case 1:14-cv-00212-imk-mja document 1-19 filed 12/11/14 ......case 1:14-cv-00212-imk-mja document...

Rhonda L. StarnCircuit Clerk(304) 367-5360

Cr.ircuit (Courtof

cffinritin ccountuSixteenth judicial Circuit

•IN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA

MICHAEL D MICHAEL, as the Administrator ofThe ESTATE OF JACK D MICHAEL, and JUDITH A KUHN, as the Administratrix from theESTATE OF PAUL F HENDERSON, et al. PETITIONER

CASE NO: 14-C-318

THE ESTATE OF ALEX KOVARBASICHBy and through ALBERT F MARANO, SHERIFF OF HARRISON COUNTY, As Administrator for the Estate of AlexKovarbasich

and

CONSOLIDATION COAL COMPANYa Deleware corporation, and, RESPONDENTS

219 Adams StreetRoom 211

Fairmont, WV 26554

I, Daniel Bellay, Deputy Clerk, do certify that the foregoing are true and correctcertified copies of the docket sheets of 14-C-318 as of 10 December 2014,

December 10, 2014

Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 of 79 PageID #: 209

12/10/2014 Marion County Circuit Clerk's Office Page: 1

14:12:41 Docket Entries for case CK-24-2014-C-318Style: MICHAEL D. MICHAEL, admin. of Estate, JUDITH A. KUHN, +more

v.THE ESTATE OF ALEX KOVARBASICH, CONSOLIDATION COAL COMPANY

Judge: Judge Michael J. Aloi

Sea Date Lc.scrLptia]:

1 11/06/2014 Other: CCISdocs: 1 CCIS

2 11/06/2014 Complaint: COMPLAINTdocs: 1 COMPLAINT

3 11/06/2014 Other: C/F SUMMONS TO DEF. EST. OF ALEX KOVARBASICH C/0 ALBERT F. MARANO- RTND TO JIM PAULEY(PROCESS SERVER IN

docs: 1 C/F SUMMONS TO DEF. EST. OF ALEX KOVARBASICH- RTND TO JIM PAULEY(PROCESS SERVER IN OFFICE)

4 11/06/2014 Other; C/F SUMMONS TO DEF. CONSOLIDATION COAL CO.- RTND TO JIM PAULEY(PROCESS SERVER IN OFFICE)

docs: 1 C/F SUMMONS TO DEF. CONSOLIDATION COAL CO.- RTND TO JIM PAULEY( PROCESS SERVER IN OFFICE)5 11/19/2014 Other: SOS RTN

docs: 1 **Cannot display**2 CONSOLIDATION COAL COMPANY SRVD 11-17-14

6 11/21/2014 Other: LTR TO CHIEF JUSTICE DAVIS FROM J/ALOIdocs: 1 LTR TO CHIEF JUSTICE DAVIS FROM J/ALOI

7 11/25/2014 Order (not final): ADMINISTRATIVE ORDERdocs: 1 ADMINISTRATIVE ORDER

8 12/09/2014 Answer: Answerdocs: 1 Answer - Answer

2 Transmittal


CIVIL CASE INFORMATION STATEMENTCIVIL CASES

IN THE CIRCUIT COURT OF MARION, WEST VIRGINIA

CASE STYLE:

MICHAEL D. MICHAEL, as the Administrator ofThe ESTATE OF JACK D. MICHAEL, andJUDITH A. KUHN, as the Administratrix from theESTATE OF PAUL F. HENDERSON, et al.

Plaintiffs,

V. CASE NO. 14-C- 6lqJUDGE tAYAa

Days toAnswer

Type of Service

THE ESTATE OF ALEX KOVARBASICH 20 PersonalBy and through ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY,As Administrator for the Estate of AlexKovarbasich

and

CONSOLIDATION COAL COMPANY 30 Secretary of Statea Delaware corporation, and,

Defendants.

Original and 7 copies of Complaint furnished herewith.


PLAINTIFF: MICHAEL D. MICHAEL, as the Administrator ofThe ESTATE OF JACK D. MICHAEL, andJUDITH A. KUHN, as the Administratrix from theESTATE OF PAUL F. HENDERSON, et al.

