# Rocco S. Fucillo v. Cynthia Kerner

> West Virginia Supreme Court · June 5, 2013 · 231 W. Va. 195

URL: https://www.frixlaw.com/law-library/cases/894281

## Case

- **Full name:** Rocco S. FUCILLO, Secretary, West Virginia Department of Health and Human Resources; West Virginia Department of Health and Human Resources; West Virginia Support Enforcement Commission; Garrett M. Jacobs, Commissioner, West Virginia Bureau for Child Support Enforcement; West Virginia Bureau for Child Support Enforcement; And Policy Studies, Inc., a Colorado Corporation, Authorized to Do Business in West Virginia, Defendants Below, Petitioners v. Cynthia KERNER, Guardian, on Behalf of J.B. and R.B.; Lori C., Guardian, on Behalf of B.C.; Robin Danberry, Guardian, on Behalf of B.B.; Kathy Cooper, Guardian, on Behalf of L.D. and C.D.; Cecilia Nash, Guardian, on Behalf of C.C. and J.C.; Lisa Roth, Guardian, on Behalf of A.C. and A.C.; And on Behalf of All Other Children Similarly Situated, Plaintiffs Below, Respondents
- **Court:** West Virginia Supreme Court
- **Decided:** June 5, 2013
- **Citations:** 231 W. Va. 195; 744 S.E.2d 305; 2013 W. Va. LEXIS 607; 2013 WL 2460731
- **Precedential status:** Published
- **Opinion:** Opinion by Workman
- **Judges:** Workman
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term FILED
June 5, 2013
_____________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 11-1783 OF WEST VIRGINIA

_____________

ROCCO S. FUCILLO, Secretary, West Virginia
Department of Health and Human Resources;
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN
RESOURCES; WEST VIRGINIA SUPPORT ENFORCEMENT
COMMISSION; GARRETT M. JACOBS, Commissioner,
West Virginia Bureau for Child Support Enforcement;
WEST VIRGINIA BUREAU FOR CHILD SUPPORT
ENFORCEMENT; and POLICY STUDIES, INC.,
a Colorado Corporation, authorized to do business
in West Virginia,
Defendants Below. Petitioners

V.

CYNTHIA KERNER, guardian, on behalf of J.B. and R.B.;
LORI C., guardian, on behalf of B.C.;
ROBIN DANBERRY, guardian, on behalf of B.B.;
KATHY COOPER, guardian, on behalf of L.D. and C.D.;
CECILIA NASH, guardian, on behalf of C.C. and J.C.;
LISA ROTH, guardian, on behalf of A.C. and A.C.;
and on behalf of all other children similarly situated,
Plaintiffs Below, Respondents
Appeal from the Circuit Court of Kanawha County
The Honorable Paul Zakaib, Jr., Judge
Civil Action No. 11-C-666

REVERSED AND REMANDED WITH DIRECTIONS

Submitted: April 17, 2013
Filed: June 5, 2013

Edgar Allen Poe, Jr., Esq. Charles E. Webb, Esq.
Pullin, Fowler, Flanagan, The Webb Law Firm, PLLC
Brown & Poe PLLC Lonnie C. Simmons, Esq.
Charleston, West Virginia Katherine R. Snow, Esq.
Counsel for DHHR Petitioners DiTrapano, Barrett &
DiPiero, PLLC
Ancil G. Ramey, Esq. Charleston, West Virginia
Hannah C. Ramey, Esq. Counsel for Respondents
Steptoe & Johnson PLLC
Huntington, West Virginia
Counsel for Petitioner PSI

JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT

1. “‘Ordinarily the denial of a motion for failure to state a claim upon which relief

can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is

interlocutory and is, therefore, not immediately appealable.’ Syllabus Point 2, State ex rel.

Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995).” Syl. Pt. 1, Jarvis v. W.

Va. State Police, 227 W. Va. 472, 711 S.E.2d 542 (2010).

2. “‘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.’ Syllabus Point

3, Chapman v. Kane Transfer Company, 160 W. Va. 530, 236 S.E.2d 207 (1977) quoting

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).” Syl. Pt.

2, Cantley v. Lincoln Cnty. Com’n, 221 W. Va. 468, 655 S.E.2d 490 (2007).

3. “The 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).

