# Blankensip v. Necco, LLC

> District Court, S.D. West Virginia · July 25, 2018

URL: https://www.frixlaw.com/law-library/cases/10727775

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** July 25, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

ASHLEY BLANKENSHIP,
Administratrix of the
Estate of AUBREE INGERSOLL,
a deceased infant,

Plaintiffs,

v. Civil Action No. 2:16-cv-12082

NECCO, LLC,
successor-in-interest to
NECCO, INC., and d/b/a NECCO
d/b/a NECCO & ASSOCIATES,
and NECCO, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is plaintiffs’ motion for summary judgment,
filed December 6, 2017. Also pending is defendants’ motion for
summary judgment, filed December 8, 2017.

I. Factual and Procedural Background

This case arises out of the death of a fifty-two-day-
old infant, Aubree Ingersoll, that occurred while the child was
under the care of the West Virginia Department of Health and
Human Resources (“WV DHHR”) in the home of certified foster
parents. See Transfer of Custody Ex. A Def.’s Mot. Summ. J.
(“Defs.’ Mot”); Walls Certificate of Recertification Ex. E
Defs.’ Mot.; Report of Criminal Investigation (“Investigation
Report”) Ex. D Pls.’ Mot. Summ. J. at 21 (“Pls.’ Mot.”); Report
of Death Ex. F Pls.’ Mot. at 6. Aubree was born on May 11, 2015
and taken into custody by WV DHHR the next day before leaving
the hospital. Transfer of Custody; Amy Rickman Aff. Ex. B
Defs.’ Mot. at 6. WV DHHR contracts with defendant Necco, LLC

successor-in-interest to Necco, Inc. and doing business as Necco
and Necco and Associates (together “Necco”) “for the provision
of specialized foster care services for youth in the
custody/guardianship of the [WV DHHR].” 2015 Contract at 1 Ex.
A Pls.’ Mot.; see 2013 Contract at 1 Ex. 1 to Ex. B, Ex. H
Defs.’ Mot.

Through Necco, Aubree was placed with foster parents
Aaron David Hall and Stella June Hall, who were certified by
Necco as therapeutic foster parents. Rickman Aff. at 6; Hall
Certificate Ex. C Def.’s Mot. On or around June 24, 2015,
Aubree was transferred, with approval from WV DHHR and Necco,
for approximately twelve days of respite foster care to the home
of Steven and Charity Walls, who were similarly certified Necco
foster parents. Rickman Aff. at 6; Request for Youth Ex. D
Defs.’ Mot.; Walls Certificate; Walls Foster Agency Agreement

1 All references to this document utilize the pagination
generated by ECF.
Ex. B Pls.’ Mot. Defendants represent that “[r]espite care is
the planned or emergency temporary relief of caregivers of a
foster child. In this instance, certified Necco foster parents
Steven and Charity Walls provided respite care to Aubree while
David and Stella Hall were on vacation.” Defs.’ Mem. Supp.
Summ. J. 3 n. 4 (“Defs.’ Mem.”). Mr. and Ms. Walls raised a

daughter of their own, age six at the time of these events, and
had previously provided foster care for approximately six
children, at least two of whom were infants under one year in
age.2 Charity Walls Dep. 18 Ex. E Pls.’ Mot.; see Steven Walls
Dep. 6, 25-27 Ex. L Pls.’ Mot.

At approximately 1:30 or 2:00 a.m. on July 1, 2015,
Aubree woke up and was fed by Ms. Walls, who then burped her,
swaddled her, and placed her back in the crib that was beside
Ms. Walls’ bed. Investigation Report at 2; Report of Death at
6. Ms. Walls placed Aubree turned onto her side and also placed
a rolled up blanket in the crib as a positioner to support
Aubree and prevent her from rolling onto her stomach. Walls

2 Ms. Walls testified that one of the six other foster placements
was a short-term respite placement, but she gives some
indication that the other placements were typical, non-respite
foster placements. C. Walls Dep. 18. Mr. Walls testified that
the Walls family was interested in trying to adopt one of the
female children that had been placed for foster care in the
home. S. Walls Dep. 25-26. This foster child was also in the
home at the time that the Walls family took Aubree for respite
care. S. Walls Dep. 30.
Dep. 23; Report of Death at 6. Ms. Walls testified that on the
night of the incident, Aubree “didn’t burp well -- only a small
burp,” and that Aubree had “spit up a little bit in the days
prior.” She adds, “[s]o I wrapped her back. I laid her down on
her back just kind of to her side, just slightly enough that if
she would spit up, she wouldn’t choke was my intention.” C.

