Can a West Virginia county ambulance authority sue in magistrate court to collect unpaid emergency ambulance fees?

Official title

Opinion of the Attorney General's Office Regarding the Collection of Unpaid Emergency Ambulance Service Fees

Plain-English summary

The Hardy County prosecutor asked whether a county ambulance authority could file magistrate-court suits to collect unpaid emergency ambulance fees imposed under W. Va. Code § 7-15-17. The fees in question are not the per-ride charges a patient gets billed after using the ambulance; they are the broad, county-wide annual fees that all residents owe whether or not they ever use the service (the kind upheld in Clay County Citizens for Fair Taxation v. Clay County Commission).

The AG concluded the authority does not have statutory power to collect those fees. Three reasons.

First, the plain text of § 7-15-17 says "the county commission" imposes the fee "by ordinance" and that the authority "receive[s]" the funds from those fees. "Receive" suggests the authority does not collect; the commission does, and remits.

Second, W. Va. Code § 7-15-10 lists the authority's enumerated powers in detail, but does not cross-reference § 7-15-17. Under expressio unius est exclusio alterius (Manchin v. Dunfee), the explicit listing of one power implies the exclusion of others. The legislature knew how to give an authority collection power and did not.

Third, county fiscal affairs are constitutionally entrusted to the county commission under W. Va. Const. art. IX, § 11. The special ambulance fee falls squarely within county fiscal affairs because the proceeds fund the authority's ongoing operations.

The AG noted that this conclusion is consistent with a 1982 AG opinion (59 W. Va. Op. Att'y Gen. 161), which had distinguished service-rendered fees (collectible by the authority) from broad statutory fees (whose collection mechanism the legislature had left unspecified). Thirty years later, that legislative gap was still unfilled. The AG also noted what was not decided: whether a county commission could delegate its collection authority to the authority by some affirmative arrangement.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the difference between a "special emergency ambulance fee" and a per-ride bill?

A: The special fee under § 7-15-17 is a flat charge that a county commission imposes on every household, business, or living unit by ordinance, regardless of whether the resident has ever called an ambulance. Clay County Citizens upheld a $25 annual fee on every "bona fide owner or occupant of a living unit" in the county. The per-ride bill is what the authority charges a specific patient or insurer after a transport actually happens, computed by a per-trip and mileage formula under § 7-15-10. The AG's 1982 opinion confirmed authorities can bill and collect those.

Q: If the authority cannot sue for the special fee, who can?

A: The county commission. The constitutional and statutory authority to manage the county's fiscal affairs runs to the commission. Whether the commission goes to magistrate court itself, contracts with a collection vendor, or pursues other remedies is its choice.

Q: Does that mean residents who refuse to pay the fee can avoid it?

A: No. The fee is a legal obligation; the question is just who has standing to enforce it. The county commission has the standing. The opinion did not address what enforcement procedures are available (magistrate suit, tax lien, set-off, etc.); it answered only that the ambulance authority is not the right plaintiff.

Q: Why didn't the legislature spell out the collection mechanism in § 7-15-17?

A: The 1976 and 1982 AG opinions both flagged this as a legislative gap and called for clarification. The 2013 opinion noted that thirty years had passed without a fix. Statutes commonly leave enforcement details to be inferred from related provisions and constitutional structure.

Q: Could a county commission delegate fee collection to the ambulance authority?

A: The opinion expressly did not decide this. It said: "We have not been asked and do not decide, however, whether a county commission could delegate its statutory power to an emergency ambulance authority." So the door is left open, but a county wanting to do so would need to set up that delegation explicitly and likely in a formal interlocal arrangement.

Q: What about the 1982 opinion that said authorities could "impose and collect fees and charges"?

A: That opinion was about per-trip service fees under § 7-15-10, not about the special fee under § 7-15-17. The 2013 opinion was careful to distinguish the two. An authority can still bill and pursue users who fail to pay for actual service rendered. It just cannot litigate over the broader county-wide fee.

Q: What is "expressio unius est exclusio alterius"?

