Opinion, Case No.23943 Mary Coleman, et al. v. Irvin Sopher


IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 1997 Term


 

No. 23943


 

MARY COLEMAN, J. WESLEY COLEMAN, AND MICHELLE COLEMAN,
Plaintiffs Below, Appellees,

V.

IRVIN SOPHER,
Defendant Below, Appellant.



Appeal from the Circuit Court of Fayette County
Honorable John W. Hatcher, Jr., Judge
Civil Action No. 90-C-147
AFFIRMED



Submitted: September 17, 1997
Filed: November 20, 1997

Charles F. Johns
Amy M. Smith
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for the Appellant

Joseph C. Cometti
Charleston, West Virginia
Attorney for the Appellees


JUSTICE DAVIS delivered the Opinion of the Court.

Justice Maynard dissents and reserves the right to file a dissenting opinion.


SYLLABUS BY THE COURT
    1.    "'A public executive official who is acting within the scope of his authority and is not covered by the provisions of W. Va. Code, 29-12A-1, et seq. [the West Virginia Governmental Tort Claims and Insurance Reform Act], is entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate clearly established laws of which a reasonable official would have known. There is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive. To the extent that State ex rel. Boone National Bank of Madison v. Manns, 126 W. Va. 643, 29 S.E.2d 621 (1944), is contrary, it is overruled.' Syllabus, State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992)." Syllabus point 3, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

    2.    "Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal." Syllabus point 1, State Road Comm'n v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964).

    3.    "'"An instruction should not be given when there is no evidence tending to prove the theory upon which the instruction is based." Syl. pt. 4, Hovermale v. Berkeley Springs Moose Lodge No. 1483, [165] W. Va. [689], 271 S.E.2d 335 (1980).'

Syllabus point 3, Jenrett v. Smith, 173 W. Va. 325, 315 S.E.2d 583 (1983)." Syllabus point 4, Maples v. West Virginia Department of Commerce, 197 W. Va. 318, 475 S.E.2d 410 (1996).

    4.    "'"'If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory.' Syllabus Point 2, Snedeker v. Rulong, 69 W. Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W. Va. 6, 375 S.E.2d 184 (1988).' Syllabus point 6, Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S. Ct. 2137, 128 L. Ed. 2d 867 (1994)." Syllabus point 3, Craighead v. Norfolk & Western Railway Company, 197 W. Va. 271, 475 S.E.2d 363, (1996).

    5.    "'Punitive or exemplary damages are such as, in a proper case, a jury may allow against the defendant by way of punishment for wilfulness, wantonness, malice, or other like aggravation of his wrong to the plaintiff, over and above full compensation for all injuries directly or indirectly resulting from such wrong.' Syllabus Point 1, O'Brien v. Snodgrass, 123 W. Va. 483, 16 S.E.2d 621 (1941)." Syllabus point 4, Harless v. First Nat'l Bank, 169 W. Va. 673, 289 S.E.2d 692 (1982).

    6.    "Punitive damage instructions are legitimate only where there is evidence that a defendant acted with wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others to appear or where the legislature so authorizes." Syllabus point 7, Michael v. Sabado, 192 W. Va. 585, 453 S.E.2d 419 (1994).

    7.    Generally, when a successor judge is properly assigned pursuant to Rule 63 of the West Virginia Rules of Civil Procedure, such successor judge steps into the shoes of his or her predecessor and, when the transcript of the proceedings is sufficient, may take any action that such predecessor may properly have taken, either upon proper motion or sua sponte.


Davis, Justice:
    Dr. Irvin Sopher, Chief Medical Examiner for the State of West Virginia, appeals a judgment entered against him by the Circuit Court of Fayette County in a tort action initiated by the relatives of a decedent upon whom Sopher performed an autopsy. The suit alleged that Sopher intentionally and without authorization removed the heart of the decedent. Sopher argues that the circuit court erred in finding that he was not entitled to qualified immunity with respect to the claims against him, in admitting certain evidence that Sopher now claims was prejudicial, and in instructing the jury that it could award punitive damages. Sopher also claims that a successor judge presiding over a portion of the proceedings erred in reconsidering earlier rulings made by the original trial judge. We find no error. Therefore, we affirm the final order of the circuit court.

