State ex rel. Grant County Commission v. Judge Nelson ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
JANUARY 2021 TERM
FILED
March 23, 2021
released at 3:00 p.m.
No. 20-0600 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL.
GRANT COUNTY COMMISSION,
Petitioner
V.
HONORABLE LYNN A. NELSON,
JUDGE OF THE CIRCUIT COURT OF GRANT COUNTY, WEST VIRGINIA;
KIMBERLY LINVILLE; ROBERT “BOB” MILVET; AND
THE BOARD OF TRUSTEES OF GRANT MEMORIAL HOSPITAL TRUST
FOUNDATION, INC.,
Respondents
________________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED
AND
Appeal from the Circuit Court of Grant County
The Honorable Lynn Nelson, Judge
Civil Action No. 20-C-8
REVERSED AND REMANDED
_________________________________________________________
Submitted: January 13, 2021
Filed: March 22, 2021
Peter G. Zurbuch G. Isaac Sponaugle, III
Jeffrey S. Zurbuch SPONAUGLE & SPONAUGLE
Busch, Zurbuch & Thompson, PLLC ATTORNEYS AT LAW
Elkins, West Virginia Franklin, West Virginia
Attorneys for Petitioner
Jane E. Peak
Allan N. Karlin & Associates, PLLC
Morgantown, West Virginia
Attorneys for Respondent,
Kimberly Linville
Wendy G. Adkins
Jackson Kelly PLLC
Morgantown, West Virginia
Justin M. Harrison
Jackson Kelly PLLC
Charleston, West Virginia
Attorneys for Respondents,
Grant Memorial Hospital and
Robert “Bob” Milvet
CHIEF JUSTICE JENKINS delivered the Opinion of the Court.
JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.
JUSTICE WOOTON concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. “A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syllabus
point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
2. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1997).
i
3. For purposes of the Whistle-Blower Law and the Human Rights Act,
a county commission, which owns a hospital pursuant to West Virginia Code section 7-3-
14, is not the employer of individuals who work at the hospital.
4. A county commission is not a health care entity under the Patient
Safety Act merely because the county commission owns a hospital pursuant to West
Virginia Code section 7-3-14 and does not otherwise provide health care services.
5. Under Rule 12 of the West Virginia Rules of Civil Procedure, a circuit
court’s denial of a motion to dismiss a complaint that is predicated on the statutory
immunity conferred by the Governmental Tort Claims and Insurance Reform Act is an
interlocutory ruling that is subject to immediate appeal under the “collateral order”
doctrine.
ii
Jenkins, Chief Justice:
The Petitioner, Grant County Commission (“the Commission”), seeks review
of an order entered by the Circuit Court of Grant County on July 29, 2020, denying the
Commission’s motion to dismiss causes of action asserted against the Commission. 1 The
instant litigation began when the Respondent, Kimberly Linville (“Ms. Linville”), filed a
complaint in which she sought to recover damages resulting from the termination of her
employment as the Chief Nursing Officer at Grant Memorial Hospital (“the Hospital”). In
response, the Commission filed a motion to dismiss the complaint wherein it argued that it
was not a proper party as it was neither Ms. Linville’s employer, nor was it a health care
entity. The Commission also asserted that it should have been afforded immunity pursuant
to the Governmental Tort Claims and Insurance Reform Act, West Virginia Code sections
29-12A-1 to -18. The motion to dismiss was denied.
In this proceeding, the Commission presents two separate questions for this
Court to decide: one is presented as a petition for writ of prohibition and the other is
presented as an appeal pursuant to the collateral order doctrine. First, the Commission
requests that this Court prohibit the circuit court from enforcing its order denying the
Commission’s motion to dismiss because “the circuit court exceeded its legitimate powers
and erred as a matter of law . . . by failing to find that the Commission was not the employer
1
Counsel for Respondents, Grant Memorial Hospital and Robert “Bob”
Milvet, filed a Summary Response in which they stated that “[c]onsistent with its position
taken below concerning the motion to dismiss,” the Hospital and CEO Milvet “do not join
or oppose” the current petition and appeal.