Walls Dep. 21.

At 6:00 a.m., Ms. Walls awoke to her alarm, proceeded
to check on Aubree, and found the infant was cold and
unresponsive. Report of Death at 6; Investigation of Alleged
Abuse or Neglect in Child Care Agency (“Neglect Investigation”)
at 1 Ex. F Defs.’ Mot. Ms. Walls noted that Aubree’s head was
now turned toward the blanket, but she maintained that “her face
was visible. You could clearly see all of her face.” Compare
Neglect Investigation at 1; Report of Death at 6 (“decedent’s
face and body were pressed against the blanket roll”) with C.
Walls Dep. 24. Ms. Walls called 911 and proceeded to perform
cardiopulmonary resuscitation with some additional instruction
by the 911 dispatcher. Report of Death at 6; Investigation
Report at 2; Neglect Investigation at 1. Medics arrived at the
home at 6:23 a.m. and pronounced Aubree dead at the scene at
6:33 a.m. Report of Death at 1, 6.
A post-mortem examination and death investigation was
performed on Aubree on July 2, 2015. Id. at 1. As a result of
this examination, Dr. Joseph DelTondo, Deputy Chief Medical
Examiner, found that Aubree “died as a result of Sudden
Unexplained Infant Death” (“SUID”). Id. at 6. He further
stated that “[s]ide sleeping with rolled blankets and/or other
items in a crib is considered unsafe sleep conditions, and is
listed as factors contributing to death,” but noted “[t]he
manner of death for the purposes of vital statistics
registration is undetermined.” Id. In its investigation of the
incident, WV DHHR determined that “child neglect ha[d] not

occurred.” Neglect Investigation at 1. No criminal charges
were filed, and WV DHHR took “[n]o actions (e.g., no citations,
sanctions, or limitations placed on Necco’s license).” Rickman
Aff. at 6-7.

Plaintiff Ashley Blankenship, the biological mother of
Aubree, brought this action on December 13, 2016 against former
defendant ENA, Inc. See Compl. On April 20, 2017, plaintiffs
filed their amended complaint, removing any claim against ENA,
Inc. and instead bringing suit against Necco. Am. Compl.
Plaintiffs allege four counts against Necco: (1) vicarious
liability based on the negligence of the foster parents, (2)
negligence of Necco, (3) res ipsa loquitur, and (4) punitive
damages. See Am. Compl. ¶¶ 15-32.

Both plaintiffs and defendants seek summary judgment
on the issue of vicarious liability. Specifically, the
plaintiffs request that the court find that “(I) Charity Walls
was negligent which proximately caused or contributed to Aubree
Ingersoll’s death; (II) Charity Walls was acting within the
scope of her authority or employment as a foster parent at all
times relevant to Aubree Ingersoll’s death; and (III) defendant,
Necco, is vicariously liable for Charity Walls’[] negligence.”

Pls.’ Mot. 6. In addition to the issue of vicarious liability,
Necco also asks that the court grant it summary judgment on the
remaining three counts. Necco asserts that summary judgment for
it on all the claims brought against it is proper because (1)
Necco is immune from civil liability pursuant to W. Va. Code §
49-2-810, and its foster parents act in loco parentis and should
be protected by parental immunity; (2) because foster parents,
such as Mr. and Ms. Walls, are not employees, agents, or
servants of Necco, the foster agency cannot be held vicariously
liable; (3) that Necco was not negligent as it operated in
conformance with industry best practices at all times relevant
to Aubree’s death; (4) that Aubree’s death was unexplained and
accidental, so res ipsa loquitur cannot apply to prove
negligence; and (5) if summary judgment is granted as to the
preceding issues, punitive damages may not proceed as a
standalone claim. Defs.’ Mot. 2; Defs.’ Mem. 15-17.

