IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1992 Term
_________
NO. 20741
_________
HER HUSBAND,
Plaintiffs Below, Appellants
V.
TOWN OF GAULEY BRIDGE, A WEST VIRGINIA
MUNICIPAL CORPORATION; AND
GAULEY BRIDGE VOLUNTEER FIRE COMPANY, INC.,
A CORPORATION,
Defendants Below, Appellees
__________________________________________________________
Appeal from the Circuit Court of Fayette County
Honorable John W. Hatcher, Jr., Judge
Civil Action No. 90-C-814
AFFIRMED
____________________________________________________________
Submitted: September 16, 1992
Filed: November 24, 1992
Edward G. Atkins
Allan M. Karlin
Charleston, West Virginia
Morgantown, West Virginia
Attorney for Appellants
Wheeling,
West Virginia
Jolyon McCamic
Gary E. Pullin
Attorneys for Amicus Curiae
Cleek, Pullin & Bibb
W. Va. Trials Lawyers Ass'n
Charleston, West Virginia
Attorney for Appellee
John J. Polak
Town of Gauley Bridge
King, Betts & Allen
Charleston,
West Virginia
David K. Schwirian
Attorney for Amicus Curiae
Charleston, West Virginia
Ella Rosaline Shafer &
Attorney for Appellee
Elmer R. Shafer
Gauley Bridge Volunteer
Fire Company, Inc.
Silas B. Taylor
Senior
Deputy Attorney General
Charleston, West Virginia
Attorney for Amicus Curiae
Attorney General of West Virginia
JUSTICE MILLER delivered the Opinion of the Court.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1992 Term
_________
NO. 21112
_________
LEON FRANCE AND JUANITA FRANCE;
AND SHAWN FRANCE, WHO SUES BY HIS GUARDIAN
AND NEXT FRIEND, JUANITA FRANCE,
Plaintiffs Below, Appellants
V.
THE BOARD OF EDUCATION OF THE COUNTY OF BRAXTON,
Defendants and Third-Party Plaintiffs Below, Appellees
V.
THE VELOTTA COMPANY AND ROBERT VELOTTA,
Third-Party Defendants Below, Appellees
__________________________________________________________
Appeal from the Circuit Court of Braxton County
Honorable Danny O. Cline, Judge
Civil Action No. 91-C-58
AFFIRMED
____________________________________________________________
Submitted: September 16, 1992
Filed: November 24, 1992
Arthur M. Recht
Allan M. Karlin
Martin P. Sheehan
Morgantown, West Virginia
Volk, Frankovitch, Anetakis,
Jolyon McCamic
Recht, Robertson & Hellerstedt
Wheeling, West Virginia
Wheeling, West Virginia
Attorneys for Amicus Curiae
Attorneys for Appellants
W. Va. Trials Lawyers Ass'n
Gary E. Pullin
John J. Polak
Cleek, Pullin & Bibb
King, Betts & Allen
Charleston, West Virginia
Charleston, West Virginia
Attorney for Appellee
Attorney for Amicus Curiae
Board of Education
Ella Rosaline Shafer &
Elmer R. Shafer
Shawn P. George
George, Ferguson & Lorenson
Silas B. Taylor
Charleston, West Virginia
Senior Deputy Attorney General
Attorney for Appellees
Charleston, West Virginia
The Velotta Company and
Attorney for Amicus Curiae
Robert Velotta
Attorney General of West
Virginia
JUSTICE MILLER delivered the Opinion of the Court.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1992 Term
_________
NO. 21260
_________
THOMAS E. PRITCHARD AND SYLVIA PRITCHARD,
Plaintiffs Below, Petitioners
V.
THE CITY OF LOGAN,
A MUNICIPAL CORPORATION,
Defendant Below, Respondent
__________________________________________________________
Certified Questions from the Circuit Court of Logan County
Honorable Eric H. O'Briant, Judge
Civil Action No. 90-C-506
ANSWERED AND DISMISSED
____________________________________________________________
Submitted: September 16, 1992
Filed: November 24, 1992
Douglas Witten
Avis, Witten & Wandling
Logan, West Virginia
Attorney for Petitioners
John D. Hoffman
Campbell, Woods, Bagley, Emerson,
McNeer & Herndon
Charleston, West Virginia
Attorney for Respondent
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "'"In considering the constitutionality of a
legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in
government among the judicial, legislative and executive branches.
[W. Va. Const. art. V, § 1.] Every reasonable construction must be
resorted to by the courts in order to sustain constitutionality,
and any reasonable doubt must be resolved in favor of the
constitutionality of the legislative enactment in question. Courts
are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional
limits, are almost plenary. In considering the constitutionality
of an act of the legislature, the negation of legislative power
must appear beyond reasonable doubt." Syl. pt. 1, State ex rel.
Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351
(1965).' Syl. pt. 2, West Virginia Public Employees Retirement
System v. Dodd, 183 W. Va. 544, 396 S.E.2d 725 (1990)." Syllabus
Point 1, Robinson v. Charleston Area Medical Center, 186 W. Va.
720, 414 S.E.2d 877 (1991).
