WEST VIRGINIA RECORD

BECKLEY -- A Kanawha County man and his wife say the man lost his leg and genitalia after a coal shuttle ran over his torso while he was working.

Jason D. O'Neal and Andrea O'Neal filed a lawsuit Feb. 11 in Wyoming Circuit Court against Speed Mining, Patriot Coal Corporation, The Baughan Group, Coal Age Incorporated and Joy Technologies.

The O'Neals allege Jason O'Neal worked as an electrician for Speed Mining at Patriot Coal's underground American Eagle Mine.

While Jason O'Neal performed his work duties on June 20, 2009, a shuttle car designed by Baughan Group, CAI Industries and Joy struck and ran over Jason O'Neal, severing his torso and resulting in "catastrophic injuries."

Because of the incident, Jason O'Neal lost one leg and a significant portion of his torso, including his genitalia, the suit states. In addition, he lost wages, his earning capacity and his enjoyment of life; experienced pain, suffering, mental anguish and disfigurement; and incurred medical costs, the complaint says.

Andrea O'Neal and the couple's three young children claim they lost their husband's and father's affection, care, income, services and duties.

The O'Neals place part of the blame for Jason O'Neal's injuries on Speed Mining, saying the company negligently created an unsafe working condition, had knowledge of the unsafe working condition and the hazard it presented, violated federal and state statutes and intentionally exposed Jason O'Neal to the unsafe working condition.

They also say Patriot Coal negligently failed to exercise reasonable care in its undertaking and that the remaining defendants provided a defective shuttle car that was not safe for its foreseeable use in underground coal mines.

Although it admits the accident did occur, the Baughn Group denies the O'Neals' remaining allegations against it and says Jason O'Neal could have avoided the accident if he had avoided the consequences of the negligence he alleges against the defendants.

"The injuries, if any, of which the Plaintiff complains, were caused by the misconduct of the Plaintiff or acts of others over which the Defendants have no control," the Baughn Group states.

The plaintiffs are seeking an unspecified judgment, plus punitive damages. They are also seeking loss of consortium on behalf of their children and other relief the court deems just.

The Baughn Group says the O'Neals should receive no monetary damages and wants to see their lawsuit dismissed with prejudice.

Speed Mining and Patriot Coal also deny responsibility for causing the accident, saying no unsafe conditions existed and that the fault lies with Jason O'Neal.

"These defendants, not being fully advised of the circumstances surrounding the allegations set forth in Plaintiffs' Complaint, reserve unto themselves the affirmative defense that Plaintiff's injuries, if any, were exclusively, directly and proximately caused by the actions or omissions of the plaintiff which were taken in direct contravention of the policy, training, procedure and direction of these defendants, their agents, servants or employees, and without knowledge of these defendants," their answer states.

Joy wants to see itself dismissed as a defendant from the case because it says it did not design or manufacture the shuttle car at the basis of the O'Neals' complaint.

The O'Neals contested Joy's move to dismiss itself from the complaint, saying Joy, along with defendant CAI, may have played a role in designing and manufacturing the shuttle car that hit Jason O'Neal.

But Joy argues that it had no part in either the design or manufacturing of the shuttle car as proven by the federal Mine Safety and Health Administration's approval plate obtained by CAI.

"To obtain an approval plate, CAI had to submit to MSHA the detailed design of the entire shuttle car," Joy's response states.

The defendants removed the O'Neals' suit to U.S. District Court because they say a diversity of citizenship exists between the defendants and the couple and because the couple seeks more than $75,000.

However, the O'Neals would like to see the case remanded to Wyoming Circuit Court where they originally filed it, claiming defendant Coal Age Incorporated based its citizenship on its parent company, The Baughn Group, which is based in North Carolina. The defendant's parent company cannot be used to establish diversity for a federal jurisdiction, the O'Neals contend in their motion to remand.

"Here, the defendants' removal of this matter, and its argument that there is complete diversity of parties, is premised on a theory of imputed corporate citizenship that is contrary to black letter law and that has explicitly been rejected by this court," the suit states.

