          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                               September 2016 Term
                                    __________                    FILED
                                                              October 27, 2016
                                    No. 15-0879                   released at 3:00 p.m.
                                                                RORY L. PERRY, II CLERK

                                    __________                SUPREME COURT OF APPEALS

                                                                   OF WEST VIRGINIA



                               BRENDA ALBERT,

                             Plaintiff Below, Petitioner


                                         v.

                           CITY OF WHEELING,

                         Defendant Below, Respondent

          ______________________________________________________

                   Appeal from the Circuit Court of Ohio County

                            Honorable James A. Cuomo

                             Civil Action No. 15-C-43


                               AFFIRMED

         _______________________________________________________

                             Submitted: October 4, 2016

                              Filed: October 27, 2016


Ronald Wm Kasserman, Esq.                     Thomas E. Buck, Esq.
Kasserman Law Offices                         Bruce M. Clark, Esq.
Wheeling, West Virginia                       Bailey & Wyant, PLLC
Counsel for Petitioner                        Wheeling, West Virginia
                                              Counsel for Respondent




JUSTICE LOUGHRY delivered the Opinion of the Court.

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

JUSTICE DAVIS and JUSTICE WORKMAN dissent and reserve the right to file

dissenting opinions.

                                         SYLLABUS


              1. “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).



              2.     “The ultimate determination of whether qualified or statutory immunity

bars a civil action is one of law for the court to determine. Therefore, unless there is a bona

fide dispute as to the foundational or historical facts that underlie the immunity

determination, the ultimate questions of statutory or qualified immunity are ripe for summary

disposition.” Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649

(1996).



              3. “Pursuant to W.Va. Code, 29-12A-4(c)(2) [1986] and W.Va. Code, 29-12A­

5(a)(9) [1986], a political subdivision is immune from liability if a loss or claim results from

licensing powers or functions such as the issuance, denial, suspension or revocation of or

failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval,

order or similar authority, regardless of whether such loss or claim is caused by the negligent

performance of acts by the political subdivision’s employees while acting within the scope

of employment.” Syl. Pt. 4, Hose v. Berkeley Cty. Planning Comm’n, 194 W.Va. 515, 460

S.E.2d 761 (1995).


                                               i
              4. Statutory immunity exists for a political subdivision under the provisions

of West Virginia Code § 29-12A-5(a)(5) (2013) if a loss or claim results from the failure to

provide fire protection or the method of providing fire protection regardless of whether such

loss or claim, asserted under West Virginia Code § 29-12A-4(c)(2) (2013), is caused by the

negligent performance of acts by the political subdivision’s employees while acting within

the scope of employment. To the extent that this ruling is inconsistent with syllabus point

five of Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614 (2002), the holding as it pertains

to the negligent acts of a political subdivision’s employee in furtherance of a method of

providing fire protection is hereby overruled.



              5. Statutory immunity exists for a political subdivision under West Virginia

Code § 29-12A-5(a)(5) (2013) if a loss or claim results from the failure to provide fire

protection or the method of providing fire protection regardless of whether such loss or

claim, asserted under West Virginia Code § 29-12A-4(c)(3) (2013), is caused by the

negligent failure of the political subdivision to maintain, inspect and otherwise keep its

waterworks and fire hydrant system fully operable.



              6. For purposes of the immunity provided by West Virginia Code § 29-12A­

5(a)(5) (2013), a municipality’s policy of inspecting and maintaining its fire hydrants is

directly connected to the city’s method of providing fire protection.


                                             ii
LOUGHRY, Justice:



                 The petitioner, Brenda Albert, appeals from the August 18, 2015, order of the

Circuit Court of Ohio County, granting the motion of the respondent, the City of Wheeling

(“City”), to dismiss the negligence-based complaint Ms. Albert filed against the City for the

loss of her home due to fire. As grounds for its ruling, the trial court relied upon the grant

of immunity extended to political subdivisions for fire protection services by West Virginia

Code § 29-12A-5(a)(5) (2013).1 Acknowledging the creative pleading of her case as arising

from the negligent inspection and/or maintenance of the fire hydrant system, the trial court

nonetheless rejected the petitioner’s attempt to circumvent the grant of legislative immunity

extended to political subdivisions2 for failing to provide, or the method of providing, fire

protection. Arguing that her complaint is based solely on the City’s aqueduct system and

not on the provision of fire protection services, the petitioner seeks to have her complaint

reinstated. Having reviewed the applicable statutes and law against the pleadings and

submitted record in this case, we do not find that the trial court committed error in its

application of statutory immunity as a bar to further prosecution of the petitioner’s case.

