Acord v. Colane Co.

Decision Date16 November 2011
Docket NumberNo. 101366.,101366.
Citation719 S.E.2d 761,228 W.Va. 291
CourtWest Virginia Supreme Court
PartiesNorma ACORD, a West Virginia Resident, Plaintiff Below, Petitioner v. COLANE COMPANY, a West Virginia Corporation, Individually and As Successor in Interest to Cole & Crane Real Estate Trust; Cole & Crane Real Estate Trust, a West Virginia Trust; Logan County Board of Education, a West Virginia Public Body; West Virginia Coal & Coke Company, a West Virginia Corporation; Omar Mining Company, a West Virginia Corporation, Individually and as Successor in Interest to West Virginia Coal & Coke Company; A.T. Massey Coal Company, a West Virginia Corporation, Individually and as Successor in Interest to West Virginia Coal & Coke Company; Massey Energy Company, a Virginia Corporation, Individually and as Successor in Interest to West Virginia Coal & Coke Company; and Richard Fry, a West Virginia Resident, Individually, Defendants Below, Respondents.
Syllabus by the Court

1. “A motion under Rule 59(e) of the West Virginia Rules of Civil Procedure should be granted where: (1) there is an intervening change in controlling law; (2) new evidence not previously available comes to light; (3) it becomes necessary to remedy a clear error of law or (4) to prevent obvious injustice.” Syllabus Point 2, Mey v. The Pep Boys–Manny, Moe & Jack, 228 W.Va. 48, 717 S.E.2d 235 (2011).

2. ‘A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.’ Syl. pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).” Syllabus Point 1, Jackson General Hospital v. Davis, 195 W.Va. 74, 464 S.E.2d 593 (1995).

3. “In order to prove actionable negligence there must be shown a duty on the part of the person charged with negligence and a breach of such duty.” Syllabus Point 2, Atkinson v. Harman, 151 W.Va. 1025, 158 S.E.2d 169 (1967).

4. “In order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that (1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.” Syllabus Point 3, Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999).

5. ‘A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.’ Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).” Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

Kevin W. Thompson, Esq., David R. Barney, Jr., Esq., Thompson Barney, Charleston, WV, for Petitioner, Norma Acord.

Daniel L. Stickler, Esq., Jonathan L. Anderson, Esq., Jackson Kelly PLLC, Charleston, WV, Attorneys for Respondents, Omar Mining Company, A.T. Massey Coal Company, and Massey Energy Company.

E.M. Kowal, Jr., Esq., Andrew P. Ballard, Esq., Campbell Woods, PLLC, Huntington, WV, for Respondents, Colane Company, and Cole & Crane Real Estate Trust.PER CURIAM:

This case is before this Court upon appeal of final orders of the Circuit Court of Logan County entered on March 31, 2010, in this class action for medical monitoring based on negligence, strict liability and public nuisance claims. The petitioner and plaintiff below, Norma Acord, is the representative of a class of individuals consisting of current and former students and staff of Omar Elementary School. Ms. Acord contends that the class members are at an increased risk of contracting cancer because the property on which the school is located was used as a garbage dump from the 1920s through the 1950s.

In the final orders, the circuit court denied Ms. Acord's omnibus motion to alter or amend the circuit court's previous orders which granted summary judgment in favor of the respondents and defendants below, Colane Company, A.T. Massey Coal Company, Inc., Massey Energy Company, and Omar Mining Company. The court also denied Ms. Acord's motion to alter or amend its previous order dismissing respondent and defendant below, Coal & Crane Real Estate Trust. 1 The circuit court further denied Ms. Acord's motion for relief from judgment based on newly discovered evidence. In this appeal, Ms. Acord contends that that the circuit court erred in each of its rulings. She maintains that genuine issues of material fact existed which precluded summary judgment and that her newly discovered evidence should have been considered. This Court has before it the petition for appeal, the responses thereto, the designated record, and the arguments of counsel. For the reasons set forth below, the final orders are affirmed.


Omar Elementary School opened in Chauncey, West Virginia, in 1964. The property on which the school is located was owned by West Virginia Coal and Coke Company (hereinafter Coal & Coke) from the 1920s until 1954. Coal & Coke was engaged in the business of mining coal in the Island Creek Valley in Logan County and did so by leasing the mineral rights to properties owned by Cole & Crane Real Estate Trust (hereinafter Cole & Crane).2 During this time period, the property on which the school is now located was purportedly used as a public garbage dump for the company mining town and surrounding areas. In 1954, Coal & Coke sought to withdraw from the coal mining business and focus on its Ohio River barge operations. At that time, Coal & Coke sold the subject property to an individual named Tom Stark. Mr. Stark and his wife, Iola, then deeded the property to Colane Company (hereinafter Colane).3 The Logan County Board of Education (hereinafter Logan County BOE) purchased the property from Colane in 1961.

In exiting the mining business, Coal & Coke sold its mining equipment and related assets to A.T. Massey Coal Company. A.T. Massey then assigned its rights under its agreement with Coal & Coke to its subsidiary, Omar Mining Company (hereinafter Omar). Omar entered into lease agreements with Cole & Crane and began mining the coal on its properties. As part of the agreement with Coal & Coke, A.T. Massey purchased the trade names and trademarks incident to Coal & Coke's mining operations.4 As a result, Coal & Coke changed its name to Midland Enterprises, Inc.

In 2003, the United States Environmental Protection Agency (hereinafter “EPA”) and the West Virginia Department of Health and Human Resources (hereinafter “DHHR”) began conducting environmental testing at various sites in and around the town of Chauncey in response to citizen reports that chemical dumping had occurred in the past. These citizens believed that polychlorinated biyphenyls or PCBs were contaminating their community and that the chemicals were related to the number of Chauncey residents with cancer. The initial testing revealed that PCBs were not present in high enough amounts to be causing adverse health effects. The main exposure pathway that the DHHR identified during the first round of environmental testing was exposure to lead and arsenic from incidental ingestion of soil and sediment containing these chemicals.5 The DHHR concluded, however, that the chemicals in the samples posed no apparent health hazard for the present or future. No historical data existed, and therefore, the site was classified as an indeterminate public health hazard for the past.

Because the 2003 sampling showed the presence of some contaminants, though not in high enough levels to cause adverse health effects, additional testing was nonetheless deemed prudent because of the concerns of community members relating to the dumping of pesticides in the area now used as baseball fields for children. Accordingly, additional testing was conducted from November 2003 to March 2004. Thereafter, a report was issued on March 9, 2005, by the United States Agency for Toxic Substances and Disease Registry (hereinafter “ATSDR”) and the DHHR concluding that there was no apparent health hazard for the present from the exposures likely to occur at this site to either children or adults” and that “the site poses an indeterminate public health hazard in the past because of lack of data for the past.” (Emphasis in original). The reported also stated, “No public health recommendations are needed to keep people from being exposed to harmful amounts of chemicals found at this site.”

This class action was initiated on May 10, 2004, by plaintiffs/class representatives Carlene Mowery, Edgar Franklin, and Connie Keith against defendants Colane and the Logan County BOE alleging that the real property where Omar Elementary School, its playground and...

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