11. The four requirements for the application of the 'special relationship' exception to W. Va. Code § 29-12-5 cases are as follows: (1) An assumption by the state governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the state governmental entity's agents that inaction could lead to harm; (3) some form of direct contact between the state governmental entity's agents and the injured party; and (4) that party's justifiable reliance on the state governmental entity's affirmative undertaking. Syl. Pt. 12, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).
12. In cases arising under W. Va. Code § 29-12-5, the question of whether a special duty arises to protect an individual from a State governmental entity's negligence is ordinarily a question of fact for the trier of facts. Syl. Pt. 11, Parkulo v. West Virginia Bd.
of Prob. and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).
The Appellant, J. H., (See footnote 1) appeals an Order entered June 4, 2007, by the Circuit Court of Kanawha County concluding that the public duty doctrine was applicable to the Appellee, the West Virginia Division of Rehabilitation Services (also referred to as the Division) and dismissing the Appellant's negligence action against the Division. Specifically, the circuit court determined that
the Public Duty Doctrine is applicable to the defendant, a State agency charged
with the safety of its residents in general. The Court FINDS that Plaintiff's
reading of the relevant duty associated with the Public Duty Doctrine is overly
narrow. Further, the Court FINDS that the applicable policy of insurance does
not expressly waive qualified immunity or other statutory or constitutional
immunity. (See footnote 2)
The Appellant asks the Court to reverse the circuit court's determination that the special duty exception to the public duty doctrine was not applicable in this case. After thorough consideration of the public duty doctrine, as well as sovereign immunity and qualified immunity, we find that sufficient allegations were pleaded by the Appellant regarding the existence of the special duty exception to the public duty doctrine to survive the Appellee's Motion to Dismiss. We further find pursuant to Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996), that the existence of a special duty is a question of fact to be determined by the trier of fact under proper instruction of law. Id. at 164, 483 S.E.2d at 510, Syl. Pt. 11. Accordingly, the Court reverses and remands this case to the circuit court for further proceedings on the question of whether a special duty existed to defeat the Division's reliance on the public duty doctrine.
The Appellee filed a second Motion to Dismiss the Amended Complaint pursuant to
the provisions of West Virginia Rule of Civil Procedure 12 (b) arguing that: 1) there was no
express waiver or alteration of the State's statutory or common law immunities in the
applicable insurance contract; (See footnote 6) 2) the Plaintiff's negligence claims against the Division were
barred by the doctrine of qualified immunity; 3) the Division owed no special duty to protect
the Plaintiff from the deliberate criminal conduct of Jeff Bell. The circuit court by Order
entered June 4, 2007, granted the Division's motion, determining that the public duty
doctrine was applicable to the Division. (See footnote 7) It is this ruling that forms the basis for the instant
The standard of review applicable to an appeal from a motion to alter
or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same
standard that would apply to the underlying judgment upon which the motion
is based and from which the appeal to this Court is filed.
Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998). Therefore, we review a circuit court's order granting a motion to dismiss a complaint under a de novo standard. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995); see Richardson v. Kennedy, 197 W. Va. 326, 331, 475 S.E.2d 418, 423 (1996). Having established the applicable standard of review, the Court now considers the parties' arguments.
W. Va. Code, 29-12-5(a) (1986), provides an exception for the State's
constitutional immunity found in Section 35 of Article VI of the West Virginia
Constitution. It requires the State Board of Risk and Insurance Management
to purchase or contract for insurance and requires that such insurance policy
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
Eggleston, 189 W. Va. at 230-31, 429 S.E.2d at 636-37, Syl. Pt. 1. The West Virginia Supreme Court, therefore, has been clear that it will review law suits against the State pursuant to West Virginia Code § 29-12-5 where 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. Parkulo, 199 W. Va. at 163, 483 S.E.2d at 509, Syl. Pt. 3, in part.
In the case sub judice, the Appellant, in his Amended Complaint, does make the requisite allegation that the Appellant only seeks recovery under and up to the limits of the State's liability insurance coverage. Further, the allegations against the Division are not predicated upon an intentional act but are grounded in negligence. Thus, this is not a case in which sovereign immunity should be applied. Yet the Division engages in a lengthy discussion in its brief regarding the applicability of sovereign immunity. The Division's Motion to Dismiss the original Complaint and its Motion to Dismiss the Amended Complaint, however, focused not upon sovereign immunity but upon qualified immunity and the public duty doctrine.
