Summary Judgment Granted in Subsidence Case

Mingo Logan Coal Company and Arch Coal, Inc. obtained summary judgment in February in the Circuit Court of Mingo County over claims of subsidence that resulted in property damage to a house, and diminution of water quality and quantity.  Plaintiffs filed suit in on April 27, 2007, and alleged the damage to the property occurred in 2003 – fours years before the plaintiffs filed their lawsuit.  The significance of the summary judgment, however, arises from the reliance that the Circuit Court placed in the factual findings made by the West Virginia Surface Mine Board (SMB) over the identical issues litigated before it.

 

On July 21, 2003, the plaintiffs filed a complaint with the West Virginia Department of Environmental Protection (“WVDEP”) asserting that Mingo Logan caused subsidence damage to the plaintiffs’ residence and water loss.  WVDEP initially found no evidence of subsidence and refused to issue any order or notice of violation to the company.  Upon a complaint then filed with the federal Office of Surface Mining, Reclamation and Enforcement, DEP reversed itself and issued an order finding that that Mingo Logan had caused subsidence to the plaintiffs’ property.  Following a year litigating the plaintiffs’ complaint, Mingo Logan, WVDEP, and the plaintiffs participated in a full, two-day evidentiary hearing before the SMB in December, 2006.  Following the hearing, the SMB issued a ruling in favor of Mingo Logan – finding no evidence that Mingo Logan’s mining activities caused subsidence or property damage to the plaintiffs’ property and residence.  Neither the plaintiffs, nor the West Virginia Board of Insurance and Risk Management, which had been joined in the case because it had paid the plaintiffs’ claim of subsidence damage to the house, appealed the SMB’s decision to the circuit court.  Almost five months following the SMB’s decision, however, the plaintiffs did file a new action in Mingo County alleging the same issues decided by the SMB.

 

Based on plaintiffs’ allegations, plaintiffs’ testimony and the prior hearing before the SMB, Mingo Logan and Arch Coal, Inc. moved for summary judgment in the Circuit Court of Mingo County asserting that the plaintiffs’ claims were barred by the statute of limitations and the doctrine of collateral estoppel.  Specifically, defendants asserted that the plaintiffs knew or believed – no later than 2003 – that (1) their property was damaged and they suffered water loss, (2) Mingo Logan mined in the vicinity of their property, and (3) Mingo Logan had caused the property damage and water loss.  Also, the companies asserted that the doctrine of collateral estoppel precluded plaintiffs from re-litigating the issue of whether subsidence occurred on the plaintiffs’ property as a result of Mingo Logan’s mining activities because the SMBalready determined that there was no evidence that defendants caused the plaintiffs’ alleged property damage.

 

The Court granted defendants’ Motion for Summary Judgment on both grounds.  Regarding the statute of limitations the Court found that West Virginia Code § 22-3-25(a) specifically provides that any person having an interest, which is or may be adversely affected may commence an action in the circuit court of the county to which the mining operation is located.  The Court found that the plaintiffs were not required to exhaust all possible remedies prior to commencing their action in circuit court as the statute provides for concurrent jurisdiction with the circuit court.  Moreover, the Court found that WVDEP’s presentation of the plaintiff’s claims before the SMB did not toll the statute of limitations.  Because the Court found the continuing tort doctrine did not apply, the alleged property damage and water loss that occurred in 2003 barred the plaintiffs’ action, which was not commenced until April 27, 2007.

 

With respect to collateral estoppel, the Court found that the hearing before the SMB involved the same evidence as this cause of action.  The plaintiffs testified on their behalf in the hearing before the SMB and over the two days the WVDEP presented testimony through the both through the plaintiffs and expert witnesses named by the plaintiffs in the civil action.  The Court found that collateral estoppel was applicable as the WVDEP represented the plaintiffs during the administrative proceedings and the plaintiffs were actively involved due to their personal testimony in administrative hearings.  The plaintiffs’ current experts also testified on their behalf before the SMB, asserting the same allegations that were asserted in the civil action and presenting identical evidence regarding damages to the plaintiffs’ property.  As such, the defendants are entitled to dispositive relief on the issue of collateral estoppel. 

 

The facts of the case were unusual in that the mining occurred in two separate seams of coal below the plaintiffs’ surface property over two distinct time intervals.  The first mining clearly caused subsidence, but no damage to the residence.  The second event of mining resulted in no observable subsidence because the pillars were intact at the time of a visual inspection in July 2004.  As both the SMB and Circuit Court determined, neither the WVDEP nor the plaintiffs presented a plausible explanation how the damage they claimed could have arisen under the sequence of the mining that occurred.

 

The case is most encouraging, however, for the reliance that the Circuit Court is willing to place in a hearing record developed before an administrative hearing board. Proceedings before a board are usually more informal, and as in this case the opportunity exists to develop a record favorable to a company.  Once that record is established and not appealed, plaintiffs are thereafter precluded from re-litigating the same issues in a circuit court.

 

For more information about this case, contact Blair Gardner at 304 340-1146 or Matt Nelson at 304 340-1244.

 

This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.