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SUPREME COURT OF APPEALS OF WEST VIRGIN SEP 262012 ~ ~

RORY L PERRY n CLERK SUPREME COURT OF APPEALSDocket No 12-0632 OF WEST VIRGINIA

JOSEPH E JACKSON and WEST VIRGINIA DEPARTMENT OF TRANSPORTATION

DIVISION OF HIGHWAYS

DefendantsPetitioners

vs

JOSEPH WAYNE BELCHER

PlaintiffRespondent

On Interlocutory Appeal from the Circuit Court of Mingo County West Virginia Civil Action No ll-C-333

The Honorable Michael Thornsbury

RESPONDENTS BRIEF IN OPPOSITION TO PETITION FOR INTERLOCUTORY APPEAL

Stephen P New Esquire (7756) 114 Main Street Post Office Box 5516 Beckley WV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17wahoocom

Attorney for PlaintiffRespondent Joseph Wayne Belcher

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES 111

STATEMENT OF THE PROCEEDINGS BELOW 1

STATEMENT OF THE FACTS 2

ISSUE PRESENTED 3

SUMMARY OF THE ARGUMENT 3

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE THE COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5-11(a) 5

A Standard OfReview For West Virginia Rule ofCivil Procedure 56 Motions 5

B Exceptions To Immunity Under West Virginia Code sect 15-5shyIl(a) 6

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11 8

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator 8

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia sect 15-5 -11 (a) 11

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions 15

TABLE OF CONTENTS (CONTD)

Page

CONCLUSION 17

CERTIFICATE OF SERVICE

11

- -

TABLE OF AUTHORITIES

Cases Page

Barr v NCB Mgmt Servs Inc 227 W Va 507 711 SE2d 577 (2011) 12

Brewer ex reI Brewer v Indep Sch Dist No1 1993 OK 17 848 P 2d 566 16

City ofSaint Albans v Botkins 228 W Va 393 719 SE2d 863 (2011) 5 13 14

Clark v Dunn 195 W Va 272 465 SE2d 374 (1995) 10

Cohen v Ben Indus Loan Corp 337 US 541 (1949) 11

Community Antenna Servo V Charter Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) 12

Dawes V Nash County 357 NC 442 584 SE2d 760 (2003) 15

Eggleston V W Va Dept ofHighways 189 W Va 230 429 SE2d 636 (1993) 10

Erie RR V Tompkins 304 US 64 (1938) 11

Expansion Pointe Props LP V Procopio C01Y Hargreaves amp Savitch LLP 152 Cal App 4th 42 61 Cal Rptr 3d 166 (2007) 11

Gooden V Webster County Commn 171 W Va 130298 SE2d 103 (1982) 13

McCobb V Clayton County 309 Ga App 217 710 SE2d 207 (2011) 15

Natl Union Fire Ins Co ofPittsburgh Pa v Miller W Va 724 SE2d 343 (2012) 5 9

Painterv Peavy 192 W Va 189451 SE2d 755 (1994) 5

Pittsburgh Elevator CO V W Va Bd ofRegents 172 W Va 743 310 SE2d 675 (1983) 3 4 6 7 passim

111

TABLE OF AUTHORITIES (CONTD)

Cases Page

Saucier v Katz 533 US 194 (2001) overruled 011 other grounds 555 US 223 (2009) 14

Smith v Phillips 117 NC App 378451 SE2d 309 (1994) 16

State v Gen Daniel Morgan Post No 548 Veterans ofForeign Wars 144 W Va 137107 SE2d 353 (1989) 11

W Va Dept ofTransp Highways Div v Madden 192 W Va 497 453 SE2d 331 (1994) 10

Wyman v Mo Dept ofMental Health No WD74062 2012 WL 1164147 (WD Mo Apr 10 2012) 16

Statutes

W Va Code sect 15-5-11 1345 passim

W Va Code sect 29-12-5 7 11 14

W Va Const art IV sect 35 9

W Va R Civ P 56 5

iv

STATEMENT OF THE PROCEEDINGS BELOW

The PlaintiffRespondent Joseph Wayne Belcher (Belcher) filed his Complaint on

June 21 2011 against Joseph E Jackson (Jackson) and the West Virginia Department of

Transportation Division of Highways (collectively referred to herein as Petitioners) for

damages arising from injuries Belcher had sustained as a result of Petitioners negligence

(See App 4 Pls Compl) Belchers vehicle was struck by a vehicle owned by the West

Virginia Department of Transportation and operated by Joseph Jackson while Jackson was

working as an employee of the Department ofTransp011ation (See App 3 Accident Rep)

Petitioners filed a Motion for Summary Judgment on November 142011 contending

that Belchers Complaint should be dismissed on the ground that Petitioners are immune from

liability under West Virginia Code sect 15-5-11(a) (See App 24 Defs Mot SUlDlTI J amp

Defs Mem Supp Mot Summ J) Belcher filed a Response in Opposition to Motion for

Summary Judgment (See App 36 Pls Resp Opp Defs Mot Summ J) On December 1

2011 the Circuit Court of Mingo County entered an Order Directing Parties to Submit an

Agreed Order Certifying Question (See App 64 Order Directing Parties to Submit an

Agreed Order Certifying Question) On March 7 2012 the circuit court entered an Order

denying Defendants Motion for Summary Judgment and noted that it was no longer

necessary to certify the question (See App 65 Order Denying Mot Summ 1)

Petitioners filed a Motion to Alter or Amend Judgment (See App 72 Defs Mot to

Alter or Amend J) This motion requested that the circuit court certify to the West Virginia

Supreme Court of Appeals whether the Courts ruling in Pittsburgh Elevator Company v

West Virginia Board ofRegents 117 W Va 743 310 SE2d 675 (1983) preclude[s] state

agencies and political subdivisions from asserting the statutory immunity granted under

W Va Code sect lS-S-11(a)

On April 2 2012 a hearing on the Motion to Alter or Amend Judgment was held

before the circuit court On April 13 2012 the court entered its Order denying Defendants

Motion to Alter or Amend Judgment (See App 78 Order Denying Mot to Alter or Amend

J)

Petitioners petitioned for interlocutory appeal by filing a notice of appeal on May 10

2012

STATEMENT OF THE FACTS

The complaint filed by Belcher seeks damages for injuries he sustained when the

vehicle he was driving was struck by a state worker (See App 4 Pls CompI) On June 23

2009 Belcher was driving his vehicle on or near US Route 522 Browning Fork Road near

Gilbert Mingo County West Virginia At the time Belcher was driving on Browning Fork

Road Jackson while negligently backing up a 2004 Mack 700C dump truck onto Browning

