W. Va. Dept. of Transportation, DMV v. David King, Administrator of the Estate of Wilma Ann King

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2016 Term
_______________
FILED
November 15, 2016
released at 3:00 p.m.
No. 15-0711 RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,

DIVISION OF MOTOR VEHICLES,

Defendant Below, Petitioner

v.

DAVID KING, ADMINISTRATOR OF THE ESTATE OF WILMA

ANN KING, DECEASED,

Plaintiff Below, Respondent

____________________________________________________________

Appeal from the Circuit Court of Cabell County

The Honorable Christopher D. Chiles, Judge

Civil Action No. 13-C-199

REVERSED AND REMANDED
____________________________________________________________

Submitted: September 20, 2016
Filed: November 15, 2016

Patrick Morrisey, Esq. Gail Henderson-Staples, Esq.
Attorney General Dwight J. Staples, Esq.
Julie Marie Blake, Esq. Henderson, Henderson & Staples, L.C.
Assistant Attorney General Huntington, West Virginia
Mary M. Downey, Esq. Attorneys for Respondent
Assistant Attorney General
Charleston, West Virginia
Attorneys for Petitioner

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

1. “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).

2. “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).

3. “To determine whether the State, its agencies, officials, and/or

employees are entitled to immunity, a reviewing court must first identify the nature of the

governmental acts or omissions which give rise to the suit for purposes of determining

whether such acts or omissions constitute legislative, judicial, executive or administrative

policy-making acts or involve otherwise discretionary governmental functions. To the

extent that the cause of action arises from judicial, legislative, executive or administrative

policy-making acts or omissions, both the State and the official involved are absolutely

immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.

Va. 161, 483 S.E.2d 507 (1996).” Syl. pt. 10, Reg’l Jail and Corr. Facility Auth. v. A.B.,

234 W. Va. 492, 766 S.E.2d 751 (2014).

i
 4. “To the extent that governmental acts or omissions which give rise

to a cause of action fall within the category of discretionary functions, a reviewing court

must determine whether the plaintiff has demonstrated that such acts or omissions are in

violation of clearly established statutory or constitutional rights or laws of which a

reasonable person would have known or are otherwise fraudulent, malicious, or

oppressive in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424

S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or

employees charged with such acts or omissions are immune from liability.” Syl. pt. 11,

Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

5. “In the construction of a legislative enactment, the intention of the

legislature is to be determined, not from any single part, provision, section, sentence,

phrase or word, but rather from a general consideration of the act or statute in its

entirety.” Syl. pt. 1, Parkins v. Londeree, 146 W. Va. 1051, 124 S.E.2d 471 (1962).

ii
Benjamin, Justice:

Petitioner and defendant below, the West Virginia Department of

Transportation, Division of Motor Vehicles (“DMV”), appeals the June 26, 2015, order

of the Circuit Court of Cabell County that denied the DMV’s motion for summary

judgment after determining that the DMV failed to perform a nondiscretionary duty and

therefore did not have qualified immunity in an action brought against it by Respondent

David King, as administrator of the estate of Wilma Ann King, deceased. After

considering the parties’ arguments, the applicable law, and the appendix in this case, this

Court finds that the circuit court erred in denying DMV’s motion for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an auto accident that occurred in January 2013, which

resulted in the death of Respondent David King’s mother, Wilma Ann King. Ms. King

was a passenger in an automobile that was struck by an automobile driven by Doris Fay

Peyton.1 Ms. Peyton’s driver’s license had been suspended in 2007, and reinstated in

2009.2

1
In his amended complaint, the respondent does not directly allege that the
automobile accident was the result of Ms. Peyton’s seizure disorder.
2
According to the respondent, in 2005 Ms. Peyton did not have a valid driver’s
license but sought to have her driving privileges restored. However, after Ms. Peyton
failed to submit a medical report from her doctor as directed by the DMV, on March 19,
2007, the DMV suspended Ms. Peyton’s driving privileges for medical reasons for a two
year period.
3

 The respondent filed a negligence action naming Ms. Peyton as a defendant

and later amended his complaint to add the DMV as a defendant. The respondent alleged

that in October 2010, the DMV was negligent in medically approving Ms. Peyton’s

driver’s license application without first submitting Ms. Peyton’s medical information to

the Driver’s Licensing Advisory Board (“advisory board”),3 given Ms. Peyton’s medical

history, pursuant to the applicable statutes and administrative rules.

