West Virginia Lottery v. A-1 Amusement, Inc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2017 Term FILED
_______________ November 13, 2017
released at 3:00 p.m.
No. 16-1047 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

WEST VIRGINIA LOTTERY, WEST VIRGINIA LOTTERY COMMISSION, and
ALAN LARRICK, Director of the West Virginia Lottery,
Defendants Below, Petitioners

v.

A-1 AMUSEMENT, INC., ACTION GAMING, INC., ADVANCED LOTTERY
TECHNOLOGIES, LLC, BLUE DIAMOND, LLC, CD 3 LLC, CLAY MUSIC CORP.,
COACH’S CLUB ASSOCIATION, DUSTYN ENTERPRISES, INC., ELM ROOM,
INC., FABULOUS 50’S CAFÉ, LLC, GRIDCOACH, LLC, HOT 5 STOP, LLC,
JERRY’S BAR ASSOCIATION, LEEJAY, INC., LL&M, LLC, MIMI’S, INC., MOOSE
NITRO LODGE 565, MOUNTAINEER MUSIC, LLC, PDM ASSOCIATES OF
WEIRTON, LLC, PALATOKAS ASSOCIATES, LLC, PATTY’S, INC.,
PROGRESSIVE VIDEO LOTTERY, LTD., RANDOM WORLD, LTD., TA
VENDING, LLC, THE LOUNGE, LLC, TIFFANY’S, LLC, TRANS-ALLEGHENY
ENTERPRISES, LLC, WHEELING COIN, LLC, WOLDAP, LLC, WV “CAFÉ”
HOLDING COMPANY, LLC, and WEST VIRGINIA AMUSEMENT & LIMITED
VIDEO LOTTERY ASSOCIATION, INC.,
Plaintiffs Below, Respondents

____________________________________________________________

Appeal from the Circuit Court of Kanawha County
The Honorable James C. Stucky, Judge
Civil Action Nos. 15-C-914 through -946

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED

____________________________________________________________

Submitted: October 18, 2017
Filed: November 13, 2017

Patrick Morrisey, Esq. William C. Brewer, Esq.
Attorney General J. Tyler Slavey, Esq.
Katherine Schultz, Esq. Brewer & Giggenbach, PLLC
Senior Deputy Attorney General Morgantown, West Virginia
Mary M. Downey, Esq. Counsel for the Respondents
Assistant Attorney General
Sean M. Whelan, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for the Petitioners

JUSTICE WALKER delivered the Opinion of the Court.

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
 SYLLABUS BY THE COURT

1. “A circuit court’s denial of a motion to dismiss that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the ‘collateral order’ doctrine.” Syllabus Point 1, W. Va. Bd. of Educ. v. Marple, 236 W.

Va. 654, 783 S.E.2d 75 (2015).

2. The statutory eminent domain procedure, and therefore inverse

condemnation, can, in an appropriate case, be utilized to seek compensation for personal

property.

3. Pursuant to Rule 71B of the West Virginia Rules of Civil Procedure,

the proper procedure for pursuing inverse condemnation is to file a complaint in circuit

court seeking a writ of mandamus to compel the state to institute condemnation

proceedings.

4. “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. W. Va. Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675

(1983).

i
 5. “In the future, this Court will not review suits against the State

brought under the authority of W. Va. Code § 29–12–5 unless it is alleged that the

recovery sought is limited to the applicable insurance coverage and the scope of the

coverage and its exceptions are apparent from the record.” Syllabus Point 3, Parkulo v.

W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).

6. “The state insurance policy exception to sovereign immunity,

created by West Virginia Code § 29–12–5(a)(4) [2006] and recognized in Syllabus Point

2 of Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675

(1983), applies only to immunity under the West Virginia Constitution and does not

extend to qualified immunity. To waive the qualified immunity of a state agency or its

official, the insurance policy must do so expressly, in accordance with Syllabus Point 5 of

Parkulo v. W. Va. Bd. of Probation & Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).”

Syllabus Point 2, W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).

ii
WALKER, Justice:

This appeal concerns a dispute between the West Virginia State Lottery, the

Lottery Commission, the Lottery Director,1 (collectively, the State Lottery) and certain

entities (Permit Holders) who were issued permits to operate limited video lottery game

terminals (LVL terminals). The dispute arose after the State Lottery instructed the Permit

Holders that they would be required to use a different software program at their expense.

The Permit Holders sued both the State Lottery and IGT, the vendor responsible for

manufacturing the software. Against the State Lottery, the Permit Holders allege a taking

without just compensation (Count I), deprivation of property without due process (Count

II), and civil conspiracy (Count VII). On appeal, the State Lottery challenges the circuit

court’s denial of a motion to dismiss on the grounds that it waived its sovereign and

qualified immunity defenses. Further, the State Lottery alleges that the circuit court erred

because it did not require the Permit Holders to limit their claims for constitutional

violations to the limits of the state’s insurance policy.

For the reasons set forth below, we conclude that the State Lottery did not

waive its rights to sovereign and qualified immunity. With respect to the specific

allegations contained in the Permit Holders’ Amended Complaint, we find as follows: (1)

1
John C. Musgrave was the Director of the West Virginia Lottery at the time the
underlying civil actions were filed. In January 2017, Alan Larrick was appointed to that
position and has been automatically substituted as a party pursuant to Rule 41(c) of the
West Virginia Rules of Appellate Procedure.

1
the appropriate procedure seeking just compensation (Count I) through the process of

inverse condemnation, is for the Permit Holders to file a complaint seeking a writ of

mandamus requiring the State Lottery to institute condemnation proceedings; (2) to the

extent that Count II seeks money damages from the state treasury it is barred by

sovereign immunity unless the insurance policy exception is invoked, in which case

recovery is limited to the limits of the state’s insurance policy; and (3) because Counts II

and VII are claims brought under the insurance policy exception, the State Lottery may

assert qualified immunity as a defense. Because the circuit court did not make any

findings or inquiries relating to qualified immunity, this case must be remanded for an

exposition and determination on the facts pertinent to that issue. Accordingly, we affirm

in part, reverse in part, and remand this matter to the circuit court for determination of

whether the State Lottery is qualifiedly immune from Counts II and VII under these

circumstances.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Limited Video Lottery Act (the Act),2 authorizes the West Virginia

Lottery to award permits to private parties enabling them to operate LVL terminals.

After a bidding process, successful bidders are awarded a ten-year permit to operate the

LVL terminals. These computer-based LVL terminals require certain software or

2
W. Va. Code §§ 29-22B-101 to -1903 (2013).

2
“protocols” in order to communicate with the West Virginia Lottery’s central computer

system. IGT, a private Nevada corporation, produces and distributes both the LVL

terminals and the protocols for the West Virginia Lottery. Specifically, IGT produced

two protocols for the LVL terminals capable of communicating with the West Virginia

Lottery’s central computer system – ICIS and SAS. Each LVL terminal operates on

either the ICIS protocol or the SAS protocol. The Permit Holders’ LVL terminals

operate on the ICIS protocol.