Fork Road struck Belchers vehicle in the front and side (See App 10 Accident Rep) At

the time of the collision Jackson was working for the West Virginia Department of

Transportation Division ofHighways Belcher suffered severe and pennanent injuries to his

neck and back as a result ofthe vehicle collision Additionally the vehicle struck by Jackson

was totaled Since the accident Belcher has incurred significant medical and hospital

expenses The pain and suffering and medical expenses arising from the June 23 2009

collision are expected to continue indefinitely (See App 4 PIs CompI)

At the time of the accident Petitioners were working as emergency service workers

for the West Virginia Division ofHighways (DOH) pursuant to a June 102009 Executive

Order by Governor Manchin to address the effects of a May 3 2009 flood in the Mingo

County West Virginia region (See App 1 Fonner Gov Manchins Ex Order No 12-09)

ISSUE PRESENTED

Did the Circuit Court of Mingo County err in denying Defendants Motion for

Summary Judgment and concluding that the courts decision in Pittsburgh Elevator Co v

West Virginia Board ofRegents 172 W Va 743310 SE2d 675 (1983) qualified as an

exception to the statutory immunity of West Virginia Code sect 15-5-11(a) so that Plaintiffs

suit against the Defendants could proceed

3

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

TABLE OF CONTENTS (CONTD)

Page

CONCLUSION 17

CERTIFICATE OF SERVICE

11

- -

TABLE OF AUTHORITIES

Cases Page

Barr v NCB Mgmt Servs Inc 227 W Va 507 711 SE2d 577 (2011) 12

Brewer ex reI Brewer v Indep Sch Dist No1 1993 OK 17 848 P 2d 566 16

City ofSaint Albans v Botkins 228 W Va 393 719 SE2d 863 (2011) 5 13 14

Clark v Dunn 195 W Va 272 465 SE2d 374 (1995) 10

Cohen v Ben Indus Loan Corp 337 US 541 (1949) 11

Community Antenna Servo V Charter Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) 12

Dawes V Nash County 357 NC 442 584 SE2d 760 (2003) 15

Eggleston V W Va Dept ofHighways 189 W Va 230 429 SE2d 636 (1993) 10

Erie RR V Tompkins 304 US 64 (1938) 11

Expansion Pointe Props LP V Procopio C01Y Hargreaves amp Savitch LLP 152 Cal App 4th 42 61 Cal Rptr 3d 166 (2007) 11

Gooden V Webster County Commn 171 W Va 130298 SE2d 103 (1982) 13

McCobb V Clayton County 309 Ga App 217 710 SE2d 207 (2011) 15

Natl Union Fire Ins Co ofPittsburgh Pa v Miller W Va 724 SE2d 343 (2012) 5 9

Painterv Peavy 192 W Va 189451 SE2d 755 (1994) 5

Pittsburgh Elevator CO V W Va Bd ofRegents 172 W Va 743 310 SE2d 675 (1983) 3 4 6 7 passim

111

TABLE OF AUTHORITIES (CONTD)

Cases Page

Saucier v Katz 533 US 194 (2001) overruled 011 other grounds 555 US 223 (2009) 14

Smith v Phillips 117 NC App 378451 SE2d 309 (1994) 16

State v Gen Daniel Morgan Post No 548 Veterans ofForeign Wars 144 W Va 137107 SE2d 353 (1989) 11

W Va Dept ofTransp Highways Div v Madden 192 W Va 497 453 SE2d 331 (1994) 10

Wyman v Mo Dept ofMental Health No WD74062 2012 WL 1164147 (WD Mo Apr 10 2012) 16

Statutes

W Va Code sect 15-5-11 1345 passim

W Va Code sect 29-12-5 7 11 14

W Va Const art IV sect 35 9

W Va R Civ P 56 5

iv

STATEMENT OF THE PROCEEDINGS BELOW

The PlaintiffRespondent Joseph Wayne Belcher (Belcher) filed his Complaint on

June 21 2011 against Joseph E Jackson (Jackson) and the West Virginia Department of

Transportation Division of Highways (collectively referred to herein as Petitioners) for

damages arising from injuries Belcher had sustained as a result of Petitioners negligence

(See App 4 Pls Compl) Belchers vehicle was struck by a vehicle owned by the West

Virginia Department of Transportation and operated by Joseph Jackson while Jackson was

working as an employee of the Department ofTransp011ation (See App 3 Accident Rep)

Petitioners filed a Motion for Summary Judgment on November 142011 contending

that Belchers Complaint should be dismissed on the ground that Petitioners are immune from

liability under West Virginia Code sect 15-5-11(a) (See App 24 Defs Mot SUlDlTI J amp

Defs Mem Supp Mot Summ J) Belcher filed a Response in Opposition to Motion for

Summary Judgment (See App 36 Pls Resp Opp Defs Mot Summ J) On December 1

2011 the Circuit Court of Mingo County entered an Order Directing Parties to Submit an

Agreed Order Certifying Question (See App 64 Order Directing Parties to Submit an

Agreed Order Certifying Question) On March 7 2012 the circuit court entered an Order

denying Defendants Motion for Summary Judgment and noted that it was no longer

necessary to certify the question (See App 65 Order Denying Mot Summ 1)

Petitioners filed a Motion to Alter or Amend Judgment (See App 72 Defs Mot to

Alter or Amend J) This motion requested that the circuit court certify to the West Virginia

Supreme Court of Appeals whether the Courts ruling in Pittsburgh Elevator Company v

West Virginia Board ofRegents 117 W Va 743 310 SE2d 675 (1983) preclude[s] state

agencies and political subdivisions from asserting the statutory immunity granted under

W Va Code sect lS-S-11(a)

On April 2 2012 a hearing on the Motion to Alter or Amend Judgment was held

before the circuit court On April 13 2012 the court entered its Order denying Defendants

Motion to Alter or Amend Judgment (See App 78 Order Denying Mot to Alter or Amend

J)

Petitioners petitioned for interlocutory appeal by filing a notice of appeal on May 10

2012

STATEMENT OF THE FACTS

The complaint filed by Belcher seeks damages for injuries he sustained when the

vehicle he was driving was struck by a state worker (See App 4 Pls CompI) On June 23

2009 Belcher was driving his vehicle on or near US Route 522 Browning Fork Road near

Gilbert Mingo County West Virginia At the time Belcher was driving on Browning Fork

Road Jackson while negligently backing up a 2004 Mack 700C dump truck onto Browning

Fork Road struck Belchers vehicle in the front and side (See App 10 Accident Rep) At

the time of the collision Jackson was working for the West Virginia Department of

