CHARLESTON – A class action lawsuit alleges that employees of a St. Albans car dealership destroyed evidence in an older class action.
James Dalton, as the class plaintiff, filed the suit Jan. 8 in Kanawha Circuit Court against C&O Motors, James F. Love III and Gene Walker. Love is C&O's president and chief operating officer, and Walker is the company's general manager.
Dalton and other potential plaintiffs previously were represented by the Charleston law firm of Bell & Bands in civil actions against C&O over misrepresentations and omissions that happened in its Finance & Insurance offices, transactions that were videotaped by C&O when vehicles were purchased.
In 2002, the complaint says, Bell & Bands filed two civil suits against C&O alleging fraudulent acts in the sale of vehicles. Subsequently, the firm filed numerous individual fraud-based civil actions against C&O.
As those cases moved forward, the law firm learned C&O videotaped customer transactions in the Finance & Insurance office. So, Bell & Bands requested copies of those tapes through discovery. The tapes were kept in a secure location and maintained by C&O finance director Nancy Nickels.
According to an attached affidavit from Nickels, she and Walker met to discuss concerns when the law firm asked for the videotapes and mentioned how the content of the tapes "would not be favorable to C&O Motors."
Nickels said the videotape showing plaintiff Dalton, in regards to his original civil suit (04-C-1090), did exist. In her affidavit, Nickels said Walker told her that attorney Mark Swartz also had reviewed the Dalton videotape.
But during discovery requests, C&O answered that "no videotape exists" of Dalton's transaction, according to documents attached to the new complaint.
Then, Nickels testified that she met with Walker and Love on a Saturday evening at the dealership to discuss destroying the videotapes. The men asked Nickels to gather the tapes and place them in trash bags "because they did not want (attorney) 'Harry Bell' to get possession" of them.
She said Walker and Love said employee Randy "Hawkeye" Wheeler would take the tapes and destroy them. The complaint says Wheeler destroyed the tapes in one or more burning sessions near the dealership. The St. Albans Fire Department responded to a fire near the dealership because of "large plumes of smoke created from the burning of videotapes," the complaint states.
Later, Nickels said she found more videotapes in a filing cabinet and was told by Walker to take them off the property and store them elsewhere because "the videotapes would not be subject to discovery as long as they were not on C&O Motors' premises," the complaint states. Those tapes were not destroyed, and are the subject of a discovery dispute themselves in an employment-related civil suit Nickels filed in 2006.
During the course of the original litigation, Nickels was deposed several times by Bell & Bands. She said Walker would talk to her outside the presence of counsel about how she should testify if any questions were asked about the tapes.
"Mr. Walker indicated that Ms. Nickels should state that the videotapes were destroyed in the normal course of business due to the Privacy Act," the complaint states. "Walker directed Ms. Nickels to conceal the true reasons for the intentional and willful destruction of the videotapes."
The original 2004 civil actions have been settled, but the new complaint states that those plaintiffs and class were not aware that "critical evidence" had been destroyed.
In the new suit, the class would consist of those previously represented by Bell & Bands in the earlier Kanawha County suits and reached settlement with C&O. That is at least 75 people, according to the complaint filed by Bell and Tim Yianne.
The plaintiff and all members of the class seek compensatory and punitive damages, attorney fees, court costs and other relief.
The case has been assigned to Circuit Judge Jennifer Bailey Walker.
Kanawha Circuit Court case number: 08-C-44