4. “The following is the appropriate test to determine when a State statute gives rise

by implication to a private cause of action: (1) the plaintiff must be a member of the class for

whose benefit the statute was enacted; (2) consideration must be given to legislative intent,

i
express or implied, to determine whether a private cause of action was intended; (3) an

analysis must be made of whether a private cause of action is consistent with the underlying

purposes of the legislative scheme; and (4) such private cause of action must not intrude into

an area delegated exclusively to the federal government.” Syl. Pt. 1, Hurley v. Allied Chem.

Corp., 164 W. Va. 268, 262 S.E.2d 757 (1980).

5. “Where the language of a statute is clear and without ambiguity the plain

meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2, State

v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).

6. Child support obligees, either on their own behalf or on behalf of their children,

do not have a private cause of action under the provisions of West Virginia Code § 48-19-

103(f) (2009) against state entities or their contractors for damages arising from the failure

of such entities or contractors to reduce the obligees’ respective support arrearages to

judgment and/or to renew such judgments, thus causing the obligees’ claims to become time-

barred.

ii
WORKMAN, J.:

This is an appeal from an order entered on November 28, 2011, by the Circuit Court

of Kanawha County, denying the petitioners’ Rule 12(b)(6) motions to dismiss. The

underlying suit was brought by the respondents, plaintiffs below, six child support obligees1

suing on behalf of their respective children,2 who allege that the petitioners failed to reduce

their respective support arrearages to judgment and/or to renew such judgments, thus causing

the obligees’ claims to become time-barred. The respondents’ complaint sets forth five

causes of action, all sounding in tort: breach of statutory duty, negligence, breach of fiduciary

duty, breach of trust, and fraud.

The institutional petitioners, defendants below, are the West Virginia Department of

Health and Human Resources (hereinafter “DHHR”), the West Virginia Support

Enforcement Commission (hereinafter “SEC”), the West Virginia Bureau for Child Support

1
Although the complaint indicates that the six respondents intend to seek class
certification, they have not yet done so and therefore the circuit court did not rule on whether
class certification would be proper under West Virginia Rule of Civil Procedure 23.
2
From the appendix record submitted to this Court, we cannot discern the basis upon
which the respondents purport to sue on behalf of their children, inasmuch as all of the
children, with the possible exception of respondent Lori C.’s child, B.C., had reached the age
of majority prior to the filing of the complaint. See infra note 13. Since this issue was
neither raised in the proceedings below nor addressed in this appeal, however, this Court will
not address it.

With respect to respondent Lori C. and her child, B.C., who may be a minor, “[w]e
follow our past practice in juvenile and domestic relations cases which involve sensitive facts
and do not utilize the last names of the parties” State ex rel. W. Va. Dept. Of Human Servs.
v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (citations omitted).

1
Enforcement (hereinafter “BCSE”), and Policy Studies, Inc. (hereinafter “PSI”). The

individual petitioners, defendants below, who are sued in their official capacities, are the

Secretary of DHHR3 and the Commissioner of BCSE

In syllabus point one of Jarvis v. West Virginia State Police, 227 W. Va. 472, 711

S.E.2d 542 (2010), this Court held that

‘[o]rdinarily the denial of a motion for failure to state a claim
upon which relief can be granted made pursuant to West
Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and
is, therefore, not immediately appealable.’ Syllabus Point 2,
State ex rel. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460
S.E.2d 54 (1995).

However, we further held in Jarvis that “[b]ecause the instant order denying a motion to

dismiss is an interlocutory order that is predicated in part on qualified immunity, we find that

the order is subject to immediate appeal under our holding in Robinson [v. Pack, 223 W. Va.

828, 679 S.E.2d 660 (2009)].” Jarvis, 227 W. Va. at 476, 711 S.E.2d at 546. Because the

order at issue in this case is an interlocutory order predicated in part on qualified immunity,

we find that the order is subject to immediate appeal under Robinson and Jarvis.

Upon careful review of the parties’ briefs and oral arguments, the appendix record,

3
Rocco S. Fucillo, successor to Michael J. Lewis, is now the Secretary of the
Department of Health and Human Resources and is automatically substituted as a party per
West Virginia Rules of Appellate Procedure 41(c).

2
and our applicable precedents, we conclude that the respondents do not have a private cause

of action under the statutes governing collection of child support by the BCSE. We therefore

reverse the circuit court’s order and remand this case for entry of an order granting the

petitioners’ motions to dismiss.

