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State ex rel. City of Bridgeport v. Marks

State ex rel. City of Bridgeport v. Marks

Case No. 
Opinion Date: 
Opinion Author: 
Justice Loughry
Writ Granted

This case arose from the City of Bridgeport’s decision to establish an internal policy for emergency towing whereby police officers would call for towing services, via their cell phones, from the scene of a wrecked or disabled vehicle. Unless the owner of the vehicle stated a preference as to the towing company to be used, Bridgeport police officers would call Dan Riggs Towing, a towing company located within the Bridgeport city limits.

On March 7, 2011, Doug’s Towing, LLC, the Defendant in the underlying case and Respondent in this appeal, initiated this action by filing 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 argued that the City of Bridgeport was required to adopt the Harrison/Taylor County Towing Policy and Regulations, and sought to have the Court issue an order which would compel Bridgeport to adopt the County’s towing rotation list. The underlying case included allegations of negligence, civil conspiracy, tortious interference with business relationship, and an illegal monopoly in violation of antitrust laws.

Throughout the pendency of the underlying case, the Bridgeport Defendants--Petitioners in this instant matter--sought to have the case dismissed on grounds of statutory immunity. The City of Bridgeport and the Bridgeport Police Department are political subdivisions and they, along with their employees, are covered by the West Virginia Governmental Tort Claims and Insurance Reform Act, W.Va. Code 29-12A-1 et seq.  Certain provisions of W. Va. Code § 29-12A-5 provide immunities for political subdivisions.  The Bridgeport Defendants asserted that these immunities applied to them and, accordingly, they sought to be dismissed as parties to the lawsuit. The trial court repeatedly denied the Bridgeport Defendants’ dispositive motions, and ruled that they were not entitled to statutory immunity under W. Va. Code § 29-12A-5. The underlying case was scheduled to proceed to trial before Judge Marks of the Circuit Court of Harrison County. It was at this point that the Bridgeport Defendants filed a Petition for a Writ of Prohibition, asking the West Virginia Supreme Court of Appeals to prohibit Judge Marks from conducting any further court proceedings until the Bridgeport Defendants were dismissed as parties to the case. Their argument was that they were entitled to statutory immunity under W. Va. Code § 29-12A-5, and that the trial court had committed clear error in denying summary judgment in favor of the Bridgeport Defendants.


This case raises issues of statutory immunity in a case alleging that a city police department improperly gave preference to a certain towing company.


This case is one that presents questions of law and of statutory interpretation. These types of questions, as opposed to questions of a purely factual nature, are appropriate for decision by a court, rather than by a jury. The Supreme Court reviews a trial court’s decision regarding a matter of law de novo, i.e., as if the Supreme Court was deciding the issue for the first time.

The Supreme Court began with a review of the underlying claims. This led the Court to analyze whether the City of Bridgeport was required to adopt the Harrison County towing rotation list, and whether the consistent use of Dan Riggs Towing violated that statute. The Supreme Court found that the statute pertaining to county towing policies, W. Va. Code § 24-6-12, does not create an independent legal cause of action. This means that the statute requiring a county to create an emergency towing policy does not permit independently owned towing companies, such as Doug’s Towing, to seek a court order compelling a city or municipality to adopt the County’s towing policy. The Court held that the City of Bridgeport’s use of Dan Riggs Towing, in the absence of the vehicle owner’s preference, did not violate any applicable law, or any legal right of Doug’s Towing.

The Supreme Court then addressed the issue of statutory immunity under W. Va. Code § 29-12A-5. The Court held that statutory immunity did, in fact, apply to the Bridgeport Defendants for a number of reasons. First, the claims brought by Doug’s Towing arose out of allegations that the City of Bridgeport “adopt[ed] or fail[ed] to adopt a law, including, but not limited to . . . a regulation or written policy.” Claims arising from the “adoption or failure to adopt” a regulation or written policy are prohibited by the plain language of W. Va. Code § 29-12A-5(a)(4), and therefore the Bridgeport Defendants were entitled to statutory immunity under this provision.

Additionally, W. Va. Code § 29-12A-5(a)(5) provides immunity to a city, municipality, or other governmental subdivision where a claim arises from “the failure to provide, or the method of providing police, law enforcement, or fire protection.” The West Virginia Supreme Court of Appeals has previously held this immunity is extended to the decision-making process by which a governmental subdivision adopts a law enforcement policy.  Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614 (2002). Because Doug’s Towing’s claims against the City of Bridgeport challenged the City’s decision-making in adopting a towing policy, the Court held that these claims were also barred under the immunity provision of W. Va. Code § 29-12A-5(a)(5).

Therefore, Doug’s Towing’s arguments that no immunity should be granted to the Bridgeport Defendants failed under two separate provisions of the West Virginia Governmental Tort Claims and Insurance Reform Act.

The Supreme Court then addressed whether any of the exceptions to the immunity applied to the individual Bridgeport Defendants, Police Chief Walker or City Manager Haws, requiring them to remain parties to the lawsuit even if the City and the Police Department were dismissed. Generally, immunity is extended to employees of a political subdivision, but this immunity can be taken away if the individual employees are found to have acted with malicious purpose, bad faith, or in a wanton or reckless manner. The Supreme Court found no evidence of such conduct on the part of Police Chief Walker or City Manager Haws, and held that these Defendants maintained their statutory immunity.

Finally, the Supreme Court addressed the meaning of statutory immunity, asserting that it “is an immunity from suit, rather than a mere defense to liability” and that the immunity is “effectively lost if the case is erroneously permitted to proceed to trial.” The Court stated that both the clear statutory language of the West Virginia Governmental Tort Claims and Insurance Reform Act and the public policy underlying the immunities at issue mandated dismissal of the Bridgeport Defendants. The trial court erred in refusing to grant summary judgment in favor of the Bridgeport Defendants and in permitting the case to proceed to trial. Even though a writ of prohibition is a form of extraordinary relief, the Supreme Court found it to be necessary in this case, and granted the Bridgeport Defendants’ petition.


This case provides an indicator to our circuit courts how any decisions overriding immunity of a political subdivision will fare on appeal. Summary judgment, though disfavored in many areas of West Virginia law, is appropriate for deciding issues of immunity. As the Court reminded in Syllabus Point 2, “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.” (quoting, in part, Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996)). The reason for this is to avoid the very situation which arose in this case, where political subdivisions must seek extraordinary relief to maintain the statutory immunity to which they are entitled, rather than having the issues resolved early in the case.

This decision also made clear that the provisions of W. Va. Code § 24-6-12 requiring a county to establish a towing services policy do not prohibit a municipality from adopting its own towing policy that is separate and distinct from the county towing policy. No independent legal cause of action will exist for an independent party to seek a court order which compels the adoption of the county towing policy.

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