In reply to the respondent’s negligence action, the DMV filed a motion for

summary judgment in which it argued that it was entitled to qualified immunity on the

basis that referral to the advisory board is discretionary. The circuit court denied the

DMV’s motion, concluding that referral is nondiscretionary under West Virginia Code of

State Rules § 91-5-3 (2006), and thus there is no qualified immunity.4

3
The Driver’s Licensing Advisory Board is governed by W. Va. Code § 17B-2-7a
(2003). According to this statute, the board consists of five members who are appointed
by the Governor for specified terms. One member of the board is an optometrist and the
other four are physicians or surgeons. Regarding the role of the board, the statute
provides:

The board shall advise the Commissioner of Motor
Vehicles as to vision standards and all other medical criteria
of whatever kind or nature relevant to the licensing of persons
to operate motor vehicles under the provisions of this chapter.
The board shall, upon request, advise the Commissioner of
Motor Vehicles as to the mental or physical fitness of an
applicant for, or the holder of, a license to operate a motor
vehicle. The board shall furnish the commissioner with all
such medical standards, statistics, data, professional
information and advice as he may reasonably request.
4
The circuit court found, in relevant part:

4

The DMV now appeals the circuit court’s denial of its motion for summary judgment on

the basis of qualified immunity.

II. STANDARD OF REVIEW

In this case, we are asked to review a circuit court’s denial of a motion for

summary judgment. This Court has held that “[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). Therefore, this case is properly before us.

In addition, “[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). Accordingly, we will

now review the ruling below de novo.

In this case the [DMV’s] regulation in effect at the time Ms.
Peyton’s license was reinstated in February 2009, W. Va.
Code R. § 91-5-3 (2006), required the [DMV] to refer her
medical file to the Medical Advisory Board for its review and
recommendation before her license could be reinstated. This
was not done.

The Court therefore FINDS that the act of referring a
licensee’s medical records to the Division’s Advisory Board
was a nondiscretionary duty and therefore FINDS that the
[DMV] is not entitled to qualified immunity in this case.

5

 III. ANALYSIS

This case involves our law of qualified immunity. This Court recently

explained:

To determine whether the State, its agencies, officials,
and/or employees are entitled to immunity, a reviewing court
must first identify the nature of the governmental acts or
omissions which give rise to the suit for purposes of
determining whether such acts or omissions constitute
legislative, judicial, executive or administrative policy-
making acts or involve otherwise discretionary governmental
functions. To the extent that the cause of action arises from
judicial, legislative, executive or administrative policy-
making acts or omissions, both the State and the official
involved are absolutely immune pursuant to Syl. Pt. 7 of
Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va.
161, 483 S.E.2d 507 (1996).

Syl. pt. 10, Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751

(2014). We have further indicated that

To the extent that governmental acts or omissions
which give rise to a cause of action fall within the category of
discretionary functions, a reviewing court must determine
whether the plaintiff has demonstrated that such acts or
omissions are in violation of clearly established statutory or
constitutional rights or laws of which a reasonable person
would have known or are otherwise fraudulent, malicious, or
oppressive in accordance with State v. Chase Securities, Inc.,
188 W. Va. 356, 424 S.E.2d 591 (1992). In absence of such a
showing, both the State and its officials or employees charged
with such acts or omissions are immune from liability.

Syl. pt. 11, id.

6

 In the instant case, the act or omission giving rise to the respondent’s action

against the DMV is the DMV’s failure to submit Ms. Peyton’s medical information to the

advisory board prior to making a determination regarding Ms. Peyton’s driving

privileges. In order to determine whether the DMV, a State agency,5 is entitled to

qualified immunity from the respondent’s action against it, this Court must determine

whether the DMV’s submission to the advisory board of Ms. Peyton’s medical

information constitutes a discretionary or nondiscretionary function. Quite simply, if the

DMV had a nondiscretionary duty to refer Ms. Peyton’s medical file to the advisory

board prior to reinstating Ms. Peyton’s driver’s license, the DMV is not entitled to

qualified immunity under the facts of this case. The circuit court below found that “the

act of referring a licensee’s medical records to the [DMV’s] Advisory Board was a

nondiscretionary duty and therefore . . . the [DMV] is not entitled to qualified immunity

in this case.”

