CHARLESTON – The West Virginia Supreme Court of Appeals issued a memorandum decision in which it ruled that Monongalia Circuit Court wrongfully dismissed a lawsuit against the West Virginia Department of Health and Human Resources that was time-barred.

E.K. alleged he suffered years of sexual abuse while in foster care and filed a lawsuit against the DHHR alleging negligent placement/monitoring, according to the Nov. 7 decision.

The circuit court dismissed the lawsuit as time-barred because E.K. filed the lawsuit more than two years after he turned 18.

“Considering matters outside of the complaint, the court further determined that it ‘could not in good faith’ allow amendment of the complaint,” the decision states.

On appeal, E.K. alleged that the circuit court committed reversible error by dismissing his complaint with prejudice and, if allowed to amend his complaint, he argued that factual development will show that his claim was timely.

He also alleged that the DHHR fraudulently concealed information which prevented him from discovering or pursing his claims, thus tolling the statute of limitations.

“Finding merit to E.K.’s arguments, we reverse and remand with instructions to allow E.K. to file an amended complaint,” the decision states. “Whether the statute of limitations is tolled depends on unresolved questions of fact that would benefit from discovery.”

In 2011, the DHHR removed 15-year-old E.K., and his brothers, from their home due to allegations of physical abuse by their biological father. The DHHR placed the children under the foster care of J.W.L., without providing foster-parent training to her prior to this placement. For several years thereafter, J.W.L. sexually abused E.K. on a regular basis.

E.K. reported the sexual abuse to authorities in June 2014, when he was 19 years old. In August 2014, 40-year-old J.W.L. was arrested and charged with sexual abuse by a parent.

E.K. initiated the present action in February 2016 by filing a one-count complaint against the DHHR alleging negligent placement/monitoring.

E.K. asserted that at no time did anyone with the DHHR advise him “regarding his legal rights or discuss with him the advisability of him consulting legal counsel regarding his situation.” E.K. alleged that the DHHR’s breach of its duty resulted in his long-term physical sexual abuse at the hands of his foster mother, and this abuse caused severe emotional trauma and psychological injuries.

“E.K. admitted that he never told anyone with the DHHR that his foster mother was abusing him sexually; he was afraid that the DHHR would separate him and his brothers if they were removed from her home,” the decision states. “Nevertheless, E.K. alleged that the DHHR ‘had been advised of the situation over the entirety of the three years[.]’ He claimed that his sibling, L.K.—who was removed from the foster home for having run away—informed the DHHR of the abuse taking place in J.W.L.’s household as early as 2012.”

 He further alleged that J.W.L.’s conduct “was not news in the surrounding community,” and that the DHHR responded to the home following referrals on several occasions but did nothing to protect him.

In April 2016, the DHHR filed a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The DHHR raised an affirmative defense and asserted E.K.’s claim was time-barred based on the applicable two-year statute of limitations.

In opposing the motion to dismiss, E.K. asserted in his response that he was still under the control of the DHHR until March 2015—because he was living in a group home operated by the DHHR—less than a year before he filed his complaint.

E.K. further alleged, for the first time, that the DHHR breached a duty created by its own internal policy manual regarding the need to instruct a child in the foster care system that he/she has generally up to two years after reaching 18 years of age to file a cause of action in a personal injury lawsuit.

E.K. argued that it was undisputed that the DHHR failed to carry out its affirmative duty to explain to him the time limits regarding his right to pursue any claims, “including claims he might have against DHHR while still under DHHR’s control.” Thus, he argued there was “the question of whether ‘the statute of limitation period was arrested by some other tolling doctrine.’”

The DHHR replied that E.K. was “mixing apples and oranges” because any alleged breach of the DHHR’s internal policy would have nothing to do with the negligent placement/monitoring claim E.K. pled in his complaint.

“Because these are separate and distinct causes of action, the DHHR reasoned that one cannot be used to toll the statute of limitations of the other,” the decision stated. “Moreover, because E.K. did not allege in his complaint that he remained under the custody and control of the DHHR for two years after he turned the age of eighteen, the DHHR urged the circuit court to disregard that claim as somehow tolling the statute of limitations.”

The circuit court dismissed the complaint and E.K. appealed to the Supreme Court.

“On appeal to this Court, E.K. argues that the circuit court committed reversible error when it dismissed his complaint with prejudice,” the decision states. “He seeks the opportunity to file an amended complaint and proceed with discovery.”

The DHHR responds that the circuit court properly dismissed the complaint with prejudice because any amendments would be futile considering the fact E.K. admits that the only disability which would toll the statute of limitations was his infancy when the sexual abuse began.

The Supreme Court ruled that the circuit court committed reversible error when it dismissed the cause of action with prejudice rather than giving E.K. the opportunity to amend his complaint, especially when it considered matters beyond the complaint.

“Moreover, the issue of whether the statute of limitations is tolled turns on questions of fact that would benefit from discovery,” the decision states.

Justice Menis Ketchum concurred and wrote separately that E.K. is entitled to present evidence that the DHHR fraudulently concealed its knowledge of the abuse that prevented him from pursuing the potential cause of action.

“If he can prove the fraudulent concealment, then the statute of limitations would be tolled…” he wrote.

Chief Justice Allen Loughry dissented and wrote separately that the majority’s remand of this matter for “factual development” is patently incorrect.

“It is clear from the face of the complaint and the undisputed facts as set forth in the majority opinion that the petitioner’s claim is barred by the statute of limitations,” Loughry wrote. “This precise issue has been previously addressed by this Court, although the majority relegates the controlling precedent to a footnote. The majority then cobbles together specious arguments in support of remand, all of which are transparently designed to support remand.”

Loughry said seldom is the Supreme Court faced with such straight-forward application of the statute of limitations—as expressly dictated by controlling precedent.

“I caution that little should be read into the majority’s opinion in terms of potential expansion of the statute of limitations for causes of action accruing during infancy or our long-standing precedent in Albright,” Loughry wrote. “The majority’s ham-handed tactics to grant the petitioner’s complaint a temporary “stay of execution” demonstrates that it lacks the conviction to explicitly overrule our precedent on this issue and that it is guided in this instance by sympathy, rather than the rule of law.”

W.Va. Supreme Court of Appeals case number: 16-0773

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