STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

STATE OF WEST VIRGINIA EX REL. FILED CITY OF BRIDGEPORT, 

Petitioner November 5, 2018 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

vs. No. 18-0457 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

HONORABLE CHRISTOPHER J. MCCARTHY, 

JUDGE OF THE CIRCUIT COURT OF HARRISON COUNTY, 

AND MICHAEL A. CRAFT,
 

Respondents 

MEMORANDUM DECISION 

The petitioner, the City of Bridgeport (“the City”), by counsel Tamara J. DeFazio, 

seeks a writ of prohibition to prevent the Circuit Court of Harrison County from 

enforcing an order entered May 18, 2018. By that order, the circuit court denied the 

City’s motion for summary judgment, concluding that the City is not entitled to immunity 

in the underlying case. Before this Court, the City argues that the statutory immunity 

provisions of the West Virginia Governmental Tort Claims and Insurance Reform Act, 

W. Va. Code § 29-12A-1 et seq., apply to preclude liability for the suit filed against the 

City by the respondent herein, Michael A. Craft (“Mr. Craft”), who is represented by 

Dino S. Colombo and Travis T. Mohler. 

This Court has considered the parties’ briefs, oral arguments, and the appendix 

record. Upon consideration of the standard for the issuance of a writ of prohibition, the 

Court finds that the City is not entitled to the extraordinary relief it herein seeks. For 

these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of 

Appellate Procedure. 

The facts of the case sub judice are not disputed by the parties. Mr. Craft and 

another gentleman were both members of the Volunteers in Police Service program 

1 
 

 

(“VIPS”) for the City of Bridgeport Police Department (“the Department”). VIPS 

members worked with the Department to provide police escorts for funerals, sporting 

events, and the like, and to maintain a police presence in the community; to accomplish 

these functions, VIPS drove the Department’s police cars. To become a VIPS member, 

individuals must complete the City’s Citizen’s Police Academy; thereafter, the new VIPS 

members are sworn in by the City’s Mayor or his/her designee. 

As VIPS, Mr. Craft and the other gentleman (“the driver”) were on a patrol, in one 

of the Department’s vehicles, on November 3, 2016. During this patrol, the driver 

crashed the vehicle into a tree. While both of the car’s occupants survived the accident, 

Mr. Craft sustained severe injuries that ultimately resulted in the amputation of his left 

leg below the knee. As members of the VIPS program, both Mr. Craft and the driver 

were subject to the provisions of the City’s Volunteers In Police Service Policy and 

Procedure Handbook (“the Handbook”). With respect to the patrols conducted by the 

VIPS, the Handbook provided that “Patrols will normally be made using an official 

vehicle, however foot patrols are authorized. Vehicular patrols will be two person 

manned unless otherwise directed.” 

Thereafter, Mr. Craft filed the instant suit against the City in the Circuit Court of 

Harrison County claiming that he was injured as a result of the negligent operation of a 

motor vehicle by an employee1

 of the City, i.e., the driver. Pursuant to W. Va. Code § 

1

For purposes of the West Virginia Governmental Tort Claims and Insurance 

Reform Act (hereinafter “the Act”), the term 

“[e]mployee” means an officer, agent, employee, or 

servant, whether compensated or not, whether full-time or 

not, who is authorized to act and is acting within the scope of 

his or her employment for a political subdivision. 

“Employee” includes any elected or appointed official of a 

political subdivision. “Employee” does not include an 

independent contractor of a political subdivision. 

W. Va. Code § 29-12A-3(a). See also W. Va. Code § 29-12A-3(d) (defining “scope of 

employment” to mean “performance by an employee acting in good faith within the 

duties of his or her office or employment or tasks lawfully assigned by a competent 

authority but does not include corruption or fraud”). The parties do not dispute that the 

driver, who was a VIPS with Mr. Craft, was an employee of the City acting within the 

scope of his employment at the time of the subject accident. Nevertheless, Mr. Craft did 

not name the driver as a defendant in his suit against the City, presumably because such 

practice is prohibited by the Act. See W. Va. Code § 29-12A-13(b) (“Suits instituted 

2 
 

29-12A-4(c)(1), and subject to certain other statutory provisions, a political subdivision is 

liable for injuries or loss resulting from the negligent operation of a motor vehicle by its 

employees while they are acting within the scope of their employment. The City 

responded by claiming that it is immune from liability under the Act pursuant to W. Va. 