DEFENDANT: THE ESTATE OF ALEX KOVARBASICHBy and through ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY,As Administrator for the Estate of Alex Kovarbasich

CONSOLIDATION COAL COMPANY, A Delaware corporation

II. TYPE OF CASE: Workplace Injury

III. JURY DEMAND: YESCASE WILL BE READY FOR TRIAL BY: November 2015.

IV. DO YOU OR ANY OF YOUR CLIENTS OR WITNESSES IN THIS CASE REQUIRESPECIAL ACCOMMODATIONS DUE TO A DISABILITY OR AGE? NO

ATTORNEY NAM

Timothy C. Bai e 9)Mark A. Barney 2)BUCCI, BAILEY INS L.C.Post Office Box 3712Charleston, West Virginia 25337(304) 345-0346

Scott S. Segal (WV #4717)Samuel A. Hrko (WV #7727)THE SEGAL LAW FIRM810 Kanawha Blvd ECharleston, WV 25337304-344-9100

Dated: /1/4/1


Steven L. Shaffer (WV #9365)C. Paul Estep (WV 5731)ESTEP & SHAFFER L.C.212 West Main StreetKingwood, WV 26537304-329-6003

Representing Plaintiff


IN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA

MICHAEL D. MICHAEL as the Administrator of

the ESTATE OF JACK D. MICHAEL, andJUDITH A. KUHN, as the Administratrix for the

ESTATE OF PAUL F. HENDERSON, et al.,

Plaintiffs,

v. Civil A ion No. 14-C- 318Judge

THE ESTATE OF ALEX KOVARBASICH,by and through ALBERT F. MARANO,SHERRIF OF HARRISON COUNTY,

• c>c>.---•

as administrator for the Estate of Alex xi •- -= , c)

7i

,:lric) tr.Kovarbasich, and

:-.: - - .-

CONSOLIDATION COAL COMPANY, c> c5 — n- --.., .

a Delaware Company, ,, 0, 4-.;

=1 n r• ir.-/

C-1 .13 .. 5 &I ill -71Defendants. f "ii-

(cry . ..

2i.: Z•J) r%) -n rri

COMPLAINT ...z (,) -n

co c->rrt

NOW into Court through undersigned counsel comes the plaintiffs and Class

Representatives Michael D. Michael, as the Administrator for the Estate of Jack D. Michael, and

Judith A. Kuhn, as the Administratrix for the Estate of Paul F. Henderson, on behalf of a class of

the estates of seventy-eight (78) coal miners who died on November 20, 1968, as a result of the

Consol No. 9 coal mine explosion, pursuant to Rule 23 of the West Virginia Rules of Civil

Procedure, and does hereby institute this class action against defendants the Estate of Alex

Kovarbasich and Consolidation Coal Company.

PARTIES AND JURISDICTION

1. Plaintiff Michael D. Michael, as the Administrator for the Estate of Jack D.

Michael, is a resident of Madison County, Ohio, and is above the age of majority. Michael D.

Michael was duly appointed as administrator of the Estate of Jack D. Michael on October 20,

2014. See Exhibit 1. Plaintiff Judith A. Kuhn, as the Administratix for the Estate of Paul F.


Henderson, is a resident of Marion County, West Virginia, and is above the age of majority.

Judith D. Kuhn was duly appointed as administrator of the Estate of Paul F. Henderson on

September 30, 2014. See Exhibit 2. Plaintiffs file this action on behalf of a class of the estates

of seventy-eight (78) coal miners who died on November 20, 1968, as a result of the Consol No.

9 coal mine explosion, pursuant to Rule 23 of the West Virginia Rules of Civil Procedure.

2. Defendant Alex Kovarbasich, was, upon information and belief, at all times

relevant hereto a citizen of West Virginia and at all times relevant resided in Harrison County,

West Virginia. On and prior to November 20, 1968, Alex Kovarbasich was a member of mine

management at the Consol No. 9 coal mine operated by Consolidation Coal Company and

located in or near Farmington, Marion County, West Virginia.

3. Upon information and belief, Defendant Alex Kovarbasich with the birthdate of

June 10, 1919, passed away on August 3, 1992 in Marion County, West Virginia.

4. Upon information and belief, no person has been appointed as the personal

representative of the Estate of Alex Kovarbasich in the past two years.

5. Defendant Albert F. Marano, is the duly elected Sheriff of Harrison County, West

Virginia.

6. On October 27, 2014, pursuant to W.Va. Code § 44-1-11, undersigned counsel

made a motion before the County Commission of Harrison County, West Virginia for the Sheriff

of Harrison County to take into his possession the estate of Alex Kovarbasich. See Exhibit 3.

7. Pursuant to the authority imposed by W.Va. Code § 44-1-22, the Sheriff of

Harrison County, West Virginia, is a proper party to this action.

8. Defendant Consolidation Coal Company is a Delaware company with its principal

office in Saint Ciairsville, Ohio. It managed, oversaw, planned, conducted, participated in and

2


profited from the operation of the Consol No. 9 Mine located in or near Farmington, Marion

County, West Virginia. Mountaineer Coal Company was, at all times relevant to the allegations

contained in this complaint, the employer of the plaintiffs' deceased and of the seventy-eight

(78) miners who died in the November 20, 1968, Consol No.9 coal mine explosion and a 100

percent owned subsidiary of Consolidation Coal Company. At all times relevant, Consolidation

Coal Company was mandated to comply with all mine regulations and industry standards that

existed for the protection of coal miners at the Consol No. 9 coal mine. Consolidation Coal

Company directly communicated with mine management level employees of Mountaineer Coal

Company related to day-to-day mining activities and had full authority to direct, and at various

times directed their activities.

9. Jurisdiction and venue are appropriate in this Court pursuant to West Virginia

Code §§ 51-2-2 and 56-1-1 as the amount in controversy is in excess of the jurisdictional pre-

requisites and the injury and/or damages occurred in Marion County, West Virginia.

10. The claims raised herein are claims under West Virginia law and do not concern

any federal law or federal constitutional provision.

OPERATIVE FACTS

11. Plaintiffs reaffirm and reallege every allegation contained in paragraphs 1 through

10 with the same force and effect as if fully set forth herein.

12. On and prior to November 20, 1968, plaintiffs and all similarly situated class

members were coal miners the Consol No. 9 Mine located in or near Farmington, Marion

County, West Virginia.

13. Defendant Alex Kovarbasich was a member of mine management and performed

mine management duties as the chief electrician at the Consol No. 9 Mine. In accordance with

3


such duties, defendant Alex Kovarbasich was responsible for the maintenance and safe operation

of the surface fans which flushed methane from the Consol No. 9 Mine so as to ensure that

methane did not reach unsafe levels.

14. Defendant Consolidation Coal Company was, at all times relevant, responsible for

the safe operation of the Consol No. 9 Mine, including safe operation of the ventilation fans to

ensure that methane did not reach unsafe levels. The Consol No. 9 Mine was under the direction

and control of Consolidation Coal Company.

15. Mountaineer Coal Company was the employer of the plaintiffs' deceased and of

the seventy-eight (78) miners who died in the November 20, 1968, Consol No.9 coal mine

explosion. At all times relevant hereto, and upon information and belief, Mountaineer Coal

Company operated at the direction and authority of Consolidation Coal Company.

16. Defendant Consolidation Coal Company, by and through its management

personnel at the Consol No. 9 Mine was, on and before November 20, 1968, responsible for:

(a) properly inspecting the working areas of the mine for safetyhazards and for correcting all safety hazards discovered or thatshould have been discovered, through proper inspections;

(b) complying with all required state and federal mining laws andindustry standards, including ventilation, methane and dust controlplans;

(c) ensuring the safe operating condition of all mining equipment inconformity with the manufacturer's specifications and originaldesign and safe mining practices;

(d) ensuring the proper removal, control or dilution of explosivemethane gas and coal dust at the mine; and

(e) otherwise operating the mine in a safe and lawful manner.

17. At all times relevant to the allegations contained within this Complaint,

Consolidation Coal Company directly and indirectly controlled the mining activities at Consol

4


No. 9 Mine and voluntarily undertook duties and responsibilities commensurate with the daily

operations at the Consol No. 9 Mine.

18. Under West Virginia law, a parent company is legally responsible for injuries and

deaths which occur at its subsidiary when the parent company, through its officers, executives,

employees or agents actually exercises control over or is intimately involved in the operation of

the subsidiary's facility.

19. Under West Virginia law, a parent company or an affiliated company is also

legally responsible for injuries and deaths which occur at its subsidiary or affiliate when:

(a) the parent or affiliate company voluntarily assumes a duty to perform a

service for the subsidiary;

(b) that service is necessary for the protection of third parties, such as

employees of the subsidiary; and

(c) the services are provided in a negligent manner resulting in harm or death

to those third parties.

20. By and through the involvement of defendant Consolidation Coal Company in the

operation of the Consol No. 9 Mine, said defendant exercised control over and/or was intimately

involved in the operation of the Consol No. 9 Mine.

21. Consolidation Coal Company directly communicated with mine management-

level employees of Mountaineer Coal Company related to day-to-day mining activities and had

full authority to direct, and at various times directed their activities.

