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647 S.E.2d 848
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
___________
No. 33205
___________
ADDA MOTTO, MARIE CAREY, DAVID CAREY,
KRISTI CAREY, and SHARON RUNYON,
Plaintiffs,
V.
CSX TRANSPORTATION, INC. and WEST VIRGINIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION, OFFICE
OF ABANDONED MINE LANDS AND RECLAMATION, A WEST
VIRGINIA GOVERNMENT ENTITY,
Defendants,
______________________________________________________
Certified Questions from the Circuit Court of Kanawha County
The Honorable Tod J. Kaufmann, Judge
Civil Action No. 05-C-2757
CERTIFIED QUESTIONS ANSWERED
_____________________________________________________
Submitted: February 14, 2007
Filed: May 24, 2007
Bernard E. Layne, III
Lord, Lord & Layne, PLLC
Charleston, West Virginia
and
Letisha R. Bika,
Bika Law Office,
Charleston West Virginia
Attorneys for Plaintiffs |
Anita R. Casey
Tanya Hunt Handley
MacCorkle, Lavendar, Casey &
Sweeney, PLLC
Attorneys for Defendant West Virginia
Department of Environmental
Protection, Office of Abandoned Mine
Lands and Reclamation
|
|
Andrew Zettle
Cindy D. McCarty
Huddleston Bolen, LLP
Huntington, West Virginia
Attorneys for Defendant CSX
Transportation, Inc. |
JUSTICE BENJAMIN delivered the opinion of the Court.
JUSTICE ALBRIGHT concurs, in part, and dissents, in part, and reserves the right to
file a separate opinion.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “The appellate standard of review of questions of law answered and
certified by a circuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc.,
197 W.Va. 172, 475 S.E.2d 172 (1996).
2. “The primary object in construing a statute is to ascertain and give effect
to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen's Compensation
Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).
3. Compliance with the pre-suit notification provisions set forth in W. Va.
Code § 55-17-3(a) (2002) is a jurisdictional pre-requisite for filing an action against a State
agency subject to the provisions of W. Va. Code § 55-17-1, et seq. (2002).
Benjamin, Justice:
The instant matter comes before this Court upon an Order of Certification
entered by the Circuit Court of Kanawha County, West Virginia, on May 17, 2006. In that
order, the circuit court presented two questions regarding its discretion to waive the statutory
notice required in actions governed by W. Va. Code §§ 55-17-1, et seq. (2002), and its
discretion to stay proceedings for thirty days to allow for compliance with statutory
provisions when an action is filed without the required pre-suit notice. The circuit court
found that it had such discretion in both instances. We disagree. As explained more fully
below, dismissal is mandated for the failure to comply with the pre-suit notice provisions set
forth in W. Va. Code § 55-17-3(a).
I.
FACTUAL AND PROCEDURAL HISTORY
On June 15, 2005, plaintiffs initiated a civil action in the Circuit Court of
Logan County, West Virginia, against defendants CSX Transportation, Inc., (hereinafter
“CSX”) and the West Virginia Department of Environmental Protection, Office of
Abandoned Mine Lands and Reclamation, (hereinafter “DEP”), claiming damages arising
from the June 16, 2003, flooding of their property located on Godby Branch Road in
Chapmanville, West Virginia. The complaint alleges that DEP improperly performed its
duties with respect to an unnamed abandoned mine located along Godby Branch Road.
(See footnote 1) As
to CSX, plaintiffs allege that it negligently, carelessly, recklessly and acting with willful
disregard installed and maintained a culvert located at the base of Godby Branch Road at the
road's intersection with West Virginia Route 10.
(See footnote 2) According to the complaint, the combined
acts of DEP and CSX caused plaintiffs' property to flood on June 16, 2003.
Relying upon plaintiffs' failure to comply with pre-suit notification
requirement set forth in W. Va. Code § 55-17-3(a)(1) (2002)
(See footnote 3) , DEP immediately moved to
dismiss plaintiff's claim.
(See footnote 4) In their response, plaintiffs admitted to failing to comply with the
requirements of W. Va. Code § 55-17-3(a) and requested that the circuit court stay the
proceedings for thirty days to permit compliance with statutory notice provisions.