2. "'"Where economic rights are concerned, we look to
see whether the classification is a rational one based on social,
economic, historic or geographic factors, whether it bears a
reasonable relationship to a proper governmental purpose, and
whether all persons within the class are treated equally. Where
such classification is rational and bears the requisite reasonable
relationship, the statute does not violate Section 10 of Article
III of the West Virginia Constitution which is our equal protection
clause." Syllabus Point 7, [as modified,] Atchinson v. Erwin,
[172] W. Va. [8], 302 S.E.2d 78 (1983).' Syllabus Point 4, as
modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery
Co., [174 W. Va. 538], 328 S.E.2d 144 (1984)." Syllabus Point 4,
Gibson v. West Virginia Department of Highways, 185 W. Va. 214, 406
S.E.2d 440 (1991).
3. "When legislation either substantially impairs vested rights or severely limits existing procedural remedies
permitting court adjudication, thereby implicating the certain
remedy provision of article III, section 17 of the Constitution of
West Virginia, the legislation will be upheld under that provision
if, first, a reasonably effective alternative remedy is provided by
the legislation or, second, if no such alternative remedy is
provided, the purpose of the alteration or repeal of the existing
cause of action or remedy is to eliminate or curtail a clear social
or economic problem, and the alteration or repeal of the existing
cause of action or remedy is a reasonable method of achieving such
purpose." Syllabus Point 5, Lewis v. Canaan Valley Resorts, Inc.,
185 W. Va. 684, 408 S.E.2d 634 (1991).
4. W. Va. Code, 29-12A-5(a)(11), giving political
subdivisions immunity from tort liability in suits by injured
persons whose claims are covered by workers' compensation or
employer's liability laws, does not violate the equal protection
principles of Article III, Section 10 or the "certain remedy"
provision of Article III, Section 17 of the West Virginia
Constitution.
5. To the extent that the "special legislation"
prohibition found in Article VI, Section 39 of the West Virginia
Constitution mirrors equal protection precepts, it is subsumed in
the equal protection principles contained in Article III, Section
10 of our constitution. Consequently, arguments relating to this
aspect of the special legislation prohibition will not be
separately addressed where we have applied an equal protection
analysis to the claim.
6. W. Va. Code, 29-12A-5(a)(11), clearly contemplates
immunity for political subdivisions from tort liability in actions
involving claims covered by workers' compensation even though the
plaintiff was not employed by the defendant political subdivision
at the time of the injury.
Miller, Justice:
These three cases were consolidated for decision because
they present similar issues with regard to provisions of the West
Virginia "Governmental Tort Claims and Insurance Reform Act," W.
Va. Code, 29-12A-1, et seq. Specifically, the plaintiffs below
challenge rulings of the lower courts to the effect that W. Va.
Code, 29-12A-5(a)(11), confers immunity from suit upon political
subdivisions of the State in personal injury actions where the
claim or loss results from a claim covered by workers' compensation
or employer's liability laws.
I.
The facts in each case are undisputed.
A.
Donna Sue O'Dell
Mrs. O'Dell was employed at a branch of the Fayette
County Public Library located in Gauley Bridge, Fayette County.
One means of access to the library was a wooden walkway which led
from a street on the hillside above and across adjacent property
owned by the Gauley Bridge Volunteer Fire Company, Inc., on which
the fire station was located. The walkway was owned and maintained
by the Town of Gauley Bridge.
On January 20, 1989, Mrs. O'Dell, while on her way to
work, slipped and fell on the walkway, sustaining injuries to her
left leg and ankle. Because the injuries occurred in the course of
and resulting from her employment, Mrs. O'Dell received workers'
compensation benefits.
Mrs. O'Dell and her husband brought a personal injury
action against the Town and the Fire Company in the Circuit Court
of Fayette County alleging that the defendants had failed properly
to construct, maintain, and repair the walkway. The defendants
subsequently moved for summary judgment on the ground that they
were immune from suit under W. Va. Code, 29-12A-5(a)(11). By order
dated October 15, 1991, the circuit court granted the summary judgment motion
and dismissed, with prejudice, the complaint in the
negligence action. Mr. and Mrs. O'Dell appeal from this order.
B.
Leon France
Mr. France is a deaf-mute who was employed as a cement
finisher by The Velotta Company, an Ohio corporation under contract
with the West Virginia Department of Highways to perform
construction work. On September 28, 1989, Mr. France was working
on a bridge on a county road in Braxton County. Due to the
construction, traffic on the bridge was reduced to a single lane.
At approximately 5:00 p.m. a school bus owned by the
Braxton County Board of Education and driven by a Board of
Education employee approached the bridge. The bus stopped to allow
Mr. France to move out of the traffic lane to a curb on the outside
of the bridge. As the bus passed, it struck Mr. France's
wheelbarrow, which, in turn, struck Mr. France, pushing him over
the bridge railing. Mr. France fell over sixty feet onto rocky
ground. As a result of his injuries, he is permanently and totally
disabled from employment as a construction worker.
Mr. France was awarded workers' compensation benefits in
Ohio. Mr. France, his wife, and his minor son subsequently sued
the Board of Education in the Circuit Court of Braxton County,
alleging that the bus driver's negligence in the operation of the
school bus was the proximate cause of his injuries. The Board
subsequently moved for summary judgment on the ground that it was
immune from suit under W. Va. Code, 29-12A-5(a)(11). By order
dated January 2, 1992, the circuit court granted the motion. The
France family now appeals from that ruling.
C.
