State ex rel. Grant County Commission v. Judge Nelson

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

JANUARY 2021 TERM

FILED

March 23, 2021

released at 3:00 p.m.

No. 20-0600 EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL.

GRANT COUNTY COMMISSION,

Petitioner

V.

HONORABLE LYNN A. NELSON,

JUDGE OF THE CIRCUIT COURT OF GRANT COUNTY, WEST VIRGINIA;

KIMBERLY LINVILLE; ROBERT “BOB” MILVET; AND

THE BOARD OF TRUSTEES OF GRANT MEMORIAL HOSPITAL TRUST

FOUNDATION, INC.,

Respondents

________________________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED

AND

Appeal from the Circuit Court of Grant County

The Honorable Lynn Nelson, Judge

Civil Action No. 20-C-8

REVERSED AND REMANDED

_________________________________________________________

Submitted: January 13, 2021

Filed: March 22, 2021

Peter G. Zurbuch G. Isaac Sponaugle, III

Jeffrey S. Zurbuch SPONAUGLE & SPONAUGLE

Busch, Zurbuch & Thompson, PLLC ATTORNEYS AT LAW

Elkins, West Virginia Franklin, West Virginia

Attorneys for Petitioner

Jane E. Peak

Allan N. Karlin & Associates, PLLC

Morgantown, West Virginia

Attorneys for Respondent,

Kimberly Linville

Wendy G. Adkins

Jackson Kelly PLLC

Morgantown, West Virginia

Justin M. Harrison

Jackson Kelly PLLC

Charleston, West Virginia

Attorneys for Respondents,

Grant Memorial Hospital and

Robert “Bob” Milvet

CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.

JUSTICE WOOTON concurs and reserves the right to file a concurring opinion.

SYLLABUS BY THE COURT

1. “A writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syllabus

point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).

2. “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199

W. Va. 12, 483 S.E.2d 12 (1997).

i

3. For purposes of the Whistle-Blower Law and the Human Rights Act,

a county commission, which owns a hospital pursuant to West Virginia Code section 7-3-

14, is not the employer of individuals who work at the hospital.

4. A county commission is not a health care entity under the Patient

Safety Act merely because the county commission owns a hospital pursuant to West

Virginia Code section 7-3-14 and does not otherwise provide health care services.

5. Under Rule 12 of the West Virginia Rules of Civil Procedure, a circuit

court’s denial of a motion to dismiss a complaint that is predicated on the statutory

immunity conferred by the Governmental Tort Claims and Insurance Reform Act is an

interlocutory ruling that is subject to immediate appeal under the “collateral order”

doctrine.

ii

Jenkins, Chief Justice:

The Petitioner, Grant County Commission (“the Commission”), seeks review

of an order entered by the Circuit Court of Grant County on July 29, 2020, denying the

Commission’s motion to dismiss causes of action asserted against the Commission. 1 The

instant litigation began when the Respondent, Kimberly Linville (“Ms. Linville”), filed a

complaint in which she sought to recover damages resulting from the termination of her

employment as the Chief Nursing Officer at Grant Memorial Hospital (“the Hospital”). In

response, the Commission filed a motion to dismiss the complaint wherein it argued that it

was not a proper party as it was neither Ms. Linville’s employer, nor was it a health care

entity. The Commission also asserted that it should have been afforded immunity pursuant

to the Governmental Tort Claims and Insurance Reform Act, West Virginia Code sections

29-12A-1 to -18. The motion to dismiss was denied.

In this proceeding, the Commission presents two separate questions for this

Court to decide: one is presented as a petition for writ of prohibition and the other is

presented as an appeal pursuant to the collateral order doctrine. First, the Commission

requests that this Court prohibit the circuit court from enforcing its order denying the

Commission’s motion to dismiss because “the circuit court exceeded its legitimate powers

and erred as a matter of law . . . by failing to find that the Commission was not the employer

1

Counsel for Respondents, Grant Memorial Hospital and Robert “Bob”

Milvet, filed a Summary Response in which they stated that “[c]onsistent with its position

taken below concerning the motion to dismiss,” the Hospital and CEO Milvet “do not join

or oppose” the current petition and appeal.

