Michael v. Consolidation Coal Co.
| Decision Date | 31 March 2017 |
| Docket Number | CIVIL ACTION NO. 1:14CV212 |
| Parties | MICHAEL D. MICHAEL, as the Administrator of the ESTATE OF JACK D. MICHAEL, and JUDITH A. KUHN, as the Administratrix of the ESTATE OF PAUL F. HENDERSON, et al., Plaintiffs, v. CONSOLIDATION COAL COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of West Virginia |
(Judge Keeley)
Pending before the Court are the Report and Recommendation ("R&R") of United States Magistrate Judge (ret.) John S. Kaull (dkt. no. 99), and the motion to dismiss filed by the defendant, Consolidation Coal Company ("CCC") (dkt. no. 4). This case stems from the deaths of seventy-eight miners as a result of a tragic coal mining explosion in 1968. Ultimately, the Court concludes that the Plaintiffs' wrongful death claim is barred by the then applicable two-year limitation period, and was not tolled by either the discovery rule or the fraudulent concealment doctrine. Accordingly, the Court ADOPTS the R&R and GRANTS the defendant's motion to dismiss.
On the fateful day of November 20, 1968, the Consol No. 9 coal mine ("the Mine"), located near Farmington, West Virginia, exploded and caught fire, resulting in the deaths of seventy-eight coal miners. Following ten years of recovery efforts, the Mine was permanently sealed in November of 1978.
At the time of the explosion, the Mine had four ventilation fans that controlled the level of methane buildup resulting from the mining operations. The No. 3 fan, which is the only fan at issue in this case, was located at Mod's Run near the 4 North area of the Mine ("Mod's Run fan"). Each fan was controlled by a "FEMCO Supervisory Control" safety alarm system ("FEMCO"), which was designed to trigger a red light and audible alarm in the Mine's lamp house whenever the fan slowed down or stopped. When triggered, the alarm would notify the underground miners of the situation; if the fan remained inoperable for more than twelve minutes, the alarm would shut down electricity to the Mine.
For the next twenty-two years, inspectors from various state and federal agencies conducted multiple investigations into the fire and explosion at the Mine. One of the inspectors was Larry L.Layne ("Layne"), who worked for the Mine Safety and Health Administration ("MSHA"). Layne filed a memorandum of his investigation on September 15, 1970, in which he reported the following:
On September 5, 1970, 12am-8am shift, the Mods Run substation was energized for the first time since the explosion of November 20, 1968. The electrician (name withheld by request) reported that while energizing the substation he found evidence to indicate that the FEMCO fan alarm system for Mod's Run fan had been rendered inoperable prior to the explosion. The fan alarm system had been bridged with jumper wires; therefore, when the fan would stop or slow down, there was no way of anyone knowing about it because the alarm system was bypassed . . . .
In March, 1990, nearly twenty years after Layne wrote his memorandum, MSHA issued an investigation report, stating in pertinent part:
Although the Plaintiffs acknowledge that they became aware of Layne's memorandum sometime in 2008, they allege that it was not until June 9, 2014, that they learned that the chief electrician at the Mine, Alex Kovarbasich ("Kovarbasich"), was the person who had rendered the FEMCO alarm on the Mod's Run fan inoperable.1 Thus, they claim that, from November 20, 1968 until June 14, 2014, they never knew the identity of the person responsible for rendering the fan inoperable, nor could they have discovered his identity through the exercise of reasonable diligence. Further, they contend that neither Kovarbasich nor CCC ever disclosed that the Mod's Run fan was "intentionally rendered inoperable by mine management." Id. at 14.
On November 6, 2014, the Plaintiffs and class representatives, Michael D. Michael, as the Administrator of the Estate of Jack D. Michael, and Judith A. Kuhn, as the Administratrix of the Estate of Paul F. Henderson (collectively "Plaintiffs"), brought suit in the Circuit Court of Marion County, West Virginia "on behalf of a classof the estates of the seventy-eight (78) coal miners," against CCC and Albert Marano, Sheriff of Harrison County ("Sheriff"), as Administrator of the Estate of Kovarbasich, who had died on August 3, 1992. The complaint alleges one count of "fraud, concealment and nondisclosure." Id. at 19.
