Patrick v. Sharon Steel Corp., Civ. A. No. 81-0025-C(H).

• Decision Date: 27 October 1982
• Docket Number: Civ. A. No. 81-0025-C(H).
• Citation: 549 F. Supp. 1259
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Rosemary PATRICK, et al., Plaintiffs, v. SHARON STEEL CORPORATION, Defendant.

549 F. Supp. 1259

Rosemary PATRICK, et al., Plaintiffs, v. SHARON STEEL CORPORATION, Defendant.

Civ. A. No. 81-0025-C(H).

United States District Court, N.D. West Virginia, Clarksburg Division.

October 27, 1982.

COPYRIGHT MATERIAL OMITTED

Ray E. Ratliff, Jr., Kaufman & Ratliff, Charleston, W. Va., for plaintiffs.

Blair S. McMillin, Thomas R. Wright, Robert W. Thomson, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Alfred J. Lemley, Furbee, Amos, Webb & Critchfield, Fairmont, W. Va., for defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

I. Background

This action was commenced by fifteen individual Plaintiffs to recover for damages they claim resulted from Sharon Steel Corporation's (Sharon) operation of its Fairmont Coke Works in Fairmont, West Virginia.¹ Plaintiffs allege that Sharon "willfully emitted into the ambient air large quantities of gaseous and solid pollutants which are both harmful and noxious."² Plaintiffs further assert that these pollutants had deleterious effects on Plaintiffs' health, and their real and personal property. The complaint also states that Sharon maintained refuse "ponds or dumps into which were discharged manufacturing by-products or refuse including, but not limited to, cyanide and other noxious and toxic compounds"³ which have drained into the local water table and streams.

II. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Each of the Plaintiffs is a resident of West Virginia; the Defendant, Sharon Steel Corporation, is incorporated under the laws of Pennsylvania and has its principal place of business in Farrell, Pennsylvania.

III. Pending Motions

Pending before the Court are numerous motions filed on behalf of both parties. Sharon has filed the following motions: (1) Motion to Dismiss for Lack of Jurisdictional Amount; (2) Motion for Summary Judgment Premised on Statute of Limitations; (3) Motion for Summary Judgment on Plaintiffs' Claims for Negligence, Private Nuisance, Trespass and Strict Liability; (4) Motion for Summary Judgment on Plaintiffs' Claims for Private Nuisance; and (5) Motion to Dismiss Action and Complaint of Olympia M. Davis. The Plaintiffs have filed the following motions: (1) Motion to Sever; (2) Motion for Judicial Notice; and (3) Motion to Reconsider Plaintiffs' Motion for Partial Summary Judgment. The Court will address these motions in the order in which they are listed above.

IV. Sharon Steel's Motions

1. Motion to Dismiss for Lack of Jurisdictional Amount.

Pursuant to 28 U.S.C. § 1332 the amount in controversy as to each Plaintiff must exceed $10,000.00 for this Court to have jurisdiction. Sharon moves this Court to dismiss this case on the basis that the requisite jurisdictional amount has not been met. The general rule governing this question is that the "sum claimed by the Plaintiff controls if the claim is apparently made in good faith." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) and cases cited therein; see also, Gauldin v. Virginia Winn-Dixie, Inc., 370 F.2d 167, 170, n. 1 (4th Cir.1966). However, where a Plaintiff's allegations of jurisdictional facts are challenged, the Plaintiff must support them by competent proof. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). To dismiss an action on this basis it "must appear to a legal certainty that the claim is really less than the jurisdictional amount ...." St. Paul Mercury, supra, 303 U.S. at 289, 58 S.Ct. at 590, quoted in Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890 (1961).

The Court finds this argument of Sharon to be without merit. The Court notes initially that the ad damnum, though not controlling, requests the following compensatory damages⁴ for each Plaintiff.⁵

                  Plaintiffs                        Damages
                  Rosemary Patrick                 $ 90,000
                  Charles Patrick                    50,000
                  Janet L. Hylton                    50,000
                  Larry K. Hylton                    50,000
                  Betty Yoston                       75,000
                  Anthony L. Iorio                   50,000
                  Mary H. Iorio                      50,000
                  Olympia M. Davis                  150,000
                  Chandra Patrick                    90,000
                  Candance D. Hylton                 50,000
                  Heather M. Hylton                  50,000
                  Allison L. Hylton                  50,000
                  Jamie Yoston                      150,000
                  Leslie Yoston                      50,000
                  Paul C. Iorio                     100,000
                

Obviously, each of the amounts quoted above exceeds the $10,000.00 jurisdictional requirement. Moreover, considering the nature of the alleged wrongdoing as well as the types of damages claimed, the complaint appears to have been drafted in good faith as required by the Supreme Court's decision in St. Paul Mercury, supra.

To find that the requisite jurisdictional amount has been satisfied, however, the Court need not simply rely upon the good faith assertions in the complaint. The Plaintiffs have, in their reply memorandum opposing Sharon's motion to dismiss on this ground, summarized some of the specific damages incurred by each Plaintiff. It is not necessary to recount here the damages suffered by each of the fifteen Plaintiffs. A fair summary of these claims for damages is found in Plaintiffs' reply memorandum wherein they accuse Sharon of "polluting their air, diminishing the value of their real estate, damaging their houses and other personal property, ruining their soil, inhibiting the growth of their produce, endangering their lives and health and causing injury to their health, including permanent damage to eyes and respiratory and nervous systems, causing inconvenience, aggravation, loss of consortium and general annoyance and hardship to their lives."⁶ Considering the complaint and Plaintiffs' memorandum supporting their elements of damages the Court finds that it does not "appear to a legal certainty that the claim is really less than the jurisdictional amount" and, therefore, denies Sharon's motion to dismiss on that basis.

2. Motion for Summary Judgment Premised on the Statute of Limitations.

Sharon argues that Plaintiffs' action is barred by the statute of limitations. Their argument proceeds along the following lines. Sharon's Fairmont Coke Works was a "permanent" structure and, as a consequence, any injury which the construction and operation of the coke works caused to the Plaintiffs is a permanent injury for which a single cause of action accrues.⁷ Sharon further contends that because West Virginia would follow the "rule of injury"⁸ rather than the "discovery rule"⁹ in determining from what date the statute of limitations begins to run, the two year statute of limitations¹⁰ bars Plaintiffs' action inasmuch as the injuries for which they seek recovery were incurred more than two years prior to the filing of their action.

In considering Sharon's motion the Court notes that under the doctrine enunciated in Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) West Virginia law controls the question of when the statute of limitations began to run. In reviewing the relevant West Virginia law, the Court finds the above outlined argument of Sharon unpersuasive for two important reasons. First, there is ample basis to conclude that the "discovery rule" would be applied by West Virginia courts in determining the date the two year statute of limitation period commenced to run. The West Virginia Supreme Court of Appeals has adopted the discovery rule in cases involving subterranean coal mining,¹¹ medical malpractice¹² and legal malpractice.¹³ Further, in Pauley v. Combustion Engineering, 528 F.Supp. 759 (S.D.W.Va.1981) the district court held, applying West Virginia law, that the West Virginia Supreme Court would extend the discovery rule to apply to a personal injury case based on a worker's contraction of asbestosis.

Sharon attacks the Pauley decision as "clearly improper" and contends that the federal courts in this state are bound to apply the rule of injury set forth by the West Virginia Supreme Court in Scott v. Rinehart & Dennis Co., 116 W.Va. 319, 180 S.E. 276 (1935). This argument was addressed in the Pauley decision. Judge Staker reasoned that a federal court "is not immutably bound under Erie to follow the state court decisions if it appears that the highest state court would not rely on such precedent." Pauley, supra, at 761. In support of this position the Court in Pauley quoted Calvert v. Katy Taxi, Inc., 413 F.2d 841 (2d Cir.1969):

"Due to the continuing development of, and ongoing changes in, today's concepts of legal liability, we, in determining the state law that we are to apply, cannot permit ourselves to be confined by state court decisional approaches if we have sound grounds to believe that the highest state court would in a case like ours adopt a different approach than the approaches in prior cases."

Pauley, supra, at 762. See also, C.R. Fedrick, Inc. v. Borg-Warner Corporation, 552 F.2d 852 (9th Cir.1977); Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir.1973) cert. denied 415 U.S. 985, 94 S.Ct. 1580, 39 L.Ed.2d 882 (1974); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir.1967).

This Court agrees with the opinion expressed in Pauley that the Erie doctrine does not foreclose the federal court's capability to consider continuing developments in legal principles when determining questions of state law. In this regard, the Court concludes that the discovery rule would be applied by West Virginia courts in cases such as the one at bar. This conclusion is based on the West Virginia Supreme Court's reasoning that the discovery rule should be extended to cases when "such extension is designed to promote justice and right." Family Savings and Loan, Inc. v. Ciccarello, 157 W.Va. 983, 991, 207 S.E.2d 157, 162 (1974). The decision herein is...