Edward S., Administrator of the Estates of T.S. and A.K., Edward S. and Rachel K., Individually and as Next Friends of J.K. v. Raleigh County Housing Authority ( 2023 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2023 Term June 8, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 21-0888
EDWARD S., ADMINISTRATOR OF THE ESTATES OF T.S. AND A.K., EDWARD
S. AND RACHEL K., INDIVIDUALLY AND AS NEXT FRIENDS OF J.K.,
Plaintiffs Below, Petitioners,
v.
RALEIGH COUNTY HOUSING AUTHORITY,
Defendant Below, Respondent.
Appeal from the Circuit Court of Summers County
The Honorable Robert Irons, Judge
Case No. CC-45-2019-C-20
REVERSED AND REMANDED
Submitted: May 9, 2023
Filed: June 8, 2023
W. Mark Burnette, Esq. Jared C. Underwood, Esq.
MARK BURNETTE, P.A. Chip E. Williams, Esq.
Ocala, Florida Pullin, Fowler, Flanagan, Brown & Poe, PLLC
Beckley, West Virginia
Jeffrey S. Rodgers, Esq. Counsel for Respondent
Lewisburg, West Virginia
Counsel for Petitioners
CHIEF JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE WOOTON disqualified.
HONORABLE JOSHUA D. BUTCHER, JUDGE, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.”
Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. “The ultimate determination of whether qualified or statutory
immunity bars a civil action is one of law for the court to determine. Therefore, unless there
is a bona fide dispute as to the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified immunity are ripe for
summary disposition.” Syllabus Point 1, Hutchison v. City of Huntington, 198 W. Va. 139,
479 S.E.2d 649 (1996).
3. “‘In the absence of an insurance contract waiving the defense, the
doctrine of qualified or official immunity bars a claim of mere negligence against a State
agency not within the purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va.Code § 29–12A–1 et seq., and against an officer of that
department acting within the scope of his or her employment, with respect to the
discretionary judgments, decisions, and actions of the officer.’ Syl. Pt. 6, Clark v. Dunn,
195 W.Va. 272, 465 S.E.2d 374 (1995).” Syllabus Point 7, West Virginia Regional Jail
and Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
4. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
i
force and effect.” Syllabus Point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488(1951).
5. “Where the language of a statute is free from ambiguity, its plain
meaning is to be accepted and applied without resort to interpretation.” Syllabus Point 2,
Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
6. The Raleigh County Housing Authority is a “political subdivision,”
as that term is defined in West Virginia Code § 29-12A-3(c) (1986).
ii
WALKER, Chief Justice:
Two children died in a house fire in Summers County in 2019; their father,
Edward S., and sibling were seriously injured in the fire. The family had rented the house
with assistance from the Raleigh County Housing Authority. After Edward S. 1 sued for
the wrongful deaths of the children and negligence, RCHA claimed immunity from liability
under the Governmental Tort Claims and Insurance Reform Act, West Virginia Code §§
29-12A-1 to 18 (Tort Claims Act or Act) and immunity from suit under the common law.
The circuit court concluded RCHA was not a “political subdivision,” meaning that the Tort
Claims Act did not apply to this case; but the court granted summary judgment to RCHA
on qualified immunity grounds. To the contrary, we hold that RCHA is a “political
subdivision” as defined in the Tort Claims Act. So, the circuit court erred when it
concluded otherwise. And, for that reason, we reverse the order granting summary
judgment to RCHA and remand to the circuit court for further proceedings consistent with
this Opinion.
I. FACTUAL AND PROCEDURAL HISTORY
Edward S. and Rachel K. lived in a rental house with their three children in
Hinton, West Virginia. The family’s rent was subsidized with a Section 8 housing voucher
they obtained through RCHA, and which was funded by the U.S. Department of Housing
1
We use initials where necessary to protect the identities of those involved in this
case. See W. Va. R. App. P. 40(e).
1
and Urban Development. The house caught fire on May 11, 2019. Two children, T.S. and
A.K., died in the fire. A third child, J.K., and Edward S. were seriously injured.
Edward S. sued RCHA and the putative owners of the rental house as
administrator of the decedents’ estates, next friend and guardian to J.K., and on his own
behalf in July 2019. Rachel K. was also a named plaintiff, on her own behalf and as next
friend and guardian to J.K. Edward S. alleged that the owners of the rental house knew
that the house’s wiring was unsafe and that it lacked sufficient smoke and carbon monoxide
detectors. Edward S. also alleged that RCHA inspected the house several times—
improperly—and knew of deficiencies but did little to ensure the house was “safe and
decent.” Edward S. alleged two counts of wrongful death and one count of negligence
against all defendants. In its answer, RCHA asserted immunity from suit under the Tort
Claims Act, plus any other common law immunities that might otherwise apply.
RCHA moved for summary judgment in April 2020. It argued that it was a
“political subdivision” 2 shielded from liability for claims arising out of its “inspection
powers or functions” under the Tort Claims Act. 3 RCHA also argued that it did not owe a
legal duty to the plaintiffs.