Moreover, the Division's argument regarding sovereign immunity before this Court is predicated upon the Division's assertion that the sexual misconduct of a third party, Mr. Bell, was not covered by the State's liability insurance policy either because the Division was not legally responsible for the actions of Mr. Bell, or because the alleged action of the perpetrator, Mr. Bell, was an intentional act and did not constitute an occurrence. The Division relies upon this Court's decision in Smith v. Animal Urgent Care, Inc., 208 W. Va. 664, 542 S.E.2d 827(2000), as support for its argument that [t]he Appellant's negligence claims based on allegations of sexual misconduct by a third party, Jeff Bell, are not 'accidental' so as to constitute an 'occurrence' covered under 'Coverage A _ Comprehensive General Liability Insurance. Id. at 665, 542 S.E.2d at 828, Syl. Pt. 2 (In an insurance liability policy, a claim based on sexual harassment does not come within the definition of 'occurrence,' which is defined as an 'accident, including continuous or repeated exposure to substantially the same general harmful conditions.'). The Division failed, however, to discuss the case that is controlling on the issue of whether the alleged assault constituted intentional conduct under the applicable liability insurance policy. In Columbia Casualty Co. v. Wesfield Insurance Co., 217 W. Va. 250, 617 S.E.2d 797 (2005), the United States Court of Appeals for the Fourth Circuit, on a certified question of law, asked whether jail inmate suicides were occurrences under a liability insurance policy issued to the Randolph County Commission. Id. at 251, 617 S.E.2d at 798. This question arose out of an insurer's declaratory judgment action against another insurer seeking a determination of one insurer's duty to defend and provide liability coverage for two separate suicides that had occurred in the Randolph County jail. Id. The estates of the decedents had brought actions against the Randolph County Commission and the Randolph County Sheriff claiming that the defendants were legally required to pay wrongful death damages as a result of their alleged wrongful acts and omissions causing the deaths. Id.
In analyzing the relevant language defining the term accident as found within the liability insurance policy (See footnote 9) at issue in Columbia Casualty, we made it clear in our holding that
[i]n determining whether under a liability insurance policy an
occurrence was or was not an accident--or was or was not deliberate,
intentional, expected, desired, or foreseen--primary consideration, relevance,
and weight should ordinarily be given to the perspective or standpoint of the
insured whose coverage under the policy is at issue.
Id. at 250, 617 S.E.2d at 797, Syllabus. In so holding, the Court explained that to adopt the argument that whether the actor's conduct was intentional or accidental should be determined from the perspective of the actor and not the insured would
preclude liability insurance coverage for insureds in many cases involving allegedly intentional or non-accidental conduct by actors who had a substantial and material role in causing an injury, but where the insured seeking coverage cannot be fairlytarred with the same brush of that actor's coverage-defeating conduct. . . . We see no intent in our cases interpreting and applying general liability coverage to deny liability coverage to insureds in a wide range of cases where an insured was allegedly negligent but did not (actually or constructively) intend to cause a specific injury. The purpose of insurance liability policies is to provide a defense and indemnification to an insured for claims arising from the insured's own negligent acts or omissions. Erie ins. Prop. & Cas. Co. v. Pioneer Home Improvement, 206 W. Va. 506, 511, 526 S.E.2d 28, 33 (1999).
Columbia Cas., 217 W. Va. at 254, 617 S.E.2d at 801 n.5.
In the instant case, it is undeniable that from the viewpoint of the insured, the
Division, the alleged molestation of the Appellant was not expected or intended by the
Division. (See footnote 10) Instead, the allegations in the Appellant's Amended Complaint focus on the
alleged negligent conduct of the Division in failing: 1) to supervise Mr. Bell; 2) to provide
proper security to the Appellant; 3) to enforce rules at the Rehabilitation Center; 4) to allow
Mr. Bell to continue in a student/client resident and employee status after receiving
complaints of similar conduct; and 5) to coordinate rules and responsibilities of staff at the
Rehabilitation Center. Consequently, pursuant to Columbia Casualty, the alleged conduct
which formed the basis for the underlying action falls within policy definition of an
occurrence and, therefore, sovereign immunity is not applicable to preclude the Appellant's
action against the Division.
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., (See footnote 11) 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). (See footnote 12)
In cases arising under W. Va. Code § 29-12-5, and in the absence of
express provisions of the insurance contract to the contrary, (See footnote 13) the immunity of
the State is coterminous with the qualified immunity of a public executive
official whose acts or omissions give rise to the case. However, on occasion,
the State will be entitled to immunity when the official is not entitled to the
same immunity; in others, the official will be entitled to immunity when the
State is not. The existence of the State's immunity of the State must be
determined on a case-by-case basis.