Prior to the start of the bidding process for the LVL permits, the West

Virginia Lottery held educational seminars for potential bidders. The Permit Holders

allege that IGT representatives also attended the seminars. The Permit Holders further

allege that at these seminars, the Director of the West Virginia Lottery (Lottery Director)

and/or his staff told them that both the ICIS and SAS protocols could be used for the

entirety of the ten-year permit period. After three rounds of bids in October 2010,

February 2011, and June 2011, the bids were awarded to the Permit Holders and others

for the period of July 1, 2011 through June 30, 2021.3

3
The Permit Holders’ Amended Complaint alleges that the total amount spent by
the successful bidders was in excess of $70,000,000, with $9,200 as the average bid for
each permit.

3
 The Permit Holders allege that in 2012, the Lottery Director discussed the

upcoming expiration of the West Virginia Lottery’s contract with IGT relating to the

central computer system. On October 16, 2012, a Vice President of IGT wrote to the

Lottery Director and stated that “as a follow-up to their telephone conversation, the

company would no longer license or support the ICIS protocol after December 31, 2015.”

An association representing the Permit Holders contacted the Lottery Director to express

concerns of its member Permit Holders regarding the discontinuation of the ICIS protocol

and the impact on Permit Holders who would have to either purchase new LVL terminals

or conversion kits to enable their terminals to communicate using the SAS protocol. In

response, the Lottery Director negotiated with IGT to extend the ICIS protocol

compatibility through the end of 2017 and to allow IGT to exclusively sell “IGT

conversion kits” to convert ICIS protocol terminals into SAS protocol terminals.

In a newsletter to the Permit Holders, the West Virginia Lottery advised

that ICIS protocol terminals would be inoperable on January 1, 2018, and that any costs

incurred in the conversion to the SAS protocol would be borne by operators, retailers,

and/or permit holders. If the Permit Holders chose not to convert their terminals to the

SAS protocol, those LVL terminals would be considered illegal gaming devices under the

Act, as they would no longer be under the purview of the West Virginia Lottery.

4
 The Permit Holders filed a civil action against the State Lottery as well as

IGT.4 Against the State Lottery, the Permit Holders allege a regulatory taking of their

property without just compensation in violation of the West Virginia and United States

Constitutions (Count I); deprivation of a property right without due process in violation

of the due process clause of the West Virginia and United States Constitutions (Count II);

and civil conspiracy (Count VII).5

The State Lottery filed a motion to dismiss the complaint (First Motion to

Dismiss) arguing, among other things, that the claims were barred because the pleadings

were insufficient for failure to limit the recovery sought to the state’s insurance coverage.

The State Lottery cited this Court’s holding in syllabus point three of Parkulo v. West

4
We have observed that “[o]rdinarily, the immunity of a state agency and its
officer are addressed separately,” but we have discussed them together where the
allegations against the state agency and its officer are the same, the relief sought is the
same, and the defenses raised to those allegations are the same. W. Va. Bd. of Educ. v.
Marple, 236 W. Va. 654, 664 n.10, 783 S.E.2d 75, 85 n.10 (2015). Here, the Lottery
Director is sued in his official, not his personal capacity. Likewise, the Permit Holders’
allegations and the relief they seek are the same as against the West Virginia State
Lottery, the Lottery Commission and the Lottery Director, and the defenses raised in
response are the same. For those reasons, we consider them together.
5
Though not at issue in this appeal, as against IGT, the Permit Holders allege
tortious interference with a business contract, fraudulent inducement or concealment,
business and economic duress, unjust enrichment, and civil conspiracy.

5
Virginia Board of Probation and Parole6 with regard to its requirement that suits brought

under the exception to sovereign immunity based on the state’s purchase of insurance

coverage limit the recovery sought to the limits of the state’s insurance policy.

Additionally, in a footnote, the State Lottery argued: “Because the Plaintiffs’ Complaint

is untimely, it is unnecessary for the State Defendants to assert any and all immunities it

has to the Plaintiffs’ Complaint. However, these Defendants reserve their right to assert

any and all immunities available to them, including, but not limited to, constitutional7 and

qualified immunity.”

Based on Parkulo, the Permit Holders were given leave to amend their

complaint. In their Amended Complaint, the Permit Holders limited the recovery sought

for their civil conspiracy claim to the applicable insurance policy limits, but declined to

do so for their regulatory taking and due process claims. The Permit Holders reasoned

6
199 W. Va. 161, 483 S.E.2d 507 (1996) (“In the future, this Court will not
review suits against the State brought under the authority of W. Va. Code § 29–12–5
unless it is alleged that the recovery sought is limited to the applicable insurance
coverage and the scope of the coverage and its exceptions are apparent from the
record.”).
7
We take this opportunity to note that parties and courts often use the terms
“constitutional immunity,” “sovereign immunity,” and “absolute immunity”
interchangeably. To the extent practicable, we will use the term “sovereign immunity”
throughout the text of this Opinion. To clarify, these terms, as used in this opinion, refer
to the state’s general immunity from suit under article VI, section 35 of the West Virginia
Constitution (“The State of West Virginia shall never be made defendant in any court of
law or equity[.]”).

6
that the measure of damages for their regulatory taking and due process claims is

governed by the just compensation standard applicable to relief awarded under the

takings clause,8 not the insurance policy limits. The State Lottery then filed a second

motion to dismiss (Second Motion to Dismiss) asserting that the Amended Complaint did

not limit the constitutional claims to the insurance policy limits, and further asserting that

the claims were barred by the state’s sovereign and qualified immunity. The circuit court

denied the Second Motion to Dismiss, determining that the regulatory taking and due

process claims did not sound in tort and, therefore, the recovery need not be limited to the

insurance policy limits because they did not fall under the Parkulo holding. As to the

State Lottery’s invocation of sovereign and qualified immunity, the circuit court found

that the State Lottery had waived immunity by failing to raise it in the First Motion to

Dismiss. It is from this order that the State Lottery appeals.

II. STANDARD OF REVIEW

Although the denial of a motion to dismiss is, under normal circumstances,

not properly before this court because it is not a final, appealable order, “we recognize an

exception to this general rule ‘when the defense is in the nature of an immunity.’”9

Immunity determinations are excepted because “the entitlement is an immunity from suit

8
See W. Va. Const. art. III § 9.
9
Marple, 236 W. Va. at 660, 783 S.E.2d at 81 (citing Hutchinson v. City of
Huntington, 198 W. Va. 139, 147, 479 S.E.2d 649, 657 (1996)).

7
rather than a mere defense to liability; and like absolute immunity, it is effectively lost if

the case is erroneously permitted to go to trial.”10 Moreover, “[any] ruling denying the

availability of immunity fully resolves the issue of a litigant’s obligation to participate in

litigation” and therefore should be resolved at the outset of litigation.11 Thus, we have

held that “[a] circuit court’s denial of a motion to dismiss that is predicated on qualified

immunity is an interlocutory ruling which is subject to immediate appeal under the

‘collateral order’ doctrine.”12 Likewise, when the issue relates to sovereign immunity, it

is well-settled that “the denial of a substantial claim of absolute immunity is an order

appealable before final judgment[.]”13 In the context of immunity determinations, we

have discussed that we review de novo a circuit court’s order denying a motion to

dismiss.14 With these standards in mind, we turn to the parties’ arguments.

