Plaintiffs Ask Supreme Court to Reconsider Massey Decision

By Jeffrey V. Mehalic
West Virginia Business Litigation

January 14, 2008

On January 24, the Supreme Court of Appeals will consider the petitions for rehearing filed by Hugh Caperton and Harman Mining Compan, which ask the Court to reconsider its November 21, 2007 decision, which reversed their 2002 verdict for $50 million against A. T. Massey Coal Company, Inc. and several of its subsidiaries. Caperton v. A. T. Massey Coal Company, Inc. [ http://www.wvbusinesslitigationblog.com/Caperton%20v.%20Massey%20Westlaw.pdf ], 2007 WL 4150960. Here are Caperton's petition [ http://www.wvbusinesslitigationblog.com/Caperton%20petition%20for%20rehearing.pdf ] and Harman Mining's petition [ http://www.wvbusinesslitigationblog.com/Harman%20petition%20for%20rehearing.pdf ], courtesy of Harman's counsel, David Fawcett. The Clerk's office has not yet posted the dockets for the Court's conferences on January 24, but should do so this week.

Caperton and Harman challenge as procedurally and substantively improper the Supreme Court's retroactive application of its forum selection clause test, which it announced for the first time in its decision. The Court determined that the Circuit Court of Boone County erred in denying Massey's motion to dismiss, based on the existence of a forum selection clause in a 1997 coal supply agreement entered into by Harman, Sovereign Sales, and Massey subsidiary Wellmore Coal Company (which was not involved in the litigation), which required all litigation to be brought in and adjudicated by the Circuit Court of Buchanan County, Virginia.

Caperton and Harman also challenge the Supreme Court's finding that their West Virginia lawsuit was barred by the doctrine of res judicata, based on the plaintiffs' 1998 lawsuit against Wellmore in the Circuit Court of Buchanan County, Virginia for breach of contract and breach of the duty of good faith faith and fair dealing, which resulted in a $6 million verdict for the plaintiffs. They maintain that they were permitted to assert their tort claims against the Massey defendants separately from the Virginia breach of contract action.

The United Mine Workers of America moved for leave to file an amicus brief in support of the plaintiffs, which the Court denied on Thursday as premature, pending its decision on the petitions for rehearing. The UMWA's interest in the action stems from the $15 million that its members and retirees are owed in benefits and compensation by Harman Mining, Sovereign Coal Sales, and Harman Development Company, all of which are in bankruptcy. Here is the UMWA's motion and amicus brief [ http://www.wvbusinesslitigationblog.com/UMWA%20amicus%20brief.pdf ].

Still pending before the Court is Caperton's motion to disqualify Chief Justice Elliott E. Maynard [ http://www.wvbusinesslitigationblog.com/Caperton%20motion%20to%20disqualify%20Maynard.pdf ] based on his association with Massey chairman Don Blankenship. The motion alleges that Maynard and Blankenship were seen having dinner on November 8, 2007, which was about two weeks before the Court issued its decision. The motion asks that Maynard

disclose the nature of any meetings or discussions with Appellants, including Mr. Don L. Blankenship, during the pendency of this appeal, and, if such meetings or discussions occurred, to disqualify himself from participating in any consideration of Appellee Caperton's Petition for Rehearing, and further requests that Justice Maynard withdraw his earlier vote in favor of the Court's majority opinion in this matter ....

Here is my post about the Supreme Court's decision [ http://www.wvbusinesslitigationblog.com/2007/11/articles/appellate-decisions/west-virginia-supreme-court-reverses-50-million-verdict-against-massey/ ], and Paul Nyden's article [ http://www.wvgazette.com/section/Business/2008010912?pt=0 ] in The Charleston Gazette last week about the litigation.

Posted at 6:00 AM