The circuit court hinged its decision that the DMV had a nondiscretionary

duty to refer Ms. Peyton’s medical information to the advisory board for review and

recommendation prior to reinstating Ms. Peyton’s driving privileges on the 2006 version

of West Virginia Code of State Rules § 91-5-3 (2006) regarding “Denial of Driving

Privileges for Medical Reasons.”6 This rule provided:

5
See W. Va. Code § 17A-2-1 (1951) which states that “[t]he department of the
government of this State, known as the Department of Motor Vehicles, heretofore
created, shall be continued.”

7

 3.1 Statutory Provisions – W. Va. Code § 17B-2-3 provides
that the Division of Motor Vehicles shall not issue a driver’s
license to any person when the Commissioner of Motor
Vehicles has good cause to believe that the operation of a
motor vehicle on the highways of this State by [a] person
would be inimical to public safety or welfare. W. Va. Code §
17B-3-6 authorizes the Division to suspend the driver’s
license of any person without preliminary hearing upon a
showing by its records or other sufficient evidence that the
licensee is incompetent to drive a motor vehicle. In view of
these statutory provisions, the Division shall not issue or
renew a driver’s license for any person when the
Commissioner determines that the person is incompetent to
drive a motor vehicle, or when the Commissioner has good
cause to believe that the operation of a motor vehicle on the
highways of this State by the person would be inimical to
public safety or welfare, unless the application for the license
is accompanied by a letter of explanation in such detail as the
Commissioner may require concerning the mental or physical
condition of the applicant at the time of application.

3.2 Procedures for Original, Renewal, or Duplicate
Applications for License – The Commissioner, after
reviewing the letter of explanation provided for in subsection
3.1 of this rule, may:

3.2.a. Approve the application for license;
3.2.b. Approve the application for license, and impose
appropriate restrictions as the applicant’s physical or mental
condition may require; or
3.2.c. Require the applicant to submit the following:

1. A Medical Report Form completed by a physician
of the applicant’s choice who is licensed in the United States;
2. A Medical Report Form completed by a Board
Certified Physician in the appropriate medical specialty for
the condition under consideration; or
3. A Vision Examination Report Form completed by
an optometrist or ophthalmologist of the applicant’s choice
who is licensed in the United States and

6
This administrative rule has since been amended. However, the May 15, 2006,
version was the one in effect during the events at issue in this case and therefore controls.
8
 4. Any other record or other information concerning
the applicant or licensee’s competency to operate a motor
vehicle that he or she would like the Commissioner to
consider.

3.2.d. The Commissioner, based on standards recommended
by the Driver’s License Advisory Board, or upon individual
review in instances where no standard applies, may take the
action indicated in subdivisions 3.2.a or 3.2.b of this rule,
refuse the application or order the suspension of license.

3.2.e. If an application for driver’s license, or application for
renewal of driver’s license is refused by the Commissioner
because of a physical or mental condition, the Commissioner
shall notify the applicant within seventy (70) calendar days
from the date of application or renewal by certified or
registered mail, return receipt requested. The applicant is
entitled to a hearing on the refusal by the Commissioner to
issue or renew a driver’s license.

3.3. Procedures for Medical or Vision Review – As provided
by W. Va. Code § 17B-3-6, the Division may suspend the
driver’s license of a licensee without a preliminary hearing
upon a showing by its records or other sufficient evidence
that the licensee is incompetent or otherwise not qualified to
operate a motor vehicle.

3.3.a. The Division may upon written notice of five days
require the licensee to present on the form prescribed by the
Commissioner to the Driver’s License Advisory Board a:

1. Medical Report Form completed by a physician of
the licensee’s choice who is licensed in the United States;
2. Medical Report Form completed by a board
certified physician in the appropriate medical specialty for the
condition under consideration; or
3. Vision Examination Report Form completed by an
optometrist or ophthalmologist of the licensee’s choice who is
licensed in the United States.

3.3.b. The licensee may, in addition to the medical and or
vision report forms, submit any other record or
documentation concerning his or her competency to drive for

9

 consideration of the Driver License Advisory Board and the
Commissioner.

