Robert P. Fitzsimmons, Esq.
Fitzsimmons Law Offices
Wheeling, West Virginia
Mark A. Colantonio, Esq.
Frankovitch, Anetakis, Colantonio & Simon
Weirton, West Virginia
Attorneys for the Plaintiff
Joseph W. Selep, Esq.
Zimmer Kunz Prof. Corp.
Attorney for Dover Industries
Timothy J. Burdette, Esq.
Antandig, McDyer, Burdette
Attorney for Imperial Hoist, Inc.
Michael G. Gallaway, Esq.
Burns, White & Hickton
Wheeling, West Virginia
Attorney for Wallover, et al.
CHIEF JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
JUSTICE STARCHER and JUSTICE MCGRAW dissent and reserve the right to file dissenting opinions.
1. The general rule of construction in governmental tort legislation cases
favors liability, not immunity. Unless the legislature has clearly provided for immunity
under the circumstances, the general common-law good of compensating injured parties
for damages caused by negligent acts must prevail. Syllabus Point 2, Marlin v. Bill Rich
Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).
2. When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute. Syllabus Point 1, Cummins v. State Workmen's Compensation Com'r, 152 W.Va. 781, 166 S.E.2d 562 (1969).
3. W.Va. Code, 29-12A-5(a)(11)  grants immunity to political subdivisions in a wrongful death case where the decedent's claim is covered by any workers' compensation law or employer's liability law, even though not all of the beneficiaries of the decedent's estate are eligible for benefits under the workers' compensation law or employer's liability law. Syllabus Point 3, Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998).
4. W.Va. Code § 29-12A-5(a)(11) (1986) grants immunity to a political subdivision in a wrongful death case where the recoverable benefits under workers' compensation are limited to reasonable funeral expenses pursuant to W.Va. Code § 23-4- 4(a) (1995).
58-5-2 (1998),See footnote 1 1 [a]ny question of law, including . . . questions arising . . . upon a challenge of the sufficiency of a pleading . . . may . . . be certified by [the circuit court] to the supreme court of appeals for its decision[.] See also Syllabus Point 1 of Halltown Paperboard Co. v. C.L. Robinson Corp., 150 W.Va. 624, 148 S.E.2d 721 (1966) ([a]ny questions pertaining to a ruling of the trial court on a motion which challenges the sufficiency of a pleading are properly certifiable.). We have recognized that the purpose of a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the formal sufficiency of the complaint. Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978), superseded by statute/rule as stated in Handley
v. Union Carbide Corp., 804 F.2d 265 (4th Cir. 1986). We find, therefore, that these
questions arise upon a challenge of the sufficiency of a pleading.
In addition, certification requires a sufficiently precise and undisputed
factual record on which the legal issues can be determined . . . . [and that] such legal
issues . . . substantially control the case. Syllabus Point 5, in part, Bass v. Coltelli, 192
W.Va. 516, 453 S.E.2d 350 (1994). We have determined that there is a sufficiently
precise and undisputed factual record upon which the legal issues may be resolved, and
these issues substantially control the case. Therefore, the questions are properly certified
under W.Va. Code § 58-5-2 (1998) and are within the jurisdiction of this Court.
Further, this Court will not consider certified questions not necessary to the
decision of a case. Shell v. Metropolitan Life Ins. Co., 181 W.Va. 16, 380 S.E.2d 183
(1989). We believe that the first question certified to this Court is not necessary to our
decision. Accordingly, we do not consider it.See footnote 2
James G. Kapiris, the plaintiff's decedent, was an employee of defendant City of Weirton. On April 3, 1997, the decedent was working at the city garage when a municipal garbage truck positioned on a hydraulic lift or hoist fell on him, causing his death. A workers' compensation claim was filed as a result of the decedent's death and,
because he had no dependents,See footnote 4
the workers' compensation benefits available to his estate
were limited to $5000.00See footnote 5
in funeral expenses.See footnote 6
On August 11, 1998, the plaintiff, Stamatia C. Zelenka, as executrix of the decedent's estate, filed a wrongful death claim in the Circuit Court of Hancock County against, among others, the City of WeirtonSee footnote 7 7 in which she alleged that the city acted with
deliberate intention under W.Va. Code § 23-4-2(c)(2)(ii) (1994). The City of Weirton filed a Rule 12(b)(6) motion to dismiss in which it stated that the city is immune from the deliberate intention claim under W.Va. Code § 29-12A-5(a)(11) of The Governmental Tort Claims And Insurance Reform Act (Tort Claims Act). According to this code section, a political subdivision is immune from liability if a loss or claim results from any claim covered by any workers' compensation law.