1
of Ms. Linville under the Whistle-Blower Law and the Human Rights Act, or [that the
Commission was not] a health care entity under the Patient Safety Act.” The Commission
also appeals from the circuit court’s order pursuant to the collateral order doctrine and
assigns as error the circuit court’s “fail[ure] to find that the Commission is immune,
pursuant to the Governmental Tort Claims and Insurance Reform Act, [from Ms.
Linville’s] claims [that the Commission committed] . . . intentional acts.”
Having considered the briefs submitted to the Court, the appendix record,
the parties’ oral arguments, and the applicable legal authority, we find that the Commission
is not the employer of Ms. Linville and therefore is an improper defendant in this case. In
denying the motion to dismiss, the circuit court committed clear legal error. Therefore, we
grant the requested writ of prohibition. We further find that the circuit court erred by not
affording the Commission immunity from Ms. Linville’s intentional tort claim, and so we
reverse the circuit court’s order.
I.
FACTUAL AND PROCEDURAL HISTORY
The Hospital is a not-for-profit hospital located in Petersburg, Grant County,
West Virginia. Pursuant to West Virginia Code sections 7-3-14 (eff. 1981) and 7-3-15 (eff.
1986), the Hospital is owned by the Commission and operated by a Board of Trustees. 2
2
West Virginia Code section 7-3-14 provides, in part, that the “commission
of any county is hereby authorized and empowered to acquire by purchase or construction
2
Ms. Linville was hired by the Hospital in 1997, and then, in 2011, she became the Chief
Nursing Officer. As the Chief Nursing Officer, she had direct oversight of six nursing
units, as well as the lab, radiology, and therapy departments. Ms. Linville reported to the
Chief Executive Officer (“CEO”) of the Hospital. On August 29, 2018, the Respondent
Robert “Bob” Milvet (“CEO Milvet”) was hired as the Hospital’s new CEO.
During the time that Ms. Linville worked with CEO Milvet she frequently
expressed to her superiors her concerns regarding his behavior within the hospital.
Specifically, Ms. Linville alleges that CEO Milvet’s actions were harassing and
inappropriate and created a hostile working environment. Further, she contends that CEO
Milvet engaged in an improper relationship with an employee, and that this relationship
was having an adverse effect on employees of the Hospital, as well as on patient safety.
Ms. Linville further made complaints to CEO Milvet and the Chief Financial Officer about
“how finances were being handled at [the Hospital] after cash flow issues caused bills not
to be paid and a vendor to hold up delivery of needed medical supplies.” She also claims
that she expressed concerns about CEO Milvet’s alleged treatment of other employees and
was critical of his actions outside of the workplace. Ms. Linville contends that CEO Milvet
terminated her employment at the Hospital in retaliation for her complaints.
and to thereafter own, equip, furnish, operate, lease, improve and extend a public hospital,
clinic, long-term care facility and other related facilities, with all appurtenances, including
the necessary real estate as a site therefor.” Further, West Virginia Code section 7-3-15
provides that the “administration and management of any county hospital . . . shall be
vested in a board of trustees.”
3
Ms. Linville filed a complaint on April 27, 2020, in which she sought to
recover damages resulting from the termination of her employment. In the complaint, she
named three defendants: CEO Milvet; the Board of Trustees of Grant Memorial Hospital
Trust Foundation, Inc., otherwise known as Grant Memorial Hospital (“the Hospital”); and
the Commission. Ms. Linville asserted four causes of action against these defendants:
(1) discrimination and/or retaliation brought pursuant to the Whistle-Blower Law, West
Virginia Code sections 6C-1-1 to -8; (2) retaliation brought pursuant to the Human Rights
Act, West Virginia Code sections 5-11-1 to -20; (3) discrimination and/or retaliation
brought pursuant to the Patient Safety Act, West Virginia Code sections 16-39-1 to -7; and
(4) intentional infliction of emotional distress.
On May 18, 2020, the Commission filed a motion to dismiss the complaint.
Pertaining to the first two counts of the complaint, the Commission argued that it could not
be liable to Ms. Linville under the Whistle-Blower Law or Human Rights Act because it
was not the employer of Ms. Linville, as that term is defined in both statutes. Similarly,
the Commission also sought dismissal of the Patient Safety Act count on the basis that it
was not a health care entity as defined by that Act. Lastly, the Commission argued that it
was immune from Ms. Linville’s intentional tort claims under the Governmental Tort
Claims and Insurance Reform Act, West Virginia Code sections 29-12A-1 to -18.