3.3.c. The Commissioner, after reviewing the Medical Report
or Vision Examination Report and the recommendation of the
Driver’s License Advisory Board, may:

1. Determine that the licensee is competent to drive a
motor vehicle;
2. Determine that the licensee is competent to drive a
motor vehicle if certain appropriate restrictions are imposed
and impose such restrictions as the licensee’s physical or
mental condition may require; or
3. Determine that the licensee is incompetent to drive
a motor vehicle, that no appropriate restrictions can be
imposed under which the licensee could competently operate
a motor vehicle, and order the suspension of the license until
such time as the licensee is permitted to submit further
information to determine whether or not he or she is
competent to drive a motor vehicle.

3.3.d. The Commissioner shall immediately make and enter
an order suspending the license upon making a determination
that the licensee is incompetent to drive a motor vehicle.
Should the Commissioner further determine that the
continued operation of a motor vehicle by the licensee
presents a clear and immediate danger to the licensee and
others, the suspension shall remain in effect until the outcome
of any hearing requested or until the end of the period of the
suspension. The Division shall mail the licensee a copy of
the order by registered or certified mail, return receipt
requested.

The DMV argues on appeal that the circuit court erred by failing to rely on

subdivision 3.3.a. of the above rule which authorizes but does not mandate that the DMV

require the licensee to present the appropriate medical forms to the advisory board. The

DMV further contends that the circuit court erred when it failed to apply the maxim

10

expressio unius est exclusio alterius in construing the above rule.7 The DMV submits that

several parts of the rule, such as subdivisions 3.2.a., b., c., and d., list discretionary

actions that may be taken by the DMV after individual review by the DMV of a

licensee’s information, including medical information, without referencing any purported

mandatory duty by the DMV to have submitted the medical information to the advisory

board.

The respondent counters that subdivision 3.3.c. of the above rule mandated

that “[t]he Commissioner, after reviewing the Medical Report or Vision Examination

Report and the recommendation of the” advisory board may determine whether a licensee

is competent to drive. The respondent avers that the requirement that the DMV review

the advisory board’s recommendation before making a determination in a case logically

requires the DMV’s submission of the medical information to the advisory board.

Otherwise, says the respondent, although the DMV is required to receive the advisory

board’s recommendation before reaching a final determination in a case, there would be

no recommendation from the advisory board to review. Therefore, the respondent

concludes that on the day of the reinstatement of Ms. Peyton’s driver’s license, the DMV

was required to have received a medical report concerning Ms. Peyton, submitted that

report to the advisory board for review, and received a recommendation from the

advisory board on the board’s findings.

7
The Latin phrase expressio unius est exclusio alterius is “[a] canon of
construction holding that to express or include one thing implies the exclusion of the
other, or of the alternative.” Black’s Law Dictionary, 701 (10th ed. 2014).
11

 After careful consideration of the administrative rule at issue, this Court

concludes that the circuit court erred in determining that the rule required the DMV to

submit Ms. Peyton’s medical information to the advisory board for the board’s

recommendation. In our examination of West Virginia Code of State Rules 91-5-3, we

are mindful that “[i]t is generally accepted that ‘[s]tatutes and administrative regulations

are governed by the same rules of construction.’” Vance v. Bureau of Emp’t Programs,

217 W. Va. 620, 623, 619 S.E.2d 133, 136 (2005), quoting Farm Sanctuary, Inc. v. Dep’t

of Food and Agric., 63 Cal.App.4th 495, 505, 74 Cal.Rptr.2d 75 (1998). The rule of

statutory construction applicable in the instant case informs us that “[i]n the construction

of a legislative enactment, the intention of the legislature is to be determined, not from

any single part, provision, section, sentence, phrase or word, but rather from a general

consideration of the act or statute in its entirety.” Syl. pt. 1, Parkins v. Londeree, 146 W.

Va. 1051, 124 S.E.2d 471 (1962). In the instant case, the circuit court erred in construing

West Virginia Code of State Rules § 91-5-3 by singling out the language of one section

of the rule instead of considering the rule in its entirety.