Transportation Division ofHighways Belcher suffered severe and pennanent injuries to his

neck and back as a result ofthe vehicle collision Additionally the vehicle struck by Jackson

was totaled Since the accident Belcher has incurred significant medical and hospital

expenses The pain and suffering and medical expenses arising from the June 23 2009

collision are expected to continue indefinitely (See App 4 PIs CompI)

At the time of the accident Petitioners were working as emergency service workers

for the West Virginia Division ofHighways (DOH) pursuant to a June 102009 Executive

Order by Governor Manchin to address the effects of a May 3 2009 flood in the Mingo

County West Virginia region (See App 1 Fonner Gov Manchins Ex Order No 12-09)

ISSUE PRESENTED

Did the Circuit Court of Mingo County err in denying Defendants Motion for

Summary Judgment and concluding that the courts decision in Pittsburgh Elevator Co v

West Virginia Board ofRegents 172 W Va 743310 SE2d 675 (1983) qualified as an

exception to the statutory immunity of West Virginia Code sect 15-5-11(a) so that Plaintiffs

suit against the Defendants could proceed

3

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

- -

TABLE OF AUTHORITIES

Cases Page

Barr v NCB Mgmt Servs Inc 227 W Va 507 711 SE2d 577 (2011) 12

Brewer ex reI Brewer v Indep Sch Dist No1 1993 OK 17 848 P 2d 566 16

City ofSaint Albans v Botkins 228 W Va 393 719 SE2d 863 (2011) 5 13 14

Clark v Dunn 195 W Va 272 465 SE2d 374 (1995) 10

Cohen v Ben Indus Loan Corp 337 US 541 (1949) 11

Community Antenna Servo V Charter Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) 12

Dawes V Nash County 357 NC 442 584 SE2d 760 (2003) 15

Eggleston V W Va Dept ofHighways 189 W Va 230 429 SE2d 636 (1993) 10

Erie RR V Tompkins 304 US 64 (1938) 11

Expansion Pointe Props LP V Procopio C01Y Hargreaves amp Savitch LLP 152 Cal App 4th 42 61 Cal Rptr 3d 166 (2007) 11

Gooden V Webster County Commn 171 W Va 130298 SE2d 103 (1982) 13

McCobb V Clayton County 309 Ga App 217 710 SE2d 207 (2011) 15

Natl Union Fire Ins Co ofPittsburgh Pa v Miller W Va 724 SE2d 343 (2012) 5 9

Painterv Peavy 192 W Va 189451 SE2d 755 (1994) 5

Pittsburgh Elevator CO V W Va Bd ofRegents 172 W Va 743 310 SE2d 675 (1983) 3 4 6 7 passim

111

TABLE OF AUTHORITIES (CONTD)

Cases Page

Saucier v Katz 533 US 194 (2001) overruled 011 other grounds 555 US 223 (2009) 14

Smith v Phillips 117 NC App 378451 SE2d 309 (1994) 16

State v Gen Daniel Morgan Post No 548 Veterans ofForeign Wars 144 W Va 137107 SE2d 353 (1989) 11

W Va Dept ofTransp Highways Div v Madden 192 W Va 497 453 SE2d 331 (1994) 10

Wyman v Mo Dept ofMental Health No WD74062 2012 WL 1164147 (WD Mo Apr 10 2012) 16

Statutes

W Va Code sect 15-5-11 1345 passim

W Va Code sect 29-12-5 7 11 14

W Va Const art IV sect 35 9

W Va R Civ P 56 5

iv

STATEMENT OF THE PROCEEDINGS BELOW

The PlaintiffRespondent Joseph Wayne Belcher (Belcher) filed his Complaint on

June 21 2011 against Joseph E Jackson (Jackson) and the West Virginia Department of

Transportation Division of Highways (collectively referred to herein as Petitioners) for

damages arising from injuries Belcher had sustained as a result of Petitioners negligence

(See App 4 Pls Compl) Belchers vehicle was struck by a vehicle owned by the West

Virginia Department of Transportation and operated by Joseph Jackson while Jackson was

working as an employee of the Department ofTransp011ation (See App 3 Accident Rep)

Petitioners filed a Motion for Summary Judgment on November 142011 contending

that Belchers Complaint should be dismissed on the ground that Petitioners are immune from

liability under West Virginia Code sect 15-5-11(a) (See App 24 Defs Mot SUlDlTI J amp

Defs Mem Supp Mot Summ J) Belcher filed a Response in Opposition to Motion for

Summary Judgment (See App 36 Pls Resp Opp Defs Mot Summ J) On December 1

2011 the Circuit Court of Mingo County entered an Order Directing Parties to Submit an

Agreed Order Certifying Question (See App 64 Order Directing Parties to Submit an

Agreed Order Certifying Question) On March 7 2012 the circuit court entered an Order

denying Defendants Motion for Summary Judgment and noted that it was no longer

necessary to certify the question (See App 65 Order Denying Mot Summ 1)

Petitioners filed a Motion to Alter or Amend Judgment (See App 72 Defs Mot to

Alter or Amend J) This motion requested that the circuit court certify to the West Virginia

Supreme Court of Appeals whether the Courts ruling in Pittsburgh Elevator Company v

West Virginia Board ofRegents 117 W Va 743 310 SE2d 675 (1983) preclude[s] state

agencies and political subdivisions from asserting the statutory immunity granted under

W Va Code sect lS-S-11(a)

On April 2 2012 a hearing on the Motion to Alter or Amend Judgment was held

before the circuit court On April 13 2012 the court entered its Order denying Defendants

Motion to Alter or Amend Judgment (See App 78 Order Denying Mot to Alter or Amend

J)

Petitioners petitioned for interlocutory appeal by filing a notice of appeal on May 10

2012

STATEMENT OF THE FACTS

The complaint filed by Belcher seeks damages for injuries he sustained when the

vehicle he was driving was struck by a state worker (See App 4 Pls CompI) On June 23

2009 Belcher was driving his vehicle on or near US Route 522 Browning Fork Road near

Gilbert Mingo County West Virginia At the time Belcher was driving on Browning Fork

Road Jackson while negligently backing up a 2004 Mack 700C dump truck onto Browning

Fork Road struck Belchers vehicle in the front and side (See App 10 Accident Rep) At

the time of the collision Jackson was working for the West Virginia Department of

Transportation Division ofHighways Belcher suffered severe and pennanent injuries to his

neck and back as a result ofthe vehicle collision Additionally the vehicle struck by Jackson

was totaled Since the accident Belcher has incurred significant medical and hospital

expenses The pain and suffering and medical expenses arising from the June 23 2009

collision are expected to continue indefinitely (See App 4 PIs CompI)

At the time of the accident Petitioners were working as emergency service workers

for the West Virginia Division ofHighways (DOH) pursuant to a June 102009 Executive