II. Governing Standard

When both parties have filed motions for summary
judgment, the court must consider “each motion separately on its
own merits to determine whether either of the parties deserves
judgment as a matter of law.” Bacon v. City of Richmond, 475
F.3d 633, 637-38 (4th Cir. 2007) (quoting Rossignol v. Voorhaar,
316 F.3d 348, 354 (4th Cir. 2003)). Summary judgment is
appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Material” facts are those necessary to establish the elements
of a party’s cause of action. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); see also News & Observer Publ’g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)
(same). A “genuine” dispute of material fact exists if, in
viewing the record and all reasonable inferences drawn therefrom
in a light most favorable to the non-moving party, a reasonable
fact-finder could return a verdict for the non-moving party.
Anderson, 477 U.S. at 248.
III. Discussion

1. Immunity

As a preliminary matter, Necco asserts that it is
entirely immune from suit on this incident pursuant to W. Va.
Code § 49-2-810. Defs.’ Mot. 2; Defs.’ Mem 15-17. Necco
further asserts that foster parents Steven and Charity Walls are
covered by the traditional doctrine of parental immunity, such
that they have no liability to import to Necco. Id. Each basis
for immunity will be discussed in turn.

A. Statutory Immunity

W. Va. Code § 49-2-810 prescribes that “[a]ny person,
official or institution participating in good faith in any act
permitted or required by this article are immune from any civil
or criminal liability that otherwise might result by reason of
those actions.” This immunity provision appears in Article 2 of
Chapter 49 of the West Virginia Code, which governs state
responsibilities for children. See W. Va. Code § 49-2-101 et
seq. Necco asserts that “the evidence of record demonstrates
that at all times relevant to this action, Necco was
participating in acts permitted and/or required under” Chapter
49, Article 2 of the West Virginia Code, the relevant “article”
for which immunity is granted by § 49-2-810. Defs.’ Mem. 11.
Therefore, Necco argues, it should be immune from suit for this
incident because statutory immunity is provided to “any act
permitted or required by this article.” W. Va. Code § 49-2-810.

In 2015, the State Legislature undertook to recodify
Chapter 49 of the West Virginia Code in order to “embrace in a
revised, consolidated, and codified form and arrangement the
laws of the State of West Virginia relating to child welfare.”
W. Va. Code § 49-1-101. Prior to this recodification, the
immunity provision relied upon by defendants was located at

Article 6A of Chapter 49, which was solely concerned with the
mandatory reporting for children suspected to be suffering
abuse. See W. Va. Code § 49-6A-1 et seq. (2014). Therefore, up
and until the time of the 2015 recodification, which became
effective on May 17, 2015, the statutory immunity appears to
have been available only for acts taken in good faith under
Article 6A. W. Va. Code § 49-6A-6 (2014).

At the time of the recodification, the legislature
stated the following intent:
In recodifying the child welfare law of this state
during the regular session of the Legislature in the
year 2015, it is intended by the Legislature that each
specific reenactment of a substantively similar prior
statutory provision will be construed as continuing
the intended meaning of the corresponding prior
statutory provision and any existing judicial
interpretation of the prior statutory provision. It
is not the intent of the Legislature, by recodifying
the child welfare law of this state during the regular
session of the Legislature in the year 2015 to alter
the substantive law of this state as it relates to
child welfare.

W. Va. Code § 49-1-102. This statement tends to indicate
that the legislature did not wish to create a broad
statutory immunity for any action taken in good faith under
Article 2, as Necco entreats. Rather, it appears that this
immunity should continue to extend only to actions related
to mandatory reporting requirements for children suspected
to be victims of child abuse -- that is, it should apply
only to Part VIII of Article 2.

As Necco has made no assertion that any of its
actions or the actions of its foster parents were permitted
or required by Part VIII of W. Va. Code § 49-2, it is not
immune from suit in this action.

B. Parental Immunity

“[T]he doctrine of parental immunity prohibits a child
from bringing a civil action against his or her parents.” Cole
v. Fairchild, 198 W. Va. 736, 482 S.E.2d 913, 926 (W. Va. 1996)
(citing Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721, 722 (W.
Va. 1976)). The Supreme Court of Appeals of West Virginia has
stated both that “the underlying purpose of this doctrine is to
preserve the peace and tranquility of society and families by
prohibiting such intra-family legal battles,” and that “the real
purpose behind the doctrine is simply to avoid undue judicial
interference with parental discretion,” which “entails countless
matters of personal, private choice,” and “[i]n the absence of

culpability beyond ordinary negligence, those choices are not
subject to review in court.” Cole 482 S.E.2d at 926 (quoting
Shoemake v. Foegel, LTD, 826 S.W.2d 933, 936 (Tex. 1992)
(internal quotations omitted).

