when Payne choked, there were delays in contacting

emergency personnel, and staff members carried him almost 200 feet to a nearby exit to

await the ambulance. Apparently, only the nurse on duty eventually attempted the

Heimlich maneuver, as opposed to the direct-care worker feeding him.

Significantly, DEAF’s license had previously been revoked approximately

one year prior to the incident, but provisionally reinstated upon submission and

fulfillment of a written “plan of correction,” as described in West Virginia Code of State

Rules § 64-11-4.6. 5 The revocation was occasioned by a March, 2006, “survey” or

inspection of several of DEAF’s facilities, including a residential facility located in

Boone County, West Virginia and the West Sattes facility at issue.

4
Although the direct-care staff member feeding Payne had participated in a CPR
course thirteen days prior to Payne’s death, neither he nor anyone else in the class was
required to perform a “return demonstration” to assess their ability to perform CPR or the
Heimlich maneuver by the trainer. The individual who administered the training advised
she did not require “return demonstration” for CPR because there were no mouth shields
for the dummy; as to why she required no Heimlich demonstration, she stated, “I know I
should have done it, but I didn’t.” In addition, the registered nurse who did perform the
Heimlich maneuver did not have an adult CPR card.
5
West Virginia Code of State Rules §§ 64-11-4.6.a and -4.6.a.1 provide that in the
event an inspection report reveals deficiencies, a facility “shall submit to the Secretary for
approval a written plan to correct all deficiencies that are in violation of this rule” which
specifies “[a]ction taken or procedures proposed to correct the deficiencies and prevent
their reoccurrence[.]”

3

 The deficiencies which gave rise to the revocation and subsequent

reissuance of a provisional license the year preceding Payne’s death appear to fall into

several discrete categories: 1) cleanliness of various facilities, including the West Sattes

site; 2) charting and documentation errors; and, most critically, 3) frequent medication

administration errors or outright omissions. In response to the revocation and, as

required by a “Memorandum of Understanding” between the DHHR and DEAF,

reflecting the “plan of correction,” DEAF fired its executive director and closed the

Boone County residential facility. The Memorandum of Understanding was approved by

DHHR.6 Subsequently, DHHR issued a provisional license which was effective for six

months, after which a regular renewal license was issued.7

On July 7, 2007, Payne’s father, Gregory Payne, individually and as

Executor of his estate, and his mother, Betty Jo Payne, individually, (hereinafter “the

6
The Memorandum of Understanding provided, in pertinent part, that: 1) DEAF
would administer medications through nurses only; 2) DEAF would report any
medication error immediately, terminate any employee who made a medication error, and
retrain and recertify “Approved Medication Assistive Personnel” to work in other roles at
DEAF; 3) DEAF would terminate its executive director; 4) DEAF would close its
residential facilities and work with residents to find replacement facilities; 5) DEAF
would enter a Plan of Correction for all deficiencies noted in the survey giving rise to the
revocation; 6) DEAF would provide OHFLAC a weekly progress summary; 7)
OHFLAC would monitor summaries and do an on-site follow up visit no later than April
28, 2006; OHFLAC “reserve[d] the right to do additional on-site visits at any time[.]”
7
The record is devoid of any information regarding the results of any intervening
inspections, if any, which may have occurred between the license revocation, issuance of
the provisional license, and the issuance of a regular renewal license upon expiration of
the provisional license.

4

Paynes” or “the respondents”) filed suit against the DHHR defendants, as well as DEAF

and Braley & Thompson, Inc., a DEAF service provider. The allegations against the

DHHR defendants are alleged strictly in terms of negligence.8 In particular, respondents

allege that the DHHR defendants were negligent in their “monitoring and enforcement of

the applicable standards of care, policies, protocols and management of the subject

facility.” In that regard, respondents allege generally that the DHHR defendants were

negligent in “failing to ensure” that DEAF 1) properly trained staff; 2) complied with

state and federal regulations; 3) had an adequate workforce; and 4) disclosed “licensing

issues and/or problems” to clients.

DEAF and Braley & Thompson settled for a collective $850,000.00.

Following this settlement, the DHHR defendants moved to dismiss pursuant to West

Virginia Rule of Civil Procedure 12(b)(6), asserting defenses on the basis of both

qualified immunity and the public duty doctrine. Thereafter, on March 17, 2009, the

DHHR defendants moved for summary judgment; a hearing was held on February 17,

8
As noted above, the “DHHR defendants” herein include the Department of
Health and Human Resources (“DHHR”), the Office of Behavior Health Services
(“BHS”), Bureau for Medical Services (“BMS”), and Office of Health Facility Licensure
and Certification (“OHFLAC”). While it is manifest that each agency has differing
duties and responsibilities, these defendants have been given collective treatment
throughout the underlying litigation. Neither the briefs nor the appendix record reflect
defendant-specific allegations or analysis. As such, this Court will treat these defendants
collectively for purposes of this opinion, unless otherwise stated herein.

5

2010.9 A supplemental motion for summary judgment was filed on February 18, 2011.

On November 10, 2011, the circuit court entered an order denying the DHHR defendants’

motion for summary judgment stating simply that there were “disputed material facts . . .

which could allow the trier of fact to determine that the decisions made by the defendants

in connection with and relating to plaintiffs’ claim were not discretionary.” This appeal

followed.