2
See W. Va. Code § 29-12A-3(c) (1986).
3
See id. § 29-12A-5(a)(10) (1986).
2
In August 2020, Edward S. moved to amend his complaint to include more
detailed allegations about RCHA, its employees, and its operations. Edward S. claimed
that RCHA did not employ enough inspectors to inspect its Section 8 clients’ units to ensure
that they met housing quality standards set by HUD. He claimed that RCHA did not
adequately train or supervise the few inspectors that it did employ. He also claimed that
his rental house was improperly inspected five times before the 2019 fire. Edward S.
restated the wrongful death claims and negligence claim against all defendants and added
claims of negligent training and negligent supervision against RCHA. 4
Edward S. responded to RCHA’s motion for summary judgment in
September 2020 and argued that housing authorities like RCHA are not political
subdivisions immunized from liability for certain claims and losses under the Tort Claims
Act. He argued in the alternative that even if RCHA was a political subdivision, his claims
entailed more than flawed inspections, so RCHA was not immunized from liability by the
Act. Finally, Edward S. asserted that RCHA owed him, his children, and Rachel K. a duty
to provide a safe home.
RCHA filed a renewed motion for summary judgment in March 2021. There,
it reiterated its argument that it was a “political subdivision,” as defined in the Tort Claims
Act, and shielded from liability for claims arising from its inspection powers or functions.
4
All defendants other than RCHA have since settled Edward S.’s claims.
3
RCHA also made a new argument: that if the circuit court concluded that it was not a
political subdivision which the Tort Claims Act immunized from liability for claims arising
from its inspection powers or functions, then it was a “governmental agency” and
qualifiedly immune from suits for mere negligence. And, according to RCHA, if the circuit
court concluded that “certain claims asserted by [Edward S. did] not fall under the [Tort
Claims Act], then [RCHA] would be entitled to qualified immunity with regard to those
specific claims.” 5
Edward S. responded and restated his argument that the Tort Claims Act did
not apply to RCHA. As to qualified immunity, Edward S. argued that (1) RCHA was not
a “State agency” entitled to common law, qualified immunity; (2) RCHA’s alleged
negligence (and that of its non-party employees) related to ministerial duties, not
discretionary functions; and (3) RCHA violated clearly established constitutional and/or
statutory rights of which a reasonable official would have known. Finally, Edward S.
argued that RCHA did, in fact, owe a legal duty to him, his children, and Rachel K. 6
5
RCHA also argued that even if it did owe Edward S., his children, and Rachel K.
a duty to inspect their rental unit and to provide safe and sanitary housing, inspecting is a
discretionary function. So, RCHA argued, it was immune from Edward S.’s negligence
claims because he had not established that any alleged failing in its inspection process
violated clearly established statutory or constitutional rights or laws of which a reasonable
person would have known.
The circuit court heard argument on RCHA’s renewed motion for summary
6
judgment on June 4, 2021.
4
The circuit court granted RCHA’s renewed motion for summary judgment in
October 2021. To structure its analysis of RCHA’s immunity defenses, the court relied on
our recent decision in West Virginia Regional Jail & Correctional Facility Authority v.
Estate of Grove. 7 In Grove, we stated that,
whenever a defendant raises the issue of qualified immunity in
a motion to dismiss, the circuit court must look to our qualified
immunity body of law and follow the steps this Court expressly
has outlined to make the determination of whether qualified
immunity applies under the specific circumstances of that
particular case. Specifically, these steps include whether: (1) a
state agency or employee is involved; (2) there is an insurance
contract waiving the defense of qualified immunity; (3) the
West Virginia Governmental Tort Claims and Insurance
Reform Act, W. Va. Code § 29-12A-1 et seq. would apply; (4)
the matter involves discretionary judgments, decisions, and/or
actions; (5) the acts or omissions are in violation of clearly
established statutory or constitutional rights or laws of which a
reasonable person would have known or are otherwise
fraudulent, malicious, or oppressive; and (6) the State
employee was acting within his/her scope of employment.[8]
In its order, the court first recounted the claims in the amended complaint,
then concluded that Edward S. had “presented no evidence . . . indicat[ing his] case against
RCHA is based upon anything other than negligence.” Consequently, the court found “this
matter to involve a claim of ‘mere negligence’ as contemplated by the doctrine of qualified
7
W. Va. Reg’l Jail & Corr. Facility Auth. v. Est. of Grove, 244 W. Va. 273, 852
S.E.2d 773 (2020).