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of Ms. Linville under the Whistle-Blower Law and the Human Rights Act, or [that the

Commission was not] a health care entity under the Patient Safety Act.” The Commission

also appeals from the circuit court’s order pursuant to the collateral order doctrine and

assigns as error the circuit court’s “fail[ure] to find that the Commission is immune,

pursuant to the Governmental Tort Claims and Insurance Reform Act, [from Ms.

Linville’s] claims [that the Commission committed] . . . intentional acts.”

Having considered the briefs submitted to the Court, the appendix record,

the parties’ oral arguments, and the applicable legal authority, we find that the Commission

is not the employer of Ms. Linville and therefore is an improper defendant in this case. In

denying the motion to dismiss, the circuit court committed clear legal error. Therefore, we

grant the requested writ of prohibition. We further find that the circuit court erred by not

affording the Commission immunity from Ms. Linville’s intentional tort claim, and so we

reverse the circuit court’s order.

I.

FACTUAL AND PROCEDURAL HISTORY

The Hospital is a not-for-profit hospital located in Petersburg, Grant County,

West Virginia. Pursuant to West Virginia Code sections 7-3-14 (eff. 1981) and 7-3-15 (eff.

1986), the Hospital is owned by the Commission and operated by a Board of Trustees. 2

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West Virginia Code section 7-3-14 provides, in part, that the “commission

of any county is hereby authorized and empowered to acquire by purchase or construction

2

Ms. Linville was hired by the Hospital in 1997, and then, in 2011, she became the Chief

Nursing Officer. As the Chief Nursing Officer, she had direct oversight of six nursing

units, as well as the lab, radiology, and therapy departments. Ms. Linville reported to the

Chief Executive Officer (“CEO”) of the Hospital. On August 29, 2018, the Respondent

Robert “Bob” Milvet (“CEO Milvet”) was hired as the Hospital’s new CEO.

During the time that Ms. Linville worked with CEO Milvet she frequently

expressed to her superiors her concerns regarding his behavior within the hospital.

Specifically, Ms. Linville alleges that CEO Milvet’s actions were harassing and

inappropriate and created a hostile working environment. Further, she contends that CEO

Milvet engaged in an improper relationship with an employee, and that this relationship

was having an adverse effect on employees of the Hospital, as well as on patient safety.

Ms. Linville further made complaints to CEO Milvet and the Chief Financial Officer about

“how finances were being handled at [the Hospital] after cash flow issues caused bills not

to be paid and a vendor to hold up delivery of needed medical supplies.” She also claims

that she expressed concerns about CEO Milvet’s alleged treatment of other employees and

was critical of his actions outside of the workplace. Ms. Linville contends that CEO Milvet

terminated her employment at the Hospital in retaliation for her complaints.

and to thereafter own, equip, furnish, operate, lease, improve and extend a public hospital,

clinic, long-term care facility and other related facilities, with all appurtenances, including

the necessary real estate as a site therefor.” Further, West Virginia Code section 7-3-15

provides that the “administration and management of any county hospital . . . shall be

vested in a board of trustees.”

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Ms. Linville filed a complaint on April 27, 2020, in which she sought to

recover damages resulting from the termination of her employment. In the complaint, she

named three defendants: CEO Milvet; the Board of Trustees of Grant Memorial Hospital

Trust Foundation, Inc., otherwise known as Grant Memorial Hospital (“the Hospital”); and

the Commission. Ms. Linville asserted four causes of action against these defendants:

(1) discrimination and/or retaliation brought pursuant to the Whistle-Blower Law, West

Virginia Code sections 6C-1-1 to -8; (2) retaliation brought pursuant to the Human Rights

Act, West Virginia Code sections 5-11-1 to -20; (3) discrimination and/or retaliation

brought pursuant to the Patient Safety Act, West Virginia Code sections 16-39-1 to -7; and

(4) intentional infliction of emotional distress.

On May 18, 2020, the Commission filed a motion to dismiss the complaint.

Pertaining to the first two counts of the complaint, the Commission argued that it could not

be liable to Ms. Linville under the Whistle-Blower Law or Human Rights Act because it

was not the employer of Ms. Linville, as that term is defined in both statutes. Similarly,

the Commission also sought dismissal of the Patient Safety Act count on the basis that it

was not a health care entity as defined by that Act. Lastly, the Commission argued that it

was immune from Ms. Linville’s intentional tort claims under the Governmental Tort

Claims and Insurance Reform Act, West Virginia Code sections 29-12A-1 to -18.