22. Methane is a highly flammable, odorless, colorless, hydrocarbon. It is a product

of the decomposition of organic matter and of the carbonization of coal. During the coal mining

5


process, methane is liberated into the mine environment, necessitating ventilation of the mine

area to avoid ignition and explosion.

23. To flush methane from the Consol No. 9 Mine, the defendants utilized four large

surface fans: the No. 1 fan at the slope; the Athas Run fan near the 2 North area of the mine (No.

2. fan); the Mod's Run fan near the 4 North area of the Mine (No. 3 fan); and the Llewellyn fan

near the 7 South area of the mine (No. 4 fan). The No. 3 and No. 4 fans ventilated the west side

of the mine. By operation of mining regulations and safe mining practices, fans were required to

run twenty-four hours a day, seven days a week, unless a mine safety regulatory agency granted

permission to shut one fan down. Further, by operation of mining regulations and safe mining

practices, each fan must be visually inspected at least one time per day.

24. By operation of mining regulations and safe mining practices, if a fan stops and

ventilation cannot be restored within 15 minutes, all power to the mine must be shut off and all

miners must be withdrawn from the affected areas and/or the mine.

25. Defendants fitted their fans with a FEMCO brand safety system. Each fan was

connected to a display board at the lamp house. If a fan was running, its light on the display

board was green. If a fan slowed or stopped, a red light came on and an alarm sounded. The

miner in the lamp house would then contact the miners underground. If a fan was down for more

than 12 minutes, the system was designed to cut off all the power in the mine.

26. Prior to and on November 20, 1968, each mine fan at the Consol No. 9 Mine was

equipped with a mine fan recording chart, in accordance with safe mine industry practices. The

mine fan recording charts recorded information with regard to the operation of the particular

mine fan to which it was connected. Mine fan recording charts were contained within a

protective box, under lock and key. During a fan's operation, a pen drew a line around the

6


circular chart and if a fan stopped, the stoppage would be recorded on the chart as the pen would

stop.

27. At approximately 5:30 a.m. on Wednesday, November 20, 1968, an explosion

occurred in the Consol No. 9 Mine. The force of the explosion extended throughout the west

side of the mine inby Plum Run overcast which included nine active working sections. Of the

ninety-nine (99) miners in the mine, seventy-eight (78) died as a result of the explosion.

28. The entire ventilation system in the west side of the mine inby 3 North was

destroyed by the force of the explosion. This included the No. 3 and No. 4 face and most of the

ventilation controls such as stoppings, overcasts and regulators.

29. Mine fires along with several additional underground explosions interfered with

and eventually prevented the recovery efforts. The mine was sealed at its surface opening on

November 30, 1968.

30. In September 1969, the mine was reopened and operations to recover the remains

of seventy-eight (78) miners were begun and continued until April of 1978.

31. After the November 20, 1968, explosion, mine investigators revealed that the

mine fan recording chart for the Mod's Run fan was taken from the mine fan box sometime after

the explosion. The person who absconded with mine fan recording chart presumably broke the

glass covering on the fan chart box to take it.

32. Immediately after the November 20, 1968, explosion, defendant Alex

Kovarbasich was in the vicinity of the Mod's Run fan shaft.

33. Between 1969 and 1978, the bodies of 59 victims were recovered and brought to

the surface. However, recovery operations ceased and all entrances to the mine were

permanently sealed in November of 1978, leaving 19 victims buried in the mine.

7


34. From November 20, 1968, to April of 1990, investigation of the cause of the

explosion was conducted by the West Virginia Department of Mines, the United States Bureau

of Mines, or the United States Department of Labor, Mine Safety and Health Administration.

35. In March of 1990, a United State Department of Labor, Mine Safety and Health

Administration ("MSHA") investigation concluded, in part, that "the ventilation along the Main

West headings was inadequate overall, and most probably non-existent in some areas between 1

South and 4 North. On the day before the explosion . . . methane accumulated to about four

percent on the right side of the 7 South section for a distance of approximately 1,000 feet outby

the working section because of inadequate ventilation and the lack of sufficient ventilation

controls. . . ."

36. Further, the March 1990, MSHA investigation found that the "FEMCO

Supervisory Control (fan monitoring and mine power cutoff system) was not operating properly

at the time the explosion occurred, as mining operations continued at a face after the explosion."