Code § 29-12A-5(a)(4), which provides immunity to a political subdivision regarding the 

adoption, or failure to adopt, a rule, regulation, or other such written policy. 

Both parties then moved for summary judgment. By order entered May 18, 2018, 

the circuit court denied the City’s motion for summary judgment but did not rule on Mr. 

Craft’s motion for summary judgment. In rendering its decision, the circuit court ruled 

that “W. Va. Code § 29-12A-5(a)(4), as it concerns the City of Bridgeport’s ‘two-person’ 

VIP[S] policy, does not provide the City of Bridgeport immunity for negligent acts of its 

employees under the facts of the instant case.” Following this adverse ruling, the City 

filed the instant petition for writ of prohibition in this Court requesting that we preclude 

the circuit court from enforcing its order denying the City immunity under the facts of 

this case. 

Our consideration of the instant proceeding is guided by many principles. First, 

the City moved the circuit court for summary judgment based upon its claim that it is 

immune from suit for Mr. Craft’s injuries. With regard to immunity claims, we 

previously have recognized that 

[a]n assertion of . . . immunity should be heard and 

resolved prior to any trial because, if the claim of immunity is 

proper and valid, the very thing from which the defendant is 

immune – a trial – will absent a pretrial ruling occur and 

cannot be remedied by a later appeal. 

Hutchison v. City of Huntington, 198 W. Va. 139, 149 n.13, 479 S.E.2d 649, 659 n.13 

(1996). Accord Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 

L. Ed. 2d 411 (1985) (“The entitlement [not to stand trial] is an immunity from suit rather 

than a mere defense to liability; and like an absolute immunity, it is effectively lost if a 

case is erroneously permitted to go to trial.” (emphasis in original)); Hutchison, 198 

W. Va. at 148, 479 S.E.2d at 658 (“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 

pursuant to the provisions of this article shall name as defendant the political subdivision 

against which liability is sought to be established. In no instance may an employee of a 

political subdivision acting with the scope of his employment be named as a defendant.”). 

3 
spares the defendant from having to go forward with an inquiry into the merits of the 

case[.]” (citation omitted)). In this vein, we specifically have held that 

[t]he 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, 198 W. Va. 139, 479 S.E.2d 649. 

Next, following the circuit court’s denial of the City’s motion for summary 

judgment, the City sought prohibitory relief from this Court. We previously have held 

that 

“[p]rohibition is a preventive remedy. One seeking 

relief by prohibition in a proper case is not required, as a 

prerequisite to his right to resort to such remedy, to wait until 

the inferior court or tribunal has determined the question of 

its jurisdiction, or to wait until the inferior court or tribunal 

has taken final action in the matter in which it is proceeding 

or about to proceed.” Syl. pt. 5, State ex rel. City of 

Huntington v. Lombardo, 149 W. Va. 671, 143 S.E.2d 535 

(1965). 

Syl. pt. 3, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985). Generally, “[a] 

writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. 

It will only issue where the trial court has no jurisdiction or having such jurisdiction 

exceeds its legitimate powers.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 

W. Va. 314, 233 S.E.2d 425 (1977). The City herein does not claim that the circuit court 

lacked jurisdiction in the underlying proceedings but, rather, that the court exceeded its 

legitimate powers by finding the City is not immune from the subject suit brought against 

it by Mr. Craft. In this context, we have held as follows: 

In determining whether to entertain and issue the writ 

of prohibition for cases not involving an absence of 

jurisdiction but only where it is claimed that the lower 

tribunal exceeded its legitimate powers, this Court will 

examine five factors: (1) whether the party seeking the writ 

4 
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. These factors are general 

guidelines that serve as a useful starting point for determining 

whether a discretionary writ of prohibition should issue. 

Although all five factors need not be satisfied, it is clear that 

the third factor, the existence of clear error as a matter of law, 

should be given substantial weight. 

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 

Finally, because the pivotal issue to be decided herein involves the application of 

statutory law to the facts before us, we employ a plenary review. “Interpreting a statute 

or an administrative rule or regulation presents a purely legal question subject to de novo 

review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 

W. Va. 573, 466 S.E.2d 424 (1995). 

 The case sub judice is before this Court upon the City’s petition for a writ of 

prohibition in which the City seeks to prevent the circuit court from enforcing its 

summary judgment order rejecting the City’s immunity claim. In essence, the City 

argues that it is entitled to immunity under W. Va. Code § 29-12A-5(a)(4) because Mr. 