On July 9, 2020, a hearing on the motion to dismiss was held before the

circuit court. Ms. Linville did not file a response in opposition. Upon consideration of the

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arguments of counsel, the circuit court denied the motion in an order dated July 29, 2020.

This petition for writ of prohibition and appeal followed.

II.

STANDARD OF REVIEW

This case presents a combined petition for writ of prohibition under this

Court’s original jurisdiction and appeal pursuant to the collateral order doctrine seeking

review of the circuit court’s order denying the Commission’s motion to dismiss Ms.

Linville’s complaint. These two distinct proceedings require different standards of review.

Accordingly, we will discuss the standard of review in conjunction with our discussion of

each proceeding.

III.

DISCUSSION

We first will address the petition for writ of prohibition and then we will

address the appeal. All of the issues raised by the Commission, however, pertain to the

circuit court’s interpretation and application of statutory law. Therefore, our decision of

this case is guided by the rules of statutory construction. When examining a statute to

determine its meaning, this Court held that “[t]he primary object in construing a statute is

to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State

Workmen's Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Further, “[a] statutory

provision which is clear and unambiguous and plainly expresses the legislative intent will

5

not be interpreted by the courts but will be given full force and effect.” Syl. pt. 2, State v.

Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accordingly, with these standards in

mind, we now address the Commission’s first request for relief: a petition for writ of

prohibition.

A. Writ of Prohibition

The Commission seeks an extraordinary writ because it contends the Circuit

Court of Grant County committed clear legal error in denying its motion to dismiss. In

Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425

(1977), we held that “[a] writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” When a

trial court is not acting in excess of its jurisdiction, this Court will, in the exercise of its

discretion, use prohibition

to correct only substantial, clear-cut, legal errors plainly in

contravention of a clear statutory, constitutional, or common

law mandate which may be resolved independently of any

disputed facts and only in cases where there is a high

probability that the trial will be completely reversed if the error

is not corrected in advance.

Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by

statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va.

564, 759 S.E.2d 795 (2014).

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When considering a petition for writ of prohibition, this Court is guided by

the following:

In determining whether to entertain and issue the writ of

prohibition for cases not involving an absence of jurisdiction

but only where it is claimed that the lower tribunal exceeded

its legitimate powers, this Court will examine five factors:

(1) whether the party seeking the writ has no other adequate

means, such as direct appeal, to obtain the desired relief;

(2) whether the petitioner will be damaged or prejudiced in a

way that is not correctable on appeal; (3) whether the lower

tribunal’s order is clearly erroneous as a matter of law;

(4) whether the lower tribunal’s order is an oft repeated error

or manifests persistent disregard for either procedural or

substantive law; and (5) whether the lower tribunal’s order

raises new and important problems or issues of law of first

impression. These factors are general guidelines that serve as

a useful starting point for determining whether a discretionary

writ of prohibition should issue. Although all five factors need

not be satisfied, it is clear that the third factor, the existence of

clear error as a matter of law, should be given substantial

weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). “In

determining the third factor, the existence of clear error as a matter of law, we will employ

a de novo standard of review, as in matters in which purely legal issues are at issue.” State

ex rel. Gessler v. Mazzone, 212 W. Va. 368, 372, 572 S.E.2d 891, 895 (2002). With these

standards in mind, we now examine the Commission’s request for a writ of prohibition.

The Commission maintains that it is an improper defendant because it was

not Ms. Linville’s employer and it was not a health care entity as those terms are defined

in the statutes at issue. The Commission avers that it only owns the Hospital and that the

Hospital is a public corporation. As such, the Commission contends that the Hospital’s

7

Board of Trustees was vested with the right to hire and terminate hospital employees, and

it was the Board of Trustees, not the Commission, that was Ms. Linville’s employer.

Therefore, the Commission argues that the Whistle-Blower Law and the Human Rights

Act claims against it must be dismissed. Similarly, the Commission asserts that it is not a

health care entity and therefore, it is not subject to the Patient Safety Act. Accordingly,

the Commission argues that this claim should have been dismissed as well.

Ms. Linville responds to this argument and contends that the Commission

can be held vicariously liable for the actions of the Hospital and CEO Milvet pursuant to

agency law. More specifically, Ms. Linville argues that because the Commission created

the Hospital and has exclusive appointment power of the Hospital’s Board of Trustees,

then the Commission is the principal to its agents, namely, the Board of Trustees and CEO

Milvet.