On July 9, 2020, a hearing on the motion to dismiss was held before the
circuit court. Ms. Linville did not file a response in opposition. Upon consideration of the
4
arguments of counsel, the circuit court denied the motion in an order dated July 29, 2020.
This petition for writ of prohibition and appeal followed.
II.
STANDARD OF REVIEW
This case presents a combined petition for writ of prohibition under this
Court’s original jurisdiction and appeal pursuant to the collateral order doctrine seeking
review of the circuit court’s order denying the Commission’s motion to dismiss Ms.
Linville’s complaint. These two distinct proceedings require different standards of review.
Accordingly, we will discuss the standard of review in conjunction with our discussion of
each proceeding.
III.
DISCUSSION
We first will address the petition for writ of prohibition and then we will
address the appeal. All of the issues raised by the Commission, however, pertain to the
circuit court’s interpretation and application of statutory law. Therefore, our decision of
this case is guided by the rules of statutory construction. When examining a statute to
determine its meaning, this Court held that “[t]he primary object in construing a statute is
to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State
Workmen's Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Further, “[a] statutory
provision which is clear and unambiguous and plainly expresses the legislative intent will
5
not be interpreted by the courts but will be given full force and effect.” Syl. pt. 2, State v.
Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accordingly, with these standards in
mind, we now address the Commission’s first request for relief: a petition for writ of
prohibition.
A. Writ of Prohibition
The Commission seeks an extraordinary writ because it contends the Circuit
Court of Grant County committed clear legal error in denying its motion to dismiss. In
Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425(1977), we held that “[a] writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” When a
trial court is not acting in excess of its jurisdiction, this Court will, in the exercise of its
discretion, use prohibition
to correct only substantial, clear-cut, legal errors plainly in
contravention of a clear statutory, constitutional, or common
law mandate which may be resolved independently of any
disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error
is not corrected in advance.
Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by
statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va.
564, 759 S.E.2d 795 (2014).
6
When considering a petition for writ of prohibition, this Court is guided by
the following:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors:
(1) whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief;
(2) whether the petitioner will be damaged or prejudiced in a
way that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law;
(4) whether the lower tribunal’s order is an oft repeated error
or manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). “In
determining the third factor, the existence of clear error as a matter of law, we will employ
a de novo standard of review, as in matters in which purely legal issues are at issue.” State
ex rel. Gessler v. Mazzone, 212 W. Va. 368, 372, 572 S.E.2d 891, 895 (2002). With these
standards in mind, we now examine the Commission’s request for a writ of prohibition.
The Commission maintains that it is an improper defendant because it was
not Ms. Linville’s employer and it was not a health care entity as those terms are defined
in the statutes at issue. The Commission avers that it only owns the Hospital and that the
Hospital is a public corporation. As such, the Commission contends that the Hospital’s
7
Board of Trustees was vested with the right to hire and terminate hospital employees, and
it was the Board of Trustees, not the Commission, that was Ms. Linville’s employer.
Therefore, the Commission argues that the Whistle-Blower Law and the Human Rights
Act claims against it must be dismissed. Similarly, the Commission asserts that it is not a
health care entity and therefore, it is not subject to the Patient Safety Act. Accordingly,
the Commission argues that this claim should have been dismissed as well.
Ms. Linville responds to this argument and contends that the Commission
can be held vicariously liable for the actions of the Hospital and CEO Milvet pursuant to
agency law. More specifically, Ms. Linville argues that because the Commission created
the Hospital and has exclusive appointment power of the Hospital’s Board of Trustees,
then the Commission is the principal to its agents, namely, the Board of Trustees and CEO
Milvet.
1. Violation of the Whistle-Blower Law and Human Rights Act. The
Commission first asserts that the circuit court should have dismissed Ms. Linville’s
complaint because the Commission was not her employer, as defined in both the Whistle-
Blower Law and Human Rights Act, and her claims under those statutes were improperly
asserted. The Whistle-Blower Law makes it unlawful for an employer to retaliate against
8
an employee for making a report of wrongdoing by his or her supervisor. West Virginia
Code section 6C-1-3(a) (eff. 1988) 3 provides that
[n]o employer may discharge, threaten, or otherwise
discriminate or retaliate against an employee by changing the
employee’s compensation, terms, conditions, location, or
privileges of employment because the employee, acting on his
own volition, or a person acting on behalf of or under the
direction of the employee, makes a good faith report or is about
to report, verbally or in writing, to the employer or appropriate
authority an instance of wrongdoing or waste.
