W. Va. Code § 29-12A-5 – West Virginia Governmental Tort Claims and Insurance Reform Act
Did the trial court exceed its legitimate powers by erroneously ruling that the instant action may proceed to trial and by denying the Bridgeport Defendants the statutory immunity they are entitled to under W. Va. Code § 29-12A-5 of the West Virginia Governmental Tort Claims and Insurance Reform Act?
Rather than adopt the Harrison/Taylor County Towing Policy and Regulations, the City of Bridgeport has established a policy, within the police department, where police officers call for towing services via their cell phones in the event of wrecked or disabled vehicles in the city streets. Where owners of the vehicles do not state a preference for the company used to remove their wrecked or disabled vehicle, the Bridgeport police department will call Dan Riggs Towing, a towing company located within Bridgeport. Doug’s Towing, LLC, the Defendant in the underlying case, brought a suit against Dan Riggs Towing and also against the City of Bridgeport, the Bridgeport Police Department, Bridgeport Chief of Police John Walker, Bridgeport City Manager A. Kim Haws (collectively “the Bridgeport Defendants). Doug’s Towing alleged that the practice of calling Dan Riggs Towing, in the absence of owner preference, constitutes negligence, civil conspiracy, tortious interference with a business relationship, and an illegal monopoly in violation of antitrust laws. Doug’s Towing also sought to have the trial court issue an order which would compel Bridgeport to adopt a Harrison County towing rotation list.
The Bridgeport Defendants filed a Motion for Summary Judgment, on the grounds that they, as political subdivisions and employees of a political subdivision, are protected by the statutory immunity provisions of W. Va. Code § 29-12A-5 of the West Virginia Governmental Tort Claims and Insurance Reform Act. The trial court stated its intent to deny the Bridgeport Defendants’ Motion for Summary Judgment, and then restated its answer to a Certified Question that the Bridgeport Defendants were not entitled to immunity under W. Va. Code § 29-12A-5. The trial court held that the case would proceed to trial, as scheduled.
The Bridgeport Defendants then filed this Petition for a Writ of Prohibition, asking the West Virginia Supreme Court of Appeals to prohibit the Judge Marks of the Circuit Court of Harrison County from conducting any further court proceedings in this matter until the Bridgeport Defendants are dismissed as parties to the case.
The Bridgeport Defendants argue that the trial court exceeded the scope of its legitimate authority when it ruled that the case should proceed to trial without dismissing them and when it refused to dismiss the Plaintiffs’ claim for punitive damages against the Bridgeport Defendants. The Bridgeport Defendants argue that they are fully immune from the claims brought against them because they are covered by the statutory immunity from suit set forth in W. Va. Code § 29-12A-5.
The Bridgeport Defendants argue that the essence of the statutory immunity defense is that entities covered by the immunity are protected from having to litigate and defend claims at trial. They argue that, should the case be permitted to proceed to trial, the absolute immunity is forever lost, and that this constitutes an irreparable harm that cannot be remedied upon appeal. The Bridgeport Defendants further argue that the Plaintiff in the underlying case, Doug’s Towing, has failed to set forth an evidentiary record sufficient to establish that the employees of the political subdivision, Police Chief Walker and City Manager Haws, have acted maliciously, in bad faith, or wantonly and recklessly in establishing and enforcing Bridgeport’s police department towing policy, such that their actions are outside the scope of the W. Va. Code § 29-12A-5(b) immunity provision.
The Respondents argue that the relief requested by the Petitioners is an extreme form of relief, only to be granted in rare circumstances where there has been a clear abuse of power, or where the trial court has acted without jurisdiction and has exceeded the scope of its legitimate powers. They argue that neither of these instances applies to this matter, and that there are other, less extreme, forms of relief available to the Petitioners as a matter of ordinary course of judicial proceedings, including direct appeal. The Respondents argue that the Bridgeport Defendants cannot provide sufficient evidence to establish that the writ is merited, and that the Defendants have engaged in tactics to delay and stall the litigation over the past three years, and seek to do so again by filing this Petition for a Writ of Prohibition.
If the Petitioners are not granted their writ, the case will proceed to trial, permitting a lawsuit against a political subdivision to proceed, even where the political subdivision is arguably covered by the statutory immunity provided for in W. Va. Code § 29-12A-5 of the West Virginia Governmental Tort Claims and Insurance Reform Act. On the other hand, allowing the case to proceed to trial could send a message that the immunity is not intended to permit political subdivisions to engage in business practices that may unfairly favor one private company over another, or amount to a monopoly on in a particular area of business.