I.
FACTUAL AND PROCEDURAL HISTORY

    Elmer Coleman, a thirty-nine year old coal miner, died suddenly from a heart attack on September 26, 1987. In order to determine whether occupational pneumoconiosis contributed to Elmer's death, his wife, Mary Coleman, executed a "CONSENT TO AUTOPSY," authorizing the "hospital or its agents and representatives, to do all procedures necessary or proper, including the removal of organs and parts of said

body for microscopic or other examination and analysis."See footnote 1 1 The autopsy was performed on September 27, 1987, by Dr. Irvin Sopher, Chief Medical Examiner for the State of West Virginia [hereinafter Sopher]. Sopher's subsequent report, titled "POST-MORTEM EXAMINATION FINDINGS," failed to indicate whether pneumoconiosis had contributed to Elmer's death. However, relevant to the issues at hand, the report included the statement "[t]he heart is not removed from the body . . . ." Following the autopsy, Elmer's body was released to Combs-Pennington Funeral Home where it was embalmed by Paul Pennington, the owner of the funeral home. After a funeral, Elmer's body was laid to rest in a mausoleum.

    Sometime later, Mary Coleman filed a Workers' Compensation claim for occupational pneumoconiosis [hereinafter OP] survivor's benefits. Her claim was denied because Sopher's autopsy report did not indicate that Elmer Coleman suffered from OP. Consequently, Mary permitted Elmer's body to be exhumed and executed a second "CONSENT TO AUTOPSY" authorizing Dr. Echols Hansbarger to perform an autopsy to determine whether Elmer suffered from pneumoconiosis and, if so, whether it contributed to his death. Dr. Hansbarger's subsequent report noted that "the heart [was] not identified or found." When Mary Coleman discovered that her husband's heart had

been removed from his deceased body, she became emotionally upset. Her children, J. Wesley and Michelle, became similarly distressed upon learning this information. Thereafter, Mary, J. Wesley and Michelle Coleman [hereinafter collectively referred to as the Colemans], filed suit in the Circuit Court of Fayette County against Sopher and Paul Pennington. The suit alleged intentional infliction of emotional distress, conversion and outrageous conduct.

    By order entered November 7, 1991, the circuit court related that it earlier had announced that it "intended to grant summary judgment, sua sponte, on the grounds that the Plaintiff cannot legally maintain [an] action against two Defendants alleging that one or the other Defendant, but not both, are liable to the Plaintiff." The Colemans then moved to amend their complaint to elect one of the two defendants against whom they wished to proceed. The circuit court granted the motion. On April 13, 1992, the Colemans filed their amended complaint, which alleged the same causes of action as their original complaint, but listed Sopher as the sole defendant. In his answer to the Colemans' amended complaint, Sopher denied removing Elmer Coleman's heart and named Paul Pennington [hereinafter Pennington] as a third-party defendant.

    The Honorable Judge W. Robert Abbot presided over the subsequent jury trial. At the conclusion of the evidence, Judge Abbot granted a directed verdict in favor

of Pennington. On October 7, 1992, the jury returned a verdict against Sopher awarding compensatory damages of $75,000 to Mary Coleman and $30,000 each to J. Wesley and Michelle, and punitive damages of $50,000. Sopher then filed motions for judgment notwithstanding the verdict and for a new trial or remittitur. On April 21, 1994, Judge Abbot entered an order granting remittitur. He reduced the compensatory damage award to $50,000 for Mary Coleman and $10,000 for each child. The punitive damage award was not changed. The order also stated:
        The Court, having granted a remittitur of the jury's verdict as stated herein, then did inquire of the plaintiffs whether they elected to have a new trial on the issue of damages or accept the remittitur. In response, counsel for the plaintiffs informed the court that the plaintiffs would not accept the remittitur and opted instead for a new trial.

    The Colemans appealed the April 21, 1994, order to this Court. We initially granted the petition for appeal. However, following oral argument, in an opinion delivered by Justice Cleckley, the case was dismissed as improvidently granted. See Coleman v. Sopher, 194 W. Va. 90, 459 S.E.2d 367 (1995).

