acord complaint

8/7/2019 Acord complaint

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1 IN THE CIRCUIT COURT OF BOONE COUNTY, WEST VIRGINIA

Cody Acord,

Administrator of the Estate Civil ActionNo.:of Carl Acord, deceased

Plaintiff,JURY TRIAL DEMANDED

v.

PERFORMANCE COAL COMPANY, d/b/aUpper Big Branch Mining Company, aWest Virginia Corporation and MASSEYCOAL SERVICES, INC., a West Virginia Corporation;MASSEY ENERGY COMPANY, a Foreign Corporation;and DON BLANKENSHIP, individually, and BAXTER PHILLIPS,JR., DAN MOORE, GORDON GEE, RICHARD M. GABRYS,JAMES CRAWFORD, BOBBY R. INMAN, ROBERT H.FOGLESONG, H. DREXEL SHORT, JR., J. CHRISTOPHERADKINS, JEFFREY M. JAROSINSKI, JAMES L. GARDNER,JOHN C. BALDWIN, MARTHA R. SEGER, and JAMES H.HARLESS, individually,

Defendants

COMPLAINT

Now into Court through undersigned counsel comes Cody Acord, Administrator

of the Estate of Carl Acord, deceased, and brings this civil action for wrongful death by

intentional injury pursuant to W. Va. Code 23-4-2 [2005] against Performance Coal

Company and such other of the Defendant entities, if any, as are entitled to Workers

Compensation immunity; against Don Blankenship personally and the Defendant Board

Members of Massey Energy personally and Performance Coal Company and Massey

Energy Company for intentional fraud, spoliation of evidence and obstruction of justice;

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and, against such entities as are not entitled to the protection of the Workers

Compensation laws, most particularly Defendant Massey Coal Services, Inc., for

intentional injury and for willful and wanton conduct amounting to reckless disregard

for the rights of others under the common law, and for causes of action shows:

1. Plaintiff Cody Acord is a resident of Bolt, Raleigh County, West Virginia and on

16 April 2010 was duly appointed Administrator of the Estate of his late father,

Carl Acord.

2. At all times relevant herein, the defendant, Performance Coal Company,

d/b/a Upper Big Branch Mining Company, (hereinafter referred to as

Performance Coal) was a West Virginia corporation doing business in Boone

County, West Virginia at its mine located at Upper Big Branch in Boone County,

West Virginia.

3. Carl Acord was born 7 July 1958 and married Joyce Acord on 4 September 1982

in Raleigh County, West Virginia. Carl and Joyce Acord had two children, to-wit

Cody Acord, born 9 September 1984 and Casey Acord born 30 July 1990.

4. At all times relevant herein, the defendant, Massey Coal Services, Inc.,

(hereinafter Massey Coal Services) was a West Virginia corporation doing

business in Boone County, West Virginia at, among other locations, the

defendant Performance Coal Companys mine located at Upper Big Branch and

Defendant Massey Coal Services, Inc. is headquartered in Boone County, West

Virginia.

5. Defendant Massey Coal Services, Inc. was not the employer of Carl Acord and,

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therefore, is not entitled to any immunity under the Workers Compensation laws

of the State of West Virginia.

6. At all times relevant herein, the defendant, Massey Energy Company, (hereinafter

Massey Energy) was a foreign corporation doing business in Boone County,

West Virginia. Massey Energy exercises direction and control of Defendants

Performance Coal Company and Massey Coal Services, and has its West Virginia

corporate headquarters in Boone County, West Virginia.

7. At all times relevant herein, the defendant, Don Blankenship, individually,

(hereinafter Blankenship), was Chief Executive Officer of Massey Energy

Company and, in that capacity, exercised direction and control of defendants

Performance Coal Company, Massey Coal Services, and Massey Energy Company

and, upon information and belief and subject to confirmation during discovery,

was personally responsible for the spoliation of evidence and the obstruction of

justice.

8. Individual defendants Baxter Phillips, Jr., Dan Moore, Gorden Gee, Richard

Garbys, James Crawford, Bobby R. Inman, Robert H. Fogelsong, H. Drexel Short,

Jr., J. Christopher Adkins, Jeffrey M. Jarosinski, James L. Gardner, John C.

Baldwin, Martha R. Seger, and James Harless (hereafter individual board

member defendants) were members of the Board of Directors of Massey Energy

Company on 30 June 2008 when each of them accepted personal responsibility

actively and personally to participate in, monitor, direct, control, and sanction

the safety programs of Massey Energy Company and all of its operating

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subsidiaries to ensure that Massey Energy Company and all of its operating

subsidiaries operated in a manner that complied with all federal and state mine

safety laws and regulations. (See Exhibit A Agreed Order and Final

Judgment and related exhibits, entered 30 June 2008 by the Circuit

Court of Kanawha County in Civil Action # 07-C-1333). Upon

information and belief and subject to confirmation during discovery, the

aforesaid Defendant Board Members personally instigated, condoned and/or

acquiesced in the deliberate and intentional spoliation of evidence and the

obstruction of justice.

