IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
IN THE MATTER OF:
Mark A. Burnett
O R D E R
Ronald W. Kasserman, Attorney at Law, for claimant.
Ronald R. Brown, Assistant Attorney General, for the State of West Virginia.
An application for the claimant, Mark A. Burnett, for an award on behalf of the estate of his
daughter, Melissa A. Burnett, was filed May 11, 2007, under the West Virginia Crime Victims
Compensation Act. The report of the Claim Investigator, filed September 20, 2007, recommended
that no award be granted, to which the claimant filed a response in disagreement. The Court issued
an Order on December 12, 2007, upholding the Investigator's recommendation. The claimant filed
a request for hearing on January 8, 2008, and the matter came on for hearing April 9, 2008, the
claimant appearing by counsel Ronald W. Kasserman, and the State of West Virginia by counsel,
Ronald R. Brown, Assistant Attorney General. Testimony was heard by Judge John G. Hackney Jr.
who sat as hearing examiner.
On June 8, 2006, the claimant's twenty-four-year-old daughter, Melissa A. Burnett, was the
alleged victim of criminally injurious conduct in Moundsville, Marshall County. The victim was at her residence with Michael Runyon, Jeremy Hall, Amanda Welling, and the offender, Larry Steven
Welling. The individuals were taking injections of heroin.
According to the police report, Ms.
Welling stated that the victim wanted to try heroin, but she was unable to give herself the injection
because her hands shook from a medical condition. When the offender injected heroin into the top
of the victim's left hand, she immediately showed signs of overdosing and lost consciousness. The
group resorted to home remedies in order to revive her, but these methods proved futile.
The offender called 911 and advised that the victim was not breathing and may have
overdosed. The police officer arrived at the residence and found that the victim had a pulse, but it
was slow. The paramedics arrived and performed CPR. The victim was then transported to Reynolds
Memorial Hospital where she was pronounced dead. The Court is sympathetic to the claimant for
the loss of his daughter and extends its respect to the family in this tragic situation.
The victim's body was transported to the State Medical Examiner's Office for an autopsy.
The results of the autopsy indicate that the victim died as the result of combined cocaine and
morphine intoxication in the setting of parenteral (needle) drug abuse.
Larry Welling is serving a sentence on an Alford plea for voluntary manslaughter relating to the victim's death; he was sentenced to twelve (12) years in jail. According to the Alford plea
agreement, Mr. Welling was also sentenced to not less than one (1) nor more than fifteen (15) years
for the felony offense of "Delivery of a Controlled Substance."
These sentences are to run
Claimant contends that his daughter was involuntarily injected with drugs, and when she
overdosed, there was an intentional delay in calling 911 for medical assistance which resulted in her
death. He asserts that there is no direct evidence that the victim was a voluntary participant in
receiving the injection.
The claimant brings this appeal in response to the Court's Order dated December 12, 2007.
In this Order, the Court adopted the Claim Investigator's finding that no award be granted because
the victim was not free from contributory misconduct.
West Virginia Code º 14-2A-3(l)
defines "Contributory Misconduct" as follows:
"Contributory misconduct" means any conduct of the claimant, or of the
victim through whom the claimant claims an award, that is unlawful or intentionally
tortious and that, without regard to the conduct's proximity in time or space to the
criminally injurious conduct, has causal relationship to the criminally injurious
conduct that is the basis of the claim and shall also include the voluntary
intoxication of the claimant, either by the consumption of alcohol or the use of any
controlled substance when the intoxication has a causal connection or relationship to
the injury sustained. The voluntary intoxication of a victim is not a defense against
the estate of a deceased victim.
The claimant contends that the Court failed to consider the express language in W.Va. Code
º 14-2A-3(l). In particular, he argues that the Court failed to apply the last sentence in the statute
which states, "The voluntary intoxication of a victim is not a defense against the estate of a deceased
Claimant asserts that the language in the statute is clear and should be applied, not
construed. "A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute." Syl. Pt. 3, Meadows v. Wal-Mart
Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).
The claimant contests the voluntary
intoxication of the victim and argues that even if the Court found that the victim was voluntarily
intoxicated, her voluntary intoxication is not a defense against her estate under W.Va. Code º 14-2A-
The claimant further contends that the Legislature intended to limit recovery to the victim's
estate under the last sentence in W.Va. Code º 14-2A-3
(l). The estate's recovery would be limited
to $6,000.00 for funeral and burial expenses pursuant to W.Va. Code º 14-2A-3(f)(2). Under W.Va.
Code º 14-2A-3
, a claimant is excluded from recovering lost wages or medical expenses if there
was a finding that the claimant was voluntarily intoxicated.
Therefore, the Legislature expressly
limited recovery to the victim's estate.
Respondent avers that the literal meaning of W.Va. Code º 14-2A-3(l)
would lead to absurd
results that the Legislature did not intend when it enacted the statute. In State v. Kerns, 183 W.Va.
