Converted WP file 26900

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2000 Term

__________
No. 26900
__________

STAMATIA C. ZELENKA,
EXECUTRIX OF THE ESTATE OF JAMES G. KAPIRIS,
Plaintiff

CITY OF WEIRTON, ET AL.,
Defendants

__________________________________________________________________

Certified Questions from the Circuit Court of Hancock County
Honorable Martin J. Gaughan, Judge
Civil Action No. 98-C-142G

CERTIFIED QUESTION ANSWERED
__________________________________________________________________

Submitted: April 11, 2000
Filed: June 12, 2000

Robert P. Fitzsimmons, Esq.
Fitzsimmons Law Offices
Wheeling, West Virginia
and
Mark A. Colantonio, Esq.
Frankovitch, Anetakis, Colantonio & Simon
Weirton, West Virginia
Attorneys for the Plaintiff

David L. Wyant, Esq.
Shuman, Annand & Bailey
Wheeling, West Virginia
Attorney for City of Weirton

Joseph W. Selep, Esq.
Zimmer Kunz Prof. Corp.
Pittsburgh, Pennsylvania
Attorney for Dover Industries

Timothy J. Burdette, Esq.
Antandig, McDyer, Burdette
Pittsburgh, Pennsylvania
Attorney for Imperial Hoist, Inc.

Michael G. Gallaway, Esq.
Burns, White & Hickton
Wheeling, West Virginia
Attorney for Wallover, et al.

CHIEF JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
JUSTICE STARCHER and JUSTICE MCGRAW dissent and reserve the right to file dissenting opinions.

SYLLABUS BY THE COURT

        1.    “The general rule of construction in governmental tort legislation cases favors liability, not immunity. Unless the legislature has clearly provided for immunity under the circumstances, the general common-law good of compensating injured parties for damages caused by negligent acts must prevail.” Syllabus Point 2, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).

        2.    “When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syllabus Point 1, Cummins v. State Workmen's Compensation Com'r, 152 W.Va. 781, 166 S.E.2d 562 (1969).

        3.    “W.Va. Code, 29-12A-5(a)(11) [1986] grants immunity to political subdivisions in a wrongful death case where the decedent's claim is covered by any workers' compensation law or employer's liability law, even though not all of the beneficiaries of the decedent's estate are eligible for benefits under the workers' compensation law or employer's liability law.” Syllabus Point 3, Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998).

        4.    W.Va. Code § 29-12A-5(a)(11) (1986) grants immunity to a political subdivision in a wrongful death case where the recoverable benefits under workers' compensation are limited to reasonable funeral expenses pursuant to W.Va. Code § 23-4- 4(a) (1995).

Maynard, Chief Justice:

        In this case, the Circuit Court of Hancock County has certified two questions to this Court. The certified questions and the circuit court's answers are as follows:

                Are the death benefits available pursuant to W.Va. Code §§ 23-4-3 (1995), 23-4-4(a) (1995) and 23-4-10(a) (1995) a grossly inadequate or patently unfair workers' compensation remedy for a work related death when the only benefit paid is the statutory payment of a funeral bill in the amount of $3,500?

                Answer of the circuit court: Yes.

                Does W.Va. Code § 29-12A-5(a)(11) (1986) grant immunity to a political subdivision in a wrongful death case where the claim is covered by workers' compensation, but the only recoverable death benefits are available pursuant to W.Va. Code §§ 23-4-3 (1995), 23-4-4(a) (1995) and 23-4-10(a) (1995), which benefits amounted to $3,500?

                Answer of the circuit court: Yes.


        First, we must determine whether this is a matter which is properly certifiable. The questions certified arise from a motion to dismiss filed by defendant City of Weirton, pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, on the ground that the plaintiff's claim is barred by the immunity granted to a political subdivision under W.Va. Code § 29-12A-5(a)(11) (1986). According to W.Va. Code § 58-5-2 (1998),See footnote 1 ¹ “[a]ny question of law, including . . . questions arising . . . upon a challenge of the sufficiency of a pleading . . . may . . . be certified by [the circuit court] to the supreme court of appeals for its decision[.]” See also Syllabus Point 1 of Halltown Paperboard Co. v. C.L. Robinson Corp., 150 W.Va. 624, 148 S.E.2d 721 (1966) (“[a]ny questions pertaining to a ruling of the trial court on a motion which challenges the sufficiency of a pleading are properly certifiable.”). We have recognized that the purpose of a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the formal sufficiency of the complaint. Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978), superseded by statute/rule as stated in Handley v. Union Carbide Corp., 804 F.2d 265 (4th Cir. 1986). We find, therefore, that these questions arise upon a challenge of the sufficiency of a pleading.

