655 S.E.2d 563
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2. “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.” Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).
3. “In order for a plaintiff to prevail on a claim for intentional or reckless
infliction of emotional distress, four elements must be established. It must be shown: (1) that
the defendant's conduct was atrocious, intolerable, and so extreme and outrageous as to
exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional
distress, or acted recklessly when it was certain or substantially certain emotional distress
would result from his conduct; (3) that the actions of the defendant caused the plaintiff to
suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so
severe that no reasonable person could be expected to endure it.” Syllabus Point 3, Travis
v. Alcon Laboratories, 202 W.Va. 369, 504 S.E.2d 419 (1998).
Per Curiam:
The appellant, Joseph W. Brown, appeals the September 26, 2006, order of the
Circuit Court of Marion County that granted summary judgment in favor of the appellees,
the City of Fairmont and various officials of the City's firemen's pension and relief fund, in
the appellant's action alleging that the appellees committed several torts in prematurely
awarding the appellant's ex-wife her equitable portion of the appellant's firefighter's
pension. For the reasons that follow, we affirm in part, reverse in part, and remand this case
to the circuit court with directions.
(B) Earliest retirement age. _ For purposes of this paragraph, the
term “earliest retirement age” means the earlier of -
(i) the date on which the participant is entitled to a distribution
under the plan, or
(ii) the later of _
(I) the date the participant attains age 50, or
(II) the earliest date on which the participant could begin
receiving benefits under the plan if the participant separated
from service.
Applying this rule to the facts below, the circuit court concluded,
Pursuant to the QDRO and the Code, Ms. Brown was eligible to
receive her portion of the benefits on the earliest date on which
the Plaintiff could begin receiving benefits under the plan, if he
had separated from service.
9. Plaintiff was born on 14 August 1949 and would have
attained the age of fifty (50) years on 14 August 1999. He
attained twenty (20) years of service on or about 16 February
1998, having begun his employment on 16 February 1978.
Therefore, pursuant to the QDRO and 26 U.S.C. § 414(p) (4)
(B), distribution of the policy proceeds to an alternate payee was
proper at any time after 14 August 1999. Plaintiff, and Ms.
Brown, each held a property interest in the pension benefits as
of that date, as Plaintiff met the age and service standards
necessary to attain benefits from the fund. Because Defendants
disbursed the pension benefits to Ms. Brown on or after 5 June
2001, Plaintiff's rights were not violated. (See footnote 2) (Footnote added.).
We begin our discussion by recognizing that a QDRO is essentially a limited
exception to the pension plan anti-alienation provisions of the Employee Retirement Income
Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”) and the Internal Revenue Code, 26 U.S.C.
§ 1 et seq. By its express terms, ERISA does not apply to government pension plans like the
firemen's pension and relief fund of which the appellant is a participant. (See footnote 3) See 29 U.S.C. §
1003(b); Barrett v. Barrett, 202 W.Va. 424, 426, 504 S.E.2d 659, 661 (1998) (indicating
that “[a] QDRO is a creation of [ERISA] which specifically exempts [Civil Service
Retirement System] and [Federal Employees Retirement System] benefits from its
application.”(footnote omitted)).
The parties appear to agree that the QDRO at issue is governed by Internal
Revenue Code provisions. A QDRO is defined in 26 U.S.C. § 414(p)(1)(A)(i) as a domestic
relations order “which creates or recognizes the existence of an alternate payee's right to, or
assigns to an alternate payee the right to, receive all or a portion of the benefits payable with
respect to a participant under a plan.” A domestic relations order meets the requirements of
a QDRO only if the order
(A) does not require a plan to provide any type or form of
benefit, or any option, not otherwise provided under the plan,
(B) does not require the plan to provide increased benefits
(determined on the basis of actuarial value), and
(C) does not require the payment of benefits to an alternate
payee which are required to be paid to another alternate payee
under another order previously determined to be a qualified
domestic relations order.
§414(p)(3). However, under § 414(p)(4)(A),
A domestic relations order shall not be treated as failing to meet
the requirements of subparagraph (A) of paragraph (3) solely
because such order requires that payment of benefits be made to
an alternate payee _
(i) in the case of any payment before a participant has
separated from service, on or after the date on which the
participant attains (or would have attained) the earliest
retirement age,
(ii) as if the participant had retired on the date on which
such payment is to begin under such order (but taking into
account only the present value of the benefits actually accrued
and not taking into account the present value of any employer
subsidy for early retirement), and
(iii) in any form in which such benefits may be paid
under the plan to the participant (other than in the form of a joint
and survivor annuity with respect to the alternate payee and his
or her subsequent spouse).