Accordingly, we affirm.

       1
        The trial court also relied on the common law public duty doctrine in dismissing the
complaint; the petitioner has appealed this matter based solely on the application of statutory
immunity. Her attorney acknowledged during oral argument that he could not establish the
existence of a special duty owed to Ms. Albert by the City.
       2
           See infra note 7 (defining “political subdivision”).

                                                1

                           I. Factual and Procedural Background

                 When a fire started in the dining room of the first floor of the petitioner’s

home on February 14, 2013, the Wheeling Fire Department was dispatched to Ms. Albert’s

home. After initially containing the fire on the first floor, the firemen proceeded to the

basement where they encountered a problem with the fire hoses. According to the fire

incident report, the water presumably stopped flowing due to rocks clogging the line. As

a result of the blocked fire hoses, the house continued to burn and was ultimately declared

a total loss.3



                 The petitioner instituted a lawsuit against the City on February 5, 2015,

alleging that the City negligently failed to inspect, maintain, and operate its waterworks and

fire hydrant system. She expressly asserted liability based on the negligent acts of the City

in failing to contain the fire that resulted in her house being declared a total loss. In

responding to the complaint, the City filed a motion to dismiss under Rule 12(b)(6) of the

West Virginia Rules of Civil Procedure in which it asserted statutory immunity for fire

protection services.4 After hearing argument on the motion, the circuit court granted the

City’s motion to dismiss based on its determination that both statutory and common law




        3
            The petitioner did not have any home owner’s insurance on her residence.
        4
            See W.Va. Code § 29-12A-5(a)(5).

                                               2

immunity prevented further prosecution of the subject lawsuit.5 It is from this ruling that

Ms. Albert seeks relief.



                                     II. Standard of Review

                  As we announced in syllabus point two of State ex rel. McGraw v. Scott

Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995), “[a]ppellate review of

a circuit court’s order granting a motion to dismiss a complaint is de novo.” Of further

import to this matter is syllabus point one of Hutchison v. City of Huntington, 198 W.Va.

139, 479 S.E.2d 649 (1996): “The ultimate determination of whether qualified or statutory

immunity bars a civil action is one of law for the court to determine. Therefore, unless there

is a bona fide dispute as to the foundational or historical facts that underlie the immunity

determination, the ultimate questions of statutory or qualified immunity are ripe for summary

disposition.” Fully cognizant of these applicable standards, we proceed to determine

whether the circuit court erred in ruling that the legislative grant of immunity pursuant to

West Virginia Code § 29-12A-5(a)(5) prevents Ms. Albert from pursuing her case against

the City.



                                         III. Discussion

                 In seeking to impose liability against the City for its actions in connection with


       5
           See supra note 1.

                                                 3

her fire-decimated home, the petitioner focused narrowly on portions of two subsections of

The Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”).6 See

§§W.Va. Code § 29-12A-1 to -18 (2013). She relies on subsection 4(c)(2), which authorizes

the imposition of liability on a political subdivision “for injury, death, or loss to persons or

property caused by the negligent performance of acts by their employees while acting within

the scope of employment.”7 W.Va. Code § 29-12A-4(c)(2). As additional authority for her

action, the petitioner cites to subsection 4(c)(3), which provides authority for imposing

liability on a political subdivision “for injury, death, or loss to persons or property caused

by the negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks,

bridges, aqueducts, viaducts, or public grounds . . . open, in repair, or free from nuisance .

. . .”8 W.Va. Code § 29-12A-4(c)(3) (emphasis supplied). Wholly overlooked by the

petitioner, however, is the fact that, instead of sanctioning potentially unlimited liability,



       6
       The Tort Claims Act “was the result of legislative findings that political subdivisions
of the State were unable to obtain affordable tort liability insurance coverage without
reducing the quantity and quality of traditional governmental services.” O’Dell v. Town of
Gauley Bridge, 188 W.Va. 596, 600, 425 S.E.2d 551, 555 (1992) (citing W.Va. Code § 29­
12A-2).
       7
        See W.Va. Code § 29-12A-3(c) (2013) (defining “political subdivision” to mean
“any county commission, municipality and county board of education; any separate
corporation or instrumentality established by one or more counties or municipalities . . .; any
instrumentality supported in most part by municipalities; any public body charged by law
with the performance of a government function . . . .”).
       8
        The petitioner advances her position based on the assumption that a fire hydrant
qualifies as an aqueduct. The trial court made no finding on this issue and we do not find
it necessary to further address this issue given our resolution of this matter.

