State ex rel. W. Virginia-American Water Co. v. Webster
Docket Number | 22-658 |
Decision Date | 06 June 2023 |
Parties | STATE 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. |
Court | West Virginia Supreme Court |
Petition for a Writ of Prohibition
Thomas J. Hurney, Jr., Esq.
Alexandra Kitts, Esq.
Blair E. Wessels, Esq.
JACKSON KELLY PLLC
Charleston, West Virginia and
Kent Mayo, Esq
BAKER BOTTS L.L.P.
Counsel for Petitioner
Alex McLaughlin, Esq.
W. Stuart Calwell, Esq
L. Dante' diTrapano, Esq.
CALWELL LUCE diTRAPANO, PLLC
Charleston, West Virginia and
Kevin W. Thompson, Esq
THOMPSON BARNEY
Charleston, West Virginia
Counsel for Respondents Richard
Jeffries and Colours Beauty Salon, LLC
Marc E. Williams, Esq.
Jennifer W. Winkler, Esq.
Edison Electric Institute, and American
Gas Association
1. Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
2. Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).
3. 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).
5. 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. 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).
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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