Order by Governor Manchin to address the effects of a May 3 2009 flood in the Mingo

County West Virginia region (See App 1 Fonner Gov Manchins Ex Order No 12-09)

ISSUE PRESENTED

Did the Circuit Court of Mingo County err in denying Defendants Motion for

Summary Judgment and concluding that the courts decision in Pittsburgh Elevator Co v

West Virginia Board ofRegents 172 W Va 743310 SE2d 675 (1983) qualified as an

exception to the statutory immunity of West Virginia Code sect 15-5-11(a) so that Plaintiffs

suit against the Defendants could proceed

3

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

TABLE OF AUTHORITIES (CONTD)

Cases Page

Saucier v Katz 533 US 194 (2001) overruled 011 other grounds 555 US 223 (2009) 14

Smith v Phillips 117 NC App 378451 SE2d 309 (1994) 16

State v Gen Daniel Morgan Post No 548 Veterans ofForeign Wars 144 W Va 137107 SE2d 353 (1989) 11

W Va Dept ofTransp Highways Div v Madden 192 W Va 497 453 SE2d 331 (1994) 10

Wyman v Mo Dept ofMental Health No WD74062 2012 WL 1164147 (WD Mo Apr 10 2012) 16

Statutes

W Va Code sect 15-5-11 1345 passim

W Va Code sect 29-12-5 7 11 14

W Va Const art IV sect 35 9

W Va R Civ P 56 5

iv

STATEMENT OF THE PROCEEDINGS BELOW

The PlaintiffRespondent Joseph Wayne Belcher (Belcher) filed his Complaint on

June 21 2011 against Joseph E Jackson (Jackson) and the West Virginia Department of

Transportation Division of Highways (collectively referred to herein as Petitioners) for

damages arising from injuries Belcher had sustained as a result of Petitioners negligence

(See App 4 Pls Compl) Belchers vehicle was struck by a vehicle owned by the West

Virginia Department of Transportation and operated by Joseph Jackson while Jackson was

working as an employee of the Department ofTransp011ation (See App 3 Accident Rep)

Petitioners filed a Motion for Summary Judgment on November 142011 contending

that Belchers Complaint should be dismissed on the ground that Petitioners are immune from

liability under West Virginia Code sect 15-5-11(a) (See App 24 Defs Mot SUlDlTI J amp

Defs Mem Supp Mot Summ J) Belcher filed a Response in Opposition to Motion for

Summary Judgment (See App 36 Pls Resp Opp Defs Mot Summ J) On December 1

2011 the Circuit Court of Mingo County entered an Order Directing Parties to Submit an

Agreed Order Certifying Question (See App 64 Order Directing Parties to Submit an

Agreed Order Certifying Question) On March 7 2012 the circuit court entered an Order

denying Defendants Motion for Summary Judgment and noted that it was no longer

necessary to certify the question (See App 65 Order Denying Mot Summ 1)

Petitioners filed a Motion to Alter or Amend Judgment (See App 72 Defs Mot to

Alter or Amend J) This motion requested that the circuit court certify to the West Virginia

Supreme Court of Appeals whether the Courts ruling in Pittsburgh Elevator Company v

West Virginia Board ofRegents 117 W Va 743 310 SE2d 675 (1983) preclude[s] state

agencies and political subdivisions from asserting the statutory immunity granted under

W Va Code sect lS-S-11(a)

On April 2 2012 a hearing on the Motion to Alter or Amend Judgment was held

before the circuit court On April 13 2012 the court entered its Order denying Defendants

Motion to Alter or Amend Judgment (See App 78 Order Denying Mot to Alter or Amend

J)

Petitioners petitioned for interlocutory appeal by filing a notice of appeal on May 10

2012

STATEMENT OF THE FACTS

The complaint filed by Belcher seeks damages for injuries he sustained when the

vehicle he was driving was struck by a state worker (See App 4 Pls CompI) On June 23

2009 Belcher was driving his vehicle on or near US Route 522 Browning Fork Road near

Gilbert Mingo County West Virginia At the time Belcher was driving on Browning Fork

Road Jackson while negligently backing up a 2004 Mack 700C dump truck onto Browning

Fork Road struck Belchers vehicle in the front and side (See App 10 Accident Rep) At

the time of the collision Jackson was working for the West Virginia Department of

Transportation Division ofHighways Belcher suffered severe and pennanent injuries to his

neck and back as a result ofthe vehicle collision Additionally the vehicle struck by Jackson

was totaled Since the accident Belcher has incurred significant medical and hospital

expenses The pain and suffering and medical expenses arising from the June 23 2009

collision are expected to continue indefinitely (See App 4 PIs CompI)

At the time of the accident Petitioners were working as emergency service workers

for the West Virginia Division ofHighways (DOH) pursuant to a June 102009 Executive

Order by Governor Manchin to address the effects of a May 3 2009 flood in the Mingo

County West Virginia region (See App 1 Fonner Gov Manchins Ex Order No 12-09)

ISSUE PRESENTED

Did the Circuit Court of Mingo County err in denying Defendants Motion for

Summary Judgment and concluding that the courts decision in Pittsburgh Elevator Co v

West Virginia Board ofRegents 172 W Va 743310 SE2d 675 (1983) qualified as an

exception to the statutory immunity of West Virginia Code sect 15-5-11(a) so that Plaintiffs

suit against the Defendants could proceed

3

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

STATEMENT OF THE PROCEEDINGS BELOW

The PlaintiffRespondent Joseph Wayne Belcher (Belcher) filed his Complaint on

June 21 2011 against Joseph E Jackson (Jackson) and the West Virginia Department of

Transportation Division of Highways (collectively referred to herein as Petitioners) for

damages arising from injuries Belcher had sustained as a result of Petitioners negligence

(See App 4 Pls Compl) Belchers vehicle was struck by a vehicle owned by the West

Virginia Department of Transportation and operated by Joseph Jackson while Jackson was

working as an employee of the Department ofTransp011ation (See App 3 Accident Rep)

Petitioners filed a Motion for Summary Judgment on November 142011 contending

that Belchers Complaint should be dismissed on the ground that Petitioners are immune from

liability under West Virginia Code sect 15-5-11(a) (See App 24 Defs Mot SUlDlTI J amp

Defs Mem Supp Mot Summ J) Belcher filed a Response in Opposition to Motion for

Summary Judgment (See App 36 Pls Resp Opp Defs Mot Summ J) On December 1

2011 the Circuit Court of Mingo County entered an Order Directing Parties to Submit an

Agreed Order Certifying Question (See App 64 Order Directing Parties to Submit an

