CHARLESTON – A second potential class action lawsuit has been filed on behalf of about 1,100 Charleston-area customers who lost natural gas service over the weekend.
The plaintiffs in this case – Thomas Tolliver and Bailes Glass Co. – filed their complaint November 15 in Kanawha Circuit Court against West Virginia-American Water Company and Mountaineer Gas Company. Both plaintiffs are based on Charleston’s West Side, which is where a high-pressure water line suffered a break November 10.
The force of the water from the leak pierced a main gas line, sending thousands of gallons of water through the system. Mountaineer Gas officials say it could take a week or more to clear the water out of the gas lines.
“There is no other explanation or accounting for this disastrous event other than the gross negligence of WVAWC and MGC,” the complaint states.
Unlike the first complaint filed November 14, the latest one demands injunctive relief prohibiting WVAWC and MGC from seeking a rate increase to pay for damages.
“If a rate increase were to be allowed, such action and cost to plaintiffs and others similarly situated would constitute a ‘double whammy’ on plaintiffs and the class in that they would be paying at least twice for the wrongs caused by the defendants,” the complaint states.
Attorney Anthony Majestro explained the rationale behind that request.
“This is clearly the fault of the utilities,” Majestro told The West Virginia Record. “They shouldn’t be able to transfer that liability back to the people who have suffered in the form of higher rates.
“We appreciate the efforts of the gas company to restore service as soon as possible. But what they aren’t doing is providing for the people who are suffering nightly temperatures in the 30s in the middle of winter because of their negligence.”
When WVAWC was found responsible for its part in a 2014 chemical leak that infiltrated the Charleston water system, U.S. District Judge John Copenhaver ensured the company wouldn’t raise rates then to pass the costs on to the customers affected when litigation was settled in 2017.
In the latest incident, WVAWC “inexcusable and negligently allowed or caused the water line (or water main) to burst,” according to the complaint.
“The burst water main caused a break in a steel underground gas pipe or gas line owned and operated by MGC, thereby allowing water to enter the gas line and thereby migrate and be distributed into customers’ residential homes and businesses,” the complaint states. “This action required MGC to cut off gas services to the plaintiffs and to others similarly situated.”
The complaint says WVAWC failed to timely and appropriately respond to the emergency and failed to plan and implement proper systems and checks to prevent the water line break and to prevent water from entering the gas line owned and operated by MGC.
It also says MGC should have known WVAWC’s line was subject to failure because of its location, physical properties, the way it was used, the way it was maintained and because of WVAWC’s failure to maintain. It says MGC failed to account for and make provision for a water main rupture that would contaminate and infiltrate the gas line with water. It says the water has caused damage to gas furnaces, gas stoves, gas ovens, gas water tanks and other gas appliances.
The complaint says plaintiffs have been without water and most still are without gas heat in their homes, gas-heated water and have appliances that are inoperative. That causes distress, discomfort and inconvenience, according to the complaint.
It says the plaintiffs and others have had to find other sources of water, heat, methods of cooking and have suffered other discomforts and inconveniences.
The complaint also says businesses such as Bailes Glass have suffered economic losses.
The plaintiffs accuse the defendants of negligence, public nuisance, private nuisance and strict liability. They also accuse MGC of breach of contract for the prolonged gas outage to the nearly 1,100 West Side customers.
The complaint also invokes the doctrine of res ipsa loquitur, which means “the thing speaks for itself.”
The city, Mountaineer Gas, the Red Cross, the United Way and others are working to meet the needs of residents affected by the loss of gas service.
According to the complaint, the potential class members are customers of WVAWC and/or MGC.
On November 15, Gov. Jim Justice declared a state of emergency in Kanawha County because of the incident. He activated the West Virginia National Guard to assist with necessary resources.
“I have spoken with the Vice President of Mountaineer Gas, and we're closely following their progress in restoring service to families,” Justice said. “From what I understand, it is no easy task, but they expressed they are diligently working to get gas turned back on as fast as possible. I have offered any state resources they may need to assist them.”
Justice said he also has asked the state Public Service Commission to begin a full investigation into the cause of the outage and to “hold the responsible parties accountable.”
“This will not get swept under the rug and disappear without answers,” Justice said. “To the resilient residents of the West Side: We are here with you during this challenging time. We are pulling the rope together and will get through this together.”
In the lawsuit, the potential class seeks compensatory damages, punitive damages, pre- and post-judgment interests, attorney fees, court costs and other relief.
The plaintiffs are being represented by R. Edison Hill and James C. Peterson of Hill Peterson Carper Bee & Deitzler of Charleston and by Majestro of Powell & Majestro in Charleston. The case has been assigned to Circuit Judge Kenneth Ballard.
Kanawha Circuit Court case number 23-C-1007