A: A canon of statutory interpretation: the express mention of one thing implies the exclusion of others. The West Virginia Supreme Court of Appeals applied it in Manchin v. Dunfee. Here, § 7-15-10 lists the authority's powers in detail, including borrowing, mortgaging facilities, and other relatively unusual powers. The absence of any cross-reference to § 7-15-17 fee collection, in the same statutory section, was meaningful.

Background and statutory framework

The Emergency Ambulance Service Act of 1975, W. Va. Code §§ 7-15-1 et seq., authorizes a county commission to create an ambulance authority as a public corporation to provide emergency ambulance service. § 7-15-10 enumerates the authority's powers: provide emergency ambulance service, enter contracts, sue and be sued, hold and dispose of property, mortgage facilities, hire employees, and "do any and all things necessary or convenient to carry out the powers given in this article."

The 1982 AG opinion (59 W. Va. Op. Att'y Gen. 161) read § 7-15-10 to permit an authority to charge users for actual services rendered, including a per-trip and mileage fee. That power survived the 2013 opinion.

§ 7-15-17 is structurally different. The county commission may impose, "by ordinance," a special fee on residents to pay for the establishment, maintenance, and operation of the authority. Clay County Citizens upheld a $25 annual fee against constitutional challenge. The provision does not name a collection mechanism. It says the authority "receive[s]" the funds.

The AG's three-reason analysis: (1) plain text shows commission imposes and collects, authority receives; (2) expressio unius excludes collection from the authority's enumerated powers; (3) constitutional fiscal authority lies with the commission under W. Va. Const. art. IX, § 11.

The 1976 (56 W. Va. Op. Att'y Gen. 308) and 1982 opinions had both called for legislative clarification of how the special fee should be collected. Thirty-plus years on, the legislature had still not specified. The AG resolved the ambiguity by holding that the authority lacks the power, and noted that the broader question of delegation by the commission was not before the office.

Citations

• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code §§ 7-15-1 et seq. (Emergency Ambulance Service Act)
• W. Va. Code § 7-15-4, § 7-15-10, § 7-15-17
• W. Va. Const. art. IX, § 11 (county fiscal authority)
• DeVane v. Kennedy, 205 W. Va. 519, 519 S.E.2d 622 (1999)
• Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984)
• Clay Cnty. Citizens for Fair Taxation v. Clay Cnty. Comm'n, 192 W. Va. 408, 452 S.E.2d 724 (1994)
• 59 W. Va. Op. Att'y Gen. 161 (1982)
• 56 W. Va. Op. Att'y Gen. 308 (1976)
• 59 W. Va. Op. Att'y Gen. 190 (1982)

Source

• Landing page: https://ago.wv.gov/media/18121/download?inline
• Original PDF: https://ago.wv.gov/media/18121/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0410

November 8, 2013

The Honorable Lucas J. See
Prosecuting Attorney
Hardy County Prosecuting Attorney's Office
204 Washington St., Room 104
Moorefield, WV 26836

Dear Prosecutor See,

You have asked for an Opinion of the Attorney General regarding whether an emergency ambulance authority can bring suit to collect unpaid emergency ambulance service fees. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." Your September 25, 2013 letter to the Office of the Attorney General raises the following legal question:

May an emergency ambulance authority created under the provisions of West Virginia Code § 7-15-4 bring suit in Magistrate Court to collect unpaid emergency ambulance fees imposed under the provisions of West Virginia Code § 7-15-17?

We conclude that an emergency ambulance authority does not have the statutory power to collect special emergency ambulance fees imposed under West Virginia Code § 7-15-17. Created by county commissions pursuant to statute, emergency ambulance authorities have specific enumerated powers set forth in West Virginia Code § 7-15-10. Those powers include the ability to: "provide emergency ambulance service"; "enter into contracts and agreements"; "sue and be sued"; and "do any and all things necessary or convenient to carry out the powers given in this article." Id.

Thirty years ago, the Office of Attorney General determined that an emergency ambulance authority may, pursuant to West Virginia Code § 7-15-10, "impose and collect fees and charges upon users of their services for services rendered." 59 W. Va. Op. Att'y Gen. 161 (1982). Specifically, that earlier Opinion found that "the imposition of a charge upon the basis of a minimum fee per transport, mileage charge, etc., for services actually rendered, would appear to be in [] conformity with the general powers of the authority set forth in Code 7-15-10." Id. The Office reasoned that charging for actual services provided falls within an emergency ambulance authority's express statutory power to "do any and all things necessary" to carry out its power to "provide emergency ambulance service." Id.