I. FACTUAL AND PROCEDURAL HISTORY

On April 25, 2011, the respondents, six child support obligees, filed a complaint

alleging that as a result of the petitioners’ failure to perform duties imposed on them by law,

the respondents’ right to collect child support arrearages owed by their respective obligors

was barred by the statute of limitations. The petitioners filed motions to dismiss pursuant to

West Virginia Rules of Civil Procedure 12(b)(6), raising multiple grounds including, inter

alia, that the respondents did not have a private cause of action under the statutes governing

child support enforcement. The petitioners also raised the defenses of prosecutorial

immunity, qualified immunity, and the public duty doctrine.

On November 28, 2011, the circuit court entered a comprehensive order ruling on all

issues raised by the petitioners in their respective motions to dismiss. First, based upon the

allegations in the complaint, the circuit court made the following findings of fact, which this

Court adopts for purposes of this appeal:4

4
Because this is an appeal from the circuit court’s denial of petitioners’ motions to
dismiss, the factual basis for this Court’s review is confined to the allegations in the

3
1. Each Plaintiff class representative [now, collectively,
respondents] is a custodial parent of a child or children, who is
owed child support from the noncustodial parent.

2. In each case, an order was entered requiring the noncustodial
parent to pay a certain amount of child support each month.

3. Defendants West Virginia Department of Health and Human
Resources, Bureau for Child Support Enforcement, and Policy
Studies, Inc. [now, collectively, petitioners], filed a motion in
each case on behalf of the children seeking to determine the
amount of child support in arrears.

4. However, each of these motions were filed subsequent to the
West Virginia Supreme Court’s decisions in Shaffer v. Stanley,
215 W. Va. 58, 593 S.E.2d 629 (2003), and its progeny. In
those cases, the West Virginia Supreme Court found that where
a child support judgment had not been preserved, the State
Defendants and PSI could not collect child support in arrears
that fell outside the statute of limitations.

5. In Shaffer, the West Virginia Supreme court ordered the
State Defendants to repay the noncustodial parents any money
withheld that was barred by the statute of limitations.

6. In each case, the child support order was not preserved, and,
pursuant to Shaffer, significant portions of the child support
payments in arrears were barred by the statute of limitations.
The individual amounts lost by Plaintiffs range from
approximately $2,593.89 to $57,728.00. See Compl. at 9-16.
The class representatives in total allege $157,070.42 was lost in
their cases. Id.

Thereafter, the circuit court held, in its conclusions of law, that further factual

complaint. Cf. Riffle v. C. J. Hughes Const. Co., 226 W. Va. 581, 703 S.E.2d 552 (2010)
(consideration of materials outside the complaint requires conversion of 12(b)(6) motion to
summary judgment motion).

4
development was necessary to determine whether the respondents have a private cause of

action under the statutes governing child support enforcement. The court further held that

petitioner Policy Studies, Inc., a private corporation, is not entitled to any governmental

immunities; that prosecutorial immunity does not apply to either the state actors or to PSI;

that further factual development is required before the applicability of qualified immunity

to the state actors can be finally determined; and that further factual development is required

before the applicability of the public duty doctrine to the state actors can be finally

determined. This appeal followed.

II. STANDARD OF REVIEW

Inasmuch as this case was decided on motions to dismiss, West Virginia Rules of

Civil Procedure 12(b)(6), we review this matter de novo and follow our long-established rule

that “[f]or purposes of the motion to dismiss, the complaint is construed in the light most

favorable to plaintiff, and its allegations are to be taken as true.” Cantley v. Lincoln Cnty.

Com’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007) (citing John W. Lodge Distrib. Co.

v. Texaco, Inc., 161 W. Va. 603, 605, 245 SE.2d 157, 158 (1978); see also Jarvis, 227 W.

Va. at 475-76, 711 S.E.2d at 546 (citing Syl. Pt. 4, Ewing v. Bd. of Educ., 202 W. Va. 228,

503 S.E.2d 541 (1998) (“When a party, as part of an appeal from a final judgment, assigns

as error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition of the

motion to dismiss will be reviewed de novo.”).

5
Further, this Court has held that

‘[t]he 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.’ Syllabus Point 3, Chapman v. Kane Transfer
Company, 160 W. Va. 530, 236 S.E.2d 207 (1977) quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2
L.Ed.2d 80, 84 (1957).

