Foster v. City of Keyser

Decision Date15 December 1997
Docket NumberNo. 24001.,24001.
Citation501 S.E.2d 165,202 W.Va. 1
CourtWest Virginia Supreme Court
PartiesCharles D. FOSTER and Dolly D. Foster, Tammy Martin, Theodore Metcalfe, and James Yeckel and Shelda Yeckel, Plaintiffs below, Respondents, v. CITY OF KEYSER, a West Virginia municipality; Norman Parks, individually, and d/b/a Parks Excavating; and Parks Excavating, Defendants below, Respondents; and Mountaineer Gas Company, a West Virginia corporation, Defendant below, Petitioner. Donald L. WOLFE and Virginia Wolfe, Plaintiffs below, Respondents, v. MOUNTAINEER GAS COMPANY, a West Virginia corporation, Defendant below, Petitioner; and Norman Parks, individually, and d/b/a Parks Excavating, Defendant below, Respondent, v. CITY OF KEYSER, a West Virginia municipality, Third-Party Defendant below, Respondent. R.J. HARBER and M.S. Harber; Charles Taylor and Melanie Taylor; Daniel Streets and Paula Streets; Timothy Newlin and Virginia Newlin; Steve Everett and Cynthia Everett; Junior Armentrout and June Halbritter; Dorothy Lyons; William Paitsel; Harry Beard; and Tammy Martin, Plaintiffs below, Respondents, v. CITY OF KEYSER, a West Virginia municipality; Norman Parks, individually, and d/b/a Parks Excavating; and Parks Excavating, a West Virginia corporation, Defendants below, Respondents; and Mountaineer Gas Company, a West Virginia corporation, Defendant below, Petitioner. NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff below, Respondent, v. CITY OF KEYSER, a municipal corporation; and Norman Parks, an individual doing business as Parks Excavating, Defendants below, Respondents; and Mountaineer Gas Company, a West Virginia corporation, Defendant below, Petitioner. Tammy MARTIN, Administrator of the Estate of David G. Martin, deceased; John B. Lusk and Sue E. Lusk; Samuel L. Crites and Carol A. Crites; and J. Richard Campbell and Margaret H. Campbell, Plaintiffs below, Respondents, v. CITY OF KEYSER, a West Virginia municipality; Norman Parks, individually and d/b/a Parks Excavating; and Parks Excavating, a West Virginia corporation, Defendants below, Respondents; and Mountaineer Gas Company, a West Virginia corporation, Defendant below, Petitioner. Charles B. LANHAM and a West Virginia corporation, and City of Keyser, a municipal corporation, Plaintiffs below, Respondents, v. MOUNTAINEER GAS COMPANY, a West Virginia corporation, Defendant and Third-Party Plaintiff below, Petitioner; and City of Keyser, a municipal corporation, Defendant and Third-Party Plaintiff below, Respondent, v. Norman PARKS, individually and d/b/a Parks Excavating, a West Virginia corporation, Third-Party Defendant below, Respondent. Charles ARMENTROUT and Peggy Armentrout, husband and wife, and Daniel Ross and Sandy Ross, husband and wife, Plaintiffs below, Respondents, v. CITY OF KEYSER, a West Virginia municipality; Norman Parks, individually, and d/b/a Parks Excavating; and Parks Excavating, a West Virginia corporation, Defendants below, Respondents; and Mountaineer Gas Company, a West Virginia corporation, Defendant below, Petitioner. Dorothy JOHNSON; Robert T. Kane, Jr. and Cheryl L. Kane, his wife, and William Amtower, Plaintiffs below, Respondents, v. CITY OF KEYSER, a West Virginia municipality; Norman Parks, individually, and d/b/a Parks Excavating, Defendants below, Respondents; and Mountaineer Gas Company, a West Virginia corporation, Defendant below, Petitioner.

Robert W. Trumble, Michael J. Novotny, McNeer, Highland, McMunn & Varner, Martinsburg, for Respondents Charles D. Foster and Dolly D. Foster, et al.

Daniel C. Cooper, Steptoe & Johnson, Clarksburg, for Respondent City of Keyser, et al.

Frank X. Duff, James P. Mazzone, Robert G. McCoid, Schrader, Byrd, Companion & Gurley, Wheeling, for Petitioner Mountaineer Gas Company.

Oscar M. Bean, Bean & Bean, Moorefield, for Respondents R.J. Harber and M.S. Harber, et al.

David P. Cookman, Romney, for Respondents Tammy Martin, Administrator of the Estate of David G. Martin, et al.

Timothy M. Sirk, Keyser, for Respondent Charles B. Lanham, a West Virginia corporation, et al. William E. Mohler, III, James A. Jarrell, Kenneth E. Tawney, Columbia Gas Transmission Corporation, Charleston, for Amicus Curiae, Columbia Gas Transmission Corporation.