37. In 2008, a copy of a September 5, 1970, handwritten memorandum by federal

coal mine inspector Larry L. Layne was discovered. The memorandum provided as follows:

On Sept. 5, 1970, 12am-8am shift, the Mods Run substation was energizedfor the first time since the explosion of Nov. 20, 1968. The electrician (namewithheld by request) reported that while energizing the substation he foundevidence to indicate that the Femco fan alarm system for Mods Run fan had beenrendered inoperable before the explosion. The fan alarm system had been bridgedwith jumper wires; therefore when the fan would stop or slow down, there was noway of anyone knowing about it because the alarm signal was bypassed. Thisinformation was reported to me Sept 15, 1970.38. In 2009, a copy of an alleged November 20, 1968, Mod's Run mine fan recording

chart was discovered. The Mod's Run mine fan recording chart was off schedule with the mine

fan recording charts for the other fans. The ink line on the chart is thick and solid, unlike the

8


thin, jagged lines on the other mine fan recording charts. The line on the Mod's Run mine fan

recording chart stops abruptly at 5:00 a.m. on November 20, 1968.

39. From November 20, 1968, to June 9, 2014, the identity of the person responsible

for rendering the FEMCO alarm system inoperable on the Mod's Run fan was unknown to the

plaintiffs and, through the exercise of reasonable diligence, could not have been discovered by

the plaintiffs. Neither the Estate of Alex Kovarbasich nor Consolidation Coal Company

disclosed or otherwise advised the plaintiffs, the West Virginia Department of Mines, the Bureau

of Mines or the United State Department of Labor, Mine Safety and Health Administration

("MSHA"), that the FEMCO fan alarm system on the Mod's Run fan near the 4 North area of the

mine had been intentionally rendered inoperable by mine management before the November 20,

1968, explosion.

40. On June 9, 2014, it was first discovered that the person responsible for rendering

the FEMCO alarm system inoperable before the November 20, 1968, explosion was defendant

Alex Kovarbasich, the chief electrician at the Consol No. 9 Mine. Upon information and belief,

Alex Kovarbasich was acting under the direction and control of defendant Consolidation Coal

Company.

DISCOVERY DOCTRINE AND FRAUDULENT CONCEALMENT

4 1 . Plaintiffs reaffirm and reallege every allegation contained in paragraphs 1 through


42. The nature and specificity of plaintiffs' claims were inherently undiscoverable.

Consequently, the discovery rule applies to toll the running of the statute of limitations until

plaintiffs knew or, through the exercise of reasonable care and diligence, should have known of

the existence of their claims against defendants. Plaintiffs did not discover and, through the

9


exercise of reasonable due diligence, could not have discovered their claims earlier because the

identity of the person who rendered the FEMCO alarm inoperable was omitted, concealed and

not disclosed.

43. Further, plaintiffs did not have knowledge of facts that would lead a reasonable,

prudent person to make inquiry to discover defendants' fraudulent conduct. Under appropriate

application of the "discovery doctrine," plaintiffs' suit was filed well within the applicable

statutory limitations period.

44. Defendants affirmatively and intentionally concealed or otherwise prevented

plaintiffs from discovering the existence of their cause of actions against defendants by

fraudulent act, omission, concealment, and suppression of the identity of the person who was a

cause of the mine explosion and other information necessary to put plaintiffs on notice.

Plaintiffs have therefore been kept in ignorance of vital information essential to the pursuit of

their claims, without any fault or lack of diligence on their part. Plaintiffs could not reasonably

have discovered the fraudulent nature of defendants' conduct. Accordingly, defendants are

estopped from relying on any statute of limitations to defeat any of plaintiffs' claims as set forth

below.

PLAINTIFFS' CLASS ACTION ALLEGATIONS



46. Plaintiffs bring this action pursuant to West Virginia Rules of Civil Procedure,

Rule 23(a), (b) and (c) on behalf of themselves and all personal representatives of the estates of

coal miners who were killed on or about November 20, 1968, as a result of the Consol No. 9

Mine explosion in or near Farmington, Marion County, West Virginia. Excluded from the class

10


are the Court and its officers, employees, and relatives; defendants, their co-conspirators, their

officers and directors.

