ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. KLINGHOFFER
Supreme Court of Appeals of West Virginia
497 S.E.2d 778
The verb “to live,” in the sense of to live with someone in their home is defined as follows: “to occupy a home: dwell, reside” Webster‘s Third New International Dictionary 1323 (3d Ed.1986). The synonym “reside” is defined as “to settle oneself or thing in a place; to be stationed; remain; stay.” Id. at 1931. These definitions indicate that the concept of living with someone contemplates, at a minimum, some consistent, personal contact with that person‘s home. Ocсasional, sporadic, and temporary contacts are insufficient.
In the St. Paul Fire case the court found that Mr. Klinghoffer maintained a separate, two-bedroom apartment with a roommate, and apparently slept in the apartment most of the time, and this factor apparently persuaded the court that Mr. Klinghoffer did not “live with” his father even though he did maintain a separate room at his father‘s house and shared family meals on occasion. Further, the overall impression derived from the facts of the opinion is that Mr. Klinghoffer, although he ate at his father‘s home, spent the greater portion of his time in the separate apartment.
The evidence as developed during discovery in the present case showed that the appellant‘s daughter, Rouchell Adams, although she maintained a room at the appellant‘s house and visited there frequently, rented a trailer in Maidsville, West Virginia, under a one-year lease, and that she also had a full-time job in Morgantown, West Virginia. It appears that she spent most of her time in West Virginia and that a boyfriend shared the trailer with her. She also paid personal property taxes in West Virginia, maintained her car registration in West Virginia, and had, prior to her death, changed her driver‘s license from Pennsylvania to West Virginia.
In this Court‘s view the evidence in the present case is, as the appellant suggests, similar to that in the St. Paul Fire and Marine Insurance Company case. In that case, however, the Court held that under Pennsylvania law the decedent did not “live with” his father in Pennsylvania. Likewise, the Court believes that, given the indisputable facts of the present case, which show that the appellant‘s deceаsed spent substantial time in West Virginia, earned an income in West Virginia, paid taxes and had her vehicle registration and driver‘s license in West Virginia, and maintained all the elements of a separate residence in West Virginia, the trial court properly concluded that she “lived in” West Virginia and that her contact with the appellant‘s home was of the “temporary” nature which, under Pennsylvania law, would preclude a finding that she lived there.
Additionally, the Court cannot see how further development of the evidence would alter this conсlusion. In essence, after conducting a de novo review, this Court cannot conclude that there was a genuine issue of material fact, or that further inquiry concerning the facts was desirable, or that the trial court erred in ruling that the appellant‘s daughter was not covered by the appellant‘s insurance policies.
For the reasons stated, the judgment of the Circuit Court of Kanawha County is affirmed.
Affirmed.
The BOARD OF EDUCATION OF THE COUNTY OF WOOD, a West Virginia Statutory Corporation, Plaintiff Below, Appellee, v. William JOHNSON, Defendant Below, Appellant.
No. 23968.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 10, 1997. Decided Nov. 21, 1997.
497 S.E.2d 778
Dissenting Opinion of Chief Justice Workman Dec. 9, 1997.
Dean A. Furner, Spilman, Thomas & Battle, Parkersburg, for Appellee.
PER CURIAM:1
This case is before this Court upon an appeal from the final order of the Circuit Court of Wood County, West Virginia, entered on June 28, 1996. The appellant, William Johnson, a school bus operator with approximately eighteen years of employment with the appellee, the Board of Education of the County of Wood, was terminated from his employment for allegedly smoking a cigarette while transporting students to school. As reflected in the final order, although the West Virginia Education and State Employees Grievance Board held that the charge against the appellant had not been proven, the circuit court disagreed and upheld the termination.
This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. We note that, rather than involving questions of law or procedure, this matter concerns, in its entirety, a consideration of the evidence submitted at the administrative level, and, in particular, the testimony adduced during the levеl IV hearing before the administrative law judge. In that context, this Court has conducted a thorough examination of the record and concludes, for the reasons stated below, that the circuit court committed error in reversing the West Virginia Education and State Em
I
The appellant, a school bus operator, was hired by the appellee in 1977. On October 11, 1995, Blaine Auvil, the Assistant Transportation Director for the appellee, received a telephone call from a motorist stating that she had observed the appellant smoking a cigarette that morning while the appellant was transporting students to school. In particular, the motorist indicated that she had observed the appellant smoking while she and the appellant were driving their respective vehicles in the same direction on Grand Central Avenue in the Parkersburg, West Virginia, area. Following the call, Mr. Auvil inspеcted the appellant‘s bus, which was then parked in a garage maintained by the appellee, and discovered what appeared to be cigarette ashes on the floor between the driver‘s window and the driver‘s seat. When confronted by Mr. Auvil and Michael Falck, the Transportation Director for the appellee, the appellant denied the allegation.