10
Hutchinson, 198 W. Va. at 147, 479 S.E.2d at 657 (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)).
11
Robinson v. Pack, 223 W. Va. 828, 832, 679 S.E.2d 660, 661 (2009).
12
Syl. Pt. 1, Marple, 236 W. Va. at 660, 783 S.E.2d at 81.
13
See Mitchell, 472 U.S. at 525.
14
Marple, 236 W. Va. at 660, 783 S.E.2d at 81 (citing Syl. Pt. 4, Ewing v. Bd. of
Educ. of Cnty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998)). See also Credit
Acceptance Corp. v. Front, 231 W. Va. 518, 525, 745 S.E.2d 556, 563 (2013) (“When an
appeal from an order denying a motion [to] dismiss is properly before this Court, or
review is de novo.”) (citation omitted).

8
 III. ANALYSIS

A. Waiver

As a preliminary matter, we must determine whether the State Lottery

waived the right to sovereign or qualified immunity by failing to substantively raise it in

the First Motion to Dismiss. We discussed a factually similar situation in Marple, in

which the state defendants had not raised the immunity defense in their motion to

dismiss, but had argued at length on the issue of qualified immunity after the motion was

filed.15 In determining that the state defendants had not waived qualified immunity, this

Court reasoned:

[Q]ualified immunity can be pled at various stages in a case.
As one court noted, “qualified immunity is a question of law
that may be generally asserted (1) on a pretrial motion to
dismiss under Rule 12(b)(6) for failure to state a claim; (2) as
an affirmative defense in the request for judgment on the
pleadings pursuant to Rule 12(c); (3) on a summary judgment
motion pursuant to Rule 56(e); or (4) at trial.”16

Expounding on the criteria for evaluating the timeliness of an assertion of immunity, this

Court discussed that “failure to raise an affirmative defense in a motion to dismiss does

not result in waiver when ‘there is no unfair surprise or prejudice to the opposing party’”

and determined that under the procedural facts of the case, the timing of the state

15
Marple, 236 W. Va. at 667, 783 S.E.2d at 88.
16
Id. at 668, 783 S.E.2d at 89 (citation omitted).

9
defendant’s assertion of qualified immunity did not result in unfair surprise or

prejudice.17

We find the current situation factually analogous, and an even clearer

example that the State Lottery did not waive immunity. In this case, although the State

Lottery did not substantively raise either its sovereign or qualified immunity defenses in

the First Motion to Dismiss, it explicitly reserved the right to assert those immunities in a

footnote. Under these circumstances, the Permit Holders cannot argue surprise or

prejudice when they were put on notice of the two immunity defenses at the very onset of

litigation.

Moreover, we take special note the State Lottery raised the issue in the

Second Motion to Dismiss, which was filed in response to the Permit Holders’ Amended

Complaint. Rule 15(a) of the West Virginia Rules of Civil Procedure provides that “[a]

party shall plead in response to an amended pleading within the time remaining for

response to the original pleading or within 10 days after service of the amended pleading,

whichever period may be the longer, unless the court otherwise orders.” Rule 12(b) of

the West Virginia Rules of Civil Procedure then provides that

[e]very defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim or third-

17
Id.

10
 party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses
may at the option of the pleader be made by motion:
***
(6) failure to state a claim upon which relief can be granted[.]

Without doubt, the Amended Complaint required a responsive pleading, and nothing in

the Rules of Civil Procedure prohibits a second 12(b)(6) motion to raise defenses in

response to an amended pleading. Likewise, nothing in the Rules of Civil Procedure

limits the scope of a second motion to dismiss to the allegations that were changed as

between the original and amended complaints. For those reasons, the circuit court erred

in determining that the State Lottery waived the right to assert sovereign and qualified

immunity.

B. Immunity

Having determined that the State Lottery did not waive sovereign and

qualified immunity, we turn to the three counts pled against the State Lottery –

Regulatory Taking (Count I); Deprivation of Property Without Due Process (Count II);

and Civil Conspiracy (Count VII). Because each of these causes of action requires a

wholly distinct immunity analysis, we consider them separately.

11
 1. Count I – Regulatory Taking

In Count I, the Permit Holders allege that the State Lottery had previously

assured that the ICIS protocol would be functional for the full ten-year permit period.

Further, the Permit Holders allege the State Lottery’s requirement that all LVL terminals

be converted to the SAS protocol at the cost of the Permit Holders amounted to a taking

under both the West Virginia and United States Constitutions because the failure to

convert to the SAS protocol would render their LVL terminals economically useless and

would even subject them to criminal penalties for continued possession.18

Article III section 9 of the West Virginia Constitution provides, in relevant

part, that “[p]rivate property shall not be taken or damaged for public use, without just

compensation[.]” Likewise, the Fifth Amendment to the United States Constitution,

applied to the states through the Fourteenth Amendment provides that “private property

[shall not] be taken for public use, without just compensation.”19 This provision is often

referred to as “the takings clause.” Courts have recognized that, though they are distinct

situations and require different analyses, the takings clause may apply to the literal taking

of property by occupation—for example, the state taking of privately owned land for

18
West Virginia Code §§ 29-22B-1704 to -1708 (2013) outline various criminal
penalties for possession or operation of LVL terminals that are unauthorized by the West
Virginia State Lottery.
19
See Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001); U.S. Const. amend. V.

12
construction of a state highway—as well as a regulatory taking, such as when the state

passes a law or regulation that effectively renders private property economically useless,

despite that it is still intact and “owned” by the private party.20 Because the State Lottery

has not physically removed the LVL terminals from the possession of the Permit Holders,

but rather has put restrictions on their use by requiring that they conform to the SAS

protocol, the Permit Holders allege a regulatory taking.

It has been recognized with regard to real property that “a regulation which

‘denies all economically beneficial or productive use of land’ will require compensation

under the Takings clause, . . . . [and,] [w]here a regulation places limitations on land that

fall short of eliminating all economically beneficial use, a taking nonetheless may have

occurred, depending on a complex of factors including the regulation’s economic effect

on the landowner, the extent to which the regulation interferes with reasonable

investment-back expectations, and the character of the government action.”21

20
See CRV Enterprises, Inc. v. U.S., 626 F.3d 1241, 1246 (Fed. Cir. 2010)
(“Decisions of the Supreme Court have drawn a clear line between physical and
regulatory takings. The former involve a physical occupation or destruction of property,
while the latter involve restrictions on the use of the property. . . . The distinction is
important because physical takings constitute per se takings and impose a ‘categorical
duty’ on the government to compensate the owner, whereas regulatory takings generally
require balancing and ‘complex factual assessments’ . . . .”) (citations omitted).
21
Palazzolo, 533 U.S. at 617 (citations omitted).