Id. at 283, 852 S.E.2d at 783 (citing W. Va. Reg’l Jail & Corr. Fac. Auth. v. A.B.,
8
234 W. Va. 492, 766 S.E.2d 751 (2014)).
5
immunity.” The court next concluded that “RCHA is a governmental agency within the
purview of qualified immunity.” 9 It then concluded that RCHA was not a political
subdivision as defined in the Tort Claims Act because it had been established by the West
Virginia Legislature, not the Raleigh County Commission. 10 The court reasoned further
that, although RCHA is a public body charged with the performance of a government
function, it did not have coextensive jurisdiction with one or more counties, cities, or towns
so, again, it did not qualify as a political subdivision and the Tort Claims Act did not
apply. 11 The circuit court went on to conclude that Edward S. had alleged negligence by
RCHA in the performance of its discretionary functions, and that RCHA’s alleged acts and
omissions had not violated Edward S.’s clearly established constitutional right or laws of
which a reasonable person would have known. 12
Ultimately, the circuit court concluded that:
RCHA is not protected by the [Tort Claims Act] because it is
not a political subdivision as defined thereby.
Emphasis in original. Edward S. did not assert that an insurance contract waived
9
RCHA’s defense of qualified immunity.
10
See W. Va. Code § 29-12A-3(c) (a “political subdivision” includes “any separate
corporation or instrumentality established by one or more counties or municipalities, as
permitted by law”).
11
See id. (a “political subdivision” includes “any public body charged by law with
the performance of a government function and whose jurisdiction is coextensive with one
or more counties, cities or towns”).
12
Because Edward S. did not name any RCHA employees as defendants, the court
did not reach the “scope of employment” inquiry.
6
Nevertheless, RCHA is entitled to qualified immunity
from this lawsuit because the Plaintiffs’ claims are of mere
negligence against RCHA, alleging acts or omissions related
to discretionary judgments that do not amount to violations of
clearly established rights or laws.
Having concluded that RCHA was qualifiedly immune from Edward S.’s
suit, the circuit court granted summary judgment to RCHA. Edward S. now appeals.
II. STANDARD OF REVIEW
Under West Virginia Rule of Civil Procedure 56(c), summary judgment is
proper “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” “A circuit
court’s entry of summary judgment is reviewed de novo,” 13 which means
[a]new; afresh; a second time. We have often used the term “de
novo” in connection with the term “plenary.” Perhaps more
instructive for our present purposes is the definition of the term
“plenary,” which means “full, entire, complete, absolute,
perfect, unqualified.” We therefore give a new, complete and
unqualified review to the parties’ arguments and the record
before the circuit court.[14]
13
Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
14
Gastar Expl. Inc. v. Rine, 239 W. Va. 792, 798, 806 S.E.2d 448, 454 (2017)
(cleaned up).
7
Likewise, we review de novo “issue[s] on an appeal from the circuit court”
that are “clearly a question of law or involv[e] interpretation of a statute . . . .” 15 Finally,
[t]he ultimate determination of whether qualified or
statutory immunity bars a civil action is one of law for the court
to determine. Therefore, unless there is a bona fide dispute as
to the foundational or historical facts that underlie the
immunity determination, the ultimate questions of statutory or
qualified immunity are ripe for summary disposition.[16]
For those reasons, resolution of Edward S.’s appeal requires the “new,
complete, and unqualified review of the parties’ arguments and the record before the circuit
court” 17 at the summary judgment stage. 18
III. ANALYSIS
15
Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415(1995).
16
Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649(1996).
17
Gastar, 239 W. Va. at 798, 806 S.E.2d at 454.
18
Edward S. asserts that the question of RCHA’s nature as a “political subdivision”
is not properly before the Court because RCHA did not cross-assign error on this point.
But as discussed above, we review de novo the grant of summary judgment and that entails
review of the record, the parties’ arguments to the circuit court, as well as the court’s legal
analysis. The political-subdivision question was argued exhaustively by the parties at the
summary judgment stage and ruled on by the circuit court. In addition, the circuit court
decided the question in the course of granting RCHA judgment on its qualified immunity
defense, the subject of Edward S.’s appeal.
8
Edward S. assigns only one error to the proceedings below: “The [c]ircuit
[c]ourt erred in granting summary judgment to [RCHA] on the basis that it has qualified
immunity from suit.” Regarding the scope of qualified immunity under West Virginia law,
we have held that
“[i]n the absence of an insurance contract waiving the
defense, the doctrine of qualified or official immunity bars a
claim of mere negligence against a State agency not within the
purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va.Code § 29–12A–1 et seq., and
against an officer of that department acting within the scope of
his or her employment, with respect to the discretionary
judgments, decisions, and actions of the officer.” Syl. Pt. 6,
Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).[19]
We “unpacked” that syllabus point in Grove, expanding on the analysis a
court must undertake to determine whether qualified immunity applies in a particular case:
[W]henever a defendant raises the issue of qualified immunity
in a motion to dismiss, the circuit court must look to our
qualified immunity body of law and follow the steps this Court
expressly has outlined to make the determination of whether
qualified immunity applies under the specific circumstances of
that particular case. Specifically, these steps include whether:
(1) a state agency or employee is involved; (2) there is an
insurance contract waiving the defense of qualified immunity;
(3) the West Virginia Governmental Tort Claims and Insurance
Reform Act, W. Va. Code § 29-12A-1 et seq. would apply; (4)
the matter involves discretionary judgments, decisions, and/or
actions; (5) the acts or omissions are in violation of clearly
established statutory or constitutional rights or laws of which a
reasonable person would have known or are otherwise
19
Syl. Pt. 7, A.B., 234 W. Va. at 492, 766 S.E.2d at 751.