"Under these circumstances, the removing defendants clearly lacked any objective, reasonable basis for removal."

However, CAI has opposed the O'Neals' motion to remand, arguing that because most of the company's business decisions are conducted in North Carolina -- where its president lives -- it can be considered a North Carolina Corporation.

CAI bases its argument on a recent case heard before the U.S. Supreme Court – Hertz Corp. v Friend. In this case, the U.S. Supreme Court declared that should the bulk of the company's business activities take place in a certain state, but should its top officers direct those activities from a different state, then the principal place of business should be deemed to be the state where the top officers make their decisions.

"It is evident from established precedent of the United States Supreme Court in Hertz that CAI Industries' 'principal place of business' is located in North Carolina," CAI's opposition states. "Accordingly, there is complete diversity among all the Defendants and Plaintiffs in this matter."

The O'Neals, not willing to give up, insist that the case should be remanded to circuit court, saying CAI offered no support to back up their argument of its actual place of business.

"The burden is on the Removing Defendants to prove that the requirements for removal have been met; it is not the burden of the Plaintiffs to disprove it," the plaintiff's response states. "By not offering any actual evidence in support of their argument that the principal place of business of defendant CAI Industries is actually in North Carolina, not West Virginia, the Removing Defendants have not even attempted to satisfy their burden of proof on this issue."

After shuffling back and forth with CAI, the O'Neals filed an amendment to their original complaint and added West Virginia-based company Gauley-Robertson as a defendant.

The O'Neals claim they did not know of Gauley-Robertson's potential status as a defendant until after Joy produced documents to prove it should not be named as a defendant. In those documents, Joy indicated that Gauley-Robertson participated in the design and manufacture of the shuttle car in question.

Because Gauley-Robertson is a West Virginia corporation, the O'Neals say their case belongs in circuit court as there is no longer complete diversity of the parties. However, the O'Neals insist they are not adding Gauley-Robertson to the case to avoid federal jurisdiction.

"Here, the Plaintiffs learned of the identity of Gauley-Robertson only after defendant Joy Mining produced business records (and an affidavit) previously unavailable to Plaintiffs," their amendment states. "Because Plaintiffs learned of the identity of Gauley-Robertson only as a result of defendant Joy Mining's production of documents, and because Plaintiff's claim against Gauley-Robertson is not distinct from their claim against existing products liability defendants, Plaintiffs' claim against Gauley-Robertson is not made 'for the specific purpose of avoiding federal jurisdiction.'"

The O'Neals say they will be significantly harmed if they are not allowed to pursue their claims against all parties in the same jurisdictional venue, which they want to be in circuit court.

"Should the Court not permit the joinder of Gauley-Robertson to this action, and Plaintiffs are forced to pursue their claim against Gauley-Robertson in West Virginia state court, there is significant risk that the parallel litigations will result in inconsistent results, and well as inefficiencies for the parties and courts involved," they say.

On the other hand, the defendants argue the O'Neals' primary purpose for adding Gauley-Robertson is to force the case to be remanded to state court and they want the federal court to deny the O'Neals' motion to remand.

"Given the tenacity with which Plaintiffs have fought for the remand of this case, it is undeniable that the avoidance of a federal forum has figured heavily into Plaintiffs' decision to seek leave to amend their Complaint to include a non-diverse defendant," the defendants say.

Stuart Calwell, David H. Carriger and Melissa H. Luce of The Calwell Practice in Charleston will be representing the O'Neals.

Bryant J. Spann and Robert H. Akers of Allen, Guthrie and Thomas in Charleston will be representing Joy.

Johnnie E. Brown of Pullin, Fowler, Flanagan, Brown and Poe in Charleston will be representing the Baughn Group.

Thomas V. Flaherty, Christopher A. Brumley and Bradley J. Schmalzer of Flaherty, Sensabaugh and Bonasso in Charleston will be representing Speed Mining and Patriot Coal.

The case has been assigned to Judge Irene C. Berger.

U.S. District Court case number: 5:10-cv-446