13
 Although the issue of a regulatory taking most commonly occurs most in

the context of zoning regulations applicable to real property, here we are posed with an

alleged regulatory taking of personal property by the state through its mandate that the

LVL terminals conform to the SAS protocol. Discussing personal property we have

observed, “[l]ong ago, this Court acknowledged that [the constitutional prohibition on

takings without just compensation] ‘protects private property in personalty as fully as in

real estate.’”22 This conclusion is consistent with the view held by the Supreme Court as

to the broad definition of what constitutes an interest in property.23

However, our case law has been somewhat inconsistent regarding whether

the eminent domain procedure, and consequently inverse condemnation, may be utilized

in the context of personal property. In G.M. McCrossin, we attempted to resolve the

confusion:

22
G.M. McCrossin, Inc. v. W. Va. Bd. of Regents, 177 W. Va. 539, 544, 355
S.E.2d 32, 37 (1987) (quoting Syl. Pt. 3, Teter v. W. Va. Central and Pittsburgh Railway
Co., 35 W. Va. 433, 14 S.E. 146 (1891)). See also State ex rel Firestone Tire & Rubber
Co. v. Ritchie, 153 W. Va. 132, 168 S.E.2d 287 (1969); Virginia Elec. and Power Co. v.
Pub. Serv. Comm., 162 W. Va. 202, 248 S.E. 2d 322 (1978).
23
G.M. McCrossin, 177 W. Va. at 544 n.11, 355 S.E.2d at 37 n.11 (recognizing
the Supreme Court of the United States’ decisions in Bd. of Regents v. Roth, 408 U.S.
564, 571-72 (1972) ( “the property interests protected by procedural due process extend
well beyond actual ownership of real estate, chattels, or money”) and Perry v.
Sindermann, 408 U.S. 593, 601 (1972) (“‘property’ denotes a broad range of interests
that are secured by ‘existing rules or understandings.’”)).

14
 Our cases are in conflict as to whether the eminent
domain procedure set out in article 2, chapter 54 of the West
Virginia Code may be utilized in seeking recovery for
property interests other than realty. Compare State ex rel.
Point Towing Co. v. McDonough, 150 W. Va. 724, 149
S.E.2d 302 (1966) (leaving open the possibility of eminent
domain proceedings to determine the proper compensation for
personalty) with [State ex rel. Firestone Tire & Rubber Co. v.
Ritchie], 153 W. Va. 132, 168 S.E.2d 287 [1969] (no
procedure prescribed by general law for compensation for
personal property.) We think that the statutory eminent
domain procedure can, in the appropriate case, be utilized to
set compensation for personal property.24

Later, in Henson, this Court upheld, wholesale, the denial of a writ of mandamus seeking

the state to compensate property owners for damage to both their real and personal

property.25 In Henson, this Court did not address the personal property issue and instead

simply determined that the petitioners had failed to establish a set of facts to show there

had been a taking.26 As noted by Justice Starcher in his dissent, the holding was

problematic:

The majority opinion also failed to discuss the lower
court’s holding that the [property owners] were, as a matter of
law, not entitled to claim damages for personal property. The
circuit court cited as authority for its ruling State ex rel.
Firestone Tire and Rubber Co. v. Ritchie, 153 W. Va. 132,

24
G.M. McCrossin, 177 W. Va. at 544-45, 355 S.E.2d at 37-38 (footnote omitted)
(emphasis added).
25
State ex rel. Henson, 203 W. Va. 229, 232-33, 506 S.E.2d 825, 828-29 (1998).
26
Id. at 232, 506 S.E.2d at 828.

15
 168 S.E.2d 287 (1969), a case that suggests that a party
cannot recover for damages to personal property in an
eminent domain proceeding. We expressly held in G.M.
McCrossin, Inc. v. West Virginia Board of Regents, 177 W.
Va. 539, 355 S.E.2d 32 (1987), contrary to Firestone, supra,
that “the statutory eminent domain procedure can, in the
appropriate case, be utilized to set compensation for personal
property.” McCrossin, 177 W. Va. at 545, 355 S.E.2d at 38.
The circuit court was, therefore, clearly wrong to state that
there is no legal authority to entitle a party to recover for
damage to personal property in an eminent domain
proceeding.27

To the extent that our holding in Henson requires clarification, we reiterate

and herein hold that the statutory eminent domain procedure, and therefore inverse

condemnation, can, in an appropriate case, be utilized to seek compensation for personal

property. As we discussed in G.M. McCrossin:

Such an interpretation of [the eminent domain procedure] is
consistent with the relevant portion of general rules for
statutory construction set out in West Virginia Code § 2-2-
10(r) which states that “[t]he word ‘property’ or ‘estate’
embraces both real and personal estate.” More importantly, it
is consistent with [Teter v. W. Va. Central and Pittsburgh
Railway Co., 35 W. Va. 433, 14 S.E. 146 (1891)] finding that
personalty is protected by the Constitution and with the
venerable but still valid principle that to deny the remedy is to
deny the right. As this Court observed soon after the
constitutional provision in question became part of the
organic law of this state, “the Constitution denounces it as a
wrong against the individual now, to damage his private
property without just compensation, and for that wrong, he
must have a remedy, although it is not pointed out in the

27
Id. at 234, 506 S.E.2d at 830 (Starcher, J., dissenting).

16
 Constitution, or by any statutory enactment thereunder.”
Johnson v. City of Parkersburg, 16 W. Va. 402 (1880).28

Neither the West Virginia Constitution, the United States Constitution, nor our eminent

domain statutes specify that eminent domain proceedings apply solely to real estate to the

exclusion of personalty.29 In fact, in light of our conclusion on the matter discussed in

G.M. McCrossin, this Court invited the Legislature to “alter or add to the eminent domain

procedure currently detailed in chapter 54 of the West Virginia Code so that

compensation for property other than realty may be more efficiently determined.”30 The

Legislature has declined to do so. Nevertheless, consistent with the United States

Supreme Court’s broad interpretation of “property” for eminent domain purposes and the

28
G.M. McCrossin, 177 W. Va. at 545, 355 S.E.2d at 38.
29
See also AGCS Marine Ins. Co v. Arlington County, 800 S.E.2d 159, 170 (Va.
2017) (explaining that dating back to the Magna Carta, takings by the state have also
applied to personal property and inverse condemnation is available to those aggrieved
property owners:

[f]or as long as the power of eminent domain has existed, so too have the
limitations on this power applied to the confiscation of personal property. . .
. In short, [the Virginia constitution’s takings clause] makes no categorical
distinction between personal and real property. The implied constitutional
right of action for inverse condemnation likewise contains no such
distinction. If such a claim meets all of the necessary requirements to
recover for a taking or damaging of private property, it is no defense that
the property taken or damaged was personal and not real property.)
30
G.M. McCrossin, 177 W. Va. at 545 n.13, 355 S.E.2d at 38 n.13.

17
leanings implicit in our precedent, we find that the procedures31 outlined for eminent

domain and inverse condemnation may be applied in this case where the Permit Holders

seek just compensation for what they allege is a regulatory taking of their personal

property.