In addition, certification requires “a sufficiently precise and undisputed factual record on which the legal issues can be determined . . . . [and that] such legal issues . . . substantially control the case.” Syllabus Point 5, in part, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994). We have determined that there is a sufficiently precise and undisputed factual record upon which the legal issues may be resolved, and these issues substantially control the case. Therefore, the questions are properly certified under W.Va. Code § 58-5-2 (1998) and are within the jurisdiction of this Court.

Further, this Court will not consider certified questions not necessary to the decision of a case. Shell v. Metropolitan Life Ins. Co., 181 W.Va. 16, 380 S.E.2d 183 (1989). We believe that the first question certified to this Court is not necessary to our decision. Accordingly, we do not consider it.See footnote 2 ²

Finally, pursuant to our authority to do so, we rephrase the second certification question before us as follows:See footnote 3 ³
Does W.Va. Code § 29-12A-5(a)(11) (1986) grant immunity to a political subdivision in a wrongful death case where the recoverable benefits under workers' compensation are limited to reasonable funeral expenses pursuant to W.Va. Code § 23-4-4(a) (1995)?

I.
FACTS

James G. Kapiris, the plaintiff's decedent, was an employee of defendant City of Weirton. On April 3, 1997, the decedent was working at the city garage when a municipal garbage truck positioned on a hydraulic lift or hoist fell on him, causing his death. A workers' compensation claim was filed as a result of the decedent's death and, because he had no dependents,See footnote 4 ⁴ the workers' compensation benefits available to his estate were limited to $5000.00See footnote 5 ⁵ in funeral expenses.See footnote 6 ⁶

On August 11, 1998, the plaintiff, Stamatia C. Zelenka, as executrix of the decedent's estate, filed a wrongful death claim in the Circuit Court of Hancock County against, among others, the City of WeirtonSee footnote 7 ⁷ in which she alleged that the city acted with “deliberate intention” under W.Va. Code § 23-4-2(c)(2)(ii) (1994). The City of Weirton filed a Rule 12(b)(6) motion to dismiss in which it stated that the city is immune from the deliberate intention claim under W.Va. Code § 29-12A-5(a)(11) of The Governmental Tort Claims And Insurance Reform Act (Tort Claims Act). According to this code section, a political subdivision is immune from liability if a loss or claim results from any claim covered by any workers' compensation law.

By order of March 25, 1999, the Circuit Court of Hancock County certified the questions set forth above to this Court.

II.
STANDARD OF REVIEW

In Syllabus Point 1 of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), we stated: “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Additionally, we note that this case requires us to consider a provision of the Tort Claims Act. “The general rule of construction in governmental tort legislation cases favors liability, not immunity. Unless the legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail.” Syllabus Point 2, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996). We are ever cognizant, however, that “[w]hen a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syllabus Point 1, Cummins v. State Workmen's Compensation Com'r, 152 W.Va. 781, 166 S.E.2d 562 (1969). With these principles to guide us, we proceed with our consideration of the certified question.

III.
DISCUSSION
The plaintiff argues that, under the specific circumstances of this case, the amount of $5000.00 paid to the decedent's estate as a result of alleged wrongful conduct by the City of Weirton is “grossly inadequate” and “patently unfair” so that immunity should not apply.See footnote 8 ⁸ For legal support, the plaintiff cites footnote 8 of Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998) in which we stated, “[w]e do not by our decision in the instant case rule out the possibility that a grossly inadequate or patently unfair workers' compensation remedy for an injury or loss --- in an egregious and exceptional case --- might give rise to a persuasive argument that 'coverage' under workers' compensation is not meaningfully present for purposes of establishing Governmental Tort Claims Act immunity[.]” The plaintiff concludes that “meaningful” workers' compensation coverage is absent here due to the paucity of the workers' compensation award so that immunity does not apply.

        W.Va. Code § 29-12A-5(a)(11) (1986) of the Tort Claims Act provides that “ [a] political subdivision is immune from liability if a loss or claim results from [a]ny claim covered by any workers' compensation law[.]”See footnote 9 ⁹ In O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992), we listed four requirements that must be present before a claim is barred by this provision.