Thomas E. Pritchard
Mr. Pritchard was employed as a salesman by the Letter
Shop, Inc., a private business in Logan. On July 12, 1988, he
slipped and fell on a handicap access ramp located on a public
sidewalk owned and maintained by the City of Logan.
Mr. Pritchard's injuries occurred in the course of and
resulting from his employment. He applied for workers'
compensation benefits and received a 10 percent permanent partial
disability award.
Mr. Pritchard and his wife also instituted a civil action
in the Circuit Court of Logan County against the City, alleging
that the City was negligent in failing to maintain and repair the
sidewalk and in applying paint to the sloped surface of the access
ramp, causing it to become slippery when wet. The City moved for
summary judgment on the ground that it was immune from suit under
W. Va. Code, 29-12A-5(a)(11). By order dated April 27, 1992, the
circuit court certified to this Court certain questions relating to
the constitutionality and proper construction of the statute.
II.
The Governmental Tort Claims and Insurance Reform Act
(the "Tort Claims Act") grants broad, but not total, immunity from
tort liability to political subdivisions of the State. The stated
purposes of the Tort Claims Act are "to limit liability of
political subdivisions and provide 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. The Tort Claims Act was the
result of legislative findings that political subdivisions of the
State were unable to obtain affordable tort liability insurance
coverage without reducing the quantity and quality of traditional
governmental services. W. Va. Code, 29-12A-2. To remedy this
situation, the legislature specified seventeen instances in which
political subdivisions would have immunity from tort liability. W.
Va. Code, 29-12A-5(a).
We are today concerned with only one of those instances.
W. Va. Code, 29-12A-5(a)(11), provides: "A political subdivision
is immune from liability if a loss or claim results from: . . .
Any claim covered by any workers' compensation law or any
employer's liability law[.]" It is uncontested that each of the
defendants is a "political subdivision" within the meaning of the
statute. See W. Va. Code, 29-12A-3(c). It is also uncontested
that Mrs. O'Dell, Mr. France, and Mr. Pritchard were each entitled
to and received workers' compensation benefits as a result of the
injuries which are the subject of the civil suits below.
Among them, the plaintiffs raise five challenges to the
statute. They contend that W. Va. Code, 29-12A-5(a)(11):
(1) violates the equal protection provisions of Article
III, Section 10 of the West Virginia Constitution and of the
Fourteenth Amendment to the United States Constitution;
(2) violates the "certain remedy" provisions of Article
III, Section 17 of the West Virginia Constitution;
(3) violates the special legislation provisions of
Article VI, Section 39 of the West Virginia Constitution;
(4) confers immunity from liability only where the person who is
injured is an employee of the defendant political
subdivision; and
(5) does not bar recovery of damages not covered by
workers' compensation benefits.
III.
We begin by discussing the three constitutional
challenges made against W. Va. Code, 29-12A-5(a)(11). In Syllabus
Point 1 of Robinson v. Charleston Area Medical Center, 186 W. Va.
720, 414 S.E.2d 877 (1991), we stated our fundamental policy
recognizing the plenary powers of the legislature:
"'"In considering the
constitutionality of a legislative enactment,
courts must exercise due restraint, in
recognition of the principle of the separation
of powers in government among the judicial,
legislative and executive branches. [W. Va.
Const. art. V, § 1.] Every reasonable
construction must be resorted to by the courts
in order to sustain constitutionality, and any
reasonable doubt must be resolved in favor of
the constitutionality of the legislative
enactment in question. Courts are not
concerned with questions relating to
legislative policy. The general powers of the
legislature, within constitutional limits, are
almost plenary. In considering the
constitutionality of an act of the
legislature, the negation of legislative power
must appear beyond reasonable doubt."
Syl.
pt. 1, State ex rel. Appalachian Power Co. v.
Gainer, 149 W. Va. 740, 143 S.E.2d 351
(1965).' Syl. pt. 2, West Virginia Public
Employees Retirement System v. Dodd, 183
W. Va. 544, 396 S.E.2d 725 (1990)."
A.
Equal Protection
Equal protection of the law is guaranteed by Article III,
Section 10 of our state constitution, which provides: "No person
shall be deprived of life, liberty, or property, without due
process of law, and the judgment of his peers." See Syllabus Point
4, Israel v. West Virginia Secondary Sch. Activities Comm'n, 182 W.
Va. 454, 388 S.E.2d 480 (1989). In Syllabus Point 2 of Israel, we
stated:
"Equal protection of the law is
implicated when a [legislative] classification
treats similarly situated persons in a
disadvantageous manner. The claimed
discrimination must be a product of state
action as distinguished from a purely private
activity."
We have observed that "[t]he scope of our state equal protection
concepts 'is coextensive [with] or broader than that of the
fourteenth amendment to the United States Constitution.'" Lewis
v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 691, 408 S.E.2d
634, 641 (1991), quoting Syllabus Point 3, in part, Robertson v.
Goldman, 179 W. Va. 453, 369 S.E.2d 888 (1988).
We have 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. at 728-29, 414 S.E.2d at 885-86.
Accord Lewis v. Canaan Valley Resorts, Inc., supra; Gibson v. West
Virginia Dep't of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991).
