The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
RHODA M. MARCHANT, June 6, 2025
TIMOTHY E. MARCHANT, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
AND TIMOTHY S. MARCHANT, INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
Plaintiffs Below, Petitioners
v.) No. 24-ICA-364 (Cir. Ct. of Preston Cnty. Case No. CC-39-2020-C-13)
PRESTON COUNTY OFFICE
OF EMERGENCY MANAGEMENT/E911
AND PRESTON COUNTY COMMISSION,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners Rhoda M. Marchant, Timothy E. Marchant, and Timothy S. Marchant
appeal the August 14, 2024, order of the Circuit Court of Preston County that granted
Respondents Preston County Office of Emergency Management/E911 (“E911”) and the
Preston County Commission’s motion to dismiss. E911 and the Preston County
Commission filed a joint response.1 The Marchants filed a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.
This case arises from a telephone call to Preston County’s 911 emergency line on
or about February 7, 2018. The Marchants resided in Independence, West Virginia, in
Preston County. Bad weather that day led to a power outage at their home. Timothy S.
Marchant, the minor child of Rhoda and Timothy E. Marchant, who was home alone at the
time, started a generator outside the door to the home’s mudroom and ran a power cord
from the generator inside the house to an outlet near the electrical box to provide temporary
power to the home. The proximity of the generator to the mudroom allowed carbon
monoxide produced by the generator’s combustion engine to enter the house. While this
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The Marchants are represented by John R. Angotti, Esq., and Chad C. Groome,
Esq. E911 and the Preston County Commission are represented by Jeffrey S. Zurbuch,
Esq., Greyson C. Teets, Esq., and S.L. Mallow, Jr., Esq.
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was happening, Rhoda and Timothy E. Marchant came home. Perceiving fumes in the
house, Timothy E. Marchant opened the windows and doors in hopes that circulating fresh
air would remove them. However, by that time, the Marchants were all allegedly and
unknowingly suffering the effects of carbon monoxide poisoning. Eventually, the power
was restored, and the generator was turned off. At some point, the family began to question
whether they were exposed to carbon monoxide, so Timothy E. Marchant called 911 for
assistance. He claims that when he made the call, he was confused because of the carbon
monoxide in his system.
Mr. Marchant alleges that the 911 operators he spoke with displayed “a distinct lack
of knowledge” concerning the dangers and symptoms of carbon monoxide toxicity and no
“sense of urgency” regarding his complaints, but did dispatch a fire department to test the
carbon monoxide levels in the family’s home. Sometime later, before the fire department
arrived, Timothy E. Marchant made another call to 911 and informed them that Rhoda and
Timothy S. Marchant wanted to go to the hospital. During that call, he claims the 911
operator told him that the decision to seek medical treatment was at the Marchants’
discretion, the fire department was on the way to their house, and that if they wanted an
ambulance to be dispatched, he could call back and request one. Mr. Marchant alleges that
the operator again displayed “a distinct lack of knowledge . . . and/or sense of urgency”
during the second call. He told the operator that the family would wait at home for the fire
department. After the firefighters arrived, Timothy E. Marchant drove himself and his
family from Independence to Morgantown’s Ruby Memorial Hospital in what he says was
an “intoxicated” state because of his carbon monoxide poisoning. He claims he has no
memory of the drive. The Marchants allege that the 911 operators caused them to
experience a severe delay in receiving medical treatment for their carbon monoxide
poisoning and lulled them into a false sense of safety regarding their medical condition by
acting as if there was no need to respond with urgency. The Marchants allege that all
members of the family suffered physical and mental injuries as a result of the delay in
treatment, but that Rhoda suffered most severely, as she was rendered permanently legally
blind and disabled and is unable to work.