1. Violation of the Whistle-Blower Law and Human Rights Act. The

Commission first asserts that the circuit court should have dismissed Ms. Linville’s

complaint because the Commission was not her employer, as defined in both the Whistle-

Blower Law and Human Rights Act, and her claims under those statutes were improperly

asserted. The Whistle-Blower Law makes it unlawful for an employer to retaliate against

8

an employee for making a report of wrongdoing by his or her supervisor. West Virginia

Code section 6C-1-3(a) (eff. 1988) 3 provides that

[n]o employer may discharge, threaten, or otherwise

discriminate or retaliate against an employee by changing the

employee’s compensation, terms, conditions, location, or

privileges of employment because the employee, acting on his

own volition, or a person acting on behalf of or under the

direction of the employee, makes a good faith report or is about

to report, verbally or in writing, to the employer or appropriate

authority an instance of wrongdoing or waste.

Further, the Whistle-Blower Law defines “employer” as “a person supervising one or more

employees, including the employee in question, a superior of that supervisor, or an agent

of a public body.” W. Va. Code § 6C-1-2(c) (eff. 1988).

Similarly, the Human Rights Act also makes it unlawful for an employer to

discriminate or retaliate against employees regarding their employment opportunities. See

W. Va. Code § 5-11-9(1) (eff. 2016) (“It shall be an unlawful discriminatory practice,

unless based upon a bona fide occupational qualification, or except where based upon

applicable security regulations established by the United States or the State of West

Virginia or its agencies or political subdivisions . . . [f]or any employer to discriminate

against an individual with respect to compensation, hire, tenure, terms, conditions or

privileges of employment if the individual is able and competent to perform the services

required even if such individual is blind or disabled.”). The Human Rights Act defines

3

West Virginia Code section 6C-1-3 was amended by the Legislature in

2020, but no changes were made that affect this Opinion.

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“employer” as the “state, or any political subdivision thereof, and any person employing

twelve or more persons within the state for twenty or more calendar weeks in the calendar

year in which the act of discrimination allegedly took place or the preceding calendar year.”

W. Va. Code § 5-11-3(d) (eff. 1998).

Here, in denying the Commission’s motion to dismiss, the circuit court

reasoned that the Commission could be held vicariously liable for the conduct of the

Hospital and CEO Milvet by virtue of the fact that the Commission created and owns the

Hospital pursuant to West Virginia Code section 7-3-14, and has appointment power of the

Hospital’s Board of Trustees pursuant to West Virginia Code section 7-3-15. We disagree.

This Court has stated that “[i]t is always incumbent upon one who asserts

vicarious liability to make a prima facia showing of the existence of the relation of master

and servant or principal and agent or employer and employee.” Sanders v. Georgia-Pacific

Corp., 159 W. Va. 621, 225 S.E.2d. 218, 222 (1976). In the instant case, Ms. Linville fails

to make a prima facie showing. To support her vicarious liability argument, Ms. Linville

provides nothing more than a conclusory statement that the Commission was the

“principal” to its “agent,” the Hospital and/or the Board of Trustees, because it “is the head

legal governing body that is statutor[ily] bound to appoint and issue revenue bonds for the

legal entity of [the Hospital].” See W. Va. Code § 7-3-14 (authorizes county commissions

to issue revenue bonds). These statutes do not, however, grant the Commission any control

over the employment practices of the Hospital or Board of Trustees. Instead, West Virginia

10

Code section 7-3-15 vests all employment, administration, and management decisions in

the Board of Trustees. Therefore, Ms. Linville has not demonstrated the existence of an

alleged principal-agent relationship between the Commission and the Board of Trustees

and CEO, and therefore, her vicarious liability argument must fail.

By statute, the Commission—although owning the Hospital—is not the

employer of Ms. Linville. Pursuant to West Virginia Code section 7-3-14, county

commissions are “authorized and empowered to acquire by purchase or construction and

to thereafter own, equip, furnish, operate, lease, improve and extend a public hospital,

clinic, long-term care facility and other related facilities, with all appurtenances, including

the necessary real estate as a site therefor.” (Emphasis added). However, the

administration and management of a county public hospital, including decisions regarding

the employment of hospital employees, is vested with a board of trustees.