II. STANDARD OF REVIEW

It is well-established that “[t]his Court reviews de novo the denial of a

motion for summary judgment, where such a ruling is properly reviewable by this Court.”

Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807

(2002). Moreover, “[a] circuit court’s denial of summary judgment that is predicated on

qualified 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).10

9
A complete transcript of this hearing was not made part of the appendix record;
the portion which was included does not include any argument regarding the merits of the
motion for summary judgment.
10
Although the DHHR defendants moved for summary judgment on both
qualified immunity and public duty doctrine grounds, the DHHR defendants have
properly appealed only the denial of summary judgment on qualified immunity grounds
to this Court, inasmuch as only that issue is subject to interlocutory appeal. Nevertheless,
the Paynes dedicate a significant portion of their brief to the public duty doctrine and the
special relationship exception.

(continued . . .)
6

 III. DISCUSSION

The DHHR defendants argue that the circuit court erred in failing to find

that they are entitled to qualified immunity, which error was occasioned by both its

misapprehension of the law and its unsupported determination that there were unresolved

factual issues precluding summary disposition of the issue.11 With regard the latter, we

will first address the deficiencies of the circuit court’s order denying summary judgment.

We take this opportunity to reiterate the difference between qualified immunity
and the public duty doctrine. Qualified immunity is, quite simply, immunity from suit.
The public duty doctrine is a defense to negligence-based liability, i.e. an absence of
duty. See Holsten v. Massey, 200 W.Va. 776, 782, 490 S.E.2d 864, 871 (1997) (“The
public duty doctrine, however, is not based on immunity from existing liability. Instead,
it is based on the absence of duty in the first instance.”). This Court dedicated an
extensive discussion to the similarities, yet fundamental difference, between the two
concepts in Parkulo v. West Virginia Bd. of Probation and Parole, 199 W. Va. 161, 172,
483 S.E.2d 507, 518: “[The public duty doctrine] is not a theory of governmental
immunity, ‘although in practice it achieves much the same result.’” (quoting Syl. Pt. 1,
Benson v. Kutsch, 181 W. Va. 1, 380 S.E.2d 36 (1989)). Although both defenses are
frequently raised, as in this case, only qualified immunity, if disposed of by way of
summary judgment, is subject to interlocutory appeal. All other issues are reviewable
only after they are subject to a final order: “In cases where interlocutory review of
qualified immunity determinations occurs, any summary judgment rulings on grounds
other than immunity are reserved for review at the appropriate time[.]” City of St. Albans
v. Botkins, 228 W. Va. 393, 397, n.13, 719 S.E.2d 863, 867, n.13 (2011) (emphasis
added). Cf. Fucillo v. Kerner, No. 11-1783 (W. Va., June 5, 2013) (addressing collateral
issue of whether private cause of action exists on interlocutory appeal, where both
qualified immunity and collateral issues were disposed of under W.V.R.C.P. 12(b)(6) and
collateral issue is dispositive of the case); Jarvis v. West Virginia State Police, 227 W.
Va. 472, 711 S.E.2d 542 (2010) (same).
11
Although the DHHR defendants advance five different assignments of error in
their Notice of Appeal, only two are addressed in their brief; regardless, both of the
assignments of error briefed involve the same issue—whether the DHHR defendants are
entitled to qualified immunity—and will be addressed as one. See Evans v. Holt, 193 W.
(continued . . .)
7

 A.

Sufficiency of the Order Denying Summary Judgment

This Court has previously held:

Although our standard of review for summary judgment

remains de novo, a circuit court’s order granting summary

judgment must set out factual findings sufficient to permit

meaningful appellate review. Findings of fact, by necessity,

include those facts which the circuit court finds relevant,

determinative of the issues and undisputed.

Syl. Pt. 3, Fayette Cnty. Nat’l Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997). See

also Syl. Pt. 3, Keesecker v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997). Although this

holding is phrased in terms of granting summary judgment, both the holding and our

cases discussing it make clear that a lower court’s factual findings when ruling on

summary judgment—whether denying or granting—must be sufficient to elucidate to this

Court the basis for its ruling. In fact, in Lilly, this Court stated that “the circuit court’s

order must provide clear notice to all parties and the reviewing court as to the rationale

applied in granting or denying summary judgment.” 199 W.Va. at 354, 484 S.E.2d at 237

(emphasis added). See also State ex rel. West Virginia Dept. of Health and Human

Resources v. Kaufman, 203 W.Va. 56, 506 S.E.2d 93 (1998) (granting writ of prohibition

preventing enforcement of orders denying summary judgment on qualified immunity

Va. 578 n.2, 457 S.E.2d 515 n.2 (1995) (consolidating redundant assignments of error);

Robertson v. B. A. Mullican Lumber & Mfg. Co, L. P., 208 W. Va. 1, n.1, 537 S.E.2d 317,

n.1 (2000) (combining five errors into two).

8
grounds and remanding for entry of order specifying rationale for denying summary

judgment).

