Rocco S. Fucillo v. Cynthia Kerner
744 S.E.2d 305
W. Va.2013Background
- West Virginia Supreme Court reverses Kanawha County circuit court on 12(b)(6) dismissal; six child-support obligees sue on behalf of children for damages due to failure to reduce arrearages to judgment or renew judgments; claims include tort theories: breach of statutory duty, negligence, breach of fiduciary duty, breach of trust, and fraud.
- Defendants are state agencies and contractor: DHHR, SEC, BCSE, PSI, plus the Secretary of DHHR and the Commissioner of BCSE in official capacity.
- Issue is whether WV Code §48-19-103(f) creates a private damages action against state entities/contractors for failure to enforce support orders.
- Court applies Hurley four-part test to implied private actions and concludes there is no private action; legislative intent, explicit disclaimer in §48-18-110(b), and the policy goals of the child support laws support immunity of state actors.
- Court reverses circuit court and remands with directions to dismiss the respondents’ complaint as having no private cause of action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §48-19-103(f) create a private action? | Respondents argue a private damages action exists. | Petitioners contend no private action; Legislature disclaims duties to obligees. | No private action exists. |
| Does Hurley four-part test support implied private action here? | Hurley should show an implied action for obligees. | Hurley prongs show no private action; legislative intent against it. | Hurley test fails to establish an implied private action. |
| Is the private action barred by legislative intent and 48-18-110(b)? | Legislature intended remedy for obligees may exist. | Statutes show the State represents the State, not obligees; no duty owed. | Legislative intent bars private action. |
Key Cases Cited
- Jarvis v. W. Va. State Police, 227 W. Va. 472, 711 S.E.2d 542 (2010) (interlocutory appeal when part of order involves qualified immunity)
- State ex rel. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995) (denial of 12(b)(6) generally not immediately appealable)
- Cantley v. Lincoln Cnty. Com’n, 221 W. Va. 468, 655 S.E.2d 490 (2007) (standard for reviewing sufficiency of a complaint on motion to dismiss)
- Hurley v. Allied Chem. Corp., 164 W. Va. 268, 262 S.E.2d 757 (1980) (test for implied private action from statute (Hurley test))
- Shaffer v. Acme Limestone Co., 206 W. Va. 333, 524 S.E.2d 688 (1999) (private action for improper withholding funds under specific statute)
- Durham v. Jenkins, 229 W. Va. 669, 735 S.E.2d 266 (2012) (statutory action not implied where language shows criminal nature unless civil remedy provided)