    Thereafter, the matter was set for a new trial on damages in the circuit court. Because Judge Abbot had retired and subsequently died, the case was assigned to the Honorable Judge John W. Hatcher. After reviewing the case record, Judge Hatcher, sua

sponte, asked the parties to argue whether he should reconsider Judge Abbot's rulings on Sopher's post-trial motions. Following arguments, Judge Hatcher, by order entered May 2, 1996, denied all of Sopher's post-trial motions. In the text of the order, Judge Hatcher discussed the trial court's delay of approximately one and one-half years in ruling on the defendant's post trial motions, the absence of a complete record of the court's hearing on those motions, and the lack of findings of fact and conclusions of law in the court's order. Judge Hatcher commented:
        The Court, in consideration of Rule 63 of the West Virginia Rules of Civil Procedure, West Virginia case law and the Court's duty and inherent power to insure the effective and expeditious administration of the business of the Court, is of the opinion that because the Court failed to make any findings of fact and conclusions of law in regard to its rulings as to the aforementioned post-trial motions, the Court should now reconsider, on its own motion, the Court's rulings in regard to said post-trial motions, and make findings of fact and conclusions of law in regard thereto. The Court now can, by reading the trial transcripts of this case, just as easily and competently consider and rule on the Defendant's post-trial motions, as could the original trial court nearly one and one- half years after the conclusion of the trial. The Court's present action is not to be taken as any criticism whatsoever of the original trial judge.
It is from this order that Sopher now appeals.

II.
DISCUSSION

A. Qualified Immunity
    We first address Sopher's contention that the circuit court erred in rejecting his defense of immunity. Sopher raised the immunity issue in his motion for summary judgment, and again when he moved for a directed verdict. Unfortunately, in framing this issue for appeal to this Court, Sopher has failed to identify the particular stage of trial at which the court allegedly erred. To avoid an unnecessarily lengthy discussion addressing the possible points at which this error might have occurred, for purposes of our discussion, we will treat Sopher's argument as one complaining that the trial court erred in denying his motion for summary judgment on the grounds of qualified immunity.See footnote 2 2 This error presents a question of law which we will review de novo. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal

from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). See also Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").See footnote 3 3 Moreover, we note that:

        "'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 1, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

    Having set forth the appropriate standard for reviewing this issue, we turn now to the merits of Sopher's claimed error. Sopher argues that, as an appointee of the director of the Department of Health whose salary is paid by public funds, he is a public official entitled to qualified immunity pursuant to this Court's holding in Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995). Sopher asserts that he is shielded by immunity as he was acting within the scope of his authority, under W. Va. Code 61-12-10,See footnote 4 4 to

retain tissue for further study or consideration, and, further, because he did not violate any clearly established right of the Colemans'. In addition, Sopher submits that he is entitled to immunity under W. Va. Code 16-4B-1.See footnote 5 5

    The Colemans respond by asserting that Sopher is not entitled to qualified immunity because his actions exceeded the scope of his authority. Moreover, the Colemans note that a public official is entitled to qualified immunity for negligence, whereas they have alleged the commission of intentional torts. Additionally, the Colemans argue that Sopher cannot claim immunity under W. Va. Code 61-12-10 unless he admits

to taking the heart and identifies the purpose for the taking. Moreover, they assert that 61-12-10 has no application to Elmer Coleman's autopsy as it was authorized by his wife. Finally, the Colemans argue that the purpose of the autopsy performed on Elmer Coleman was limited to a determination of the cause of Elmer's death and, thus, the language of 16-4B-1, permitting an autopsy to be performed "in the interest of medical science," should be similarly limited in this instance to an inquiry into the cause of death.

    We find that the circuit court correctly determined that Sopher was not entitled to qualified immunity, as a matter of law, with respect to the claims asserted against him in this action.See footnote 6 6 We recently restated the standard for determining qualified immunity in syllabus point 3 of Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995), the case upon which Sopher relies:
        "A public executive official who is acting within the scope of his authority and is not covered by the provisions of W. Va. Code, 29-12A-1, et seq. [the West Virginia Governmental Tort Claims and Insurance Reform Act],See footnote 7 7 is

entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate clearly established laws of which a reasonable official would have known. There is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive. To the extent that State ex rel. Boone National Bank of Madison v. Manns, 126 W. Va. 643, 29 S.E.2d 621 (1944), is contrary, it is overruled." Syllabus, State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).
(Emphasis added) (footnote added).See footnote 8 8 The first portion of this test presents the threshold

question of whether a public official was acting within the scope of his or her authority. If this inquiry is answered affirmatively, and the official is not covered by the West Virginia Governmental Tort Claims and Insurance Reform Act, the inquiry proceeds to a determination of whether the official violated "clearly established laws of which a reasonable official would have known." Id. Finally, this standard concludes by recognizing that "[t]here is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive." Id. We find that Sopher's immunity fails under the threshold portion of this test.