9. The individual director Defendants had a separate, independent duty to supervise

the compliance of Defendant Performance Coal Companys mine with all federal

mine regulations and known safety standards arising from the Circuit Court

Order in Civil Action 07-C-1333 and Plaintiffs decedent was entitled to rely upon

the reasonable expectation that the individual director Defendants would

faithfully comply with their obligations pursuant to the aforesaid Court order, all

of which gives rise to an ex contractu cause of action in addition to any and all

statutory and common lawex delicto causes of action and a cause of action for

obstruction and spoilation.

10. On information and belief, on or about 5 April 2010 and prior thereto, the

defendant, Massey Coal Services, provided the safety services and fulfilled the

duties of Safety Director at Performance Coal Companys mine located at Upper

Big Branch and was responsible for designing and implementing the safety

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program at such mine, including but not limited to, assuring that the mining

operations related to, among other things, mine ventilation, dust levels, and

methane and other gas levels complied with all state and federal mine safety

regulations.

11. On or about 5 April 2010 and prior thereto, upon information and belief and

subject to confirmation during discovery, the defendant, Massey Coal Services

deliberately and intentionally failed to assure that the mining operations at the

Upper Big Branch Mine complied with state and federal mine safety regulations,

including, but not limited to, such regulations as apply to mine ventilation, dust

levels, and methane and other gas levels.

12. On or about 5 April 2010, Carl Acord was the victim of an explosion while

working at the Upper Big Branch mine of Performance Coal Company while the

safety program at such mine was the responsibility and duty of the defendant

Massey Coal Services, and all individually named defendants herein and the

operations were subject to the direction and control of Massey Energy.

13. Carl Acords death was confirmed on 5 April 2010.

COUNT I - INTENTIONAL EXPOSURE BY DEFENDANTPERFORMANCE COAL

14. The plaintiff incorporates as if fully set out herein, the allegations of paragraphs

numbered 1 through 13.

15. At the time and place of the explosion that killed Plaintiffs decedent, specific

unsafe working conditions existed in the workplace that presented a high degree

of risk and a strong probability of serious injury or death to Carl Acord, including,

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but not limited to, Performance Coals documented pattern of providing a mining

workplace that was inadequately and improperly ventilated and that contained

excessive levels of combustible/explosive coal dust and methane and other gases

all in violation of explicit federal mine safety regulations, to-wit 30 C.F.R. 75.302

to 75.363.

16. At that time and place, based upon information and belief, other specific unsafe

working conditions existed in the workplace that presented a high degree of risk

and a strong probability of serious injury or death to Carl Acord, including, but

not limited to, the following:

A. The extent of coal dust in the UBB mine exceeded that allowed

by federal safety regulations and the control of that coal dust was

not sufficient to meet federal safety regulations;

B. The longwall mining machine, was being operated with missing

sprayers on the longwall shearer;

C. The longwall mining machine was being operated with

inadequate water pressure on the shear;

D. The longwall mining machine was being operated with some of

the shearer bits worn down beyond the carbide tips so that the

metal shanks (bare steel) were exposed to direct contact with

sandstone;

E. The combination of B., C., and D. created an illegal condition

that allowed excessive uncontrolled sparking from the shearer

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cutting into rock top at the longwall face - an extremely

dangerous circumstance considering the known presence of

explosive methane gas at various times on the longwall face and at

all times in the longwall gob located nearby the shearer;

F. The longwall mining machine was being operated without fully

operational boom sprayers that were necessary for the efficient

operation of the ventilation systems on the face of the longwall and

that were necessary to control dust from the longwall face;

G. The longwall shearer was being operated illegally as it did not

have an operational fire suppression system and was not using non-

flammable hydraulic fluid, one or both being required by federal

safety regulations.

17. At the time and place of the explosion, Defendant Performance Coal had actual

knowledge of the existence of the specific unsafe working conditions and of the

high degree of risk and the strong probability of serious injury or death presented

by the specific unsafe working conditions.

18. At that time and place the specific unsafe working conditions were violations of

state or federal safety statutes, rules or regulations, or of written and commonly

accepted and well known consensus safety standards within the industry of the

employer, which statutes, rules or regulations, or standards were specifically

applicable to the particular work and working condition involved, all as amply

demonstrated by hundreds of safety violations issued against the mining

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operations at Upper Big Branch Mine, many of which have been termed as

unwarrantable failure to comply with a mandatory standard by the Federal

Mine Safety Health Administration, sometimes indicating that management

engaged in aggravated conduct constituting more than ordinary negligence in

that production was deemed more important than conducting parameter checks

[specified in the methane/dust control plan for the mine].