The administration and management of any county

public hospital, clinic, long-term care facility or other related

facility acquired, equipped, furnished, improved or extended

under section fourteen of this article shall be vested in a board

of trustees, consisting of not less than five members appointed

by the county [commission]. . . .

Such board of trustees shall provide for the employment

of and shall fix the compensation for and remove at pleasure

all professional, technical and other employees, skilled or

unskilled, as it may deem necessary for the operation and

maintenance of the hospital, clinic, long-term care facility or

other related facility; and disbursement of funds in such

operation and maintenance shall be made only upon order and

approval of such board. The board of trustees shall make all

rules and regulations governing its meetings and the operation

11

of the hospital, clinic, long-term care facility or other related

facility.

W. Va. Code § 7-3-15 (emphasis added). Further, this Court has stated that public hospitals

created pursuant to West Virginia Code sections 7-3-14 and 7-3-15 are public corporations

created for the benefit of the county and its citizens. See generally Shaffer v. Monongalia

Gen. Hosp., 135 W. Va. 163, 62 S.E.2d 795 (1950).

As stated above, while the Commission has the power to acquire, construct,

and own a hospital, this State’s law is clear that the administration and management of a

county public hospital is vested with a hospital board of trustees, not a county commission.

Moreover, such hospital administration and management authority also specifically

includes the power to make employment decisions regarding the hospital’s employees.

Therefore, as established by West Virginia Code sections 7-3-14 and 7-3-15, the

Commission has no authority to make decisions regarding the Hospital’s employees and,

thus, is not the employer of Ms. Linville. 4 Therefore, for purposes of the Whistle-Blower

4

As we noted above, the Commission does not meet the definition of

employer as defined in the Whistle-Blower Law or the Human Rights Act. However, we

also acknowledge that, in addition to the employer liability set forth in West Virginia Code

section 5-11-9, the Act also contains a provision at West Virginia Code section 5-11-9(7),

listing the following unlawful discriminatory practices:

(7) For any person, employer, employment agency, labor

organization, owner, real estate broker, real estate salesman or

financial institution to:

(A) Engage in any form of threats or reprisal, or to

engage in, or hire, or conspire with others to commit acts or

activities of any nature, the purpose of which is to harass,

12

Law and the Human Rights Act, we hold that a county commission, which owns a hospital

pursuant to West Virginia Code section 7-3-14, is not the employer of individuals who

work at the hospital. 5 Thus, in the case sub judice, pursuant to West Virginia Code sections

degrade, embarrass or cause physical harm or economic loss or

to aid, abet, incite, compel or coerce any person to engage in

any of the unlawful discriminatory practices defined in this

section;

(B) Willfully obstruct or prevent any person from

complying with the provisions of this article, or to resist,

prevent, impede or interfere with the commission or any of its

members or representatives in the performance of a duty under

this article; or

(C) Engage in any form of reprisal or otherwise

discriminate against any person because he or she has opposed

any practices or acts forbidden under this article or because he

or she has filed a complaint, testified or assisted in any

proceeding under this article.

Under the Human Rights Act, a “person” is defined as “one or more

individuals, partnerships, associations, organizations, corporations, labor organizations,

cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other

organized groups of persons.” W. Va. Code § 5-11-3(a).

In the case sub judice, despite briefly mentioning the “person” designation in

her complaint, Ms. Linville failed to argue that even if not a statutory “employer,” the

Commission is nonetheless a “person” subject to liability under the Act. Therefore, any

such argument is deemed waived. See Syl. pt. 6, Addair v. Bryant, 168 W. Va. 306, 284

S.E.2d 374 (1981) (“Assignments of error that are not argued in the briefs on appeal may

be deemed by this Court to be waived.”). However, even assuming, arguendo, that the

Commission definitionally qualifies as a “person” under the Act—an issue which this

Court does not reach—it is clear that the retaliation alleged with respect to the Commission

in Ms. Linville’s complaint constitutes an intentional act from which a political subdivision

is immune under the Tort Claims Act. See Subsection B., infra.

This opinion should not be construed to imply that county commissions are

5

immune or exempt from liability under the Whistle-Blower Law or the Human Rights Act

13

7-3-14 and 7-3-15, and the specific facts of this case, the Commission is not Ms. Linville’s

employer and therefore, is not subject to these statutes in the instant matter.