Avrum Levicoff, Tracey A. Jordan, Brown & Levicoff, Pittsburgh, Pennsylvania for Respondent Norman Parks, individually, and dba Parks Excavating.

Stephen L. Gaylock, Charleston, for Respondent Nationwide Mutual Insurance Company.

Homer Speaker, Burke Street Law Center, Martinsburg, for Respondents Charles Armentrout, et al.

Brian L. Mims, El Paso Energy Corporation, Houston, Texas and Bader C. Giggenbach, William C. Brewer & Associates, Morgantown, for Amicus Curiae, Tennessee Gas Pipeline Company.

Evan H. Jenkins, West Virginia Chamber of Commerce, Charleston, for Amicus Curiae, West Virginia Chamber of Commerce.

H.L. Snyder, Timothy M. Miller, Robinson & McElwee, Charleston, for Amicus Curiae, West Virginia Oil & Natural Gas Association. STARCHER, Justice:

This case arose out of a natural gas explosion in Keyser, West Virginia. Gas apparently leaked from an underground gas transmission line that runs along Beacon Street, and flowed through a sewer line into a house, where the gas ignited and exploded. The circuit court concluded, based on language in one of our cases, that the gas company which operated the transmission line was liable for the damages caused by the explosion, regardless of whether the company was at fault in the causation of the leak. We conclude that the circuit court (understandably) misapplied the language of the case in question. We note that a gas company has an extremely high standard of care with respect to its transmission lines, and the gas company may well have been at fault in the instant case, but we do not think that ordinarily imposing "strict liability" on transmitters of natural gas is necessary to achieve justice. We reverse the circuit court's order on this issue.

The circuit court also erred, we find, in ordering that all of the claims against the City of Keyser, which had employed a contractor to do excavation work in the area of the gas transmission line, were entirely barred by our statutes, because the parties claiming injury from the explosion had been compensated to a degree for their damages by their insurance. We determine that our statutes do not create such a bar, but we do hold that any recovery by the plaintiffs from Keyser is subject to an offset in the amount of first-party insurance proceeds that a plaintiff has received. We consequently reverse this order of the circuit court as well. We remand the case for further proceedings.

I.

Facts and Background

This appeal challenges two orders entered by the Circuit Court of Mineral County in several (consolidated) civil actions which arose out of a September 27, 1993 natural gas explosion in a residence just outside the city limits of Keyser, West Virginia.

In the consolidated cases, the plaintiffs, alleging personal and/or property damages as a result of the explosion, sued: (1) Mountaineer Gas Company ("Mountaineer"), which provided natural gas service to the residence from a buried natural gas transmission line1 running along the public street on which the residence is located; (2) the City of Keyser ("Keyser"), which provides sewage service to the residence through a buried sewer pipe that runs along the same street and near the gas transmission line; and (3) Parks Excavating Company ("Parks"), which was employed by Keyser to do excavation and repair of Keyser's sewer line in the area of the residence.

The plaintiffs in the consolidated civil actions claim that the defendants are jointly and severally liable for the plaintiffs' damages. All of the defendants have filed cross-claims against each other, seeking indemnity and contribution.

How did the explosion occur? From the limited record before us, it appears (we note that our factual discussion is not determinative in subsequent proceedings in this case) that about six weeks before the explosion, Parks, while working on the sewer line, uncovered and then backfilled around Mountaineer's gas transmission line. Parks contends that he requested from Mountaineer constant surveillance of his work during the portion of the excavation when the gas transmission line would be uncovered or exposed. Parks also claims that Mountaineer refused the request for help and explained that Mountaineer was short-staffed and could not spare the manpower to survey the project. Mountaineer apparently did perform some inspection of the excavation.

A West Virginia Public Service Commission ("PSC") investigation of the explosion concluded that movement and strain on the gas transmission line from Parks' excavation activities contributed to the failure of a compression coupling joining two sections of the gas line, which in turn led to the line's separation. Gas under pressure then apparently flowed through a nearby sewer line into the residence, after which the gas was ignited in an unknown fashion.

The PSC report recommended that, in light of the explosion, Mountaineer should revise its operating procedures regarding the inspection of gas transmission lines that could be damaged by excavation activities.2 Following a variety of motions and rulings that are not pertinent to the instant appeal, on August 5, 1996, the circuit court granted partial summary judgment as to liability for all plaintiffs against Mountaineer, under a theory of strict liability, relying upon language in this Court's opinion in the case of Everly v. Columbia Gas of W. Va., Inc., 171 W.Va. 534, 301 S.E.2d 165 (1982).3

In explaining his ruling, the circuit judge said that "there is strict liability ... [under] Everly ... it's their [Mountaineer's] problem... it's their product. If someone else caused their product to escape, you know they can go one, two, three [and proceed with...

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