The State Lottery contends, however, that the Permit Holders pled their

claim as an exception to the state’s sovereign immunity through the purchase of

insurance,32 rather than petitioning the circuit court for a writ of mandamus to require the

state to institute condemnation proceedings. Thus, the State Lottery argues that because

the Permit Holders elected to plead their claims in this manner and then declined to limit

the recovery on their takings claim to the insurance policy limits, sovereign immunity is

applicable.

Indeed, article VI, section 35 of the West Virginia Constitution provides

that “[t]he State of West Virginia shall never be made a defendant in any court of law or

equity[.]” The Permit Holders counter that this provision is inconsistent with the takings

31
As noted more fully infra, however, we make no assessment of the viability of
the Permit Holders takings claim.
32
See Syl. Pt. 1, in part, Eggleston v. W. Va. Dept. of Highways, 189 W. Va. 230,
429 S.E.2d 636 (1993) (“W. Va. Code, 29-12-5(a) (1986), [the legislative provision for
the purchase of insurance] provides an exception for the State’s constitutional immunity
found in Section 35 of Article VI of the West Virginia Constitution.”)

18
clause in Article III of the West Virginia Constitution, as well as application of the

Supremacy Clause in light of the United States Constitution’s matching provision.33 We

visited this constitutional issue in Stewart v. State Road Commission, explaining:

We recognize that the constitutional inhibition against taking
private property for public use without just compensation
(Art. II, sec. 9) is of equal dignity with the inhibition against
suing the state. If necessary to maintain the rights of a citizen
under the former, the two provisions would be construed
together and the former treated as an exception to the latter.
This has been done in some states. Our procedure, however,
affords ample protection to one in the position of petitioner
without resorting to that necessity.34

33
Of note, a state’s sovereign immunity—in its own courts, and in federal courts
pursuant to the Eleventh Amendment of the United States Constitution—is a hotly
debated issue in cases where the Eleventh Amendment is irreconcilable with the
Fourteenth Amendment because no remedy is provided for a wrong. See, e.g.,
Reconciling State Sovereign Immunity with the Fourteenth Amendment, 129 Harv. L.
Rev. 1068, 1089 (“With a federal system that values both state autonomy and state
accountability, trying to strike (and restrike) the appropriate balance between the two
through the doctrine of state sovereign immunity may be a constant feature of the
American legal order.”); and Carlos Vázquez, Sovereign Immunity, Due Process, and the
Alden Trilogy, 109 Yale L.J. 1927-1930–31 (2000) (“Although the sovereign immunity
doctrine has often been criticized as inconsistent with rule-of-law aspirations because it
leaves some rights without corresponding remedies, the [Supreme Court of the United
States’] latest decisions suggest that this doctrine’s most problematic feature from a rule-
of-law perspective may be its bewildering complexity.”).
However, as we discuss here, the issue is no longer of debate in West Virginia –
we have acknowledged that this Court makes every effort to craft a remedy so as not to
disrupt the state’s sovereign immunity, but, when faced with the irreconcilability of
sovereign immunity and other constitutional provisions, sovereign immunity gives way.
34
117 W. Va. 352, 353, 185 S.E. 567, 567 (1936) (internal citations omitted).

19
In Stewart, we delineated the various remedies available to a landowner whose property

had been taken without just compensation, including the availability of an injunction,

seeking damages against the state road commissioner personally, or proceeding through

mandamus to require the commissioner, personally, to institute condemnation

proceedings.35 Stewart recognized that, if in conflict, sovereign immunity would give

way to a claim under the takings clause, but still found that the provisions were

reconcilable by allowing the property owner to proceed against the official charged with

performing condemnation in his personal capacity, since “in such a case a suit brought by

the person entitled to the performance of the duty against the official charged with its

performance is not a suit against the government.”36

However, since Stewart was decided in 1936, our immunity jurisprudence

has changed dramatically.37 More recently, we have recognized:

35
See id. at 353-54, 185 S.E. at 567-68.
36
Id. at 354, 185 S.E. at 568 (quoting Houston v. Ormes, 252 U.S. 469, 472
(1920)).
37
See G.M. McCrossin, 177 W. Va. at 541-42, 355 S.E.2d at 34-35, for a
discussion of the history and origins of the doctrine of sovereign immunity as well as
how the doctrine has evolved (“The doctrine of sovereign immunity is reflective of an
otherwise long dead philosophy that it is better that an individual who has suffered wrong
bear the burden of an injury than that the public suffer an inconvenience . . . . This
doctrine of sovereign immunity seems antithetical to the concepts of open access to the
courts and due process of law which are basic to our democratic form of government.”)
(citations omitted).

20
 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. 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. Moreover,
one’s constitutional right to access to the courts should not
depend upon whether one seeks recourse for injuries
attributable to a governmental agency by way of a cause of
action sounding in tort, or by way of a mandamus to compel
compensation for the damaging of private property.38

Specific to claims involving a taking in which the state attempts to invoke sovereign

immunity,

this Court has repeatedly held that the West Virginia
Department of Highways, (formerly designated as The State
Road Commission), an agency of the state, may be required
by mandamus to institute eminent domain proceedings in
order to ascertain just compensation for private land taken or
damaged for state highway purposes.39

Thus, the solution espoused in Stewart that the suit be brought against the commissioner

in his or her personal capacity is no longer the law of this state. Rather, a property owner

may proceed against a state agency by filing a complaint seeking a writ of mandamus to

recover just compensation for real property taken or damaged for public purposes. As we

38
Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 753, 754, 310
S.E.2d 675, 686 (1983) (citations omitted).
39
State ex rel. Rhodes v. W. Va. Dept. of Highways, 155 W. Va. 735, 738, 187
S.E.2d 218, 221 (1972).

21
have previously explained, “the appropriate remedy for a property owner whose property

has been taken or damaged by [a state agency] when the department takes no action to

compensate an injured property owner is to seek a writ of mandamus to compel the [state

agency] to institute eminent domain proceedings.”40 In this sense, the route around

sovereign immunity is clear in the context of real property owners, as they may seek a

writ of mandamus requiring the state to institute eminent domain proceedings (i.e.,

inverse condemnation) without implicating sovereign immunity.41 In light of our holding

regarding the use of inverse condemnation in the context of personal property, we find

these cases clarifying the procedures of inverse condemnation equally instructive in this

case.

However, by filing a civil action rather than a petition for a writ of

mandamus, the State Lottery argues that the Permit Holders have seemingly pled under

the insurance exception, and, consequently, the recovery sought must be capped at the

40
Henson, 203 W. Va. at 232, 506 S.E.2d at 828. As noted below, however, the
proper procedure is to file a civil action in circuit court requesting as relief that the court
issue a writ of mandamus requiring the state to institute condemnation proceedings.
41
See Agins v. Tiburon, 447 U.S. 255, 257 n.2 (1980) (“Inverse condemnation
should be distinguished from eminent domain. Eminent domain refers to a legal
proceeding in which a government asserts its authority to condemn property. Inverse
condemnation is ‘a shorthand description of the manner in which a landowner recovers
just compensation for a taking of his property when condemnation proceedings have not
been instituted.’”) (internal citations omitted).

