A.
Governmental Immunity, the West Virginia Governmental
Tort Claims and Insurance Reform Act and State Insurance
The
question of whether insurance coverage exists for a claim against a governmental
employee must necessarily begin with a determination as to whether a constitutional
or statutory immunity applies to the claim. If there is an applicable immunity,
insurance coverage cannot exist because the insurance coverage may only be
purchased to cover those claims for which there is no constitutional or statutory
immunity. As such, an analysis of whether coverage exists under the State's
insurance policy for the claims asserted
against Glendenning must begin with a discussion of constitutional and statutory
immunities.
Until
fairly recently in our State's history, the general rule was that constitutional
immunity barred most claims against governmental entities. Pursuant to Article
VI, Section 35 of the
West Virginia Constitution,
The
State of West Virginia shall never be made a defendant in any court of law or
equity, except the State of West Virginia, including any subdivision thereof,
or any municipality therein, or any officer, agent, or employee thereof, may
be made a defendant in any garnishment or attachment proceeding, as a garnishee
or suggestee.
Deeming absolute immunity for governmental entities to be unduly harsh, this
Court created exceptions to the same.
(See
footnote 3) Ultimately, in 1974, this Court summarily concluded
that the immunity set forth in Article 35, Section 6 does not extend to municipalities,
rejecting the argument that local government is a “branch” of the
State. Syl. Pt. 4,
Higginbotham v. City of Charleston, 157 W. Va.
724, 733, 204 S.E.2d 1, 7 (1974).
One year
later, in 1975, then-Chief Justice Haden conducted an extensive analysis of the
history of common-law governmental immunity and its intricate governmental-proprietary
function exceptions, particularly as applied to municipal entities
in
Long v. City of Weirton, 158 W. Va. 741, 767-86, 214 S.E.2d
832, 850-60 (1975). Noting the history of common-law municipal governmental
immunity did not support a continued recognition of the same, the Court abolished
it in
Long. Syl. Pts. 9 & 10,
Long. However, in so doing,
Chief Justice Haden encouraged legislative action regarding the scope of local
governmental immunity stating:
Although,
indeed, it would seem preferential for the Legislature to speak comprehensively,
we do not wish to perpetuate bad law of judicial origin pending the fortuity
of action by the Legislature.
Long, 158 W. Va. at 783, 214 S.E.2d at 859. Prior to the Legislature
accepting Chief Justice Haden's invitation, this Court went on to abolish common
law governmental immunity as it applied to county commissions and county boards
of education.
See, Syl. Pt. 2,
Gooden v. County Commission, 171
W. Va. 130, 298 S.E.2d 103 (1982) (county commissions);
Ohio Valley
Contractors v. Board of Education, 170 W. Va. 240, 293 S.E.2d 437
(1982) (county boards of education). The Legislature finally accepted Chief
Justice Haden's invitation in 1986, when it enacted the West Virginia Governmental
Tort Claims and Insurance Reform Act, W. Va. Code §§ 29-12A-1,
et.
seq. (1986) (hereinafter, the “Act”).
In
Randall
v. Fairmont City Police Department, 186 W. Va. 336, 412 S.E.2d 737 (1991),
Justice McHugh, writing for the Court, acknowledged this Court's prior abolition
of common-law governmental immunity and the Leglislature's reaction thereto in
enacting the Act. Justice McHugh eloquently described the Act as follows: “Its
purposes are to
limit [tort] liability of political subdivisions
and [to]
provide [tort]
immunity to political subdivisions in
certain instances
and to
regulate the
costs and coverage of
insurance available to political subdivisions for
such liability.”
W. Va. Code, 29-12A-1 [1986] (emphasis added).
The basic structure of the Act is as follows.
Under
the Act a political subdivision is stated to be immune generally from liability
for damages in a civil action brought for death, injury or loss to persons or
property allegedly caused by any act or omission of the political subdivision.
W. Va.
Code, 29-12A-4(b)(1) [1986]. The Act lists seventeen specific types of acts
or omissions covered by the tort immunity available under the Act to a political
subdivision.
W. Va. Code, 29-12A-5(a)(1)-(17) [1986]. . . .
The
Act also immunizes an employee of a political subdivision from tort liability,
unless his or her acts or omissions were manifestly outside the scope of employment
or official responsibilities; or unless the employee's acts or omissions were
with malicious purpose, in bad faith or in a wanton or reckless manner; or unless
any statute expressly imposes liability upon the employee.
W. Va. Code,
29-12A-5(b)(1)-(3) [1986].