With respect to the order at issue, the portion of the circuit court’s order

dealing with qualified immunity contains a ten-paragraph set of “Findings of Fact” and a

six-paragraph section containing “Conclusions of Law.” However, despite its length, it is

nothing more than a conclusory disposal of the qualified immunity issue, with a

talismanic referral to “disputed material facts.” In particular, the majority of the

“Findings of Fact” are undisputed, general background to the events giving rise to the

suit; the only paragraph containing “disputed” issues of fact is a simple conglomeration

of bare allegations from the complaint. 12 The circuit court then concludes that “the

12
Citing to the Paynes’ complaint, paragraph eight of the circuit court’s order
states:

The plaintiffs’ complaint also asserts that the combined negligence of the
other named defendants- DHHR, OHFLAC and the West Virginia Bureau
of Medical Services proximately caused the decedent’s death: [sic] These
negligent acts and omissions include:

The monitoring and enforcement of the applicable standards
of care, policies, protocols and management of the subject
facility; failing to ensure that the subject facility was adhering
to established protocols for training employees or protocols
for the medical and physical care for its clientele; failing to
ensure that the non-state agency co-defendants were in
compliance with state and federal law/regulations; failing to
ensure that the non-state agency co-defendants had trained
staff in providing for the needs of people with disabilities
participating in the Medicaid Home and Community Based
Waiver; failing to ensure that the non-state agency co­
(continued . . .)
9

plaintiffs have shown that there are disputed material facts, and have presented evidence

which could allow the trier of fact to determine that the decisions made by the defendants

in connection with and relating to plaintiffs’ claims were not discretionary.”

The order references no “evidence” which the Paynes “presented,” much

less identifies the “disputed material facts” which precluded summary judgment. The

order notes that “[the Paynes’] negligence claim centers on the [DHHR defendants’]

failure to uphold and act upon certain laws and regulations they are duty bound to

uphold,” but does not identify those laws and regulations.13 The order further states that

the Paynes seek to defeat qualified immunity on the basis that “the actions/inactions of

defendants’ employees/agents fall outside the scope of their normal duties and

responsibilities.” Not only does the order fail to identify the disputed material facts

defendants implemented Individual Program Plans; failing to
ensure direct care staff received training in CPR-First Aid,
and other training and certification similar to that required by
certified nursing assistants; failing to ensure that non-state
agency co-defendants maintained an adequate available
workforce to provide services; failing to monitor and enforce
state and federal law and regulations that govern medical
providers to people with disabilities; and failing to disclose
licensing issues and/or problems with the subject facility to
the clients of the non-state agency co-defendants. See ¶¶ 16­
25, Plaintiffs’ Amended Complaint.
13
In fairness to the circuit court, however, the Paynes likewise failed to identify
the specific “laws and regulations” the DHHR defendants allegedly violated, as discussed
more fully infra.

10

underlying this contention, but it fails to identify which actions/inactions are even alleged

to fall outside of the DHHR defendants’ normal duties and responsibilities.14

This Court has previously explained that “[t]he function of summary

judgment is ‘to pierce the boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’” Powderidge Unit Owners Ass’n v.

Highland Properties, Ltd., 196 W. Va. 692, 697, 474 S.E.2d 872, 877 (1996) (quoting

Hanlon v. Chambers, 195 W.Va. 99, 106, 464 S.E.2d 741, 748 (1995)). We have further

held that

[t]he party opposing a motion for summary judgment may not
rest on allegations of his or her unsworn pleadings and must
instead come forth with evidence of a genuine factual dispute.
Mere allegations are insufficient in response to a motion for
summary judgment to show that there is a genuine issue for
trial.

Crum v. Equity Inns, Inc., 224 W.Va. 246, 254, 685 S.E.2d 219, 227 (2009); see also

Powderidge, 196 W.Va. at 698, nn. 10, 11, 474 S.E.2d at 878, nn. 10, 11. Likewise, an

order denying summary judgment on the basis of unidentified “disputed material facts”

referring merely to the allegations in the pleadings is insufficient for purposes of

appellate review. This is particularly so in the case of qualified immunity which this

14
In contrast, however, the portion of the circuit court’s order denying summary
judgment on the basis of the public duty doctrine contains reference to and descriptions
of specific documentary evidence. While we do not find occasion to pass upon the
adequacy of that portion of the circuit court’s order inasmuch as that aspect of the circuit
court’s ruling is not on appeal, see n.10 supra, we reference it to highlight the disparity in
the circuit court’s handling of the two issues before it.

11

Court has held is immediately reviewable to ensure that immune defendants’ right “‘not

to be subject to the burden of trial’” remains inviolate. Robinson, 223 W. Va. at 833, 679

S.E.2d at 665 (quoting Hutchison v. City of Huntington, 198 W. Va. 139, 148, 479 S.E.2d

649, 658 (1996)). As such, we hold that a circuit court’s order denying summary

judgment on qualified immunity grounds on the basis of disputed issues of material fact

must contain sufficient detail to permit meaningful appellate review. In particular, the

court must identify those material facts which are disputed by competent evidence and

must provide a description of the competing evidence or inferences therefrom giving rise

to the dispute which preclude summary disposition.

The foregoing notwithstanding, although this Court has not hesitated to

remand a case due to insufficient findings of fact,15 we find that our de novo review of the

record before us permits us to resolve this particular case without further detail or

analysis from the circuit court.16

B.