Several exceptions to the doctrine have been carved
out of the general immunity. See Cole 482 S.E.2d at 926. One
exception allows a child to bring suit against a parent for
personal injuries sustained in an automobile accident caused by
his or her parent’s negligence. Syl. pt. 2, Lee 224 S.E.2d 721.
This exception exists for automobile accidents because “in most
instances, there was automobile liability insurance coverage,”
so “there would be no real disruption of family harmony.”
Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418, 427 (W.
Va. 1991). A child may also bring suit against a parent for
injury or death caused by “intentional or willful conduct.”
Syl. pt. 9, Courtney 413 S.E.2d 418. Further, “[t]he parental
immunity doctrine does not prohibit the negligence of a parent
from being asserted as a defense in an action brought by the
parent for the wrongful death of a child.” Syl. pt. 7, Cole 482
S.E.2d 913.

Necco asserts that foster parents should be entitled
to parental immunity because they act in loco parentis, that is,
they “act[] as a temporary guardian or caretaker of a child,
taking on all or some of the responsibilities of a parent.”
Black’s Law Dictionary 858 (9th ed. 2009); Defs.’ Mem. 15-17.
Nevertheless, Necco acknowledges that the issue of whether a
foster parent is entitled to parental immunity has never been
explicitly addressed or adopted by the Supreme Court of Appeals

of West Virginia. Defs.’ Mem. 16. There is some support for a
foster parent being treated as acting in loco parentis under
West Virginia law, as in Clifford K. v. Paul S. ex rel. Z.B.S.
the Supreme Court of Appeals held that a “psychological parent”
could include foster parents, and noted that a “psychological
parent” is similar to the “concepts of ‘de facto parent’ status
or ‘in loco parentis.’” 217 W. Va. 625, 619 S.E.2d 138, 157 n.
19 (W. Va. 2005).

While the Supreme Court of Appeals for West Virginia
has never explicitly extended the doctrine of parental immunity
to foster parents, there are policy indications as to why it
should not apply in a case such as this. The two traditional
policies underlying the justification for parental immunity are
preserving the peace of society by avoiding intra-family legal
battles and avoiding undue judicial interference with parental
discretion. Cole 482 S.E.2d at 926. As to the first policy,
the court notes that because Aubree is now deceased, and no
foster parent is named as a defendant in this action, the

potential for intra-family discord does not exist. As the
Supreme Court noted in Cole, “the espoused purpose of the
doctrine of parental immunity is less forceful when a child dies
and a wrongful death suit is brought. As a result of the
child’s death, the potential conflict between the child and the
parent no longer exists.” Id. at 927.

Similarly, less discretion is given to foster parents
in caring for children placed in their homes when compared to
natural parents. Foster parents and foster agencies are
governed by numerous statutory and regulatory requirements to
provide for the safety and well-being of foster children. See
generally W. Va. Code §§ 49-2-107, 49-2-126; W. Va. Code R. §§
78-2-1 et seq.

Among other requirements, foster parents must have
“the life experiences, personal characteristics and temperament
suitable for working with children in need of care.” W. Va.
Code R. § 78-2-13. In order to be approved, prospective foster
parents must submit to background checks and provide a minimum
of four non-relative references. Id. Foster parents may not
have more than six children in their home and will not be
permitted to parent two children less than two-years-old at the
same time. Id. A foster home cannot, absent special approval,
have any resident who has any convictions other than minor

traffic violations. Id. Foster parents must provide proof of
reliable transportation and sufficient income. Id. They must
submit to a comprehensive home study. W. Va. Code R. § 78-2-16.
If both parents work, they must receive approval of their plan
for the care of the children during work hours. Id. They must
participate in a required orientation and training curriculum
both before a child is placed in their home and on an ongoing
basis. Id. at § 78-2-20.