Further, the Whistle-Blower Law defines “employer” as “a person supervising one or more
employees, including the employee in question, a superior of that supervisor, or an agent
of a public body.” W. Va. Code § 6C-1-2(c) (eff. 1988).
Similarly, the Human Rights Act also makes it unlawful for an employer to
discriminate or retaliate against employees regarding their employment opportunities. See
W. Va. Code § 5-11-9(1) (eff. 2016) (“It shall be an unlawful discriminatory practice,
unless based upon a bona fide occupational qualification, or except where based upon
applicable security regulations established by the United States or the State of West
Virginia or its agencies or political subdivisions . . . [f]or any employer to discriminate
against an individual with respect to compensation, hire, tenure, terms, conditions or
privileges of employment if the individual is able and competent to perform the services
required even if such individual is blind or disabled.”). The Human Rights Act defines
3
West Virginia Code section 6C-1-3 was amended by the Legislature in
2020, but no changes were made that affect this Opinion.
9
“employer” as the “state, or any political subdivision thereof, and any person employing
twelve or more persons within the state for twenty or more calendar weeks in the calendar
year in which the act of discrimination allegedly took place or the preceding calendar year.”
W. Va. Code § 5-11-3(d) (eff. 1998).
Here, in denying the Commission’s motion to dismiss, the circuit court
reasoned that the Commission could be held vicariously liable for the conduct of the
Hospital and CEO Milvet by virtue of the fact that the Commission created and owns the
Hospital pursuant to West Virginia Code section 7-3-14, and has appointment power of the
Hospital’s Board of Trustees pursuant to West Virginia Code section 7-3-15. We disagree.
This Court has stated that “[i]t is always incumbent upon one who asserts
vicarious liability to make a prima facia showing of the existence of the relation of master
and servant or principal and agent or employer and employee.” Sanders v. Georgia-Pacific
Corp., 159 W. Va. 621, 225 S.E.2d. 218, 222 (1976). In the instant case, Ms. Linville fails
to make a prima facie showing. To support her vicarious liability argument, Ms. Linville
provides nothing more than a conclusory statement that the Commission was the
“principal” to its “agent,” the Hospital and/or the Board of Trustees, because it “is the head
legal governing body that is statutor[ily] bound to appoint and issue revenue bonds for the
legal entity of [the Hospital].” See W. Va. Code § 7-3-14 (authorizes county commissions
to issue revenue bonds). These statutes do not, however, grant the Commission any control
over the employment practices of the Hospital or Board of Trustees. Instead, West Virginia
10
Code section 7-3-15 vests all employment, administration, and management decisions in
the Board of Trustees. Therefore, Ms. Linville has not demonstrated the existence of an
alleged principal-agent relationship between the Commission and the Board of Trustees
and CEO, and therefore, her vicarious liability argument must fail.
By statute, the Commission—although owning the Hospital—is not the
employer of Ms. Linville. Pursuant to West Virginia Code section 7-3-14, county
commissions are “authorized and empowered to acquire by purchase or construction and
to thereafter own, equip, furnish, operate, lease, improve and extend a public hospital,
clinic, long-term care facility and other related facilities, with all appurtenances, including
the necessary real estate as a site therefor.” (Emphasis added). However, the
administration and management of a county public hospital, including decisions regarding
the employment of hospital employees, is vested with a board of trustees.
The administration and management of any county
public hospital, clinic, long-term care facility or other related
facility acquired, equipped, furnished, improved or extended
under section fourteen of this article shall be vested in a board
of trustees, consisting of not less than five members appointed
by the county [commission]. . . .