Qualified Immunity
15
See Hively v. Merrifield, 212 W. Va. 804, 808, n.6, 575 S.E.2d 414, 418, n.6
(2002) (collecting cases in which this Court has remanded for insufficient findings of
fact).
16
See Toth v. Bd. of Parks and Recreation Comm’rs, 215 W. Va. 51, 593 S.E.2d
576 (2003) (resolving issues on appeal in absence of detailed order from circuit court);
see also Ward v. Cliver, 212 W. Va. 653, 575 S.E.2d 263 (2002) (same); Fayette Cnty.
Nat’l Bank, supra (same).

12

 We begin our analysis by observing that, admittedly, our caselaw analyzing

and applying the various governmental immunities—sovereign, judicial, quasi-judicial,

qualified, and statutory—to the vast array of governmental agencies, officials, employees

and widely disparate factual underpinnings has created a patchwork of holdings.17 These

various holdings against which each particular set of facts must be analyzed lead

inevitably to a situation where some allegations fit more comfortably with certain

syllabus points than others. Much of the absence of harmony is simply the nature of the

beast: immunities must be assessed on a case-by-case basis in light of the governmental

entities and/or officials named and the nature of the actions and allegations giving rise to

the claim. See Syl. Pt. 9, in part, Parkulo, 199 W. Va. 161, 483 S.E.2d 507 (“The

existence of the State’s immunity [] must be determined on a case-by-case basis.”). As

such, we will examine the claims in the case sub judice under the scope of the particular

qualified immunity holdings which most accurately conform to the nature of the

particular allegations.

17
For example, some of our holdings appear to describe qualified immunity
principles more comfortably applicable to the actions and functions of high-level
government officials; others are crafted to be applicable and reflect the daily functions
and activities of an average government employee. Some of our caselaw makes reference
to violations of “clearly established rights” while others make reference to “clearly
established laws.” Much of our caselaw pertains to allegations of intentional acts, while
some is phrased in terms of negligence-based allegations. However, qualified immunity
is not a “one-size-fits-all” proposition. The nuances and variations within our caselaw
have been perpetuated, at least in part, by the highly fact-specific nature of qualified
immunity analysis.

13

1. Negligent Failure to Monitor/Enforce

The DHHR defendants maintain that the circuit court erred in failing to find

them entitled to qualified immunity inasmuch as respondents have alleged a simple

negligence case against them and failed to produce evidence that they violated a clearly

established law. Respondents argued below that the DHHR defendants were generally

negligent in their “enforcement and monitoring duties,” as pertained to DEAF, based

almost exclusively on the WVA report which was critical of the DHHR defendants’

oversight of the facilities within its purview.18 The DHHR defendants counter that the

WVA investigator conceded during her deposition that, in spite of these criticisms, she

did not investigate DHHR and had uncovered no evidence that the DHHR defendants had

failed to comply with any of its regulatory requirements as pertained to DEAF.

As noted above, there is no question that respondents’ complaint is

grounded exclusively in negligence, alleging that the DHHR defendants negligently

18
Under the “Recommendations” section of its report, WVA stated that it

finds that service providers are not being adequately
monitored to enforce compliance with the requirements of the
WVDHHR Medicaid Title XIX MR/DD Home and
Community Based Waiver Program. As a result individuals
using the [Program] are at an increased risk of neglect. [The
DHHR defendants] are responsible to monitor and enforce
compliance for the [Program]. Inadequate enforcement and
monitoring of service providers are placing very vulnerable
individuals at increased risk of abuse, neglect and death.

14

failed to provide proper oversight and enforcement of applicable laws. To that end, this

Court has held generally:

In the absence of an insurance contract waiving the defense,19
the doctrine of qualified or official immunity bars a claim of
mere negligence against a State agency not within the
purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29–12A–1, et seq., and
against an officer of that department acting within the scope
of his or her employment, with respect to the discretionary
judgments, decisions, and actions of the officer.

Syl. Pt. 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995) (emphasis added)

(footnote added). However, once the “judgments, decisions, and actions” of a

governmental official are determined to be discretionary, the analysis does not end.

Rather, even if the complained-of actions fall within the discretionary functions of an

agency or an official’s duty, they are not immune if the discretionary actions violate

“clearly established laws of which a reasonable official would have known”:

“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. [the West Virginia Governmental
Tort Claims and Insurance Reform Act], 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. . . .
Syllabus, State v. Chase Securities, Inc., 188 W. Va. 356, 424
S.E.2d 591 (1992).

Syl. Pt. 3, in part, Clark, supra.20

19
The Paynes do not assert that the insurance policy at issue waives any
immunities.
20
Although this particular syllabus point is phrased in terms of the immunity of
“public executive official,” it has equal application to a suit solely against State agencies
(continued . . .)
15

 Our analysis requires, therefore, an examination of the DHHR defendants’

oversight and enforcement duties and obligations relative to behavioral health centers to

assess whether they derive from discretionary “judgments, decisions, and actions” and if

whether, even so, their actions or inactions violated any “clearly established law.”21 West

Virginia Code § 27-9-1 (1977) (Repl. Vol. 2008) is the enabling statute for the legislative

rules set forth in West Virginia Code of State Rules Title 64, Series 11 governing

“Behavioral Health Centers Licensure” and provides that hospitals, centers, or institutions

providing care or treatment of the mentally ill or intellectually disabled must first be

licensed by the DHHR.22 Significantly, West Virginia Code § 27-9-1 further provides

that “[t]he secretary [of the DHHR] may make such terms and regulations in regard to the

conduct of any licensed hospital, center or institution, or part of any licensed hospital,

inasmuch as the State’s immunity is “coterminous” with that of the official whose acts
are at issue:

[T]he immunity of the State is coterminous with the qualified
immunity of a public executive official whose acts or
omissions give rise to the case. . . .

