Good v. Am. Water Works Co., Civil Action No.: 2:14-01374
| Decision Date | 04 June 2015 |
| Docket Number | Civil Action No.: 2:14-01374 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | CRYSTAL GOOD, individually and as parent and next friend of minor children M.T.S., N.T.K. and A.M.S. and MELISSA JOHNSON, individually and as parent of her unborn child, MARY LACY and JOAN GREEN and JAMILA AISHA OLIVER, WENDY RENEE RUIZ and KIMBERLY OGIER and ROY J. McNEAL and GEORGIA HAMRA and MADDIE FIELDS and BRENDA BAISDEN, d/b/a FRIENDLY FACES DAYCARE, and ALADDIN RESTAURANT, INC., and R. G. GUNNOE FARMS LLC, and DUNBAR PLAZA, INC., d/b/a DUNBAR PLAZA HOTEL, on behalf of themselves and all others similarly situated, Plaintiffs, v. AMERICAN WATER WORKS COMPANY, INC., and AMERICAN WATER WORKS SERVICE COMPANY, INC., and EASTMAN CHEMICAL COMPANY and WEST VIRGINIA-AMERICAN WATER COMPANY, d/b/a WEST VIRGINIA AMERICAN WATER, and GARY SOUTHERN and DENNIS P. FARRELL, Defendants. |
Pending is the partial motion to dismiss by Eastman Chemical Company ("Eastman"), filed January 7, 2015.
On January 9, 2014, approximately 300,000 residents in the Charleston and surrounding area suffered an interruption intheir water supply. The interruption was caused by a spill into the Elk River of a coal processing chemical mixture sold and distributed exclusively by Eastman. The mixture was at the time being stored in a facility owned and operated by Freedom Industries, Inc. ("Freedom Industries").
The chemical, 4-methylcyclohexane methanol, and other substances, is referred to as "Crude MCHM." It infiltrated the water supply at the water treatment plant operated by West Virginia-American Water Company ("WV American"). Plaintiffs also assert that American Water Works Service Company, Inc. ("Service Company") and American Water Works Company, Inc. ("American"), bear responsibility for the infiltration and ensuing events. American is the parent of both WV American and Service Company. The three entities are referred to herein collectively as the "water company defendants."
Plaintiffs assert that the water company defendants could have prevented or avoided the incident by taking better precautionary measures, complying with applicable regulations, and using reasonable care. They assert a host of other failures on Eastman's part in its manufacturing, testing, and distribution of Crude MCHM. They generally contend Eastman failed to warn of the dangers stemming from the chemical release, negligently characterized the risk of Crude MCHM andits potential environmental and health hazards, and negligently sold that alleged hazardous chemical to a suspect facility situated upstream from a municipal water supply.
Some putative class members are businesses that lost revenue from the interruption. Others claim physical injuries, asserting that exposure to Crude MCHM in the environment through human pathways caused bodily injury and necessitated medical monitoring. All are alleged to have incurred costs for water replacement, travel, and other associated expenses.
On December 9, 2014, the First Amended Consolidated Class Action Complaint ("operative pleading") became the operative pleading in the case. Plaintiffs allege the following claims against Eastman:
Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide "a short and plain statement of the claim showing . . . entitle[ment] to relief." Fed. R. Civ. P. 8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it "fail[s] to state a claim upon which relief can be granted . . . ." Fed. R. Civ. P. 12(b)(6).
The required "short and plain statement" must provide "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other grounds, Twombly, 550 U.S. at 563); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007). In order to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); see also Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009).
Application of the Rule 12(b)(6) standard requires that the court "'accept as true all of the factual allegations contained in the complaint . . . .'" Erickson, 127 S. Ct. at 2200 (quoting Twombly, 127 S. Ct. at 1965); see also South Carolina Dept. Of Health And Environmental Control v. Commerce and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)). The court must also "draw[] all reasonable . . . inferences from th[e] facts in the plaintiff's favor . . . ." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Eastman offers a host of reasons for dismissal. First, it seeks dismissal of Counts One, Three, Seven, Eleven, Thirteen, and Fourteen (generally, negligence and strict liability counts) on the grounds that the claims are barred by the rule against recovery in tort of solely economic loss when physical injury to person or property is absent. Second, it requests dismissal of Counts Nine and Twenty-One, asserting the lack of a private right of action, the absence of standing, and conclusory pleading as to liability and causation. It next seeks dismissal of Count Eleven on the alternative ground that plaintiffs fail to plead they were exposed to a diseasemedically proven to cause death or substantial injury as required for negligent infliction of emotional distress.
Dismissal is sought for Count Fifteen based upon plaintiffs' asserted failure to suffer the "special injury" required for a public nuisance claim. Count Sixteen is challenged based upon its assertion of a common public right to support a private nuisance claim.
Count Seventeen is challenged as generally failing to state a claim for trespass. Count Nineteen is targeted for dismissal due to plaintiffs' putative failure to sufficiently allege a medical monitoring claim.
Thirteen and Fourteen:
The Economic Loss Rule
Eastman first asserts that plaintiffs' tort claims seeking damages for lost profits, business opportunities and unnamed other expenses are barred by the so-called economic loss rule. The general parameters of the rule are reasonably well-settled. In Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000), the supreme court of appeals observed as follows:
We conclude that an individual who sustains purelyeconomic loss from an interruption in commerce caused by another's negligence may not recover damages in the absence of physical harm to that individual's person or property, a contractual relationship with the alleged tortfeasor, or some other special relationship between the alleged tortfeasor and the individual who sustains purely economic damages sufficient to compel the conclusion that the tortfeasor had a duty to the particular plaintiff and that the injury complained of was clearly foreseeable to the tortfeasor.
Id. at 499, 541 S.E.2d at 589. The decision in Aikens stands for the principle that an individual who sustains purely economic loss due to another's negligence can only recover, when there is neither a contract or physical harm to person or property, when some special relationship exists between the parties.
The primary difficulty with Eastman's contention at this early stage of the litigation is that it is unclear that purely economic losses are at issue. Plaintiffs respond to Eastman's contention as follows:
Aikens does not...
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