Davis, Chief Justice:
In this consolidated proceeding invoking the original jurisdiction of this Court, numerous individuals, who were granted dependents' death benefits under the West Virginia Workers' Compensation system following the deaths of their spouses, petition for a writ of mandamus to compel the State Insurance Commissioner to apply W. Va. Code § 23-4-10(b) (2005) (Repl. Vol. 2005) (See footnote 1) to continue dependents' death benefits until their death or remarriage. Granting the writ would invalidate a policy (See footnote 2) that terminated dependents' death benefits paid to widows or widowers on the date their deceased spouse would have become ineligible to receive Workers' Compensation Permanent Total Disability benefits. (See footnote 3) After careful consideration of the parties' briefs, oral arguments, and the relevant statutes, we grant the writ.
Purpose: To conform internal operating procedures to the requirements of Senate Bill 2013, passed on July 1, 2003, during the Second Special Session of the Legislature.
Policy Statement: When a personal injury suffered by an
employee in the course of and resulting from his or her
employment causes death, and disability is continuous from the
date of the injury until the date of death, and when occupational
pneumoconiosis or any other occupational disease causes death,
dependent benefits shall be paid as follows:
. . . .
A. IF THE DECEDENT HAD BEEN AWARDED AN OLD LAW PTD (A PTD AWARDED BEFORE JULY 1, 2003 WITH A DOI BEFORE MAY 12, 1995), THEN THE FOLLOWING SHALL APPLY:
Preference Dependent Duration
|1.||Widow or widower||Until death or remarriage.|
|1.||Widow or widower||Until death or remarriage, or until the decedent would have turned 65, which ever occurs first.|
|1.||Widow or widower||Until death or remarriage, or until the decedent would have turned 70, which ever occurs first.|
In addition, BrickStreet Administrative Services is hereby
directed to issue payment for all benefits that would have been
payable to any dependent claimant but were not paid due to the
application of policy 2.02 of the former Workers' Compensation
That same day, the Workers' Compensation Commission filed a motion to dismiss the consolidated petitions for writs of mandamus and to vacate the rules to show cause. Petitioners Georgette Carte, Sherry Grubb and Jackie Jenkins filed a response opposing the dismissal of their petitions, while petitioner Lola Crist, on May 1, 2006, filed a motion to withdraw her petition for writ of mandamus asserting that she had been made whole by the Insurance Commissioner. For reasons that will be explained below, we denied the motion to dismiss and the motion to withdraw. Meanwhile, on April 28, 2006, a motion to intervene was filed on behalf of the Sago Mine widows. (See footnote 10) We granted the motion to intervene. We now grant the writ of mandamus.
'[m]andamus lies to require the discharge by a public officer of a nondiscretionary duty.' Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W. Va. 479[, 153 S.E.2d 284 (1967)]. Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969).
Syl. pt. 1, State ex rel. Williams v. Department of Military Affairs, 212 W. Va. 407, 573
S.E.2d 1 (2002). Moreover, [s]ince mandamus is an 'extraordinary' remedy, it should be
invoked sparingly. State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 303, 460
S.E.2d 436, 438 (1995) (footnote omitted). See also State ex rel. Frazier v. Meadows, 193
W. Va. 20, 31, 454 S.E.2d 65, 76 (1994) (It is well established in this jurisdiction that a writ
of mandamus is only granted in extraordinary circumstances.). The traditional use of
mandamus has been to confine an administrative agency or an inferior court to a lawful
exercise of its prescribed jurisdiction or 'to compel it to exercise its authority when it is its
duty to do so.' Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87
L.Ed. 1185, 1190 (1943); State ex rel. Frazier v. Meadows, 193 W. Va. 20, 31, 454 S.E.2d
65, 76 (1994). Billings at 303, 460 S.E.2d at 438.
In establishing the standard which must be met before a court will grant a petition for writ of mandamus, this Court has declared that [t]o invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy. Syl. pt. 2, Mayers v. Barte, 167 W. Va. 194, 279 S.E.2d 406 (1981). Finally, we note that the burden of proof as to all the elements necessary to obtain mandamus is upon the party seeking the relief. 52 Am. Jur. 2d Mandamus § 3 at 271 (2000) (footnote omitted).