(See footnote 5) In reply,
DEP argued that compliance with statutory notice provisions is a jurisdictional prerequisite
and, as such, the circuit court did not have jurisdiction to proceed in this matter against DEP.
In light of the parties' arguments, the circuit court entered its May 12, 2006
order
(See footnote 6) certifying the following two questions to this Court:
1. Is there discretion for the Court to waive the mandatory
notice provision of West Virginia Code Sections 55-17-1
through 5 absent a showing of good cause?
2. Does the Circuit Court have discretion to stay
proceedings for thirty days to allow time to comply with
the provisions of West Virginia Code Sections 55-17-1
through 5 after suit has been filed before notice is given?
The certification order also indicated the circuit court's opinion that both questions should
be answered in the affirmative. Thereafter, DEP petitioned this Court to review the certified
questions. By order dated October 4, 2006, we granted DEP's petition.
II.
STANDARD OF REVIEW
It is well settled that “[t]he appellate standard of review of questions of law
answered and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart
Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Similarly, when interpreting a statute,
such as W. Va. Code §§ 55-17-1, et. seq., we apply a de novo standard of review. See, Syl.
Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the
issue on appeal from the circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo standard of review.”). Thus, we shall proceed de novo in this matter.
III.
DISCUSSION
At the outset, we note that the parties have raised an issue before this Court
which was not included within the questions certified by the circuit court but which is
inextricably related to our decision as to the impact of plaintiffs' admitted failure to comply
with the provisions of W. Va. Code § 55-17-3(a). The parties have briefed and argued the
applicability of W. Va. Code § 55-2-18 (2001) (sometimes referred to as “the Savings
Statute”), to this matter in the event that this Court determined that plaintiffs' action must be
dismissed for failure to comply with statutory mandates. As such, this Court invokes its
authority to reformulate the certified questions in order to adequately address the dispositive
issues presented. See, Syl. Pt. 1, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993)
(recognizing power of this Court to reformulate questions certified to it by the circuit courts
of this State to fully address the law involved in the question). Accordingly, we reformulate
the questions certified in the following manner:
1. Is compliance with the pre-suit notification provisions set
forth in W. Va. Code § 55-17-3(a) (2002) a jurisdictional
pre-requisite for filing an action in accordance with
W. Va. Code § 55-17-1, et seq. (2002) against certain
State entities?
2. May an action dismissed for failure to comply with the
notice provisions of W. Va. Code § 55-17-3(a) (2002) be
re-filed after expiration of the original statute of
limitations pursuant to W. Va. Code § 55-2-18 (2001)?
Having determined that “there is a sufficiently precise and undisputed factual record on
which the legal issues can be determined” and that those issues substantially control the case,
we now address the issues presented. Syl. Pt. 5, in part, Bass v. Coltelli, 192 W. Va. 516, 453
S.E.2d 350 (1994).
A.
W. Va. Code §§ 55-17-1, et seq.
In 2002, the Legislature enacted legislation entitled “Procedures for Certain
Actions Against the State” (the “Act”) which was codified in Article 17, Chapter 55 of the
West Virginia Code.
(See footnote 7) The stated purpose of the Act was to enact procedures to govern
claims asserted against certain state government agencies which may affect the public interest
and of which the Legislature should be kept informed. W. Va. Code § 55-17-1.
(See footnote 8)
At issue herein are the preliminary notice procedures set forth in W. Va. Code
§ 55-17-3(a).
(See footnote 9) Under the provisions of W. Va. Code § 55-17-3(a), a party instituting an
action against a government agency must provide both the agency's chief officer and the
attorney general with written notice, by certified mail, of the claim and relief requested at
least thirty days prior to institution of the action. The applicable statute of limitations is
thereafter tolled for a period of thirty days from the date it is mailed and again from the date
evidenced by the return receipt that it was received by the agency's chief officer. W. Va.
Code § 55-17-3(a)(2). The Act defines the terms “action”, “government agency”, and
“judgment” so that the procedures apply to only those claims filed in state courts seeking
specific types of relief against certain executive branch agencies. W. Va. Code § 55-17-2.