Agreed Order Certifying Question) On March 7 2012 the circuit court entered an Order

denying Defendants Motion for Summary Judgment and noted that it was no longer

necessary to certify the question (See App 65 Order Denying Mot Summ 1)

Petitioners filed a Motion to Alter or Amend Judgment (See App 72 Defs Mot to

Alter or Amend J) This motion requested that the circuit court certify to the West Virginia

Supreme Court of Appeals whether the Courts ruling in Pittsburgh Elevator Company v

West Virginia Board ofRegents 117 W Va 743 310 SE2d 675 (1983) preclude[s] state

agencies and political subdivisions from asserting the statutory immunity granted under

W Va Code sect lS-S-11(a)

On April 2 2012 a hearing on the Motion to Alter or Amend Judgment was held

before the circuit court On April 13 2012 the court entered its Order denying Defendants

Motion to Alter or Amend Judgment (See App 78 Order Denying Mot to Alter or Amend

J)

Petitioners petitioned for interlocutory appeal by filing a notice of appeal on May 10

2012

STATEMENT OF THE FACTS

The complaint filed by Belcher seeks damages for injuries he sustained when the

vehicle he was driving was struck by a state worker (See App 4 Pls CompI) On June 23

2009 Belcher was driving his vehicle on or near US Route 522 Browning Fork Road near

Gilbert Mingo County West Virginia At the time Belcher was driving on Browning Fork

Road Jackson while negligently backing up a 2004 Mack 700C dump truck onto Browning

Fork Road struck Belchers vehicle in the front and side (See App 10 Accident Rep) At

the time of the collision Jackson was working for the West Virginia Department of

Transportation Division ofHighways Belcher suffered severe and pennanent injuries to his

neck and back as a result ofthe vehicle collision Additionally the vehicle struck by Jackson

was totaled Since the accident Belcher has incurred significant medical and hospital

expenses The pain and suffering and medical expenses arising from the June 23 2009

collision are expected to continue indefinitely (See App 4 PIs CompI)

At the time of the accident Petitioners were working as emergency service workers

for the West Virginia Division ofHighways (DOH) pursuant to a June 102009 Executive

Order by Governor Manchin to address the effects of a May 3 2009 flood in the Mingo

County West Virginia region (See App 1 Fonner Gov Manchins Ex Order No 12-09)

ISSUE PRESENTED

Did the Circuit Court of Mingo County err in denying Defendants Motion for

Summary Judgment and concluding that the courts decision in Pittsburgh Elevator Co v

West Virginia Board ofRegents 172 W Va 743310 SE2d 675 (1983) qualified as an

exception to the statutory immunity of West Virginia Code sect 15-5-11(a) so that Plaintiffs

suit against the Defendants could proceed

3

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

Petitioners filed a Motion to Alter or Amend Judgment (See App 72 Defs Mot to

Alter or Amend J) This motion requested that the circuit court certify to the West Virginia

Supreme Court of Appeals whether the Courts ruling in Pittsburgh Elevator Company v

West Virginia Board ofRegents 117 W Va 743 310 SE2d 675 (1983) preclude[s] state

agencies and political subdivisions from asserting the statutory immunity granted under

W Va Code sect lS-S-11(a)

On April 2 2012 a hearing on the Motion to Alter or Amend Judgment was held

before the circuit court On April 13 2012 the court entered its Order denying Defendants

Motion to Alter or Amend Judgment (See App 78 Order Denying Mot to Alter or Amend

J)

Petitioners petitioned for interlocutory appeal by filing a notice of appeal on May 10

2012

STATEMENT OF THE FACTS

The complaint filed by Belcher seeks damages for injuries he sustained when the

vehicle he was driving was struck by a state worker (See App 4 Pls CompI) On June 23

2009 Belcher was driving his vehicle on or near US Route 522 Browning Fork Road near

Gilbert Mingo County West Virginia At the time Belcher was driving on Browning Fork

Road Jackson while negligently backing up a 2004 Mack 700C dump truck onto Browning

Fork Road struck Belchers vehicle in the front and side (See App 10 Accident Rep) At

the time of the collision Jackson was working for the West Virginia Department of

Transportation Division ofHighways Belcher suffered severe and pennanent injuries to his

neck and back as a result ofthe vehicle collision Additionally the vehicle struck by Jackson

was totaled Since the accident Belcher has incurred significant medical and hospital

expenses The pain and suffering and medical expenses arising from the June 23 2009

collision are expected to continue indefinitely (See App 4 PIs CompI)

At the time of the accident Petitioners were working as emergency service workers

for the West Virginia Division ofHighways (DOH) pursuant to a June 102009 Executive

Order by Governor Manchin to address the effects of a May 3 2009 flood in the Mingo

County West Virginia region (See App 1 Fonner Gov Manchins Ex Order No 12-09)

ISSUE PRESENTED

Did the Circuit Court of Mingo County err in denying Defendants Motion for

Summary Judgment and concluding that the courts decision in Pittsburgh Elevator Co v

West Virginia Board ofRegents 172 W Va 743310 SE2d 675 (1983) qualified as an

exception to the statutory immunity of West Virginia Code sect 15-5-11(a) so that Plaintiffs

suit against the Defendants could proceed

3

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

neck and back as a result ofthe vehicle collision Additionally the vehicle struck by Jackson

was totaled Since the accident Belcher has incurred significant medical and hospital

expenses The pain and suffering and medical expenses arising from the June 23 2009

collision are expected to continue indefinitely (See App 4 PIs CompI)

At the time of the accident Petitioners were working as emergency service workers

for the West Virginia Division ofHighways (DOH) pursuant to a June 102009 Executive

Order by Governor Manchin to address the effects of a May 3 2009 flood in the Mingo

County West Virginia region (See App 1 Fonner Gov Manchins Ex Order No 12-09)

ISSUE PRESENTED

Did the Circuit Court of Mingo County err in denying Defendants Motion for

Summary Judgment and concluding that the courts decision in Pittsburgh Elevator Co v

West Virginia Board ofRegents 172 W Va 743310 SE2d 675 (1983) qualified as an

exception to the statutory immunity of West Virginia Code sect 15-5-11(a) so that Plaintiffs

suit against the Defendants could proceed

3

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

SUMMARY OF THE ARGUMENT

At the time ofthe accident at issue in this case Petitioners were acting pursuant to an

Executive Order declaring a state of emergency and Petitioner Jackson was acting as an

emergency service worker PetitionersDefendants are not immune from liability and

RespondentPlaintiff is not precluded from recovering for Petitioners negligence because

their acts fall within one of the exceptions to governmental inununity set forth in West

Virginia Code sect 15-5-II(a)

