                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Billie Jo Crigler,                                                                  FILED
Defendant Below, Petitioner                                                        April 25, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-0604 (Pendleton County 11-C-26)                                      OF WEST VIRGINIA



Darrell R. Bailey, Plaintiff Below and
South Fork Volunteer Fire Department,
Defendant Below, Respondents


                              MEMORANDUM DECISION
       Petitioner Billie Jo Crigler, by counsel Charles F. Hilton, appeals the order of the Circuit
Court of Pendleton County, entered April 24, 2013, that, in part, denied her motion for summary
judgment. Respondent Darrell R. Bailey appears by counsel Brian E. Bigelow. Respondent South
Fork Volunteer Fire Department appears by counsel Jeffrey W. Molenda and Mikaela D.
Torbert.

        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.

         On appeal, petitioner asserts five assignments of error to the circuit court’s denial of her
motion for summary judgment, all related to the court’s declining to apply immunity from
liability pursuant to West Virginia Code § 29-12A-5(b) after petitioner, a volunteer firefighter,
was involved in an automobile accident with Respondent Bailey on a snowy day.1 “‘This Court


       1
           West Virginia Code § 29-12A-5(b) provides:

               An employee of a political subdivision is immune from liability unless
       one of the following applies;

             (1) His or her acts or omissions were manifestly outside the scope of
       employment or official responsibilities;

               (2) His or her acts or omissions were with malicious purpose, in bad faith,
       or in a wanton or reckless manner; or


                                                 1

reviews de novo the denial of a motion for summary judgment, where such a ruling is properly
reviewable by this Court.’ Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80,
576 S.E.2d 807 (2002).” Syl. Pt. 1, W.Va. Dept. of Health and Human Res. v. Payne, 231 W.Va.
563, 746 S.E.2d 554 (2013). “‘A circuit court’s denial of summary judgment that is predicated
on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the
‘collateral order’ doctrine.’ Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660
(2009).” Syl. Pt. 2, id. “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). With this standard
in mind, we begin our review.2

        At the core of the circuit court’s order is its finding that there is a dispute about whether
petitioner was acting within the scope of her “employment” as a volunteer with respondent fire
department on December 5, 2009, when she collided her 2007 Chevrolet Cobalt with Respondent
Bailey’s 2005 Chevrolet Silverado after crossing the center line while traveling westward on
U.S. Route 33.3 The circuit court had ordered the parties to engage in a period of discovery on


               (3) Liability is expressly imposed upon the employee by a provision of
       this code.
       2
         In the same order that denied petitioner’s motion for summary judgment, the circuit
court also addressed the other parties’ motions for summary judgment. The court denied
Respondent Bailey’s motion for partial summary judgment on the question of petitioner’s
negligence because the initial discovery period had been limited to the questions of immunity,
the statute of limitations, and the relationship between petitioner and respondent fire department,
and discovery had not been conducted on liability. The court also granted respondent fire
department’s motion, finding plaintiff’s action against respondent fire department, which was
added as a party by amended complaint, was barred by the applicable statute of limitations.
Those conclusions are not before this Court on appeal. Though petitioner does not claim error in
the grant of respondent fire department’s motion for summary judgment, respondent fire
department made an appearance and filed a responsive brief herein. In one assignment of error,
petitioner contends that she was entitled sanctions because that respondent altered evidence, and
asks us to find that “[i]t was an abuse of discretion for the trial court to defer ruling on this issue
that directly impacted [the] immunity defense.” However, we find that the evidence at issue—the
possible listing and subsequent covering of petitioner’s name on a log of emergency
responders—does not resolve the factual questions that prevent summary judgment, as further
described in the body of this decision. Furthermore, the lower court deferred ruling on
petitioner’s motion for sanctions, and there is no final order on that issue before us. We thus
leave petitioner’s motion for sanctions to the evaluation of the circuit court, and find no error in
the deferral.
       3
         As explained herein, the circuit court’s denial of petitioner’s motion for summary
judgment on this issue was based on the court’s finding that there is a dispute about whether
petitioner was acting within the scope of her employment at the time of the collision. For this
                                                  2

this limited subject.4 Discovery revealed inconsistent information on a key issue: that is, whether
an emergency dispatch by respondent fire department had triggered her to act in her volunteer
capacity.