(See footnote 10)
In the instant matter, plaintiffs admittedly failed to comply with the pre-suit
notice provision contained in W. Va. Code §55-17-3(a). DEP argues that compliance with
this provision is a mandatory prerequisite to the circuit court's ability to proceed in an action
against a government agency. According to DEP, the State may set forth the parameters of
any suit against it based upon sovereign immunity principles. In response, plaintiffs' argue
that the Act is not applicable because they seek insurance proceeds, not funds from the State.
Therefore, they are not seeking a judgment as that term is defined in the Act. They argue that
the Legislature's intent in enacting the Act “appears to be financially motivated to insure that
[it] can prepare for claims against the State that may have budget consequences.” As any
judgment recovered would be satisfied by insurance assets, not state funds, plaintiffs
maintain the intent of the Act is not furthered by requiring notice in this instance.
(See footnote 11) We note
that plaintiffs did not raise application of the Act itself before the circuit court. Rather, in
their response to DEP's motion to dismiss, they argued that the notice requirement would
shortcut their statute of limitations by thirty days and that the harshness of dismissal could
be avoided by staying the action for thirty days to remedy the lack of pre-suit notice. The
questions certified to this court assume that the Act is applicable to this action. Because
plaintiffs' argument regarding the definition of “judgment” in the Act is not arguably within
the scope of the questions certified to this Court, was not raised before the circuit court and
does not raise constitutional issues, we decline to address it.
See, Withrow v. Board of Ed.
of Kanawha Cnty., 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1990) (generally this court will
not consider matters first raised on appeal);
Kincaid, 189 W. Va. at 413, 432 S.E.2d at 83
(recognizing power of court to reformulate certified question to “address the law which is
involved in the question”);
Louk v. Cormier, 218 W. Va. 81, 87, 622 S.E.2d 788, 794 (2005)
(this court possesses discretion to address controlling constitutional questions raised for the
first time on appeal).
The primary issue before this Court is the practical effect of failure to comply
with the notice provisions of W. Va. Code §55-17-3(a)(1). Our role in interpreting a statute
is well-settled. “The 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 Compensation Comm'r,
159 W. Va. 108, 219 S.E.2d 361 (1975). Where the statutory language is clear and
unambiguous, it should be applied as written.
See, Syl. pt. 5,
Walker v. West Virginia Ethics
Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997) (“Where the language of a statute is clear
and without ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.” (internal quotations and citations omitted)); Syl. Pt. 2,
State v. Epperly, 135
W. Va. 877, 65 S.E.2d 488 (1951)( “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.”). W. Va. Code §55-17-3(a)(1) clearly provides, in pertinent part,
that “[n]otwithstanding any provision of law to the contrary, at least thirty days prior to the
institution of an action against a government agency, the complaining party or parties
must provide the chief officer of the government agency and the attorney general written notice,
by certified mail, return receipt requested, of the alleged claim and the relief desired.”
(Emphasis added). “Typically, the word 'must' is afforded a mandatory connotation.”
Ashby
v. City of Fairmont, 216 W. Va. 527, 532, 607 S.E.2d 856, 861 (2004). Use of the word
“must” does not imply an element of discretion. Notice is required to be filed prior to suit
being initiated in the courts of this State. On this, the Legislature has spoken in plain and
unambiguous terms. The question for us, therefore, becomes, what is the consequence of the
failure to provide the mandatory notice?
In answering this question, we look to how other jurisdictions, both federal and
state, have dealt with the failure to follow statutory pre-suit procedures applicable to actions
against governmental entities for guidance.
(See footnote 12) Federal courts have consistently recognized
that the prior filing of an administrative claim, including the exhaustion of administrative
remedies, is a jurisdictional prerequisite to the filing of a federal court action under the
Federal Tort Claims Act.
See, e.g.,
Celestine v. Mount Vernon Neighborhood Health Center,
403 F.3d 76, 82 (2
nd Cir. 2005) (prior filing of proper administrative claim is a jurisdictional
prerequisite which cannot be waived);
Cook v. United States, 978 F.2d 164, 166 (5
th Cir.