Because the Whistle-Blower Law and the Human Rights Act vest an

employee with the right to file claims against his or her employer for violations of these

provisions, and because the Commission is not Ms. Linville’s employer, the circuit court’s

denial of the Commission’s motion to dismiss on the grounds that such claims were

improperly asserted against it because it was not Ms. Linville’s employer was clearly

erroneous. Additionally, the circuit court further erred because Ms. Linville failed to put

forth a prima facie showing that a principal-agent relationship existed between the

Commission and the Board of Trustees and CEO. Therefore, Ms. Linville cannot sustain

a vicarious liability argument against the Commission.

2. Violations of the Patient Safety Act. The Commission also argues that

the circuit court should have dismissed Ms. Linville’s complaint because the Commission

is not a health care entity, and, thus, Ms. Linville’s Patient Safety Act claim was improperly

asserted against the Commission. The Patient Safety Act was established to prohibit

discrimination and retaliation against a health care worker who makes a “good faith report,

or [who are] about to report, verbally or in writing, to the health care entity or appropriate

in all circumstances. In the current case, because the Commission is not the employer of

the employee making claims, it cannot be held liable under these facts.

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authority an instance of wrongdoing or waste.” W. Va. Code § 16-39-4 (eff. 2001). The

Act also provides that

[a]ny health care worker who believes that he or she has been

retaliated or discriminated against in violation of section four

of this article may file a civil action in any court of competent

jurisdiction against the health care entity and the person

believed to have violated section four of this article.

Id. at § 16-39-6(a) (eff. 2001) (emphasis added). A health care entity is defined as “a health

care facility, such as a hospital, clinic, nursing facility, or other provider of health care

services.” Id. at § 16-39-3(6) (eff. 2001).

In the case sub judice, Ms. Linville’s complaint failed to demonstrate that the

Commission was a health care entity as defined in the Patient Safety Act because the

complaint failed to allege or establish that the Commission was providing “health care

services.” The Patient Safety Act allows Ms. Linville, a health care worker and an

employee of the Hospital, to file a civil action against a health care entity, not against a

county commission that does not provide “health care services.” Id. This Court now holds

that, a county commission is not a health care entity under the Patient Safety Act merely

because the county commission owns a hospital pursuant to West Virginia Code section 7-

3-14 and does not otherwise provide health care services. As such, because it is not a

health care entity and does not otherwise provide health care services, the Commission

cannot be held liable to Ms. Linville for her claims under the Patient Safety Act, and the

circuit court’s denial of the Commission’s motion to dismiss on this basis was clearly

erroneous.

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B. Appeal Pursuant to the Collateral Order Doctrine

Although the Commission primarily seeks extraordinary relief from this

Court, the Commission also appeals from the circuit court’s order pursuant to the collateral

order doctrine. In this regard, the Commission argues that the circuit court erred by

denying its motion to dismiss Ms. Linville’s claim against it for intentional infliction of

emotional distress, contending that it is immune from liability pursuant to the

Governmental Tort Claims and Insurance Reform Act, West Virginia Code sections 29-

12A-1 to -18 (“Tort Claims Act”). Further, the Commission asserts that there are no claims

of negligence that could potentially survive this grant of immunity afforded to it.

We have held that “[u]nder W. Va. Code, 58-5-1 [1998], appeals only may

be taken from final decisions of a circuit court. A case is final only when it terminates the

litigation between the parties on the merits of the case and leaves nothing to be done but to

enforce by execution what has been determined.” Syl. pt. 3, James M.B. v. Carolyn M., 193

W. Va. 289, 456 S.E.2d 16 (1995). However, this Court also has recognized exceptions to

this rule. One

exception [to the rule of finality] referred to as the “collateral

order” doctrine, which was established by the United States

Supreme Court in Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 69 S. Ct. 1221, 93 L.Ed. 1528 (1949), may be

applied to allow appeal of an interlocutory order when three

factors are met: “An interlocutory order would be subject to

appeal under [the collateral order] doctrine if it (1)

conclusively determines the disputed controversy, (2) resolves

an important issue completely separate from the merits of the

action, and (3) is effectively unreviewable on appeal from a

final judgment.” Durm v. Heck’s, Inc., 184 W. Va. 562, 566

16

n.2, 401 S.E.2d 908, 912 n. 2 (1991) (internal quotations and

citation omitted). See also Robinson v Pack, 223 W. Va. 828,

679 S.E.2d 660[(2009)] (applying three-part collateral order

doctrine to circuit court’s denial of summary judgment on issue

of qualified immunity and finding order immediately

appealable).