Under the factual circumstances ofthis case and sect 15-5-11(a) the immunity afforded

emergency services and emergency service workers does not apply and a person is not

precluded from receiving benefits or compensation to which he or she would otherwise be

entitled under any Act of Congress or any other law W Va Code sect 15-5-11(a) One of

the long-standing state laws that affords Belcher coverage in this case is provided by the

West Virginia Supreme Court of Appeals in Pittsburgh Elevator 172 W Va 743 3lO

SE2d 675 In that case the supreme court held that lawsuits that seek recovery under and

up to the limits ofthe States liability insurance coverage fall outside of and are not impacted

by governmental immunity

As a matter oflaw the circuit court properly denied Petitioners Motion for Summary

Judgment because Belcher is seeking relief under the States liability insurance coverage and

not from state funds The circuit court correctly concluded that Belchers Complaint falls

within the exception to qualified immunity under sect 15-5-11 ( a) and that Belcher is entitled to

seek recovery against Petitioners up to the limits of the States liability insurance coverage

See App 65 78 Order Denying Motion for Summary Judgment and Order Denying Motion

4

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

to Alter or Amend Judgment The circuit courts denial of Petitioners Motion for Summary

Judgment should be affinned pursuant to West Virginia law

ARGUMENT

I THE CIRCUIT COURT DID NOT ERR IN DENYING PETITIONERS MOTION FOR SUMMARY JUDGMENT BECAUSE BELCHERS COMPLAINT FOR DAMAGES FALLS WITHIN THE EXCEPTIONS TO QUALIFIED IMMUNITY UNDER WEST VIRGINIA CODE sect 15-5shy11 (a)

A Standard Of Review For West Virginia Rule Of Civil Procedure 56 Motions

Belcher objects to Petitioners Assignment of Error (A) and contends that the circuit

court did not err in denying Petitioners Motion for Summary Judgment and Motion to Alter

or Amend Judgment

Under West Virginia law this Court reviews de novo the denial of a motion for

summary judgment Syl Pt 1 Painter v Peavy 192 W Va 189451 SE2d 755 (1994)

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 Natl Union Fire Ins Co _ W Va _ 724 SE2d 343 349

(2012) The issue presented in the instant case is whether Petitioners as emergency workers

are immune from liability for the claims brought against them by Belcher pursuant to sect 15-5shy

11(a) The ultimate detennination of whether qualified or statutory immunity bars a civil

action is one oflaw for the court to detennine Therefore unless there is a bona fide dispute

as to the foundational or historical facts that underlie the immunity detenl1ination the

5

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

ultimate questions ofstatutory or qualified immunity are ripe for summary disposition Syl

Pt 5 City ofSaint Albins v Botkins 228 W Va 393 719 SE2d 863 (2011)

The circuit court properly denied PetitionersDefendants Motion for Summary

Judgment based on West Virginia law There are no factual disputes material to the courts

legal detennination of Petitioners Motion for Summary Judgment and the courts denial of

summary judgment was proper as a matter of law The courts application of the holding in

Pittsburgh Elevator to the list of emergency worker statutory immunity exceptions under sect

15-5-11(a) was consistent with West Virginia law and the uncontested facts in this case

Under this Courts de novo standard of review the circuit courts order denying Petitioners

Motion for Swmnary Judgment and its order denying their Motion to Alter or Amend

Judgment should not be reversed or altered in any way

B Exceptions To Immunity Under West Virginia Code sect 15-5shy11(a)

It is uncontested that at the time of the vehicular accident that injured Belcher

Jackson was employed by the West Virginia Department ofHighways and was acting within

the scope ofhis employment when he struck Belchers car It is also uncontested that on the

date ofthe accident Jackson met the definition of an emergency service worker pursuant to

Governor Manchins June 10 2009 Executive Order to immediately address the severe

weather and flooding in Mingo County during the spring of2009 Under long-standing West

Virginia law however the circuit court correctly held that pursuant to West Virginia Code sect

6

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

15-5-1 I (a) these uncontested facts do not render Petitioners iImnune from liability for the

injuries suffered by Belcher when he was struck by Jackson

Specifically sect 15-5-1 I (a) states

All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions Neither the state nor any political subdivision nor any agency of the state or political subdivision nor except in cases of willful misconduct any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order rule regulation or ordinance promulgated pursuant to this article shall be liable for the death of or injury to any person or for damage to any property as a result ofsuch activity This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article chapter twenty-three of this code any Act of Congress or any other law

W Va Code sect 15-5-1 I (a) (emphasis added)

The circuit court correctly interpreted the plain meaning of this statute to allow

persons including Belcher who was injured by a state emergency worker to receive

compensation to which they would otherwise be entitled under West Virginia law

Specifically the circuit court denied Petitioners Motion for Swmnary Judgment on the

ground that sect 15-5-1 I (a) clearly provides that qualified ilmnunity does not preclude an

injured party from being compensated as allowed under the law (See App 6569-70 Order

Denying Mot Summ J) Accordingly the court recognized that West Virginia law

specifically West Virginia Code sect 29-12-5 authorizes the Board of Insurance to purchase

liability insurance on behalf of the State and that this Courts decision in Pittsburgh Elevator

excludes qualified immunity where an injured party seeks compensation from state liability

insurance coverage Id

7

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

II THE SUPREME COURTS RULING IN PITTSBURGH ELEVATOR IS APPLICABLE TO THE SCOPE OF THE QUALIFIED IMMUNITY GRANTED UNDER WEST VIRGINIA CODE sect 15-5-11

A The Circuit Court Properly Denied The Motion For Summary Judgment Pursuant To Pittsburgh Elevator

Belcher objects to Petitioners Assignment ofError (B) and states that the circuit court

properly applied this Courts decision in Pittsburgh Elevator to the facts in this case

In Pittsburgh Elevator the court applied a practical analysis of the juxtaposition

between the state constitutional inununity and the state statutes pennitting the purchase of

liability insurance for protection against negligence claims Specifically the court stated

The judgment which the plaintiff would seek in a suit against the board ofgovernors if satisfied would be paid from funds in the treasury of the state The interest of the state would be directly affected and involved in any suit to collect the claim against the board of governors with respect to funds belonging to and in the custody of the state

[City of Morgantown v Ducker] 153 WVa at 131 168 SE2d at 304 Accordingly it is reasonable to conclude that suits which seek no recovery from state funds but rather allege that recovery is sought under and up to the limits of the States liability insurance coverage fall outside the traditional constitutional bar to suits against the State Cf City ofKingsport v Lane 35 TennApp 183 243 SW2d 289 (1951) The Legislature has not by enactment of WVaCode sect 29-12-5 sought to waive the States constitutional immunity from suit Rather we read the statute as the Legislatures recognition of the fact that where recovery is sought against the States liability insurance coverage the doctrine of constitutional immunity designed to protect the public purse is simply inapplicable As this Court recently stated in Gooden v County COl11mn of Webster County 171 WVa 130 298 SE2d 103 105 (1982) Where liability insurance is present the reasons for immunity completely disappear

