Governmental Immunity, the West Virginia Governmental
Tort Claims and Insurance Reform Act and State Insurance
question of whether insurance coverage exists for a claim against a governmental
employee must necessarily begin with a determination as to whether a constitutional
or statutory immunity applies to the claim. If there is an applicable immunity,
insurance coverage cannot exist because the insurance coverage may only be
purchased to cover those claims for which there is no constitutional or statutory
immunity. As such, an analysis of whether coverage exists under the State's
insurance policy for the claims asserted
against Glendenning must begin with a discussion of constitutional and statutory
fairly recently in our State's history, the general rule was that constitutional
immunity barred most claims against governmental entities. Pursuant to Article
VI, Section 35 of the West Virginia Constitution,
State of West Virginia shall never be made a defendant in any court of law or
equity, except the State of West Virginia, including any subdivision thereof,
or any municipality therein, or any officer, agent, or employee thereof, may
be made a defendant in any garnishment or attachment proceeding, as a garnishee
Deeming absolute immunity for governmental entities to be unduly harsh, this
Court created exceptions to the same. (See
Ultimately, in 1974, this Court summarily concluded
that the immunity set forth in Article 35, Section 6 does not extend to municipalities,
rejecting the argument that local government is a branch of the
State. Syl. Pt. 4, Higginbotham v. City of Charleston
, 157 W. Va.
724, 733, 204 S.E.2d 1, 7 (1974).
later, in 1975, then-Chief Justice Haden conducted an extensive analysis of the
history of common-law governmental immunity and its intricate governmental-proprietary
function exceptions, particularly as applied to municipal entities
in Long v. City of Weirton,
158 W. Va. 741, 767-86, 214 S.E.2d
832, 850-60 (1975). Noting the history of common-law municipal governmental
immunity did not support a continued recognition of the same, the Court abolished
it in Long.
Syl. Pts. 9 & 10, Long
. However, in so doing,
Chief Justice Haden encouraged legislative action regarding the scope of local
governmental immunity stating:
indeed, it would seem preferential for the Legislature to speak comprehensively,
we do not wish to perpetuate bad law of judicial origin pending the fortuity
of action by the Legislature.
, 158 W. Va. at 783, 214 S.E.2d at 859. Prior to the Legislature
accepting Chief Justice Haden's invitation, this Court went on to abolish common
law governmental immunity as it applied to county commissions and county boards
of education. See
, Syl. Pt. 2, Gooden v. County Commission
W. Va. 130, 298 S.E.2d 103 (1982) (county commissions); Ohio Valley
Contractors v. Board of Education
, 170 W. Va. 240, 293 S.E.2d 437
(1982) (county boards of education). The Legislature finally accepted Chief
Justice Haden's invitation in 1986, when it enacted the West Virginia Governmental
Tort Claims and Insurance Reform Act, W. Va. Code §§ 29-12A-1, et.
(1986) (hereinafter, the Act).
v. Fairmont City Police Department
, 186 W. Va. 336, 412 S.E.2d 737 (1991),
Justice McHugh, writing for the Court, acknowledged this Court's prior abolition
of common-law governmental immunity and the Leglislature's reaction thereto in
enacting the Act. Justice McHugh eloquently described the Act as follows: Its
purposes are to limit
[tort] liability of political subdivisions and
provide [tort] immunity
to political subdivisions in certain
costs and coverage of insurance
available to political subdivisions for
such liability. W. Va. Code
, 29-12A-1  (emphasis added).
The basic structure of the Act is as follows.
the Act a political subdivision is stated to be immune generally from liability
for damages in a civil action brought for death, injury or loss to persons or
property allegedly caused by any act or omission of the political subdivision. W. Va.
, 29-12A-4(b)(1) . The Act lists seventeen specific types of acts
or omissions covered by the tort immunity available under the Act to a political
subdivision. W. Va. Code
, 29-12A-5(a)(1)-(17) . . . .
Act also immunizes an employee of a political subdivision from tort liability,
unless his or her acts or omissions were manifestly outside the scope of employment
or official responsibilities; or unless the employee's acts or omissions were
with malicious purpose, in bad faith or in a wanton or reckless manner; or unless
any statute expressly imposes liability upon the employee. W. Va. Code
the other hand, the Act recognizes the tort liability of a political subdivision
for acts or omissions in five fairly broad situations, W. Va. Code, 29-12A-4(c)(1)-(5)
, including liability in tort for damages caused by the negligent
performance of acts by their [political subdivisions'] employees while acting
within the scope of employment [,] W. Va. Code
. For these situations where liability attaches, the Act imposes a $500,000
limit of liability for the noneconomic loss of any one person, W. Va.
