WEST VIRGINIA RECORD

CHARLESTON – A self-serving affidavit is not enough evidence to defeat a motion for summary judgment, the state Supreme Court ruled in a case alleging the negligent severance of a water line.

The court filed its memorandum opinion affirming the decision of the Circuit Court of Monongalia County on June 28.

In 2008, Defendants/Respondents Carole Sovastion and Jennifer D. Sovastion contracted to install underground electrical service line to supply power to a trailer located on their property. Jennifer Sovastion’s affidavit stated that she contacted Miss Utility on two occasion to inspect the property before beginning excavation.

After a Miss Utility representative inspected the property and gave the go-ahead, the Sovastions hired Frank Casino, an independent contractor, to do the excavation work. During the excavation, Casino severed a water line and Jennifer Sovastion immediately shut off the water supplying the severed line, according to the opinion.

Plaintiffs/Petitioners Daryoush Hooshyar and Farzaneh Hassani, M.D. filed a complaint alleging that the Sovastions caused damage to their residence and denied them access to fix the severed water line. They alleged the damage was done “intentionally, maliciously, wantonly, unlawfully, and without regard to petitioners’ right.”

The Sovastions counter-claimed that the petitioners had maintained a water line on their property without a valid easement, right-of-way, or other right of title or possession. They alleged the petitioners should be responsible for all costs associated with relocating the water line and for remediation expenses the Sovastions incurred.

The circuit court granted summary judgment to the Sovastions after it included that there was no set of facts that could support a finding that the Sovastions were negligent.

On appeal, the petitioners argued that the circuit court erred in granting the Sovastions summary judgment motion because the Sovastions admitted they were bound by the duty to use reasonable care not to cause damage.

Additionally, the petitioners claimed that Jennifer Sovastion had actual knowledge of the water line and its location. They alleged that she had acknowledged that her grandmother had informed her of the water meter and water line on the property at some time earlier.

The Sovastions argued that they were never made aware of the water line and the line was not located on any map, deed, plat, easement, or recorded right-of-way which would have given them actual or recorded notice. They also argued that they had contacted Miss Utility, which approved the excavation, and they had hired an independent contractor to perform the excavation.

“This Court agrees with the decision of the circuit court... Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party... Self-serving assertions without factual support in the record will not defeat a motion for summary judgment," the opinion says.

“The only evidence to suggest respondents were aware of the water line located below grade of their property and that it serviced property owned by petitioners is Petitioner Hooshyar’s self-serving affidavit. Petitioners have failed to provide any supporting evidence to corroborate their self-serving statements. Therefore, after careful consideration, this Court concludes that the circuit court’s order granting respondents’ summary judgment is affirmed.”