Syl. Pt. 2, Cantley, 221 W. Va. at 469, 655 S.E.2d at 491; accord, Syl. Pt. 2, Holbrook v.

Holbrook, 196 W. Va. 720, 474 S.E.2d 900 (1996).

III. DISCUSSION

Respondents’ allegations are based on the petitioners’ alleged failure to discharge the

duties statutorily assigned to them by the West Virginia Legislature, specifically, their duty

to pursue enforcement of child support orders under West Virginia Code § 48-19-103(f)

(2009). That subsection provides:

(f) The Bureau for Child Support Enforcement attorney
shall pursue the enforcement of support orders through the
withholding from income of amounts payable as support:

(1) Without the necessity of an application from the
obligee in the case of a support obligation owed to an obligee to
whom services are already being provided under the provisions
of this chapter; and

(2) On the basis of an application for services in the
case of any other support obligation arising from a support order
entered by a court of competent jurisdiction.

6
Inasmuch as this Court is reviewing the circuit court’s denial of a motion to dismiss,

we assume that the allegations of the complaint are true and that the petitioners negligently

failed to pursue enforcement of the respondents’ respective support orders, thereby causing

the respondents’ claims to be barred by the statute of limitations. With respect to

respondents Lori C. and Kathy Cooper, whose child support actions were filed in Kanawha

County, West Virginia, we further assume that the petitioners’ duty under West Virginia

Code § 48-19-103(f) was contracted5 to petitioner PSI,6 which negligently failed to pursue

enforcement. The issue before us is whether the respondents have a private cause of action

under West Virginia Code § 48-19-103(f), the alleged violation of which forms the basis for

their claims.

In syllabus point one of Hurley v. Allied Chemical Corporation, 164 W. Va. 268, 262

S.E.2d 757 (1980), this Court held that

5
West Virginia Code §§ 48-18-105 (5) & (7) (2009) authorize BCSE to contract for
professional services to obtain and enforce support orders, and to contract for collection
services to collect and disburse amounts payable as support. West Virginia Code §§ 48-18-
105 (6) & (8) require BCSE to ensure that the activities of a subcontractor are carried out in
a manner consistent with attorneys’ professional responsibilities and/or the provisions of
Chapter 48.
6
Petitioner PSI is a private corporation incorporated in Colorado, authorized to do
business in West Virginia and having its principal office in Charleston, West Virginia.
Petitioner PSI entered into a contract with the State of West Virginia in 1966 whereby it
prosecutes all aspects of child support enforcement in Kanawha County on behalf of BCSE.
According to the allegations in the complaint, the support actions of respondents Lori C. and
Cooper were filed in Kanawha County.

7
[t]he following is the appropriate test to determine when a State
statute gives rise by implication to a private cause of action: (1)
the plaintiff must be a member of the class for whose benefit the
statute was enacted; (2) consideration must be given to
legislative intent, express or implied, to determine whether a
private cause of action was intended; (3) an analysis must be
made of whether a private cause of action is consistent with the
underlying purposes of the legislative scheme; and (4) such
private cause of action must not intrude into an area delegated
exclusively to the federal government.

In the thirty-three years since Hurley was decided, this Court has continued to utilize

the four-part Hurley test as the yardstick for determining whether a statute gives rise to a

private cause of action. Although all prongs of the test have weight and none, standing

alone, is determinative, our cases demonstrate that legislative intent is the polar star in

determining the existence of a private cause of action. Compare Hill v. Stowers, 224 W. Va.

51, 680 S.E.2d 66 (2009) (no private cause of action under W. Va. Code §§ 3-8-11, 3-9-12

or 3-9-13, for one who alleges that he lost election as the result of unlawful vote-buying);

Yourtee v. Hubbard, 196 W. Va. 683, 474 S.E.2d 613 (1996) (no private cause of action

under unattended motor vehicle statute, W. Va. Code § 17C-14-1, for one who steals

automobile); Reed v. Phillips, 192 W. Va. 392, 452 S.E.2d 708 (1994) (no private cause of

action under W. Va. Code § 29-3-16a(g) for plaintiff whose decedent died in fire as the result

of landlord’s failure to install smoke detectors, although violation of statute may be prima

facie evidence of negligence); Adams v. Nissan Motor Corp. in U.S.A., 182 W. Va. 234, 387