The incident of October 11, 1995, occurred during the 1995-1996 school year, and prior thereto both the State of West Virginia and Wood County had adopted non-smоking policies applicable to school personnel. The State policy, reflected in West Virginia State Board of Education Policy No. 2422.5A, prohibited “the use of tobacco products” by school personnel. More specifically, Wood County Board of Education Policy No. 5114.10 stated:
[I]t is the policy of the Wood County Board of Education to prohibit the use of all tobacco and tobacco products in all school buildings, on school grounds, or any motorized vehicle used for school activities. School personnel are further prohibited from using tobacco products in the presence of students while engaging in any school related activity involving students.... Employees who violate this policy shall be subject to discipline as circumstances warrant, including written /oral reprimands, notation upon evaluation, suspension or dismissal.
On October 13, 1995, the appellant was suspended from his employment pending an investigation of the incident, and on October 24, 1995, an evidentiary hearing was conducted by the appellee. Following the hearing, the appellee voted to terminate the appellant‘s employment. Thereafter, in December 1995, as a part of the grievance process before the West Virginia Education and State Employees Grievance Board,
During the level IV hearing, the motorist, called as a witness by the appellee, testified that she was certain that she saw the appellant smoking a cigarette on Grand Central Avenue while the appellant was transporting students to school. Moreover, the evidence of the appellee included the fact that, in 1992, the appellant was disciplined for a similar transgression concerning the transporting of students. As a result of the 1992 disciplinary action, the appellant was placed upon a “perpetual improvement plan” by the appellee for the cessation of smoking.
On the other hand, during the level IV hearing, as well as during the hearing of October 24, 1995, the appellant denied smoking on the bus while transporting students. Rathеr, the appellant maintained that, while driving on Grand Central Avenue on October 11, 1995, he was apparently seen by the motorist with a white ball point pen in his mouth. According to the appellant, he was making notes with the pen, at various traffic lights along the route, concerning evidence of vandalism to the bus he had recently discovered. With regard to the ashes found by Mr. Auvil, the appellant stated that he had driven the bus to his residence the day before, October 10, 1995, and had smoked a cigarette while cleaning the bus at that location. As the appellant asserted, he had probably dropped ashes in the bus at that time.2
In a twenty-four page opinion dated March 28, 1996, the administrative law judge of the West Virginia Education and State Employees Grievance Board held that the charge against the appellant had not been proven. Accordingly, the appellee was directed to reinstate the appellant to his employment, with lost wages, benefits and seniority. Specifically, indicating that the motorist had only “fleeting glimpses” of the appellant on October 11, 1995, and that the motorist “could have understandably mistaken a white pen in Grievant‘s mouth for a cigarette,” the administrative law judge found that the motorist‘s testimony was “not entirely reliable.” Furthermore, the administrative law judge found: “Two students who wеre aboard the bus on the time and day in question could see Grievant from their seats. They never saw Grievant smoke on the bus at any time, and they never smelled cigarette smoke on the bus that day, or at any other time.”
Upon appeal, however, the circuit court reversed the decision of the West Virginia Education and State Employees Grievance Board and upheld the termination of the appellant from his employment. As reflected in the final order of June 28, 1996, the circuit court concluded that the decision of the аdministrative law judge was (1) clearly wrong “in view of the reliable, probative and substantial evidence on the whole record,” (2) arbitrary and capricious and (3) constituted an unwarranted exercise of discretion. No transcript of any proceedings before the circuit court, however, was made a part of the record before this Court. Moreover, the final order of the circuit court did not discuss the evidence submitted at the administrative level with any degree of particularity.3
II
In Quinn v. West Virginia Northern Community College, 197 W. Va. 313, 475 S.E.2d 405 (1996), this Court confirmed the principle expressed in syllabus point 1 of Randolph County Board of Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989), that “[a] final order of the hearing examiner
That principle is, of course, consistent with our observation that rulings upon questions of law are reviewed de novo. State v. Honaker, 193 W. Va. 51, 56, 454 S.E.2d 101 (1994); Adkins v. Gatson, 192 W. Va. 561, 565, 453 S.E.2d 395, 399 (1994); State v. Stuart, 192 W. Va. 428, 433, 452 S.E.2d 886, 891 (1994); syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
In Hare v. Randolph County Board of Education, 183 W. Va. 436, 396 S.E.2d 203 (1990), this Court upheld the termination of employment of a Randolph County school bus operator. The basis of the termination was the bus operator‘s negligence with regard to a number of traffic accidents. The issue before this Court, in Hare, was proсedural and concerned the absence of references to the accidents in the school board‘s annual evaluations of the bus operator. Nevertheless, the bus operator had been informed, through various letters from the school board, that his employment was in jeopardy. In upholding the termination, this Court concluded, in Hare, that the letters constituted “substantial compliance” with the evaluation process. 183 W. Va. at 439, 396 S.E.2d at 206.
