WHEELING – A judge has granted in part and denied in part a motion to dismiss a lawsuit alleging injuries an employee suffered in a car accident.

The defendants in the lawsuit included C&J Well Services, Noble Energy, CONSOL Energy and CNX Gas Company.

Noble Energy filed a motion to dismiss and the plaintiffs, Timothy Lester and Robin Lester, filed a response in opposition to the motion to dismiss. Noble then filed a reply to the plaintiffs’ response.

“After a review of the parties’ memoranda and the applicable law, this court finds that Noble’s motion to dismiss must be granted in part and denied in part,” the order states.

The Lesters allege that Noble had a duty of care as to CR-26 by virtue of the permits issued to it by the West Virginia Division of Highways, according to the order.

“In its motion to dismiss, Noble contends that the plaintiffs’ reliance on the WVDOH permits as a source of legal duty is misplaced,” District Judge Frederick Stamp wrote.

The court found that Noble is correct that none of the permits transferred responsibility for the construction, maintenance and control of CR-26 to Noble.

Stamp wrote the court finds that, even accepting the plaintiffs’ allegations as to Noble’s traffic plan as true, there is still not sufficient evidence to state a negligence cause of action arising from the permits. 

Furthermore, the plaintiffs never allege that the accident occurred near any point of entry to Noble’s well pads.

“The existence of a traffic plan does not affect the court’s finding that Noble did not owe Mr. Lester a duty of care as to all of CR-26 by virtue of any permit to occupy a point of entry on CR-26,” the order states.

The court does find, however, that Noble may have owed Lester a narrow duty stemming from Lester’s status as an independent contractor of Noble.

“It is clear that Mr. Lester was an independent contractor of Noble,” Stamp wrote. “However, it is an issue to be developed in discovery whether Noble’s duty as a premises owner extended to the site of the accident on CR-26. Thus, the court’s dismissal of the plaintiff’s claim against Noble cannot encompass the potential duty owed by Noble to Mr. Lester as an independent contractor. Accordingly, the Court dismisses the complaint against Noble only in part, not in its entirety.”

On Feb. 3, 2016, Timothy Lester, an employee of C&J, was operating a 2008 International water truck over and upon CR-26 in Marshall County and was engaged in the transportation and delivery of fluids to the site of one or more of the well pads operated by the defendants, according to a complaint filed March 6 in Marshall Circuit Court and removed to federal court on April 17.

Timothy Lester claims he called out for the road over his CB radio on channel 33 prior to advancing uphill toward the well pads and, unbeknownst to him, two large trucks traveling in the opposite direction ignored his CB transmission and proceeded down the hill.

When confronted with the heavy trucks approaching, Timothy Lester moved as far to the right of the roadway as possible, and when he did so, the roadway and shoulder of CR-26 collapsed, causing his tanker truck to roll over the guardrail and down a steep embankment, striking a tree, according to the suit.

Timothy Lester claims he sustained multiple traumatic injuries, including an upper chest wall injury with fractures of the right first and second costomanubrial and costochondral junctions, bubasilar atelectasis, grade 2 disection of the distal right vertebral artery, displaced fracture of the right transverse process of C7 and multiple infarctions of the cerebellum and right pons.

The Lesters are seeking compensatory damages with pre- and post-judgment interest. They are being represented by William L. Frame of Wilson Frame & Metheney.

The defendants are represented by Jonathan L. Anderson of Jackson Kelly; Nathanial A. Kuratomi of Jenkins Fenstermaker; and Charles F. Johns and Denielle M. Stritch of Steptoe & Johnson.

U.S. District Court for the Northern District of West Virginia case number: 5:17-cv-00046

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Jenkins Fenstermaker Steptoe & Johnson PLLC

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