On
the other hand, the Act recognizes the tort liability of a political subdivision
for acts or omissions in five fairly broad situations, W. Va. Code, 29-12A-4(c)(1)-(5)
[1986], including liability in tort for damages “caused by the negligent
performance of acts by their [political subdivisions'] employees while acting
within the scope of employment [,]”
W. Va. Code, 29-12A-4(c)(2)
[1986]. For these situations where liability attaches, the Act imposes a $500,000
limit of liability for the noneconomic loss of any one person,
W. Va.
Code, 29-12A-7(b) [1986], and disallows punitive damages,
W. Va.
Code, 29-12A-7(a) [1986].
The
Act explicitly provides that “[t]he purchase of liability insurance . .
. by a political subdivision does not constitute a waiver of any immunity it
may have pursuant to this article or [of] any defense of the political subdivision
or its employees.”
W. Va. Code, 29-12A-16(d) [1986]. The liability insurance
could be purchased by a political subdivision “with respect to its potential
liability and that of its employees” under the Act.
W. Va. Code,
29-12A-16(a) [1986].
Finally,
the Act contains provisions regulating the costs and coverage of liability insurance
available to political subdivisions.
W. Va. Code, 29-12A-17 [1986].
The
history in West Virginia of the qualified immunity, from tort liability, available
to municipalities and certain other political subdivisions of the state is consistent
with the typical pattern in most of the other jurisdictions: a broad, often total,
abrogation by the judiciary of the state common-law local governmental tort immunity,
followed soon thereafter by the enactment of governmental tort claims legislation,
typically providing in substance for a broad reinstatement of local governmental
immunity from tort liability.
Randall, 186 W. Va. at 341-2, 412 S.E.2d at 742-3 (emphasis in
original, footnotes omitted).
As recognized
by this Court in Justice McHugh's description of the Act, insurance may be purchased
to cover liability for those acts where immunity has not been retained. The Act's
immunity provisions and the scope of insurance which may be obtained are thereby
interrelated. The Act explicitly provides that:
The
purchase of liability insurance, or the establishment and maintenance of a self-insurance
program, by a political subdivisions
does not constitute a waiver of any
immunity it may have pursuant to this article or any defense of the political
subdivision or its employees.
W. Va. Code § 29-12A-16 (d) (2003) (emphasis added). While the majority
acknowledges (albeit in a “
but see” parenthetical) the presence
of this statutory provision, I most disagree
with its description of the same. The majority states this provision provides “purchase
of an insurance policy does not
automatically waive immunity provided
by the Act.” (Emphasis added). Contrary to this suggestion by the majority,
the plain language of the statute unambiguously provides that the terms of
the insurance policy
does not operate to
waive statutory immunity.
I find no equivocation whatsoever in the language chosen by the Legislature.
The statute does not provide that the policy must specifically preserve statutory
immunity as the majority deems is required. Similarly, W. Va. Code § 29-12-5
(a)(4) (2004)
(See footnote
4) , which authorizes the State Board of Risk and Insurance Management
to procure insurance on behalf of the state and its political subdivisions
(See
footnote 5) , unambiguously states “[t]hat nothing herein shall
bar the insurer of political subdivisions from relying upon any
statutory
immunity granted such political subdivisions against claims or suits” and
does not require a specific preservation of the same in the policy itself.
(Emphasis added).
Our statutory
law governs both who and what may be covered by a governmental insurance policy.
The policy should not be read independent of our governing statutes as I believe
the majority has done in this instance. The policy at issue herein contains
three separate provisions which, in my opinion, recognize this interrelationship.
These include policy Endorsement Number 6,
(See
footnote 6) Wrongful Act Liability Coverage Part Section VI. D
(See
footnote 7) and Wrongful Act Liability Coverage Exclusion 4.
(See
footnote 8) The majority acknowledges only Endorsement Number 6,
noting that it purports to preserve the provisions of the Act but
finding it is not “sufficiently 'conspicuous, plain, and clear'” to
be enforced. I disagree with this conclusion. Here, we are dealing with a governmental
insurance policy which was purchased by virtue of statutory authority to cover
claims for which the State has not waived or preserved immunity on its behalf
or on behalf of its political subdivisions. It is my opinion that the policy
must be read in light of the applicable statutes, not independent of them.
The majority
avoids discussion of applicable statutes by citing to Syllabus Point 5 of this
Court's opinion in
Parkulo v. West Virginia Bd. of Probation & Parole,
199 W. Va. 161, 483 S.E.2d 507 (1996). According to Syllabus Point 5, the
terms of an insurance contract control where they grant greater or lesser immunities
than those found in
case law.
(See
footnote 9) However, the issue presented to this Court did not involve
defenses and immunities found in
case law. The issue herein involves the
application of
statutory law, not
case law. In
Parkulo,
we expressly recognized that the “
Legislature may direct such limitation
or expansion of the insurance coverages and exceptions applicable to cases
brought under W. Va. Code §29-12-5, as, in its wisdom, may be appropriate.”