9
fraudulent, malicious, or oppressive; and (6) the State
employee was acting within his/her scope of employment.[20]
In this case, we focus on one portion of the inquiry described in A.B. and Grove: whether
the Tort Claims Act applies.
A. The Tort Claims Act
The Tort Claims Act immunizes “political subdivisions” from liability for
“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 . . . .” 21 Even so,
the Act allows that “[p]olitical subdivisions are liable for injury, death, or loss to persons
or property caused by the negligent performance of acts by their employees while acting
within the scope of employment.” 22 But the Act then takes another twist when, in West
Virginia Code § 29-12A-5(a)(1) to (17) (1986), it “lists seventeen specific types of acts or
omissions covered by the tort immunity available under the Act to a political
subdivision.” 23 In other words, while a political subdivision may face liability for damages
20
Grove, 244 W. Va. at 283, 852 S.E.2d at 783 (citing A.B., 234 W. Va. at 492, 766
S.E.2d at 751).
21
W. Va. Code § 29-12A-4(b)(1) (1986).
22
Id. § 29-12A-4(c)(2).
23
Randall v. Fairmont City Police Dep’t, 186 W. Va. 336, 341, 412 S.E.2d 737, 742
(1991) (citing W. Va. Code § 29-12A-5(a)(1) – (17) (1986)).
10
caused by an employee’s negligent acts occurring within the scope of his or her
employment, the political subdivision is immune from liability under the Act if the injured
party’s loss or claim results from any one of the seventeen specific types of acts or
omissions listed in West Virginia Code § 29-12A-5(a). These include losses or claims
resulting from the “[n]atural conditions of unimproved property of the political
subdivision,” 24 for example, as well as losses or claims resulting from a political
subdivision’s “[i]nspection powers or functions . . . .” 25
The Act defines a “political subdivision,” as
any county commission, municipality and county board of
education; any separate corporation or instrumentality
established by one or more counties or municipalities, as
permitted by law; any instrumentality supported in most part
by municipalities; any public body charged by law with the
performance of a government function and whose jurisdiction
is coextensive with one or more counties, cities or towns; a
combined city-county health department created pursuant to
article two, chapter sixteen of this code; public service
districts; and other instrumentalities including, but not limited
to, volunteer fire departments and emergency service
organizations as recognized by an appropriate public body and
authorized by law to perform a government function: Provided,
That hospitals of a political subdivision and their employees
are expressly excluded from the provisions of this article.[26]
24
W. Va. Code. § 29-12A-5(a)(7).
25
Id. § 29-12A-5(a)(10).
26
Id. § 29-12A-3(c) (emphasis added).
11
Our Legislature has not amended the definition of “political subdivision” since enacting
the Tort Claims Act in 1986.
B. RCHA and the Housing Act
Before considering whether RCHA is a “political subdivision” for purposes
of the Tort Claims Act, we describe RCHA plus pertinent parts of the West Virginia
Housing Act, West Virginia Code §§ 16-15-1 to 25. In 1979, the Raleigh County
Commission resolved under West Virginia Code § 16-15-3 (1941) 27 to “create” RCHA to
improve the supply of safe, sanitary, and affordable housing for the citizens of Raleigh
County. 28 The County Commission appointed five commissioners to RCHA and reserved
to itself the power to remove a commissioner for malfeasance or dereliction of duty. The
Commission also required the newly-established RCHA to provide annual reports of its
activities and expenditures and vested RCHA with all powers available under the Housing
Act. 29 Today, RCHA operates a public housing program and administers the HUD-funded
27
The Legislature amended § 16-15-3 (1941) in 1998. See 1998 W. Va. Acts 176.
The amendments to § 16-15-3 did not alter the substance of the statute pertinent to our
discussion, so we quote the current, 1998 version of the § 16-15-3 in this Opinion.
28
The resolution states, “Be it resolved, that pursuant to WV Code § 16-15-3, there
is herewith created a Raleigh County Housing Authority . . . .” RCC’s use of the word
“create” in the resolution does not trump the effect of the adoption of the resolution under
§ 16-15-3—the “establishment” of a housing authority by a county. See W. Va. Code §
16-15-3(c) (1998).
29
See W. Va. Code § 16-15-7 (2004) (housing authority “is a body both corporate
and politic, exercising public powers, and having all the powers necessary or convenient
to carry out and effectuate the purposes and provisions of this article, including” for
(continued . . .)
12
Section 8 rental assistance program in nine West Virginia counties, including Summers
County where Edward S.’s home was located. 30 According to the former executive
director of RCHA, its mission is to “serve low-income families to find safe, decent, sanitary
housing at a cost they can afford.” RCHA does not receive money from the State of West
Virginia; instead, it is funded primarily by administrative fees collected from HUD,
attendant to the Section 8 rental assistance program. RCHA continues to provide annual
reports to the Raleigh County Commission.