172 W Va at 756 310 SE2d at 688-89

8

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

The exception to both constitutional immunity and statutory qualified immunity

arising when a party seeks recovery from the state liability insurance coverage is now well

established in West Virginia law Recently in National Union Fire Insurance Co of

Pittsburgh Pennsylvania v Miller 724 SE2d at 349 the court stated that [d]espite this

grant of immunity the Legislature has created a mechanism by which injured parties can

make claims against and recover from the state This is accomplished through the states

purchase of liability insurance Id 724 SE2d at 349 Thus where suits are brought to

recover from the state liability insurance coverage the issue is not whether the injured

plaintiff is barred from recovery because of inununity but rather the scope of the liability

insurance coverage Importantly however under Pittsburgh Elevator and the cases since

that decision the injured partys claims against the state are certainly not guaranteed The

injured party still must prove that the State was negligent and that the incident and injury are

covered and compensable under the state liability policy

In the instant case the Circuit Court acknowledges that in Pittsburgh Elevator the

court was addressing constitutional immunity under West Virginia Constitution article IV sect

35 but holds that as a practical matter the Pittsburgh Elevator exception for constitutional

immunity would also apply to statutory qualified immunity (See App 65 70 Order

Denying Mot SUlmn J) This is especially true because statutory qualified immunity was

promulgated by the States constitutional immunity

Furthermore the same reasoning applies to both constitutional immunity and statutory

immunity That is suits that seek no recovery from state funds but only from the States

liability insurance coverage have no impact on the States public purse See Eggleston v W

9

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

Va Dept ofHighways 189 W Va 230429 SE2d 636 (1993) W Va Dept ofTransp

Highways Div v Madden 192 W Va 497453 SE2d 331 (1994)

In each of these cases the court carved out a broad exception to immunity for state

employees where liability insurances covers the specific negligent act at issue and the

primary justification for state immunity-the protection of public funds-is simply not

applicable There is no distinction between immunity derived from the state constitution and

immunity derived from a statute promulgated by the constitution which affects the exception

to immunity when liability insurance is directly applicable The case relied upon by

Petitioners Clarkv Dunn 195 W Va 272 465 SE2d 374 (1995) does not address any of

these issues In that case the injured party was not seeking to recover only from the state

liability insurance The case also does not concern the exception to immunity arising from

the application ofliability insurance to the negligent act at issue or to any distinction between

immunity arising under the state constitution and statutory immunity

Consistent with numerous West Virginia decisions because Belcher is properly

seeking to recover from the States liability insurer not from the state purse for the injuries

he sustained as a direct result of Petitioners negligence the immunity otherwise extended to

emergency workers under West Virginia Code sect 15-5-1 1 (a) does not apply and should not

bar Belcher from proceeding with his claim That is West Virginia law specifically

recognizes that persons like Belcher have a legal right to receive compensation under West

Virginia Code sect 29-12-5 and Pittsburgh Elevator and in such cases the immunity laws are

no longer applicable

10

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

Furthennore for claritys sake other laws in the sect 15-5-11 (a) exception to

emergency worker immunity is not limited to statutory law but must also include judicial

decisions interpreting state statutes and other laws See Erie RR v Tompkins 304 US 64

(1938) (holding that judicial decisions are laws of the states) Cohen v Ben Indus Loan

Corp 337 US 541 555 (1949) (holding that j udicial decisions are considered laws ofthe

state) State v Gen Daniel Morgan Post No 548 Veterans oForeign Wars 144 W Va

137 107 SE2d 353 (1989) (explaining the interconnection between statutory law and

judicial common law) Expansion Pointe Props LP v Procopio Cory Hargreaves amp

Savitch LLP 152 Cal App 4th 4261 Cal Rptr 3d 166 (2007) (holding that ajudicial

decision announces a new rule oflaw which cannot be applied retroactively)

The circuit court in the instant case therefore properly applied this Courts holding in

Pittsburgh Elevator to the other laws provision in sect 15-5-11(a) so as to permit Belcher to

recover up to the limit of the States liability insurance coverage for the injuries he suffered

as a direct result of being struck by Jackson while Jackson was backing up his vehicle

B The Pittsburgh Elevator Exception To Statutory Immunity Of Emergency Workers Does Not Change The Legislative Intent Of West Virginia Code sect 15-5-11(a)

Petitioners also argue in their notice for appeal that if the Pittsburgh Elevator

exception to immunity is applied to emergency workers under sect 15-5-11 (a) the legislatures

intent that emergency workers should be immune from liability when perfonning duties

under declared states of emergency will be undermined Petitioners contend that under sect

15-5-11(a) it is only in cases of willful misconduct that emergency workers may be liable

11

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

This argument fails because it does not accurately reflect the plain language of sect 15-5-11(a)

and the qualified nature of the statutory immunity extended to emergency workers

In construing a statute the court is obligated to construe the statutory language

according to its plain meaning so as to reflect the legislatures intent and to give the statute

such construction as will uphold the law Barr v NCB Mgmt Servs 227 W Va 507 711

SE2d 577 (2011) The court is required to read and apply a statute in a manner consistent

with the purpose and object ofthe States general laws Community Antenna Servo v Charter

Commcns VI LLC 227 W Va 595 712 SE2d 504 (2011) Significantly it is presumed

that a legislature that has drafted and passed a statute is keenly familiar with any existing

laws that may be applicable to the subject matter ofthe statute and intends for the statute to

hannonize with those laws Id at 604-05 712 SE2d at 513-14 Section 15-5-11 was

extensively amended in 2006 and it is presumed that at the time of the amendments the

legislature was fully aware of the Pittsburgh Elevator decision and intended injured parties

to be entitled to compensation where applicable and appropriate as allowed under that

decision

Section 15-5-11 ( a) plainly states that emergency workers may not escape shouldering

the responsibility for liability arising from malicious acts or from acts covered by the States

liability insurance The statute essentially codifies this Courts holding in Pittsburgh

Elevator by stating that the statutory immunity extended to emergency workers may not

preclude an injured party from receiving compensation or benefits otherwise available to

them Again in Pittsburgh Elevator this Court highlights the States statutory authority to

12

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

purchase liability insurance for instances like the one involving Belcher and Jackson The

court states

WVaCode sect 29-12-5 authorizes the Board of Insurance to procure liability insurance on behalf of the State and further prohibits the insurer from whom a policy has been purchased from relying upon the constitutional immunity of the State against claims or suits In light of this statutory prohibition we conclude that a suit seeking recovery against the States insurance carrier is outside the bounds of the constitutional bar to suit contained in WVa Const art VI sect 35

