United States District Court, N.D. West Virginia, Wheeling
MEMORANDUM ORDER AND OPINION GRANTING PLAINTIFFS'
MOTION FOR PARTIAL SUMMARY JUDGMENT
PERESTON BAILEY, UNITED STATES DISTRICT JUDGE.
pending before this Court is Plaintiffs' Motion for
Partial Summary Judgment [Doc. 25], filed August 7, 2017.
Defendants filed a response to the Motion on August 28, 2017
[Doc. 29]. Plaintiffs did not file a reply. Having been fully
briefed, this matter is now ripe for decision. For the
reasons set forth below, this Court grants Plaintiffs'
Motion for Partial Summary Judgment.
case arises from an action originally filed in the Circuit
Court of Marshall County, West Virginia, on July 20, 2016
[Doc. 1-1]. Defendants timely removed the case to this Court
under federal diversity jurisdiction, 28 U.S.C. § 1332,
on August 22, 2016 [Doc. 1].
subsequently filed an Amended Complaint [Doc. 6] on September
6, 2016. In the Amended Complaint, plaintiffs note that they
own a home and approximately 65 acres of property situated in
the Cameron area of Marshall County, West Virginia, while
defendants own and/or lease certain coal interests on the
same [Id. at ¶¶ 9-12]. Defendants'
mining operations under plaintiffs' property has
allegedly caused and are continuing to cause subsidence
damage to plaintiffs' real and personal property
[Id. at ¶ 14]. Notably, defendants have
purportedly utilized the "longwall mining"
technique to extract coal from plaintiffs' property
[Id. at ¶ 13]. Plaintiffs now seek recourse
under four 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, 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.1-3; (3) an additional statutory
action brought pursuant to the Federal Surface Mining Control
and Reclamation Act, 30 U.S.C. §§ 1270(f), 1270(a),
and 1309(a)(1), and provisions of 30 C.F.R. § 817.121
[Id. at ¶¶ 20-60]; and (4) an additional
common law claim for "Promissory Estoppel, Agency and
Respondent Superior." Plaintiffs claim a number of
property-based damages resulting from the subsidence,
including damage to the surface, damage to the physical
structures located on the property, loss of use, and loss of
property value [Id. at ¶¶ 25-28].
Plaintiffs also allege damages related to their private use
and enjoyment of the property, including annoyance and
inconvenience [Id. at ¶¶ 28-29].
regards to Plaintiffs' Motion for Partial Summary
Judgment [Doc. 25], plaintiffs allege that the defendants
assert that language in the chain of title to the
plaintiffs' property precludes any common law claim of
damage. The clause at issue in this case comes from a 1902
deed from Issac Moose to G.L. Hibbs, recorded in Marshall
County, which provides:
Together with all the rights and privileges necessary and
useful in the mining and removing of the said coal, including
the right of mining the same without leaving any support for
the overlying stratas and without liability for any injury
which may result to the surface from the breaking of said
26 at 4, 7]. Plaintiffs seek a ruling that this alleged broad
form waiver of damages related to subsidence damages is not
STANDARD OF REVIEW
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)).
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 the law." (citing Stevens
v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.
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); Celotex
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
seek partial summary judgment on the issue of the
applicability of an alleged waiver of liability and damages
for subsidence related to underground longwall coal mining.
Again, the clause at issue comes from a 1902 deed to the
plaintiffs' predecessors- ...