State ex rel. Am. Elec. Power Co. v. Nibert

Decision Date15 April 2016
Docket NumberNo. 15–0819.,15–0819.
CourtWest Virginia Supreme Court
Parties STATE of West Virginia ex rel. AMERICAN ELECTRIC POWER CO., INC.; American Electric Power Service Corporation; Ohio Power Company; and Doug Workman, Petitioners v. Honorable David W. NIBERT, Judge of the Circuit Court of Mason County; Estate of Bobby Clary by Joy Clary, Administrator; Estate of Larry Laudermilt by Harriet Laudermilt, Administrator; Estate of Fred Parker by Nancy Parker, Administrator; Estate of James Stewart by Shawn Stewart, Administrator; Estate of Joan Wamsley by John Wamsley, Administrator; Estate of Judith Wright by Thomas Wright, Administrator; Robert Allen; Larry Angel; Joseph Ball ; Paul Brammer ; Robert Bruce; Ronald Campbell; Anthony Cardillo; David Carsey; James Chapman; Rick Clary ; Gary Cooper; Charles Ehman; Robert Frazier; David Jones; Richard Lambe; Tonya Lavender; Harriett Laudermilt; Paul McDaniel ; Tammy Mullens; Tracy Mullens; John Poff; Don Rees ; Elton Ritchie; Wilbur Robinson ; Michael Shaw; Roger Short ; Iva Sisson; Carlos Stepp; Theron Swisher; Roy Taylor; Paul Thomas; Joan Wamsley; Sharen Wamsley; Steven Watson; Edmond Wright; Thomas Wright; Tiana Angel, by Tina Hudson, Mother and Next Friend; Tina Hudson; Joyce Barcus; Augustene Brammer; Kacey Burris; Cheryl Clary; Janet Rees ; Diana Wright ; Larry Angel, II; Terri Booth; Shawn Cardillo; Amy Edwards ; Jesse Ehman; Melissa Hayes; Alexis Mullens; Elizabeth Pierce ; Hanna Ramsburg; Darrin Reese; Christopher Shaw ; John Sisson; Robert Sisson, Jr.; Karen Terry; Don Wamsley; Robin Wamsley; Jacob Watson ; Jeremiah Watson; Terri Carsey; Suzanne Chapman; Dian McDaniel; Brenda Poff; Cheryl Shaw; Robert Sisson; Vicki Taylor ; Karen Thomas; and Sheila Watson, Respondents.
Dissenting Opinion of Justice Loughry

Ancil G. Ramey, James W. Turner, Jessica L. Wiley, Steptoe & Johnson PLLC, Huntington, WV, for the Petitioners.

Christopher J. Regan, J. Zachary Zatezalo, Laura P. Pollard, Bordas & Bordas, PLLC, Wheeling, WV, L. David Duffield, Chad S. Lovejoy, Duffield, Lovejoy, Stemple & Boggs, PLLC, Huntington, WV, for the Respondents.

DAVIS

, Justice:

The petitioners herein, American Electric Power Co., Inc., et al. (collectively, "AEP"), request this Court to issue a writ of prohibition to prevent the enforcement of an order entered August 5, 2015, by the Circuit Court of Mason County. By that order, the circuit court denied AEP's motion to dismiss based upon forum non conveniens.1 Before this Court, AEP contends that the circuit court erred by refusing to dismiss the underlying complaint pursuant to the forum non conveniens statute, W. Va.Code § 56–1–1a (2008)

(Repl. Vol. 2012).2 Upon a review of the parties' briefs, the record designated for appellate consideration, and the pertinent authorities, we deny the requested writ of prohibition. In summary, we find that the circuit court adequately considered and applied the statutory forum non conveniens factors in refusing AEP's motion to dismiss on such grounds.

I.FACTUAL AND PROCEDURAL HISTORY

The instant proceeding originated when the respondents herein, the estate of Bobby Clary, by his administrator Joy Clary, et al. (collectively, "the Plaintiffs"), filed the underlying action against AEP in the Circuit Court of Mason County on August 9, 2014. In their complaint, the Plaintiffs sought damages for injuries they, or their family members, have incurred as a result of their exposure to coal combustion waste from the General James M. Gavin Power Plant, the General James M. Gavin Landfill, and associated facilities (collectively, "Gavin Landfill") in Gallipolis, Ohio. The Plaintiffs allege that they, or the parties they represent, have developed numerous different types of cancer

and/or other health problems from their exposure to the coal waste. Specifically, the Plaintiffs claim that such coal waste, or fly ash, contains a variety of toxic metals, including arsenic, mercury, chromium, lead, uranium, cadmium, thallium, and molybdenum. Of the seventy-seven named plaintiffs, approximately nine plaintiffs are West Virginia residents; the remaining plaintiffs are primarily residents of Ohio and Kentucky, while a few reside in still other states.