47. The members of the class are so numerous that joinder of all members is

impracticable. Inclusive of the plaintiffs, the class consists of seventy-eight (78) estates of coal

miners who were killed in the Consol No. 9 coal mine explosion. Class members include the

following: Estate of Forrest B. Goff; Estate of James Jones; Estate of Orvil D. Bean; Estate of

Pete J. Kasnoski, Sr.; Estate of Edward A. Williams; Estate of Jack D. Michael; Estate of Robert

D. Kerns; Estate of David V. Cartwright; Estate of Paul O. Moran; Estate of Jerry L. Stoneking;

Estate of William E. Currence; Estate of Charles F. Hardman; Estate of William L. Takaos;

Estate of Paul F. Henderson, Jr.; Estate of Henry J. Skarzinski; Estate of Walter R. Martin; Estate

of Joe Feris; Estate of Nicholas Petro; Estate of John Sopuch; Estate of Edwin A. Tennant; Estate

of Junior M. Jenkins; Estate of Jack O. Armstrong; Estate of Frank Matish; Estate of Albert R.

DeBerry; Estate of George R. Kovar; Estate of Hartsel L. Mayle; Estate of Gorman H. Trimble;

Estate of Steve Horvath; Estate of John J. Bingamon; Estate of James r. Kniceley; Estate of

Arthur A. Anderson, Jr.; Estate of Lester B. Willard; Estate of Charles E. Moody; Estate of

William T, Walker; Estate of Albert Takaos; Estate of David Mainella; Estate of Emilio D.

Megna; Estate of Randall Ray Parsons; Estate of James H. Walter; Estate of Dennis N.

McDonald; Estate of Howard A. Deel; Estate of Robert J. Sigley; Estate of Jerry R. Yanero;

Estate of Charles E. King; Estate of John W. Toothman; Estate of Fred B. Rogers; Estate of

Robert L. Glover; Estate of Joseph Muto; Estate of Lloyd W. Wilson; Estate of Ebert E. Harzell;

Estate of Roscoe M. Triplett; Estate of Raymond R. Parsons; Estate of Louis S. Boros; Estate of

Frank Tate, Jr., Estate of George O. Decker; Estate of Dewey Tarley; Estate of William D.

Sheme; Estate of Jimmy Barr; Estate of Lee E. Carpenter; Estate of Adron W. Morris; Estate of

I1


Simon P. Hayes; Estate of Homer E. Tichenor; Estate of Wayne R. Minor; Estate of Harry L.

Strait; Estate of Dennis L. Toler; Estate of Harold W. Butt; Estate of James E. Efaw; Estate of H.

Wade Foster; Estate of John F. Gouzd; Estate of Russell D. Snyder; Estate of Virgil A. Forte;

Estate of Thomas D. Ashcraft; Estate of Aulda G. Freeman, Jr.; Estate of Dale E. Davis; Estate

of Thomas Boggess; Estate of Goy A. Taylor; and Estate of Roy F. Henderson.

48. Plaintiffs, on behalf of the class members, seek compensatory damages as

permitted by W.Va. Code § 55-7-6 (1967).

49. Plaintiffs, on behalf of the class members, seek punitive damages based upon

claims of fraud, concealment and non-disclosures by defendants.

50. The questions of fact and law raised in this Complaint are common to all members

and predominate over questions affecting only individual members.

Questions common to all members include:

a. Whether defendants made misrepresentations and/or concealed or failed

to disclose information in violation of a duty owed to the plaintiffs;

b. Whether the plaintiffs reasonably relied on the representations, omissions

and/or non-disclosures by the defendants;

c. Whether defendants' misrepresentations, omissions and/or

nondisclosures were material;

d. Whether defendants intentionally prevented plaintiffs from acquiring

material information with regards to legal claims plaintiffs had against the

defendants for their conduct that was a cause of the November 20, 1968

explosion;

12


e. Whether the plaintiffs suffered harms and losses as a result of the

defendants' conduct; and

f. Whether defendants' conduct was willful, wanton and reckless so as to

warrant an award of punitive damages against defendants.

51. The claims asserted by the named plaintiffs are typical of the claims of

each class member. The named plaintiffs will fairly and adequately represent the

interests of all members of the class.

52. A class action is superior to all other available methods for the fair and

efficient adjudication of this controversy. Class treatment will permit a large number of

similarly situated persons to prosecute their claimi in a single forum simultaneously,

efficiently and without the unnecessary duplication of evidence, effort and expense that

numerous individual actions would entail. There will be no insuperable difficulty in the

management of this action as a class action.

53. Defendants have acted or refused to act on grounds generally applicable to

plaintiffs and the other class members, thereby rendering class certification with respect

to the class described herein as a whole appropriate.

