         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                              January 2014 Term               FILED
                                 __________                 May 27, 2014
                                                            released at 3:00 p.m.
                                 No. 14-0273                RORY L. PERRY II, CLERK
                                                          SUPREME COURT OF APPEALS
                                 __________                   OF WEST VIRGINIA


          STATE OF WEST VIRGINIA ex rel. CITY OF BRIDGEPORT,

       a West Virginia Municipal Corporation; THE BRIDGEPORT POLICE

             DEPARTMENT; JOHN WALKER; and A. KIM HAWS,

                                   Petitioners,


                                      v.

                 THE HONORABLE JOHN LEWIS MARKS, JR.,

      Judge of the Circuit Court of Harrison County; DOUG’S TOWING, LLC;

                            and DAN RIGGS TOWING,

                                     Respondents.

         ______________________________________________________

                   PETITION FOR WRIT OF PROHIBITION

                            WRIT GRANTED
        ________________________________________________________

                            Submitted: May 6, 2014

                             Filed: May 27, 2014


Tamara J. DeFazio, Esq.                           Edward R. Kohout, Esq.
J. Robert Russell, Esq.                           Morgantown, West Virginia
Shuman, McCuskey & Slicer                         Counsel for Doug’s Towing
Morgantown, West Virginia
Counsel for Petitioners                           Daniel C. Cooper, Esq.
                                                  Jamison H. Cooper, Esq.
                                                  Cooper Law Offices
                                                  Bridgeport, West Virginia
                                                  Counsel for Dan Riggs Towing


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




              1. The provisions of West Virginia Code § 24-6-12 (2013) that require a

county commission to triannually establish a towing services policy for use in conjunction

with requests for towing services processed through an emergency telephone system do not

prohibit a municipality from adopting a towing policy that is separate and distinct from the

county’s towing policy.



              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).
LOUGHRY, Justice:



                Petitioners City of Bridgeport (“City”), the Bridgeport Police Department

(“Police Department”), Police Chief John Walker, and City Manager A. Kim Hawes

(sometimes collectively referred to as “petitioners”) seek a writ of prohibition in connection

with the January 14, 2013, decision of the Circuit Court of Harrison to deny the petitioners’

motion for summary judgment on immunity grounds.1 In support of their requested relief,

the petitioners argue they are immune from prosecution in the underlying suit based on two

alternative provisions of the West Virginia Governmental Tort Claims and Insurance Reform

Act (the “Act”).2 Upon our careful review of the record in this matter against the applicable

provisions of the Act,3 we conclude that the trial court committed error in ruling that the

petitioners are not entitled to legislative immunity. Accordingly, we grant the requested writ

of prohibition.



                          I. Factual and Procedural Background

                On March 7, 2011, Respondent Doug’s Towing initiated the underlying civil

action against Dan Riggs Towing and the petitioners. At the center of the lawsuit is the


       1
       The trial court granted summary judgment to the City with regard to the issue of
punitive damages.
       2
           See W.Va. Code §§ 29-12A-1 to -18 (2013).
       3
           See W.Va. Code § 29-12A-5(a)(4), -5(a)(5).

                                              1

foundational allegation that the petitioners have violated West Virginia Code § 24-6-12

(2013) by not using the towing rotation list adopted by the Harrison County Commission

(the “Commission”). As set forth in the complaint, the petitioners “have established a policy

of having their [police] officers contact defendant Dan Rigg’s [sic] Towing via their [police]

officers’ cell phones to request towing services.” As a result, Doug’s Towing alleges that

it has been denied business opportunities and sustained financial loss. Doug’s Towing seeks

a court directive requiring the petitioners to adopt the towing rotation list used by the

Harrison County Office of Emergency Management and E-911 Center. In addition to

declaratory relief, Doug’s Towing requests compensatory damages4 for alleged negligence,

civil conspiracy, tortious interference with business, and antitrust violations–all as a result

of the centralized allegation of harm set forth above.



               From the outset, the petitioners sought the dismissal of this case on grounds

of statutory immunity. In its initial pleading, the petitioners sought to dismiss the complaint

by asserting immunity under West Virginia Code § 29-12A-5(a)(4) (2013), which extends

immunity to political subdivisions when a loss or claim results from the “[a]doption or failure

to adopt a law, including, but not limited to, . . . regulation or written policy.” As an alternate

basis for immunity, the petitioners rely on West Virginia Code § 29-12A-5(a)(5), which



       4
       The trial court ruled against the availability of punitive damages in its January 14,
2013, order.

                                                2

provides immunity “for the method of providing, police, law enforcement or fire protection.”