Syl. Pt. 9, in part, Parkulo, 199 W. Va. 161, 483 S.E.2d 507. As discussed infra,
authority for regulation of behavioral health centers is vested with the Secretary of the
DHHR. W. Va. C.S.R. § 64-11-2.2.
21
See n.8, supra.
22
The 2010 amendment to West Virginia Code § 27-9-1 made minor clarifications
to the statute, none of which are relevant to the issues herein.

16

center or institution, as he or she thinks proper and necessary.” (emphasis added). As

such, the determination as to how facilities under Title 64, Series 11 must operate and

conduct their daily affairs and to what extent commensurate regulatory oversight for such

operation and affairs falls on the DHHR and its subsidiary agencies lies entirely with the

discretion of the Secretary of the DHHR.

As noted above, the “terms and regulations” promulgated for the licensure

and conduct of behavioral health centers are set forth in West Virginia Code of State

Rules § 64-11-1 et seq. However, in terms of the DHHR’s oversight and monitoring of

behavioral health facilities, the regulations require only that a center is inspected upon

application for an initial, renewal, or provisional license and thereafter, at least once

every two years or once a year for residential facilities. W. Va. C.S.R. §§ 64-11-4.1.f.1

and 64-11-4.3.c.23 The DHHR “may” conduct unannounced inspections in response to a

complaint, but is not required to do so. W. Va. C.S.R. § 64-11-4.4.b. The inspections are

to include, but are not limited to “[o]bservation of service delivery . . . [r]eview of life

safety and environment . . . [r]eview of clinical and administrative records; and . . .

[i]nterviews with consumers (with the consumer’s consent), staff and administrators.”

W. Va. C.S.R. §§ 64-11-4.3.b.1 through 4.

23
West Virginia C.S.R. § 64-11-4.1.f.1 provides “[n]either an initial, renewal or a
provisional license shall be issued unless an inspection has been made.” West Virginia
C.S.R. § 64-11-4.3.c provides “[e]ach licensed Center is inspected at least once every two
(2) years, except for residential treatment facilities that are inspected at least once a year.”

17

 The DHHR is required to issue a report within ten working days of an

inspection, which then triggers an obligation on behalf of the facility to submit to the

DHHR a signed, written “plan of correction” to address any deficiencies identified in the

report; the plan is to include “[a]ction taken or procedures proposed to correct the

deficiencies and prevent their reoccurrence [and] . . . [d]ate of completion of each action

taken or to be taken[.]” W. Va. C.S.R. §§ 64-11-4.3.f and 64-11-4.6.a.1 through 3. The

regulations provide that “[t]he Secretary shall approve, modify or reject the proposed

plan of correction in writing” and, critically, “[t]he Secretary may determine if

corrections have been made.” W. Va. C.S.R. §§ 64-11-4.6.b and 64-11-4.6.f. Following

the inspection and any plans of correction, “the Secretary shall, if there is substantial

compliance with this rule,” issue an initial, provisional, or renewal license. W. Va.

C.S.R. § 64-11-4.1.f.2.24

However, as noted, short of licensure or bi-annual inspections, approval of

plans of correction, and ascertainment of whether corrections have been made, neither the

24
A provisional license may be issued if there is not “substantial compliance with
this rule, but does not pose a significant risk to the rights, health and safety of a
consumer.” Although the parties focus on the issuance of the provisional license to
DEAF following the March 2006 revocation and plan of correction, we find that this
provision is not particularly germane to our discussion inasmuch as DEAF’s provisional
license had clearly expired and DEAF was operating under a regular renewal license at
the time of Payne’s death, per the Revocation Order of March 2007. Again, the record
reflects no information regarding the circumstances under which the provisional license
was converted to a regular renewal license, nor do the the Paynes’ allegations center
around the issuance of the regular renewal license. See n.7, supra.

18

statutes nor applicable regulations require further monitoring or oversight duties by the

DHHR defendants. 25 The regulations delegate to the facilities responsibility for

governance and management of the day-to-day affairs of the facilities, which necessarily

includes staffing, training, and regulatory compliance. Certainly, the entire purpose for

the DHHR defendants’ inspections is to audit for compliance with the regulations

governing the facilities’ duties in that regard. However, nothing in the regulations

requires greater oversight or involvement in the day-to-day operations of the facilities

than that occasioned by the bi-annual or licensure inspections and any plans of

corrections resulting therefrom. Respondents have presented no evidence that the DHHR

defendants failed to timely and properly conduct inspections or approve and require

implementation of plans of correction. In fact, despite repeated reference to the DHHR

defendants’ “failure to uphold the very laws and regulations that they are charged with

sustaining,” at no time do respondents identify a specific law, statute, or regulation which

25
The Paynes also contend that the DHHR defendants “affirmatively undertook
special duties with respect to monitoring [DEAF]” following the 2006 revocation and
plan of correction and negligently failed to “follow through” on these additional
monitoring obligations. Specifically, and without citation to any evidence in the record,
they assert in their brief that “petitioners were supposed to make weekly inspections of
the DEAF facility to ensure the plan of correction was being followed, and the petitioners
failed to do so.” We find this assertion unsupported by anything in the record.