54. Upon information and belief, more than two-thirds of the class resides

and/or exists in the State of West Virginia. Plaintiffs seek significant relief from West

Virginia-domiciled defendant, the Estate of Alex Kovarbasich. The principal conduct

complained of occurred entirely within the State of West Virginia. No other class actions

alleging the same or similar claims against any of these defendants have been brought in

the State of West Virginia within the past three years.

13


COUNT ONE- FRAUD, CONCEALMENT AND NONDISCLOSURE

55. Plaintiffs reaffirm and reallege every allegation contained in paragraphs 1

through 54 with the same force and effect as if fully set forth herein.

56. On and prior to November 20, 1968, defendants were responsible for safe

operation and maintenance of surface fans, including the Mod's Run fan discussed

herein, at the Consol No. 9 Mine. In recognition of the decedents' reliance upon

defendants to provide safe, breathable air while in the Consol No. 9 Mine, there existed a

fiduciary relationship and a special relationship between the decedents and the

defendants.

57. Beginning November 20, 1968, and continuing to the present, defendants

have made continued representations as to the facts surrounding the November 20, 1968,

explosion, all while failing to disclose to the plaintiffs and mine regulatory agencies the

disabling of the FEMCO alarm system for the Mod's Run fan by defendants. All

comments and statements made by defendants have been communicated as half-truths so

as to deprive the plaintiffs of their ability to know who was responsible for the failure of

the FEMCO alarm to operate prior to the November 20, 1968, explosion.

58. Defendants made misrepresentations of material facts, omitted, concealed

and/or failed to disclose material facts related to Alex Kovarbasich's disablement of the

FEMCO alarm system on the Mod's Run fan prior to November 20, 1968.

59. Defendants deliberately and intentionally misrepresented, omitted,

concealed and/or failed to disclose material facts to the plaintiffs and regulatory mining

agencies. Such misrepresentations, omissions, and concealments of facts include, but are

not limited to:

14


a. Failing to disclose, omitting, and/or intentionally concealing that

Alex Kovarbasich disabled the FEMCO alarm system for the

Mod's Run fan at the Consol No. 9 Mine before the November 20,

1968, explosion; and

b. Concealing and/or providing half-truths regarding the causes of the

November 29, 1968, explosion.

60. Defendants intentionally concealed facts known to them, misrepresented,

omitted and failed to disclose material facts, as alleged herein, in order to deprive the

plaintiffs of their ability to investigate and seek redress for the harms and losses suffered

as a result of the defendants' conduct and to increase profits so as to avoid justly

compensating plaintiffs for their harms and losses incurred as a result of the defendants'

conduct.

61. From November 20, 1968, to June 9, 2014, defendant, by their

misrepresentations, omissions, concealments, and nondisclosures of material facts,

prevented the plaintiffs from making an investigation and pursuing legal recourse he

would have otherwise made but for defendants' misrepresentations, omissions,

concealments, and nondisclosures of the person responsible for disabling the FEMCO

alarm system on the Mod's Run fan prior to November 20, 1968.

62. Defendants had a duty to disclose their disablement of the FEMCO alarm

system and failed to do so. Moreover, defendants knew that their statements were half-

truths, knew of the harms and losses sustained by the families of the victims and knew

that their omissions rendered their statements false or misleading.

15


63. Plaintiffs were not aware of the falsity and half-truths of the defendants'

representations, nor was he aware that material facts related to the disabling of the

FEMCO alarm system had been concealed or omitted. In reliance upon defendants'

misrepresentation (and the absence of disclosure), plaintiffs have been thwarted in their

ability to investigate the cause of the November 20, 1968, explosion and determine who

was responsible for disabling the FEMCO alarm system on the Mod's Run fan prior to

November 20, 1968.

64. The reliance by plaintiffs upon defendants' misrepresentations, omissions,

concealments and/or nondisclosures was justified because said misrepresentations,

omissions, concealments and/or nondisclosures were made by defendants, which were in

a position to know the true facts concerning defendants' conduct. Plaintiffs were not in a

position to know the true facts because defendants failed to disclose that chief electrician

Alex Kovarbasich disabled the FEMCO alarm thereby prohibiting plaintiffs from fully

investigating the person responsible for the explosion and the deaths of seventy-eight (78)

miners and preventing the plaintiffs from filing a civil action as a result of defendants'

willful, wanton and reckless conduct.

65. As a direct and proximate result of defendants' misrepresentations,

omissions, concealments and/or nondisclosures, plaintiffs have been deprived of their

ability to fully investigate the cause of the explosion and identify the person responsible

for disabling the alarm system. As a result of defendants' conduct, plaintiffs have been

deprived of their ability to file a civil action seeking redress for defendants' conduct.