The Marchants filed suit on February 6, 2020, against E911 and the Preston County
Commission, asserting causes of action for negligence and willful or wanton misconduct
pursuant to West Virginia Code § 24-6-8 (1997). The complaint alleged that the
respondents knew or should have known of the Marchants’ confusion, the high likelihood
that they were suffering from carbon monoxide intoxication, and/or the Marchants’ lack of
knowledge and/or understanding of the nature of carbon monoxide and its toxicity. The
complaint further alleged that during the calls, the respondents did not advise the
Marchants about the dangers of carbon monoxide, the symptoms of carbon monoxide
poisoning, and the need for the Marchants to be provided pure oxygen. It alleges that
instead, the respondents displayed and expressed a distinct lack of knowledge on the
subject, no sense of urgency, and did not direct the Marchants to seek immediate medical
treatment or to request an ambulance. The respondents also allegedly did not dispatch an
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ambulance but left the Marchants to decide for themselves whether to go to the hospital
and then drive themselves there, even though Timothy E. Marchant claims he expressed
uncertainty about whether he should drive in his condition. Under both the negligence and
willful or wanton misconduct claims, the Marchants asserted that respondents failed to
dispatch an ambulance, EMT, or other medical care to them; failed to advise them to get
immediate medical attention for carbon monoxide poisoning; failed to appreciate the
gravity of the harm posed to them by carbon monoxide poisoning; failed to advise them of
carbon monoxide poisoning dangers; failed to train and/or adequately train staff; failed to
adequately supervise staff; negligently hired the employee(s) involved; failed to obtain
and/or require necessary and proper certifications and/or training for emergency calls;
and/or failed to use due care generally. The complaint alleged that as a direct and proximate
result of their negligence, willful misconduct, and/or wanton misconduct, the respondents
caused a significant delay in care, the lack of proper medical care, and/or caused the
Marchants to lose the chance of recovery and/or further permanent injury.
On February 6, 2020, the Marchants served written discovery on respondents. On
March 12, 2020, respondents filed a motion to dismiss the complaint based on statutory
immunity under West Virginia Code § 24-6-8. Respondents objected to providing
discovery responses until the circuit court ruled on their motion to dismiss. Petitioners
responded to the motion to dismiss on May 18, 2020, and the court heard arguments on
December 23, 2020, and ordered the parties to submit proposed findings of fact and
conclusions of law. The parties submitted the same in January 2021. However, the court
did not enter an order on the motion, and the case sat dormant. In approximately February
2023, the court issued a notice of involuntary dismissal under Rule 41 for inactivity. The
Marchants filed a response indicating that the parties were awaiting a ruling on the pending
motion to dismiss and that respondents objected to discovery until after a ruling was made.
The circuit court placed the matter back on its active docket but did not enter an order. The
Marchants requested a status conference, which was held on July 29, 2024. Thereafter, by
order entered on August 14, 2024, the circuit court granted the motion to dismiss, asserting
that respondents were entitled to immunity under West Virginia Code § 24-6-8, which
states:
Limitation of Liability
A public agency or a telephone company participating in an emergency
telephone system or a county which has established an enhanced emergency
telephone system, and any officer, agent or employee of the public agency,
telephone company or county is not liable for damages in a civil action for
injuries, death or loss to persons or property arising from any act or omission,
except willful or wanton misconduct, in connection with developing,
adopting or approving any final plan or any agreement made pursuant to this
article, or otherwise bringing into operation or participating in the operation
of an emergency telephone system or an enhanced emergency telephone
system pursuant to this article.
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(emphasis added). In its order, the circuit court found that the facts alleged in the complaint
did not rise to the level of willful or wanton misconduct because the facts did not
demonstrate that the respondents possessed the requisite knowledge and appreciation that
their action or inaction may cause harm to another. As the circuit court’s order states,
It is not enough for the [respondents] to know that the [Marchants’] situation
was dangerous; rather, they must have known that their actions or omissions
created or led to harm to the [Marchants]. In the instant case, there are no
facts that allege that [respondents] knew that by allowing [the Marchants] to
decide whether they want[ed] to go to the hospital rather than sending an
ambulance or advising them to seek immediate medical treatment would
cause further harm to [the Marchants]. Some facts actually suggest the
opposite. The Complaint states that [respondents] “expressed a distinct lack
of knowledge of the foregoing and/or sense of urgency” where the
“foregoing” referred to the dangers, symptoms, and [effects] of carbon
monoxide poisoning. Thus, without having knowledge of the dangers,
symptoms, and [effects] of carbon monoxide poisoning, the [respondents]
could not have known that their actions or omissions would result in harm.
The court concluded that the remainder of the Marchants’ claims of willful or wanton
misconduct “are either strictly negligence claims or suggest that all 911 operators should
be required to possess medical training, neither of which can stand alone as willful and
wanton allegations.” The circuit court also dismissed the Marchants’ claims of negligence
brought pursuant to West Virginia Code § 29-12A-4 (1986), finding that the immunity
provision of West Virginia Code § 24-6-8 bars all claims of negligence in this matter. The
court further found, pursuant to Hutchison v. City of Huntington, 198 W. Va. 139, 479
S.E.2d 649 (1996), that it would be improper to permit the Marchants to conduct discovery
because immunity provisions apply to the respondents, and that the individual
circumstances of the case indicated that the Marchants pleaded their best case, so there was
no need to order more detailed pleadings. It is from this order that the Marchants now
appeal.