As it relates to this case especially, the record
indicates that Ms. Walls may have received at least some
instruction on best practices for placing children to sleep in
cribs -- including not placing any soft blankets, stuffed
animals, or other loose bedding in the crib with a sleeping
child. See C. Walls Dep. 12-13; S. Walls Dep. 28-29; Rickman
Aff. at 5. Because of the special requirements and regulations
placed on foster parents, as well as their increased oversight
and training, they have less discretion in determining how to
best care for children placed in their home. As a consequence,
any judicial review for acts of alleged negligence is more
suitable in the case of a foster parent.

The court concludes that Steven and Charity Walls as
foster parents are not covered by parental immunity.

2. Vicarious Liability

Both plaintiffs and defendants seek summary judgment
as it relates to Count I of the amended complaint, alleging
Necco’s vicarious liability for the actions of Ms. Walls. The
parties both request that the court determine whether Ms. Walls
was an employee, agent, or servant of Necco, such that Necco
could be held vicariously liable. The plaintiffs further
request that the court rule as a matter of law that Ms. Walls
was negligent in her actions that allegedly resulted in Aubree’s
death.

“Where a defendant has control over the negligent
actor, he may be vicariously liable for that actor’s
negligence.” Thomas v. Raleigh Gen. Hosp., 178 W. Va. 138, 358
S.E.2d 222, 224 (W. Va. 1987). An employer may be vicariously
liable for the acts of an employee under the theory of
respondeat superior, as “[t]he master is answerable to a
stranger for the negligent act of a person employed by the
[master or] master’s authorized agent, if the act is within the
scope of the person’s employment.” Zirkle v. Winkler, 214 W.
Va. 19, 585 S.E.2d 19, 22 (W. Va. 2003) (quoting Syl. pts. 3-4,
O’Dell v. Universal Credit Co., 118 W. Va. 678, 191 S.E. 568 (W.
Va. 1937)). However, a defendant generally cannot be held

vicariously liable for negligent actions committed by its
independent contractor. Syl. pt. 5, Law v. Phillips, 136 W. Va.
761, 68 S.E.2d 452 (W. Va. 1952).

In analyzing whether a master-servant, principal-
agent, or employer-employee relationship exists in order to
impute liability, there are four general factors the court may
consider: “(1) Selection and engagement of the servant; (2)
Payment of compensation; (3) Power of dismissal; and (4) Power
of control. The first three factors are not essential to the
existence of the relationship; the fourth, the power of control,
is determinative.” Syl. pt. 5, Paxton v. Crabtree, 184 W. Va.
237, 400 S.E.2d 245 (W. Va. 1990). Stated another way: “The
test of the relation between one having work done and the
workman consists in the employer's right or lack of right to
supervise the work. If that right exists, the relation is that
of master and servant. If that right does not exist, the
relation is that of employer and independent contractor.” Syl.
pt. 1, McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (W. Va.
1965). Under West Virginia law,
It is always incumbent upon one who asserts vicarious
liability to make a prima facie showing of the
existence of the relation of master and servant or
principal and agent or employer and employee.
However, once a prima facie showing has been made, it
is incumbent upon one who would defeat liability on
the basis of an independent contractor relationship to
show such fact. If there is a conflict in the
evidence, and there is sufficient evidence to support
a finding of the jury, the determination of whether
one is an independent contractor is a question for the
jury.

Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d
218, 222 (W. Va. 1976) (internal citations omitted).

Necco argues that plaintiffs have not made a prima
facie showing that foster parents are its agents, servants, or
employees. In fact, Necco states its belief that “the role of a
foster parent[] is unique and should not be shoehorned into the
box of employer-employee or independent contractor status.”
Defs.’ Mem. 21. Rather, foster parents “may best be described
as expense-reimbursed volunteers who assist the State in caring
for children in its custody.” Defs.’ Mot. 2-3; see Mitzner ex
rel. Bishop v. Kansas Dep’t of Social & Rehabilitation Servs.,
891 P.2d 435 (Kan. 1995) (“A more apt description of a foster
parent would be more of an expense-reimbursed volunteer who must
be licensed and who operates within certain guidelines.”).
However, Necco contends that even if foster parents are
considered to be independent contractors of the foster agency,
Necco does not exercise control sufficient to impart vicarious
liability for the acts or omissions of a foster parent. Necco
maintains that its “relationship with its foster parents,
including Mrs. Walls, is prescribed by its contract with [WV]

DHHR and by a comprehensive set of regulations by which it must
abide.” Defs.’ Resp. Pls. Mot. 12.