The Plaintiffs allege that AEP owns and/or operates3 the Gavin Landfill and that its employee and named defendant below, Doug Workman ("Mr. Workman"), specifically directed the employee plaintiffs to work in and around the coal waste and fly ash. The Plaintiffs further allege that Mr. Workman failed to address concerns raised by the employee plaintiffs questioning the safety of coal waste exposure, that they were not provided with protective gear to minimize the effects of such exposure, and that AEP and Mr. Workman intentionally concealed the hazardous effects of the coal waste and exposure thereto. While the Gavin Landfill is located in Ohio, AEP conducts significant business in West Virginia, and Mr. Workman is a West Virginia resident.

In response to the Plaintiffs' complaint, AEP filed a motion to dismiss based upon forum non conveniens. To support its motion, AEP contended that because most of the Plaintiffs are not residents of West Virginia and because the Plaintiffs' cause of action, i.e., exposure to coal waste and resultant injuries, accrued in Ohio, and not in West Virginia, dismissal of the case pursuant to the forum non conveniens statute, W. Va.Code § 56–1–1a

, was proper. The Plaintiffs replied that any inconvenience resulting from pursuing their claims in West Virginia, rather than in Ohio, was insignificant insofar as the geographical distance between the West Virginia and Ohio courthouses is less than ten miles, the majority of the defendants are amenable to suit in West Virginia, the Plaintiffs have all agreed to litigate their claims in West Virginia, and the vast majority of the case's witnesses are the Plaintiffs, themselves, who have agreed to make themselves available for depositions and courtroom testimony in West Virginia.

The circuit court held a hearing on AEP's motion, and, by order entered August 5, 2015, refused AEP's motion to dismiss based upon forum non conveniens. Applying each of the statutory factors, and rendering findings of fact and conclusions of law as to each,4 the circuit court determined that West Virginia is not such an inconvenient forum so as to require trial of the case elsewhere. The court further expressed concern that dismissal of the case would deprive West Virginia residents of their constitutional right to pursue their claims against the defendants in a West Virginia and simultaneously treat nonresidents differently by depriving nonresidents of rights afforded to West Virginia residents.5 Finally, the court noted that, to the extent that Ohio law might govern the parties' dispute, the court regularly applies Ohio law in cases over which it presides given its proximity to the Ohio border. From this adverse ruling, AEP seeks extraordinary relief from this Court to prohibit the circuit court from enforcing its August 5, 2015, order.

II.STANDARD FOR ISSUANCE OF WRIT

In this proceeding, AEP requests this Court to issue a writ of prohibition to prevent the circuit court from enforcing its order which denied AEP's motion to dismiss based upon forum non conveniens. As an extraordinary remedy, this Court reserves the granting of such relief to "really extraordinary causes." State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996)

(internal quotations and citations omitted). Accordingly, "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Moreover, "this Court will use prohibition ... to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), superseded by statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W.Va. 564, 759 S.E.2d 795 (2014).

Furthermore, we previously have recognized that cases involving venue determinations entail a high probability of reversal if errors are not corrected at the outset and, thus, are appropriate for extraordinary relief. See State ex rel. Huffman v. Stephens, 206 W.Va. 501, 503, 526 S.E.2d 23, 25 (1999)

("In the context of disputes over venue, such as dismissal for forum non conveniens ... a writ of prohibition is an appropriate remedy to resolve the issue of where venue for a civil action lies, because the issue of venue has the potential of placing a litigant at an unwarranted disadvantage in a pending action and relief by appeal would be inadequate." (internal quotations and citations omitted)).

When deciding whether the writ of prohibition should issue in a given case, we have held as follows:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower
...

To continue reading

Request your trial
10 cases
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • West Virginia Supreme Court
    • November 20, 2020
    ...198 W. Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted)." State exrel. Am. Elec. Power Co. v. Nibert, 237 W. Va. 14, 19, 784 S.E.2d 713, 718 (2016). "Historically, we have limited our exercise of original jurisdiction in prohibition because it is an extra......
  • State ex rel. Justice v. King
    • United States
    • West Virginia Supreme Court
    • November 24, 2020
    ..., 198 W. Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted)." State ex rel. Am. Elec. Power Co. v. Nibert , 237 W. Va. 14, 19, 784 S.E.2d 713, 718 (2016). "Historically, we have limited our exercise of original jurisdiction in prohibition because it is an e......
  • State ex rel. AmerisourceBergen Drug Corp. v. Moats
    • United States
    • West Virginia Supreme Court
    • June 11, 2021
    ...State ex rel. Vanderra Res., LLC v. Hummel , 242 W. Va. 35, 40, 829 S.E.2d 35, 40 (2019) (quoting Am. El. Power Co. v. Nibert , 237 W. Va. 14, 19, 784 S.E.2d 713, 718 (2016) ).23 State ex rel. Owners Ins. Co. v. McGraw , 233 W. Va. 776, 780, 760 S.E.2d 590, 594 (2014).24 Syl. Pt. 10, in par......
  • State ex rel. Vanderra Resources, LLC v. Hummel
    • United States
    • West Virginia Supreme Court
    • June 3, 2019
    ...judgment. Plaintiff Chesapeake filed a cross-motion for partial summary judgment against all defendants.3 Am. El. Power Co. v. Nibert , 237 W. Va. 14, 19, 784 S.E.2d 713, 718 (2016) (citing State ex rel. Suriano v. Gaughan , 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotation......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT