CHARLESTON - After months of controversy that included two justices recusing themselves, there was no change in the result of Massey Energy's appeal of a $76 million verdict against it to the state Supreme Court.
Just like in November, the Court voted 3-2 to overturn the Boone County verdict in favor of Harman Mining Co. in a dispute over a coal contract. And just like in November, Justice Robin Davis delivered the majority's opinion.
"Based upon our thorough consideration of the parties' arguments on rehearing, the relevant case law and the record on appeal, we again conclude that this case may be resolved on two separate and mutually exclusive grounds," Davis wrote.
"First, we find that the circuit court erred in denying a motion to dismiss filed by A.T. Massey Coal Co. and its subsidiaries, based upon the existence of a forum-selection clause contained in a contract that directly related to the conflict giving rise to the instant lawsuit.
"Assuming... that the circuit court's denial of the motion to dismiss was not in error, we further conclude that the judgment should be reversed based upon the doctrine of res judicata due to an earlier action that had been litigated in Buchanan County, Va."
Davis, Justice Brent Benjamin and now-Chief Justice Spike Maynard made up the previous majority in the case, but Harman owner Hugh Caperton obtained photographs of Maynard and Massey CEO Don Blankenship in Monaco.
The two have been friends since their childhoods in Mingo County, and Maynard has recused himself from all Massey cases. Federal investigators have even reportedly been looking into their relationship.
The Court unanimously voted to hear the appeal again. This time, Hampshire County Circuit Court Judge Donald Cookman took over for Maynard, and Marion Circuit Judge Fred Fox II took over for Justice Larry Starcher, an original dissenter.
Starcher has publicly called Blankenship "stupid" and "a clown" and urged Benjamin to step down from the case. Benjamin benefited from millions of dollars spent by Blankenship in 2004 in an effort to unseat Warren McGraw.
Benjamin refused to step down, and Fox joined the majority. Cookman and Justice Joseph Albright, also an original dissenter, disagreed with the majority.
"Today's 'new' opinion of the Court rests on the same indefensible legal grounds as the original opinion – supplemented by even more extended discussion of some of the points – but, strangely, omitting the clearly correct assertion in the original majority opinion that 'Massey's conduct warranted the type of judgment rendered [below] in this case,'" Albright wrote.
This time the majority stands silent regarding any disdain of Massey's conduct. Once again it bends the law to deny Plaintiffs the proper 'result that clearly appears to be justified.'"
Massey has pending a $240 million Brooke County verdict against it. Starcher has not recused himself from that case.
ABC News is planning a Monday report on the effect Blankenship has on the Court. An ABC reporter says Blankenship threatened and grabbed him, and damaged a camera.