“It is the responsibility of the [WV DHHR] to provide
care for neglected children who are committed to its care for
custody or guardianship. The [WV DHHR] may provide this care
for children in family homes meeting required standards of
certification established and enforced by the [WV DHHR].” W.
Va. Code § 49-2-106. Pursuant to W. Va. Code § 49-1-206, Necco
is a licensed “Child Placing Agency,” which is defined as, “a
child welfare agency organized for the purpose of placing
children in private family homes for foster care or for
adoption. The function of a child placing agency may include
the investigation and certification of foster family homes and
foster family group homes as provided in this chapter.” See
also Child Placing Licenses Ex. M Defs.’ Mot.
Necco recruited, trained, and certified prospective
foster parents to house and care for children in the custody of
the WV DHHR. Crawford Dep. Ex. H Pls.’ Mot. 11-19; Adams Dep.
Ex. K Defs.’ Mot. 18-24. Foster parents are provided with a per
diem as reimbursement for the expenses of having an additional
child in their home. Davis Dep. Ex. I Pls.’ Mot. 37; 2013

Contract 9. Necco foster parents enter into an agreement with
Necco that outlines the extensive responsibilities to be
performed by foster parents including: treating foster children
as family members; providing varied and nutritious food;
assisting with schoolwork; providing opportunities for children
to participate in recreational activities; promoting and
encouraging hygiene; providing non-medical transportation;
providing opportunities and encouragement for religious
training; participating in assessments, case planning
conferences, transition planning, and ongoing family support
groups; documenting foster children’s behaviors; immediately

reporting to Necco any accident or illness involving a foster
child; notifying Necco when a child will be absent from a home
overnight or before transporting a foster child out of state;
reporting any suspicions of abuse or neglect; maintaining a
working telephone; and employing supportive discipline while
refraining from using corporal punishment. See Walls Foster
Agency Agreement 1-4.
A foster parent who does not comply with the
requirements set forth in the agreement and the parent handbook
may be disciplined by Necco up to and including the closure of
their home from providing foster services with Necco. Crawford
Dep. 26-28, 32-34 (“The child placement agency can remove the
child if the parents are not following the rules and regulations
or they can remove the child for any reason they so choose.”);
Davis Dep. 32-34. Rebecca Adams, Home Resource Coordinator for
Necco, testified:
Q. What happens if they don’t [follow the
requirements]?
A. A number of things could happen. They could
receive a warning -- a verbal warning, a written
warning. It could go as far as what we call a
corrective action plan. Then it could also result
in their home not being certified anymore.
Q. So if they don’t follow Necco’s policies and
procedures and rules, ultimately their home could
be closed?
A. Yes.
Q. And they would no longer be able to serve as a
Necco foster parent?
A. Yes.
. . . .
[Discussing the Walls Foster Agency Agreement]
Q. And did Necco come up with these
[responsibilities]?
A. The requirements that we have for foster parents
basically are given to us by the state and we
follow through with those.
Q. You follow through with them. This agreement
though is between Charity and Steven Walls and
Necco, correct?
A. Yes.
Q. This is not with the state?
A. Correct.
Q. So Necco requires them to provide these [twenty]
things to foster children?
A. Yes. We require exactly what the state would
require.
. . . .
Q. And all of these [responsibilities] are required?
They’re not negotiable? These have to be followed?
A. They are required.
Q. And what happens if any of these aren’t followed
. . . .
A. Like I said earlier, they could be subject to a
warning -- verbal warning, written warning. There
could be a corrective action plan, and then closure
of the home.

Adams Dep. 30-31, 36-41.

