BLUEFIELD — Several companies owned by Gov. Jim Justice's family are asking for a lawsuit against them filed by retired miners to be dismissed.
In the Nov. 5 memorandum of law in support of the motion to dismiss, the defendants argue that the retired miners failed to state a claim upon which relief could be granted.
The defendants contend that the plaintiffs have failed to exhaust or allege that they have exhausted the mandatory arbitral remedies provided by the arbitration procedure contained in Article XXIII of the parties’ collective bargaining agreement, the National Bituminous Coal Wage Agreement of 2016, to which the parties must submit all disputes arising between them.
The defendants also argue that the plaintiffs failed to exhaust or allege that they have exhausted the mandatory claims remedies and procedures provided by the applicable Plan Documents for the Health Plan.
"All of Plaintiffs’ claims in law and equity arise solely from these statutory sources," the memorandum states. "Because Plaintiffs have failed to state a claim under these two statutes, their Complaint must be dismissed as a matter of law."
The plaintiffs filed the lawsuit in August against Justice Energy Co., Keystone Service Industries Inc., Bluestone Coal Corporation, Double-Bonus Coal Co. and Southern Coal Corporation.
James E. Graham II, Dennis Adkins, Roger Wriston, David B. Polk and the United Mine Workers of America International Union claim the companies failed to pay health and prescription costs as promised under a national agreement. They also claim the companies violated the Employee Retirement Income Security Act (ERISA).
The union argued the claims haven’t been paid since 2017 when Justice took office as governor. It also contended the companies, without advance warning, canceled retiree medical and drug coverage effective July 1 of this year. But, it says partial coverage was restored the following day. They claim similar periodic cancellations and restorations have occurred before.
The plaintiffs seek an injunction to force the defendant companies to resume paying medical and prescription costs for the retirees until the bigger issues are fixed. They also seek compensatory damages and payment for medical and prescription bills already due.
The plaintiffs are represented by UMW attorneys Charles F. Donnelly in Charleston as well as Kevin F. Fagan and Timothy J. Baker in Triangle, Va.
U.S. District Court for the Southern District of West Virginia Case number: 1:19-cv-00597