Thus, for purposes of equal protection analysis, the legislative
classifications involved in this case "are subjected to a minimum
level of scrutiny, the traditional equal protection concept that
the legislative classification will be upheld if it is reasonably
related to the achievement of a legitimate state purpose." Randall
v. Fairmont City Police Dep't, 186 W. Va. 336, 345, 412 S.E.2d 737,
746 (1991). The rule applicable in such cases was stated in
Syllabus Point 4 of Gibson v. West Virginia Department of Highways,
supra:
"'"Where economic rights are
concerned, we look to see whether the
classification is a rational one based on
social, economic, historic or geographic
factors, whether it bears a reasonable
relationship to a proper governmental purpose,
and whether all persons within the class are
treated equally. Where such classification is
rational and bears the requisite reasonable
relationship, the statute does not violate
Section 10 of Article III of the West Virginia
Constitution which is our equal protection
clause." Syllabus Point 7, [as modified,]
Atchinson v. Erwin, [172] W. Va. [8], 302
S.E.2d 78 (1983).' Syllabus Point 4, as
modified, Hartsock-Flesher Candy Co. v.
Wheeling Wholesale Grocery Co., [174 W. Va.
538], 328 S.E.2d 144 (1984)."
In Randall v. Fairmont City Police Department, supra, we
applied these principles to the Tort Claims Act to determine
whether the broad grant of immunity to political subdivisions
violated equal protection. The crux of the argument raised in
Randall was that the Tort Claims Act created a distinction between
governmental and nongovernmental tortfeasors which was not
reasonably related to a legitimate state interest. We concluded:
"[T]he qualified tort immunity provisions of the Act are rationally
based and reasonably relate to a proper governmental purpose,
specifically . . . to stabilize the political subdivisions' ability
to obtain affordable liability insurance coverage by defining the
risks to be covered." 186 W. Va. at 346, 412 S.E.2d at 747.
(Citation omitted). Consequently, in Syllabus Point 5 of Randall,
we held:
"The qualified tort immunity
provisions of the West Virginia Governmental
Tort Claims and Insurance Reform Act of 1986,
W. Va. Code, 29-12A-1 to 29-12A-18, do not
violate the equal protection principles of article III, section 10 of the Constitution of
West Virginia."
The plaintiffs in this case raise a different argument.
They assert that W. Va. Code, 29-12A-5(a)(11), impermissibly
discriminates between two distinct classes of victims of
governmental tortfeasors: those who are injured in the course of
their employment and, so, are entitled to workers' compensation
benefits, and those who are injured outside of their employment.
The plaintiffs argue that this particular distinction is not
rational and bears no reasonable relationship to the legitimate
governmental purpose of the Tort Claims Act.
In the lexicon of equal protection law, we have
recognized that not every classification by the legislature will be
faulted. In Gibson v. West Virginia Department of Highways, 185
W. Va. at 220, 406 S.E.2d at 446, we recognized that under the
rational basis test, the classification process is peculiarly a
legislative function:
"The Supreme Court expressed this point in
Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.
Ct. 1074, 1083, 67 L. Ed. 2d 186, 198 (1981),
quoting Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S. Ct. 2562,
2567, 49 L. Ed. 2d 520, 525 (1976):
'"This inquiry employs a
relatively relaxed standard
reflecting the Court's awareness
that the drawing of lines that
create distinctions is peculiarly a
legislative task and an unavoidable
one. Perfection in making the
necessary classification is neither
possible nor necessary."' (Citation
omitted).
United States R.R. Retirement Bd. v. Fritz,
449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368
(1980). See also Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 1542,
39 L. Ed. 2d 797, 803-04 (1974) ('But every
line drawn by a legislature leaves some out
that might well have been included. That
exercise of discretion, however, is a
legislative, not a judicial, function.')."
In Robinson v. Charleston Area Medical Center, 186 W. Va.
at 729-30, 414 S.E.2d at 886-87, we stated:
"'[T]he Equal Protection Clause does not
require that a State must choose between
attacking every aspect of a problem or not
attacking the problem at all. It is enough
that the State's action be rationally based
and free from invidious discrimination.'
(internal citation omitted)" Quoting
Dandridge v. Williams, 397 U.S. 471, 486-87,
90 S. Ct. 1153, 1162, 25 L. Ed. 2d 491, 503
(1970).
Finally, in Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. at
692, 408 S.E.2d at 642: "[T]he judiciary 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. City of New Orleans v.
Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2517, 49 L. Ed. 2d 511,
517 (1976)." In Lewis, 185 W. Va. at 691, 408 S.E.2d at 641, we
considered a facial challenge to W. Va. Code, 20-3A-1, et seq.,
which limits liability of ski area operators:
"[A] facial challenge to the constitutionality
of legislation is the most difficult challenge
to mount successfully. The challenger must
establish that no set of circumstances exist
under which the legislation would be valid;
the fact that the legislation might operate
unconstitutionally under some conceivable set
of circumstances is insufficient to render it
wholly invalid. Rust v. Sullivan, ___ U.S.
___, 111 S. Ct. 1759, 1767, 114 L. Ed. 2d 233,
249 (1991)."
Here, the plaintiffs argue that W. Va. Code, 29-12A-5(a)(11), creates two disparate classes of tort victims. However,
the line drawn is not without some logic. We note that all persons
covered by workers' compensation forfeit their common law tort
remedies against their employers, absent willful injury. W. Va.
Code, 23-2-6 (1991). That those who are not covered by workers'
compensation retain their right to sue their employers for full
damages does not mean that our workers' compensation law violates
equal protection.