Opting not to address the issue of immunity, the trial court simply denied the motion to

dismiss and the parties proceeded to engage in discovery.5 These same grounds of statutory

immunity were asserted in the petitioners’ motion for summary judgment, which was denied

by the trial court following a hearing held on March 4, 2014.6 The petitioners now seek

extraordinary relief from that ruling to prevent them from having to proceed to trial in the

underlying matter.



                                II. Standard of Review

              As with all cases that present questions of law or involve issues of statutory

interpretation, our review is de novo. See Syl. Pt. 1, Appalachian Power Co. v. State Tax

Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative

rule or regulation presents a purely legal question subject to de novo review”). In deciding

whether to grant a writ of prohibition in cases where the lower court is acting within its

jurisdiction but alleged to have exceeded its authority, we rely upon those axiomatic factors

set forth in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d




       5
       As the basis for its ruling, the trial court relied on authority espousing a
preference for deciding cases on their merits. See, e.g., John W. Lodge Distrib. Co. v.
Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 159 (1978).
       6
       By separate rulings entered on March 19, 2014, the trial court denied the motions
for summary judgment filed by Dan Riggs Towing and the petitioners.

                                             3

12 (1996).7 With these standards in mind, we proceed to determine whether the trial court

committed error in denying summary judgment to the petitioners.



                                        III. Discussion

                 The petitioners assert that the claims made by Doug’s Towing against the City

and the Police Department fall squarely within the grant of absolute immunity afforded to

political subdivisions by West Virginia Code § 29-12A-5(a)(4) and (a)(5). With regard to

the individually-named employees of the City and the Police Department, the petitioners

maintain that the record is devoid of evidence which would invoke the statutorily-specified

exceptions to immunity for employees of political subdivisions. See W.Va. Code § 29-12A­

5(b) (eliminating immunity when acts or omissions are outside scope of employment; are

committed with malicious purpose, in bad faith, or in a wanton or reckless manner; or

liability is otherwise expressly imposed). As a necessary predicate to our determination of



       7
           Those factors are:

                 (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.

                                               4

whether immunity exists in conjunction with the subject lawsuit, we must first review the

nature of the claims at issue.



              The substantive fulcrum upon which the complaint revolves is the contention

of Doug’s Towing that the City is required to utilize the towing policy adopted by the

Commission. As support for this contention, Doug’s Towing relies upon the language of

West Virginia Code § 24-6-12. This statute, included as part of our laws that address the

creation of local emergency telephone systems, provides in pertinent part:

                      (a) Every three years, the county commission of each
              county or the municipality operating an emergency telephone
              system or an enhanced emergency telephone system shall, in
              consultation with all public safety units, public agencies and all
              available towing services registered as common carriers
              pursuant to the provisions of chapter twenty-four-a [§§ 24A-1-1
              et seq.] of this code, establish a policy that provides for the most
              prompt, fair, equitable and effective response to requests or
              dispatches for emergency towing services.

W.Va. Code § 24-6-12(a). Based on the requirement that a county towing policy must be

established triannually for purposes of the emergency or 911 calling systems, Doug’s

Towing contends that the City is necessarily bound to comply with the county’s policy and

cannot establish its own towing policy. In furtherance of its position, Doug’s Towing relies

upon the trial court’s ruling that a private cause of action exists under West Virginia Code

§ 24-6-12 which permits “towing operator[s] . . . to challenge any deviations from or

disputes over the county’s towing policy.”


                                               5

              Disputing the position advocated by Doug’s Towing, the City strenuously

argues that West Virginia Code § 24-6-12 fails to establish a private cause of action for

compelling compliance with a county’s towing policy. The City further disagrees with the

contention that a municipality, such as itself, lacks the necessary discretion to employ a

towing policy that is at variance with the county’s policy.



              Even a cursory reading of West Virginia Code § 24-6-12 demonstrates that

there is no statutorily-created private cause of action which would permit towing companies

to independently dispute the operation of or deviation from a county’s towing policy. The

clear aim of that statutory provision is to ensure that the 911 emergency operators have a list

from which to contact towing companies for the purpose of providing a “prompt, fair,

equitable and effective response to requests or dispatches for emergency towing services.”