22
insurance policy limits. The State Lottery fails to recognize that this Court, in 1998,

abolished extraordinary writs to the circuit court under Rule 71B of the West Virginia

Rules of Civil Procedure, and simplified the procedure by mirroring the “complaint”

structure used in Rule 10(a):

The complaint shall contain a caption as provided in
Rule 10(a) except that the plaintiff shall name as defendants
the agencies, entities, or individuals of the State of West
Virginia to which the relief shall be directed . . . . The
complaint shall contain a short and plain statement of the
authority for the writ demanded. A form indicating the
simplified nature of the extraordinary writ practice as
provided for by this provision is contained in the Appendix as
Form 32.42

Applied in the eminent domain context, we have explained that “the proper course of

action for an aggrieved property owner [seeking just compensation for property taken or

damaged by the state] . . . is to file a complaint in the circuit court seeking a writ of

mandamus.”43 We hold, therefore, that pursuant to Rule 71B of the West Virginia Rules

of Civil Procedure, the proper procedure for pursuing inverse condemnation is to file a

complaint in circuit court seeking a writ of mandamus to compel the state to institute

condemnation proceedings.

42
W. Va. R. Civ. P. 71B(c) (emphasis added).
43
Shaffer v. W. Va. Dept. of Transp., 208 W. Va. 673, 677, 542 S.E.2d 836, 840
(2000).

23
 The fact that the Permit Holders filed a complaint in circuit court seeking

just compensation for an alleged taking does not automatically implicate the insurance

policy exception to sovereign immunity. Rather, the Permit Holders need not resort to

the insurance policy exception to sovereign immunity to circumvent it—they need only

amend their complaint alleging a taking without just compensation to seek a writ of

mandamus to require the state to institute eminent domain proceedings.44

We are aware that under Rule 15(a) of the West Virginia Rules of Civil

Procedure, the Permit Holders would need leave of court to amend their complaint to

seek a writ of mandamus requiring the State Lottery to institute condemnation

proceedings.45 Pursuant to this rule, “leave shall be freely given when justice so

requires.” Due to the inconsistent nature of our case law relating to the availability of

inverse condemnation proceedings in takings of personal property, as well as the

complexity of the immunity issues involved, we believe that, in this case, justice would

44
See W. Va. R. Civ. P. Form 32 (entitled “Complaint for Writ of Mandamus” and
providing the following example as a request for relief: “Wherefore, a Writ of Mandamus
is hereby demanded to accord the relief plaintiff is entitled to as a prevailing grievant,
including costs, interest as provided by law, and reasonable attorney’s fees expended in
support of this action.”).
45
Rule 15(a) of the West Virginia Rules of Civil Procedure provides that “[a]
party may amend the party’s pleading once as a matter of course at any time before a
responsive pleading is served . . . . [o]therwise a party may amend the party’s pleading
only by leave of court or by written consent of the adverse party[.]”

24
require that the Permit Holders be entitled to amend their complaint to adjust the relief

sought in conformity with this Opinion.

We wish to make clear, however, that whether the State Lottery’s mandate

compromised a property interest such that it amounted to a regulatory taking for which

just compensation is required is not currently before this Court. Moreover, in issuing our

new syllabus point recognizing the availability of eminent domain proceedings for a

personal property taking, we make no judgment regarding whether the Permit Holders

have asserted a viable cause of action in that regard. It will be incumbent upon the

Permit Holders to demonstrate that the takings claim it has alleged presents a viable

theory for recovery under the eminent domain construct. At this juncture, we are asked

only to determine whether the State Lottery is entitled to assert sovereign immunity for

the Permit Holders’ takings claim or whether such claim is subject to the limits of the

state’s insurance.

Therefore, as set forth above, the State Lottery is not entitled to sovereign

immunity from the Permit Holders’ takings claim.46 However, the Permit Holders may

46
A reading of the briefs indicates that the State Lottery generally raises a
qualified immunity defense only because it contends that the Permit Holders pled their
takings claim under the insurance exception to sovereign immunity. We do not believe
the State Lottery intended to make an argument that it is immune from eminent domain
proceedings. Because we have determined that the Permit Holders’ claim does not fall
(continued . . .)

25
seek leave of court to amend their complaint to seek a writ of mandamus requiring the

State Lottery to institute condemnation proceedings. If, as previously stated, the circuit

court determines that the predicate facts and circumstances establish a taking under the

West Virginia and United States Constitutions, then it may issue the writ of mandamus

requiring the State Lottery to institute eminent domain proceedings, in which the measure

of damages is, as always, just compensation for the property taken.

2. Count II – Deprivation of Property Without Due Process

Next, we analyze whether the State Lottery is entitled to sovereign

immunity or qualified immunity with respect to the due process claim. Similar to the

rationale discussed above relating to the takings clause, we have previously explained

that we would treat a violation of due process as an exception to sovereign immunity if

necessary to provide a remedy:

The reason that we would, if necessary, treat due process
rights as superior to the prohibition recognizing sovereign
immunity is that due process rights are more fundamental to
our concept of government. “[I]f due process of law has any
meaning, it is that there is no sovereign unless he conform to
principles of legality. It is evident that this protection has
always been considered the most general of all our
constitutional guarantees.” . . . [W]e believe that the right to
due process is of greater value than the preservation of

under the insurance exception to sovereign immunity, and rather is appropriately
addressed in eminent domain proceedings, it is unnecessary to address qualified
immunity in this context.

26
 [sovereign immunity] rooted in medieval concepts of
jurisdiction.47

In that vein, we have explained:

[t]he facial absoluteness of Section 35, however, has not
prevented this Court from recognizing several contexts in
which litigation may go forward even though the State
government—and sometimes, even, the State treasury—
could be seriously affected by the outcome of the litigation.
Most of these were catalogued in Pittsburgh Elevator. . . .
Our cases reflect a desire to ensure the proper performance of
official duties, and so long as compliance with a judicial

47
G.M. McCrossin, 177 W. Va. at 542, 355 S.E.2d at 35. See also G.M.
McCrossin, 177 W. Va. at 541, 355 S.E.2d at 34:

[T]he concept of sovereign immunity in Anglo-
American law is most often related back to the time of Henry
III, when the courts held the king personally immune from
liability. The adage was that “the king can do no wrong.”
This maxim, however, was probably less a statement
regarding the king’s morality than one relating to personal
jurisdiction. “[T]he king could not be sued in the central
Courts of law, because they were his Courts, and no lord
could be sued in his own Court.” . . . The personal immunity
of the king as the sovereign was applied without serious
question to the perople’s government in the United States so
that Alexander Hamilton declared, “[i]t is inherent in the
nature of sovereignty not to be amenable to the suit of an
individual without its consent.” . . . A somewhat more
rationally based explanation of the adoption of the concept of
sovereign immunity in the United States is that “the ‘general
nature’ of the common law of England was that an action
could not be maintained for negligence against the public.”