The Legislature created housing authorities like RCHA in each West
Virginia city and county in 1933 through the Housing Act. This Act was amended in 1941,
then again in the 1990s and 2000s. 31 In discussing the Housing Act, we rely on the current
example, to “investigate living and housing conditions in the authority’s area of operation
and the means and methods of improving the conditions” and to “form and operate
nonprofit corporations and other affiliates of every kind and description, which may be
wholly or partially owned or controlled, for carrying out the purposes of” the Housing Act).
30
According to Tony Bazzie, the former executive director of RCHA, it does not
administer the Section 8 rental assistance program in the City of Beckley because that is
administered by the Beckley Housing Authority. Mr. Bazzie also testified that “there are
about [thirty] housing authorities in West Virginia.”
31
For example, West Virginia Code § 16-15-3 was enacted in 1933, then amended
in 1941 and 1998. See 1941 W. Va. Acts 49; 1998 W. Va. Acts 176. And West Virginia
Code § 16-15-7 (setting forth the powers of housing authorities) was enacted in 1933, then
amended in 1998 and 2004. See 1998 W. Va. Acts 176; 2004 W. Va. Acts 134.
13
version of its various sections. Where our analysis requires us to consider a prior version,
we say so.
The Housing Act includes this “Legislative declaration of necessity for
creation of housing authority corporations”:
It is hereby declared as a matter of legislative determination
that in order to promote and protect the health, safety, morals
and welfare of the public, it is necessary in the public interest
to provide for the creation of public corporate bodies to be
known as housing authorities, and to confer upon and vest in
said housing authorities all powers necessary or appropriate in
order that they may engage in low and moderate cost housing
development and slum clearance projects; and that the powers
herein conferred upon the housing authorities, including the
power to acquire and dispose of property, to remove unsanitary
or substandard conditions, to construct and operate housing
developments and to borrow, expend and repay moneys for the
purpose herein set forth, are public objects essential to the
public interest.[32]
The Legislature elected not to create a single, statewide entity to pursue those
goals and exercise that authority. Instead, in West Virginia Code § 16-15-3(a), it created
a “public body corporate and politic” in each city and county in the State:
[i]n each city and in each county there is hereby created a
housing authority which shall be a public body corporate and
politic. No authority hereby created shall transact any business
or exercise its powers hereunder until or unless the governing
body of the city or the county, by proper resolution, determines
that there is need for an authority: Provided, That nothing
contained herein shall be construed as creating an additional
32
W. Va. Code §16-15-2 (1998).
14
housing authority in a city where a housing authority has been
created pursuant to prior law, but each housing authority shall
continue as a public body corporate and politic and shall have
the area of operation defined in section one of this article for a
city or county housing authority. Each housing authority
created pursuant to this section shall adopt a name for all legal
and operating purposes.[33]
In Subsection (c) of § 16-15-3, the Legislature specified that:
[i]n any suit, action or proceeding involving the validity or
enforcement of or relating to any contract of the authority, the
authority shall be conclusively deemed to have become
established and authorized to transact business and exercise
its powers hereunder upon proof of the adoption of a resolution
by the governing body declaring the need for the authority.[34]
For purposes of the Housing Act “‘[g]overning body’ means, in the case of a city, the
council of the city, and in the case of a county, the county commission.” 35
Once a governing body adopts the requisite resolution, the city council or the
county commission appoints five commissioners. 36 “The powers of each authority [are]
33
Id. § 16-15-3(a) (emphasis added).
34
Id. § 16-15-3(c) (emphasis added).
35
Id. § 16-15-1(17) (2006).
36
Id. § 16-15-3(d) (upon adoption of proper resolution determining need for housing
authority, governing body to appoint five commissioners to “serve for terms of one, two,
three, four and five years, respectively, from the date of their appointment,” and to “term[s]
of office of five years,” thereafter).
15
vested in its commissioners,” 37 and they must file annual reports of their activities to “the
mayor, or the county commission, as appropriate . . . .” 38 The city council or county
commission may remove a housing authority commissioner for “inefficiency or neglect of
duty or misconduct in office.” 39
With that review of RCHA and pertinent sections of the Housing Act, we
turn to the question of whether RCHA satisfies the definition of “political subdivision”
within the Tort Claims Act.
C. RCHA is a “Political Subdivision” Under the Tort Claims Act
In its renewed motion for summary judgment, RCHA argued that it is a
political subdivision under the plain language of West Virginia Code § 29-12A-3(c)
because it is a public corporation established by the Raleigh County Commission pursuant
to West Virginia Code § 16-15-3. RCHA argued in the alternative that it is a public body
charged with performance of a public function—the provision of safe, sanitary, and
affordable housing—with jurisdiction coextensive with Greenbrier, Monroe, and
Pocahontas Counties, among others. RCHA also cited authority from the United States
37
Id. § 16-15-3(e).
38
Id. § 16-15-12 (1998).
