Justices remand grave desecration case to Logan County

By Jessica M. Karmasek | Nov 22, 2010

McHugh

CHARLESTON -- The West Virginia Supreme Court of Appeals on Thursday remanded to a lower court the case of alleged grave desecration by a company working to relocate a gas pipeline.

The Court, in its opinion, answered five certified questions regarding the state's law of grave desecration, as requested by the Logan County Circuit Court.

Equitable Production Company hired General Pipeline Company in 2004 to relocate the gas pipeline on a large tract of wooded, unimproved land in Crystal Block Hollow in Logan County.

General Pipeline, at several different locations along the pipeline, used a small bulldozer to pull a truck loaded with pipe through those wooded sections.

On Aug. 7, 2004, the bulldozer was driven with its blade raised off the ground through an area containing grave sites.

The wooded area contained graves that allegedly were not indicated on any map or deed or list of grave sites maintained by any state agency, or by any obvious signs.

The companies contend the area was significantly overgrown with vegetation and contained mostly unmarked grave sites. In fact, some grave markers were "buried" in forest debris, they said.

When the operator of the bulldozer realized that the machine passed through the grave site area, he immediately blocked off the area and relocated the route to connect with the pipeline at a different location.

The plaintiffs, 15 relatives of those buried in the graves, filed complaints in Logan Circuit Court, seeking recovery of damages for grave desecration.

General Pipeline and Equitable were the original defendants in the case, and General Pipeline later filed a third-party complaint against Mountain State Insurance Agency, Inc., asserting a claim of negligence in the procurement of General Pipeline's insurance policy.

Subsequent to the exchange of written discovery, General Pipeline filed a motion for summary judgment.

Based on the issues raised in the litigation, the lower court entered an order on Nov. 16, 2009, certifying the following five questions to the state's high court:

* Does state code preempt a common law cause of action for direct or indirect desecration of a grave?

* What are the elements of a common law action for desecration of a grave, grave site, cemetery or burial ground?

* What are the recoverable damages in a common law action for desecration of a grave, grave site, cemetery or burial ground?

* Does West Virginia recognize a common law cause of action for indirect desecration of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a cause of action and what are the recoverable damages?

* Who are the "next of kin" who possess the right to recover in a common law cause of action for direct or indirect desecration of a grave?

By order entered March 30, the Court accepted the certified questions for review.

Justice Thomas McHugh, who authored the Court's three reformulated questions and subsequent answers, wrote that state code does, in fact, preempt a common law cause of action for direct or indirect desecration of a grave.

That is, he wrote, "to the extent" that state code "specifically designates protection for certain narrowly-defined categories of graves and other related items."

The Court also said a common law cause of action for grave desecration does exist.

As to the "next of kin" who possess the right to recover in a common law cause of action, the Court said those include "decedent's surviving spouse or, if such spouse is deceased, the person or persons of closest and equal degree of kinship."

The case will be remanded to the Logan Circuit Court.

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