CHARLESTON – Central Regional West Virginia Airport Authority and Triad Engineering have filed answers to a complaint filed against it because of the March landslide, while two other defendants filed motions to dismiss themselves from the lawsuit.
Meanwhile, airport officials want to keep the case in Kanawha Circuit Court rather than having it removed to federal court.
Yeager officials say removing the case to federal court could delay work on the runway in wake of the March 12 landslide. The airport authority will push to have the case heard by Kanawha Circuit Judge Jim Stucky, but that decision now lies in the hands of federal District Judge John Copenhaver.
In its answer, the airport authority denies it knew that the EMAS or the mechanically stabilized earth retention structure had shifted several feet a year before March 12, but admits that a portion of the mechanically stabilized earth retention structure failed on March 12.
The airport authority also denies that Yeager Airport's inspection reports foreshadowed a looming catastrophe or that the airport authority had knowledge of any looming catastrophe.
The airport authority admits that a board meeting was called to discuss concerns relating to the mechanically stabilized earth retention structure, however, the airport authority denies that it had knowledge of any impending catastrophe since at the board meeting, Triad informed the board that there was only a "slight" chance of any catastrophic failure of the mechanically stabilized earth retention structure, according to the answer.
The plaintiffs are comparatively negligent and their negligence proximately caused or contributed to the damages they allegedly sustained and any damages awarded to them should be reduced in proportion to their negligence, the answer states.
The plaintiffs' damages, if any, were the result of a superseding or intervening event that was unrelated to any alleged act or omission of the airport authority.
The alleged incident or damages were caused by conditions beyond the control of the airport authority and, therefore, the plaintiffs are precluded from recovery for alleged damages.
The airport authority was not aware and could not have been reasonably been aware of the alleged dangerous condition prior to the alleged incident and/or could not have reasonably altered the alleged condition prior to the alleged incident.
Triad admits that it surveyed, measured and assessed the cracks in the airport in 2013 and compared its finding with a previous survey and admits that it recommended additional monitoring of the cracks, according to its answer.
Triad also admitted that in July 2014, it installed 28 monitoring points along the surface and sides of the embankment.
"Triad admits that it made certain preliminary slope repair recommendations for the area between the toe of the reinforced slope and Keystone Drive to the airport in September 2014," the answer states.
Triad claims the plaintiffs fail to join an indispensable party and their complaint must be dismissed pursuant to West Virginia Rules of Civil Procedure.
"To the extent plaintiffs suffered any of the damages or losses of which plaintiffs complain, which allegations are not admitted, it is averred that such were not in any manner caused or contributed to be any alleged wrongful act or omission on the part of Triad," the answer states.
Cast & Baker filed a motion to dismiss on July 8, stating that the plaintiffs failed to state a claim.
Nationwide Mutual Fire Insurance Company filed a motion to dismiss on July 7, stating that it did not act in bad faith by filing the federal declaratory judgment action when a bona fide dispute existed as to coverage of the plaintiffs' loss.
Nationwide also stated that it did not breach the homeowners' insurance policy because the loss is excluded from coverage.
Airport employees first noticed a problem with the safety area on Runway 5 in June or July 2013, when cracks began to appear, according to the plaintiffs' complaint, which was filed June 1 in Kanawha Circuit Court.
Theodore Carter and Rebecca Carter claim after the airport noticed the cracks, its officials contacted Triad and both the airport and Triad identified that there were cracks in the engineered material arresting system and that it would only worsen if not repaired.
In 2013, Triad surveyed the area, measuring and assessing the cracks and comparing its findings with a survey that had been done in 2009, after paving of the safety-overrun area was completed.
Triad recommended additional monitoring of the area and in July 2014, a year after the cracks first appeared, Triad installed 28 monitoring points along the surface and sides of the embankment. Every one of the points showed movement between July and August 2014, indicating worsening problems, according to the suit.
The plaintiffs claim the cracks were not announced publicly, thus keeping the public uninformed about the catastrophe that was about to occur because of the inaction of the airport and Triad.
In September, Triad made recommendations to the airport that involved performing work on the EMAS fill itself, but the airport did not follow the recommendations, according to the suit.
The plaintiffs claim the EMAS inspection reports identified the worsening problems and on Jan. 13, Terry Sayre, the assistant airport director, spoke with a representative of Keystone Apostolic Church, and the representative of the church told Sayre they were concerned about the slip and its stability.
On March 8, Triad began a "subsurface" investigation to evaluate the fill movement, but neither Triad nor the Airport ever did anything to fix the worsening problems, according to the suit.
The plaintiffs claim on March 10, settlement of the southernmost corner of the fill became more pronounced and Triad immediately notified airport officials.
On March 11, Airport Director Rick Atkinson called an emergency board meeting because of the impending catastrophe, according to the suit.
The plaintiffs claim on March 12, the EMAS collapsed and a landslide occurred, causing them, to lose most of their "worldly possessions as a result of the 'failure of the mechanically stabilized earth retention structure.'"
Rebecca Carter was raised in the home on Keystone Drive and had many fond memories of the home, according to the suit.
The defendants are liable for the damages suffered by the plaintiffs, according to the suit.
The plaintiffs claim the defendants were negligent and violated their duties of reasonable care.
Nationwide breached its contract with the plaintiffs by its refusal to pay the Carters' claim, according to the suit.
The plaintiffs are seeking compensatory and punitive damages with pre- and post-judgment interest. They are being represented by Christopher J. Heavens of Heavens Law Firm PLLC.
The airport authority is being represented by Matthew A. Nelson and Patricia M. Bello of Lewis Brisbois Bisgaard and Smith LLP.
Triad is represented by Teresa J. Dumire and John D. "Jack" Hohlitzell of Kay Casto & Chaney PLLC; Kevin A. Nelson and Kelby Thomas Gray of Dinsmore & Shohl LLP; and John C. Palmer of Robinson & McElwee PLLC.
Cast & Baker is represented by Michael Markins and Jennifer A. Lynch of Mannion Gray Uhl & Hill Co. LPA.
Nationwide is represented by Ronda L. Harvey, Ashley Hardesty Odell and Lara K. Omps-Botteicher of Bowles Rice LLP.
On March 12, 130 homes were evacuated after a large portion of the hillside slip into Two Mile Creek. One home and Keystone Apostolic Church were destroyed, while many other houses were damaged by flooding.
Residents were given hotel vouchers and stayed in hotels for some time after the landslide.
On May 22, Yeager Airport filed a lawsuit against 20 companies involved with the design and construction of its runway extension project, alleging negligence and breach of contract.
Triad and Cast & Baker were also named as defendants in that lawsuit as well.
The airport claims the runway extension and the man-made hillside that supported it were improperly designed, improperly tested, not properly inspected and not properly monitored.
The airport hired lawyers from three local firms, Scott Segal, Timothy Bailey and Anthony Majestro, to file the lawsuit jointly on its behalf.
The case is assigned to Circuit Judge Tod J. Kaufman.
Kanawha Circuit Court case number: 15-C-1074