39
Id. § 16-15-3(e).
16
District Court of the Southern District of West Virginia 40 and an Ohio court 41 to support
its contention that it is a “political subdivision” under the Tort Claims Act.
Edward S. responded that RCHA cannot be a “political subdivision” under
the Tort Claims Act because RCHA was created, i.e., established by the State (not the
Raleigh County Commission) under the Housing Act. Edward S. also argued the 1971
decision of the United States Court of Appeals for the Fourth Circuit in United States v.
Barrett 42 established conclusively that only the State can create a housing authority like
RCHA, while the power of a city or county under the Act is limited to the appointment of
commissioners. Edward S. then argued that the Housing Act has consistently defined a
housing authority as a “body corporate and politic,” but never as a “political subdivision”—
a circumstance that he contends shows the Legislature’s intent that housing authorities are
not political subdivisions. Edward S. also argued that amendments made in 1998 to the
definitions of “city” and “county” in the Housing Act, along with the addition of sections
regarding regional housing authorities, further demonstrate the Legislature’s intent that
housing authorities are not political subdivisions. Edward S. also claimed that the
40
Simmons v. Charleston Hous. Auth., 881 F.Supp. 225, 232 (S.D.W. Va. 1995)
(dismissing state law claims against housing authority where plaintiffs “failed to meet”
housing authority’s claim to immunity under the Tort Claims Act).
Fuller v. Cuyahoga Metro. Hous. Auth., No. 92270, 2009 WL 2894456 (Ohio Ct.
41
App. Sept. 10, 2009).
42
442 F.2d 642 (4th Cir. 1971).
17
Legislature cannot have intended housing authorities to be political subdivisions because
they (housing authorities) have such broad authority under the Housing Act. Finally, he
argued that housing authorities do not fit the common law definition of “political
subdivision” set by this Court in Kucera v. City of Wheeling in 1969. 43
These arguments call for an analysis of both the Tort Claims Act and Housing
Act. Neither party contends that the pertinent provisions of those laws are ambiguous;
rather, the parties disagree about what those provisions mean when applied to RCHA. We
have held that “[a] statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” 44 Put another way, “[w]here the language of a statute is free from
ambiguity, its plain meaning is to be accepted and applied without resort to
interpretation.” 45 We recently synthesized our law regarding this Court’s responsibility to
apply, rather than interpret, an unambiguous statute:
“A statute is open to construction only where the language used
requires interpretation because of ambiguity ....” Hereford v.
43
153 W. Va. 531, 170 S.E.2d 217 (1969). We decline to address Edward S.’s
argument regarding RCHA’s status as a “political subdivision” under the common law
because the Legislature has defined the term “political subdivision” for purposes of the
Tort Claims Act. See Dotts v. Taressa J.A., 182 W. Va. 586, 589, 390 S.E.2d 568, 571
(1990) (observing that Tort Claims Act defines “political subdivision” for purposes of that
Act, but that where the phrase “political subdivision” is undefined, e.g., the Motor Vehicle
Responsibility Law, the Court “resort[s] to our case law interpretation of the term”).
44
Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
45
Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
18
Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949). When
we encounter a “clear and unambiguous” statute that “plainly
expresses the legislative intent[,]” our role is simply to give the
statute “full force and effect.” Syl. Pt. 2, in part, State v.
Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). In such cases,
our “duty ... is not to construe but to apply the statute,”
assigning to “its words ... their ordinary acceptance and
significance and the meaning commonly attributed to them.”
Id. at 884, 65 S.E.2d at 492. . . .
. . . . What we refuse to do, however, under the guise of
interpretation or construction, is to “look for or impose another
meaning” when the text of the statute, itself, is “plain and
unambiguous and conveys a clear and definite meaning[.]”
Hereford, 132 W. Va. at 386, 52 S.E.2d at 747 (quoting 50 Am.
Jur., Statutes, § 225). We “presume that a legislature says in a
statute what it means and means in a statute what it says there.”
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54, 112
S.Ct. 1146, 117 L.Ed.2d 391 (1992).[46]
We refer back to the relevant definition of “political subdivision” in the Tort
Claims Act: “political subdivision” means “any separate corporation or instrumentality
established by one or more counties or municipalities, as permitted by law . . . .” 47 In
response to RCHA’s renewed motion for summary judgment, Edward S. did not contend
that RCHA is not a “separate corporation.” Rather, this was his argument: “RCHA was
not established by [the Raleigh County Commission]. Instead, it was established by the
State of West Virginia. All housing authorities in West Virginia were established with the
46
Beasley v. Sorsaia, 247 W. Va. 409, ___, 880 S.E.2d 875, 878−79 (2022).
47
W. Va. Code § 29-12A-3(c).
19
enactment of the [Housing Act].” 48 Edward S. concluded that because RCHA was
“established” by the State 49 —not by the County Commission—RCHA cannot be a
“political subdivision” under the Tort Claims Act.