                                               4

subsection 4(c) begins with the disclaimer that the subsequent grants of liability are
                                                                                      9
expressly made “[s]ubject to section five [§ 29-12A-5] and six [§ 29-12A-6].”             W.Va.

Code § 29-12A-4(c). As a result, subsections 4(c)(2) and 4(c)(3) cannot be dissociated from

the introductory language that expressly conditions liability on the absence of any provisions

of immunity set forth in section five and six of article twenty-nine. See W.Va. Code §§ 29­

12A-4, -5, -6.



                 As the City correctly recognizes, language in West Virginia Code § 29-12A­

5(a)(5) operates to prevent the imposition of liability under the facts of this case. Section

5(a)(5) provides immunity from liability to political subdivisions for the “failure to provide,

or the method of providing, police, law enforcement or fire protection.” Id. Because any

potential liability set forth in subsection 4(c)(2) is made expressly subject to the grant of

immunity provided in section 5(a)(5), there is no right to seek recovery from a political

subdivision for the negligent performance of its employee’s actions performed within the

scope of his or her employment and authority when those actions pertain to either the failure

to provide fire protection or the method of providing fire protection. Cf. W.Va. Code § 29­

12A-4(c)(2) to § 29-12A-5(a)(5). There is similarly no right to recover damages from a

political subdivision for the negligent failure to keep a city’s waterworks and fire hydrant



       9
       The petitioner wholly fails to address both the existence and the effect of this critical
language that expressly links liability to the lack of a superceding grant of immunity.

                                               5

system fully operable if the actions at issue are subsumed within the immunity extended to

political subdivisions for the failure to provide fire protection or the method of providing

fire protection. Cf. W.Va. Code § 29-12A-4(c)(3) to § 29-12A-5(a)(5); see also Jackson

v. Belcher, 232 W.Va. 513, 523, 753 S.E.2d 11, 19-21 (2013) (Loughry, J., dissenting)

(recognizing significance of statutory immunity and detrimental effects of “render[ing] the

immunity plainly articulated by the Legislature wholly without effect”).



              In Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d

761 (1995), this Court addressed the precise issue of how subsection 4(c)(2) must be read

in conjunction with section 5 of the Tort Claims Act. Seeking to elude the statutory

immunity set forth in section 5(a)(9), which concerns licensing functions performed by a

political subdivision, the plaintiff in Hose alleged negligence under 4(c)(2) based on the

approval by the Planning Commission’s employee of the defendant’s plans to install a thirty-

six inch drainage pipe. Id. at 520, 460 S.E.2d at 766. We expressly rejected this attempt to

rely on subsection 4(c)(2) as a means of defeating immunity by underscoring the pivotal

proviso language–subject to section five and six [§§ 29-12A-5 and 29-12A-6] of this article.

See Hose, 194 W.Va. at 521, 460 S.E.2d at 767. Looking solely to the “subject to” language

of subsection 4(c), this Court recognized that the specified immunity provided in subsection

5(a)(9) necessarily trumped the grant of liability seemingly extended by subsection 4(c)(2).

As we held in syllabus point four of Hose:


                                             6

                     Pursuant to W.Va. Code, 29-12A-4(c)(2) [1986] and
              W.Va. Code, 29-12A-5(a)(9) [1986], a political subdivision is
              immune from liability if a loss or claim results from licensing
              powers or functions such as the issuance, denial, suspension or
              revocation of or failure or refusal to issue, deny, suspend or
              revoke any permit, license, certificate, approval, order or similar
              authority, regardless of whether such loss or claim is caused by
              the negligent performance of acts by the political subdivision’s
              employees while acting within the scope of employment.

194 W.Va. at 517, 460 S.E.2d at 763 (emphasis supplied); accord State v. Sanders, 224

W.Va. 630, 634, 687 S.E.2d 568, 572 (2009) (discussing action brought under W.Va. Code

§ 29-12A-4(c)(3) and stating, “[h]owever, W.Va. Code, § 29-12A-4(c)(3) is made subject

to the immunities set forth in section five and six of article 29”); Calabrese v. City of

Charleston, 204 W.Va. 650, 659, 515 S.E.2d 814, 823 (1999) (holding that “aqueduct”

language of W.Va. Code § 29-12A-4(c)(3) encompassed negligent sewer maintenance and

operation claim but recognizing that any potential liability was subject to specific immunity

provisions set forth in sections 5 and 6 of the Tort Claims Act).



              Like our decision in Hose, this case is similarly driven by the axiomatic

principle of statutory construction that requires us to apply the Tort Claims Act as written.

See Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). (“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.”); see also T. Weston, Inc. v. Mineral Cty., 219 W.Va.

564, 568, 638 S.E.2d 167, 171 (2006) (“Courts should favor the plain and obvious meaning


                                               7

of a statute as opposed to a narrow or strained construction.”). Extending the holding of

Hose to the case sub judice, we conclude that statutory immunity exists for a political

subdivision under the provisions of West Virginia Code § 29-12A-5(a)(5) if a loss or claim

results from the failure to provide fire protection or the method of providing fire protection

regardless of whether such loss or claim, asserted under West Virginia Code § 29-12A­

4(c)(2), is caused by the negligent performance of acts by the political subdivision’s

employees while acting within the scope of employment. To the extent that this ruling is

inconsistent with syllabus point five of Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614

(2002), the holding as it pertains to the negligent acts of a political subdivision’s employee

in furtherance of a method of providing fire protection is hereby overruled.10 Similarly, we

further hold that statutory immunity exists for a political subdivision under West Virginia

Code § 29-12A-5(a)(5) if a loss or claim results from the failure to provide fire protection

or the method of providing fire protection regardless of whether such loss or claim, asserted

under West Virginia Code § 29-12A-4(c)(3), is caused by the negligent failure of the

political subdivision to maintain, inspect and otherwise keep its waterworks and fire hydrant

system fully operable.



              While the petitioner has sought to disguise the essence of her claim through


       10
         This Court failed to discuss either our decision in Hose or the “subject to” language
in section 4(c). See 211 W.Va. at 481, 566 S.E.2d at 618. As a result, Burdette conflicts
with, and cannot be reconciled with, our precedent on the issue of statutory immunity.

                                              8

creative pleading, the circuit court was not fooled and neither are we. Despite the

petitioner’s attempt to camouflage her claim as divorced from matters of fire protection or

policy implementation,11 the record in this case makes clear that but for the fire this matter

would not be before us. Upon analysis, virtually every aspect of the petitioner’s case arises

from the City’s efforts to squelch that fire. Were it not for the need to dispatch the fire

department in response to the subject fire and were it not for the unsuccessful efforts of the

fire department to contain the flames, the petitioner would not have filed the underlying

lawsuit. Similarly, but for the need to utilize water to suppress the fire, the purported

existence of rocks in the water line would not be at issue. Each and every fact upon which

the petitioner relies to assert her claim is inexorably linked to the fire at her home which the

City was not able to extinguish.12



              When presented with artful pleadings seeking to frame liability on a negligent

water supply, courts have readily identified the attempt to circumvent the statutory immunity

that is regularly extended to public bodies in exchange for fire protection services. In

Shockey v. City of Oklahoma City, 632 P.2d 406 (Okla. 1981), the Supreme Court of


       11
         Her claim that she has not asserted negligence against the firefighters rings hollow
as the City is the party against whom negligence is asserted whether the claim is for failure
to provide adequate fire protection or for failure to provide water for fire fighting purposes.
       12
        It is clear from the petitioner’s complaint that she appreciated the pyric origin of her
claim as she pled: “As a result of the negligent acts of the City of Wheeling, the fire . . .
could not be contained and the house became a total loss.”

                                               9

Oklahoma considered whether the Oklahoma Political Subdivisions Tort Claims Act barred

a tort action against a municipality for fire-related damages that resulted from an inoperable

fire hydrant. Like West Virginia, Oklahoma extends immunity to its political subdivisions

for the failure to provide, and the methods employed in, providing fire protection. See id.

at 408 (discussing 51 Okla. Stat., Governmental Tort Claims Act, § 155(6) (1978)). In

concluding that the statutory immunity provisions pertaining to fire protection were

applicable, the court reasoned:

              Fire hydrants, as such, are a part of the physical structure of
              the fire department and their maintenance, including an
              adequate supply of water, and their repair are incidental to the
              operation of the fire department. The fire hydrants were
              installed for the purpose of fire protection. Although
              appellants’ damages may have resulted from a failure of the
              water service, supplying water to the fire hydrants was just a
              part of appellee’s [the City’s] overall operation in providing fire
              protection. Assuming, arguendo, appellee negligently failed to
              employ the proper methods in checking its water service for the
              proper operation of its fire hydrants, s[ection] 155(6) clearly
              exempts it from liability.

632 P.2d at 408 (emphasis supplied); accord Zacharie v. City of San Antonio, 952 S.W.2d

56, 59 ( Tex. App. 1997) (barring suit under Texas Torts Claims Act for failure to maintain

pumps to supply adequate water pressure to fire hydrant system, stating that “[e]nsuring that

an adequate amount of water is available to fire hydrants is necessarily connected to

providing fire protection”).



