WEST VIRGINIA RECORD

CHARLESTON – Sixteen lawsuits filed against Appalachian Fuels over the improper drainage of water from a surface mine into the Miller Branch area in Logan County will be heard individually and in state court.

U.S. District Judge John Copenhaver ruled April 8 that the lawsuits filed over the drainage should not be consolidated and thus, the amount in controversy does not succeed the $75,000 threshold for federal jurisdiction.

The lawsuits were filed May 23 by property owners whose properties had been damaged by the water.

Copenhaver ruled the question proposed by each complaint is whether Appalachian Fuels committed the alleged actions and not an insurance issue.

“It is true that if a coverage question arose against the insurer on the applicable policies and the plaintiffs sued collectively, aggregation might be appropriate in this circuit,” Copenhaver’s decision says.

“Those are not, however, the circumstances presented. In this action, individual plaintiffs instituted separate actions against a tortfeasor which were ‘combined’ solely in the sense that a master complaint was authorized for administrative convenience.

“In sum, the controversy is not the coverage amount available under the policy but, rather, whether the tortfeasor perpetrated the harm alleged and the resulting damages.”

Appalachian Fuels is currently going through Chapter 11 bankruptcy proceedings. On April 11, 2012, the bankruptcy court entered an order allowing the litigation to proceed to the extent of liability insurance coverage.

The plaintiffs have confined their request for damages to the proceeds of any applicable insurance coverage, Copenhaver wrote, and the applicable limit is $1 million.

Because there was a master complaint filed, Appalachian Fuel removed the case to federal court.

The plaintiffs responded the amount in controversy must be proven in each individual case.

In the case of Clarkson and Teresa Browning, records showed a pre-litigation demand of $55,000, well below the federal threshold. The demand was also the highest of what Copenhaver termed “class one cases” – lawsuits in which pre-removal negotiations transpired which may bear on the disposition of the motions to remand.

“Aggregation is thus inappropriate,” Copenhaver wrote. “Again, the master complaint is best understood as an administrative device to aid efficiency and economy and not one upon which the court can, through fictive aggregation, arrive at the jurisdictional amount.”

The plaintiffs are represented by Chad S. Lovejoy of Duffield Lovejoy and Stemple in Huntington.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.