We disagree with Edward S.’s reasoning. Section 16-15-3(a) of the Housing
Act provides that: “In each city and in each county there is hereby created a housing
authority which shall be a public body corporate and politic.” Passive voice aside, through
that subsection, the State “created a housing authority which shall be a public body
corporate and politic” “[i]n each city and in each county” in West Virginia. At first glance,
that language supports the argument that RCHA cannot be a “political subdivision” under
the Tort Claims Act, the logic being that a public corporation created by the State (i.e., a
“housing authority” under the Housing Act) cannot also be a public corporation established
by a county (i.e., a “political subdivision” under the Tort Claims Act). Except, as Edward
S. acknowledged, that logic depends on the conclusion that the creation of a housing
authority is the same thing as the establishment of one. A more thorough reading of § 16-
15-3 demonstrates that is not the case.
In whole, § 16-15-3(a) provides that
[i]n each city and in each county there is hereby created a
housing authority which shall be a public body corporate and
48
Emphasis in original.
49
See W. Va. Code § 29-12A-3(e) (defining “State” and specifying that “‘State’
does not include political subdivisions”).
20
politic. No authority hereby created shall transact any business
or exercise its powers hereunder until or unless the governing
body of the city or the county, by proper resolution, determines
that there is need for an authority: Provided, That nothing
contained herein shall be construed as creating an additional
housing authority in a city where a housing authority has been
created pursuant to prior law, but each housing authority shall
continue as a public body corporate and politic and shall have
the area of operation defined in section one of this article for a
city or county housing authority. Each housing authority
created pursuant to this section shall adopt a name for all legal
and operating purposes.[50]
Subsection (a) of § 16-15-3 states that, although the State has created a
housing authority in every city and county in West Virginia, those housing authorities
cannot “transact any business or exercise [their] powers [t]hereunder until or unless the
governing body of the city or the county, by proper resolution, determines that there is need
for an authority . . . .” In other words, although the State may have “created” a housing
authority in a city or county, that housing authority cannot do anything until the city council
or county commission acts, that is, until the governing body determines that the city or
county needs the housing authority and adopts a resolution saying so.
Subsection (c) of 16-15-3 tells us what is happening when the city council or
county commission adopts a resolution determining that the city or county needs a housing
authority: it is establishing one. Subsection (c) states that:
50
Id. § 16-15-3(a) (emphasis added).
21
[i]n any suit, action or proceeding involving the validity or
enforcement of or relating to any contract of the authority, the
authority shall be conclusively deemed to have become
established and authorized to transact business and exercise
its powers hereunder upon proof of the adoption of a resolution
by the governing body declaring the need for the authority. An
adopted resolution shall be deemed sufficient if it declares that
there is need for an authority and finds in substantially the
foregoing terms (no further detail being necessary) that either
or both of the above-enumerated conditions exist. A copy of a
resolution duly certified by the clerk shall be admissible in
evidence in any suit, action or proceeding.[51]
And while (c) speaks in terms of “any suit, action, or proceeding,” we see no reason why
proof of the “adoption of a resolution by the governing body declaring the need for the
authority” would not “conclusively deem[]” the housing authority to “have become
established and authorized to transact business and exercise its powers,” otherwise. 52
“‘“[T]he Legislature is presumed to intend that every word used in a statute
has a specific purpose and meaning,” State ex rel. Johnson v. Robinson, 162 W. Va. 579,
582, 251 S.E.2d 505, 508 (1979)[.]’ Stone v. United Eng’g, a Div. of Wean, Inc., 197 W.
Va. 347, 355, 475 S.E.2d 439, 447 (1996).” 53 The Legislature used the word “created” in
§ 16-15-3(a) and the word “established” in § 16-15-3(c); the Legislature intended those
words to mean different things. So, “creation” of a housing authority by the State cannot
51
Id. § 16-15-3(c) (emphasis added).
52
Id. (emphasis added).
Donna S. v. Travis S., 246 W. Va. 634, 640, 874 S.E.2d 746, 752 (2022) (quoting
53
Bullman v. D & R Lumber Co., 195 W. Va. 129, 133, 464 S.E.2d 771, 775 (1995)).
22
be equivalent to its “establishment.” Notwithstanding the passive voice employed by the
Legislature in § 16-15-3(c), that subsection is clear that a housing authority is “conclusively
deemed to have become established . . . upon proof of the adoption of a resolution by the
[city council or county commission] declaring the need for the authority . . . .” 54
The State created a housing authority in Raleigh County with the passage of
the Housing Act in 1933. But that authority could not “transact any business or exercise
its powers . . . until or unless [Raleigh County], by proper resolution, determine[d] that
there [was a] need for an authority . . . .” 55 The Raleigh County Commission did that in
1979. And in so doing, RCHA became “established and authorized to transact business
54
W. V. Code § 16-15-3(c) (emphasis added); see also id. § 16-15-5 (1941) (“As
soon as possible after the establishment of an authority the commissioners shall organize
for the transaction of business by choosing from among their number a chairman and a
vice-chairman and by adopting bylaws and rules and regulations suitable to the purposes
of this article.”) (emphasis added); id. § 16-15-7b(b)(1) (“In the case of a housing authority
established by a city, the authority’s area of operation shall be the city and the area within
ten miles from the territorial boundaries thereof. Depending upon the geographical location
of the city, the area of operation may include portions of one or more counties. It may also
include areas lying within the territorial boundaries of cities outside the city establishing
the housing authority.”) (emphasis added); id. § 16-15-7b(b)(2) (“In the case of a housing
authority established by a county, the authority’s area of operation shall be all of the county
except that portion which lies within the territorial boundaries of any city in which a
housing authority has been established.”) (emphasis added).