W.Va. Code § 24-6-12(a). In marked contrast to the business-promoting objective that

Doug’s Towing suggests the Legislature sought to encourage with the enactment of this

statute, the legislative findings are pointed in another direction entirely:

              It is the purpose of this article to establish a primary emergency
              telephone number for use in this state and to encourage units of
              local government and combinations of units of local
              government to develop and improve emergency communication
              procedures and facilities in a manner that will allow a quick
              response to any person calling the primary emergency telephone
              number seeking police, fire, medical, rescue and other
              emergency services.

W.Va. Code § 24-6-1.

                                               6

              Rather than mandating the adoption of a policy directed at spreading business

amongst the various towing operators within a particular county, the clear focus of the

statute under scrutiny was to compile a list of potential towing companies for referral

purposes when calls are placed through existing county or municipal emergency telephone

systems.8 Instead of seeking to stimulate the income-earning potential of towing business

owners,9 the unmistakable purpose of West Virginia Code § 24-6-12 was to enable the

operators of a county or municipal 911 center to quickly identify and contact a towing

company for the purpose of removing an incapacitated vehicle from the blocked or

otherwise affected roadway in an alacritous manner. The statutory objective is to secure the

necessary towing services requested through 911 calls in a manner that is speedy, fair, and,

most importantly, effective.10



       8
        When West Virginia Code § 24-6-1 was first enacted in 1979, the provisions
were directed solely at counties. With its adoption of West Virginia Code § 24-6-1a in
1988, the Legislature expanded the statutory reach by providing that all references to
counties “include the word ‘municipality’ or ‘municipalities’ with respect to the subject
matter therein, except and unless such reference . . . would not have a logical and clear
meaning within such context.” Id.
       9
       As the affidavit of Doug Brady, the owner of Doug’s Towing, makes clear, the
motivation for the lawsuit was lost revenue.
       10
          In an amicus brief submitted below by the Commission, concern for the safety of
the public and responders to emergency traffic situations was identified as its dominant
interest in connection with effectuating the provisions of West Virginia Code § 24-6-12.
After “acknowledg[ing] that the specific issues before this Court are framed in terms of
business and financial concerns,” the Commission urged the trial court to “maintain an
eye towards furtherance and protection of public safety and safety of law enforcement
and emergency personnel in disposing of the instant matter.”

                                             7

              While the compilation of a list of available towing companies for purposes of

the 911 calling center operators was presumably designed in contemplation of utilizing,

based on availability, the services of multiple towing companies, there is nothing within the

statute under consideration that expressly prohibits the towing practice that is currently being

employed by the City.11 Of perhaps even more import is the fact that the City does not have

a 911 calling center. Consequently, the towing-related calls at issue are not being processed

by an emergency telephone system; instead, they are handled directly by the City’s law

enforcement personnel in those instances when a driver fails to specify a particular towing

company. See supra note 11.



              Given that the towing services at the center of the underlying lawsuit did not

emanate through an emergency calling center, it stands to reason that the provisions of West

Virginia Code § 24-6-12 do not even apply to the case before us. Because Doug’s Towing

seeks to require the City to adhere to the county’s towing policy,12 however, we proceed to

       11
          Pursuant to the City’s towing policy, the police officers and first responders
inquire of the individual in need of towing services as to whether that person has a
particular towing company that they wish to use. Only where the driver has no
preference, does the City contact Dan Riggs Towing to remove vehicles located within
the city limits.
       12
        Despite representations made during oral argument before this Court, it appears
from the appendix record submitted to this Court that the Commission may have failed to
formally adopt the towing policy at the center of this dispute. Not only is the submitted
“policy” unsigned and undated, but correspondence between attorneys dated October 22,
2008, indicates that “there still does not exist a policy of the Harrison County
Commission concerning the dispatching of emergency towing services.” That same

                                               8

determine whether there is any merit to this request. As a basis for its conclusion that a

private cause of actions exists to enforce the provisions of West Virginia Code § 24-6-12,

the trial court referred to West Virginia Code § 24-6-1a.13 Pursuant to the proviso in section

1a, any municipality that wishes to adopt its own emergency calling system must first get the

county’s approval where the county already has a 911 calling system in place. See W.Va.

Code § 24-6-1a. While the trial court apparently sought to rely on the proviso language of

section 1a, it is clear that such language only refers to the establishment of emergency

telephone systems and not to the creation of towing policies. See id. The trial court’s

conclusion that a municipality cannot adopt a towing policy for the purpose of clearing its

roadways of unwanted and safety-affecting disabled vehicles merely because of the

existence of a county policy14 is without foundation.