Moreover, W. Va. Code, 29-12A-5(a)(11), affects a
relatively small group of plaintiffs who must satisfy four
requirements before their claims are barred by the immunity
provisions of the Tort Claims Act. 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.
W. Va. Code, 29-12A-5(a), was designed to make liability
insurance more affordable to political subdivisions by reducing the
number of tort cases filed against them. Subsection (11) did so by
creating a narrow bar as to suits by those plaintiffs who meet the
foregoing four-criterion test. When viewed from the perspective of
the other class of plaintiffs who are barred from suing a political
subdivision by virtue of receipt of workers' compensation benefits,
i.e., the subdivision's own employees, and in view of the clear
legislative intent to protect political subdivisions, the disparity
is not such that the line drawn violates equal protection.
This was the basis for the Oregon court's holding in
Edwards v. State, 8 Or. App. 620, 494 P.2d 891 (1972), which
considered the constitutionality on equal protection grounds of an
Oregon statute that gave every public body immunity from liability
for "[a]ny claim for injury to or death of any person covered by
the Workmen's Compensation Law." The plaintiff was injured when
the logging truck he was driving in the course of his employment
collided with a State-owned vehicle. The plaintiff received
workers' compensation benefits and then sued the State. Utilizing
the rational basis test, the court in Edwards stated:
"Plaintiff argues if existence of a
collateral source of compensation is the basis
for the exception in question, 'why does the
exception not provide that any person
otherwise insured cannot recover.' The short
answer to this is that the legislature need
not enact laws which operate to solve
perfectly every aspect of the problem to which
they are directed. Leech v. Georgia-Pacific
Corp., Or., 92 Adv.Sh. 1422, 1427, 485 P.2d
1195 (1971). The legislature may have
concluded it was best to confine this
exception to a compensation system with which
it was familiar -- here, one which it had
created. Plaintiff further contends the
classification is unreasonable because a
workman in some instances would be able to
recover more in an action against the
government than he would under the Workmen's
Compensation Act. That this may be true does
not detract from the overall reasonableness of
the classification in question.
'* * * [A] classification
having some reasonable basis does
not offend against the Federal
Constitution or the Constitution of
this state merely because it is not
made with mathematical nicety or
because in practice it results in
some inequality" * * *.' Nilsen v.
Davidson Industries, Inc. et al.,
226 Or. at 164, 169, 360 P.2d 307,
309 (1961)." 8 Or. App. at ___, 494
P.2d at 894. (Footnote omitted).
Edwards was upheld in later cases involving the same
statutory provision, including Jungen v. State, 94 Or. App. 101,
___, 764 P.2d 938, 941 (1988), review denied, 307 Or. 658, 772 P.2d
1341, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 313
(1989), where the court stated: "We conclude, for the reasons we
discussed in Edwards, that there is a rational basis for retaining
governmental immunity as to those persons receiving workers'
compensation benefits." See also Ward v. Romig, 101 Or. App. 235,
790 P.2d 44 (1990).
We are aware that the Minnesota Supreme Court reached an
opposite result in Bernthal v. City of St. Paul, 376 N.W.2d 422
(Minn. 1985), which dealt with a similar statute as to
municipalities. The court noted initially in Bernthal that
"[b]ecause legislative history is lacking, no light is shed on the
purpose for this particular exception." 376 N.W.2d at 425. Using
this finding, the court was able to overcome the United States
Supreme Court's rule "that under the rational basis test it is not
the court's province to pass upon the accuracy of legislative
facts." 376 N.W.2d at 426. (Emphasis in original).
In this case, unlike in Bernthal, the legitimate state
purpose underlying W. Va. Code, 29-12A-5(a)(11), is clear -- to
enable political subdivisions of the State to obtain affordable
liability insurance. That the legislature has chosen to confer
immunity on governmental tortfeasors in suits by certain victims
and not in actions by others is not, of itself, evidence that the distinction bears no rational relationship to this state interest.
For these reasons, we find Bernthal of little value in
resolving the issue before this Court. Here, the legislature
attempted to remedy a crisis which was threatening the solvency of
political subdivisions and their ability to provide the most
fundamental of local government services. While we may not agree
that the decision to prevent those victims of governmental
tortfeasors who have access to workers' compensation benefits from
recovering further damages in a civil suit is the best or fairest
approach to take to resolve the problem, we cannot say that it does
not bear a reasonable relationship to the purpose of the statute.
As we have earlier noted, we have endeavored to pattern
our equal protection principles to be "'coextensive [with] or
broader than that of the fourteenth amendment to the United States
Constitution.'" Lewis v. Canaan Valley Resorts, Inc., 185 W. Va.
at 691, 408 S.E.2d at 641, quoting Syllabus Point 3, in part,
Robertson v. Goldman, supra. We are not cited nor have we found a United States Supreme Court case that is relevant to this issue.
We believe our state analysis would be consistent with the equal
protection analysis under the Fourteenth Amendment.
B.
"Certain Remedy"
Resolution of the "certain remedy" question is fairly
simple once the equal protection question is resolved. This
protection is secured by Article III, Section 17 of our state
constitution, which provides, in pertinent part: "The courts of
this State shall be open, and every person, for an injury done to
him, in his person, property or reputation, shall have remedy by
due course of law[.]" In Syllabus Point 6 of Gibson v. West
Virginia Department of Highways, supra, we recognized the circumstances in which this right is implicated:
"There is a presumption of
constitutionality with regard to legislation.