S.E.2d 288 (1989) (no private cause of action under W. Va. Code § 46A-6A-8, for consumer

seeking to act as private attorney general); and Machinery Hauling v. Steel of W. Va., 181

8
W. Va. 694, 384 S.E.2d 139 (1989) (no private cause of action under W. Va. Code § 61-2-13,

criminal extortion statute, for one alleging threats to sever business relations unless payment

made for defective product); with Barr v. NCB Mgmt. Serv., Inc., 227 W. Va. 507, 711

S.E.2d 577 (2011) (private cause of action exists under W. Va. Code § 46A-5-101(1) for

consumer who seeks to sue professional debt collector for engaging in debt collection

practices prohibited by the West Virginia Consumer Credit and Protection Act, W. Va. Code

§ 46A-1-101); Shaffer v. Acme Limestone Co., 206 W. Va. 333, 524 S.E.2d 688 (1999)

(private cause of action exists under W. Va. Code § 17C-17-9(b) for plaintiff whose decedent

was killed in accident with overloaded truck); and Jenkins v. J.C. Penney Cas. Ins. Co., 167

W. Va. 597, 280 S.E.2d (1981) (cause of action may exist under unfair settlement practice

provisions of W. Va. Code § 33-11-4(9)),7 rev’d on other grounds, State ex rel. State Farm

Fire & Cas. Co. v. Madden, 192 W. Va. 155, 451 S.E.2d 721 (1994).

Most recently, in Durham v. Jenkins, 229 W. Va. 669, __, 735 S.E.2d 266, 268

(2012), this Court concluded that West Virginia Code § 19-20-20, governing the ownership

of vicious, dangerous dogs, does not provide a private cause of action because its language

“evinces the Legislature’s intent that [the statute] is entirely criminal in nature[.]” We

distinguished West Virginia Code § 19-20-18, governing the ownership of dogs that “ha[ve]

been worrying, wounding, chasing or killing any [livestock],” on the ground that in the latter

7
This Court’s holding in J.C. Penney was abrogated in 2005 by the Legislature’s
enactment of West Virginia Code § 33-11-4a (2011).

9
statute, the Legislature specifically provided a civil remedy for the owner of the livestock.

299 W. Va. at __, 735 S.E.2d at 270. We concluded in Durham that

The Legislature could have extended § 19-20-18 to apply to a
case such as that before us. It did not, however. While we may
not disagree with the circuit court from a personal standpoint,8
we are obliged to give effect to these statutory sections as they
are written, not as we might have preferred they be written.

Id.

Although Durham was decided over a strong dissent, the reasoning of the dissenting

justice provides no support for the respondents’ arguments in the instant case. As noted, the

respondents seek to have this Court find that there is a private cause of action against the

State for compensatory and punitive damages embedded within the text of our child support

enforcement laws, and/or supported by an expression of legislative intent. In Durham, as

explained in the dissent, the respondents, plaintiffs below, were seeking nothing more than

the destruction of a vicious dog that had badly injured their child; they “did not seek to pin

‘liability’ on petitioners by virtue of ‘violation of statute’ for purposes of seeking money

damages[.]” Id. at __, 735 S.E.2d at 271 (Workman, J., dissenting). In this regard,

[t]his is a significant distinction because ordinarily, it is when
this statute is utilized to form the basis for an action for damages
that the analysis of whether the statute supports such an action

8
The circuit court had concluded that “[c]ertainly a parent of an injured child is
entitled to the same procedural protections and opportunity to request the destruction of a
dangerous dog as are afforded the owner of a dead sheep.” Durham, 229 W. Va. at __, 735
S.E.2d at 270.

10
is undertaken: ‘Whenever a violation of a statute is the
centerpiece of a theory of liability, the question arises whether
the statute creates an implied private cause of action.’

Id. (citing Yourtee, 196 W. Va. at 687-88, 474 S.E.2d at 618).

With our precedents in mind, we turn to the instant case and examine West Virginia

Code § 48-19-103(f) under the test established in Hurley.

With respect to the first prong of the Hurley test, the Legislature has indicated that the

express purposes of Article 19, Chapter 48 of the West Virginia Code are

(2) [t]o ensure that procedures followed by the Bureau for
Child Support Enforcement attorney will protect the best
interests of children in domestic relations matters; and

(3) [t]o compel the enforcement of support orders, thereby
ensuring that persons legally responsible for the care and
support of children assume their legal obligations and reduce the
financial cost to this State of providing public assistance funds
for the care of children.

