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Cochran v. River Road Public Service District

Supreme Court of Appeals of West Virginia

November 7, 2019

Jerry L. Cochran, Plaintiff Below, Petitioner
v.
River Road Public Service District, a public corporation and political subdivision, Defendant Below, Respondent

          Monongalia County, 17-C-430

          MEMORANDUM DECISION

         A water line and pipe running to Petitioner Jerry Cochran's[1] (Mr. Cochran) home sprang a leak in 2013. Mr. Cochran asked Respondent River Road Public Service District[2](the District) to fix the water line and pipe and relocate his water meter. The District refused to approve Mr. Cochran's requests, so he repaired the line and pipe himself. He sued the District in 2017, alleging that it negligently, intentionally, and unlawfully refused his requests to repair the line and pipe and move the meter. The District moved for summary judgment of Mr. Cochran's claims, arguing that it did not have a duty to repair the line and pipe and that it was statutorily immune from liability. The circuit court granted summary judgment to the District, and Mr. Cochran now appeals.

         Upon consideration of the standard of review, the briefs, the record presented, and oral argument, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

         I. Facts and Procedural History

         Mr. Cochran sued the District in the Circuit Court of Monongalia County in November 2017. He alleged that the District provided public water service to his house via a water line and pipe (the water line)[3] that crossed underneath a nearby road. He also alleged that the water line sprang a substantial leak in July 2013 and that he asked the District to repair the leak and move his water meter to the side of the roadway closest to his property. The District refused, he claims, and told him that he was responsible for repairs to the water line and relocation of the meter.

         Mr. Cochran alleged that the District owed him a duty under the Rules for the Government of Water Utilities, W.Va. C.S.R. §§ 150-7-5.3.1 and 150-7-4, effective May 8, 2011 (Rules for Water Utilities) to repair the water line and to move the meter, which it breached-negligently, intentionally, and unlawfully-by refusing to approve those requests.[4] Mr. Cochran claimed that the District violated a special duty of care to perform a nondiscretionary governmental function when it unlawfully and negligently denied his requests. He contended that the District's failure to approve his requests forced him to expend time, energy, and money to repair the water line and deprived him of water for a substantial period of time. He demanded compensatory damages, pre- and post-judgment interest, and attorney's fees from the District.

         As Mr. Cochran acknowledged in his complaint, he and the District had wrangled over the water line and the 2013 leak before. In October 2013, Mr. Cochran filed a complaint with the Public Service Commission of West Virginia (the Commission) against the District that contained claims similar to those in his 2017 civil complaint.[5] Mr. Cochran and the District settled those claims in December 2013. Under that settlement, he agreed to pay a $350 tap fee and the District agreed to relocate the meter as he had requested. The District also agreed to take over the water line from the old meter location to the new meter location after Mr. Cochran conveyed the line to the District.

         While Mr. Cochran's 2017 civil complaint against the District did not make reference to the 2013 settlement of his Commission complaint, the District brought it to the circuit court's attention in a December 2017 "Motion to Dismiss Complaint or, in the Alternative, Motion for Summary Judgment." In addition to seeking dismissal of Mr. Cochran's complaint on grounds of judicial estoppel and res judicata, the District argued that the Rules for Water Utilities did not impose a duty upon it to repair the water line and that, even if those regulations did, it was immune from liability for Mr. Cochran's claims under the West Virginia Governmental Tort Claims Act (the Act).[6]

         In response, Mr. Cochran emphasized the allegations in his complaint and what he believed to be genuine issues of material fact. Mr. Cochran also responded to the District's immunity argument. He highlighted a portion of the Act that he argued exempted his claims from its effect as well as his allegation that the District owed him a special duty. Finally, Mr. Cochran argued that neither judicial estoppel nor res judicata barred his claims against the District.

         The circuit court granted the District's motion on March 9, 2018. The court found that under the applicable Rules for Water Utilities, Mr. Cochran was responsible for the repairs to the water line, the District was under no duty to repair it, and his negligence claim failed. The circuit court then found that Mr. Cochran was trying to "relitigate the same issues he alleged in his complaint to [the Commission] that were addressed and compromised," and that he could not pursue damages "that he agreed to forego under the terms of his agreement with the [District]" by way of a civil suit. The court granted the District's motion and ordered the case removed from its active docket. This appeal followed.

         II. Standard of Review

         "A circuit court's entry of summary judgment is reviewed de novo."[7] So, we apply the same standard on appeal as the circuit court applied. This means that we will affirm the circuit court's grant of summary judgment to the District "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [the District] is entitled to a judgment as a matter of law."[8]

          III. Discussion

         Mr. Cochran argues that the circuit court prematurely granted summary judgment to the District. He claims that the circuit court ignored several disputed issues of material fact, including whether the leaking water line was located on his own property or in the District's utility right-of-way, whether the water line was a long service line that he owned or a utility service line owned by the District, and the location of the leak in relation to his point of service. Those disputed facts are material, Mr. Cochran claims, because they bear on whether the District owed Mr. Cochran a legal duty to repair the leak under the Rules for Water Utilities.[9] He also argues that his 2013 settlement with the District before the Commission does not bar his claims in this case.