Parkulo,
199 W. Va. at 175,
483 S.E.2d at 521. As we recognized in
Parkulo, legislative direction
- such as that found in our statutes - trumps arguably contrary provisions
found in the insurance policy at issue. The majority decision now brings this
accepted principle into question. To rely upon precedent which states that
contrary policy provisions override common-law immunities in order that applicable
statutes may be ignored is, in my opinion, not only contrary to our prior jurisprudence,
but is also inappropriate in view of the statutory law applicable herein. To
my knowledge, we have never held that the terms of an insurance policy may
negate statutory law.
Examination
of our statutory law reveals that coverage does not exist under the State's insurance
policy for the claims asserted against Glendenning. Glendenning was employed,
as a teacher by the Webster County Board of Education when he, by his admission,
sexually abused some of his students. Pursuant to W. Va. Code § 29-12-5a
(1986), in effect during the times at issue herein, the State Board of Risk and
Insurance Management was required to provide:
appropriate
professional or other liability insurance for all county boards of education
[and] teachers . . . Said insurance shall cover any claim, demand, action, suit
or judgment by reason of
alleged negligence or other acts resulting
in bodily injury or property damages . . .
if, at the time of the alleged
injury, the teacher, . . . was acting in the discharge of his duties, within
the scope of his office, position or employment, under the direction of the board
of education . . . The [teacher] shall be defended by the county board or
an insurer
unless the act or omission shall not have been within the
coarse or scope of employment or official responsibility or was motivated by malicious
or criminal
intent. (See
footnote 10)
(Emphasis added). Likewise, the Act, in W. Va. Code § 29-12A-11 (a)(1)
(1986), requires a political subdivision to provide for the defense of an employee,
such as Glendenning, relating to claims for injuries “allegedly caused
by an act or omission of the employee
if the act or omission is
alleged
to have occurred while the employee was
acting in good faith and not
manifestly outside the scope of his employment or official responsibilities.” (Emphasis
added). One cannot seriously question that a teacher who engages in criminal
misconduct of the kind admitted to by Glendenning to herein has neither acted
in good faith nor within the scope of his employment or responsibilities. These
were purposeful acts. These were criminal acts.
The Act
similarly immunizes a political subdivision employee from personal liability
unless his
acts or omissions were (1) “manifestly outside the scope of employment or
official responsibilities” or (2) “with malicious purpose, in bad faith,
or in a wanton or reckless manner[.]” W. Va. Code § 29-12A-5 (b)(1)-(2)
(1986).
(See footnote 11) The
Act also authorizes liability to be imposed upon the political subdivision for
the acts of its employees where the
injury is caused “by the
negligent performance of acts by their
employees
while acting within the scope of employment” or “by
the
negligence of their employees and that occurs within or on the grounds
of buildings that are used by such political subdivisions.” W. Va.
Code § 29- 12A-4 (c)(2) & (4) (1986).
Reading
each of the above statutes
in para materia leads, in my opinion, to the
inescapable conclusion that a political subdivision employee, such as Mr. Glendenning,
may only be provided coverage under the State's insurance policy in limited instances.
Our statutory law authorizes the purchase of insurance to correspond to liabilities
assumed and immunities waived by statute. If the employee is acting in good faith,
not manifestly outside the scope of his employment or official responsibilities,
and without malicious or criminal intent, he is entitled to a defense and is
immune from personal liability.
See, W. Va. Code §§ 29-12-5a;
29-12A-11 (a)(1) and 29-12A-5 (b). While granting the employee this immunity,
the Legislature simultaneous imposed liability upon the political subdivision
employer for its employee's negligent acts and required the employer to provide
a defense to the employee.
See, W. Va. Code §§ 29-12-5a;
29-12A-4 (c)(2) & (4). Likewise, the Legislature authorized the purchase
of liability insurance to provide a defense and indemnification in these limited
circumstances. W. Va. Code § 29-12-5a.
The Legislature
has specifically
prohibited the purchase of insurance to defend
and indemnify a teacher when the teacher is acting outside the course or scope
of his employment or official responsibility or when the acts or omissions
are motivated by malicious or criminal intent.
W. Va. Code § 29-12-5a.
In the instant matter, Glendenning, a teacher, pled guilty to criminal charges
arising from the sexual abuse of his student, Mr. Bender, and was criminally
sentenced for the same. He also admitted, in the criminal proceedings, to sexually
abusing Mr. Strum, Mr. Gregory, and Mr. Brooks. At a minimum, therefore, because
the conduct which forms the basis of the claims asserted herein was criminal
in nature, no authorization to purchase insurance covering liability arising
from his misconduct ever existed. Thus, the claims asserted against Glendenning
cannot, as a matter of law, fall within the coverage of the State's insurance
policy.
(See footnote
12)
B.
The Majority's Interpretation of the Insurance Policy