CHARLESTON – A Kanawha Circuit Judge has granted class-action certification in a case against West Virginia American Water Company regarding a 2015 leak.
The proposal was signed July 14 by Judge Carrie Webster. The named plaintiffs are Richard Jeffries and Colours Beauty Salon.
They filed a Motion for Class Certification on Feb. 4 in Kanawha Circuit Court. In the supporting memorandum, the plaintiffs say they suffered following a “preventable and foreseeable” loss of water service by a leak in Dunbar on June 23, 2015.
diTrapano
In the order, the plaintiffs say they meet the qualifications to be certified as a class.
The class will be defined as all WVAWC customers, residents and businesses located within the boundaries of the defined service area of the water main that broke. The class would exclude WVAWC and its employees, judicial offers and family members, court staff assigned to the case, class counsel and defense attorneys working the case and persons or entities who opt out of the class.
Dante diTrapano, one of the lawyers appointed as class counsel, declined to comment because the case is pending other than to say he believes the case is stronger than the other highly publicized Kanawha County case against West Virginia-American Water because it is not complicated by the competing fault of Freedom Industries and Eastman Chemical.
Through counsel, the water company said it is reviewing the court’s order regarding class certification and considering its options for further review.
“We continue to believe that class action is not an appropriate procedure to deal with any portion of the claims related to the 2015 water transmission main break in Dunbar,” the company told The West Virginia Record. “Regardless of the ultimate resolution of the class action questions, West Virginia American Water will continue to vigorously defend its actions in response to these allegations.”
According to court filings, initial repair attempts were unsuccessful, and repair efforts created other issues. Regular service was not restored until June 27, 2015. Then, another issue on June 29 created more problems for thousands of the same customers. Regular service was not restored again until July 1.
This interruption of service occurred in what the water company calls the western Kanawha Valley District and affected a total of about 120,000 residents and businesses in Kanawha and Putnam counties.
“The western portion of the Kanawha Valley District is entirely dependent on a single large-diameter 36-inch prestressed concrete cylinder pipe (PCCP) which is known to be unreliable and prone to breaks,” the Feb. 4 memorandum states. “Indeed, dating back as far as 1989, this main broke repeatedly, approximately every 3-4 years.”
These incidents occurred shortly after the first settlement proposal was issued related to the 2014 water crisis that affected more than 300,000 WVAWC customers in nine counties. The settlement was for more than $150 million.
In this ongoing case, Webster didn’t rule on the water company’s motion to dismiss until February 2019. In September, she issued a scheduling order setting a trial date for Sept. 21, 2020.
The original complaint says the water company had a contract with the customers who lost tap water pressure and service. It says the company also failed to maintain facilities to provide adequate and continuous service, and it says the company violated statutory obligations and was negligent.
The plaintiffs seek compensatory damages for the loss of use of residential tap water, annoyance, inconvenience, incidental expenses, lost profits and other relief. They also seek punitive damages based on what they call the company’s willful, reckless and wanton behavior in refusing to address known issues.
The plaintiffs are being represented by diTrapano, Stuart Calwell and Alex McLaughlin of Calwell Luce diTrapano in Charleston; Van Bunch of Bonnett Fairbourn Friedman & Balint in Phoenix, Arizona; and Kevin Thompson and David Barney of Thompson Barney in Charleston.
The attorneys listed as representing WVAWC are Thomas J. Hurney Jr., Alexandra Kitts and Samantha D’Anna of Jackson Kelly in Charleston as well as Kent Mayo of Baker Botts in Washngton, D.C.
Kanawha Circuit Court case number 17-C-765