Such board of trustees shall provide for the employment
of and shall fix the compensation for and remove at pleasure
all professional, technical and other employees, skilled or
unskilled, as it may deem necessary for the operation and
maintenance of the hospital, clinic, long-term care facility or
other related facility; and disbursement of funds in such
operation and maintenance shall be made only upon order and
approval of such board. The board of trustees shall make all
rules and regulations governing its meetings and the operation
11
of the hospital, clinic, long-term care facility or other related
facility.
W. Va. Code § 7-3-15 (emphasis added). Further, this Court has stated that public hospitals
created pursuant to West Virginia Code sections 7-3-14 and 7-3-15 are public corporations
created for the benefit of the county and its citizens. See generally Shaffer v. Monongalia
Gen. Hosp., 135 W. Va. 163, 62 S.E.2d 795 (1950).
As stated above, while the Commission has the power to acquire, construct,
and own a hospital, this State’s law is clear that the administration and management of a
county public hospital is vested with a hospital board of trustees, not a county commission.
Moreover, such hospital administration and management authority also specifically
includes the power to make employment decisions regarding the hospital’s employees.
Therefore, as established by West Virginia Code sections 7-3-14 and 7-3-15, the
Commission has no authority to make decisions regarding the Hospital’s employees and,
thus, is not the employer of Ms. Linville. 4 Therefore, for purposes of the Whistle-Blower
4
As we noted above, the Commission does not meet the definition of
employer as defined in the Whistle-Blower Law or the Human Rights Act. However, we
also acknowledge that, in addition to the employer liability set forth in West Virginia Code
section 5-11-9, the Act also contains a provision at West Virginia Code section 5-11-9(7),
listing the following unlawful discriminatory practices:
(7) For any person, employer, employment agency, labor
organization, owner, real estate broker, real estate salesman or
financial institution to:
(A) Engage in any form of threats or reprisal, or to
engage in, or hire, or conspire with others to commit acts or
activities of any nature, the purpose of which is to harass,
12
Law and the Human Rights Act, we hold that a county commission, which owns a hospital
pursuant to West Virginia Code section 7-3-14, is not the employer of individuals who
work at the hospital. 5 Thus, in the case sub judice, pursuant to West Virginia Code sections
degrade, embarrass or cause physical harm or economic loss or
to aid, abet, incite, compel or coerce any person to engage in
any of the unlawful discriminatory practices defined in this
section;
(B) Willfully obstruct or prevent any person from
complying with the provisions of this article, or to resist,
prevent, impede or interfere with the commission or any of its
members or representatives in the performance of a duty under
this article; or
(C) Engage in any form of reprisal or otherwise
discriminate against any person because he or she has opposed
any practices or acts forbidden under this article or because he
or she has filed a complaint, testified or assisted in any
proceeding under this article.
Under the Human Rights Act, a “person” is defined as “one or more
individuals, partnerships, associations, organizations, corporations, labor organizations,
cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other
organized groups of persons.” W. Va. Code § 5-11-3(a).
In the case sub judice, despite briefly mentioning the “person” designation in
her complaint, Ms. Linville failed to argue that even if not a statutory “employer,” the
Commission is nonetheless a “person” subject to liability under the Act. Therefore, any
such argument is deemed waived. See Syl. pt. 6, Addair v. Bryant, 168 W. Va. 306, 284
S.E.2d 374 (1981) (“Assignments of error that are not argued in the briefs on appeal may
be deemed by this Court to be waived.”). However, even assuming, arguendo, that the
Commission definitionally qualifies as a “person” under the Act—an issue which this
Court does not reach—it is clear that the retaliation alleged with respect to the Commission
in Ms. Linville’s complaint constitutes an intentional act from which a political subdivision
is immune under the Tort Claims Act. See Subsection B., infra.
This opinion should not be construed to imply that county commissions are
5
immune or exempt from liability under the Whistle-Blower Law or the Human Rights Act
13
7-3-14 and 7-3-15, and the specific facts of this case, the Commission is not Ms. Linville’s
employer and therefore, is not subject to these statutes in the instant matter.
Because the Whistle-Blower Law and the Human Rights Act vest an
employee with the right to file claims against his or her employer for violations of these
provisions, and because the Commission is not Ms. Linville’s employer, the circuit court’s
denial of the Commission’s motion to dismiss on the grounds that such claims were
improperly asserted against it because it was not Ms. Linville’s employer was clearly
erroneous. Additionally, the circuit court further erred because Ms. Linville failed to put
forth a prima facie showing that a principal-agent relationship existed between the
Commission and the Board of Trustees and CEO. Therefore, Ms. Linville cannot sustain
a vicarious liability argument against the Commission.
