Putnam suit against Bayer goes to federal court

By Kelly Holleran | Apr 5, 2010

HUNTINGTON –- A Hurricane company has filed suit against Bayer, alleging Bayer owes it more than $15,000.

HUNTINGTON –- A Hurricane company has filed suit against Bayer, alleging Bayer owes it more than $15,000.

Hatfield Enterprises claims it has sent Bayer invoices totaling $80,482.63 for fees and costs associated with maintenance of its fly ash disposal permits and more invoices of $69,293.83 for maintenance and improvement of ash disposal facilities. However, Bayer has refused to pay the invoices, according to its complaint filed Jan. 26 in Putnam Circuit Court.

Hatfield contends Bayer owes it the money under a March 10, 1983, contract Hatfield entered into with Union Carbide Corporation. The contract allowed Hatfield to dispose of fly ash at locations permitted by the West Virginia Department of Environmental Protection, the suit states. Also in the contract, Union Carbide agreed to compensate Hatfield for various fees, licenses and expenses incurred in the disposal of ash, the complaint says.

In 2001, Union Carbide defaulted on its payments to Hatfield, so Hatfield commenced a lawsuit against the company in Putnam Circuit Court, it claims. The parties reached a settlement in the suit on Jan. 27, 2003, in which Bayer, as successor to Union Carbide, agreed to pay Hatfield all fees and all costs for the permits related to the fly ash disposal, according to the complaint.

Hatfield claims Bayer has again breached its duty to pay the fees and costs for the permits.

"Because of repeated breaches of the contractor obligations of Bayer and its predecessors, Hatfield anticipates breaches of these obligations in the future to the extent that Bayer should be required, in addition to its past-due obligation, to pay an amount of money equal to the fees and costs that will be incurred over the functional life of the ash disposal facilities at Finney Branch and Dutch Hollow, or, in the alternative, that Bayer be enjoined mandatorily to undertake upon itself for all time in the future to maintain the permit status of those ash disposal facilities," the suit states.

Bayer admits to receiving invoices from Hatfield but argues it shouldn't have to pay Bayer the money it requested.

"BCS admits that in 2009 Hatfield provided BCS with several invoices, but is without sufficient knowledge or information to form a belief as to what work or services was represented by those invoices or as to the truth of the remaining matters alleged in Paragraph 9," Bayer's response states. "BCS denies that the fees and costs alleged in Paragraph 9 were required to be paid or reimbursed by BCS."

In its complaint, Hatfield seeks compensatory damages and an order mandating Bayer to assume all obligations for maintenance and upkeep fees at the fly ash disposal sites, plus other relief the court deems just.

Bayer wants to see Hatfield's complaint dismissed with prejudice and to be awarded its costs.

Bayer removed the complaint to U.S. District Court for the Southern District of West Virginia on Feb. 25, alleging a diversity of citizenship exists between it and Hatfield and that Hatfield is seeking more than $150,000.

Hatfield will be represented by Harvey D. Peyton of Peyton Law Firm in Nitro.

Bayer will be represented by Jonathan L. Anderson of Jackson Kelly in Charleston.

The case has been assigned to Judge Robert Chambers.

U.S. District Court case number: 3:10-C-186

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