WEST VIRGINIA RECORD

CHARLESTON – Norfolk Southern Railway Company has settled its third-party complaint in a lawsuit brought by a man who was trapped under a collapsed building for nine hours and was awarded $3 million earlier this year.

The complaint filed by Charles Eugene Harris in 2011 in Mingo County Circuit Court alleged he was an employee of Cobra Natural Resources and working on the second floor of a seven-story coal-loading facility at the Black Bear Preparation Plant in July 2009.

The facility was adjacent to the Ben Creek Spur of a railroad track owned and operated by Norfolk Southern.

A section of the track contained a broken rail head, derailing five empty rail cars that crashed into the facility while Harris was working, the complaint said.

“Mr. Harris remained trapped in the dark under the rubble of the collapsed loading facility for several hours before he was finally rescued and airlifted to Cabell Huntington Hospital, where he remained hospitalized for nine days,” the complaint says.

The collapse caused severe injuries to Harris, he claimed, including a fracture of one of his vertebrae and a cut on his right leg. He also alleged he suffered from depression and Post-Traumatic Stress Disorder as a result of the collapse, and he lost his job because he was not able to return to work.

Before the trial, U.S. District Judge Joseph Goodwin ruled Norfolk Southern Railway was liable to Harris for a breach of duty to inspect and maintain a railroad track. The only remaining issue was for a jury was the amount of compensatory damages.

A jury in January awarded Harris almost $800,000 for lost wages and benefits, $125,000 for lost household services, $57,200 for past medical expenses and $2 million for pain and suffering.

Goodwin altered the judgment to add nearly $40,000 in interest.

In September 2011, Norfolk Southern Railway filed a third-party complaint against Cobra and Sperry Rail Services.

Sperry performed fail defect testing services on the Ben Creek Spur in and around the area where the derailment occurred five months prior to it happening, the third-party complaint said.

Sperry agreed to indemnify Norfolk Southern Railway and hold it harmless from any claims arising from the work Sperry performed in a Rail Testing Services Contract, it added.

As for Cobra, its predecessor-in-interest, Mingo Logan Coal Company, had agreed to do the same in a side track agreement unless Norfolk Southern Railway was solely negligent, the third-party complaint said.

Meanwhile, Cobra sued Norfolk Southern Railway and Sperry over the property damage at the same time Harris filed his case in Mingo Circuit Court.

“In this case, Cobra now seeks to avoid its indemnity obligation to NSRC, claiming that the derailment was caused solely by NSRC’s negligence, and that Sperry was not negligent with respect to the derailment,” the railroad company’s attorneys wrote in a June 17 trial brief.

“The State Court Complaint is direct evidence that Cobra itself does not believe its own argument, as it specifically alleged in a court of law that Sperry negligently breached common law duties that resulted in the derailment.”

A July 2 dismissal order said a settlement of Norfolk Southern Railway’s claims was pending. Terms were not disclosed.

Two other men were trapped in the collapse and suffered injuries.

Harris was represented by Tonya L. Hatfield of Inez, Ky., and Lucas Liben, Bruce Stanley and Timothy L. Moore of Reed Smith in Pittsburgh.

Norfolk Southern Railway was represented by attorneys with Huddleston Bolen in Huntington and Ronald K. Wray II of Gallivan White & Boyd in Greenville, S.C.

Sperry Rail was represented by attorneys from Kay Casto & Chaney in Charleston, while Cobra was represented by attorneys from Jackson Kelly in Charleston.

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