              Having conceded that an action for failing to provide adequate firefighting

                                              10

personnel and equipment was barred by statutory immunity, the plaintiffs in Wells v. City

of Lynchburg, 501 S.E.2d 746 (S.C. Ct. App. 1998), sought recovery based on the city’s

failure to inspect and/or maintain a system of fire hydrants and to notify authorities of

inoperative fire hydrants. Id. at 750. In rejecting this tact, the appellate court stated:

                      We agree with the reasoning of the Oklahoma court in
              Shockey and hold the South Carolina Tort Claims Act precludes
              Appellants’ action. The maintenance of fire hydrants and the
              supply of water for fighting fires clearly is included in the
              exceptions from liability in section 15-78-60 for the method of
              providing fire protection and the discretionary act of
              maintaining the city water system with the resources available.
              See, e.g., Pierce v. Village of Divernon, 17 F.3d 1074 (7th Cir.
              1994) (Illinois tort claims act codifies common law rule that a
              municipality owes the public no general duty of fire protection
              and that it therefore cannot be held liable either for failing to
              provide or negligently providing fire protection services; an
              alleged failure to provide sufficient water or water pressure
              could be viewed either as a complete failure to provide fire
              protection or as a failure to provide sufficient facilities to
              suppress or contain a fire; either way, the municipality is
              immune); . . . City of Columbus v. McIlwain, 205 Miss. 473,
              38 So.2d 921 (1949) (municipality is not responsible for the
              destruction of property within its limits by a fire merely
              because, through the negligence or other default of the
              municipality or its employees, the members of the fire
              department failed to extinguish the fire regardless of whether
              this failure is due to an insufficient supply of water, the
              interruption of the service during the course of a fire, the
              neglect or incompetence of the firemen, the defective condition
              of the fire apparatus, negligence in permitting fire hydrants to
              become clogged or defective, etc.); Ross v. City of Houston, 807
              S.W.2d 336 (Tex. App. 1990) (city’s policy of inspecting fire
              hydrants was directly connected to the city’s method of
              providing fire protection; therefore, the state tort claims act
              exclusion from governmental liability for claims arising from
              the failure to provide or the method of providing fire protection

                                              11

              barred suit by homeowner).

501 S.E.2d at 751.



              In Travelers Excess and Surplus Lines Co. v. City of Atlanta, 677 S.E.2d 388

(Ga. App. 2009), the insurers of commercial property destroyed by a fire sought to cast their

complaint as spawning from the negligence of the city’s water department rather than its fire

department. Dismissing this patent attempt to avoid immunity, the court reasoned:

              No matter how artfully pleaded, the essence of the Travelers
              Companies’ complaint is that the City failed to promptly
              provide adequate fire protection in response to the fire, leading
              to increased property damage. Furthermore, fire hydrants “are
              a part of the physical structure of the fire department,” are
              “installed for the purpose of fire protection,” and are a
              necessary component of the fire protection services offered to
              citizens by a municipality. As such, it is of no legal
              consequence that the negligence respecting the hydrant was
              committed by the water department rather than the fire
              department itself.

Id. at 390 (internal citation omitted).



              Like the courts in Oklahoma, Georgia, Texas, Illinois, South Carolina, and

Mississippi, we agree that fire hydrants are an integral component of fire protection services.

Consequently, any attempt to separate the provision of water services necessary to battle

fires from the firefighting itself is untenable. Accordingly, we determine that for purposes

of the immunity provided by West Virginia Code § 29-12A-5(a)(5), a municipality’s policy


                                              12

of inspecting and maintaining its fire hydrants is directly connected to the city’s method of

providing fire protection. Because we conclude that the actions for which the petitioner is

seeking to impose liability on the City fall within the statutory ambit of fire protection or the

method of providing fire protection, the immunity extended to political subdivisions by West

Virginia Code § 29-12A-5(a)(5) is a bar to further prosecution of the petitioner’s case. To

decide otherwise would risk further erosion of “well-established common law and statutory

immunities which are vital to the proper function[ing] of government.” Belcher, (Loughry,

J., dissenting), 232 W.Va. at 529, 753 S.E.2d at 27.



                                       IV. Conclusion

              Having determined that the Circuit Court of Ohio County did not error in

dismissing this case with prejudice based on principles of statutory and common law

immunity, the August 18, 2015, order is affirmed.



                                                                                      Affirmed.




                                               13

