State ex rel. W. Virginia-American Water Co. v. Webster

Docket Number22-658
Decision Date06 June 2023
PartiesSTATE OF WEST VIRGINIA ex rel. WEST VIRGINIA-AMERICAN WATER COMPANY, Petitioner, v. THE HONORABLE CARRIE L. WEBSTER, Judge of the Circuit Court of Kanawha County, West Virginia; RICHARD JEFFRIES, individually And on behalf of all others similarly situated; and COLOURS BEAUTY SALON, LLC, Respondents.
CourtWest Virginia Supreme Court
Submitted: April 26, 2023

Petition for a Writ of Prohibition

Thomas J. Hurney, Jr., Esq.

Alexandra Kitts, Esq.

Blair E. Wessels, Esq.


Charleston, West Virginia and

Kent Mayo, Esq


Washington, D. C.

Counsel for Petitioner

Alex McLaughlin, Esq.

W. Stuart Calwell, Esq

L. Dante' diTrapano, Esq.


Charleston, West Virginia and

Kevin W. Thompson, Esq


Charleston, West Virginia

Counsel for Respondents Richard

Jeffries and Colours Beauty Salon, LLC

Marc E. Williams, Esq.

Jennifer W. Winkler, Esq.



Huntington, West Virginia

Counsel for Amici Curiae National

Association of Water Companies,

Edison Electric Institute, and American

Gas Association


1. "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 tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. "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. W.Va. Code 53-1-1." Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

3. "Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party." Syl. Pt. 8, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003), holding modified by State ex rel. Surnaik Holdings of WV, LLC v. Bedell, 244 W.Va. 248, 852 S.E.2d 748 (2020).

4. "When a class action certification is being sought pursuant to West Virginia Rule of Civil Procedure 23(b)(3), a class action may be certified only if the circuit court is satisfied, after a thorough analysis, that the predominance and superiority prerequisites of Rule 23(b)(3) have been satisfied. The thorough analysis of the predominance requirement of West Virginia Rule of Civil Procedure 23(b)(3) includes (1) identifying the parties' claims and defenses and their respective elements; (2) determining whether these issues are common questions or individual questions by analyzing how each party will prove them at trial; and (3) determining whether the common questions predominate. In addition, circuit courts should assess predominance with its overarching purpose in mind-namely, ensuring that a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. This analysis must be placed in the written record of the case by including it in the circuit court's order regarding class certification." Syl. Pt. 7, State ex rel. Surnaik Holdings of WV, LLC v. Bedell, 244 W.Va. 248, 852 S.E.2d 748 (2020).

5. "The 'commonality' requirement of Rule 23(a)(2) of the West Virginia Rules of Civil Procedure [1998] requires that the party seeking class certification show that 'there are questions of law or fact common to the class.' A common nucleus of operative fact or law is usually enough to satisfy the commonality requirement. The threshold of "commonality" is not high, and requires only that the resolution of common questions affect all or a substantial number of the class members." Syl. Pt. 11, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003), holding modified by State ex rel. Surnaik Holdings of WV, LLC v. Bedell, 244 W.Va. 248, 852 S.E.2d 748 (2020).

6. "The 'typicality' requirement of Rule 23(a)(3) of the West Virginia Rules of Civil Procedure [1998] requires that the 'claims or defenses of the representative parties [be] typical of the claims or defenses of the class.' A representative party's claim or defense is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Rule 23(a)(3) only requires that the class representatives' claims be typical of the other class members' claims, not that the claims be identical. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment." Syl. Pt. 12, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003), holding modified by State ex rel. Surnaik Holdings of WV, LLC v. Bedell, 244 W.Va. 248, 852 S.E.2d 748 (2020).

WOOTON, Justice:

Petitioner West Virginia-American Water Company (hereinafter "WVAWC") seeks a writ of prohibition to preclude enforcement of the Circuit Court of Kanawha County's July 5, 2022, order certifying an "issues" class pursuant to West Virginia Rule of Civil Procedure 23(c)(4) ("Rule 23(c)(4)") in this putative class action involving a June 2015 water main break in Dunbar, West Virginia. The break and its repair resulted in two separate water service interruptions that caused outages, inadequate water pressure, and boil water advisories affecting approximately 25,000 WVAWC customers for a period of three to seven days. Putative class plaintiffs/respondents herein, Richard Jeffries and Colours Beauty Salon, LLC (hereinafter "respondents"), filed a complaint on behalf of the putative class, asserting claims for violation of statute, breach of contract, and common law negligence against WVAWC for its alleged failure to adequately maintain its facilities to prevent and/or mitigate the break.

Upon respondents' motion, the circuit court certified an "issues" class to determine "the overarching common issues" as to WVAWC's liability. In opposition, WVAWC argued that the determination of liability under the causes of action asserted by respondents necessarily requires individualized assessments of the "impact" of the water main break as to each customer, destroying the required elements of commonality, typicality, predominance, and superiority under West Virginia Rule of Civil Procedure 23 ("Rule 23"). However, the circuit court found that the specific impact on each class member related to damages and was therefore severable from the underlying issue of whether WVAWC failed to maintain its facilities in such a manner as to comply with its statutory, contractual, and common law obligations to its customers.

After careful review of the parties' briefs,[1] their oral arguments, the appendix record, and the applicable law, we find that WVAWC has failed to demonstrate that the circuit court's class certification pursuant to Rule 23(c)(4) is clearly erroneous and therefore deny the requested writ of prohibition.


The underlying case involves a break in WVAWC's 36-inch diameter prestressed concrete cylinder pipe transmission main in Dunbar, West Virginia, which serves western Kanawha, eastern Putnam, eastern Mason, and northern Lincoln counties. The break was discovered on June 23, 2015 and affected water service to approximately 25,000 customers. On June 23, customers began to experience outages and water pressure issues; WVAWC issued a precautionary boil water advisory for customers west of Dunbar and advised those customers to limit non-essential water use. Service was restored on June 27, 2015, but further problems developed causing additional disruptions in service.

Another boil water advisory was issued on June 29, 2015, for customers who experienced low or no water pressure. Full water service was allegedly restored on July 1, 2015.

On June 2, 2017, the instant civil action was filed by respondents on behalf of the putative class of affected customers. Respondents alleged, inter alia, that WVAWC was aware that the main was unreliable and prone to breakage yet failed to replace the main or make feasible improvements, such as connecting to a neighboring system, adding larger capacity mains, or increasing treated water storage, to mitigate...

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