No. 12-0632 – Joseph E. Jackson and West Virginia Department of
                                                                                        FILED
Transportation, Division of Highways v. Joseph Wayne Belcher                          December 27, 2013

                                                                                   RORY L. PERRY II, CLERK

                                                                                 SUPREME COURT OF APPEALS

                                                                                     OF WEST VIRGINIA

Benjamin, Chief Justice, dissenting:


              I agree with much of the analysis in Justice Loughry’s dissenting opinion. I

write separately to emphasize that the majority’s strained reliance on the four words, “or

any other law,” in W. Va. Code § 15-5-11(a), ignores completely the statutory framework

set forth by the Legislature. In its opinion, the majority of this Court effectively suggests

the bizarre scenario that the Legislature, in enacting W. Va. Code § 15-5-11(a), intended

to make a law that is devoid of purpose. I find such reasoning to be illogical and at odds

with common sense.



              Specifically, if W. Va. Code § 15-5-11(a) did not exist, under this Court’s

jurisprudence, an individual could sue the State for an injury allegedly caused by the

State’s provision of emergency services where the recovery sought is confined to the

limits of the State’s liability insurance coverage. As a result of the majority’s construction

of W. Va. Code § 15-5-11(a), an individual can still sue the State for an injury allegedly

caused by the State’s provision of emergency services where the recovery sought is

confined to the limits of the State’s liability insurance coverage. Thus, according to the

majority, the Legislature took considerable time and effort to do something which, in

effect, results in no difference.      Certainly, this odd result could not be what the

Legislature had in mind when it enacted this statute.


                                              1

               Because of the majority’s erroneous construction of W. Va. Code§ 15-5­

11(a), I dissent.




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