                 We recently recognized in M & J Garage and Towing, Inc. v. State Police, 227



letter continues: “A policy may have been put into effect in 2001, but as far as he [Police
Chief John Walker] can determine, any such policy, if a formal policy was ever adopted,
has never been readopted or updated since 2001.”
       13
         In its order denying summary judgment, the trial court ruled that “the Court
[referring to itself] has previously ruled that violations of W.Va. Code §§ 24-6a-1 and
24-6-12 provide a private cause of action to any towing operator . . . .” While there is no
West Virginia Code § 24-6a-1, West Virginia Code § 24-6-1a (the statute to which we
presume the trial court was referring) contains the following language: “Provided, That
if any county has a system in place, municipalities may not adopt a different system
without county approval.”
       14
            See supra note 12.

                                               9

W.Va. 344, 709 S.E.2d 194 (2010), that “State Police detachments may exercise reasonable

discretion in dispatching or utilizing an appropriate towing or wrecker service registered as

a common carrier with the West Virginia Public Service Commission.” Id. at 350, 709

S.E.2d at 200. The City argues, and we agree, that it is analogously entitled to exercise

“reasonable discretion” in utilizing the necessary towing services to clear its streets of

wrecked and/or disabled vehicles. As the affidavit of City Police Chief John Walker

acknowledges, the City’s current towing policy was adopted

              in an effort to ensure the safety of the streets and roadways
              within The City of Bridgeport by facilitating the prompt
              removal of wrecked vehicles or vehicles otherwise disabled for
              any reason from the streets and roadways of The City of
              Bridgeport and to make the most efficient use of The City of
              Bridgeport’s law enforcement resources, all with a view toward
              enhancing public safety and promoting the interests of the
              public.

The selection of Dan Riggs Towing, when no preference is indicated, appears to be

logistically-driven as Dan Riggs Towing is the only towing company physically located

within the city limits.15 From the record of this case, there is no basis from which to

conclude that the City’s towing policy exceeds its authority to exercise reasonable discretion




       15
         Doug’s Towing is located in Westover. According to his affidavit, Doug Brady
was informed by the City in 2008 that “only operators who were physically located
within the City of Bridgeport would be called to tow for Bridgeport.” Mr. Brady
indicated that he could not afford to buy a piece of commercially-zoned property within
the Bridgeport city limits.

                                             10

over the handling of towing-related decisions.16 What the record suggests is that the City

makes towing service selections, when required, in a manner directed at clearing its streets

in an exigent fashion for the unquestionably laudatory purpose of promoting public safety.

We wholly reject the contention of Doug’s Towing that West Virginia Code § 24-6-12 was

designed to eliminate restraints on trade.17 As discussed above, that statute was designed to

enable emergency call centers to have a list of potential towing companies to use in

responding to calls. Accordingly, we conclude that the provisions of West Virginia Code

§ 24-6-12 that require a county commission to triannually establish a towing services policy

for use in conjunction with requests for towing services processed through an emergency

telephone system do not prohibit a municipality from adopting a towing policy that is

separate and distinct from the county’s towing policy.



                 Having decided that the City’s towing policy does not violate West Virginia


       16
            In his affidavit, Police Chief Walker averred that

                 “Dan Riggs’ Towing has historically been reliable and
                 responsive in connection with towing service provided by it
                 and its storage facility for disabled vehicles is located within
                 The City of Bridgeport and can, when needed, be quickly
                 accessed by law enforcement officers thereby minimizing the
                 burdens on The City of Bridgeport’s law enforcement
                 resources[.]”
       17
         Because the towing business is heavily-regulated and controlled by the Public
Service Commission, we leave any legitimate concerns rooted in unfair business
distribution or opportunities to that agency.

                                                11

Code § 24-6-12, we proceed to determine whether the trial court should have granted the

City immunity under either provision of the Act upon which the City asserted entitlement

to legislative immunity. See W.Va. Code § 29-12A-5(a)(4),(5). We turn first to subsection

(a)(4) which provides immunity to political subdivisions when a loss or claim results from

the “[a]doption or failure to adopt a law, including, but not limited to, . . . regulation or

written policy.” The gravamen of the complaint filed by Doug’s Towing is the failure of the

City and its Police Department to adopt and abide by the Commission’s towing policy and

regulations. In this case, there can be no question that the claims asserted by Doug’s Towing

emanate from an alleged failure to adopt “regulation or written policy.” Id. Because the

claims at issue fall squarely within the purview of West Virginia Code § 29-12-5(a)(4), the

City and the Police Department are entitled to statutory immunity from liability for the

claims asserted against them by Doug’s Towing.