1992) (proper notice of claim is jurisdictional prerequisite under Federal Tort Claims Act
suit);
Cizek v. United States, 953 F.2d 1232, 1233 (10
th Cir. 1992) (recognizing that because
Federal Tort Claims Act operates as a waiver of sovereign immunity, its pre-suit notice
provisions must be strictly construed, are jurisdictional and cannot be waived) (citations
omitted);
Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 743 (9
th Cir. 1991)
(denial of prior administrative claim is jurisdictional limitation);
Henderson v. United States,
785 F.2d 121, 123 (4
th Cir. 1986) (prior filing of administrative claim requirement is
jurisdictional and cannot be waived);
Lykins v. Pointer, Inc., 725 F.2d 645, 646 (11
th Cir.
1984) (same);
Berlin v. United States, 9 F.Supp.2d 648, 651 (S.D.W. Va. 1997) (same).
Likewise, a number of state courts find the compliance with statutory pre-suit
notice of claim provisions applicable to actions against a governmental entity to be a
jurisdictional prerequisite.
See, e.g.,
Mesa County Valley Sch. Dist. v. Kelsey, 8 P.3d 1200,
1203-4 (Colo. 2000) (finding compliance with statutory notice of claim provision is
jurisdictional prerequisite to claim asserted against state, its political subdivisions and
employees);
Town of Wethersfield v. National Fire Ins. Co., 143 A.2d 454, 456 (Conn. 1958)
(provision of statutory notice is condition precedent to suit);
Sylvester v. Dept. of
Transportation, 555 S.E.2d 740, 741 (Ga. Ct. App. 2001 ) (compliance with statutory notice
provisions is a condition precedent to subject matter jurisdiction over suit);
Rodgers v.
Martinsville Sch. Corp., 521 N.E.2d 1322 (Ind. Ct. App. 1988) (failure to comply with
statutory notice provisions is jurisdictional bar to suit against governmental entity);
Gessner
v. Phillips County Comm., 11 P.3d 1131, 1134 (Kan. 2000) (compliance with statutory pre-
suit notice provision is condition precedent to filing claim against governmental entity);
Christopher v. State, 143 P.3d 685, 691 (Kan. Ct. App. 2006) (compliance with notice of
claim statute is jurisdictional prerequisite which cannot be waived);
Mississippi Dept. of Pub.
Safety v. Stringer, 748 So.2d 662, 665 (Miss. 1999) (timely, substantial compliance with
notice of claim statute is jurisdictional condition precedent to action);
Wheeler v. McPherson,
40 P.3d 632, 635 (Utah 2002) (compliance with statutory notice provisions is a prerequisite
to vesting court with subject matter jurisdiction).
While not finding compliance with notice provisions to be a jurisdictional
prerequisite, other courts deem such non-compliance with statutory requirements to be a bar
or defense to suit.
See,
e.g.,
Cushman v. Tilton, 652 A.2d 650, 651 (Me. 1995) (failure to
comply with statutory notice provision bars claim);
Naylor v. Minnisota Daily, 342 N.W.2d
632, 634 (Minn. 1984) (though not a jurisdictional bar, failure to file timely statutory notice
may be used as defense to claim upon showing of prejudice);
University of Texas
Southwestern Med. Center v. Loutzenhiser, 140 S.W.2d 351, 365 (Tex. 2004) (while lack of
proper statutory notice did not deprive a court of subject matter jurisdiction based upon the
specific statutory language utilized, it did operate as an absolute bar to an action brought
under the Tort Claims Act);
Halberstam v. Commonwealth, 467 S.E.2d 783 (Va. 1996)
(failure to strictly comply with statutory notice provisions bars action);
Duran v. Board of
County Comm'rs, 787 P.2d 971, 972 (Wyo. 1990) (failure to comply with statutory notice
provisions operates as absolute bar to suit).
Upon careful consideration of the above cited authorities from federal and state
jurisdictions and in light of the Legislature's express purpose of protecting the public interest
in enacting W. Va. Code § 55-17-3 (a)'s notice provisions, we find the provision of statutory
notice to be jurisdictional in nature. We are persuaded by the reasoning of those courts
deeming such notice to be jurisdictional in light of principles of sovereign immunity.
Accordingly, we now hold that compliance with the pre-suit notification provisions set forth
in W. Va. Code § 55-17-3(a) (2002) is a jurisdictional pre-requisite for filing an action
against a State agency subject to the provisions of W. Va. Code § 55-17-1, et seq. (2002).