Rather, the “Memorandum of Understanding” reflecting the plan of correction
indicates simply that DEAF would provide OHFLAC a weekly progress summary,
whereupon OHFLAC would monitor the summaries and do an on-site follow up visit no
later than April 28, 2006. OHFLAC “reserve[d] the right to do additional on-site visits at
anytime[.]” Nothing contained within the Memorandum of Understanding or otherwise
in the appendix record supports the Paynes’ contention that the DHHR defendants were
in any way obliged to conduct weekly inspections.

19

the DHHR defendants violated. 26 In short, the regulations do not require the DHHR

defendants to micro-manage the daily functions of the facilities within their regulatory

26
The nature of the Paynes’ allegations fairly begs for discussion of application of
qualified immunity to “discretionary” acts as opposed to “ministerial” acts—an analysis
this Court nonetheless long-ago eschewed in State v. Chase Securities, Inc., 188 W. Va.
356, 364, 424 S.E.2d 591, 599 (1992) (“[W]e find the discretionary-ministerial act
distinction highly arbitrary and difficult to apply.”). Regardless, under the limited facts
of this case, we find persuasive a factually similar case which utilizes the distinction and
serves to illuminate the nature of the shortcomings in the Paynes’ evidence.

In Phillips v. Thomas, 555 So.2d 81, 86 (Ala. 1989), the Supreme Court of
Alabama found the Director of the Family and Children’s Services Division of the
Department of Human Resources entitled to qualified immunity for allegations of
negligent licensing of a day care facility and negligent training of a subordinate who
conducted an inspection of the facility. The court further found, however, that the
subordinate who negligently performed the inspection was not entitled to qualified
immunity. Id.

Utilizing the discretionary/ministerial distinctions, the court explained that the
Director’s duties to license the facility and train subordinates “while perhaps affirmative
ones, require constant decision making and judgment on the part of the supervisor or
trainer.” Id. at 85. The court acknowledged, however, that “these functions can be
composed of ministerial acts, which, if performed negligently, are actionable.” Id. The
court provided the example of department guidelines which may require certain steps to
be taken, which steps are not discretionary and thus a state employee’s negligence with
respect to those ministerial acts is actionable. Id. at 86. Finding an undisputed error on
the inspection sheet completed by the subordinate, the court then found that the execution
of the inspection itself (as opposed to any discretionary decision arising from the results
thereof) was a ministerial act for which the subordinate was not entitled to qualified
immunity for its negligent performance. Id.

This Court is well-aware of its prior criticism of the discretionary/ministerial act
distinction and the questions concerning its continued vitality. Nevertheless, we find it
useful in illustrating how certain governmental actions or functions may involve both
discretionary and non-discretionary or ministerial aspects, the latter of which may
constitute a “clearly established law of which a reasonable public official would have
known.” While repudiating the discretionary/ministerial distinction on the one hand, the
Chase Securities Court made precisely this point and thereby provided useful congruity
to the two concepts:
(continued . . .)
20

enforcement power to ensure constant, unwavering compliance in all aspects of their

affairs.

Respondents seem to argue simply that if the DHHR defendants were doing

their job properly, this incident would not have occurred. This argument was

emboldened by the testimony of the WVA investigator, who despite finding no specific

failures on the part of the DHHR defendants and whose activities she repeatedly denied

investigating, surmised that the DHHR defendants must have been derelict in their duties,

otherwise Payne’s death would have been prevented. Although this overly simplistic

analysis may be appealing in light of these tragic events, qualified immunity insulates the

State and its agencies from liability based on vague or principled notions of government

Application of the Harlow rule [requiring violation of a
clearly established law of which a reasonable person would
have known] will ordinarily have the same effect as the
invocation of the “ministerial acts” principle followed
elsewhere. Ministerial acts, by definition, are official acts
which, under the law, are so well prescribed, certain, and
imperative that nothing is left to the public official’s
discretion. Obviously, a public official who ignores or
violates such clearly established precepts of the law . . .
would not be entitled to qualified immunity[.]

Id. at 364, 424 S.E.2d at 599.

We briefly resurrect this principle for the limited purpose of providing further
illustration of the Paynes’ lack of evidence that the DHHR defendants violated a clearly
established law. The Paynes have identified no ministerial duties which the DHHR
defendants negligently performed. Rather, they take issue simply with the discretionary
judgments which derive from the DHHR defendants’ ministerial functions.

21

regulation. Requirements for stronger oversight and monitoring of facilities such as

DEAF may be wise; however, it is for the Legislature to impose such requirements.