            First, the plaintiff must have been injured by the negligence of an employee of a political subdivision. Second, the plaintiff must have received the injury in the course of and resulting from his or her employment. Third, the plaintiff's employer must have workers' compensation coverage. Fourth, the plaintiff must be eligible for such benefits.

188 W.Va. at 603, 425 S.E.2d at 558. In accord with O'Dell, we recently held in Syllabus Point 3 of Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998):

                W.Va. Code, 29-12A-5(a)(11) [1986] grants immunity to political subdivisions in a wrongful death case where the decedent's claim is covered by any workers' compensation law or employer's liability law, even though not all of the beneficiaries of the decedent's estate are eligible for benefits under the workers' compensation law or employer's liability law.

The requirements of O'Dell are clearly present in the instant case. The decedent was killed allegedly by the wrongful conduct of Weirton city employees, See footnote 10 ¹⁰ in the course of and resulting from his employment, the City of Weirton had workers' compensation coverage, and the decedent was eligible for workers' compensation benefits. Also, there was a recovery of $5000.00 in funeral expenses paid by the workers' compensation division.

The plaintiff complains of the disparity in recovery available under workers' compensation law and a wrongful death action. In O'Dell, however, we rejected the argument that the failure of workers' compensation law to provide compensation for “elements of damages, such as pain and suffering, total lost wages, and mental anguish” means that a claim is not “covered” by workers' compensation under W.Va. Code § 29- 12A-5(a)(11). 188 W.Va. at 610, 425 S.E.2d at 565. We reiterated in Brooks v. City of Weirton that “the mere fact that there is a difference between the remedies available under workers' compensation and those available in a wrongful death action does not require the conclusion that there has been 'no recovery of benefits . . . in lieu of damages recoverable

in a civil action.'” 202 W.Va. at 252, 503 S.E.2d at 820, quoting Syllabus Point 3, in part, of Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).

As stated above, the general rule of construction in governmental tort legislation cases favors liability, not immunity. The statutory provision at issue, however, is clear and unambiguous. Our task, therefore, is not to construe it but, rather, to simply apply it to the facts of the case. The difficulty with the plaintiff's argument is that it requires us to read into W.Va. Code § 29-12A-5(a)(11) the term “meaningful,” as defined by the plaintiff, as a qualification of the term “covered.” We decline so to do.See footnote 11 ¹¹ The Legislature has clearly provided for immunity under the facts of this case. Therefore, we “may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.”See footnote 12 ¹² Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 692, 408 S.E.2d 634, 642 (1991), citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511, 517 (1976).

Accordingly, we hold that W.Va. Code § 29-12A-5(a)(11) (1986) grants immunity to a political subdivision in a wrongful death case where the claim is covered by workers' compensation, and the recoverable benefits are limited to reasonable funeral expenses pursuant to W.Va. Code § 23-4-4(a) (1995).

IV.
CONCLUSION

In sum, we find that W.Va. Code § 29-12A-5(a)(11) unambiguously provides that a political subdivision is immune from liability if a loss or claim results from a claim covered by a workers' compensation law. The City of Weirton is covered by a workers' compensation law because the decedent's death allegedly was caused by the wrongful conduct of employees of the City, it occurred in the course of and resulted from his employment, the City had workers' compensation coverage, and the decedent was eligible for such benefits. Further, the decedent's workers' compensation claim resulted in a recovery of $5000.00 in funeral expenses. For these reasons, we answer the certified question as follows:

Does W.Va. Code § 29-12A-5(a)(11) (1986) grant immunity to a political subdivision in a wrongful death case where the recoverable benefits under workers' compensation are limited to reasonable funeral expenses pursuant to W.Va. Code § 23-4-4(a) (1995)?

                ANSWER: Yes.

                                 Certified question answered.

Footnote: 1 ¹W.Va. Code § 58-5-2 (1998) provides:

Any question of law, including, but not limited to, questions arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, may, in the discretion of the circuit court in which it arises, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back. The procedure for processing questions certified pursuant to this section shall be governed by rules of appellate procedure promulgated by the supreme court of appeals.