W. Va. Code §§ 48-19-101(2) & (3). Inasmuch as the respondents in this case are all suing

on behalf of their respective children, we conclude that the children are members of a class

for whose benefit § 48-19-103(f) was enacted.9

9
Were the respondents suing on their own behalf the result would be different, as
nothing in West Virginia Code § 48-19-101 indicates that the Legislature enacted child
support enforcement laws for the purpose of benefitting child support obligees in their own
right. To the contrary, it is clear that the Legislature intended the laws primarily to benefit
minor children, and secondarily to benefit the State, because state resources are often

11
With respect to the second prong of the Hurley test, “a determination must be made

as to whether the Legislature intended a private cause of action to exist.” Hill v. Stowers, 224

W. Va. 51, 59, 680 S.E.2d 66 (2009). In this regard, we need not speculate: the Legislature

has clearly expressed an intention to the contrary. West Virginia Code § 48-18-110(b)

(2009) provides:

An attorney employed by the Bureau for Child Support
Enforcement or employed by a person or agency or entity
pursuant to a contract with the Bureau for Child Support
Enforcement represents the interest of the State or the bureau
and not the interest of any other party. The Bureau for Child
Support Enforcement shall, at the time an application for child
support services is made, inform the applicant that any attorney
who provides services for the Bureau for Child Support
Enforcement is the attorney for the State of West Virginia and
that the attorney providing those services does not provide legal
representation to the applicant.

(Emphasis supplied.)

Notwithstanding this clear expression of legislative intent, the respondents argue that

because this Court has recognized a private cause of action for child support obligors for

repayment of funds improperly withheld by the BCSE, Shaffer, 215 W. Va. at 68-69, 593

S.E.2d at 639-40 (2003), there must a fortiori be a private cause of action for child support

obligees for negligent failure to collect child support by the BCSE. We disagree. The

necessary for the support of single parent families struggling to make ends meet in the
absence of support from a non-custodial parent.

12
plaintiff obligors in Shaffer were proceeding under West Virginia Code § 48-14-

407(b)(2002), in which the Legislature specifically directed that “[t]he [West Virginia

Support Enforcement] commission shall, by administrative rule, establish procedures for

promptly refunding to obligors amounts which have been improperly withheld[.]” Obedient

to the statutory command, the Child Advocate Office Policy and Procedural Manual, Section

08010.20.20, effective November 1, 1993, which was incorporated by reference as a

legislative rule, required any amount improperly withheld from an obligor’s income to be

promptly refunded. Reviewing the statute and legislative rule, we found it to be “clear . . .

that the Legislature has manifested an intent that the BCSE repay funds which were

improperly withheld from an obligor’s income.” Shaffer, 215 W. Va. at 69, 593 S.E.2d at

640.

In the instant case, however, the statute upon which the respondents base their action,

West Virginia Code § 48-14-407(b), does not contain any legislative directive for recovery

of funds. To the contrary, as set forth above, in West Virginia Code § 48-18-110(b), the

Legislature has specifically disavowed the existence of any duty owed to child support

obligee-applicants or “any other party” by the State’s employees or contractors, thus

eliminating one element necessary to the existence of any tort liability. See Carter v.

Monsanto Co., 212 W. Va. 732, 737, 575 S.E.2d 342, 347 (2002) (“[b]efore one can recover

under a tort theory of liability, he or she must prove each of the four elements of a tort: duty,

breach, causation, and damages.”).

13
Although we acknowledge that there is surface appeal to the respondents’ argument

that a remedy available to obligors should also be available to obligees, the argument fails

upon closer examination. West Virginia Code § 48-14-407(b) deals with a situation where

the State has wrongfully taken money from an obligor. Thus, the cause of action recognized

by this Court in Shaffer under the statute is in the nature of an “illegal exaction” action, for

which the remedy is a refund. See Eastport S.S. Corp. v. U. S., 372 F.2d 1002 (Ct. Cl.