19. At that time and place, notwithstanding the existence of the facts set forth in

paragraphs 15 through 18 above, the employer, Performance Coal, nevertheless

thereafter intentionally exposed Carl Acord to such specific unsafe working

conditions.

20. At that time and place, Carl Acord, by being so exposed, suffered death as a direct

and proximate result of Defendant Performance Coals deliberate and intentional

exposure of Carl Acord to such specific unsafe working conditions of which

Defendant Performance Coal had actual knowledge.

21. Performance Coal, d/b/a Upper Big Branch Mining Company, is liable for the

acts and or omissions of its management employees and agents as to all of the

allegations herein.

22. As a direct and proximate result of Carl Acords death, Plaintiff is entitled to

recover for Carl Acords family all damages allowed for Wrongful Death by West

Virginia Code 55-7-6 [1992].

COUNT II - INTENTIONAL EXPOSURE AND WANTON ANDRECKLESSNESS CONDUCT OF

DEFENDANTMASSEY COAL SERVICES, INC.

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23. Plaintiff incorporates the allegations of paragraphs numbered 1 through 22

herein as if fully textually set out.

24. Defendant owed Carl Acord a duty not intentionally to expose Carl Acord to life-

threatening hazards for any reason, including, preeminently, economy for Massey

in the provision of equipment to insure safety. Defendant nonetheless breached

that duty and intentionally allowed Carl Acord to be exposed to conditions

explicitly prohibited by the applicable mine safety regulations, to-wit, by way of

example, 30 C.F.R. 75.302 to 75.363 and Defendant Massey Energy had actual

knowledge of such violations. As a result of Defendants intentional breach of its

duty to follow the federal mine law, Carl Acord was killed.

25. Defendant Massey Coal Services is a West Virginia corporation separate from

Defendant Performance Coal Company. Performance Coal Company was the

employer of Carl Acord while Massey Coal Services was at best a contractor doing

safety work in the Upper Big Branch Mine at the time of the explosion. Therefore,

Defendant Massey Coal Services, Inc. is liable for punitive damages for both

intentional injury and willful and reckless disregard of the rights of others.

COUNT III - INTENTIONAL INJURY BYMASSEY ENERGY


herein as if fully set forth.

27. Defendant Massey Energy owed Carl Acord a duty not intentionally to expose

Carl Acord to life-threatening hazards for any reason, including, preeminently,

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economy for Massey in the provision of equipment to insure safety. Defendant

nonetheless breached that duty and intentionally allowed Carl Acord to be

exposed to conditions explicitly prohibited by the applicable mine safety

regulations, to-wit, by way of example, 30 C.F.R. 75.302 to 75.363, and

Defendant Massey Energy had actual knowledge of such violations. As a result of

Defendants intentional breach of its duty to follow the federal mine law, Carl

Acord was killed.

COUNT IV - INTENTIONAL INJURY BYDON BLANKENSHIP, INDIVIDUALLY


herein, as if fully textually set out.

29. Defendant Don Blankenship, individually, owed Carl Acord a duty not

intentionally to expose Carl Acord to life-threatening hazards for any reason,

including, preeminently, economy for Massey Energy in the provision of

equipment to insure safety. Defendant Blankenship nonetheless breached that

duty and intentionally allowed Carl Acord to be exposed to conditions explicitly

prohibited by the applicable mine safety regulations, to-wit, by way of example,

30 C.F.R. 75.302 to 75.363, and Defendant Don Blankenship had actual

knowledge of such violations. As a result of Defendant Don Blankenships

intentional breach of his duty to follow the federal mine law, Carl Acord was

killed.

30. Defendant Don Blankenship had an independent duty to assure that neither

Massey Energy Company nor Performance Coal Company destroyed physical

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evidence, destroyed or altered documents that are evidence, or in any way

contributed to the obstruction of justice.

31. Independent of any general obligation arising from the mining laws, Defendant

Blankenship had an independent duty to assure safety in the mines arising from

that certain consent decree entered by the Circuit Court of Kanawha County in

Civil Action No.: 07-C-1333.

COUNT V INTENTIONAL INJURY BY INDIVIDUAL BOARDMEMBER DEFENDANTS, INDIVIDUALLY


herein, as if fully textually set out.