In Syllabus Point 1 of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172,
475 S.E.2d 172 (1996), we stated: The appellate standard of review of questions of law
answered and certified by a circuit court is de novo. Additionally, we note that this case
requires us to consider a provision of the Tort Claims Act. The general rule of
construction in governmental tort legislation cases favors liability, not immunity. Unless
the legislature has clearly provided for immunity under the circumstances, the general
common-law goal of compensating injured parties for damages caused by negligent acts
must prevail. Syllabus Point 2, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482
S.E.2d 620 (1996). We are ever cognizant, however, that [w]hen a statute is clear and
unambiguous and the legislative intent is plain the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to apply the statute.
Syllabus Point 1, Cummins v. State Workmen's Compensation Com'r, 152 W.Va. 781, 166
S.E.2d 562 (1969). With these principles to guide us, we proceed with our consideration
of the certified question.
The plaintiff argues that, under the specific circumstances of this case, the amount of $5000.00 paid to the decedent's estate as a result of alleged wrongful conduct by the City of Weirton is grossly inadequate and patently unfair so that immunity should not apply.See footnote 8 8 For legal support, the plaintiff cites footnote 8 of Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998) in which we stated, [w]e do not by our decision in the instant case rule out the possibility that a grossly inadequate or patently unfair workers' compensation remedy for an injury or loss --- in an egregious and exceptional case --- might give rise to a persuasive argument that 'coverage' under workers' compensation is not meaningfully present for purposes of establishing Governmental Tort Claims Act immunity[.] The plaintiff concludes that meaningful workers' compensation coverage is absent here due to the paucity of the workers' compensation award so that immunity does not apply.
The plaintiff complains of the disparity in recovery available under workers' compensation law and a wrongful death action. In O'Dell, however, we rejected the argument that the failure of workers' compensation law to provide compensation for elements of damages, such as pain and suffering, total lost wages, and mental anguish means that a claim is not covered by workers' compensation under W.Va. Code § 29- 12A-5(a)(11). 188 W.Va. at 610, 425 S.E.2d at 565. We reiterated in Brooks v. City of Weirton that the mere fact that there is a difference between the remedies available under workers' compensation and those available in a wrongful death action does not require the conclusion that there has been 'no recovery of benefits . . . in lieu of damages recoverable
in a civil action.' 202 W.Va. at 252, 503 S.E.2d at 820, quoting Syllabus Point 3, in
part, of Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).
As stated above, the general rule of construction in governmental tort legislation cases favors liability, not immunity. The statutory provision at issue, however, is clear and unambiguous. Our task, therefore, is not to construe it but, rather, to simply apply it to the facts of the case. The difficulty with the plaintiff's argument is that it requires us to read into W.Va. Code § 29-12A-5(a)(11) the term meaningful, as defined by the plaintiff, as a qualification of the term covered. We decline so to do.See footnote 11 11 The Legislature has clearly provided for immunity under the facts of this case. Therefore, we may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.See footnote 12 12 Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 692, 408 S.E.2d 634, 642 (1991), citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511, 517 (1976).
In sum, we find that W.Va. Code § 29-12A-5(a)(11) unambiguously provides
that a political subdivision is immune from liability if a loss or claim results from a claim
covered by a workers' compensation law. The City of Weirton is covered by a workers'
compensation law because the decedent's death allegedly was caused by the wrongful
conduct of employees of the City, it occurred in the course of and resulted from his
employment, the City had workers' compensation coverage, and the decedent was eligible
for such benefits. Further, the decedent's workers' compensation claim resulted in a
recovery of $5000.00 in funeral expenses. For these reasons, we answer the certified
question as follows:
Does W.Va. Code § 29-12A-5(a)(11) (1986) grant immunity to a political subdivision in a wrongful death case where the recoverable benefits under workers' compensation are limited to reasonable funeral expenses pursuant to W.Va. Code § 23-4-4(a) (1995)?
Any question of law, including, but not limited to, questions arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, may, in the discretion of the circuit court in which it arises, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back. The procedure for processing questions certified pursuant to this section shall be governed by rules of appellate procedure promulgated by the supreme court of appeals.
W.Va. Code, 29-12A-13(b)  prohibits the naming of an employee of a political subdivision acting within the scope of employment as a defendant for the purpose of directly establishing the liability of a political subdivision. However, W.Va. Code, 29-12A- 13(b)  does not prohibit the naming of an employee of a political subdivision acting within the scope of employment as a defendant for purposes of establishing the employee's liability, when one or more of the statutory exceptions in W.Va. Code, 29-12A-5(b)  to employee immunity is present.