1967).10 In such situation, the Legislature has specifically directed that the State must

provide a refund if the obligee cannot or will not do so.11 West Virginia Code § 48-19-

103(f), in contrast, deals with a situation where the State is providing assistance to one

individual, an obligee, in his or her attempt to obtain child support from another individual,

an obligor. Where the State is negligent in performing this task, with the result that the

obligee’s entitlement to support is barred by the statute of limitations, the obligee is not due

a refund because no money has been “exacted.” Rather, the obligee seeks damages, as in the

instant case, based on “the existence of some money-mandating statute or Constitutional

provision.” Usibelli Coal Mine v. U.S., 54 Fed.Cl. 373, 376 (2002), rev’d on other grounds,

Usibelli Coal Mine, Inc. v. U.S., 311 Fed.Appx. 350 (Fed.Cir., June 25, 2008). For purposes

10
An illegal exaction action is one in which “‘the Government has the citizen’s money
in its pocket[,]’” Eastport, 372 F.2d at 1007-08 (quoting Clapp v. U.S., 117 F. Supp. 576, 580
(1954), as opposed to one involving a “money-mandating constitutional provision, statute
or regulation that has been violated.” Loveladies Harbor, Inc. v. U.S., 27 F.3d 1545, 1554
(Fed. Cir. 1994) (en banc).
11
In Shaffer, the obligee had bankrupted the debt owed to the obligor.

14
of analyzing whether the Legislature intended to give obligees a private cause of action, the

distinction between a refund action and an action seeking an award of damages is significant.

Here, the obligees’ losses directly result from their respective obligors’ failure to pay support,

and only indirectly from the State’s failure to ensure that the obligors do so. With respect

to the obligees, the State never illegally exacted any money from anyone, and thus the State

has nothing to repay. In these circumstances, there is a rational basis upon which to conclude

that a private cause of action by obligees against the State, founded on what is in essence a

claim of malpractice, carries a cost to taxpayers that outweighs any benefits to those seeking

an award of damages for past harm.

In summary, the Legislature has given no statutory directive that the petitioners

establish procedures for payment by the State of child support owed by obligors that has not

been reduced to judgment and/or collected by the BCSE. Further, the Legislature has stated,

in unequivocal language, that DHHR/BCSE attorneys and agents represent the State, not the

child support obligee “or any other party.”12 In so doing, the Legislature has specifically

disclaimed the existence of a duty owed by these petitioners to these respondents, which

sounds the death knell to the respondents’ causes of action, all of which sound in tort.13 In

12
This language is significant in the instant case where the respondent child support
obligees sue not on their own behalf, but on behalf of their children.
13
See generally State v. Chase Sec., Inc., 188 W. Va. 356, 364, 424 S.E.2d 591, 599
(1992) (“the thrust of any attempt to establish liability against a public official is the violation
of some duty attendant to the official’s office and a resulting harm to the plaintiff.”); Clark

15
light of all these factors, this Court can find no indication that the Legislature intended to

create a private cause of action based upon alleged failure of the petitioners to discharge any

duties imposed on them by West Virginia Code § 48-19-103(f).

With respect to the third prong of the Hurley test, this Court does not believe that a

private cause of action is consistent with the underlying purposes of the legislative scheme.

As noted, the dual purposes of the child support enforcement laws are to protect children, by

ensuring that they are financially supported during the period of their minority, and to reduce

the financial cost to the State of providing public assistance in situations where an obligor

parent is evading his or her responsibility. While a private cause of action may be consistent

with the first purpose, at least in theory although not under the facts of this case,14 it is

manifestly inconsistent with the second, because this action will do nothing to reduce the

financial cost to this State of providing public assistance funds for the care of children during

v. Dunn, 195 W. Va. 272, 277, 465 S.E.2d 374, 379 (1995); Hess v. W. Va. Div. of Corr., 227
W. Va. 15, 18, 705 S.E.2d 125, 128 (2010).
14
As previously noted, a careful review of the allegations in the complaint reveals that
with the possible exception of respondent Lori C.’s child, B.C., the respondents’ children had
all reached the age of majority prior to the filing of the complaint. The underlying support
orders were entered in cases bearing civil actions dated 1982 (Kerner), 1996 (Lori C.), 1990
(Danberry), 1987 (Cooper), 1983 (Nash), and 1989 (Roth). Thus, the monies owed to the
respondents’ children by the respective obligors would be in the nature of damages to
compensate them for past harm. The statutory goal of protecting the “best interests” of these
children is clearly geared to ensuring that the respective obligors provide present support to
them during their childhood.