Footnote: 2 ²We note, however, that the sum of $5000.00 appears to us to be an inadequate amount both in a wrongful death action and as reasonable funeral expenses. However, the Legislature enacted the statutory provisions at issue, and only the Legislature has the authority to amend these provisions. It is not the role of this Court to re-write statutory provisions simply because they are not to our liking.

Footnote: 3 ³According to W.Va. Code § 51-1A-4 (1996), “[t]he supreme court of appeals of West Virginia may reformulate a question certified to it.” In Syllabus Point 3 of Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993), we held:

When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va. Code, 51-1A-1, et seq. and W.Va. Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.

Footnote: 4 ⁴The decedent was 46 years old at the time of his death and was survived by his parents, three sisters, and a brother. He had worked for the City of Weirton for a number of years and was earning an annual salary of $18,336.00.

Footnote: 5 ⁵Although the circuit court states that $3,500.00 was paid as reasonable funeral expenses in the decedent's death, the parties agree that the amount actually paid was $5000.00.

Footnote: 6 ⁶W.Va. Code § 23-4-4 (1995) provides in relevant part:

(a) In case the personal injury causes death, reasonable funeral expense, in an amount to be fixed from time to time by the division, shall be paid from the fund, payment to be made to the persons who have furnished the services and supplies, or to the persons who have advanced payment for same, as the division may deem proper, in addition to such award as may be made to the employee's dependents.

Footnote: 7     ⁷The other defendants include Imperial Hoist, Inc., a Pennsylvania corporation; Weaver, Inc., a Kentucky corporation; and Dover Industries, an Indiana corporation. On March 23, 1999, the plaintiff filed an amended complaint in which she added as defendants, Ace Hydraulic Services Corporation; Wallover, Mitchell, Bontempo & Associates, Inc.; and City of Weirton employees Terry Weigel, Michael Bowman, and Vincent Azzarello.
        Concerning the action against the City employees, we have held:

                West Virginia Code § 29-12A-5(b) provides that employees of political subdivisions are immune from personal tort liability unless “(1) [h]is or her acts or omissions were manifestly outside the scope of employment or official responsibilities; (2) [h]is or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (3) [l]iability is expressly imposed upon the employee by a provision of this code.”

Syllabus Point 1, Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317 (1993). Further, in Syllabus Point 5 of Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998), we stated:

W.Va. Code, 29-12A-13(b) [1986] prohibits the naming of an employee of a political subdivision acting within the scope of employment as a defendant for the purpose of directly establishing the liability of a political subdivision. However, W.Va. Code, 29-12A- 13(b) [1986] does not prohibit the naming of an employee of a political subdivision acting within the scope of employment as a defendant for purposes of establishing the employee's liability, when one or more of the statutory exceptions in W.Va. Code, 29-12A-5(b) [1986] to employee immunity is present.

Footnote: 8 ⁸In oral argument before this Court, the plaintiff made clear that she does not urge us to abolish the immunity found in W.Va. Code § 29-12A-5(a)(11), and she does not challenge the constitutionality of this immunity. This Court has previously found that the qualified tort immunity provisions of the Tort Claims Act do not violate the equal protection principles of W.Va. Const., art. III, § 10 or the certain remedy provisions of W.Va. Const., art III, § 17. See Randall v. Fairmont City Police Dep't., 186 W.Va. 336, 412 S.E.2d 737 (1991) and O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992).

Footnote: 9 ⁹It is uncontested that the City of Wheeling is a political subdivision under the Tort Claims Act.

Footnote: 10 ¹⁰Even though it is alleged not that the City's employees were negligent but that they engaged in wanton or reckless misconduct, in Michael v. Marion County Bd. of Educ., 198 W.Va. 523, 483 S.E.2d 140 (1996), we determined that the immunity in W.Va. Code § 29-12A-5(a)(11) includes immunity from deliberate intention causes of action brought pursuant to W.Va. Code § 23-4-2(c)(2).

Footnote: 11 ¹¹We also choose not to elevate the dicta in footnote 8 of Brooks v. City of Weirton, relied upon by the plaintiff, into a point of law.

Footnote: 12 ¹²This Court has recognized that “the right to bring a tort action for damages, even though there is court involvement, is economically based and is not a 'fundamental right' for . . . state constitutional equal protection purposes.” Robinson v. Charleston Area Medical Ctr., 186 W.Va.720, 728-29, 414 S.E.2d 877, 885-86 (1991).