Credit Acceptance Corp. v. Front, 231 W. Va. 518, 523, 745 S.E.2d 556, 561 (2013). This

Court has previously determined that the denial of a motion to dismiss based on qualified

immunity is immediately appealable. See Syl. pt. 1, W. Va. Bd. of Ed. v. Marple, 236

W. Va. 654. 783 S.E.2d 75 (2015) (“A circuit court’s denial of a motion to dismiss that is

predicated on qualified immunity is an interlocutory ruling which is subject to immediate

appeal under the ‘collateral order’ doctrine.”).

However, we have not made this determination with respect to statutory

immunity. See, e.g., Coleman v. Sopher, 194 W. Va. 90, 96 n.7, 459 S.E.2d 367, 373 n.7

(1995) (“Although the issue of statutory immunity could conceivably qualify [for

immediate appeal under the collateral order doctrine], we are reluctant to invoke this

doctrine in a case where there has been no request to do so and in light of our ironclad rule

against piecemeal appeals.”). Because the Commission has specifically requested it in the

case sub judice, we will proceed to analyze the elements required for application of the

collateral order doctrine in the context of statutory immunity.

Under the first factor of the collateral order doctrine, the ruling at issue must

be conclusive. Here, we have the denial of a motion to dismiss where the Commission

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asserted its statutorily immune from suit. Because a ruling denying the availability of

statutory immunity fully resolves the issue of a litigant’s obligation to participate in the

litigation, the first factor is easily met.

The second prong asks us to determine whether the court’s ruling resolves a

significant issue separate from the merits. This Court found in Robinson that “qualified

immunity is a pure legal determination that is made independent of the plaintiff’s

averments.” 223 W. Va. at 833, 679 S.E.2d at 665. In the case sub judice, it is clear that

examining the issue of immunity is separate from analyzing the merits of Ms. Linville’s

claims. Therefore, the second prong is met.

Finally, the third factor of the collateral order doctrine requires this Court to

examine whether the lower court’s ruling, regarding the Commission’s claim of statutory

immunity, is effectively unreviewable on appeal. With respect to a lower court’s immunity

ruling, we have said that

[p]ostponing review of a ruling denying immunity to the post-

trial stage is fruitless, as the United States Supreme Court

reasoned in Mitchell, because the underlying objective in any

immunity determination (absolute or qualified) is immunity

from suit. 472 U.S. at 526-27, 105 S. Ct. 2806[, 86 L. Ed. 2d

411]; see also Gray-Hopkins v. Prince George’s County,

Md., 309 F.3d 224, 229 (4th Cir. 2002) (“Because qualified

immunity is an immunity from having to litigate, as contrasted

with an immunity from liability, it is effectively lost if a case

is erroneously permitted to go to trial.”) (omitting internal

citation); Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.

1997) (observing that denial of qualified immunity defense

“subjects the [government] official to the burdens of pretrial

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matters” and opining that “some of the rights inherent in a

qualified immunity defense are [consequently] lost”).

Traditional appellate review of a qualified immunity ruling

cannot achieve the intended goal of an immunity ruling: “the

right not to be subject to the burden of trial.” Hutchison, 198

W. Va. at 148, 479 S.E.2d at 658.

Robinson, 223 W. Va. at 834, 679 S.E.2d at 665. In this case, the claim of immunity

asserted by the Commission is immunity from suit pursuant to the Tort Claims Act. As is

clear from our decision in Robinson, the third factor of the collateral order doctrine is easily

met herein based upon our caselaw finding that similar immunity determinations are

effectively unreviewable on appeal. See id. at 149 n.13, 479 S.E.2d 649 at 659 n.13 (“An

assertion of qualified or absolute immunity should be heard and resolved prior to any trial

because, if the claim of immunity is proper and valid, the very thing from which the

defendant is immune—a trial—will absent a pretrial ruling occur and cannot be remedied

by a later appeal.”).