However, when a legislative enactment either
substantially impairs vested rights or
severely limits existing procedural remedies
permitting court adjudication of cases, then
the certain remedy provision of Article III,
Section 17 of the West Virginia Constitution
is implicated."
In Syllabus Point 5 of Lewis v. Canaan Valley Resorts, Inc., supra,
we stated the principles governing a case in which the "certain
remedy" provision is implicated:
"When legislation either substantially impairs vested rights or
severely limits existing procedural remedies
permitting court adjudication, thereby
implicating the certain remedy provision of
article III, section 17 of the Constitution of
West Virginia, the legislation will be upheld
under that provision if, first, a reasonably
effective alternative remedy is provided by
the legislation or, second, if no such
alternative remedy is provided, the purpose of
the alteration or repeal of the existing cause
of action or remedy is to eliminate or curtail
a clear social or economic problem, and the
alteration or repeal of the existing cause of
action or remedy is a reasonable method of
achieving such purpose."
In Randall v. Fairmont City Police Department, 186 W. Va.
at 343, 412 S.E.2d at 744, we considered the "certain remedy"
provision in the context of the Tort Claims Act:
"[T]he legislature has found that political
subdivisions in this state have been unable to
raise sufficient revenues to procure
affordable liability insurance coverage
without reducing the quantity and quality of
traditional governmental services. . . . We
believe this finding states a clear economic
problem and that the method selected by the
legislature to eliminate or curtail this clear
economic problem, specifically, the broad, but
not total, reinstatement of local governmental
immunity, is a reasonable method of achieving
the legislative objective. . . . While we are
sensitive to the interests of those persons
injured by political subdivisions, the
legislature has responded reasonably to the
Court's invitation . . . to speak
comprehensively on this subject."
In Syllabus Point 2 of Randall, we stated:
"The qualified tort immunity
provisions of the West Virginia Governmental
Tort Claims and Insurance Reform Act of 1986,
W. Va. Code, 29-12A-1 to 29-12A-18, do not
violate the certain remedy provision of
article III, section 17 of the Constitution of
West Virginia."
Clearly, our discussions in Gibson, Lewis, and Randall of
the "certain remedy" provision reflect that in order to
successfully invoke its protection, one of several events must be
shown. First, it must be shown that the legislation impairs vested
rights which, in the context of a cause of action, means that the
individual had an existing claim prior to the passage of the
legislation. In the alternative, it must be shown that the
legislation severely limits existing procedural remedies permitting
adjudication of the plaintiff's claim. Even if such an impairment
or limitation is shown, however, the measure will not violate the
"certain remedy" provision of our constitution if "the purpose of
the alteration or repeal of the existing cause of action or remedy
is to eliminate a clear social or economic problem and the repeal
or alteration . . . is a reasonable method of achieving such
purpose." Syllabus Point 5, in part, Lewis v. Canaan Valley
Resorts, Inc., supra.
In Gibson, we traced the history of our "certain remedy"
provision and considered similar provisions found in other state
constitutions. The rule we adopted accorded substantial latitude
to legislative enactments. Inherent in our approach is the
consideration of the reasonableness of the method chosen to alter
or repeal existing rights. In our "certain remedy" analysis as
opposed to our examination of equal protection principles, we
consider the total impact of the legislation. Where its impact is
limited rather than absolute, there is less interference with the
"certain remedy" principle, and the legislation will be upheld.
In the present case, the statutory bar is not absolute,
but is limited to a narrow class, i.e., those who have received
workers' compensation benefits for the injury. We have accepted
the legislative reasons for the enactment as valid, and,
consequently, we find the "certain remedy" provisions of Article
III, Section 17 of our state constitution not to have been
violated.
In summary, then, we conclude that W. Va. Code, 29-12A-5(a)(11), giving political subdivisions immunity from tort
liability in suits by injured persons whose claims are covered by
workers' compensation or employer's liability laws, does not
violate the equal protection principles of Article III, Section 10
or the "certain remedy" provision of Article III, Section 17 of the
West Virginia Constitution.
C.
Special Legislation
The plaintiffs also assert that W. Va. Code, 29-12A-5(a)(11), violates the prohibition against special legislation
contained in Article VI, Section 39 of the state constitution.
That provision states, in part, that "in no case shall a special
act be passed, where a general law would be proper." In Syllabus
Point 5 of Atchinson v. Erwin, 172 W. Va. 8, 302 S.E.2d 78 (1983),
we stated:
"'A statute is general when it
operates uniformly on all persons and things
of a class and such classification is natural,
reasonable and appropriate to the purpose
sought to be accomplished.' Syllabus Point 2,
State ex rel. Taxpayers Protective Association
of Raleigh County v. Hanks, 157 W. Va. 350,
201 S.E.2d 304 (1973)."
We recognized in Atchinson that "[t]he determination of whether a
statute is general is essentially a classification analysis," and
we applied an equal protection analysis to resolve such problems.
172 W. Va. at 14, 302 S.E.2d at 83. We stated in Syllabus Point 7
of Atchinson:
"Where economic rights are
concerned, we look to see whether the
classification is a rational one based on
social, economic, historic or geographic
factors, whether it bears a reasonable
relationship to a proper governmental purpose,
and whether all persons within the class are
treated equally. Where such classification is
rational and bears the requisite reasonable
relationship, the statute does not violate
Section 39 of Article VI of the West Virginia
Constitution."