, 29-12A-7(b) , and disallows punitive damages, W. Va.
, 29-12A-7(a) .
Act explicitly provides that [t]he purchase of liability insurance . .
. by a political subdivision does not constitute a waiver of any immunity it
may have pursuant to this article or [of] any defense of the political subdivision
or its employees.
W. Va. Code
, 29-12A-16(d) . The liability insurance
could be purchased by a political subdivision with respect to its potential
liability and that of its employees under the Act. W. Va. Code
the Act contains provisions regulating the costs and coverage of liability insurance
available to political subdivisions. W. Va. Code
, 29-12A-17 .
history in West Virginia of the qualified immunity, from tort liability, available
to municipalities and certain other political subdivisions of the state is consistent
with the typical pattern in most of the other jurisdictions: a broad, often total,
abrogation by the judiciary of the state common-law local governmental tort immunity,
followed soon thereafter by the enactment of governmental tort claims legislation,
typically providing in substance for a broad reinstatement of local governmental
immunity from tort liability.
, 186 W. Va. at 341-2, 412 S.E.2d at 742-3 (emphasis in
original, footnotes omitted).
by this Court in Justice McHugh's description of the Act, insurance may be purchased
to cover liability for those acts where immunity has not been retained. The Act's
immunity provisions and the scope of insurance which may be obtained are thereby
interrelated. The Act explicitly provides that:
purchase of liability insurance, or the establishment and maintenance of a self-insurance
program, by a political subdivisions does not constitute a waiver of any
immunity it may have pursuant to this article
or any defense of the political
subdivision or its employees.
W. Va. Code § 29-12A-16 (d) (2003) (emphasis added). While the majority
acknowledges (albeit in a but see
parenthetical) the presence
of this statutory provision, I most disagree
with its description of the same. The majority states this provision provides purchase
of an insurance policy does not automatically
waive immunity provided
by the Act. (Emphasis added). Contrary to this suggestion by the majority,
the plain language of the statute unambiguously provides that the terms of
the insurance policy does not
operate to waive
I find no equivocation whatsoever in the language chosen by the Legislature.
The statute does not provide that the policy must specifically preserve statutory
immunity as the majority deems is required. Similarly, W. Va. Code § 29-12-5
(a)(4) (2004) (See footnote
, which authorizes the State Board of Risk and Insurance Management
to procure insurance on behalf of the state and its political subdivisions (See
, unambiguously states [t]hat nothing herein shall
bar the insurer of political subdivisions from relying upon any statutory
granted such political subdivisions against claims or suits and
does not require a specific preservation of the same in the policy itself.
law governs both who and what may be covered by a governmental insurance policy.
The policy should not be read independent of our governing statutes as I believe
the majority has done in this instance. The policy at issue herein contains
three separate provisions which, in my opinion, recognize this interrelationship.
These include policy Endorsement Number 6, (See
Wrongful Act Liability Coverage Part Section VI. D (See
and Wrongful Act Liability Coverage Exclusion 4. (See
The majority acknowledges only Endorsement Number 6,
noting that it purports to preserve the provisions of the Act but
finding it is not sufficiently 'conspicuous, plain, and clear' to
be enforced. I disagree with this conclusion. Here, we are dealing with a governmental
insurance policy which was purchased by virtue of statutory authority to cover
claims for which the State has not waived or preserved immunity on its behalf
or on behalf of its political subdivisions. It is my opinion that the policy
must be read in light of the applicable statutes, not independent of them.
avoids discussion of applicable statutes by citing to Syllabus Point 5 of this
Court's opinion in Parkulo v. West Virginia Bd. of Probation & Parole
199 W. Va. 161, 483 S.E.2d 507 (1996). According to Syllabus Point 5, the
terms of an insurance contract control where they grant greater or lesser immunities
than those found in case law
However, the issue presented to this Court did not involve
defenses and immunities found in case law
. The issue herein involves the
application of statutory law
, not case law.