Craft would not have been riding in the subject vehicle, been involved in the ensuing 

motor vehicle accident, and sustained his injuries had it not been for the City’s adoption 

of its policy requiring VIPS to have two people in the vehicle during patrols. The City 

additionally argues that the circuit court erred by failing to include sufficient findings of 

fact in its order denying the City’s motion for summary judgment. Finally, the City 

contends that this case is proper for extraordinary relief insofar as the protections 

afforded to a political subdivision through immunity contemplate sparing it from the 

burden of undergoing a trial. 

By contrast, Mr. Craft argues that he is not basing his claim for relief upon the 

City’s adoption of the VIPS patrol policy, but, rather, upon the driver’s negligent 

operation of a motor vehicle while he was an employee of the City as contemplated by 

W. Va. Code § 29-12A-4(c)(1). Moreover, Mr. Craft disputes the City’s suggestion that 

5 
 

the circuit court’s order was factually insufficient insofar as the order considers the 

parties’ arguments and provides the basis for the circuit court’s ruling. 

At issue herein is the construction to be afforded to the two statutory provisions 

upon which the parties rely: W. Va. Code § 29-12A-4(c)(1) and W. Va. Code § 29-12A5(a)(4). Before reaching the statutory language at issue and the parties’ arguments with 

regard thereto, it first is necessary to consider the rules that govern our review of statutes. 

Our canons of statutory construction require us to look first to the statute’s language to 

determine the legislative intent. Thus, “[t]he primary object in construing a statute is to 

ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State 

Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). We next consider 

the clarity of the legislative intent and whether the language employed by the Legislature 

is plain. “[I]f the legislative intent is clearly expressed in the statute, this Court is not at 

liberty to construe the statutory provision[.]” Dan’s Carworld, LLC v. Serian, 223 

W. Va. 478, 484, 677 S.E.2d 914, 920 (2009). Accord Syl. pt. 1, Dunlap v. State Comp. 

Dir., 149 W. Va. 266, 140 S.E.2d 448 (1965) (“Where the language of a statute is plain 

and unambiguous, there is no basis for application of rules of statutory construction; but 

courts must apply the statute according to the legislative intent plainly expressed 

therein.”). Furthermore, “[a] statutory provision which is clear and unambiguous and 

plainly expresses the legislative intent will not be interpreted by the courts but will be 

given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 

(1951). Accord Syl. pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970) 

(“Where the language of a statute is free from ambiguity, its plain meaning is to be 

accepted and applied without resort to interpretation.”); Syl. pt. 5, State v. General Daniel 

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 

(1959) (“When a statute is clear and unambiguous and the legislative intent is plain, the 

statute should not be interpreted by the courts, and in such case it is the duty of the courts 

not to construe but to apply the statute.”). We now turn to the statutes controlling our 

decision of the instant proceeding. 

The West Virginia Governmental Tort Claims and Insurance Reform Act (“the 

Act”), W. Va. Code § 29-12A-1 et seq., of which the statutes at issue herein are a part, 

has as “[i]ts purposes . . . to limit liability of political subdivisions and provide immunity 

to political subdivisions in certain instances and to regulate the costs and coverage of 

insurance available to political subdivisions for such liability.” W. Va. Code § 29-12A-1. 

The City is a political subdivision within the definition of the Act, and, as such, the City 

is entitled to the protections of the Act. See W. Va. Code § 29-12A-3(c) (defining 

“political subdivision” to include “any . . . municipality”). See also W. Va. Code § 29-

12A-3(b) (defining “municipality” as “any incorporated city, town or village and all 

institutions, agencies or instrumentalities of a municipality”). 

6 
 

Despite the Act’s limitation of a political subdivision’s liability, W. Va. Code 

§ 29-12A-4(c)(1), upon which Mr. Craft bases his claim for relief, provides that, 

[s]ubject to sections five [§ 29-12A-5]2

 and six [§ 29-

12A-6]3

 of this article, a political subdivision is liable in 

damages in a civil action for injury, death, or loss to persons 

or property allegedly caused by an act or omission of the 

political subdivision or of any of its employees in connection 

with a governmental or proprietary function, as follows: 

(1) Except as otherwise provided in this article, 

political subdivisions are liable for injury, death, or loss to 

persons or property caused by the negligent operation of any 

vehicle by their employees when the employees are engaged 

within the scope of their employment and authority. 