The circuit court relied in part on the language in § 414(p)(4)(A) to conclude
that the appellees properly disbursed Ms. Brown's portion of the pension proceeds prior to
the appellant's retirement. The appellant, on the other hand, relies on the language of a
“savings clause” in the QDRO which indicates that the order is not intended to “provide a
benefit option not otherwise provided under the terms of the plan.” (See footnote 4)
We agree with the appellant. Clearly, the QDRO language does not expressly
require the payment of pension funds to the alternate payee prior to the participant's
separation from employment. Instead, the QDRO plainly indicates that Ms. Brown is not to
receive a benefit not otherwise provided under the terms of the plan. Therefore, we must
look not to federal law but to the terms of the firemen's pension and relief fund plan to
determine when proceeds may properly be paid from the fund.
The Legislature has prescribed the method whereby a participant of the
firemen's pension and relief fund can commence the payment of his or her retirement
benefits in W.Va. Code § 8-22-25(a) (1985), which provides:
Any member of a paid police or fire department who is
entitled to a retirement pension hereunder, and who has been in
the honorable service of such department for twenty years, may,
upon written application to the board of trustees, be retired from
all service in such department without medical examination or
disability. On such retirement the board of trustees shall
authorize the payment of annual retirement pension benefits
commencing upon his retirement or upon his attaining the age
of fifty years, whichever is later, payable in twelve monthly
installments for each year of the remainder of his life, in an
amount equal to sixty percent of such member's average annual
salary or compensation received during the three twelve-
consecutive-month periods of employment with such department
in which such member received his highest salary or
compensation while a member of the department, or an amount
of five hundred dollars per month, whichever is greater.
We find the provisions of W.Va. Code § 8-22-25(a) to be clear and unambiguous. The
provisions indicate that before a participant's pension benefits can be paid from the firemen's
pension and relief fund, the fund participant must have twenty years of honorable service
with the fire department, must have attained the age of fifty years, must have made written
application to the board of trustees of the fund, and must have terminated one's employment
with the fire department. “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.” Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). (See footnote 5) Therefore, we will give the unambiguous provisions of W.Va. Code § 8-22-25(a) full force
and effect in this case.
The facts are undisputed that when the distribution of fund proceeds to Ms.
Brown commenced on or after June 5, 2001, the appellant, although he had twenty years of
service with the fire department and had attained the age of fifty years, had not made written
application to the board of trustees of the fund and had not retired from the fire department.
Therefore, all of the requirements of W.Va. Code § 8-22-25(a) for the disbursement of fund
proceeds had not been met on June 5, 2001, so that any disbursement of the proceeds of the
fund at that time was improper.
Accordingly, we reverse the summary judgment order of the circuit court to the
extent that it found the appellees' disbursement of the funds proper under the applicable law.
Furthermore, we remand this matter with instructions to the circuit court to enter an order
that mandates the full reinstatement of the appellant's benefits with interest and any other
relief deemed necessary to place the appellant in the same economic position in relation to
his firemen's pension that he was in prior to the improper disbursement of a portion of his
pension proceeds.
In granting summary judgment, the circuit court did not specifically address
each cause of action brought by the appellant. However, this Court has stated that we may
affirm a circuit court's order under independently sufficient grounds. See W.Va. Human
Rights Com'n v. Garretson, 196 W.Va. 118, 123, 468 S.E.2d 733, 738 (1996) (noting that
“we may affirm a circuit court's dismissal order under any independently sufficient
grounds.”). We find sufficient grounds to affirm the circuit court's summary judgment order
with regard to the appellant's breach of fiduciary duty, invasion of privacy, and negligent and
intentional infliction of emotional distress causes of action.
With regard to his invasion of privacy claim, the appellant states that between
January 7, 2003 and April 4, 2003, the pension board conducted private meetings with Ms.
Brown and her counsel relevant to matters related to the appellant's pension rights and
regarding an amended QDRO, without providing the appellant with notice of or the
opportunity to participate in the meetings. He further alleges that the pension board verbally
communicated to members of the fire department private information relevant to his pension
benefits and information related to the private meeting the board had with Ms. Brown and
her counsel. The circuit court reasoned in granting summary judgment to the appellees on
the appellant's invasion of privacy claim that “because Ms. Brown held a property interest
in her half of the marital property (the pension benefits), Defendants did not violate
Plaintiff's rights by discussing the distribution of the benefits with Ms. Brown.” We find that
the circuit court committed no error in so ruling, and we affirm the summary judgment to the
appellees on the appellant's invasion of privacy claim.
