Eldercare of Jackson Cty. v. Lambert

902 S.E.2d 840

ELDERCARE OF JACKSON COUNTY, LLC, d/b/a Eldercare Health and Rehabilitation, a Tennessee company; Community Health Association, d/b/a Jackson General Hospital, a West Virginia corporation; and Irvin John Snyder, D.O., Defendants Below/Petitioners,

v.Rosemary LAMBERT and Carolyn Hinzman, Individually, and as Co-Executors of the Estate of Delmar P. Fields, Plaintiffs Below/Respondents.

No. 22-0362

Supreme Court of Appeals of West Virginia.

Submitted: January 10, 2024

Filed: June 12, 2024

Syllabus by the Court

1. "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 Dept. of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995).

2. " ‘The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)." Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977).

3. "The 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).

4. "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).

5. "It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Syl. Pt. 11, Brooke B. v. Ray C., 230 W. Va. 355, 738 S.E.2d 21 (2013).

6. West Virginia Code § 55-19-7 (2021) of the COVID-19 Jobs Protection Act provides that the limitations on liability specified in the Art "shall not apply to any person, or employee or agent thereof, who engaged in intentional conduct with actual malice." Proof of actual malice requires evidence that the person, or employee or agent acted with the deliberate intent to commit an injury, as evidenced by external circumstances.

Appeal from the Circuit Court of Jackson County, The Honorable Lora A. Dyer Judge, Civil Action No. 21-C-32

Mark A. Robinson, Esq., Flaherty Sensabaugh Bonasso, PLLC, Charleston, West Virginia, Counsel for Eldereare of Jackson County, LLC, d/b/a Eldercare Health and Rehabilitation

Jace H. Goins, Esq., Christopher S. Etheredge, Esq., Steptoe & Johnson, PLLC, Charleston, West Virginia, Counsel for Community Health Association d/b/a Jackson General Hospital and Irvin John Snyder, D.O.

Salem C. Smith, Esq., Shereen Compton McDaniel, Esq., Flaherty Sensabaugh Bonasso, PLLC, Charleston, West Virginia, CoCounsel for Irvin John Snyder, D.O.

Kelly Elswick-Hall, Esq., The Masters Law Firm L.C., Charleston, West Virginia, Counsel for Respondents

HUTCHISON, Justice:

In this appeal, Petitioners Eldercare of Jackson County, LLC, d/b/a Eldercare Health and Rehabilitation; Community Health Association, d/b/a Jackson General Hospital; and Irvin John Snyder, D.O. seek the reversal of an order of the Circuit Court of Jackson County denying their respective motions to dismiss the complaint filed by Respondents Rosemary Lambert and Carolyn Hinzman following the death of their father, Delmer P. Fields. Mr. Fields contracted COVID-19 while a resident at Eldereare and died while under the care of Jackson General and Dr. Snyder.¹ Petitioners contend that they are immune from liability for Mr. Fields’s death under the COVID-19 Jobs Protection Act (also referred to as "the Art"), West Virginia Code §§ 55-19-1 through 9 (2021), and hence, respondents failed to state a claim upon which relief can be granted.² We conclude that the factual allegations in respondents’ complaint sufficiently pled that Eldercare engaged in "intentional conduct with actual malice" in connection with Mr. Fields’s death from COVID-19. See W. Va. Code § 55-19-7. Such intentional and malicious misconduct is specifically excepted from the limitations on liability afforded under the Act. See id. Therefore, we affirm the circuit court’s order denying Eldercare’s motion to dismiss. However, we reverse the circuit court’s order insofar as it denied the motion to dismiss filed jointly by Jackson General Hospital and Dr. Snyder, as the factual allegations against these parties were insufficient to establish that the statutory exception to the limitations on liability afforded under the COVID-19 Jobs Protection Act applies.