Unlike the circumstances in Hare, rather than involving questions of law or procedure, this case concerns, in its entirety, a consideration of evidentiary matters. Here, the appellant contends that the administrative law judge of the West Virginia Education and State Employees Grievance Board weighed the evidence, properly made judgments concerning the credibility of the witnesses and correctly concluded that the charge had not been proven. Thus, the appellant asserts that the circuit court, in reversing the decision of the administrative law judge, improperly substituted its judgment for that of the Grievance Board. On the other hand, the appellee еmphasizes the fact that the motorist was quite certain that she saw the appellant smoking a cigarette on October 11, 1995, while transporting students, which, according to the appellee, is consistent with the fact that ashes were found in the bus. Moreover, the appellee asserts, the motorist was in a better position than the two students, who were seated toward the rear of the bus, to observe the appellant.
In discussing the review of grievance proceedings involving school personnel, this Court stated in Martin v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995):
In reviewing the deсision of an ALJ following a Level IV grievance hearing, the circuit court should give deference to ... [factual] findings.... Further, the ALJ‘s credibility determinations are binding unless patently without basis in the record. Nonetheless, this Court must determine whether the ALJ‘s findings were reasoned, i.e., whether he or she considered the relevant factors and explained the facts and policy concerns on which he or she relied, and whether those facts have some basis in the record.
195 W. Va. at 304, 465 S.E.2d at 406.
In this case, as indicated above, the circuit court was presented with an аppeal from the West Virginia Education and State Employees Grievance Board solely involving evidentiary matters. Indeed, a review of the record demonstrates that the facts concerning the charge against the appellant were directly in conflict. Whereas the motorist was certain that she saw the appellant smoking a cigarette on Grand Central Avenue while the appellant was transporting students to school, the appellant denied the charge and maintained that the motorist had apparently seen him with a white ball point pen in his mouth, a pen the appellant asserted he was using to make notes concerning vandalism to the bus. Moreover, the appellant stated that the ashes found in the bus were probably dropped there the day before, while the appellant was cleaning the bus at his residence. See, n. 2, supra. Finally, the two elementary students testified that they had never seen the appellant smoking cigarettes on the bus.
As reflected in the lengthy opinion of March 28, 1996, the administrative law judge resolved the cоnflict in the evidence in the appellant‘s favor and concluded that the charge had not been proven. The circuit court, however, pursuant to a rather abstract final order, reversed the administrative law judge and upheld the termination of the appellant from his employment. Given the lack of particularity in that order, this Court declines to speculate as to what the concerns of the circuit court may have been. See, n. 3, supra; Mingo County Board of Education v. Surber, 195 W. Va. 279, 282, 465 S.E.2d 381, 384 (1995). Instead, this Court is of the opinion that the decision of the administrative law judge was concrete in its analysis of the evidence and well reasoned. Consequently, we conclude that the circuit court committed error in reversing that decision.
Accordingly, upon all of the above, the final order of the Circuit Court of Wood County, entered on June 28, 1996, is reversed, and this case is remanded to that court for reinstatement of the decision of the West Virginia Education and State Employees Grievance Board.
Reversed and remanded.
WORKMAN, Chief Justice, dissenting:
(Filed Dec. 9, 1997)
This case is about a school bus driver who had previously been disciplined for smoking on the school bus, and who was charged once again with smoking on a school bus. Yet, the majority goes out of its way not only to reinstate the driver, but to give full back pay, which means the driver will get approximately two years of back pay with interest!
