Fullmer v. Swift Energy Co., Inc., 19630

• Decision Date: 22 April 1991
• Docket Number: No. 19630,19630
• Citation: 185 W.Va. 45,404 S.E.2d 534
• Court: West Virginia Supreme Court
• Parties: John FULLMER, M.D. and Marlene Fullmer v. SWIFT ENERGY CO., INC.

Page 534

404 S.E.2d 534

185 W.Va. 45

John FULLMER, M.D. and Marlene Fullmer v. SWIFT ENERGY CO., INC.

No. 19630.

Supreme Court of Appeals of

West Virginia.

April 22, 1991.

Syllabus by the Court

1. Where three separate occurrences at three different gas wells caused mud to flow into a stream flowing through plaintiffs' land, the three occurrences gave rise to three distinct claims by plaintiff, and the statute of limitations for each claim began to run at the time of the tortious act on which the claim is grounded.

2. We will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy.

Mark Gaydos, Wilson, Frame & Metheney, Morgantown, for John Fullmer, M.D. and Marlene Fullmer.

J. Cecil Jarvis, McNeer, Highland & McMunn, Clarksburg, for Swift Energy Co., Inc.

NEELY, Justice:

This is an appeal from the Circuit Court of Taylor County's denial of plaintiffs' motion for a new trial on the issue of damages. The plaintiffs, John Fullmer, M.D. and Marlene Fullmer sued Swift Energy Co., Inc., essentially for damages arising from 1) the laying by Swift of a gas pipeline across the Fullmer's land, ¹ and 2) the pollution with mud and sediment of a trout stream running through the Fullmer's land. ²

The Fullmers' complaint, filed on 12 January 1987, alleged that Swifts actions "temporarily and permanently damaged and reduced the market and use value of the plaintiffs' real property, and caused the plaintiffs severe inconvenience, annoyance, anger, and emotional distress and loss of and damage to the beneficial enjoyment of their property." In their prayer for relief, plaintiffs sought "$25,000.00 compensatory damages, $25,000.00 punitive damages, their costs, attorney's fees, and a temporary and permanent injunction requiring the defendant to remove the pipeline, or take such other corrective action as is necessary and for such other relief as the court finds just."

A trial ensued, at the end of which the jury returned a verdict for $2,500, an amount the Fullmers feel to be inadequate. The verdict was given in the form of a special verdict. Regarding the pollution of the stream, the jury found that Swift unreasonably polluted the stream where it flowed through the Fullmers' property, but that the Fullmers suffered no actual damages from the pollution. As for the pipeline, the jury found that Swift acted unreasonably or unnecessarily in locating its pipeline on the Fullmers' property, but that the Fullmers suffered no actual damages. As for punitive damages, the jury answered "yes" to the question, "... did Swift act in intentional, grossly negligent, wanton or reckless disregard of the Fullmers' rights," and awarded $2,500 in punitive damages. ³

The Fullmers claim that the jury's verdict was inadequate because 1) the trial court's order in limine regarding the statute of limitations kept the jury from considering evidence of pollution that occurred more than two years before plaintiffs filed suit, and 2) the jury ignored the evidence of the Fullmers' annoyance and inconvenience.

I.

Swift admits that there were three incidents of pollution of Laurel Run from their drilling of wells, and views these incidents as three separate occurrences. The first involved mud coming down from their Cadwalader No. 2 well on 21 December 1984. The second resulted from a pit breach on Cadwalader No. 3 on 26 February 1985. The third resulted from a failure to maintain sediment barriers in May of 1985.

Swift filed a motion in limine to exclude evidence of the 21 December 1984 pollution, because it occurred more than 2 years before the filing of the Fullmers' action on 12 January 1987. The trial court granted Swift's motion in limine. The Fullmers claim that the trial court erred in ruling that evidence of the 21 December 1984 incident was barred by the two year statute of limitations. They claim that the incidents of pollution represent a series of continuing tortious acts by Swift, rather than separate incidents of pollution, and cite Handley v. Town of Shinnston, 169 W.Va. 617, 289 S.E.2d 201 (1982).

The Shinnston case involved one persistently leaky waterline which continuously damaged plaintiff homeowners' land over a period of six years. The plaintiffs purchased their home in 1971, and in 1972 noticed that the waterline was leaking, and notified the town of the leak. In 1976, the waterline burst, causing a crack in plaintiffs' yard. The town was notified again and repaired the crack. Nevertheless, the line continued to leak until 1978, when it was removed. After the waterline was removed, the crack in plaintiffs' yard reappeared and continued to expand and slip, until finally a large crater formed in the yard and the foundation of the house shifted. In 1979, less than two years after removal of the leaky waterline, plaintiffs filed suit against the town for damage from the waterline. The town filed a motion for summary judgment on the grounds that the cause of action accrued over...