2. Violations of the Patient Safety Act. The Commission also argues that
the circuit court should have dismissed Ms. Linville’s complaint because the Commission
is not a health care entity, and, thus, Ms. Linville’s Patient Safety Act claim was improperly
asserted against the Commission. The Patient Safety Act was established to prohibit
discrimination and retaliation against a health care worker who makes a “good faith report,
or [who are] about to report, verbally or in writing, to the health care entity or appropriate
in all circumstances. In the current case, because the Commission is not the employer of
the employee making claims, it cannot be held liable under these facts.
14
authority an instance of wrongdoing or waste.” W. Va. Code § 16-39-4 (eff. 2001). The
Act also provides that
[a]ny health care worker who believes that he or she has been
retaliated or discriminated against in violation of section four
of this article may file a civil action in any court of competent
jurisdiction against the health care entity and the person
believed to have violated section four of this article.
Id. at § 16-39-6(a) (eff. 2001) (emphasis added). A health care entity is defined as “a health
care facility, such as a hospital, clinic, nursing facility, or other provider of health care
services.” Id. at § 16-39-3(6) (eff. 2001).
In the case sub judice, Ms. Linville’s complaint failed to demonstrate that the
Commission was a health care entity as defined in the Patient Safety Act because the
complaint failed to allege or establish that the Commission was providing “health care
services.” The Patient Safety Act allows Ms. Linville, a health care worker and an
employee of the Hospital, to file a civil action against a health care entity, not against a
county commission that does not provide “health care services.” Id. This Court now holds
that, a county commission is not a health care entity under the Patient Safety Act merely
because the county commission owns a hospital pursuant to West Virginia Code section 7-
3-14 and does not otherwise provide health care services. As such, because it is not a
health care entity and does not otherwise provide health care services, the Commission
cannot be held liable to Ms. Linville for her claims under the Patient Safety Act, and the
circuit court’s denial of the Commission’s motion to dismiss on this basis was clearly
erroneous.
15
B. Appeal Pursuant to the Collateral Order Doctrine
Although the Commission primarily seeks extraordinary relief from this
Court, the Commission also appeals from the circuit court’s order pursuant to the collateral
order doctrine. In this regard, the Commission argues that the circuit court erred by
denying its motion to dismiss Ms. Linville’s claim against it for intentional infliction of
emotional distress, contending that it is immune from liability pursuant to the
Governmental Tort Claims and Insurance Reform Act, West Virginia Code sections 29-
12A-1 to -18 (“Tort Claims Act”). Further, the Commission asserts that there are no claims
of negligence that could potentially survive this grant of immunity afforded to it.
We have held that “[u]nder W. Va. Code, 58-5-1 [1998], appeals only may
be taken from final decisions of a circuit court. A case is final only when it terminates the
litigation between the parties on the merits of the case and leaves nothing to be done but to
enforce by execution what has been determined.” Syl. pt. 3, James M.B. v. Carolyn M., 193
W. Va. 289, 456 S.E.2d 16 (1995). However, this Court also has recognized exceptions to
this rule. One
exception [to the rule of finality] referred to as the “collateral
order” doctrine, which was established by the United States
Supreme Court in Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541, 69 S. Ct. 1221, 93 L.Ed. 1528 (1949), may be
applied to allow appeal of an interlocutory order when three
factors are met: “An interlocutory order would be subject to
appeal under [the collateral order] doctrine if it (1)
conclusively determines the disputed controversy, (2) resolves
an important issue completely separate from the merits of the
action, and (3) is effectively unreviewable on appeal from a
final judgment.” Durm v. Heck’s, Inc., 184 W. Va. 562, 566
16
n.2, 401 S.E.2d 908, 912 n. 2 (1991) (internal quotations and
citation omitted). See also Robinson v Pack, 223 W. Va. 828,
679 S.E.2d 660[(2009)] (applying three-part collateral order
doctrine to circuit court’s denial of summary judgment on issue
of qualified immunity and finding order immediately
appealable).