Id. at 164, 483 S.E.2d at 510, Syl. Pt. 9 (footnote added).
Subsequently, in Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995), the Court held in syllabus point four and six that:
If a public officer is either authorized or required, in the exercise of his
judgment and discretion, to make a decision and to perform acts in the making
of that decision, and the decision and acts are within the scope of his duty,
authority, and jurisdiction, he is not liable for negligence or other error in the
making of that decision, at the suit of a private individual claiming to have
been damaged thereby.
. . .
In the absence of an insurance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of mere negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq., and against an officer of that department acting within the scope of his or her employment, with respect to the discretionary judgments, decisions, and actions of the officer.
195 W. Va. at 273-74, 465 S.E.2d at 375-76, Syl. Pts. 4 and 6.
Further, in the context of a State agency, like the Division, this Court held in Parkulo that:
Unless the applicable insurance policy otherwise expressly provides, a
State agency or instrumentality, as an entity, is immune under common-law
principles from tort liability in W. Va. Code § 29-12-5 actions for acts or
omissions in the exercise of a legislative or judicial function and for the
exercise of an administrative function involving the determination of
fundamental governmental policy.
199 W. Va. at 163-64, 483 S.E.2d at 509-10, Syl. Pt. 6.
Consequently, the first issue that must be determined in analyzing the issue of qualified immunity and the applicability of this immunity to a State agency is whether the State's insurance policy expressly waives common-law immunity for tort liability. In the instant matter, no such waiver exists. Thus, the second inquiry is whether the State entity was exercising a legislative or judicial function or an administrative function involving the determination of a fundamental governmental policy. There are no allegations made by the Appellant of any type of legislative, judicial, or administrative functions involving the determination of a fundamental governmental policy, which are the types of functions susceptible to the application of qualified immunity. Pittsburgh Elevator Co., 172 W. Va. at 744, 310 S.E.2d at 676, Syl. Pt. 2. Thus, the doctrine of qualified immunity does not preclude this claim.
[t]he public duty doctrine states that a governmental entity's liability for
nondiscretionary governmental functions may not be predicated upon the
breach of a general duty owed to the public as a whole; instead, only the
breach of a duty owed to the particular person injured is actionable. Wolfe v.
City of Wheeling, 182 W. Va. 253, 256, 387 S.E.2d 307, 310 (1989). The
linchpin of the public duty doctrine is that some governmental acts create
duties owed to the public as a whole and not to the particular private person or
private citizen who may be harmed by such acts. Parkulo v. West Virginia Bd. of Probation and Parole, 199 W. Va. 161, 172, 483 S.E.2d 507, 518 (1996).
McCormick v. West Virginia Dep't of Pub. Safety, 202 W. Va. 189, 194, 503 S.E.2d 502, 507 (1998).
In Parkulo, the Court held in syllabus point ten that [t]he public duty doctrine and its 'special relationship' exception apply to W. Va. Code § 29-12-5 actions against the State and its instrumentalities, unless the doctrine is expressly waived or altered by the terms of the applicable insurance contract. 199 W. Va. at 164, 483 S.E.2d at 510, Syl. Pt. 10. Further,
[t]he four requirements for the application of the special relationship
exception to W. Va. Code § 29-12-5 cases are as follows: (1) An assumption
by the state governmental entity, through promises or actions, of an affirmative
duty to act on behalf of the party who was injured; (2) knowledge on the part
of the state governmental entity's agents that inaction could lead to harm; (3)
some form of direct contract between the state governmental entity's agents
and the injured party; and (4) that party's justifiable reliance on the state
governmental entity's affirmative undertaking.
199 W. Va. at 164, 483 S.E.2d at 510, Syl. Pt. 12. Finally, this Court previously held that [i]n cases arising under W. Va. Code § 29-12-5, the question of whether a special duty arises to protect an individual from a State governmental entity's negligence is ordinarily a question of fact for the trier of facts. 199 W. Va. at 164, 483 S.E.2d at 510, Syl. Pt. 11.
In the instant case, the Court concludes that the circuit court erred in granting the
Division's Motion to Dismiss. A de novo review of the allegations contained in the
Appellant's Amended Complaint reflects that sufficient allegations are present to allow the
Appellant's claims to go forward against the Division. It is for a jury to determine, under
appropriate instruction of law, whether a special duty arises to protect the Appellant from the
Division's alleged negligence. Id. We, therefore, reverse the decision of the circuit court
and remand this case for reinstatement of the Appellant's claims based upon the allegations
of a special relationship and a special duty.