Our standard of review is as follows: “Appellate review of a circuit court’s order
granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v.
Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). “The trial court,
in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss
the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Syl., John W. Lodge Dist. Co., Inc.
v. Texaco, Inc., 161 W. Va. 603, 245 S.E.2d 157 (1978) (citations omitted). Moreover, we
are mindful that, “[o]n appeal of a dismissal based on granting a motion pursuant to West
Virginia Rules of Civil Procedure 12(b)(6), the allegations of the complaint must be taken
as true.” Syl. Pt. 3, Doe v. Logan Cnty. Bd. of Educ., 242 W. Va. 45, 829 S.E.2d 45 (2019)
(quoting Syl. Pt. 1, Wiggins v. Eastern Assoc. Coal Corp., 178 W. Va. 63, 357 S.E.2d 745
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(1987)). Furthermore, “[a] trial court considering a motion to dismiss under Rule 12(b)(6)
must liberally construe the complaint so as to do substantial justice.” Cantley v. Lincoln
Cnty. Comm’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007).
On appeal, the Marchants raise two assignments of error. First, they assert that the
circuit court erred by granting the motion to dismiss on the basis of immunity because their
complaint stated a valid claim for willful or wanton misconduct as required under West
Virginia Code § 24-6-8. The Marchants claim that their complaint alleged multiple
instances during which the respondents’ interactions with them rose to the level of willful
or wanton conduct and contend that those allegations are more than sufficient to survive a
Rule 12(b)(6) challenge. They further declare that the court failed to properly construe the
factual allegations in the complaint in their favor, as required during a Rule 12(b)(6)
inquiry, instead selecting the facts “it liked best” in order to defeat their claims. Relatedly,
the Marchants contend that the court should not have applied the immunity provisions of
West Virginia Code § 24-6-8 to the facts of this case without further inquiry into the
respondents’ compliance with other E911 call center operational requirements contained
in the related subparts of the organizing statute, which involves the creation, oversight, and
maintenance of emergency dispatch centers across the state. Despite this lack of context,
the Marchants claim that the circuit court erroneously found that the complaint failed to
state a claim for which relief could be granted because of the immunity allegedly conferred
on the respondents by West Virginia Code § 24-6-8.
For their second assignment of error, the Marchants argue that instead of dismissing
their case, the court should have permitted them the opportunity to amend their complaint
to cure any perceived defect, arguing that the Supreme Court of Appeals of West Virginia
(“SCAWV”) has held that dismissal based on governmental immunity is generally
improper without allowing the claimant to amend or provide a more definite statement
regarding the claim. See Hutchison, 198 W. Va. at 150, 479 S.E.2d at 660.
Turning first to whether or not the Marchants adequately pled willful or wanton
misconduct in their complaint, upon review, we find that the complaint describes identical
conduct by the respondents in the claim for willful or wanton misconduct as it does in the
negligence claim, which was pled in the alternative and/or in addition. Negligence and
willful or wanton misconduct are legally distinct claims in West Virginia. As the SCAWV
has observed,
It is often difficult, in a particular situation, to distinguish between acts of
negligence and acts which constitute willful and wanton conduct. The law,
however, recognizes a clear and valid distinction between them. . . .
Negligence conveys the idea of heedlessness, inattention, inadvertence;
willfulness and wantonness convey the idea of purpose or design, actual or
constructive. . . . In order that one may be held guilty of wilful or wanton
conduct, it must be shown that he was conscious of his conduct, and
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conscious, from his knowledge of existing conditions, that injury would
likely or probably result from his conduct, and that with reckless indifference
to consequences he consciously and intentionally did some wrongful act or
omitted some known duty which produced the injurious result.
Kelly v. Checker White Cab, 131 W. Va. 816, 822-23, 50 S.E.2d 888, 892 (1948) (citations
and quotations omitted). Here, the Marchants make no distinction between the facts alleged
in their complaint in support of their negligence claim and those that support their
alternative/additional claim for willful or wanton misconduct. Because the complaint
reiterates identical conclusory language in support of both causes of action, the complaint
even alleges that explicitly negligent conduct (negligent hiring) constitutes willful or
wanton misconduct by respondents. Notably, the complaint contains no allegations that
show any requisite consciousness, awareness, or knowledge of the consequences of the
conduct and the intention to act or cause injury that would constitute an act of willful or
wanton conduct. To the contrary, the complaint contains allegations that the 911
representatives “displayed and expressed a distinct lack of knowledge . . . and/or sense of
urgency” about the dangers of carbon monoxide, and that respondents’ “failure to
appreciate the gravity of harm posed to the [Marchants] by carbon monoxide poisoning or
toxicity” constituted both negligence and willful or wanton misconduct. (emphasis added).