See Courtney v. State Dep't of Health, 182 W. Va. 465, 388 S.E.2d
491 (1989); State ex rel. Longanacre v. Crabtree, 177 W. Va. 132,
350 S.E.2d 760 (1986).
In Gibson v. West Virginia Department of Highways, supra,
we pointed out that our special legislation analysis was basically
an equal protection inquiry. We recognized that Atchinson and our
earlier equal protection cases used Article VI, Section 39 as the
source of our state equal protection constitutional principle.
However, in Israel v. West Virginia Secondary Schools Activities
Commission, supra, we determined that our state equal protection
principle was more appropriately found in Article III, Section 10
of the state constitution. As a result, in Gibson, we modified
Syllabus Point 7 of Atchinson to refer to Article III, Section 10
of the constitution as the source of our equal protection
guarantee.
What we apparently failed to make clear in Gibson is that
to the extent that the special legislation prohibition found in
Article VI, Section 39 of the West Virginia Constitution mirrors
equal protection precepts, it is subsumed in the equal protection
principles contained in Article III, Section 10 of our
constitution. Consequently, arguments relating to this aspect of
the special legislation prohibition will not be separately
addressed where we have applied an equal protection analysis to the
claim.
Accordingly, because we have already addressed the equal
protection aspects of W. Va. Code, 29-12A-5(a)(11), in Part IIIA,
and found that the statute does not violate Article III, Section
10, we decline to address the special legislation claim.
IV.
The remaining issues raised by the plaintiffs concern
whether, from a statutory construction standpoint, W. Va. Code, 29-
12A-5(a)(11), is applicable in the cases below. The statute reads:
"A political subdivision is immune from liability if a loss or
claim results from: . . . (11) Any claim covered by any workers'
compensation law or any employer's liability law."
A.
The plaintiffs read this provision as providing immunity
to political subdivisions only with regard to suits brought by
their own employees for injuries incurred on the job. In essence,
they argue that the immunity conferred by W. Va. Code, 29-12A-
5(a)(11), is merely duplicative of the immunity from suit by
employees conferred upon covered employers under the Workers'
Compensation Act. Because these plaintiffs were not employed by
the political subdivisions which they seek to hold responsible for
their injuries, the plaintiffs contend that the defendants have no
immunity in these proceedings.
The plaintiffs press several reasons for their
interpretation of this provision. First, they rely on the
established rule of statutory construction stated in Pristavec v.
Westfield Insurance Co., 184 W. Va. 331, 337-38, 400 S.E.2d 575,
581-82 (1990):
"'In the construction of a legislative
enactment, the intention of the legislature is
to be determined, not from any single part,
provision, section, sentence, phrase or word,
but rather from a general consideration of the
act or statute in its entirety.' Syl. pt. 1,
Parkins v. Londeree, 146 W. Va. 1051, 124
S.E.2d 471 (1962). Accord, syl. pt. 5, in
part, Fruehauf Corp. v. Huntington Moving &
Storage Co., 159 W. Va. 14, 217 S.E.2d 907
(1975)."
The plaintiffs contend that when the immunity provisions of W. Va.
Code, 29-12A-5(a)(11), are read in light of the statutory
definition of "employee" contained in W. Va. Code, 29-12A-3(a),
it is clear that the legislature intended to grant immunity only
where the political subdivision was being sued by its own employees
whose work-related injuries are covered by workers' compensation.
The problem with this argument is that it requires us to
read into W. Va. Code, 29-12A-5(a)(11), a term which does not
appear there. Indeed, the only references to the term "employee"
in the immunity statute are found in W. Va. Code, 29-12A-5(b) and -
5(c), which relate to immunity for employees of political
subdivisions who injure third parties. That the omission of this
term from the provisions of subsection (a) was not inadvertent is
evidenced by the fact that other provisions of the Tort Claims Act
make specific reference to suits by employees of the political
subdivision. See W. Va. Code, 29-12A-18.
The plaintiffs also note that in Randall v. Fairmont City
Police Department, supra, we had held that other provisions of the
Tort Claims Act incorporate common law doctrines of liability. The
provision at issue in Randall was W. Va. Code, 29-12A-5(a)(5),
which provides political subdivisions with immunity for liability
for a loss or claim resulting from "the failure to provide, or the
method of providing, police, law enforcement or fire protection."
We held that the immunity provided by this section was co-extensive
with the common law public duty doctrine in reliance on
"the general rule of construction in
governmental tort legislation cases favoring
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." 186 W. Va. at 347, 412 S.E.2d at
748. (Citations omitted).
In Syllabus Point 8 of Randall, we stated:
"W. Va. Code, 29-12A-5(a)(5) [1986],
which provides, in relevant part, that a
political subdivision is immune from tort
liability for 'the failure to provide, or the
method of providing, police, law enforcement
or fire protection[,]' is coextensive with the
common-law rule not recognizing a cause of
action for the breach of a general duty to
provide, or the method of providing, such
protection owed to the public as a whole.
Lacking a clear expression to the contrary,
that statute incorporates the common-law
special duty rule and does not immunize a
breach of a special duty to provide, or the
method of providing, such protection to a
particular individual."
We also observed in Randall that several other provisions of the
immunity statute incorporated the common law rule that a local
government is immune from liability for "discretionary" acts.