On December 11, 2014, CCC removed the case to this Court based on diversity jurisdiction. It argued that the Plaintiffs had fraudulently joined Kovarbasich to destroy diversity, (dkt. no. 1), and that the Harrison County Commission had improperly appointed Sheriff Marano as Administrator of the Kovarbasich Estate. It contended that the Estate, which had been closed since April 25, 1994, should never have been reopened. It also argued that Kovarbasich was not a proper defendant because any claims against him were barred by the statute of limitations and the doctrine of laches. Id.
Pursuant to Fed. R. Civ. P. 12(b)(6), CCC moved to dismiss the suit against it on December 17, 2014, on the basis that the Plaintiffs' claims were barred by the statute of limitations. (Dkt. No. 4). Shortly after that, the Plaintiffs filed a motion to remand the case to the Circuit Court of Marion County. They denied that Kovarbasich had been fraudulently joined, or that their claims werebarred by the statute of limitations. They also moved to stay consideration of CCC's motion to dismiss until after the Court ruled on their motion to remand. (Dkt. No. 10).
On February 9, 2015, while the parties' motions were pending, the Plaintiffs moved to "Preserve Evidence and Promptly Perpetuate the Testimony of Leonard Sacchetti and Request Immediate Hearing." (Dkt. No. 22). The motion asserted that Leonard Sacchetti ("Sacchetti"), a former electrician at the Mine, had personal knowledge of the identity of the individual who had bypassed the FEMCO alarm on the Mod's Run fan in 1968. Because Sacchetti was ninety years old, the Plaintiffs sought an order authorizing them to promptly take his videotaped deposition. The Court granted the motion and ordered that, in recognition of Sacchetti's advanced age, the parties work together to establish parameters for the deposition.
Shortly after Sacchetti's deposition, on April 6, 2015, the Plaintiffs filed a motion to "Preserve Evidence and Promptly Perpetuate the Testimony of Larry Layne and Request Immediate Hearing." (Dkt. No. 57). They asserted that Layne knew the identity of the person who had reported to him that someone had bridged the Mod's Run fan. As they had when seeking Sacchetti's deposition, thePlaintiffs maintained that, because of Layne's advanced age (80 years old at the time), it was imperative to promptly secure his testimony. On April 10, 2015, Magistrate Judge Kaull permitted the Plaintiffs to depose Layne on a date certain more than 180 days from the entry of his order, which would allow them time to initiate any process required under 29 C.F.R. §§ 2.20 et seq.2 (Dkt. No. 57 at 5). In addition, he authorized the defendants to conduct discovery of certain enumerated categories of information relevant to the deposition of Layne. Id.
Also on April 10, 2015, after it learned that the Circuit Court of Harrison County was reviewing CCC's appeal of the County Commission's appointment of the Sheriff as Administrator of Kovarbasich's Estate, the Court stayed a ruling on the pending motions, noting that, in the interests of federalism, comity, andjudicial economy, the surest way to avoid "the possibility of inconsistent adjudications and unnecessary entanglement between the federal and state court systems in West Virginia" was to stay any ruling on the motion to remand pending a decision from the Supreme Court of Appeals of West Virginia ("Supreme Court of Appeals"). (Dkt. No. 56 at 3-4).
During the stay, on July 31, 2015, the Plaintiffs sought leave to amend their complaint in order to add Sacchetti as a defendant. (Dkt. No. 64). They contended that they had only become aware of his role in bridging the Mod's Run fan on April 3, 2015. CCC opposed the motion, contending that, in "direct and intentional violation of this Court's April 10, 2015 Order [limiting discovery]," the Plaintiffs had met with Layne on April 3, 2015, and had secured his affidavit.3 (Dkt. No. 68 at 2). In CCC's view, because Plaintiffs' motion for leave to amend rested solely on an improperly obtained affidavit, the Court should strike it as improper. Id. Alternatively, CCC asked the Court to strike Layne's affidavit and any reference to it from the motion to amend, and to afford the affidavit no consideration in deciding that motion.Id. Finally, it sought to prohibit the Plaintiffs from introducing Layne's affidavit or any testimony from it into evidence in the case. Id.
The Court referred these motions to Magistrate Judge Kaull, who concluded that the Plaintiffs had not violated any court order or 29 C.F.R. §§ 2.20, et seq. (Dkt. No. 97 at 7-10). Accordingly, he denied CCC's attempt to strike Layne's affidavit or testimony. Id. at 10. As to the Plaintiffs' motion for leave to amend...
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