         Petitioner maintained that at the time of the accident, she was responding to an
emergency dispatch received at 1:51:33 p.m. while she shopped at the H&J Superette. She
testified that while traveling toward the accident, she realized that road conditions would not
allow her car to climb Shenandoah Mountain, and at Brandywine Lake she turned the car away
from the accident scene. The collision with Respondent Bailey’s car occurred when she was
driving away. Petitioner’s statement to the trooper conducting the investigation of her accident
indicated that she had been responding to an emergency notification when she collided with Mr.
Bailey’s automobile. However, the trooper’s report indicated that the accident occurred at 1:35
p.m. and that he made his report at 1:50 p.m. The trooper later testified that these times were a
“rough guess, at best.”5

        In contrast, respondents offered the testimony of petitioner’s ex-husband, William
Crigler, who also was a volunteer with respondent fire department. He stated that he had been
with petitioner at Brandywine Lake immediately before he received the same emergency
dispatch, and that he received the dispatch while traveling on Route 33, but before reaching the
H&J Superette. Mr. Crigler concluded that because he had left the meeting with his ex-wife first,
it would not have been possible for her to reach the H&J Superette, travel toward the scene of the
accident, and turn around before he received his own dispatch.

        Based on this evidence, we agree with the circuit court that there exists a “bona fide
dispute as to the foundational . . . facts that underlie the immunity determination. . . ” because
there is a disagreement about whether petitioner was responding to an emergency dispatch at the
time of the accident, and it is therefore not clear whether she was acting in the scope of
employment when she collided with Respondent Bailey’s automobile. Syl. Pt. 1, Hutchison. We
find that petitioner’s first assignment of error—that the circuit court improperly shifted the
burden to petitioner to prove that she was within the scope of her employment rather than
requiring respondents to prove that she was “manifestly outside” the scope—seeks to make a
distinction without a difference for this purpose. Petitioner argues that she was not manifestly


reason, we easily dismiss petitioner’s third and fifth assignments of error—that the circuit court
erred by failing to find petitioner was an employee of respondent fire department and that the
circuit court erred because there is no evidence supporting Respondent Bailey’s allegation that
petitioner’s actions were reckless, wanton, or willful. The circuit court made no findings on these
issues, nor did it need to do so to support its denial of petitioner’s motion.
       4
        Pursuant to the court’s order, this time period also was used to conduct discovery related
to respondent fire department’s challenge to the timeliness of service on it.
       5
        A dispatcher for respondent fire department testified that he dispatched responders to
two accidents at 1:52 p.m., but he did not know if petitioner’s collision with Respondent Bailey
was one of them.


                                                3

outside the scope of her employment no matter whether she was traveling to or from an accident
scene. However, this argument minimizes the testimony of Mr. Crigler, which could lead the
trier of fact to conclude that petitioner was en route neither to nor from the scene of an
emergency at the time of her own accident.6

        Petitioner argues in her fourth assignment of error that Mr. Crigler is a disgruntled ex-
husband and that his testimony is unbelievable.7 “In assessing the factual record, we must grant
the nonmoving party the benefit of inferences, as ‘[c]redibility determinations . . . are jury
functions, not those of a judge[.]’” Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459
S.E.2d 329, 336 (1995) (citing Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242] at 255, 106
S.Ct. [2505] at 2513, 91 L.Ed.2d [202] at 216 (1986). Furthermore, testimony should be found
inherently incredible “only when the testimony defies physical laws.” State v. McPherson, 179
W.Va. 612, 617, 371 S.E.2d 333, 338 (1988). We find no such deficit on the face of Mr.
Crigler’s testimony, and leave determinations of his credibility in the capable hands of a jury.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: April 25, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis



       6
         We note that respondents also presented evidence that there were no reported accidents
between 8:58 a.m. and 1:52 p.m. on the day of the petitioner’s accident. They also presented
evidence suggesting that the device assigned to petitioner for the purpose of receiving dispatch
notification may not have worked on the day of the accident. Thus, we find sufficient basis for
the circuit court’s determination that material facts were in dispute.
       7
         Petitioner’s assertion that Mr. Crigler’s testimony is incredible is based on Mr. Crigler’s
having testified that petitioner’s accident with Respondent Bailey was the accident that appears
to have been dispatched at 1:51:33 p.m., and that petitioner’s name was initially recorded on the
log as a responder because she sat in a vehicle belonging to respondent fire department while
department members responded to a second call directing them to close the roadway because of
weather conditions. Petitioner argues that the timeline required for Mr. Crigler’s testimony to be
truthful is “fanciful” and an “impossibility.”
                                                 4

