CHARLESTON – The West Virginia Department of Transportation has filed a motion to dismiss a lawsuit filed by Tara Retail Group alleging the DOT failed to repair the bridge leading to the Crossings Mall.
The motion to dismiss was filed Aug. 29 in Kanawha Circuit Court.
Tara or its successor, through William Abruzzino, Tara’s manager and owner, has applied for and received two encroachment permits from DOH over a 28-year period that allowed Tara to construct its crossing and private bridge and required Tara to maintain and repair the crossing and the bridge, according to the motion.
“The clear and unambiguous terms of the encroachment permit allow the construction of an approach or an access to County Route 45 and specifically requires Tara to maintain such approach or access,” the motion states.
The encroachment permit plainly and unambiguously allows Tara to construct an approach or access to County Route 45, but it specifically requires that Tara maintain its approach or access to the road.
The court must dismiss the complaint because “Tara is solely responsible for constructing, maintaining and repairing the private culvert bridge and all approaches that it connected to County Route 45,” according to the motion.
“Accordingly, Tara’s complaint on its face does not and cannot state a claim against DOH upon which any relief can be granted,” the motion states.
The DOT also claims that Tara knew the bridge needed to be replaced and sought to secure the funds to do so in January 2016, but did not manage to do so before the June 2016 flooding destroyed it.
Tara filed the lawsuit on June 23 in Kanawha Circuit Court, alleging that the corrugated arch culvert bridge on The Crossings Access Road was substantially destroyed by thunderstorms and torrential rains resulting in a catastrophic flood on June 23, 2016, to the extent that access to Tara’s property was destroyed.
The plaintiff requested that the defendants repair and reconstruct its right-of-way, which included the bridge on The Crossings Access Road, but received no response. On Nov. 15, Tara sent a Notice of Claim/Notice of Intent to File to the DOH, according to the suit.
Tara claims the defendants refused its request to repair the right-of-way and it was forced to file for bankruptcy on Jan. 24.
On April 14, the bankruptcy court entered an order authorizing Tara to obtain the requested post-petition financing to repair and reconstruct the bridge providing access to The Crossings and, on April 27, Tara commended the repair and reconstruction of the bridge, according to the suit.
The Crossings Mall reopened in July, after a new bridge was built.
Tara is being represented by Steven L. Thomas of Kay Casto & Chaney.
The DOT is represented by Michael J. Folio.
Kanawha Circuit Court case number: 17-C-879