(internal citations omitted).

27
 decree does not require the expenditure of money, no
potential for conflict with Section 35 is triggered.48

Thus, if the remedy sought against the state does not require the expenditure of state

funds, sovereign immunity is not triggered. This is consistent with the underpinnings of

sovereign immunity, which is “designed to protect the public purse.”49 Indeed, where

recovery is not sought against the state treasury, “the reasons for [sovereign] immunity

completely disappear.”50

Applying this logic in the context of the analysis and remedy for a due

process violation, basic constitutional law principles are instructive:

Procedural due process, as the phrase implies, refers
to the procedures that the government must follow before it
deprives a person of life, liberty, or property. . . .
[s]ubstantive due process, as that phrase connotes, asks
whether the government has an adequate reason for taking
away a person’s life, liberty or property. . . . If the plaintiff is
seeking to have a government action declared
unconstitutional as violating a constitutional right, substantive
due process is involved. But when a person or group is
seeking to have a government action declared

48
Gribben v. Kirk, 195 W. Va. 488, 493-94, 466 S.E.2d 147, 152-53 (1995)
(internal citations omitted).
49
Pittsburgh Elevator, 172 W. Va. at 756, 310 S.E.2d at 689.
50
See id. (recognizing that “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.”).

28
 unconstitutional because of the lack of adequate safeguards,
such as notice and a hearing, procedural due process is the
issue.51

To use a more basic example than the complex one involved in this case, if

the Legislature were to pass a law enabling the state to seize some item of personal

property—like books—citizens are enabled, under the due process clause, to challenge

the law by requiring that the government justify its purposes for enacting it. Were those

citizens to be successful under a due process challenge, the remedy is not to require the

government to compensate citizens for their books before or after taking them (indeed,

that would be a claim arising under the takings clause), but rather, the remedy is to

invalidate the law itself or to require adequate procedural safeguards before depriving

citizens of their personal property. This remedy requires no expenditure of funds from

the state treasury and therefore the due process challenge is unaffected by the state’s

sovereign immunity.

Accordingly, if the Permit Holders sought only to have the State Lottery’s

mandate be declared unconstitutional (i.e., that the State Lottery’s mandate to convert the

LVL terminals be nullified), but did not seek money damages, sovereign immunity is not

triggered because the relief is akin to an injunction.

51
See Erwin Chemerinsky, Constitutional Law: Principles and Policies, 569–70
(5th ed. 2015) (emphasis in original).

29
 However, the Permit Holders seek compensatory and punitive damages52 as

a consequence for the alleged due process violation.53 Thus, the Permit Holders’

complaint, in this regard, sounds in tort—a “constitutional tort” to be more exact.

Constitutional torts, as the name implies, seek recovery of money damages for

constitutional wrongs. Most commonly, these actions are brought under 42 U.S.C. §

1983,54 which enables a private citizen to seek money damages in tort against a

52
Permit Holders clarified below that the punitive damages in their prayer for
relief are sought against IGT and concede that they cannot recover punitive damages
against the state.
53
In their Amended Complaint, the Permit Holders make the following request for
relief:
WHEREFORE, based upon the facts set forth herein,
the Plaintiffs respectfully request that the Court award
compensatory and punitive damages, if the evidence warrants
to Plaintiffs for all damages incurred, Order the Defendants to
support the ICIS protocol throughout the entire ten year
permit period, and alternatively, Order the Defendants to
cover all costs of converting all terminals to the SAS
protocol, that the Court award Plaintiffs’ attorneys’ fees,
costs, or any other reasonable expenses incurred by Plaintiffs
in this proceeding and that the Court award Plaintiffs such
other and further relief, both general and special, as the Court
deems just and proper.
54
42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects or causes to be subjected, any
citizen of the United States or other person within the
(continued . . .)

30
government official in his or her personal capacity for constitutional wrongs to be taken

from the state official’s pocket, not the state treasury’s.55 Many jurisdictions have passed

tort claims acts to compensate citizens injured by negligence of state actors who would

otherwise be barred from suing due to the state’s sovereign immunity. As we have

discussed, “most other jurisdictions have enacted some form of tort claims act which

governs actions against the state and its agencies. In West Virginia, however, the

Governmental Tort Claims and Insurance Reform Act, West Virginia Code § 29-12A-1 et

seq., is limited to political subdivisions and their employees and does not cover claims

made against the State or its agencies.”56 Thus, the Governmental Tort Claims and

Insurance Reform Act does not provide a means by which the Permit Holders may sue

the state in tort in contravention of the state’s sovereign immunity, even for constitutional

violations.

jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law[.]
55
See Will v. Michigan Dep’t. of State Police, 491 U.S. 58 (1989) (holding that
suits against state governments, even in state courts that seek money damages from the
state treasury under 42 U.S.C. § 1983 are not permitted and that suits against state
officers in their official capacity are likewise barred under that rule). See also Kentucky
v. Graham, 473 U.S. 159 (1985) (discussing distinction between suits brought against a
public official in an individual capacity as opposed to an official capacity and
recognizing unavailability of state treasury funds as recovery in an official-capacity suit).
56
W. Va. Reg’l Jail Corr. Facility Auth. v. A.B., 234 W. Va. 492, 502, 766 S.E.2d
751, 761 (2014).

31
 Permit Holders’ contention that the Supremacy Clause precludes limitation

of these constitutional tort claims to insurance policy limits overlooks that state

sovereignty is likewise guaranteed in the Eleventh Amendment to the United States

Constitution.57 The Supreme Court of the United States has discussed that “when the

action is in essence one for recovery of money from the state, the state is the real,

substantial party in interest and is entitled to invoke its sovereign immunity from suit

57
“The judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
citizens of another state, or by citizens or subjects of any foreign state.” U.S. Const.
amend. XI, see also Edelman v. Jordan, 415 U.S. 651, 662-63 (1974) (“While the
Amendment by its terms does not bar suits against a State by its own citizens, this Court
has consistently held that an unconsenting State is immune from suits brought in federal
courts by her own citizens as well as by citizens of another State.”); and Alden v. Maine,
527 U.S. 706, 708 (1999) (holding that states cannot be sued in their own courts without
their consent):

Turning first to evidence of the original understanding
of the Constitution: The Founders’ silence regarding the
States’ immunity from suit in their own courts, despite the
controversy regarding state sovereign immunity in federal
court, suggests the sovereign’s right to assert immunity from
suit in its own courts was so well established that no one
conceived the new Constitution would alter it. . . .[I]mplicit in
a proposal rejected by Congress—which would have limited
the Amendment’s scope to cases where the States had made
available a remedy in their own courts—was the premise that
States retained their immunity and the concomitant authority
to decide whether to allow private suits against the sovereign
in their own courts.

