                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Julia Moses, individually, and as                                                 FILED
Administratrix of the Estate of
Richard Moses,                                                                  April 7, 2017
                                                                               RORY L. PERRY II, CLERK
Plaintiff Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 16-0680 (Marshall County 15-C-81)

The City of Moundsville,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Julia Moses, individually and as Administratrix of the Estate of Richard Moses,
by counsel Jacob M. Robinson, appeals the Circuit Court of Marshall County’s June 17, 2016,
partial dismissal order which found that respondent is immune from any and all claims asserted
against it by petitioner. Respondent the City of Moundsville, by counsel Nathanial A. Kuratomi
and Stephen F. Soltis, filed a response in support of the circuit court’s order.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the 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.

        Richard Moses, petitioner’s decedent, was employed as a sanitation worker for the
Respondent City of Moundsville on May 17, 2013, when he was struck by a tree and seriously
injured while working in the course and scope of his employment. He died as a result of those
injuries. His wife, Petitioner Julia Moses, filed suit in the Circuit Court of Marshall County
asserting a claim of deliberate intent pursuant to West Virginia Code § 23-4-2(d)(2)(ii) to recover
for the decedent’s injuries and alleged wrongful death. Respondent filed a motion to dismiss,
pursuant to Rule 12(b)(6), asserting that it was entitled to qualified immunity. In response,
petitioner argued that respondent’s motion was premature “until [petitioner] has been provided
an opportunity to review any and all applicable insurance policies purchased by [respondent].”
Petitioner was provided a copy of the subject policy of insurance and filed a supplemental
response attaching relevant portions of the policy. Petitioner did not dispute that respondent is a
political subdivision or that she applied for, and was awarded, workers’ compensation benefits as
a result of the decedent’s death while working for respondent.

        On or about June 17, 2016, the circuit court entered an order of partial dismissal, finding
that the application of West Virginia Code § 29-12A-5(a)(11) to the undisputed facts of the

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instant civil action leads to the inescapable conclusion that respondent is immune to any and all
claims asserted against it by petitioner. Petitioner appeals from that order.

              When a circuit court grants a Rule 12(b)(6) motion and dismisses a
       complaint for failure to state a claim upon which relief can be granted, appellate
       review of the circuit court’s dismissal of the complaint is de novo. See, e.g.,
       Shaffer v. Charleston Area Med. Ctr., Inc., 199 W.Va. 428, 433, 485 S.E.2d 12,
       17 (1997) . . . .

Kessel v. Leavitt, 204 W. Va. 95, 119, 511 S.E.2d 720, 744 (1998).

        On appeal, petitioner sets forth a single assignment of error: that the circuit court should
have denied respondent’s motion to dismiss because it waived the immunity conferred upon it by
the Governmental Tort Claims and Insurance Reform Act (“the Act”). Petitioner asserts that in
Bender v. Glendenning, 219 W. Va. 174, 632 S.E.2d 330 (2006), this Court held that a political
subdivision can purchase an insurance policy that waives the immunity conferred by the Act. In
support of her argument, she also contends that because her action does not seek recovery of
state funds, but instead seeks only recovery under and up to the limits of respondent’s liability
insurance coverage, the circuit court erred in granting respondent’s motion to dismiss.

        At the outset, we note that Bender is a per curiam opinion. As we have previously stated,
“[s]igned opinions containing original syllabus points have the highest precedential value
because the Court uses original syllabus points to announce new points of law or to change
established patterns of practice by the Court.” Syl. Pt. 1, State v. McKinley, 234 W. Va. 143, 764
S.E.2d 303 (2014). As a per curiam opinion, Bender does not contain any original syllabus points
and does not set forth any new points of law. As set forth in West Virginia Code § 29-12A­
5(a)(11), “[a] political subdivision is immune from liability if a loss or claim results from . . .
[a]ny claim covered by any workers’ compensation law or any employer’s liability law.” This
Court has consistently upheld that statute, including specifically finding as follows:

       “W.Va.Code, 29-12A-5(a)(11) [1986] grants immunity to political subdivisions in
       a wrongful death case where the decedent’s claim is covered by any workers’
       compensation law or employer’s liability law, even though not all of the
       beneficiaries of the decedent’s estate are eligible for benefits under the workers’
       compensation law or employer’s liability law.” Syllabus Point 3, Brooks v. City of
       Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998).

Syl. Pt. 3, Zelenka v. City of Weirton, 208 W. Va. 243, 539 S.E.2d 750 (2000).

       As set forth above, petitioner did not and does not dispute that respondent is a political
subdivision or that she applied for and was awarded workers’ compensation benefits as a result
of the decedent’s death while working for respondent. While there were questions about
respondent’s payment for certain unnecessary insurance coverage, the clear, unambiguous
language of the Act conveys immunity to respondent for petitioner’s claims. Nothing in the
insurance policy at issue in this matter supports petitioner’s contention that respondent has
waived such immunity.

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       For the foregoing reasons, we affirm.

                                                    Affirmed.

ISSUED: April 7, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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