Credit Acceptance Corp. v. Front, 231 W. Va. 518, 523, 745 S.E.2d 556, 561 (2013). This
Court has previously determined that the denial of a motion to dismiss based on qualified
immunity is immediately appealable. See Syl. pt. 1, W. Va. Bd. of Ed. v. Marple, 236
W. Va. 654. 783 S.E.2d 75 (2015) (“A circuit court’s denial of a motion to dismiss that is
predicated on qualified immunity is an interlocutory ruling which is subject to immediate
appeal under the ‘collateral order’ doctrine.”).
However, we have not made this determination with respect to statutory
immunity. See, e.g., Coleman v. Sopher, 194 W. Va. 90, 96 n.7, 459 S.E.2d 367, 373 n.7
(1995) (“Although the issue of statutory immunity could conceivably qualify [for
immediate appeal under the collateral order doctrine], we are reluctant to invoke this
doctrine in a case where there has been no request to do so and in light of our ironclad rule
against piecemeal appeals.”). Because the Commission has specifically requested it in the
case sub judice, we will proceed to analyze the elements required for application of the
collateral order doctrine in the context of statutory immunity.
Under the first factor of the collateral order doctrine, the ruling at issue must
be conclusive. Here, we have the denial of a motion to dismiss where the Commission
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asserted its statutorily immune from suit. Because a ruling denying the availability of
statutory immunity fully resolves the issue of a litigant’s obligation to participate in the
litigation, the first factor is easily met.
The second prong asks us to determine whether the court’s ruling resolves a
significant issue separate from the merits. This Court found in Robinson that “qualified
immunity is a pure legal determination that is made independent of the plaintiff’s
averments.” 223 W. Va. at 833, 679 S.E.2d at 665. In the case sub judice, it is clear that
examining the issue of immunity is separate from analyzing the merits of Ms. Linville’s
claims. Therefore, the second prong is met.
Finally, the third factor of the collateral order doctrine requires this Court to
examine whether the lower court’s ruling, regarding the Commission’s claim of statutory
immunity, is effectively unreviewable on appeal. With respect to a lower court’s immunity
ruling, we have said that
[p]ostponing review of a ruling denying immunity to the post-
trial stage is fruitless, as the United States Supreme Court
reasoned in Mitchell, because the underlying objective in any
immunity determination (absolute or qualified) is immunity
from suit. 472 U.S. at 526-27, 105 S. Ct. 2806[, 86 L. Ed. 2d
411]; see also Gray-Hopkins v. Prince George’s County,
Md., 309 F.3d 224, 229 (4th Cir. 2002) (“Because qualified
immunity is an immunity from having to litigate, as contrasted
with an immunity from liability, it is effectively lost if a case
is erroneously permitted to go to trial.”) (omitting internal
citation); Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.
1997) (observing that denial of qualified immunity defense
“subjects the [government] official to the burdens of pretrial
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matters” and opining that “some of the rights inherent in a
qualified immunity defense are [consequently] lost”).
Traditional appellate review of a qualified immunity ruling
cannot achieve the intended goal of an immunity ruling: “the
right not to be subject to the burden of trial.” Hutchison, 198
W. Va. at 148, 479 S.E.2d at 658.
Robinson, 223 W. Va. at 834, 679 S.E.2d at 665. In this case, the claim of immunity
asserted by the Commission is immunity from suit pursuant to the Tort Claims Act. As is
clear from our decision in Robinson, the third factor of the collateral order doctrine is easily
met herein based upon our caselaw finding that similar immunity determinations are
effectively unreviewable on appeal. See id. at 149 n.13, 479 S.E.2d 649 at 659 n.13 (“An
assertion of qualified or absolute immunity should be heard and resolved prior to any trial
because, if the claim of immunity is proper and valid, the very thing from which the
defendant is immune—a trial—will absent a pretrial ruling occur and cannot be remedied
by a later appeal.”).
Based on the foregoing analysis, we now hold that under Rule 12 of the West
Virginia Rules of Civil Procedure, a circuit court’s denial of a motion to dismiss a
complaint that is predicated on the statutory immunity conferred by the Governmental Tort
Claims and Insurance Reform Act is an interlocutory ruling that is subject to immediate
appeal under the “collateral order” doctrine. Accordingly, the Commission’s appeal from
the circuit court’s order denying its claim of immunity under the Tort Claims Act is
properly before this Court. As such, we will proceed to determine whether the circuit court
erred in denying the Commission’s motion to dismiss on the issue of statutory immunity.