172 W Va at 756310 SE2d at 688

The court goes on to explain that the immunity granted to the State protects the

financial structure of the State Therefore when a suit seeks no recovery from state funds

but only impacts on the States liability insurance coverage the immunity protections are not

damaged or impacted in any way Id at 756 310 SE2d at 688-89 see also Gooden v

Webster County Commn 171 W Va 130 132298 SE2d 103 105 (1982) (Where

liability insurance is present the reasons for immunity completely disappear )

Contrary to Petitioners brief the legislatures intent to pennit injured parties to seek

state liability insurance proceeds where coverage is provided is not precluded by the courts

decision in City ofSaint Albans 228 W Va 393 719 SE2d 863 In fact Botkins is not

relevant to the issues in this case In that case the plaintiff was injured by a police officer

and sought damages for false arrest malicious prosecution and constitutional violations In

concluding that the police officer was entitled to qualified immunity the court did not

evaluate the States liability insurance coverage Instead the courts decision was based on

the application of the standards set forth by the US Supreme Court in Saucier v Katz 533

US 194 (2001) overruled 011 other grounds 555 US 223 (2009) concluding that no

13

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

constitutional violations were established by the facts or that a reasonable officer confronting

the same situation would have considered the action lawful Botkins 719 SE2d at 872

The circuit court in the instant case correctly interpreted sect 15-5-11(a) and applied the

holding and reasoning of Pittsburgh Elevator to the facts in this case and did not err in

denying Petitioners Motion for Summary Judgment Allowing Belchers claim to go forward

and pennitting him to recover for the severe and permanent injuries he sustained as a direct

and proximate result of Jacksons negligence are consistent with sect 15-5-l1(a) sect 29-12-5

and this Courts decision in Pittsburgh Elevator The circuit courts decision to deny

Petitioners Motion for Summary Judgment does not in any way comprOlnise the intentions of

the legislature in extending qualified immunity to emergency workers like Jackson Neither

the Pittsburgh Elevator decision nor the circuit courts decision in the instant case will

interrupt the important work of emergency state workers or intilnidate government workers

from fully perfonning their duties At the same time allowing a claimant to receive benefits

or compensation to which he or she would otherwise be entitled under any [law] as

provided by sect 15-5-11(a) pennits an injured party to be compensated when appropriate

Again when a claimant seeks compensation through the liability insurance coverage

he or she does not receive state funds and may be compensated only if the liability insurance

covers the claim and only up to the amount of the insurance policy To the extent that a

claim either is not covered or is for an amount in excess of the insurance limits the

emergency immunity statute precludes relief

14

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

C State Liability Insurance Exceptions To Qualified Immunity For Acts Of State Employees Including Emergency Workers Are Well Established In Other Jurisdictions

A States statutory ability to purchase liability insurance is well established in other

jurisdictions Accordingly as in Pittsburgh Elevator States commonly recognize that where

there is coverage qualified immunity should not preclude an injured party from receiving

insurance proceeds under the States liability insurance coverage even when the case

involves emergency workers In McCobb v Clayton County 309 Ga App 217 710 SE2d

207 (2011) the estate of a passenger killed as a result of a police officers high-speed chase

of the vehicle in which the decedent was riding brought a wrongful death action against a

Georgia county The appellate court reversed the lower courts grant of the Countys motion

for summary judgment on immunity grounds and held that under Georgia law the County

had waived its sovereign inullunity up to the statutory monetary limits of its liability

insurance and that the plaintiff should be pennitted to proceed for damages arising from the

county employees negligence up to the insurance policy limits Id at 222 710 SE2d at

212

Likewise in Dawes v Nash County 357 NC 442584 SE2d 760 (2003) the court

held that the comprehensive liability insurance purchased by the defendant County provided

coverage for the County for the negligent acts of its emergency medical technicians and

waived its sovereign immunity defense up to the limits of the insurance coverage See also

Wyman v Mo Dept oMental Health No WD74062 2012 WL 1164147 (WD Mo Apr

10 2012) (holding that the State waives immunity through the purchase of liability

insurance) Brewer ex rei Brewer v Indep Sch Dist No1 1993 OK 17 848 P2d 566

15

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

(holding that a political subdivision that purchases liability insurance waives its immunity to

the extent of the insurance coverage) Smith v Phillips 117 NC App 378451 SE2d 309

(1994) (holding that pursuant to statute North Carolina Counties may waive their

governmental immunity for injuries arising out of the negligent or wrongful perfonnance of

governmental functions through the purchase of liability insurance)

As the above-cited decisions demonstrate citizens ofthe State ofWest Virginia who

are unfortunately injured by the negligent acts ofstate workers-including those engaged in

emergency relief work-should be pennitted to seek relief from the state liability insurance

coverage where applicable and this right to compensation will not take away from the

important work perfonned by state emergency workers

CONCLUSION

For each of the reasons stated herein PlaintiffRespondent Joseph Wayne Belcher

respectfully requests this Court to deny Petitioners Notice of Appeal and petition for

interlocutory appeal to affinn the Order of the Circuit Court of Mingo County denying

DefendantsPetitioners Motion for Sununary Judgment and Motion to Alter or Amend

Judgment and to allow PlaintiffRespondent Belchers claims to proceed against

DefendantslPetitioners to a full and complete trial on the merits

Respectfully submitted

JOSEPH WAYNE BELCHER By Counsel

~ New1l7756) 114 Main Street

16

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

Post Office Box 5516 BechleyVVV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew17m~yahoocom

17

SUPREME COURT OF APPEALS OF WEST VIRGINIA

Docket No 12-0632

JOSEPH E JACKSON and WEST VIRGINIA DEPARTMENT OF TRANSPORTATION

DIVISION OF HIGHWAYS

DejendantsPetitiollers

vs

JOSEPH WAYNE BELCHER

PlaintiffRespolldent

CERTIFICATE OF SERVICE

I hereby certify that I caused a true and correct copy of the foregoing Respondents

Brief in Opposition to Petition for Interlocutory Appeal to be mailed first-class postage

prepaid to Gary E Pullin Esquire PULLIN FOWLER FLANAGAN BROWN amp POE

PLLC James Mark Building 901 Quarrier Street Charleston WV 25301 on this2-Lj ~y of September 2012

Post Office Box 5516 Bechley WV 25801 Telephone (304) 250-6017 Facsimile (304) 250-6012 Email snew I 7(avahoocol11 Attorney for PlaintiffRespondent Joseph Wayne Belcher