BrickStreet Administrative Services, as third party administrator of the Old Fund,[ (See footnote 11) ] to restore and reinstate all dependents' death benefits that have been terminated pursuant to policy 2.02 of the former Workers' Compensation Commission, and to cease the application of this policy to all claims for dependents' death benefits against the Old Fund.
(Footnote added). Additionally, the Insurance Commissioner has issued WEST VIRGINIA INFORMATIONAL LETTER NO. 157, which announces the Insurance Commissioner's interpretation and enforcement position as it relates to claims for dependents' death benefits under W. Va. Code § 23-4-10. Like the Insurance Commissioner's letter to BrickStreet, Informational Letter No. 157 similarly directs that
any insurer transacting workers' compensation insurance in this
State, any self-insured employer or employer group that is
authorized to self administer claims pursuant to W. Va. Code §
23-2-9(b), and any third party administrator that is adjusting
workers' compensation claims in this State shall immediately
cease application of the provisions of policy 2.02 that terminate
dependents' death benefits at the date on which the deceased
employee would have attained the age of 65 or 70. Further, any
dependents' death benefits that have been terminated pursuant
to these provisions of policy 2.02 shall be restored and reinstated
by the appropriate party, and any sums that were not paid
because of the application of these provisions shall be promptly
Due to the actions taken by the respondent Insurance Commissioner at the direction of the Governor, she filed a motion to dismiss the consolidated petitions for writs of mandamus and to vacate the rules to show cause arguing that the petitioners can no longer meet the three-part test for the issuance of a Writ of Mandamus. In addition, petitioner Lola Crist filed a motion to withdraw her petition for writ of mandamus contending that, because her dependents' death benefits were not scheduled to terminate until June 30, 2017, the actions of the Insurance Commissioner has resolved her claim. For the reasons that follow, we denied both motions.
In essence, the Insurance Commissioner and Lola Crist argue that the instant proceeding has been rendered moot by the actions of the Governor and the Insurance Commissioner which have effectuated the relief sought by the various petitioners. This Court has observed that '[m]oot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908). Syl. pt. 5, West Virginia Educ. Ass'n v. Consolidated Pub. Ret. Bd., 194 W. Va. 501, 460 S.E.2d 747 (1995). Nevertheless, we have also recognized that
[a] case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review.
Syl. pt. 1, State ex rel. M.C.H. v. Kinder, 173 W. Va. 387, 317 S.E.2d 150 (1984). We have
further explained that
[t]hree factors to be considered in deciding whether to address technically moot issues are as follows: first, the [C]ourt will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.
Syl. pt. 1, Israel by Israel v. West Virginia Secondary Sch. Activities Comm'n, 182 W. Va.
454, 388 S.E.2d 480 (1989). Applying Israel, we find two grounds for addressing the instant
matter. First, we find the question of when dependents' death benefits should terminate
under this State's Workers' Compensation laws to be one of great public interest in that it
involves the livelihood and financial security of those whose spouses have died as a result
of their employment. Second, we find the issue herein raised to be one that is subject to
repetition. While the current executive administration has chosen to apply the statute to
provide dependents' death benefits until the death or remarriage of surviving spouses,
without guidance from this Court with respect to the proper application of the relevant
statute, a future administration could implement a different policy to the detriment of
countless widows and widowers. Consequently, we find that the technical mootness of the
issue presented in this case does not preclude our consideration thereof.
It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority. Syllabus Point 3, Rowe v. Department of Corrections, 170 W. Va. 230, 292 S.E.2d 650 (1982).