32
even though individual officials are nominal defendants.”58 In that same vein, the

Supreme Court of the United States has determined that when a claim seeks recovery of

funds from the state treasury as retroactive relief, the state retains sovereign immunity

unless some other exception applies.59

In this case, the only remaining exception to sovereign immunity available

to the Permit Holders is West Virginia Code § 29-12-5(a)(4), which provides:

Any policy of insurance purchased or contracted for by
the board shall provide that the insurer shall be barred and
estopped from relying upon the constitutional immunity of
the State of West Virginia against claims or suits: Provided,
that nothing herein shall bar a state agency or state
instrumentality from relying on the constitutional immunity
granted the State of West Virginia against claims or suits
arising from or out of any state property, activity or
responsibility not covered by a policy or policies of
insurance: Provided, however, That nothing herein shall bar
the insurer of political subdivisions from relying upon any
statutory immunity granted such political subdivisions against
claims or suits.

58
Ford Motor Co. v. Dept. of the Treasury, 323 U.S. 459, 454 (1945) (citing Smith
v. Reeves, 178 U.S. 436 (1900); and Great Northern Life Ins. Co. v. Read, 322 U.S. 47
(1944)).
59
See Chemerinsky, supra note 46, at 213, “[T]he Eleventh Amendment prevents
a federal court from awarding retroactive relief – damages to compensate past injuries—
when those damages will be paid by the state treasury.”

33
The Permit Holders seemingly recognized that this exception was the only remaining

avenue of suit against a state agency, because they did not contest that the state’s

insurance policy applied to the claim.60 In fact, the Permit Holders only argued, in

essence, that the policy’s limits were not applicable in a “constitutional tort” claim.

Hence, the Permit Holders availed themselves of the insurance policy proceeds and the

exception to sovereign immunity it provided, but then refused to be bound by the policy’s

limits.61 As we discussed in Pittsburgh Elevator, “[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.”62 Likewise, in Parkulo, we stated: “In the future, this Court will not

review suits against the State brought under the authority of W. Va. Code § 29-12-5

unless it is alleged that the recovery sought is limited to the applicable insurance

60
The State Lottery does not argue that the insurance policy is inapplicable to
these claims. In fact, the State Lottery argued the opposite below, contending that they
had not received a reservation of rights letter from the state’s insurance provider, and at
that point, were afforded full coverage for the Permit Holders’ claims.
61
We decline to lend credence to the nonsensical argument that a claim could be
both under the purview of the state’s insurance policy and yet not subject to the policy’s
limits – a claim is simply subject to the insurance and its limits, or it is not.
62
Syl. Pt. 2, Pittsburgh Elevator, 172 W. Va. at 756, 310 S.E.2d at 688.

34
coverage and the scope of the coverage and its exceptions are apparent from the

record.”63

Accordingly, if a claim is brought under the insurance exception to

sovereign immunity seeking funds from the state treasury above and beyond the limits of

the State’s liability insurance coverage, the State is entitled to sovereign immunity from

that claim.64 So, to the extent that the Permit Holders’ claim under the due process clause

was pled under the insurance exception to sovereign immunity and seeks compensation

as retroactive relief rather than invalidation of the mandate and prospective relief,65

recovery for such claim must be limited to the insurance policy limits as required by

Pittsburgh Elevator and Parkulo. Otherwise, the state’s cloak of sovereign immunity has

not been lifted.

Even if the Permit Holders amend Count II of their complaint to limit their

monetary relief to the limits of the state’s insurance policy, the State Lottery is

63
Syl. Pt. 3, Parkulo, 199 W. Va. at 170, 483 S.E.2d at 516.
64
See syl. pt. 2, Pittsburgh Elevator, 172 W. Va. at 756, 310 S.E.2d at 688.
65
See Edelman, 415 U.S. 651; and Cory v. White, 457 U.S. 85 (1982) for a
discussion of the material differences between a suit against the state seeking retroactive
monetary relief versus one for injunctive, prospective relief.

35
nonetheless entitled to assert qualified immunity pursuant to this Court’s holding in

Marple:

The state insurance policy exception to sovereign
immunity, created by West Virginia Code § 29–12–5(a)(4)
[2006] and recognized in Syllabus Point 2 of Pittsburgh
Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743, 310
S.E.2d 675 (1983), applies only to immunity under the West
Virginia Constitution and does not extend to qualified
immunity. To waive the qualified immunity of a state agency
or its official, the insurance policy must do so expressly, in
accordance with Syllabus Point 5 of Parkulo v. W. Va. Bd. of
Probation & Parole, 199 W. Va. 161, 483 S.E.2d 507
(1996).66

We reached this conclusion in part because “[t]he doctrines of sovereign

and [qualified] immunity spring from distinct, if related, concerns, [and thus,] each has

evolved independently.”67 In that context, we discussed that “[s]overeign immunity is

concerned with protecting the public fisc. . . . By contrast, the purpose of qualified

immunity is to allow officials to do their jobs and to exercise judgment, wisdom, and

sense without worry of being sued.”68 Qualified immunity was created by common law

66
Syl. Pt. 2, Marple, 236 W. Va. at 662, 783 S.E.2d at 83.
67
Id. at 662, 783 S.E.2d at 83 (quoting A.B., 234 W. Va. at 503, 766 S.E.2d at
762).
68
Id. at 661, 783 S.E.2d at 82.

36
to “avoid excessive disruption of government and permit the resolution of many

insubstantial claims on summary judgment.”69 Likewise, we reasoned that

[w]ithout question, West Virginia Code § 29-12-5 speaks
only of the “constitutional immunity of the State[.]” . . . It
does not speak to other more limited statutory or common-
law immunities. Therefore, even if the State purchases a
policy of insurance, a state agency and its official may claim
immunities under the common law, such as qualified
immunity.70

Pursuant to this analysis, qualified immunity is available to the State Lottery as a defense

to claims brought under the insurance policy exception to sovereign immunity, which

would include both the Permit Holders’ so-called “constitutional tort” claim for violation

of due process as well as their civil conspiracy claim (Count VII).

However, because the circuit court deemed immunity waived, there are no

findings of fact and conclusions of law for our review. These inquiries necessarily

impact the application of qualified immunity for discretionary acts, and we have

insufficient facts before us to make that determination. For that reason, we remand to the

circuit court for it to determine whether or not the State Lottery is entitled to qualified

69
Hutchinson, 198 W. Va. at 148, 479 S.E.2d at 658 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
70
Marple, 236 W. Va. at 661-62, 783 S.E.2d at 82-83.

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immunity for Counts II and VII, which were brought under the authority of West Virginia

Code § 29-12-5.

IV. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s holding that the

measure of damages under the takings clause is just compensation rather than insurance

policy limits, but determine that an inverse condemnation action is the appropriate

procedure for seeking redress for the Permit Holders. We reverse the circuit court’s

holding that the State Lottery waived its rights to assert sovereign and qualified

immunity. Further, the circuit court erred by not requiring that the Permit Holders’ due

process claim for money damages be limited to the applicable insurance policy limits.

Finally, we remand with instructions for the circuit court to make qualified immunity

determinations consistent with this opinion.

Affirmed, in part; reversed, in part; and remanded.

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