         The District responds that the circuit court did not make erroneous findings of fact in its March 9, 2018 order. Instead, the District contends that the circuit court properly relied on Mr. Cochran's admissions in the Commission proceeding to find that he is estopped from taking a position inconsistent with those admissions or the parties' settlement of Mr. Cochran's Commission case. The District asserts that the circuit court correctly applied the 2003 and 2011 Rules for Water Utilities to Mr. Cochran's earlier admissions to find that he, and not the District, was responsible to repair the leaking water line. The District also argues that it is immune from liability for Mr. Cochran's alleged damages under the Act.

         While the circuit court did not address statutory immunity in its final order, the parties briefed and argued the issue extensively, below. And, as we have previously noted, "it is permissible for us to affirm the granting of summary judgment on bases different or grounds other than those relied upon by the circuit court."[10] In this particular case, statutory immunity is not an issue raised by the District for the first time on appeal and consideration of it does not place either party at a disadvantage.[11] So, we may consider the District's statutory immunity argument and, indeed, affirm the circuit court's order on that basis.

          A. Mr. Cochran's Intentional Tort Claim

         Mr. Cochran claims that the District intentionally breached its duty under the 2011 Rules for Water Utilities to approve his request to repair the water line. We previously examined an intentional tort claim made against a public service district in Zirkle v. Elkins Road Public Service District.[12] There, Mr. Zirkle alleged that the Elkins Road Public Service District (PSD) intentionally denied his request to extend water service to his home when it erroneously concluded that his home was outside the PSD service area.[13]Undeterred, Mr. Zirkle continued to request service from the PSD, satisfying each precondition to service it imposed.[14] The PSD still denied Mr. Zirkle's requests. He complained to the Commission and it ordered the PSD to extend a service line to his home.[15]

         Mr. Zirkle filed a civil suit against the PSD "basically for what [he] perceived as all the hassle he incurred in securing water service to his residence."[16] The circuit court found that Mr. Zirkle had not alleged anything other than intentional acts by the PSD and dismissed the claim.[17]

         On appeal, this Court applied the plain language of West Virginia Code § 29-12A-4(b)(1) (2018) to affirm the dismissal of Mr. Zirkle's intentional tort claim against the PSD. That statute states:

Except as provided in subsection (c) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. . . [18]

         As we explained in Zirkle, § 29-12A-4(b)(1)

suggests that political subdivisions, public service districts included, are not liable for any acts with respect to both governmental and proprietary functions unless the acts complained of come within the specific liability provisions of W.Va.Code, 29-12A-4 (c). In creating the general grant of immunity, in W.Va.Code, 29-12A-4(b)(1), the Legislature did not distinguish between intentional or unintentional acts, but instead used the term "any" as an adjective modifying "act or omission." To eliminate doubt regarding whether the Legislature intended to include immunity for intentional acts, we need to consider our holding in Syllabus Point 2 of Thomas v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d 905 (1980). In Thomas we held that "[t]he word 'any', when used in a statute, should be construed to mean any." We therefore conclude that claims of intentional and malicious acts are included in the general grant of immunity in W.Va.Code, 29-12A-4(b)(1). Only claims of negligence specified in W.Va.Code, 29-12A-4(c) can survive immunity from liability under the general grant of immunity in W.Va.Code, 29-12A-4(b)(1).[19]

         Applying that rationale here, we conclude that § 29-12A-4(b)(1) immunizes the District from liability for Mr. Cochran's intentional tort claim. That statute provides that "political subdivisions, public service districts included, are not liable for any acts with respect to both governmental and proprietary functions unless the acts complained of come within the specific liability provisions of W.Va.Code, 29-12A-4 (c)."[20] Mr. Cochran's claim that the District intentionally breached its duty under Commission regulations to repair the water line and move the meter does not fall within any of the specific liability provisions found in West Virginia Code § 29-12A-4(c)(1) to (4) (2018).[21] Each of those provisions imposes liability upon political subdivisions for negligent acts, not intentional ones. So, Mr. Cochran's intentional tort claim cannot survive the general grant of immunity in § 29-12A-4(b)(1), as a matter of law. For that reason, we affirm the circuit court's dismissal of Mr. Cochran's claim that the District intentionally breached a duty to repair the water line and move the meter.

         B. Mr. Cochran's Negligence Claim

         We turn next to Mr. Cochran's negligence claim. He contends that § 29-12A-4(c)(2) shields that claim from the general grant of immunity found in § 29-12A-4(b)(1). Section 29-12A-4(c)(2) states:

(c) Subject to sections five [§ 29-12A-5] and six [§ 29-12A-6] 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: . . . (2) Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.

         Under its plain terms, § 29-12A-4(c) is subject to West Virginia Code § 29-12A-5 (2018). So, even if a political subdivision is subject to civil damages under § 29-12A-4(c), that liability ...


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