CHARLESTON – Patriot Coal Corporation removed a lawsuit to federal court, saying the man and his wife who filed the complaint fraudulently joined a Patriot Coal employee in an attempt to force the complaint to remain in West Virginia court.

Patriot Coal Corporation claims its employee, Les Hatcher, was fraudulently named as a co-defendant in the lawsuit Timothy and Shirley Deavers filed in Boone Circuit Court on Aug. 31.

In their complaint, the Deavers claim Timothy Deavers was injured while working for Patriot Coal on Sept. 6, 2007, at a building known as the Rock Lick Prep Plant in Bald Knob.

"On said date, Mr. Deavers was closing the feeder gate in the clean coal reclaim tunnel using an extremely dangerous apparatus that was rigged by the defendants," the suit states. "In that connection, the tension of the rope to the 322 feeder that Mr. Deavers had to utilize to perform his job was extremely tight as it held a door loaded with several pounds of coal."

To release the ring attached to the rope, which would in turn open the feeder gate door from the hook, Timothy Deavers was required to exert substantial strength, according to the complaint.

As he was performing his job duty, Deavers felt his right knee collapse under him, causing his left arm to be violently jerked by the rope and ring that carried several pounds of pressure from the weight on the feeder door, the complaint says.

As a result, Timothy Deavers claims he sustained severe injuries to his right knee, left shoulder, head, neck, back, internal organs and upper and lower extremities and incurred medical expenses. In addition, he lost wages, sustained a loss of earning capacity, is unable to perform household services because of scarring and experienced humiliation, embarrassment, annoyance, aggravation and mental anguish, according to the suit.

Shirley Deavers has been deprived of her husband's consortium, society and comfort and has also experienced mental anguish, anxiety and discomfort, the complaint says.

For his injuries, Timothy Deaver is entitled to worker's compensation, but filed the complaint because he claims Patriot Coal and Hatcher caused an extremely unsafe work condition to exist at the plant.

"Specifically, the Plaintiff, and other employees of the Defendant Patriot Coal Corporation were required to work with the rope/ring system on the 322 feeder which was old, improperly maintained, improperly rigged and/or engineered, and incorrectly connected so that the weight of the coal on the door would cause the workers to be unable to safely unhook the ring without the tension and weight of the door and rope/ring potentially causing injury, all in violation of known industry standards," the suit states.

Patriot Coal and Hatcher improperly maintained the equipment and exposed Timothy Deavers to the unsafe working condition, according to the complaint.

"The Defendants acted conspicuously, subjectively, and with a 'deliberate intent' so as to produce a specific result of serious injury to its employees, including the Plaintiff, Timothy Deavers," the suit states.

But Patriot Coal contends the Deavers included Hatcher in the suit for the sole purpose of attempting to force the complaint to remain in West Virginia court. Patriot Coal maintains Hatcher is innocent of deliberate intent.

"Hatcher is fraudulent joined as a defendant in this action because there is no possibility that the plaintiff can establish a deliberate intent cause of action against Hatcher," Patriot Coal's motion to remove states.

Because of this alleged fraudulent joinder, Patriot Coal claims Hatcher's citizenship should be ignored for purposes of diversity of jurisdiction, and subsequently, the case should be removed to federal court based on diversity of jurisdiction and on the fact that the Hatchers are seeking more than $75,000.

In their complaint, the Hatchers are seeking compensatory damages, plus pre- and post-judgment interest, costs, attorney's fees and other relief to which they may be entitled.

Christopher A. Brumley and Eric T. Frye of Flaherty, Sensabaugh and Bonasso in Charleston will be representing Patriot Coal.

Tony L. O'Dell of Berthold, Tiano and O'Dell in Charleston will be representing the Deavers.

U.S. District Court case number: 2:09-1031

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