Based on the foregoing analysis, we now hold that under Rule 12 of the West

Virginia Rules of Civil Procedure, a circuit court’s denial of a motion to dismiss a

complaint that is predicated on the statutory immunity conferred by the Governmental Tort

Claims and Insurance Reform Act is an interlocutory ruling that is subject to immediate

appeal under the “collateral order” doctrine. Accordingly, the Commission’s appeal from

the circuit court’s order denying its claim of immunity under the Tort Claims Act is

properly before this Court. As such, we will proceed to determine whether the circuit court

erred in denying the Commission’s motion to dismiss on the issue of statutory immunity.

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Here, the Commission contends that it is immune, pursuant to the Tort

Claims Act, for claims of intentional acts including discrimination, retaliation, and

wrongful termination of Ms. Linville by CEO Milvet and the Hospital. Ms. Linville

acknowledges that the Commission can assert protections under the Tort Claims Act;

however, she argues that this provision does not destroy the principal-agent relationship

between the Commission and the Hospital and CEO Milvet. As such, Ms. Linville

contends that, despite its immunity, the Commission can still be found vicariously liable

for the intentional acts of the Hospital and CEO Milvet.

“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.” Hutchison v. City of Huntington, 198 W. Va. 139, 148, 479 S.E.2d 649, 658

(1996). Pursuant to the Tort Claims Act’s definitions, the Commission is a “political

subdivision” within the meaning of the Act. See W. Va. Code § 29-12A-3(c) (eff. 1986)

(defining “political subdivision” as including “any county commission”). Furthermore,

West Virginia Code section 29-12A-4(b)(1) (eff. 1986) grants immunity from suit to

political subdivisions, such as the Commission, and strips it only in certain enumerated

circumstances as contained in West Virginia Code section 29-12-4(c)(1):

Except as provided in subsection (c) of this section, a political

subdivision is not liable in damages in a civil action for injury,

death, or loss to persons or property allegedly caused by any

act or omission of the political subdivision or an employee of

the political subdivision in connection with a governmental or

proprietary function: Provided, That this article shall not

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restrict the availability of mandamus, injunction, prohibition,

and other extraordinary remedies.

As further clarified in Zirkle v. Elkins Road Public Service District., 221 W. Va. 409, 414,

655 S.E.2d 155, 160 (2007) (per curiam), “[o]nly claims of negligence specified in W. Va.

Code § 29-12A-4(c) can survive immunity from liability under the general grant of

immunity in W. Va. Code § 29-12A-4(b)(1).”

The specific cause of action in this appeal is an allegation of intentional

infliction of emotional distress. This Court has recognized that in creating the general grant

of immunity contained in West Virginia Code section 29-12A-(4)(b)(l) “the Legislature

did not distinguish between intentional or unintentional acts, but instead used the term

‘any’ as an adjective modifying ‘act or omission.’” Zirkle, 221 W. Va. at 414, 655 S.E.2d

at 160. This Court has stated that, while political subdivisions may be liable for certain

claims for negligence, “claims of intentional and malicious acts are included in the general

grant of immunity in W. Va. Code § 29-12A-4(b)(l).” Zirkle, 221 W. Va. at 414, 655

S.E.2d at 160. Accord Mallamo v. Town of Rivesville, 197 W. Va. 616, 477 S.E.2d 525

(1996) (finding town had no liability where police chief allegedly committed conspiracy

because conspiracy is an intentional act, not a negligent one).

Accordingly, we conclude that the Commission is entitled to immunity under

the Tort Claims Act for Ms. Linville’s claim of intentional infliction of emotional distress,

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given the immunity afforded to political subdivisions. As such, the Commission’s motion

to dismiss should have been granted, and the circuit court erred by ruling to the contrary.

IV.

CONCLUSION

For the reasons set forth above, we conclude that the Circuit Court of Grant

County clearly erred when it denied the Commission’s motion to dismiss Ms. Linville’s

complaint because the Commission is not a proper defendant to the statutory claims

asserted by Ms. Linville. Therefore, we grant the requested writ of prohibition.

Furthermore, we conclude that the Commission is immune from suit for Ms. Linville’s

intentional tort claim, and because the circuit court erred in ruling otherwise, the order

must be reversed. In summary, we grant the requested writ and reverse the circuit court’s

July 29, 2020 order, and remand the case for entry of an order dismissing Ms. Linville’s

causes of action against the Commission.

Writ granted.

Reversed and remanded.

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