To accept the circuit court's opinion that it has discretion to waive this
mandatory notice would require us, in effect, to judicially repeal W. Va. Code §55-17-3(a).
In Henderson, the Fourth Circuit rejected an analogous argument that the filing of a state
court claim could satisfy the requirement of a prior administrative claim to establish federal
court jurisdiction. Therein, the Fourth Circuit stated:
Finally, we are concerned about the practical impact of holding
that the filing of a state court suit satisfies the requirement of
filing an administrative claim. Such a holding would be
tantamount to judicial repeal of the provisions requiring the
exhaustion of administrative remedies found in 28 U.S.C. §
2675. Whether a court holds that the filing of a state court suit
against the individual employee obviates the need for filing an
administrative claim, as the plaintiffs in Meeker and Rogers claimed, or whether it holds that the filing of a state court suit
satisfies that administrative requirement would seem to make
little practical difference. In neither instance is a claim
presented by the claimant to the appropriate federal agency as
required by law.
Henderson, 785 F.2d at 125. Herein, the Legislature has enacted notice requirements for
certain actions against executive branch agencies which may impact the public interest in
order to provide adequate time for all appropriate governmental entities to act. In so doing,
it has protected a claimant's interests by simultaneously extending the applicable statute of
limitation when notice is properly provided. W. Va. Code § 55-17-3 (a)(2). As no
constitutional challenge has been made to this legislative enactment, this Court is unwilling
to judicially repeal it by recognizing the discretion to waive clear and unambiguous statutory
provisions. Dismissal is mandated because the plaintiffs' failure to comply with statutory
notice mandates deprives the circuit court of jurisdiction over this matter.
B.
Application of the Savings Statute,
W. Va. Code § 55-2-18
Having found that dismissal is required for failure to comply with the notice
provisions contained within W. Va. Code § 55-17-3 due to a lack of jurisdiction, the question
arises as to whether plaintiffs may invoke W. Va. Code § 55-2-18 to refile their action after
compliance with W. Va. Code § 55-17-3. This question is easily answered in the affirmative
after examination of the plain language of W. Va. Code § 55-2-18 and Rule 41(b) (1998) of
our
Rules of Civil Procedure.
West Virginia Code § 55-2-18 provides:
(a) For a period of one year from the date of an order dismissing
an action or reversing a judgment, a party may re-file the action
if the initial pleading was timely filed and (i)
the action was
involuntarily dismissed for any reason not based upon the merits
of the action or (ii) the judgment was reversed on a ground
which does not preclude a filing of new action for the same
cause.
(b) For purposes of subsection (a) of this section, a dismissal not
based upon the merits of the action includes, but is not limited
to:
(1) A dismissal for failure to post an appropriate
bond;
(2) A dismissal for loss or destruction of records
in a former action; or
(3) A dismissal for failure to have process timely
served, whether or not the party is notified of the
dismissal.
(Emphasis added). While W. Va. Code § 55-2-18(b) provides three examples of a dismissal
not based upon the merits, Rule 41(b) of the
West Virginia Rules of Civil Procedure is
relevant to determine the scope of the Savings Statute's reach. Rule 41(b), entitled
Involuntary Dismissal; effect thereof, provides, in pertinent part, “[u]nless the court in its
order for dismissal provides otherwise, a dismissal under this subdivision and any dismissal
not provided for in this rule,
other than a dismissal for lack of jurisdiction or for improper
venue, operates as an adjudication on the merits.” (Emphasis added). Thus, under our
Rules
of Civil Procedure, a dismissal for lack of jurisdiction is not an adjudication on the merits.
Reading Rule 41(b) in conjunction with W. Va. Code § 55-2-18(a)(i), leads us to the
inescapable conclusion that the Savings Statute applies where an action is dismissed for
failure to comply with the notice provisions of W. Va. Code § 55-17-3(a).
While we acknowledge and tend to agree with DEP's argument that application
of the Savings Statute to permit re-filing thwarts the legislative intent behind the pre-suit
notice requirement, the language chosen by the Legislature in enacting the Savings Statute
compels this result.
