Justices agree to hear 7-Eleven gas leak case

By Kelly Holleran | Sep 10, 2008

CHARLESTON - Four Jefferson County residents and a corporation claim their lawsuit aimed at recovering damages after an alleged gas leak at 7-Eleven should be heard in court.

Charles V. and Kathryn B. Beahm, Kathy A. and Randy W. Johnson and the Jefferson County Council on Aging asked the state Supreme Court on Tuesday to consider overturning Jefferson County Circuit Court Judge David H. Sanders's dismissal of their case.

It was one of a handful of cases that were heard before oral arguments were suspended after it was announced that Justice Joseph Albright would be on leave until January due to health concerns. The court's docket had been packed Tuesday and Wednesday, until Chief Justice Spike Maynard informed observers of the postponement at about 2:30 p.m.

The suit was filed against 7-Eleven and Melissa Spinks, the store's manager, claiming damages to property values in Ranson, lost wages and medical expenses after a gas leak contaminated properties.

Sanders dismissed the case on the grounds that the plaintiffs had no recoverable damages under West Virginia law.

The Beahms, Johnsons and Jefferson County Council on Aging dispute this claim, saying the values of their homes have been reduced by 75 percent. That, they claim, has prevented them from using their homes as loan collateral.

They also claim monitoring wells located near their properties detected benzyne, a confirmed human carcinogen.

"Gasoline is a hazardous material," Paul Taylor, an attorney for the Breahms, said during the oral argument Tuesday. "It's flammable. Mishandling it is subject to strict liability. The Beahms never had an opportunity to present their actions in a final case."

But 7-Eleven and Spinks claim the Beahms, Johnsons and council have no evidence of the damages state law allows them to recover.

Sanders also ruled the case should be dismissed because of the doctrine of res judicata, which does not allow parties to file suit on matters that have already been decided.

The question of whether res judicata applies to the Beahm case arises from a similar civil suit filed Feb. 21, 2002.

In that suit, Vernon Proctor and seven other property owners in Ranson alleged their groundwater had been contaminated because of a gas leak at 7-Eleven in late 1999 and 2000.

The case was moved to federal court, where Judge Broadwater entered a judgment in favor of 7-Eleven, holding that the plaintiffs had no evidence of recoverable damages.

Before the judge's ruling, though, Proctor moved to amend the case twice. The first time was to add Melissa Spinks as a defendant. The second was to add others, including the Johnsons and the Beahms, as plaintiffs. Both motions were denied on Feb. 12, 2003.

The Johnsons and Beahms then filed a writ of mandamus, trying to force the courts to intervene in the Proctor case as plaintiffs. But that petition was also denied.

They filed their own civil complaint on Jan. 24, 2003, alleging damages from the gas leak.

Sanders ruled that because a verdict had already been rendered in the Proctor case, the case had already been decided. This is where the doctrine of res judicata comes in.

There are three elements to consider before applying the doctrine.

First, a judge has to determine if there has already been final adjudication in the first action.

The Beahms, Johnsons and Jefferson County Council on Aging all agree with Sanders – that a verdict was already passed down in the Proctor case.

Second, both lawsuits must involve the same parties or must involve a person in privity with those parties.

Privity does not have a prevailing definition, but is generally regarded to mean that one party had the same access to file suit as the other.

Sanders ruled that since there were the same witnesses, opinions and documents presented in both cases, it led to privity.

Because the Beahms, Johnsons and the council claimed they spent $100,000 on litigation expenses, which they had combined with the expenses of the Proctor legislation, it constituted privity, Sanders found.

The Beahms and Johnsons claim that since they were not involved as parties in the Proctor suit, there were no two parties that were the same in both suits.

They also claimed the finding they were acting in privity was incorrect.

"This is a clear misstatement of the actual procedural history," they claim in their argument brief. "In fact, the Beahms and Johnsons filed the instant civil action before the Proctor motion to amend was determined, further showing that they had a separate and distinct case."

Sanders's claim that the same witnesses, opinions and documents led to privity is not true, they allege.

"Moreover, it is only natural that separate and distinct Plaintiff injured in different manners at different times by the same leakage would retain the same experts," they write in the brief. "The opinions by the common experts are however distinct and limited to the specific damage sustained by the individual Plaintiffs. The simple fact of the matter is that the only common thread between the Proctor plaintiffs and the Appellants is that they both sustained damages as a result of the gasoline leak from the Appellee's underground storage tank."

The third element of res judicata is the cause of action must be identical.

The Beahms, Johnsons and the council claim the only similarity between their suit and the Proctor's is that they were both injured by the gasoline tank.

7-Eleven and Spinks allege this is false. In their brief, the store and the manager say the Beahm and the Proctor suit both allege the same four causes of action and the same prayer for relief.

West Virginia's Supreme Court justices agreed to consider the case.

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