16
their minority.15 To the contrary, this action will impose substantial litigation costs and

burdens upon the State, irrespective of the existence of any insurance provided by the Board

of Risk and Insurance Management.16 Finally, the overarching purpose of our child support

enforcement laws is to require parents to support the children they have brought into being.

When the parents fail to do so, the State provides other forms of support and financial

assistance, where needed, to ensure that the children’s basic needs are met. In the absence

of a specific legislative directive, this Court sees no principled basis for requiring the State

to go one giant step further: to assume liability for paying damages to children, after the fact,

for the default of their obligor parents.

With respect to the fourth and final prong of the Hurley test, we find that it is not

applicable, as nothing at issue in this case intrudes into an area delegated exclusively to the

federal government.

Having examined the facts of this case under the applicable test established in Hurley,

15
See infra note 2 & note 13. With the possible exception of respondent Lori C., any
public assistance provided to the respondents’ families as a result of non-support by their
obligor parents is an historical fact, not a present concern.
16
The complaint alleges that damages are sought up to the limits of any applicable
insurance and that the State’s BRIM policy would cover the claim, thus bringing the case
within this Court’s holding in Pittsburgh Elevator Co. v. W. Va. Bd. Of Regents, 172 W. Va.
743, 310 S.E.2d 675 (1983). As this claim comes to us on a Rule 12(b)(6) motion, we must
assume these allegations to be true.

17
this Court concludes that the respondents have failed to establish the existence of a private

cause of action under the statutory provisions of West Virginia Code § 48-19-103(f). It has

long been the law 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). Moreover, with respect to West Virginia Code § 48-18-

110(b), it has long been the law that “[w]here the language of a statute is clear and without

ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.”

Syl. Pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). In this case, we find that the

Legislature intended to insulate the state actors from liability under the statute upon which

respondents base their claims by enacting West Virginia Code § 48-18-110(b), which clearly

states that any duty imposed on the state actors to collect child support runs to “the State or the

bureau [BCSE],” not to the support obligees or their children.

This case presents difficult policy issues. The respondents make a compelling argument

with respect to the respondents’ children, whose obligor parents failed them in the first instance

and who were thereafter, accepting the allegations in the complaint as true, failed by the

petitioners as well. These children are the real, albeit silent, parties in interest in this case.

However, the case rises or falls on a single question: whether there exists a private cause of

action against the State for an alleged violation of West Virginia Code § 48-19-103(f). The

Legislature has clearly expressed an intent that this question be answered in the negative, and

this Court must give effect to such expression of intent. Where, as here, the issue before us is

18
purely one of statutory construction,17 we reaffirm our longstanding principle that

[d]espite the underlying merit to [the petitioner’s] request, we are
bound to refrain from making such policy determinations since
“‘[i]t is not the province of the courts to make or supervise
legislation, and a statute may not, under the guise of interpretation,
be modified, revised, amended, distorted, remodeled, or
rewritten[.]’” State v. Richards, 206 W. Va. 573, 577, 526 S.E.2d
539, 543 (1999), quoting State v. General Daniel Morgan Post No.
548, V.F.W., 144 W. Va. 137, 145, 107 S.E.2d 353, 358 (1959)
(citation omitted).

Arbaugh v. Bd. of Educ., 214 W. Va. 677, 683, 591 S.E.2d 235, 241 (2003).

Therefore, after careful consideration of the statute, guided by the principles set forth in

our applicable precedents and faithful to our longstanding rules of statutory construction, we

hold that child support obligees, either on their own behalf or on behalf of their children, do not

have a private cause of action under the provisions of West Virginia Code § 48-19-103(f)

(2009) against state entities or their contractors for damages arising from the failure of such

entities or contractors to reduce the obligees’ respective support arrearages to judgment and/or

to renew such judgments, thus causing the obligees’ claims to become time-barred.18

17
The respondents do not claim that this case presents any constitutional issues, and
this Court discerns none.
18
Inasmuch as we have reversed the circuit court’s ruling with respect to the existence
of a cause of action, it is unnecessary for this Court to consider the remaining issues raised
by the petitioners.

19
IV. CONCLUSION

The judgment of the Circuit Court of Kanawha County is reversed, and this case is

remanded for entry of an order dismissing the respondents’ complaint.

Reversed and Remanded With Directions.

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/894281. Public record. Not legal advice.