Concerning the appellant's breach of fiduciary duty, we note that the appellees
disbursed the pension proceeds to Ms. Brown based on a QDRO. There is authority for the
proposition that once a benefit plan determines that a state domestic relations order meets the
administrative and ministerial requirements necessary to be a QDRO, the plan has no choice
but to comply with the QDRO. Blue v. UAL Corp., 160 F.3d 383, 385 (7th Cir. 1998)
(recognizing that “[c]ompliance with a QDRO is obligatory.”). Further, it is not necessary
for the plan to look beneath the surface of the QDRO to inquire into its propriety under state
law. Blue, 160 F.3d at 385. In the instant case, the appellees had a duty to comply with the
circuit court's QDRO and to disburse the pension proceeds to Ms. Brown. For this reason,
we find that the appellees did not breach their fiduciary duty to the appellant as a matter of
law, and that the circuit court did not err in granting summary judgment to the appellees on
the appellant's breach of fiduciary claim.
The appellant also brought a cause of action for negligent infliction of
emotional distress. In the case of Lipton v. Unumprovident Corp., 10 A.D.3d 703, 783
N.Y.S.2d 601 (N.Y.App.Div. 2004), the plaintiff, a commodities broker, sued a firm through
which he cleared his trades and the firm's parent company, seeking to recover damages for
breach of contract, negligent representation, negligent infliction of emotional distress, and
breach of fiduciary duty, in connection with the insurer's denial of coverage under a group
insurance policy which the firm procured for the benefit of the plaintiff. The trial court
dismissed the complaint for failure to state a claim. On appeal, the court found that the
plaintiff did not state a claim for negligent infliction of emotional distress. The court
explained,
Although physical injury is no longer a necessary element of a
negligent infliction of emotional distress claim, such a cause of
action generally must be premised on conduct that unreasonably
endangers the plaintiff's physical safety or causes the plaintiff
to fear for his or her physical safety. No such conduct is alleged
in this case.
Lipton, 783 N.Y.S.2d at 603-604. We agree with this reasoning under the specific
circumstances of this case insofar as the underlying facts of this case, like Lipton, do not
pertain to the threatened health or safety of the plaintiff or a loved one of the plaintiff. Thus,
we conclude that the circuit court correctly granted summary judgment to the appellees on
the appellant's negligent infliction of emotional distress claim.
Finally, the appellant alleged a cause of action for intentional infliction of
emotional distress. Under our law,
In order for a plaintiff to prevail on a claim for
intentional or reckless infliction of emotional distress, four
elements must be established. It must be shown: (1) that the
defendant's conduct was atrocious, intolerable, and so extreme
and outrageous as to exceed the bounds of decency; (2) that the
defendant acted with the intent to inflict emotional distress, or
acted recklessly when it was certain or substantially certain
emotional distress would result from his conduct; (3) that the
actions of the defendant caused the plaintiff to suffer emotional
distress; and, (4) that the emotional distress suffered by the
plaintiff was so severe that no reasonable person could be
expected to endure it.
Syllabus Point 3, Travis v. Alcon Laboratories, 202 W.Va. 369, 504 S.E.2d 419 (1998). We
believe that the alleged actions of the appellants pursuant to carrying out the provisions of
the QDRO do not rise to the level of intentional infliction of emotional distress. While some
of the actions of the appellees in complying with the QDRO may have constituted poor
judgment or been ill-advised, such actions cannot be accurately characterized as atrocious,
intolerable or outrageous. Also, while improperly disbursing the proceeds to Ms. Brown and
the resulting financial consequences were doubtless upsetting and worrisome to the appellant,
we do not believe that it would cause the kind of emotional upheaval that no reasonable
person could be expected to endure. Therefore, we find that the circuit court properly
granted summary judgment to the appellees on the appellant's intentional infliction of
emotional distress claim.
For the reasons stated above, we find that the circuit court committed an error
of law when it granted summary judgment to the appellees based on its finding that
disbursement of fund proceeds to Ms. Brown prior to the appellant's retirement was proper.
Therefore, we reverse the circuit court's summary judgment order on this issue. However,
we find that circuit court properly granted summary judgment to the appellant on his claims
for breach of fiduciary duty, invasion of privacy, and negligent and intentional infliction of
emotional distress. Accordingly, we affirm the circuit court's summary judgment order as
to these claims.
Affirmed in part, reversed in part, and remanded with directions.