Albright

CHARLESTON – Mark Roberts waited too long to sue West Virginia American Water Company for causing the toe of his hill to slide down on his road, the West Virginia Supreme Court of Appeals has decided.

On Nov. 8, four of five Justices affirmed Kanawha Circuit Judge Paul Zakaib, who ruled that a two-year statute of limitations ran out before Roberts filed suit.

Roberts argued that he sued less than two years after receiving an engineer's report on the landslide, but the Court found that the report told him what he already knew.

Roberts owns 20 acres with a garage where he fixes cars in his spare time. He does not live on the property.

In 1998, the Kanawha County Commission authorized a new water line along his road in conjunction with West Virginia American Water.

E. L. Robinson Engineering designed the line and Famco Contracting installed it. Famco finished the job in 1999.

Roberts noticed a slip developing along the road within three weeks. He noticed more slipping in 2000.

The first big slip happened in April 2002, leaving the road hazardous for big vehicles.

Roberts called the water company, the engineer and the contractor to ask for inspection and repair.

Two weeks later, the hill slipped again.

West Virginia American Water Company hired Triad Engineering to inspect the property and prepare a report.

A Triad engineer wrote, "... any excavation work performed at the toe of such a steep slope can initiate instability. Once instability has been initiated and a shear plane has formed within the soil, soil slippage typically continues to progress ..."

The engineer wrote, "Based on our visual observations and information provided by Mr. Roberts, it is possible that the excavation work performed to install the water line caused the landslide."

The water company mailed the report to Roberts on Aug. 5, 2002.

In March 2003, 10 feet of his driveway broke off and slid downhill. By June the slip had expanded by 20 feet.

That September, Famco sent Roberts a report from CTL Engineering of West Virginia, finding "... no obvious causes related to the pipeline installation ..."

Roberts still pressed for repairs, without success.

A slip in March 2004 dumped debris at the bottom of the hill, near a public highway.

Roberts filed suit July 22, 2004, against the county commission, West Virginia American Water, Robinson and Famco.

The county commission quickly settled, but the other defendants moved for summary judgment under the statute of limitations.

Roberts answered that the statute started running when he received the report.

He also pleaded a "continuing tort," arguing that defendants never stopped violating the duty they owed him.

By that theory, the statute started running with the last big slip, in 2004.

Zakaib rejected both arguments. In 2005, he granted summary judgment to West Virginia American Water Company, and last year he granted it to Robinson and Famco.

Zakaib held that Roberts knew in three weeks that the installation damaged his land.

Zakaib held that Roberts was aware of the identity of the parties and his claims against them in April 2002, when he contacted them.

For Roberts, Jennifer Narog Taylor of Charleston appealed.

Mark Troy and Jason Winnell of Charleston represented the water company. David Moore and Paul Weber of Charleston represented Robinson. Adam Barnes and Paul Walsh III of Pittsburgh represented Famco.

After oral arguments Oct. 9, Chief Justice Robin Davis and Justices Joseph Albright, Spike Maynard and Brent Benjamin agreed that the statute ran out.

"Appellant is claiming damages for the single, discrete act of constructing and installing the waterline and not for any continuing malfunction of the installation or further misconduct of appellees," Albright wrote. "Thus the last tortious act or omission alleged by appellant to have been committed by any appellee was in 1999 ...

"Without demonstration of a continuing duty or further misconduct on the part of any appellees, there is no reason why the continuing tort doctrine should apply.

"Although the Triad report provided additional information for appellant to pursue his claim, it did not inform appellant for the first time that his property had been disturbed by the waterline project, or that damage in the form of slips was occurring as a result of the disturbance, or who might bear responsibility for correcting the resulting problems.

"... his claim was raised beyond the statute of limitations period, whether that period began to run in 1999 when the project was completed and appellant observed slippages on his property, or in 2002 when appellant learned of the various entities who performed work on the project."

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