The plaintiffs argue that Randall serves as precedent for
the conclusion that W. Va. Code, 29-12A-5(a)(11), is duplicative
only of the immunity conferred on covered employers by the Workers'
Compensation Act. We note, however, that the principles of
immunity we found incorporated into the Tort Claims Act in Randall
were well-settled in the common law prior to our abolition of such
immunity in Long v. City of Weirton, 158 W. Va. 741, 214 S.E.2d 832
(1975). The immunity from liability afforded contributing
employers under the Workers' Compensation Act is purely a creature
of statute.
More importantly, our decision in Randall was premised
entirely on the fact that "the legislature has not clearly provided
for immunity regardless of the existence of a special
relationship/special duty." 186 W. Va. at 348, 412 S.E.2d at 748.
This failure gave rise to an ambiguity which, in view of the
general rule favoring liability and not immunity, required us to
interpret the statute in favor of the victims of the governmental tortfeasor.
No such ambiguity appears on the face of W. Va. Code, 29-12A-5(a)(11). The statute confers immunity for any loss or claim
resulting from "[a]ny claim covered by any workers' compensation
law or any employer's liability law." (Emphasis added). In
Syllabus Points 1 and 2 of Thomas v. Firestone Tire & Rubber Co.,
164 W. Va. 763, 266 S.E.2d 905 (1980), we stated:
"1. In the absence of any specific
indication to the contrary, words used in a
statute will be given their common, ordinary
and accepted meanings. Syl. pt. 1, Tug Valley
Recovery Center v. Mingo County Commission,
[164 W. Va. 94], 261 S.E.2d 165 (1979).
"2. The word 'any,' when used in a
statute, should be construed to mean any."
Thus, W. Va. Code, 29-12A-5(a)(11), clearly contemplates immunity
for political subdivisions from tort liability in actions involving
claims covered by workers' compensation even though the plaintiff
was not employed by the defendant political subdivision at the time
of the injury.
The plaintiffs seek to avoid this result by relying on
several cases which interpret a provision of the Oklahoma Tort
Claims Act which is identical to W. Va. Code, 29-12A-5(a)(11). In
Jarvis v. City of Stillwater, 669 P.2d 1108 (Okla. 1983), the
Oklahoma Supreme Court declared that the immunity conferred by the
tort claims act was co-extensive with the immunity conferred on
employers under that state's workers' compensation act and did not,
therefore, apply in suits brought by plaintiffs who worked for
other employers at the time of the subject injury. The court
concluded that the statute was ambiguous and relied on the general
rule favoring liability where there was no explicit grant of
immunity. See also Huff v. State, 764 P.2d 183 (Okla. 1988).
We note, however, that two other jurisdictions have
interpreted similar statutory provisions differently. McCarty v.
Village of Nashwauk, 286 Minn. 240, 175 N.W.2d 144 (1970); Granato
v. City of Portland, 5 Or. App. 570, 485 P.2d 1115 (1971). We
agree with the reasoning of these courts:
If the legislature had
intended to afford tort liability immunity to political
subdivisions only with regard to suits by its own employees, it
could easily have done so in the same way the plaintiffs urge us to
interpret the statute -- by inserting the words "by an employee" in
the statute.
Finally, to adopt such a construction would place us in
a position where we would be holding that the legislature had, in
effect, accorded a duplicate immunity in W. Va. Code, 21-12A-5(a)(11), to that which already existed under W. Va. Code, 23-2-6.
This would run counter to our normal rule of statutory construction
that the legislature is presumed to be aware of its existing
statutes. Hudok v. Board of Educ., 187 W. Va. 93, 415 S.E.2d 897
(1992); State ex rel. Roach v. Dietrick, 185 W. Va. 23, 404 S.E.2d
415 (1991).
B.
The plaintiffs' final contention is that the use in the
statute of the phrase "[a]ny claim covered by any workers'
compensation law" indicates that W. Va. Code, 29-12A-5(a)(11), was
intended to provide immunity only to the extent that the plaintiff
is compensated for his or her injuries by the workers' compensation
benefits he or she receives. They interpret the word "claim" to
mean a claim for workers' compensation and assert that the
political subdivision has no immunity from liability for elements
of damages, such as pain and suffering, total lost wages, and
mental anguish, not compensated by such benefits.
We cannot agree with such a narrow construction of the
word "claim." The respondents contend that such a construction
would amount to a splitting of the plaintiffs' causes of action.
While there is some analogy to this principle, it must be
remembered that a workers' compensation claim is not based on
negligence. It encompasses a variety of statutory monetary
benefits, see Cropp v. State Workmen's Compensation Comm'r, 160
W. Va. 621, 236 S.E.2d 480 (1977), some of which are included in
the normal tort claim. We decline to assume that the legislature
intended to use the word "claim" in such a limited fashion.
Consequently, we conclude that W. Va. Code, 29-12A-5(a)(11),
provides immunity to a political subdivision for all damages
arising from a tortious injury, not merely for those compensated by
workers' compensation.
V.
For the reasons stated above, we affirm the judgments of
the Circuit Courts of Fayette and Braxton Counties and the ruling
of the Circuit Court of Logan County on the certified questions
presented.
No. 20741 - Affirmed.
No. 21112 - Affirmed.
No. 21260 - Answered and
Dismissed.