Section 91-5-3 deals generally with the denial of driving privileges for

medical reasons. Subdivision 2 of the rule applies when the DMV is asked to issue or

renew a driver’s license for a person whom the DMV determines to be incompetent to

drive a motor vehicle or when the DMV has good cause to believe that the person’s

operation of a motor vehicle would be inimical to public safety or welfare. In such a

12

circumstance, the applicant may submit with his or her driver’s license application, a

letter of explanation addressing his or her mental or physical condition. After reviewing

the letter of explanation, the Commissioner of the DMV may approve the application,

approve the application with restrictions, or require the applicant to submit to the

Commissioner a medical report form or a vision examination report form, and any other

information concerning the applicant’s or licensee’s competency to operate a motor

vehicle. At that point, the Commissioner may approve the application, approve the

application with restrictions, or refuse the application or order the suspension of the

license.

Subdivision 3 of Section 91-5-3 sets forth procedures for medical or vision

review where a licensee’s driving privileges are suspended without a preliminary hearing

upon a proper showing that the licensee is incompetent or otherwise not qualified to drive

a motor vehicle. Section 91-5-3.3.a. provides that “[t]he Division may upon written

notice of five days require the licensee to present on the form prescribed by the

Commissioner to the” advisory board the prescribed medical report or vision examination

report forms and any other record or documentation concerning his or her competency to

drive that the licensee deems pertinent. (Emphasis added). Before making a final

determination, according to 3.3.c., “[t]he Commissioner, after reviewing the Medical

Report or Vision Examination Report and the recommendation of the Driver’s License

Advisory Board,” may take any of the actions prescribed by the rule. As indicated above,

however, when 3.3.c. is read in conjunction with 3.3.a., the rule indicates that the

13

Commissioner is required to review the recommendation of the advisory board only in

those instances where the Commissioner has chosen, in his or her discretion, to require

the licensee to present medical information to the advisory board.

By its clear language, Section 91-5-3.3.a. indicates that the Division “may”

require the licensee to present medical information to the advisory board. This Court has

previously recognized that the word “may” generally signifies discretion. See e.g.,

Powers v. Union Drilling, Inc., 194 W. Va. 782, 786, 461 S.E.2d 844, 848 (1995)

(commenting that “[t]he legislators’ choice of the term ‘may’ leaves no doubt that

availment” of particular identified procedures delineated in statute being addressed by

court “was intended to operate in a discretionary, rather than an obligatory manner”).

Therefore, it was within the discretion of the DMV whether to require Ms. Peyton to

present medical information to the advisory board. Because the DMV, in its discretion,

did not require Ms. Peyton to present medical information to the advisory board, there

was no recommendation of the advisory board for the DMV to review prior to its

determination regarding Ms. Peyton’s driving privileges.

There being no express requirement in Section 91-5-3 that the DMV submit

an applicant’s or licensee’s medical information to the advisory board prior to making its

determination regarding that applicant or licensee, the respondent’s argument necessarily

hinges on there being an implied duty in subdivision 3.3.c., for the DMV to submit the

applicant’s or licensee’s medical information to the advisory board. Specifically,

14

respondent contends that such an implication derives from the section’s language

indicating that the DMV is to consider the advisory board’s recommendation prior to

making its determination. We disagree. As indicated above, no such implication is

necessary to a reasonable reading of 3.3.c. Rather, when read in the context of other parts

of the rule, 3.3.c. requires the DMV to consider the advisory board’s recommendation in

those instances where the DMV has required the applicant or licensee to submit his or her

medical information to the advisory board.

In summary, we find that the 2006 version of Section 91-5-3 did not require

the DMV to present Ms. Peyton’s medical information to the advisory board for the

board’s review and recommendation before determining the status of Ms. Peyton’s

driving privileges. Instead, it was within the DMV’s discretion whether to require Ms.

Peyton to present medical information to the advisory board. Therefore, because the

governmental act or omission which gave rise to the respondent’s action against the

DMV constituted a discretionary governmental function, the DMV is immune to the

respondent’s action. Consequently, we find that the circuit court’s ruling that the DMV

had a nondiscretionary duty to refer Ms. Peyton’s medical information to the advisory

board to be in error. We furthermore find that the circuit court erred in failing to grant

summary judgment to the DMV on the basis of the DMV’s qualified immunity.

IV. CONCLUSION

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 For the foregoing reasons, the June 26, 2015, order of the Circuit Court of

Cabell County that denied summary judgment to the DMV is reversed, and we remand

for the entry of an order granting the DMV’s motion for summary judgment and

dismissing the action against it.

Reversed

and remanded.

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