130, 135, 394 S.E.2d 532, 537 (1990), the Court stated that it has an obligation to avoid a
construction of a statute which leads to absurd, inconsistent, unjust or unreasonable results.
Respondent argues that if the Court read the statute as claimant suggests, then the last sentence
in W.Va. Code º 14-2A-3(l)
would conflict with the purpose of the Crime Victims Compensation
Fund (the Fund) and the preceding portion of the statute. During the hearing, respondent argued that
the Court cannot interpret the last sentence in the statute without understanding the importance of the
phrase "causal connection" in the preceding phrase. Voluntary intoxication constitutes contributory misconduct"...when the intoxication has a causal connection or relationship to the injury sustained."
W.Va. Code º 14-2A-3(l).
According to the respondent, the voluntary intoxication of a victim is not
a defense against the estate of a victim when there is
no causal connection or relationship to the injury
sustained. Respondent asserts that this interpretation would reconcile the last sentence with the
preceding portion of W.Va. Code º 14-2A-3(l)
Furthermore, respondent asserts that under W.Va. Code § 14-2A-2, the purpose of the Fund
is to compensate "innocent victims" of crime.
Respondent avers that providing compensation to the
estate of a deceased victim where the victim had become voluntarily intoxicated, and the intoxication
was the proximate cause of the victim's death, would contradict the purpose of the statute. In
addition, he argues that W.Va. Code §
14-2A-14(c) precludes a judge from approving an award to the
offender or an accomplice of the offender who committed the criminally injurious conduct.
The interpretation of W.Va. Code º 14-2A-3(l)
presents an issue of first impression for the
Court. The Court must first examine the rules of statutory construction to determine whether the
statute is ambiguous or clear on its face. "Where the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl.
Pt. 3, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Protection, 191 W.Va. 134, 443 S.E.2d 602
(1994). A statute can be interpreted when there is ambiguous language which makes it "...susceptible
of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be
uncertain or disagree as to its meaning." Crockett v. Andrews, 153 W.Va. 714, 718, 172 S.E. 2d 384, 386 (1970).
Ambiguity is a term connoting doubtfulness, doubleness of meaning of
indistinctness or uncertainty of an expression used in a written instrument. It has been
declared that courts may not find ambiguity in statutory language which laymen are
readily able to comprehend; nor is it permissible to create an obscurity or uncertainty
in a statute by reading in an additional word or words.
Id. at 718-19, 387. The Court should interpret a statute only if it is ambiguous, and the first step in
the inquiry is to ascertain the intent of the Legislature . Ohio County Comm'n v. Manchin, 171 W.Va.
552, 554, 301 S.E.2d 183, 185 (1983).
In ascertaining the intent of the Legislature the statute should
be read as a whole. Id.
The well reasoned arguments made by counsel for the claimant and counsel for the respondent
compel the Court to conclude that the last sentence in W.Va. Code º 14-2A-3(l) is ambiguous and
susceptible to different interpretations. The
Court must first examine the intent of the Legislature
in creating the statute. Despite the claimant's argument that the Legislature exclusively intended to
provide recovery to the victim's estate, this approach to reading W.Va. Code º 14-2A-3(l)
to an irreconcilable conflict with the purpose and intent of the Legislature as set forth in W.Va. Code
The Fund was established to compensate "innocent victims" of crime.
The portion of W.Va. Code º 14-2A-3
that deals specifically with the voluntary intoxication
of the victim states:
"Contributory misconduct"...shall also include the voluntary intoxication of
the claimant, either by the consumption of alcohol or the use of any controlled substance when the intoxication has causal connection or relationship to the injury
sustained. The voluntary intoxication of a victim is not a defense against the estate
of a deceased victim.
The Legislature distinguishes between instances where the voluntary intoxication of the victim has
a "causal connection" or "relationship" to the injury sustained and cases where there is no "causal
connection" or "relationship."
The Court concludes that, where the victim was engaged in contributory misconduct that was
causally connected to the criminally injurious conduct, the voluntary intoxication of the victim does
not serve as a defense against the victim's estate. The voluntary intoxication of the victim only serves
as a defense against the victim's estate where there is no causal connection between the victim's
intoxication and the criminally injurious conduct.
Although the Legislature did not include the words
"causal connection" in the last sentence of the statute, the Court cannot infer that the Legislature
intended to omit this analysis when interpreting the meaning of the statute when read as a whole.
In the instant case, the Court finds that there was insufficient evidence established at the
hearing to prove that the victim was free from contributory misconduct. Since the victim's voluntary
intoxication was causally connected to her death, the Court is constrained by the evidence to uphold
its prior ruling.
Based on the foregoing, the Court affirms its previous ruling. Therefore, the claim must be,
and is hereby, denied.