Accordingly, we find that the circuit court erred in refusing to grant summary judgment

to the DHHR defendants on the basis of qualified immunity as pertains to respondents’

negligent monitoring and enforcement allegations.27

2. Negligent Licensing

Although respondents’ complaint is alleged exclusively in terms of the

DHHR defendants’ negligent failure to monitor and enforce applicable regulations at

DEAF, the characterization of their claim evolved as they struggled to articulate a

“clearly established” law which the DHHR defendants allegedly violated. As a result-­

and primarily in their briefs before this Court--respondents argue that it was the DHHR

defendants’ negligent licensure of DEAF, and concomitant alleged violation of the

licensing regulations, which are sufficient to defeat qualified immunity.28 In particular,

respondents argue that “petitioners’ ongoing licensing of DEAF constituted violations

[sic] of the clearly established laws governing said licensing,” and that “a reasonable

27
The Paynes also allege that the DHHR defendants were negligent in failing to
advise clients of the prior license revocation. As with the negligent monitoring
allegations, the Paynes fail to identify any “clearly established law” requiring the DHHR
defendants or DEAF to notify them of any prior deficiencies.
28
Throughout their brief when discussing the basis of their claim against the
DHHR defendants, the Paynes refer almost exclusively to the “actions and inactions with
respect to the continued licensing [of DEAF],” “failing to revoke [DEAF’s] license,”
“negligently allow[ing] a license,” and “negligent fail[ure] to close [DEAF].”

22

official would have known that the continual issuance of licenses to DEAF violated said

regulations.”

This Court has held:

If a public officer is either authorized or required in the
exercise of his judgment and discretion, to make a decision
and to perform acts in the making of that decision, and the
decision and acts are within the scope of his duty, authority,
and jurisdiction, he is not liable for negligence or other error
in the making of that decision, at the suit of a private
individual claiming to have been damaged thereby.

Syl. Pt. 4, Clark, 195 W. Va. 272, 465 S.E.2d 374. Based upon the regulations discussed

in greater detail supra, the licensing of behavioral health facilities is a matter that has

been placed entirely within the discretion of the Secretary of the DHHR.29

29
There is no West Virginia caselaw dealing with qualified immunity as pertains
to licensing activities involving a State agency, as opposed to a political subdivision.
However, it is noteworthy that political subdivisions are entitled to statutory immunity
under the West Virginia Tort Claims and Insurance Reform Act set forth in West Virginia
Code § 29-12A-1 et seq. West Virginia Code § 29-12A-5(a)(9) expressly provides that
political subdivisions are immune from liability for claims resulting from “[l]icensing
power or functions including, but not limited to, the issuance, denial, suspension or
revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license,
certificate, approval, order or similar authority[.]” In one the very few cases dealing with
this provision, the Court explained that

[t]he reason for establishing such immunity is readily
understandable. In an era when much private conduct is
subject to permitting or licensing by public bodies, absent
some sort of “licensing” immunity that applies under ordinary
circumstances, such public bodies could be made co­
defendants in the majority of tort actions arising from the
licensed or permitted private conduct.
(continued . . .)
23

 However, respondents attempt to recast the discretionary nature of licensing

functions as an affirmative, ministerial duty by attempting to utilize the deficiencies

identified in the prior license revocation in March 2006 to impute prior knowledge of the

particular deficiencies which were found by OFHLAC after Payne’s death. From this

leap, respondents then argue that the DHHR defendants violated their raison d’etre by

continuing to allow DEAF to operate in spite of actual knowledge of the existence of

deficiencies. However, the deficiencies identified in March 2006 were quite different in

character than those identified in February 2007 as contributing to Payne’s death.

Additionally, the previous deficiencies spanned across a number of facilities operated by

DEAF and only those prior deficiencies dealing with cleanliness were specifically

directed at the West Sattes facility. More importantly, there was an intervening “plan of

correction” implemented to correct the March 2006 deficiencies, and nothing in the

record demonstrates that the items in the March 2006 plan of correction were not

implemented to the satisfaction of the Secretary—within whose exclusive authority the

determination of whether corrections have been made rests—prior to issuing the

provisional or subsequent renewal license.

McCormick v. Walmart Stores, 215 W.Va. 679, 684, 600 S.E.2d 576, 581 (2004). We
find that this reasoning has equal application to qualified immunity for State licensing
functions.

24
 Despite their contention that the DHHR defendants “knew that DEAF was

not in substantial compliance with the health and safety regulations,” respondents provide

no evidence that the DHHR defendants were aware that any of the particular deficiencies

identified as contributing to Payne’s death existed prior to his death or even that the prior,

dissimilar deficiencies continued unabated, but a license issued nevertheless.30 Without

30
At best, the Paynes make an untenable attempt to create a common thread of
noncompliance between the March 2006 revocation and the February 2007 investigation
regarding Payne’s death. For example, the Paynes make much of the fact that DEAF was
cited for failure to do criminal background checks on employees in the March 2006
inspection and frequently reference that Payne’s direct-care worker was a former felon,
who served time for armed robbery. However, in the inspection following Payne’s death,
DEAF was not cited for failure to perform criminal background checks. Further, nothing
in the regulations prohibits an individual previously convicted of armed robbery from
working at a facility. The purpose of the criminal background check is to ensure
compliance with West Virginia Code of State Rules § 64-11-5.6.b: “The Center shall not
employ individuals with a conviction of consumer or child abuse or neglect.” (emphasis
added).