While I can agree that termination from employment was a rather harsh sanction in light of the Appellant‘s lengthy employment history with the Appellee, I cannot condone, as the majority does, the Appellant‘s repeated transgressions of smoking on the school bus in violation of the non-smoking policies governing school personnel of both the State of West Virginia and Wood County1 by rewarding him. While I am willing to reinstate the driver to employment, I cannot in good conscience give him a financial boon
In this case, thе lower court concluded that the decision of the administrative law judge (“ALJ“) was “(1) clearly wrong ‘in view of the reliable, probative and substantial evidence on the whole record....‘” That record consisted of the testimony and evidence introduced at the level IV hearing, wherein the ALJ heard the testimony of an eye witness, a motorist, who stated that she had observed the Appellant smoking a cigarette the morning of October 11, 1995, while the Appellant was transporting students to school. Further, the witness telephoned Blaine Auvil, the Assistant Transportation Director for the Appellee and relayed to him her observations. Mr. Auvil, in turn, inspected the Appellant‘s bus only to discover cigarette ashes on the floor between the driver‘s window and the driver‘s seat. The Appellee also offered in evidence the former disciplinary action taken against the Appellant for a previous smoking violation.
The Appellant stated that the witness mistook a white ball point pen that he must have had in his mouth for a cigarette. Further, he acknowledged that the cigarette аshes must have come from when he was smoking a cigarette while cleaning the bus at his residence the preceding day, thus acknowledging that he smoked on the bus only a day before the incident giving rise to the charge. He stated that possibly he dropped the ashes at that time.2 In addition, the Appellant offered the testimony of two elementary school students who were on the bus at the time the Appellant was alleged to have been smoking, but who testified that they had not witnessed the Appellant smoke on the bus. Ironically, the students the drivеr called to testify had been seated in the rear of the bus.
Based upon all this evidence, the ALJ ruled in favor of the Appellant, finding that the charge against the Appellant had not been proven. As we stated in syllabus point one of Randolph County Board of Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989), “[a] final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to
Because of the driver‘s lengthy employment of approximately twenty years, however, I would be willing to go so far as to classify the sanction of dismissal for this violation as arbitrary and capricious and to support his reinstatement. However, I am totally unwilling to give the petitioner a financial boondoggle from the Wood County Board of Education‘s budget. In Rovello v. Lewis County Board of Education, 181 W. Va. 122, 381 S.E.2d 237 (1989), we considered the “lack of a clear policy [covering the incident], the isolated nature of the appellant‘s offense, his otherwise [good] record, and the minimal harm to the school system, [and concluded] that the Board of Education acted arbitrarily and capriciously in dismissing the appellant.” Id. at 126, 381 S.E.2d at 241. We further recognized in Rovello that while dismissal was too severe, a lesser sanction was not inappropriate. Id.; see Board of Education of County of Gilmer v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990) (finding dismissal too severe and recоmmending one year suspension without pay appropriate).
Finally, the majority fails to address the significant issue of whether the Appellant was entitled to full back pay. In Mason County Board of Education v. State Superintendent of Schools, 170 W. Va. 632, 295 S.E.2d 719 (1982), we indicated that unless a
Here we have a school bus driver who committed repeated violations of state and county policies designed to protect the health of the children in his charge, and he receives what essentially amounts to a two-year paid vacation.
Based upon the foregoing, I respectfully dissent to the per curiam decision. I am authorized to state that Justice MAYNARD joins in this dissent.
Notes
The final order did not articulate why the administrative law judge‘s rationale concerning the credibility of the witnesses was clearly wrong or in what manner the administrative law judge failed to consider relevant evidence or, instead, considered evidence not a part of the record. As stated above, no trаnscript of any proceedings before the circuit court was made a part of the record before this Court. Moreover, the language of the final order, that the decision of the Grievance Board was clearly wrong, arbitrary and capricious and constituted an unwarranted exercise of discretion, was simply a restatement of the statutory grounds for review of a decision of the Grievance Board found in[T]he hearing examiner‘s rationale and ruling in her opinion with regard to the credibility of the witnesses, the straight forward refusal to consider relevant evidence presented by the [appellee], and her purely speculative consideration of evidence not a part of the record to be clearly wrong in view of the reliable, probative and substantial evidence on the whole record and that she acted in a manner that was arbitrary and capricious. The Court further ruled that the hearing examiner‘s decision was a clearly unwarranted exercise of discretion.