Syl. pt. 3, Ney v. State Workmen's Comp. Comm'r, 171 W. Va. 13, 297 S.E.2d 212 (1982). See also Syl. pt. 4, Maikotter v. University of West Virginia Bd. of Trustees/West Virginia
Univ., 206 W. Va. 691, 527 S.E.2d 802 (1999) (Any rules or regulations drafted by an
agency must faithfully reflect the intention of the Legislature, as expressed in the controlling
legislation. Where a statute contains clear and unambiguous language, an agency's rules or
regulations must give that language the same clear and unambiguous force and effect that the
language commands in the statute.); Anderson & Anderson Contractors, Inc. v. Latimer, 162
W. Va. 803, 807-08, 257 S.E.2d 878, 881 (1979) (Although an agency may have power to
promulgate rules and regulations, the rules and regulations must be reasonable and conform
to the laws enacted by the Legislature. (citing State ex rel. Sheppe v. West Virginia Bd. of
Dental Exam'rs, 147 W. Va. 473, 128 S.E.2d 620 (1962))).
To determine whether Policy 2.02 - 2003 is consistent with the law, we examine the controlling statute, with due regard for the principle that we must endeavor to give effect to the intent of the Legislature. The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature. Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Even so, [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. Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).
W. Va. Code § 23-4-10 states in relevant part:
(b) If there are dependents as defined in subdivision (d) of this section, the dependents shall be paid for as long as their dependency continues in the same amount that was paid or would have been paid the deceased employee for total disability had he or she lived. The order of preference of payment and length of dependence shall be as follows:
(1) A dependent widow or widower until death or remarriage of the widow or widower, . . . .Apparently, Policy 2.02 - 2003 relied on that portion of the above quoted language stating that the dependents shall be paid for as long as their dependency continues in the same amount that was paid or would have been paid the deceased employee for total disability had he or she lived. (Emphasis added). We find nothing in the immediately preceding quoted language to indicate that the Legislature intended dependent death benefits to terminate when the deceased spouses' eligibility for Permanent Total Disability benefits would have ceased. The italicized language above plainly relates to the rate of payment and not its duration. In fact, the only reference to duration in the foregoing quote is found in that portion we did not italicize, which states: the dependents shall be paid for as long as their dependency continues. The statute then goes on to plainly define the length of dependency for different classes of dependents. Relevant to the instant action, the statute states: [t]he order of preference of payment and length of dependence shall be as follows: (1) A dependent widow or widower until death or remarriage of the widow or widower, . . . .
We find no ambiguity in the foregoing statutory language and thus we are bound to apply, and not construe its plain terms.
'Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.' Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970). Syllabus Point 4, Syncor International Corp. v. Palmer, 208 W. Va. 658, 542 S.E.2d 479 (2001).
Syl. pt. 4, Charter Communications VI, PLLC v. Community Antenna Serv., Inc., 211 W. Va.
71, 561 S.E.2d 793 (2002). Finally, we note that the Insurance Commissioner's Informational Letter No. 157 has also rejected the interpretation given to W. Va. Code § 23- 4-10 by Policy 2.02 - 2003. (See footnote 12) Because the Insurance Commissioner is the Administrator of the Workers' Compensation system in this State, we are entitled to give deference to her interpretation, so long as it is consistent with the plain meaning of the governing statute, as it is in this instance. Cf, Syl. pt. 4, State ex rel. ACF Indus. v. Vieweg, 204 W. Va. 525, 514 S.E.2d 176 (1999) (Interpretations as to the meaning and application of workers' compensation statutes rendered by the Workers' Compensation Commissioner, as the governmental official charged with the administration and enforcement of the workers' compensation statutory law of this State, pursuant to W. Va. Code § 23-1-1 (1997) (Repl. Vol. 1998), should be accorded deference if such interpretations are consistent with the legislation's plain meaning and ordinary construction.).
Based upon the foregoing discussion, we now expressly hold that where dependents' death benefits are awarded to a surviving widow or widower pursuant to W. Va. Code § 23-4-10 (2005) (Repl. Vol. 2005), such benefits may not be terminated prior to the death or remarriage of the widow or widower. Because the petitioners herein had a clear legal right to the relief they sought, and the Insurance Commissioner had a clear legal duty to provide that relief, we grant the writ of mandamus. (See footnote 13)