Julia Moses, Administratrix v. City of Moundsville, 16-0680

Richard Moses, a City of Moundsville sanitation worker, was struck by a tree while working on May 17, 2013, and later died from his injuries.
Julia Moses (wife and administratrix) sued the City alleging deliberate intent under W. Va. Code § 23-4-2(d)(2)(ii) and wrongful death.
The City moved to dismiss under Rule 12(b)(6), asserting governmental immunity under the Governmental Tort Claims and Insurance Reform Act.
Plaintiff had received workers’ compensation benefits for the decedent’s death and did not dispute the City is a political subdivision.
Plaintiff argued the City waived immunity by purchasing liability insurance and sought recovery under the policy limits rather than from state funds.
The circuit court granted partial dismissal, holding the City immune under W. Va. Code § 29-12A-5(a)(11); the Supreme Court affirmed by memorandum decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City waived statutory immunity by purchasing liability insurance and plaintiff’s suit seeks only recovery under the policy limits	Moses: Bender allows a political subdivision to waive Act immunity via purchased insurance; recovery is limited to insurer funds, not state funds, so immunity should be waived	City: W. Va. Code § 29-12A-5(a)(11) bars liability where claim is covered by workers’ compensation or employer’s liability law; the policy does not waive statutory immunity	Court: Affirmed dismissal — statute unambiguously provides immunity where workers’ compensation covers the claim; the insurance policy did not effect a waiver

Shaffer v. Charleston Area Med. Ctr., 199 W. Va. 428 (1997) (standard of appellate review for Rule 12(b)(6) dismissals)
Kessel v. Leavitt, 204 W. Va. 95 (1998) (de novo review statement cited)
Bender v. Glendenning, 219 W. Va. 174 (2006) (per curiam decision referenced by plaintiff re: insurance and waiver)
Brooks v. City of Weirton, 202 W. Va. 246 (1998) (syllabus holding political subdivisions immune where claim covered by workers’ compensation)
Zelenka v. City of Weirton, 208 W. Va. 243 (2000) (reaffirming Brooks and statutory immunity under § 29-12A-5(a)(11))
State v. McKinley, 234 W. Va. 143 (2014) (discussion of precedential value of signed opinions vs. per curiam decisions)