I. Factual and Procedural Background

[1] At this stage of the proceedings, we are required to accept as true the factual allegations of the complaint. As we have often instructed, "Since the preference is to decide cases on their merits, courts presented with a motion to dismiss for failure to state a claim construe the complaint in the light most favorable to the plaintiff, taking all allegations as true." Sedlock v. Moyle, 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008) (citing John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 604-05, 245 S.E.2d 157, 158-59 (1978)). Accordingly, our recitation of the relevant facts is derived from the allegations as presented by respondents in their complaint.

Respondents allege that Eldercare has a history of failing to establish and maintain an effective infection control policy at its facility. In August of 2019, Eldercare experienced an outbreak of "an unknown respiratory illness resembling the flu." Eldercare did not report the outbreak to the Jackson County Health Department until after inspectors arrived at the facility for a surprise inspection. Further, according to an August 21, 2019, report, Eldercare "was cited 17 times for health violations" – which is "five more violations than the average number of citations for West Virginia nursing homes and 8.8 more than the U.S. average." The report noted that Eldercare’s deficient infection control practice could potentially affect all residents living at the facility. According to the complaint, Eldercare was also frequently understaffed, with only one or two certified nursing assistants (CNAs) caring for twenty to twenty-eight residents (or more) at a time even though four CNAs and a charge nurse were required to be on each hall of the facility. During the five years preceding the events described in the complaint, Eldercare was required to have five nurses on site but it was "lucky if [it] had two."

The complaint alleges that, since at least February 2020, not long after the August 2019 report was issued, petitioners "were on high-alert for COVID-19." Eldercare advised its employees that they would be notified of any COVID-positive cases at the facility "for the protection of residents and staff." However, respondents allege that, contrary to these assurances, when residents began running fevers and showing other symptoms of COVID-19, such as coughing or breathing problems, Eldercare management informed employees that "the symptoms were just the flu and not COVID." For example, in March of 2020, when a certain Eldercare resident died after developing "a really high fever," Eldercare management did not inform staff as to whether the deceased resident had tested positive for COVID-19; however, soon after that, staff was given one paper surgical mask and told to wear it when entering a resident’s room. Staff was not told whether to wear the mask in the common areas or dining room.

Respondents’ complaint further alleges that, in the two weeks preceding April 9, 2020, multiple Eldercare residents became ill. Although Eldercare was a 120-bed facility with only eighty-six residents, sick residents continued to remain in their rooms with other residents. Only when the unwell resident developed severe symptoms did Eldercare staff move the other resident out of the room. The other resident would then be moved to another room with another resident "where the same thing would happen" all over again. Respondents contend that ailing residents were not tested for COVID-19 even when they showed symptoms of COVID, because Eldercare "did not want to know [the residents] were [COVID] positive. During this time frame, at least two or three residents died. Petitioner Eldercare claimed to staff that the deaths were not due to COVID."

When an Eldercare employee reportedly asked management whether the ill patients had contracted COVID, Eldercare Administrator Todd Kimball responded, "[I]t’s not COVID, it’s not the plague, you’re not going to catch it." Though employees were eventually issued surgical masks, "Eldercare did not tell employees caring for residents who[,] or that anyone was[,] positive" for COVID-19.

During this same time, after an Eldercare employee cared for an obviously sick resident for approximately seven hours, the employee was advised by Eldercare that the resident was COVID-19 positive. Even though Eldercare either knew or suspected that the resident was COVID positive, respondents allege that it "intentionally never told the employee." The Eldercare employee assumed that, for her own safety and the safety of Eldercare residents, she would need to quarantine after being exposed to COVID-19. The employee contacted her immediate supervisor who later related to the employee that the employee was not to quarantine, and that administrator Kimball was "accepting [the employee’s] resignation." The employee had cared for the ill resident for the two weeks prior and, unknowingly, cared for other COVID -positive residents during that time. The employee obtained a COVID test on her own and tested positive. She contracted COVID-19 at Eldercare.

Without disclosing that residents had tested positive...