              Alternately, the City and the Police Department look to the provisions of West

Virginia Code § 29-12A-5(a)(5) for immunity purposes. Under that statutory provision,

immunity is extended where a claim or loss results from “the failure to provide, or the

method of providing, police, law enforcement or fire protection.” Id. We previously

interpreted this section as “refer[ring] to the decision-making or the planning process in

developing a governmental policy, including how that policy is to be performed.” Syl. Pt.

4, in part, Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614 (2002). Thus, the City’s


                                             12

decision to disregard the county towing policy18 and to develop its own towing policy, and

the application of that policy by the Police Department, also fall within the reach of section

5(a)(5).



                   With regard to the individually-named defendants, Police Chief Walker and

City Manager Hawes, there is no evidence in the record of this case that would invoke the

exceptions to immunity for the employees of a political subdivision. See W.Va. Code § 29­

12A-5(b). Rather than presenting evidence of a municipal towing policy that was designed

and effectuated with malicious purpose, bad faith, or in a wanton, reckless manner, we see

nothing but the paradigmatic governmental function–the very type of routine bureaucratic

action that the Legislature sought to immunize from liability. Without such immunity, it has

been observed, that governmental employees would regularly be prevented from utilizing

their discretion for the public good for fear of litigious reprisal.



                 As we made clear in Hutchison v. City of Huntington, 198 W.Va. 139, 479

S.E.2d 649 (1996), absolute statutory immunity, like qualified immunity, “is an immunity

from suit rather than a mere defense to liability” that “is effectively lost if the case is

erroneously permitted to go to trial.” Id. at 147, 479 S.E.2d at 657 (citing Mitchell v.

Forsythe, 472 U.S. 511, 526 (1985) and emphasis in original). We further recognized that


       18
            See supra note 12.

                                              13

“the need for early resolution in cases ripe for summary judgment is particularly acute when

the defense is in the nature of an immunity.” 198 W.Va. at 147, 479 S.E.2d at 657.

Elucidating on the significance of prompt resolution of immunity-related defenses, we

stated:

                      Immunities under West Virginia law are more than a
              defense to a suit in that they grant governmental bodies and
              public officials the right not to be subject to the burden of trial
              at all. The very heart of the immunity defense is that it spares
              the defendant from having to go forward with an inquiry into
              the merits of the case.

Hutchinson, 198 W.Va. at 148, 479 S.E.2d at 658.



              In light of the clear public policy considerations that underlie the Legislature’s

decision to create immunity for specified types of governmental conduct, this Court has

stated that “[i]n absolute statutory immunity cases, the lower court has little discretion, and

the case must be dismissed if one or more of the provisions imposing absolute immunity

applies.” Id. at 148 n.10, 479 S.E.2d at 658 n.10. As a result, we held in syllabus point one

of Hutchinson:

                      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.

198 W.Va. at 144, 479 S.E.2d at 654, syl. pt. 1; accord State ex rel. Charles Town v. Sanders,


                                              14

224 W.Va. 630, 687 S.E.2d 568 (2009) (granting writ of prohibition based on trial court’s

failure to grant immunity under W.Va. Code § 29-12-5(a)(6)); State ex rel. Martinsburg v.

Sanders, 219 W.Va. 228, 632 S.E.2d 914 (2006) (granting writ of prohibition based on trial

court’s failure to recognize immunity under W.Va. Code § 29-12-5(a)(12)).



              Given the clear grant of immunity to the petitioners pursuant to the provisions

of West Virginia Code § 29-12A-5(a)(4) and (5), there is no question that the extraordinary

relief sought by the petitioners is required in this case. The availability of an appeal wholly

ignores the essence of absolute immunity–the avoidance of trial in the first instance. The

legislative decision to clothe certain actions of governmental agencies and employees in a

cloak of immunity is not one that should be casually disregarded. Without that promise of

immunity, it is probable that many critical governmental decisions would cease to be made

and the services that most citizens expect their government to provide would consequently

be unavailable.



                                      IV. Conclusion

              Having determined that the petitioners are clearly entitled to the relief sought,

we grant the requested writ of prohibition.



                                                                                Writ granted.


                                              15