While it appears that Necco is given some discretion
in the performance of its duties as a Child Placing Agency, the
ultimate engagement, payment, dismissal, and control of foster
parents comes not from Necco, but from the WV DHHR as well as
the regulations imposed by the state of West Virginia.
Recognizing that “child welfare services should be directed by
the principle that the health and safety of children should be
of paramount concern,” the West Virginia Legislature promulgated
a list of eleven goals for foster children in the care of the WV
DHHR:
(1) Protection by a family of his or her own, and be
provided readily available services and support
through care of an adoptive family or by plan, a
continuing foster family;
(2) Nurturing by foster parents who have been selected
to meet his or her individual needs, and who are
provided services and support, including
specialized education, so that the child can grow
to reach his or her potential;
(3) A safe foster home free of violence, abuse,
neglect and danger;
(4) The ability to communicate with the assigned
social worker or case worker overseeing the
child's case and have calls made to the social
worker or case worker returned within a reasonable
period of time;
(5) Permission to remain enrolled in the school the
child attended before being placed in foster care,
if at all possible;
(6) Participation in school extracurricular
activities, community events, and religious
practices;
(7) Communication with the biological parents.
Communication is necessary if the child placed in
foster care receives any immunizations and if any
additional immunizations are needed, if the child
will be transitioning back into a home with his or
her biological parents;
(8) A bank or savings account established in
accordance with state laws and federal
regulations;
(9) Identification and other permanent documents,
including a birth certificate, social security
card and health records by the age of sixteen, to
the extent allowed by federal and state law;
(10) The use of appropriate communication measures to
maintain contact with siblings if the child placed in
foster care is separated from his or her siblings; and
(11) Meaningful participation in a transition plan for
those phasing out of foster care.

W. Va. Code § 49-2-126(a)(1)-(11). Additionally, there are
numerous regulations for Child Placing Agencies that govern,
inter alia, foster parent characteristics, comprehensive home
study criteria, training requirements for foster parents,
approval or denial of foster homes, evaluations of approved
foster parents, and procedures for removing children from a home
and closing the home to further foster placements. See W. Va.
Code R. § 78-2-1 et seq.
Although some control may be exerted by Necco in
carrying out the requirements which ultimately stem from the
authority of the WV DHHR and the applicable regulations, this is
not enough to create an agency relationship between Necco and
its foster parents. The law in West Virginia confirms that
An owner who engages an independent contractor to
perform a job for him or her may retain broad general
power of supervision and control as to the results of
the work so as to insure satisfactory performance of
the contract -- including the right to inspect, to
stop the work, to make suggestions or recommendations
as to the details of the work, or to prescribe
alterations or deviations in the work -- without
changing the relationship from that of owner and
independent contractor, or changing the duties arising
from that relationship.

Syl. pt. 4, Shaffer v. Acme Limestone Co. Inc., 206 W. Va.
333, 524 S.E.2d 688 (W. Va. 1999).

Necco does not exert sufficient control over the
actions of foster parents to create a master-servant or
principal-agent relationship, and so, as a matter of law, Necco
cannot be held vicariously liable for the alleged negligence of
Ms. Walls in Aubree’s death. Therefore, plaintiffs’ request for
summary judgment is denied and defendants’ request is granted.
3. Negligence of Necco

Count II of the amended complaint alleges that Necco
negligently caused Aubree’s death by failing to:
a. reasonably and/or properly assess the ability of
[the Hall and Walls families] to provide care,
support and supervision for Aubree Ingersoll, a
deceased infant;
b. properly study and assess foster parents’ homes for
the supervision and care of Aubree Ingersoll, a
deceased infant;
c. provide reasonable and proper training to [the Hall
and Walls families] for the care, supervision and
needs of Aubree Ingersoll, a deceased infant;
d. create and maintain proper documentation relevant
to foster care and related services provided to
Aubree Ingersoll, a deceased infant;
e. provide supportive services to [the Hall and Walls
families] and their households for Aubree
Ingersoll, a deceased infant;
f. provide for the care, support and personal needs of
Aubree Ingersoll, a deceased infant;
g. provide the care, support and services to Aubree
Ingersoll, a deceased infant, required or otherwise
mandated by West Virginia law; and
h. oversee and administer the transfer of Aubree
Ingersoll, a deceased infant’s, possession,
custody, control, supervision and/or care from [the
Hall family] to [the Walls family].