Moreover, the March 2006 survey contained no deficiencies regarding direct-care
staff which had not been trained to care for the consumers to which they were assigned.
Nor did it contain any deficiencies regarding staff without proper life-saving training.
Aside from medication administration and documentation errors which occurred at the
Boone County residential facility, the March 2006 survey contained no citations for
failure to provide for consumers’ medical needs as in Payne’s case. The only
deficiencies specifically attributable to the West Sattes center in March 2006 were
housekeeping issues, including: supplies and equipment in the floor, dusty storage areas,
windows, and ductwork, chipped paint, stained ceiling tiles, dirty kitchen equipment,
potholes in the parking area, unsecured cleaning supplies, and a potential rodent issue.
Although obviously not desirable conditions which, if left unabated could potentially
affect the health and safety of the consumers, none of these bear any relation to the life-
threatening deficiencies which gave rise to Payne’s death. The only remotely
corresponding, yet fairly attenuated, deficiencies between the March 2006 survey and
Payne’s death concern charting and documentation. See n.2, supra. However, the March
2006 survey was critical of certain technical aspects of the treatment plans reviewed
including timely updates, articulation of measurable objectives, signatures, descriptions
of services, and adequacy of discharge summary information, none of which were
(continued . . .)
25

question, serious, life-threatening deficiencies existed at the DEAF facility in and around

February 2007. There is simply no evidence that the DHHR defendants knew that those

same deficiencies existed prior to its issuance of the provisional or regular renewal

licenses and issued the licenses nonetheless.

Moreover, simply characterizing the regulatory power of the Secretary to

revoke a license upon certain criteria as “mandatory” does not strip the decision to invoke

such power of its discretionary nature.31 To permit this action to proceed against the

attributable to the West Sattes center. The documentation issues identified following
Payne’s death (which were largely inconsistencies within the records themselves) were
merely collateral to the underlying failure to provide him with a modified diet and ensure
that he was cared for by properly trained staff.
31
Although neither party assigned it as error, we find it appropriate to note the
circuit court’s erroneous attempt to relegate to the jury’s province the determination of
whether the complained of actions or inactions were discretionary—a purely legal issue
which is a predicate to the qualified immunity analysis. See Cartwright v. McComas, 223
W. Va. 161, 164, 672 S.E.2d 297, 300 (2008) (“[I]t is within the authority of this Court to
‘sua sponte, in the interest of justice, notice plain error.’”). In denying summary
judgment the circuit court’s order states that respondents presented “evidence which
could allow the trier of fact to determine that the decisions made by the defendants in
connection with and relating to plaintiffs’ claims were not discretionary.” (emphasis
added). This Court has held:

The ultimate determination of whether qualified or statutory
immunity bars a civil action is one of law for the court to
determine. Therefore, unless there is a bona fide dispute as to
the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified
immunity are ripe for summary disposition.

Syl. Pt. 1, Hutchison, 198 W. Va. 139, 479 S.E.2d 649.

(continued . . .)
26

DHHR defendants on the basis of their discretionary licensing function would defeat the

entire purpose of qualified immunity as articulated by the United States Supreme Court:

The purpose of such official immunity is not to protect an
erring official, but to insulate the decisionmaking process
from the harassment of prospective litigation. The provision
of immunity rests on the view that the threat of liability will
make [] officials unduly timid in carrying out their official
duties[.]

Westfall v. Erwin, 484 U.S. 292, 295 (1988). Accordingly, we likewise find that the

circuit court erred in failing to grant summary judgment to the DHHR defendants on the

basis of qualified immunity as to respondents’ negligent licensure claims.

As such, qualified immunity by summary disposition is precluded only where
there is a “bona fide dispute as to the foundational or historical facts that underlie the
immunity determination[.]” Id. (emphasis added). This does not permit the court to
relinquish purely legal questions—such as whether a particular government action or
function is discretionary—to the jury. Whether the DHHR defendants’ actions were
discretionary is not a “foundational or historical fact” underlying the immunity—it is the
very essence of the immunity itself. See Chase Securities, 188 W. Va. at 364, n.23, 424
S.E.2d at 599, n.23 (“It should thus be apparent that in a tort action against a public
officer the court has the responsibility of determining [] whether he was engaged in
exercising a discretionary function[.]” (quoting Restatement (Second) of Torts § 895D
cmt.f)); see also Foley v. Taylor, 695 So.2d 1196, 1998 (Ala. App. 1997) (“Determining
whether a defendant was performing a ministerial act or a discretionary act is a question
of law to be decided by the trial court.”); Tolliver v. Dept. of Transp., 948 A.2d 1223,
1229 (Me. 2008) (“‘Whether a defendant is entitled to discretionary function immunity is
a question of law[.]’” (quoting Chiu v. City of Portland, 788 A.2d 183, 189 (Me. 2002));
accord Berkovitz v. U. S., 486 U.S. 531 (1988) (holding that the court must determine
whether “discretionary function” exemption to Federal Tort Claims Act applies). The
circuit court below identified no “foundational or historical” facts requiring a jury’s
resolution before it could determine, as a matter of law, whether the complained-of
actions or failures to act alleged in respondents’ complaint involved discretionary
functions.

27

 IV. CONCLUSION

For the foregoing reasons, the November 10, 2011, order denying summary

judgment is reversed, and we remand for the entry of an order granting petitioners’

motion for summary judgment and dismissing the action against them.

Reversed and remanded.

28