55
Id. § 16-15-3(a).
23
and exercise its powers” under the Housing Act. 56 In other words, the State created a
housing authority in Raleigh County, and the County Commission established RCHA. 57
With that resolved, we turn to RCHA’s status as a “political subdivision” for
purposes of the Tort Claims Act. Under the Tort Claims Act, a “political subdivision”
includes “any separate corporation . . . established by one or more counties or
municipalities, as permitted by law . . . .” 58 RCHA is a public corporation established by
the Raleigh County Commission under the Housing Act. Consequently, the Raleigh
County Housing Authority is a “political subdivision,” as that term is defined in West
Virginia Code § 29-12A-3(c) (1986), and we now so hold.
As we have found that RCHA is a “political subdivision” under one
definition in § 29-12A-3(c), it’s unnecessary to address Edward S.’s arguments about the
others. Further, we do not find United States v. Barrett, persuasive on the issue before us.59
56
Id. § 16-15-3(c).
57
This distinction also makes sense considering that cities and counties have only
the authority granted to them by the State. See Robinson v. City of Bluefield, 234 W. Va.
209, 211, 764 S.E.2d 740, 742 (2014) (“‘A municipal corporation possesses only the power
and authority given to it by the legislature.’”) (quoting Miller v. City of Morgantown, 158
W. Va. 104, 109, 208 S.E.2d 780, 783 (1974)); Syl. Pt. 3, in part, Barbor v. Cnty. Ct. of
Mercer Cnty., 85 W. Va. 359, 101 S.E. 721 (1920) (“The county court is a corporation
created by statute, and possessed only of such powers as are expressly conferred by the
Constitution and legislature.”).
58
W. Va. Code § 29-12A-3(c).
59
Barrett, 442 F.2d at 642.
24
In Barrett, the Fourth Circuit faced this narrow question: whether the City of Parkersburg
set up an additional housing authority in 1967 (an act beyond the City’s authority,
according to appellants in that case) or “reactivated” one that the City had set up decades
before? 60 The Fourth Circuit held, in part, that because the City purported to act in 1967
under the 1933 version of the Housing Act—rather than the 1941 version then in effect—
the City had merely “reactivated” the original housing authority. 61
The question answered by the Fourth Circuit in Barrett is different than the
one before us, so that case does not influence the outcome, here. Admittedly, in Barrett,
the Fourth Circuit stated that the 1941 version of the Housing Act (which controlled in
1979, too, when the Raleigh County Commission adopted its resolution) “vested in the
State legislature the power to create an Authority, [and] limit[ed] the municipality to the
appointment of members . . . .” 62 But, Barrett didn’t turn on that observation. Rather,
Barrett turned on this one: the 1941 version of the Housing Act “expressly preserved the
existence of any Authority established under the 1933 law.” 63 And, it does not appear the
Fourth Circuit considered the language in § 16-15-3(c), regarding the establishment of a
60
Id. at 645.
61
Id.
62
Id.
63
Id.
25
housing authority, even though that language was also present in the 1941 version of the
Housing Act. 64
Edward S.’s remaining arguments do not persuade us that the circuit court
correctly concluded that RCHA is not a “political subdivision” for purposes of the Tort
Claims Act. It’s true that in 1998, the Legislature added the phrase “political subdivision”
to the definitions of “city” 65 and “county” 66 in the Housing Act but did not add that phrase
to the definition of “housing authority.” But that doesn’t change the fact that the Raleigh
County Commission established RCHA, a public corporation, as permitted by the Housing
Act so RCHA still meets one of the definitions of “political subdivision” in the Tort Claims
Act: a “separate corporation . . . established by one or more counties . . . as permitted by
law . . . .” 67 And while Edward S. is correct that housing authorities’ powers are broad, the
relevant definition of “political subdivision” in the Tort Claims Act does not contain a
carve-out premised on the scope of the powers of an otherwise-qualifying public
corporation. Certainly, the Legislature is free to amend the Tort Claims Act to add that
limitation, should it so desire.
64
W. Va. Code § 16-15-3 (1941).
65
See 1998 W. Va. Acts 176.
66
Id.67
W. Va. Code § 29-12A-3(c).
26
IV. CONCLUSION
For the reasons discussed above, the order granting summary judgment to
RCHA is reversed, and this case is remanded for further proceedings consistent with this
Opinion.
Reversed and remanded.
27