we expressly recognized that the Legislature may direct such limitation
or expansion of the insurance coverages and exceptions applicable
brought under W. Va. Code §29-12-5, as, in its wisdom, may be appropriate. Parkulo
199 W. Va. at 175,
483 S.E.2d at 521. As we recognized in Parkulo
, legislative direction
- such as that found in our statutes - trumps arguably contrary provisions
found in the insurance policy at issue. The majority decision now brings this
accepted principle into question. To rely upon precedent which states that
contrary policy provisions override common-law immunities in order that applicable
statutes may be ignored is, in my opinion, not only contrary to our prior jurisprudence,
but is also inappropriate in view of the statutory law applicable herein. To
my knowledge, we have never held that the terms of an insurance policy may
negate statutory law.
of our statutory law reveals that coverage does not exist under the State's insurance
policy for the claims asserted against Glendenning. Glendenning was employed,
as a teacher by the Webster County Board of Education when he, by his admission,
sexually abused some of his students. Pursuant to W. Va. Code § 29-12-5a
(1986), in effect during the times at issue herein, the State Board of Risk and
Insurance Management was required to provide:
professional or other liability insurance for all county boards of education
[and] teachers . . . Said insurance shall cover any claim, demand, action, suit
or judgment by reason of alleged negligence or other acts
in bodily injury or property damages . . . if, at the time of the alleged
injury, the teacher, . . . was acting in the discharge of his duties, within
the scope of his office, position or employment, under the direction of the board
. . . The [teacher] shall be defended by the county board or
an insurer unless the act or omission shall not have been within the
coarse or scope of employment or official responsibility or was motivated by malicious
(Emphasis added). Likewise, the Act, in W. Va. Code § 29-12A-11 (a)(1)
(1986), requires a political subdivision to provide for the defense of an employee,
such as Glendenning, relating to claims for injuries allegedly caused
by an act or omission of the employee if
the act or omission is alleged
to have occurred while
the employee was acting in good faith and not
manifestly outside the scope of his employment or official responsibilities.
added). One cannot seriously question that a teacher who engages in criminal
misconduct of the kind admitted to by Glendenning to herein has neither acted
in good faith nor within the scope of his employment or responsibilities. These
were purposeful acts. These were criminal acts.
similarly immunizes a political subdivision employee from personal liability unless
acts or omissions were (1) manifestly outside the scope of employment or
official responsibilities or (2) with malicious purpose, in bad faith,
or in a wanton or reckless manner[.] W. Va. Code § 29-12A-5 (b)(1)-(2)
(1986). (See footnote 11)
Act also authorizes liability to be imposed upon the political subdivision for
the acts of its employees where the
injury is caused by the negligent
performance of acts by their
employees while acting within the scope of employment
of their employees and that occurs within or on the grounds
of buildings that are used by such political subdivisions. W. Va.
Code § 29- 12A-4 (c)(2) & (4) (1986).
each of the above statutes in para materia
leads, in my opinion, to the
inescapable conclusion that a political subdivision employee, such as Mr. Glendenning,
may only be provided coverage under the State's insurance policy in limited instances.
Our statutory law authorizes the purchase of insurance to correspond to liabilities
assumed and immunities waived by statute. If the employee is acting in good faith,
not manifestly outside the scope of his employment or official responsibilities,
and without malicious or criminal intent, he is entitled to a defense and is
immune from personal liability. See
, W. Va. Code §§ 29-12-5a;
29-12A-11 (a)(1) and 29-12A-5 (b). While granting the employee this immunity,
the Legislature simultaneous imposed liability upon the political subdivision
employer for its employee's negligent acts and required the employer to provide
a defense to the employee. See
, W. Va. Code §§ 29-12-5a;
29-12A-4 (c)(2) & (4). Likewise, the Legislature authorized the purchase
of liability insurance to provide a defense and indemnification in these limited
circumstances. W. Va. Code § 29-12-5a.
has specifically prohibited
the purchase of insurance to defend
and indemnify a teacher when the teacher is acting outside the course or scope
of his employment or official responsibility or when the acts or omissions
are motivated by malicious or criminal intent.
W. Va. Code § 29-12-5a.
In the instant matter, Glendenning, a teacher, pled guilty to criminal charges
arising from the sexual abuse of his student, Mr. Bender, and was criminally
sentenced for the same. He also admitted, in the criminal proceedings, to sexually
abusing Mr. Strum, Mr. Gregory, and Mr. Brooks. At a minimum, therefore, because
the conduct which forms the basis of the claims asserted herein was criminal
in nature, no authorization to purchase insurance covering liability arising
from his misconduct ever existed. Thus, the claims asserted against Glendenning
cannot, as a matter of law, fall within the coverage of the State's insurance
policy. (See footnote
The Majority's Interpretation of the Insurance Policy