    Sopher argues first that he was acting within his authority under W. Va. Code 61-12-10.See footnote 9 9 We disagree. W. Va. Code 61-12-10 (1988) (Repl. Vol. 1997) provides that an autopsy may be performed "[i]f in the opinion of the chief medical examiner, or of the medical examiner of the county in which the death in question occurred, it is advisable and in the public interest." From this text, it is not clear how the chief medical examiner would come to know of a particular death in order to form an opinion as to whether an autopsy would be "advisable and in the public interest." However, this section must be read in pari materia with W. Va. Code 61-12-8 (1963) (Repl. Vol. 1997).See footnote 10 10 Viewing these two sections together, it becomes apparent that

suspicious deaths must be reported to the medical examiner for a determination of whether further investigation is necessary to ascertain whether criminal activity might be implicated with respect to a particular death. These sections also provide for the medical examiner to preserve evidence that might be needed in a future criminal trial. While Elmer Coleman's sudden death may very well have triggered the application of these sections, there was no evidence presented during the trial of this case to indicate that the provisions therein contained were followed. In the absence of such evidence, Sopher may not rely on those sections to provide authority for his actions.

    Evidence implicating the provisions of W. Va. Code 16-4B-1 (1972) (Repl. Vol. 1995),See footnote 11 11 Sopher's second claimed source of authority, was similarly absent from trial. There was no testimony establishing that an attending or other physician considered it "advisable in the interest of medical science" that an autopsy be performed on Elmer Coleman's body.

    The only evidence in the record establishing Sopher's authority to perform an autopsy on Elmer Coleman's body was the "CONSENT TO AUTOPSY" executed by Mary Coleman. The consent read as follows:
    I, (we), standing in the relationship of Elmer Coleman, [sic] and being the next of kin, do hereby request and authorize the performance of a post-mortem examination upon the body of Elmer Coleman, now deceased; said examination to be performed by, or under the direction of any member of the Staff or other authorized agent of Montgomery General Hospital.

    I, (we), do further authorize said hospital or its agents and representatives, to do all procedures necessary or proper, including the removal of organs and parts of said body for microscopic or other examination and analysis.

    I, (we), in consideration of such requests and performance of such post-mortem examination, do hereby forever release and discharge the Montgomery General Hospital, and the medical staff, agents or representatives of it, or either of them, from any and all liability of any nature whatsoever for their joint or several acts performed in pursuance of this request or consent.
(Emphasis added).

    To determine whether Sopher acted within his authority under this agreement, which would entitle him to immunity provided that the other elements of the Chase test are met, we must discern the nature and scope of his authority from the terms of the agreement, if possible. In carrying out this analysis, we must strive to give effect to the intent of the parties to the agreement. With respect to the construction or application

of a contract, we have held, generally:
    "A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent." Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 1.
Syl. pt. 1, Bennett v. Dove, 166 W. Va. 772, 277 S.E.2d 617 (1981). Elaborating on this general principle, we have explained:
        "'It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.' Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3." Syllabus Point 2, Bennett v. Dove, 166 W. Va. 772, 277 S.E.2d 617 (1981).
Syl. pt. 1, Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97, 468 S.E.2d 712 (1996). However, when a contract is ambiguous, it is subject to construction. We have explained:
        The term "ambiguity" is defined as language "reasonably susceptible of two different meanings" or language "of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning[.]" Syl. pt. 1, in part, Shamblin v. Nationwide Mut. Ins. Co., 175 W. Va. 337, 332 S.E.2d 639 (1985).
Payne v. Weston, 195 W. Va. 502, 507, 466 S.E.2d 161, 166 (1995). See also Williams v. Precision Coil, Inc., 194 W. Va. 52, 65 n.23, 459 S.E.2d 329, 342 n.23 (1995) ("A contract is ambiguous when it is reasonably susceptible to more than one meaning in light

of the surrounding circumstances and after applying the established rules of construction.").