(Footnotes added). We find this statutory language to be plain, and, thus, not subject to 

further interpretation as to its meaning. Before we can determine whether the circuit 

court properly applied this provision to the facts of the case sub judice, however, we also 

must consider the immunity afforded by W. Va. Code § 29-12A-5(a)(4), upon which the 

City bases its claim for relief. 

As noted above, the liability imposed by W. Va. Code § 29-12A-4(c)(1) is limited 

by the immunity afforded by W. Va. Code § 29-12A-5(a)(4). Specifically, W. Va. Code 

§ 29-12A-5(a)(4) provides that “[a] political subdivision is immune from liability if a loss 

or claim results from . . . [a]doption or failure to adopt a law, including, but not limited 

to, any statute, charter provision, ordinance, resolution, rule, regulation or written 

policy[.]” We likewise find this statutory language to be plain and in need of no further 

interpretation. Having determined that the meaning of both statutory provisions at issue 

herein is plain, we proceed to consider the parties’ arguments with respect to these 

statutes. 

2

W. Va. Code § 29-12A-5 recognizes instances in which a political subdivision is 

immune from liability. 

3

W. Va. Code § 29-12A-6 refers to “limitation of actions” under the Act, i.e., the 

time periods within which suit must be filed against a political subdivision thereunder. 

7 
 

Applying both of these statutory provisions to the case sub judice, we conclude 

that the circuit court did not err when it determined that the City is not immune from Mr. 

Craft’s suit. While the City is correct that immunity is afforded to it when the claim for 

liability is based upon its adoption, or failure to adopt, a policy, regulation, or the like, the 

City is not entitled to immunity when no such claim invoking its rule-making authority 

has been made against it. Here, Mr. Craft did not base his lawsuit against the City on its 

adoption of the VIPS policy that requires vehicular patrols to have two people in the car; 

in fact, he did not even reference this policy in his complaint. Rather, Mr. Craft based his 

claim against the City on the premise that the City is liable for injuries caused by the 

negligent operation of a motor vehicle by its employees who are engaged in the scope of 

their employment pursuant to W. Va. Code § 29-12A-4(c)(1).4 In this regard, Mr. Craft 

averred that, 

[p]ursuant to W. Va. Code § 29-12A-4(c)(1), 

Defendant City of Bridgeport is liable to the Plaintiff [Mr. 

Craft] for the injuries, losses, and damages caused by the acts 

and omissions of [the driver] as an “employee” of the 

political subdivision pursuant to W. Va. Code § 29-12A-3, 

and specifically for the injuries, losses, and damages caused 

by the negligent operation of the subject SUV by [the driver] 

within the scope and authority of his employment. 

Thus, it is abundantly clear that Mr. Craft is not alleging that he was injured as a result of 

the City’s adoption of the subject VIPS vehicular patrol policy, but, rather, because the 

driver, who was an employee of the City acting in the scope of his employment, 

negligently operated a motor vehicle. As such, the City is potentially liable for Mr. 

Craft’s injuries pursuant to W. Va. Code § 29-12A-4(c)(1) and is not entitled to the 

immunity afforded by W. Va. Code § 29-12A-5(a)(4). Accordingly, we find that the 

circuit court did not err in finding the City is not immune from the claims asserted against 

it by Mr. Craft. Furthermore, we conclude that the circuit court set forth sufficient 

findings of fact in its order to support such ruling. Therefore, for the foregoing reasons, 

the writ of prohibition requested by the City to prohibit the enforcement of the circuit 

court’s order is hereby denied. 

4

Mr. Craft also based his claim for relief on the driver’s violation of various safety 

statutes which are not at issue in the instant proceeding. See generally W. Va. Code § 

17C-6-1(a) (limiting vehicle speed) and W. Va. Code § 17C-7-9 (imposing rules for 

driving on laned roads). 

8 
Writ Denied. 

ISSUED: November 5, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Paul T. Farrell, sitting by temporary assignment 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Allen H. Loughry II, suspended and therefore not participating 

9