Am. Compl. ¶ 24. Necco asserts that there is no evidence in the
record that it breached any applicable standard of care that was
relevant to Aubree’s death. Defs.’ Mem. 24. Principally, Necco
contends that “due to the complex nature of the child welfare
arena, expert testimony is required to establish what the
standard of care is with respect to [the] allegations.” Defs.’
Mem. 27; see Syl. pt. 3, Totten v. Adongay, 175 W. Va. 634, 337
S.E.2d 2 (W. Va. 1985) (“It is the general rule that want of
professional skill can be proved only by expert witnesses.”).

Necco submits the opinion of its expert, Mr. Crawford,
as evidence that it did not violate any applicable industry
standard of care. In his expert report, Mr. Crawford states
several opinions including:
3. NECCO staff present as highly professional,
educated/degreed and appropriately credentialed
within agency and industry recognized standards, and
adhere to best practices in serving children and
families.
4. The pre-service training provided for prospective
foster parents is grounded in the PRIDE model, which
is nationally recognized as a sound model and
curriculum.
5. The additional pre-service training provided by
NECCO is also grounded in best practice and
comparably meets the standards that many other
agencies honor. In short, there was nothing heard or
seen that indicated any of the training provided was
inappropriate or anything short of best practice in
the child welfare industry.
6. The Walls family was properly trained and licensed
according to licensing and accrediting bodies.
7. It is not understood why the foster parent, Ms.
Walls, placed a rolled up blanket in the infant’s
crib, as this was specifically addressed in training
as inappropriate and a safety hazard. Placing
anything in the infant’s crib would have been
contrary to the training and instructions provided
to the foster parents.
8. While the death of this infant was a horrible
tragedy, there is nothing to indicate that NECCO was
negligent or acted in any manner other than
appropriate in the training, preparation, and
licensing of this foster family to safely care for
the child.
Crawford Report.
Plaintiffs made no response to Necco’s argument that
it be granted summary judgment as to Count II. Defs.’ Reply 10;
see generally, Pls.’ Resp. Defs.’ Mot. The failure to respond
to arguments raised in a motion for summary judgment can
indicate that the non-moving party concedes the point or
abandons the claim. Feldman v. Law Enforcement Assocs. Corp,
955 F. Supp. 2d 528, 536 (E.D. N.C. 2013) (cataloguing cases);
Casto v. Branch Banking & Trust Co., 3:16-cv-5848, 2018 U.S.
Dist. LEXIS 148, *23 (S.D. W. Va. Jan. 2, 2018). Because of
plaintiffs’ failure to respond as well as the uncontroverted
evidence produced by defendants’ expert, Mr. Crawford,

defendant’s motion for summary judgment as to Count II is
granted.

4. Res Ipsa Loquitur

Count III of the amended complaint again asserts
vicarious liability against Necco for the negligence of its
foster parents, as demonstrated res ipsa loquitur, rather than
by specific negligence. Am. Compl. ¶¶ 24-28. Plaintiffs
allege, “[d]eath does not ordinarily occur to infants safely and
reasonably put, placed or positioned in a crib to sleep,” and
that “Necco, its agents servants or employees negligently put,
placed or positioned Aubree Ingersoll, a deceased infant, in a
crib to sleep which caused her death.” Id. at ¶¶ 25, 27.
Because Necco may not be held vicariously liable for any alleged
negligence of Ms. Walls, defendants are properly granted summary
judgment as to Count III.

5. Punitive Damages

Necco seeks summary judgment on the issue of punitive
damages only to the extent that it receives summary judgment as
to the remainder of plaintiffs’ substantive claims. Defs.’ Mem.
31-32. Necco correctly asserts that West Virginia law does not
recognize an independent cause of action for punitive damages,
as such damages are a form of relief. See Miller v. Carelink
Health Plans Inc., 82 F. Supp. 2d 574, 579 n. 6 (S.D. W. Va.
2000). Because no substantive claim remains against Necco,
plaintiffs cannot maintain their claim for punitive damages and
Necco should be granted summary judgment as to Count IV.
Iv. Conclusion

In accordance with the foregoing discussion it is
ORDERED the defendants’ motion for summary judgment be, and it
hereby is, granted. The plaintiffs’ motion for summary judgment
is denied.

The Clerk is requested to transmit this order to all
counsel of record and any unrepresented parties.

DATED: July 25, 2018
LO ph TD =p —D
John T. Copenhaver, Jr.
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10727775. Public record. Not legal advice.