(See footnote 13) The Legislature expressly provided in the Savings Statute that any
action timely filed and not dismissed on the merits may refiled. The Legislature had the
power to specifically exclude actions dismissed for failure to comply with the provisions of
W. Va. Code §§ 55-17-1,
et seq., from scope of the Savings Statute. It did not do so. Where
the Legislature itself has not acted, it is improper for this Court, under the guise of statutory
interpretation, to amend legislative enactments in order to judicially impose upon the
Legislature a result it did not intend. Therefore, we can not read into W. Va. Code § 55-2-18
an exception for actions dismissed for failure to comply with the provisions of W. Va. Code
§§ 55-17-1,
et seq.
IV.
CONCLUSION
Accordingly, we answer the re-formulated certified questions in the following
manner:
1. Is compliance with the pre-suit notification provisions set
forth in W. Va. Code § 55-17-3(a) (2002) a jurisdictional
pre-requisite for filing an action in accordance with
W. Va. Code § 55-17-1, et seq. (2002) against certain
State entities?
ANSWER: YES.
2. May an action dismissed for failure to comply with the
notice provisions of W. Va. Code § 55-17-3(a) (2002) be
re-filed after expiration of the original statute of
limitations pursuant to W. Va. Code § 55-2-18 (2001)?
ANSWER: YES.
Upon return of this matter to the Circuit Court of Kanawha County, the circuit
court is directed to dismiss the instant action for lack of jurisdiction due to plaintiffs'
admitted failure to comply with the notice provisions of W. Va. Code § 55-17-3(a).
According to the Complaint, “DEP was negligent, reckless, careless, and acted with
wanton disregard in obligation and responsibilities with a certain abandoned mine located
along Godby Branch Road, said mines having been permitted to remain is such a state as to
allow water to accumulate in an unsafe and hazardous manner. Said mines collapsed and
deposited an excessive amount of water along Godby Branch Road.”
Footnote: 2 Although not entirely clear from the wording of the complaint, it appears that
plaintiffs allege this culvert caused damming of a creek running along Godby Branch Road.
Footnote: 3 The text of W. Va. Code § 55-17-3(a) (2002) is set forth,
infra, at note 8.
Footnote: 4 According to the certification order, DEP's motion to dismiss was originally filed
in the Circuit Court of Logan County. CSX subsequently removed the matter to federal court
arguing that DEP was fraudulently joined. After the federal district court remanded the
matter to the Circuit Court of Logan County, plaintiffs' moved for a change of venue “based
on their having improperly filed in Logan County rather than Kanawha County, as required
in West Virginia Code § 14-2-2.” The Circuit Court of Logan County transferred the matter
to the Circuit Court of Kanawha County before ruling on the pending motion to dismiss.
Footnote: 5 Plaintiffs also argued that compliance with statutory pre-suit notice provisions
effectively reduces the two-year statute of limitations set forth in W. Va. Code 55-2-12
(1959) by thirty days. Such argument is without merit in light of the express provisions of
W. Va. Code § 55-17-3(a)(2) which
tolls the statute of limitations for thirty days from the
date notice is provided.
Footnote: 6 The circuit court entered an amended order of certification on May 23, 2006. The
amended order did not impact the certified questions or the circuit court's answers thereto.
Instead, the circuit court ordered defendants, rather than plaintiffs, to file a petition with this
Court for acceptance of the certified questions.
Footnote: 7 Neither party has raised any question regarding the constitutionality of this statutory
scheme or the Legislature's ability to waive or provide an exception to the State's sovereign
immunity guaranteed by Article VI, Section 35 of the
West Virginia Constitution.
Footnote: 8 W. Va. Code § 55-17-1 provides:
(a) The Legislature finds that there are numerous actions, suits
and proceedings filed against state government agencies and
officials that may affect the public interest. Depending upon the
outcome, this type of litigation may have significant
consequences that can only be addressed by subsequent
legislative action. In these actions, the Legislature is not
directly involved as a party. The Legislature is not a proper
party to these actions because of an extensive structure of
constitutional protections established to safeguard the
prerogatives of the legislative branch under our governmental
system of checks and balances. Government agencies and their
officials require more notice of these actions and time to
respond to them and the Legislature requires more timely
information regarding these actions, all in order to protect the
public interest. The Legislature further finds that protection of
the public interest is best served by clarifying that no
government agency may be subject to awards of punitive
damages in any judicial proceeding.