Therefore, taking those allegations in the complaint as true, the respondents did not know
about the dangers of carbon monoxide poisoning and therefore could not have known that
their actions or inactions would result in harm to the Marchants. Accordingly, we find that
the complaint does not state a valid claim for willful or wanton misconduct against the
respondents.
Furthermore, we are not persuaded that discovery should be permitted to determine
whether the respondents complied with the other provisions of West Virginia Code §§ 24-
6-1 to 24-6-15 before deciding whether the immunity provision of § 24-6-8 applies. First,
nothing in the plain language of West Virginia Code § 24-6-8 suggests that the limitation
of liability is contingent on compliance with any other provision of Article 6. Moreover,
whether immunity bars a civil action is a question of law for the court to determine.
Heckman v. Jividen, 249 W. Va. 734, 740, 901 S.E.2d 297, 303 (Ct. App. 2024).
Immunities under West Virginia law are more than a defense to a suit in that
they grant governmental bodies and public officials the right not to be subject
to the burden of trial at all. The very heart of the immunity defense is that it
spares the defendant from having to go forward with an inquiry into the
merits of the case.
Hutchison, 198 W. Va. at 148, 479 S.E.2d at 658. The SCAWV has stated that it “agree[s]
with the United States Supreme Court to the extent it has encouraged, if not mandated, that
claims of immunities, where ripe for disposition, should be summarily decided before
trial.” Id., 198 W. Va. at 147, 479 S.E.2d at 657. Accordingly, we find no merit in the
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Marchants’ argument regarding the need for discovery on the scope and application of
immunity under West Virginia Code § 24-6-8 prior to dismissal on immunity grounds.
Turning to the second assignment of error, the Marchants argue that per Hutchison,
they should be permitted to amend their complaint to more adequately plead facts to
address willful and wanton misconduct and overcome the immunity defense. In Hutchison,
the SCAWV held,
We believe that in civil actions where immunities are implicated, the trial
court must insist on heightened pleading by the plaintiff. . . . To be sure, we
recognize the label “heightened pleading” for special pleading purposes for
constitutional or statutory torts involving improper motive has always been
a misnomer. A plaintiff is not required to anticipate the defense of immunity
in his complaint, . . . We believe, in cases of qualified or statutory immunity,
court ordered replies and motions for a more definite statement under Rule
12(e) can speed the judicial process. Therefore, the trial court should first
demand that a plaintiff file “a short and plain statement of his complaint, a
complaint that rests on more than conclusion alone.” Next, the court may, on
its own discretion, insist that the plaintiff file a reply tailored to an answer
pleading the defense of statutory or qualified immunity. The court’s
discretion not to order such a reply ought to be narrow; where the defendant
demonstrates that greater detail might assist an early resolution of the
dispute, the order to reply should be made. Of course, if the individual
circumstances of the case indicate that the plaintiff has pleaded his or her
best case, there is no need to order more detailed pleadings. If the information
contained in the pleadings is sufficient to justify the case proceeding further,
the early motion to dismiss should be denied.
198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996) (citations omitted). Clearly, the
trial court has discretion in determining whether to require or allow additional pleadings.
As expressly stated by the Hutchison Court, if the circumstances indicate that the plaintiff
has already pleaded their best case, then there is no need to order additional pleadings.
Here, the circuit court found that although the Marchants were not required to anticipate
the respondents’ immunity defense, their complaint contained allegations that the
Marchants argued were adequate to assert a claim for willful or wanton misconduct. The
Marchants defended their pleading in response to the respondents’ motion to dismiss in the
lower court in both briefing and oral argument. Furthermore, the record reflects that they
never sought leave of the circuit court to amend their complaint to better articulate willful
or wanton misconduct, yet now claim it was error for the court not to proactively offer
them the opportunity. Notably, the Marchants have not expressed what amendments could
be made or facts could be alleged to demonstrate a valid claim for willful or wanton
misconduct in light of the facts asserted in the operative complaint. Considering all of the
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foregoing, we find no merit in this assignment of error and no basis to disturb the order on
appeal.
Accordingly, we affirm the August 14, 2024, order.
Affirmed.
ISSUED: June 6, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
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