Importantly, that 1982 Opinion distinguished fees for actual service from the special emergency ambulance fees imposed under West Virginia Code § 7-15-17. The latter fees, about which you have asked, may be imposed broadly even on those who have not actually used the emergency ambulance service. See Clay Cnty. Citizens for Fair Taxation v. Clay Cnty. Comm'n, 192 W. Va. 408, 452 S.E.2d 724 (1994) (upholding an emergency ambulance fee ordinance that imposed a $25 annual fee upon "any bona fide owner or occupant of a living unit within the geographic boundaries of Clay County, West Virginia"); 56 W. Va. Op. Att'y Gen. 308 (1976) (reasoning that it would be inconsistent with the statute's purpose "if the service fee [permitted by § 7-15-17] was to be collected only from those persons who actually made use of the emergency ambulance service").

In the Opinion, the Office expressly declined to decide how the special emergency ambulance fees may be imposed and collected, and who may do so. Referencing an even earlier Opinion, the Office stressed that the Legislature had failed to "'prescribe the mode by which such fee is to be imposed.'" 59 W. Va. Op. Att'y Gen. 161 (quoting 56 W. Va. Op. Att'y Gen. 308). Rather than decide the question, the Office called for "legislative clarification" of "the manner in which the special emergency ambulance fee, provided for by Code 7-15-17, is to be imposed and collected." Id. Thirty years have passed without legislative clarification.

We now conclude, for several reasons, that an emergency ambulance authority lacks the statutory power to collect the special emergency ambulance fees permitted by West Virginia Code § 7-15-17. First, we look to the plain text of the statute, which clearly contemplates that the county commission, not an ambulance authority, is responsible for the special emergency ambulance fees. The statute specifically grants "the county commission" the authority to impose the special emergency ambulance fee and expressly requires that the fee be imposed "by ordinance", something that only the county commission can do. W. Va. Code § 7-15-17. It also contemplates that an ambulance authority will "receive[] funds from the special emergency ambulance fees," which suggests that the authority will not collect the fees itself. Id. (emphasis added). "[W]here the language of a statutory provision is plain, its terms should be applied as written and not construed." DeVane v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999).

Second, we note that the Legislature specifically chose to separate the special emergency ambulance fees in § 7-15-17 from an emergency ambulance authority's enumerated powers in § 7-15-10. "In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies." Syl. Pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984). We cannot ignore that the detailed list of enumerated powers in § 7-15-10, including such powers as an ambulance authority's ability to "encumber or mortgage all or part of its facilities and equipment", did not cross-reference the power in § 7-15-17 to impose or collect the special emergency ambulance fees.

Third, this conclusion is consistent with a county commission's constitutional duty to superintend and manage a county's fiscal affairs. Article IX, Section 11 of the West Virginia Constitution provides that county commissions "have the superintendence and administration of the internal police and fiscal affairs of their counties." W. Va. Const, art. IX, § 11. The special emergency ambulance fees fall squarely within a county's fiscal affairs, as those fees are specifically intended to be "used to pay for, in whole or in part, the establishment, maintenance and operation of [emergency ambulance] authorit[ies]." W. Va. Code § 7-15-17; see also 59 W. Va. Op. Att'y Gen. 190 (1982) (explaining that "the control or management of the [ambulance] authority is subordinate to the constitutional duty vested in the county commission to manage the internal fiscal affairs of the county").

For all these reasons, we determine that a county commission, not an emergency ambulance authority, has the statutory power to collect the special emergency ambulance fees permitted by West Virginia Code § 7-15-17. It follows that an emergency ambulance authority lacks the statutory power to bring suit in Magistrate Court to collect those fees. We have not been asked and do not decide, however, whether a county commission could delegate its statutory power to an emergency ambulance authority.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Derek A. Knopp
Assistant Attorney General