    With due consideration for the above stated principles, we find the "CONSENT TO AUTOPSY" agreement between Mary Coleman and Montgomery General Hospital is ambiguous. The first paragraph requests and authorizes "a post- mortem examination" without identifying the agreed upon purpose for the examination. Thus, we do not know if the examination was intended: for research purposes to further medical science; to determine the general cause of death; to determine whether a particular condition existed; to determine whether a particular condition, if it existed, contributed in any way to the death of the subject of the examination; or for any other purpose we have not herein contemplated. In other words, the scope of the authorization is not indicated. The second paragraph then authorizes the "hospital or its agents . . . to do all procedures necessary or proper," apparently, though not specifically stated, in furtherance of the post- mortem examination. This language is additionally ambiguous in that, without an identified scope for the post-mortem examination, the phrase "necessary or proper" is meaningless. A particular act may be "necessary or proper" for one purpose, yet be unnecessary or improper for another. Finally, the third paragraph states that Montgomery General Hospital and its agents are released from liability for acts "performed in pursuance of this request or consent." It is impossible to verify whether a particular act was "in

pursuance" of a "request or consent," when the thing requested or consented to is unknown. Because the contract does not indicate the specific purpose or scope of the post- mortem examination, the extent of the release from liability for acts "performed in pursuance of [the] request or consent" is not clearly articulated.

    Having found the "CONSENT TO AUTOPSY" is ambiguous, we must endeavor to construe it to enforce the intent of the parties and to give meaning to the entire contract. See Syl. pt. 2, Columbia Gas Transmission Corp. v. E. I. du Pont de Nemours & Co., 159 W. Va. 1, 217 S.E.2d 919 (1975) ("In construing an ambiguous contract, three well-recognized rules of construction require: (1) that the intentions of the parties to the agreement must control the obligations thereunder; (2) that in searching for the intentions of contracting parties, the court must examine the instrument in its entirety; and (3) that words are to be considered in the context in which they are employed.").See footnote 12 12 To

determine the parties' intention when construing an ambiguous contract, we may resort to extrinsic or parol evidence:
        "[']"Extrinsic evidence may be used to aid in the construction of a contract if the matter in controversy is not clearly expressed in the contract, and in such case the intention of the parties is always important and the court may consider parol evidence in connection therewith with regard to conditions and objects relative to the matter involved. . . ." Syl. Pt. 2, Berkeley Co. Pub. Ser. Dist. v. Vitro Corp., 152 W. Va. [252], [162 S.E.2d 189 (1968)].['] Syllabus Point 2, International Nickel Co. v. Commonwealth Gas Corp., 152 W. Va. 296, 163 S.E.2d 677 (1968)." Syllabus Point 2, Bittorf v. Bittorf, 182 W. Va. 594, 390 S.E.2d 793 (1989).
Syl. pt. 2, Martin v. Martin, 187 W. Va. 372, 419 S.E.2d 440 (1991) (per curiam).

    After thoroughly reviewing the record in this case, we found the only source of evidence indicating the parties' intent with respect to the "CONSENT TO AUTOPSY" was Mary Coleman's testimony.See footnote 13 13 Mary's testimony indicated that, shortly after she was informed of Elmer's death, hospital personnel asked her, without elaboration, if she wanted an autopsy performed on her husband. After consulting with her father-in-law, Mary decided to request the autopsy in order to determine whether Elmer suffered from

OP as a result of his years of working in coal mines.See footnote 14 14 Based upon this uncontroverted evidence, we conclude that the intended purpose for the post-mortem examination was to determine whether Elmer Coleman suffered from OP.See footnote 15 15 For purposes of immunity, the question then becomes whether the removal of Elmer's heart was within Sopher's authority pursuant to a "CONSENT TO AUTOPSY" agreement entered into for the purpose of determining whether Elmer Coleman suffered from OP. We find that removal of the heart exceeded this authority.

    Common sense dictates that a medical examiner performing a post-mortem examination for the benefit of another is required to keep records of the examination and to generate some type of report of the findings of the exam. Cf. W. Va. Code 61-12-10 (1988) (Repl Vol. 1997) (providing that the office of medical examinations keep "full, complete, and properly indexed records of all deaths investigated," and that "[c]opies of such records" be "furnished, upon request, to any party to whom the cause of death is a material issue"). Commensurate with this responsibility is the duty to produce accurate and reliable records and reports. Sopher's "POST-MORTEM EXAMINATION

FINDINGS," indicated that "the heart [was] not removed." During his testimony, Sopher attested to the reliability and accuracy of this report. The comment in the report that the heart was not rem