(b) It is the purpose of this article to establish procedures to be
followed in certain civil actions filed against state government
agencies and their officials.
Footnote: 9 W. Va. Code § 55-17-3(a) provides:
(1) Notwithstanding any provision of law to the contrary, at least
thirty days prior to the institution of an action against a
government agency, the complaining party or parties must
provide the chief officer of the government agency and the
attorney general written notice, by certified mail, return receipt
requested, of the alleged claim and the relief desired. Upon
receipt, the chief officer of the government agency shall
forthwith forward a copy of the notice to the president of the
Senate and the speaker of the House of Delegates. The
provisions of this subdivision do not apply in actions seeking
injunctive relief where the court finds that irreparable harm
would have occurred if the institution of the action was delayed
by the provisions of this subsection.
(2) The written notice to the chief officer of the government
agency and the attorney general required by subdivision (1) of
this subsection is considered to be provided on the date of
mailing of the notice by certified mail, return receipt requested.
If the written notice is provided to the chief officer of the
government agency as required by subdivision (1) of this
subsection, any applicable statute of limitations is tolled for
thirty days from the date the notice is provided and, if received
by the government agency as evidenced by the return receipt of
the certified mail, for thirty days from the date of the returned
receipt.
Footnote: 10 W. Va. Code § 55-17-2 provides:
For the purposes of this section:
(1) “Action” means a proceeding instituted against a
governmental agency in a circuit court or in the supreme court
of appeals, except actions instituted pursuant to statutory
provisions that authorize a specific procedure for appeal or
similar method of obtaining relief from the ruling of an
administrative agency and actions instituted to appeal or
otherwise seek relief from a criminal conviction, including, but
not limited to, actions to obtain habeas corpus relief.
(2) “Government agency” means a constitutional officer or
other public official named as a defendant or respondent in his
or her official capacity, or a department, division, bureau,
board, commission or other agency or instrumentality within the
executive branch of state government that has the capacity to
sue or be sued;
(3) “Judgment” means a judgment, order or decree of a court
which would:
(A) Require or otherwise mandate an expansion of, increase in,
or addition to the services, duties or responsibilities of a
government agency;
(B) Require or otherwise mandate an increase in the
expenditures of a government agency above the level of
expenditures approved or authorized before the entry of the
proposed judgment;
(C) Require or otherwise mandate the employment or other
hiring of, or the contracting with, personnel or other entities by
a government agency in addition to the personnel or other
entities employed or otherwise hired by, or contracted with or
by the government agency;
(D) Require or otherwise mandate payment of a claim based
upon a breach of contract by a government agency; or
(E) Declare an act of the Legislature unconstitutional and,
therefore, unenforceable.
Footnote: 11 Plaintiffs' argument does not address the potential impact upon state funds if the
insurance policy at issue is, in reality, a self-funded policy under which claims are paid from
state funds rather than insurance company assets.
Footnote: 12 West Virginia Code § 55-17-3(a) is not included within our Tort Claims Act, but
is a separate statute of limited application. However, we find persuasive decisions by other
jurisdictions discussing such pre-suit notification procedures in the context of their respective
Tort Claims Acts.
Footnote: 13
We also note DEP's argument that the Savings Statute is inapplicable because the
underlying action cannot be timely filed where there is no pre-suit notice. It appears from
the limited record before this Court that the underlying action was filed in the Circuit Court
of Logan County within the prescribed two year limitation period although the circuit court
was without jurisdiction to proceed due to the lack of pre-suit notice. In Tompkins v. Pacific
Life Mut. Ins. Co, 53 W. Va. 479, 484, 44 S.E.439, 441 (1903), the Court, after analyzing
several cases, recognized that if an action is timely filed but dismissed for want of
jurisdiction it should be considered timely filed for purposes of the Savings Statute. See also, Siever v. Klots Throwing Co. of W. Va., 101 W. Va. 457, 132 S.E. 882, 885 (1926)
(recognizing decision in Tompkins as standing for proposition that where action is originally
timely filed but dismissed for want of jurisdiction, it may be refiled within one year pursuant
to statute regardless of whether the statute of limitations had expired at the time of refiling).