66. Defendants deprived plaintiffs of their right to file a common law cause of

action against defendants for negligence and the right to file a common law deliberate

16


intention against their employer, Mountaineer Coal Company. In Mandolidis v. Elkins

Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978) superseded by statute, the West

Virginia Supreme Court of Appeals held that "[u]nder W.Va. s 23-4-2 an employer is

subject to a common law tort action for damages or for wrongful death where such

employer commits an intentional tort or engages in wilful, wanton, and reckless

misconduct." Id. at 161 W.Va. at 909, 246 S.E.2d at 695-96. This common taw cause of

action existed in West Virginia jurisprudence before the November 20, 1968, explosion.

See generally Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933);

Maynard v. Island Creek Coal Co., 115 W.Va. 249, 175 S.E. 70 (1934).

67. Defendants deprived plaintiffs of their right to obtain relief against

defendants under West Virginia's wrongful death statute. W.Va. Code § 55-6-6 (1967)

provides that an action for wrongful death action may be brought by and in the name of

the personal representative of a deceased person and "[i]n every such action the jury may

award damages as they deem fair and just not exceeding ten thousand dollars. . . ." "In

addition, the jury may award such further damages, not exceeding the sum of one

hundred thousand dollars, as shall equal the financial or pecuniary loss sustained by the

dependent distributee or distributes of such deceased person. . . ." Id.

68. West Virginia public policy mandates that such a cause of action exists in

West Virginia as decedent coal miners have been deprived of their safety and liberty as a

result of defendants' conduct and breach of fiduciary obligation owed to the deceased

miners. Article III, Section 1 of the West Virginia Constitution provides as follows:

All men are, by nature, equally free and independent, and have certaininherent rights, of which, when they enter into a state of society, they cannot, byany compact, deprive or divest their posterity, namely: The enjoyment of life and

17


liberty, with the means of acquiring and possessing property, and of pursuing andobtaining happiness and safety.

69. The conduct of defendants, as set forth herein, is willful, wanton, reckless

and reprehensible. Plaintiffs and the class are thus entitled to recover punitive damages

against defendants.

70. Defendants were grossly negligent, willful, wanton, reckless and

malicious in their deprivation of the plaintiffs' right to discover the facts related to the

Consol No. 9 Mine explosion and such acts exhibited a deliberate disregard for the rights

of the plaintiffs.

71. As a direct result of defendants' deliberate disregard for the rights of

plaintiffs, gross negligence, willful, wanton, reckless and malicious acts, 'and other

wrongful acts, plaintiffs suffered the damages and as stated herein.

72. Defendants' acts, as described herein, exhibited deliberate disregard for

the rights of others and were grossly negligent, malicious, oppressive, willful, wanton and

reckless. An award of punitive and exemplary damages is therefore necessary to punish

each defendant and to generally deter any reoccurrence of this intolerable conduct.

Consequently, plaintiffs are entitled to an award of punitive damages.

73, The conduct of defendants as set forth herein is willful, wanton, reckless


against defendants in an amount sufficient to punish defendants for their wrongful

conduct and to deter defendants and others from similar wrongful conduct in the future.

WHEREFORE the plaintiffs herein demand a trial by jury and pray for the

following relief for their loved-one's estates:

18


I. Pursuant to W.Va. Code § 55-7-6 (1967), one hundred and ten thousand dollar

($110,000.00) per class member for the wrongful death of each deceased coal

miner;

IL Pre judgment and post judgment interest on their award;

III. Punitive damages that may be awarded for the intentional, grossly negligent

and reprehensible actions on the part of the defendants; and

IV. Such other and further relief as the Court may deem just.

PLAINTIFFS DEMAND A TRIAL BY JURY.

Respectfully submitted,

MICHAELD D. MICHAEL as administrator forthe ESTATE OF JACK D. MICHAEL, et al.

Timothy C. Bailey (WVS 39)Mark A. Barney (WVSB 0282)BUCC1 BAILEY & JAVINS, LC213 Hale StreetPost Office Box 3712Charleston, West Virginia 25337Telephone (304) 345-0346

and

Scott S. Segal (WVSB # 4717)Samuel A. Hrko (WVSB #7727)THE SEGAL LAW FIRM810 Kanawha Blvd. EastCharleston, West Virginia 25337Telephone (304) 344-9100

And

19


Steven L. Shaffer (WVSB # 9365)C. