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Michael v. Consolidation Coal Co.

Supreme Court of West Virginia

June 5, 2019


          Submitted: March 5, 2019

          Certified Questions from the United States Court of Appeals for the Fourth Circuit Civil Action No. 17-1564 The Honorable Barbara Milano Keenan, Circuit Judge

          Scott S. Segal The Segal Law Firm Charleston, West Virginia Timothy C. Bailey Bailey, Javins & Carter, LC Charleston, West Virginia C. Paul Estep Estep & Shaffer L.C. Kingwood, West Virginia Mark A. Barney Barney Law PLLC Hurricane, West Virginia Attorneys for the Petitioners

          W. Henry Jernigan William E. Robinson Dinsmore & Shohl, LLP Charleston, West Virginia Alex M. Greenberg Christopher M. Jones Dinsmore & Shohl, LLP Morgantown, West Virginia Attorneys for the Respondent

          JUSTICE WORKMAN, deeming herself disqualified, did not participate in the decision of this case.

          JUDGE CARL, sitting by temporary assignment.


         1. "'A de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.' Syllabus Point 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998)." Syllabus point 1, Martinez v. Asplundh Tree Expert Co., 239 W.Va. 612, 803 S.E.2d 582 (2017).

         2. "When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under . . . the Uniform Certification of Questions of Law Act found in W.Va. Code, 51-1A-1, et seq[.]" Syllabus point 3, in part, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).

         3. "Chapter 103 of the Code (sections 5, 6, p. 725, Ed. 1891) is the West Virginia Lord Campbell's act, creating a cause of action where none existed at common law for wrongfully causing the death of a person[.]" Syllabus point 1, in part, Lambert v. Ensign Manufacturing Co., 42 W.Va. 813, 26 S.E. 431 (1896), overruled on other grounds by Bradshaw v. Soulsby, 210 W.Va. 682');">210 W.Va. 682, 558 S.E.2d 681 (2001).

         4. "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syllabus point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).



         The case sub judice concerns a tragic event in this State's coal mining history. On November 20, 1968, seventy-eight miners tragically lost their lives when methane gas exploded at the Consol No. 9 Mine in Farmington, West Virginia. It is within this context that the Petitioners, survivors of those miners, and the Respondent, the parent company of the owner and operator of the subject mine, come to this Court upon questions of law certified by the United States Court of Appeals for the Fourth Circuit.

         By the court of appeals' August 15, 2018 certification order, we are asked to determine whether the Petitioners may maintain their cause of action alleging that the Respondent fraudulently concealed facts regarding the cause of the mine explosion such that the Petitioners were prevented from earlier pursuing a claim for the wrongful deaths of their decedents. To reach our decision in this case, we have considered the parties' arguments and briefs, the record designated for our consideration, and the pertinent authorities, including the decisions of the federal courts leading to the court of appeals' certification order as well as the law as it existed in 1968 at the time of the events giving rise to the instant proceeding.

         In summary, we conclude that the law in effect at the time of this tragedy did not recognize a cause of action for fraudulent concealment with respect to a statutory wrongful death claim. Moreover, at the time of the 1968 explosion, W.Va. Code § 55-7-6 required that "[e]very such [wrongful death] action shall be commenced within two years after the death of such deceased person."



         As noted in the preceding introduction, the case sub judice concerns the 1968 Farmington mine disaster and has been brought by survivors of the seventy-eight miners who were killed in that tragedy.[1] In the subject mine, ventilation fans were installed to prevent the accumulation of methane gas, which was released during the extraction of the underground coal and which posed a threat to the safety of the miners working therein. During the early morning hours of November 20, 1968, a ventilation fan in the Mod's Run section of the mine failed, causing methane gas to accumulate and, eventually, ignite and explode. Over one hundred miners were working in the affected section of the mine and, while many escaped or were rescued, seventy-eight men perished in the explosion and ensuing fires, some of whom have never been recovered.

         Following this tragedy, the federal Mine Safety and Health Administration ("MSHA") inspected the mine to determine how the explosion had occurred. In September 1970, power was restored to the mine in the course of this investigation, at which time it was discovered that the wiring of the Mod's Run ventilation fan had been altered such that it was not connected to the mine's alarm system, but, rather, bypassed the alarm system. Had the ventilation fan been connected to the alarm system at the time of the explosion, when the fan failed to operate, an alarm would have sounded alerting above ground mine staff of the situation, and, if the fan continued to be inoperational, an underground alarm would have sounded to alert the underground miners; additionally, the electricity for the entire mine would have shut off. However, on the day of the explosion, no alarms sounded, either above or below ground, and surface mining operations continued after the explosion and during the ensuing fires.

         Larry Layne, the MSHA investigator who made this discovery, with the help of a mine electrician, wrote a memorandum reporting these findings in September 1970 and forwarded it to his superiors; he withheld the name of the mine electrician at the electrician's request. In relevant part, Mr. Layne's memo recounted that,

[o]n September 5, 1970, 12am-8am shift, the Mod's Run substation was energized for the first time since the explosion of November 20, 1968. The electrician (name withheld by request) reported that while energizing the substation he found evidence to indicate that the FEMCO fan alarm system for Mod's Run fan had been rendered inoperable prior to the explosion. The fan alarm system had been bridged with jumper wires; therefore, when the fan would stop or slow down, there was no way of anyone knowing about it because the alarm system was bypassed[.]

         Thereafter, in November 1970, survivors of the miners filed their first two lawsuits: one in Pennsylvania federal court and one in West Virginia state court. Eventually, both of these suits were dismissed. In 1978, a third lawsuit was filed in West Virginia federal court alleging that the cause of the explosion had been concealed by the defendant therein, Consolidation Coal Company ("Consol"); the third lawsuit ultimately was settled.

         Investigations into the Farmington mine explosion continued through the 1990s, with MSHA issuing a final report in March 1990. The Petitioners claim that, in 2008, they first learned about Mr. Layne's memo indicating that the Mod's Run ventilation fan had been intentionally rewired to bypass the mine's alarm system. Further, the Petitioners allege that they did not learn the name of the person responsible for bypassing the mine's alarm system, or that said person was the mine's chief electrician and, thus, a member of mine management, until June 2014. The Petitioners then filed this proceeding in November 2014 in the Circuit Court of Marion County against Consol and the estate of the former chief electrician alleging "fraud, concealment and nondisclosure." Consol removed the case to federal court based on diversity jurisdiction, and the case proceeded through the District Court for the Northern District of West Virginia. By memorandum opinion and order signed March 31, 2017, the district court granted Consol's motion to dismiss concluding that "the Plaintiffs' wrongful death claim is ...

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