33. Upon information and belief, and subject to confirmation during discovery, the

members of the Board of Massey Energy were appraised of Massey Energys

abysmal safety record and of Massey Energys deliberate violations of explicit

Federal mining regulations for the purpose of saving money.

34. Upon information and belief, the Board Member Defendants, individually, owed

Carl Acord a duty not intentionally to expose Carl Acord to life-threatening

hazards for any reason, including, preeminently, economy in the provision of

equipment to insure safety. Defendant Board Members nonetheless breached

that duty and intentionally allowed Carl Acord to be exposed to conditions

explicitly prohibited by the applicable mine safety regulations, to-wit, by way of

example, 30 C.F.R. 75.302 to 75.363, and the individual Defendant Board

Members had actual knowledge of such violations. As a result of the Defendant

individual Board Members intentional breach of their duty to follow the federal

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mine law, Carl Acord was killed.

35. Independent of any general obligation arising from the mining laws, Defendant

individual Board Members had an independent duty to assure safety in the mines

arising from that certain consent decree entered by the Circuit Court of Kanawha

County in Civil Action No.: 07-C-1333

COUNT VI- JOINT AND SEVERAL LIABILITY OFALL DEFENDANTS

36. Plaintiff incorporates the allegations of paragraph number 1 through 35 as if fully

set forth.

37. As a direct and proximate cause of the intentional exposure by defendants

Performance Coal, Massey Coal Services, Massey Energy, and Don Blankenship,

individually, and the individual board member defendants, Carl Acord was killed.

38. As a direct and proximate result of Carl Acords death, Plaintiff is entitled to

recover for Carl Acords family all damages allowed for Wrongful Death by West

Virginia Code 55-7-6 [1992].

39. With regard to all entities not afforded Workers Compensation immunity,

Plaintiffs allegations of intentional exposure and intentional injury include the

lesser torts of injury inflicted through: (1) willful and wanton conduct; (2)

reckless disregard of the rights of Carl Acord; (3) gross negligence; and, (4)

ordinary negligence.

COUNT VII FRAUD, SPOILATION OF EVIDENCE ANDOBSTRUCTION OF JUSTICE

40. Paragraphs 1 through 39 are incorporated as if fully set forth.

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41. On or about 28 February 2011 Hughie Stover, security chief for Massey Energys

Upper Big Branch mine, was arrested and charged with obstructing the

investigation into the explosion that killed Plaintiffs decedent.

42. Upon information and belief, and subject to confirmation during discovery,

Defendant Don Blankenship personally and with the personal explicit or implicit

agreement of the Defendant Board Members and the management of Massey

Energy Company and/or Performance Coal Company gave instructions to agents

and servants of Performance Coal Company and/or Massey Energy Company to

obstruct justice, destroy physical evidence, destroy and/or alter documents and

otherwise to obstruct justice and confound Plaintiffs ability to receive a fair trial

and appropriate damages for his fathers wrongful death.

43. Plaintiff is entitled to punitive damages for Defendant Massey Energy and/or

Performance Coal Companys spoilation of evidence and/or obstruction of

justice.

JURY DEMAND

Plaintiff demands a trial by jury of all issues triable as a matter of right before a

jury.

PRAYER

WHEREFORE, plaintiff Cody Acord prays for judgment against the defendants,

jointly and severally as follows:

1. For a sum sufficient fully to compensate Carl Acords family for all

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damages for his wrongful death as set forth in West Virginia Code 55-7-6

[1992].

2. For interest at the legal rate of interest upon all losses and expenses

incurred from the dates incurred to the date of judgment;

3. Punitive damages against all defendants not entitled to Workers

Compensation immunity and the benefits of the limitations set forth in

West Virginia Code 23-4-2 [2005], to-wit Massey Coal Services, Massey

Energy, and Don Blankenship, individually, and the individual board

member defendants, in amounts adequate to deter their wrongful conduct

in the future and to dissuade similar mining companies from engaging in

such wrongful conduct.

4. Punitive damages against Massey Energy Company and/or Performance

Coal Company for deliberate and intentional spoilation of evidence and

the obstruction of justice;

5. For the cost of this action; and

6. For such other and further relief, both legal and equitable, as justice and

the nature of the cause may require.

Plaintiff Cody Acordby Counsel

___________________________

Christopher M. Davis, W. Va. Bar # 9050John D. Wooton, Jr., W. Va. Bar # 10571John D. Wooton, W.Va. Bar # 4138P.O. Box 2600Beckley, West Virginia 25801Phone 304-255-2188

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Fax 304-255-2189

Richard Neely, W.Va. Bar # 2709

NEELY & CALLAGHAN159 Summers StreetCharleston, WV 25301-2134Phone: (304) 343-6500Fax: (304) 343-6528

acord complaint

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