Schoene v. Mcelroy Coal Co.

• Decision Date: 29 January 2016
• Docket Number: Civil Action No. 5:13-CV-95
• Court: U.S. District Court — Northern District of West Virginia
• Parties: MICHAEL SCHOENE and PATRICIA SCHOENE, Plaintiffs, v. MCELROY COAL COMPANY and CONSOL ENERGY INC., Defendants.

MICHAEL SCHOENE and PATRICIA SCHOENE, Plaintiffs, v. MCELROY COAL COMPANY and CONSOL ENERGY INC., Defendants.

Civil Action No. 5:13-CV-95

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA WHEELING

January 29, 2016

(BAILEY)

MEMORANDUM ORDER AND OPINION DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Currently pending before this Court is Defendants' Motion for Summary Judgment [Doc. 37], filed by McElroy Coal Company ("McElroy") and CONSOL Energy Company, Inc. ("CONSOL") on December 1, 2015. Plaintiffs filed a response to the Motion on December 23, 2015 [Doc. 39]. Defendants filed their reply on December 30, 2015 [Doc. 40]. Having been fully briefed, this matter is now ripe for decision. For the reasons set forth below, this Court will deny McElroy and CONSOL's Motion for Summary Judgment.

I. BACKGROUND

This case arises from an action originally filed in the Circuit Court of Marshall County, West Virginia, on June 26, 2013 [Doc. 1-1]. Defendants timely removed the case to this Court under federal diversity jurisdiction, 28 U.S.C. § 1332, on July 30, 2013 [Doc. 1]. On August 6, 2013, defendants collectively filed a Motion to Dismiss [Doc. 8], which this Court denied by Order dated August 8, 2013 [Doc. 9]. Plaintiffs then filed a Motion to Remand [Doc. 10] on August 20, 2013, which this Court also denied on September 12, 2013 [Doc. 17].

Plaintiffs subsequently filed an Amended Complaint [Doc. 24] on January 16, 2014. In the Amended Complaint, plaintiffs note that they own a home and 55 ½ acres of property situated in Liberty District, Marshall County, West Virginia, while defendants lease the coal interests under the same [Id. at ¶¶ 5-7]. Defendants' mining operations under plaintiffs' property have allegedly caused and are continuing to cause subsidence damage to plaintiffs' real and personal property [Id. at ¶ 9]. Notably, defendants have purportedly utilized the "longwall mining" technique to extract coal from plaintiffs' property [Id. at ¶ 8]. Plaintiffs now seek recourse under three theories of liability: (1) a common law claim for "Support of the Surface Estate"; (2) a statutory action brought pursuant to the West Virginia Surface Coal Mining and Reclamation Act ("WVSCMRA"), W.Va. Code §§ 22-3-25(f) and 22-3-25(c), and W.Va. C.S.R. §§ 38-2-16.1.a and 28-2-16.2.c.1; and (3) an additional statutory action brought pursuant to the Federal Surface Mining Control and Reclamation Act ("SMCRA"),¹ 30 U.S.C. §§ 1270(f), 1270(a), and 1309(a)(1), and provisions of 30 C.F.R. § 817.121 [Id. at ¶¶ 11-40]. Plaintiffs claim a number of property-based damages resulting from the subsidence, including damage to the surface, damage to and depletion of natural water springs, a pond, and several wells located on the property, damage to the physical structures located on the property, loss of use, and loss of property value [Id. at ¶¶ 42-45]. Plaintiffs also allege damages related to their private use and enjoyment of the property, including taking of coal interests, emotional and mental anguish, stress, and anxiety [Id. at ¶¶ 46-49]. Finally, plaintiffs argue that defendants' mining activities are sooutrageous that they are entitled to recover punitive damages [Id. at ¶ 51].

II. STANDARD OF REVIEW

Fed. R. Civ. P. 56 provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett

, 477 U.S. 317, 322-23 (1986). "The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

However, as the United States Supreme Court noted in Anderson, "Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. at 256. "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250; see also Charbonnages de France v. Smith

, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment "should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of thelaw." (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c); Ceiotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249 (citations omitted).

III. DISCUSSION:

A. There is a Genuine Issue of Material Fact as to Whether Plaintiffs Have Viable Claims against CONSOL.

This Court will first address defendants' arguments that CONSOL is not properly a party to this action. The defendants contend that plaintiffs' claims against CONSOL should be dismissed entirely, as that entity has never been the owner or operator of the mine at the center of this action [Doc. 38 at 1]. Instead, defendants argue that because, "McElroy was the entity which conducted the coal mining operations under the subject property and not CONSOL," CONSOL should be dismissed from this action [Id. at 4].² In support of thatargument, defendants argue that McElroy was the operator,³ permit holder,⁴ and the only "entity which conducted the coal mining operations under the subject property, and not CONSOL" [Id. at 13; citing Doc. 25 at ¶¶ 4 and 8].

Initially, it is necessary for this Court to examine the deeds at issue to this litigation. Defendants note that, "[t]here is no dispute plaintiffs own the subject surface property . . . [and] that plaintiffs' chain of title contains a deed issued to one of defendants' predecessors in interest, dated October 23, 1902, between Lindsey Stricklin, grantor, and George L. Hibbs, grantee" (hereinafter referred to as "the 1902 deed") [Id. at 3]. That deed severed the coal rights from the surface estate, and included a waiver of surface support (this Court will address the waiver issue below) [Doc. 37-1]. On August 31, 1966, the coal rights referenced above were transferred from Southern Reserve Coal Co. to Consolidation Coal Company (hereinafter referred to as "Consolidation") [Doc. 37-2].

In addition to CONSOL's ownership of the coal, the plaintiffs have produced evidence of the involvement of CONSOL in the mining operation. As an example of this involvement, plaintiffs cite pre-mining inspection documents which include references to CONSOL and feature a CONSOL Energy letterhead [Id.; citing Doc. 39-3, Letter from Jayson Johnson, Land Agent for CONSOL Energy, authorizing RDJ Consulting, LLC, as the survey crew for submittal of pre-subsidence regulation]. Plaintiffs have submitted an insurance policy relevant to this litigation that references CONSOL as the custodian ofMcElroy Coal Company [Doc. 39-4]. Finally, plaintiffs also proffered a "Post-Subsidence Evaluation" report, dated August 20, 2012 [Doc. 39-1]. This evaluation, which was purportedly conducted on the Schoene property, is directed to a non-party to this lawsuit, Mr. Jamie Kuffner, who is listed as a CONSOL employee [Id.]. The report also notes that another CONSOL employee, Ms. Krissy Hundertmark, was also present for the evaluation [Id.]. This evidence clearly demonstrates that CONSOL had at least some involvement with the mining activity at issue in this litigation. When viewing this evidence before this Court in a light most favorable to the non-moving party, it is clear that plaintiffs have presented a genuine issue of material fact as to whether CONSOL should be held liable for plaintiffs' alleged harms. See Matsushita Elec. Indus. Co.

, 475 U.S. at 587.

Even the 1902 deed and the 1966 conveyance, which defendants attached to their summary judgment motion, each feature bold letter labels reading, "Schoene-CONSOL 0469" and "Schoene-CONSOL 0455" affixed to the lower right hand corners. As such, given the clear weight of the evidence present before this Court, it is clear that this Court must deny defendants' Motion for Summary Judgement as to whether CONSOL is a proper defendant to this action.

B. Summary Judgment is Denied as to Plaintiffs' Common Law Claims for Support of the Surface Estate.

This Court will next address defendants' argument that plaintiffs' Count I fails as a matter of law, because plaintiffs' predecessors-in-interest expressly waived the right of support and the right to recover any common law damages resulting from a loss of support. Defendants premise this argument upon a clause within the 1902 deed which purportedlywaives the right to surface support [Doc. 38 at 3]. That clause provides:

"Togetherwith all

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