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Here, the Commission contends that it is immune, pursuant to the Tort
Claims Act, for claims of intentional acts including discrimination, retaliation, and
wrongful termination of Ms. Linville by CEO Milvet and the Hospital. Ms. Linville
acknowledges that the Commission can assert protections under the Tort Claims Act;
however, she argues that this provision does not destroy the principal-agent relationship
between the Commission and the Hospital and CEO Milvet. As such, Ms. Linville
contends that, despite its immunity, the Commission can still be found vicariously liable
for the intentional acts of the Hospital and CEO Milvet.
“Immunities under West Virginia law are more than a defense to a suit in that
they grant governmental bodies and public officials the right not to be subject to the burden
of trial at all.” Hutchison v. City of Huntington, 198 W. Va. 139, 148, 479 S.E.2d 649, 658
(1996). Pursuant to the Tort Claims Act’s definitions, the Commission is a “political
subdivision” within the meaning of the Act. See W. Va. Code § 29-12A-3(c) (eff. 1986)
(defining “political subdivision” as including “any county commission”). Furthermore,
West Virginia Code section 29-12A-4(b)(1) (eff. 1986) grants immunity from suit to
political subdivisions, such as the Commission, and strips it only in certain enumerated
circumstances as contained in West Virginia Code section 29-12-4(c)(1):
Except as provided in subsection (c) of this section, a political
subdivision is not liable in damages in a civil action for injury,
death, or loss to persons or property allegedly caused by any
act or omission of the political subdivision or an employee of
the political subdivision in connection with a governmental or
proprietary function: Provided, That this article shall not
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restrict the availability of mandamus, injunction, prohibition,
and other extraordinary remedies.
As further clarified in Zirkle v. Elkins Road Public Service District., 221 W. Va. 409, 414,
655 S.E.2d 155, 160 (2007) (per curiam), “[o]nly claims of negligence specified in W. Va.
Code § 29-12A-4(c) can survive immunity from liability under the general grant of
immunity in W. Va. Code § 29-12A-4(b)(1).”
The specific cause of action in this appeal is an allegation of intentional
infliction of emotional distress. This Court has recognized that in creating the general grant
of immunity contained in West Virginia Code section 29-12A-(4)(b)(l) “the Legislature
did not distinguish between intentional or unintentional acts, but instead used the term
‘any’ as an adjective modifying ‘act or omission.’” Zirkle, 221 W. Va. at 414, 655 S.E.2d
at 160. This Court has stated that, while political subdivisions may be liable for certain
claims for negligence, “claims of intentional and malicious acts are included in the general
grant of immunity in W. Va. Code § 29-12A-4(b)(l).” Zirkle, 221 W. Va. at 414, 655
S.E.2d at 160. Accord Mallamo v. Town of Rivesville, 197 W. Va. 616, 477 S.E.2d 525(1996) (finding town had no liability where police chief allegedly committed conspiracy
because conspiracy is an intentional act, not a negligent one).
Accordingly, we conclude that the Commission is entitled to immunity under
the Tort Claims Act for Ms. Linville’s claim of intentional infliction of emotional distress,
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given the immunity afforded to political subdivisions. As such, the Commission’s motion
to dismiss should have been granted, and the circuit court erred by ruling to the contrary.
IV.
CONCLUSION
For the reasons set forth above, we conclude that the Circuit Court of Grant
County clearly erred when it denied the Commission’s motion to dismiss Ms. Linville’s
complaint because the Commission is not a proper defendant to the statutory claims
asserted by Ms. Linville. Therefore, we grant the requested writ of prohibition.
Furthermore, we conclude that the Commission is immune from suit for Ms. Linville’s
intentional tort claim, and because the circuit court erred in ruling otherwise, the order
must be reversed. In summary, we grant the requested writ and reverse the circuit court’s
July 29, 2020 order, and remand the case for entry of an order dismissing Ms. Linville’s
causes of action against the Commission.
Writ granted.
Reversed and remanded.
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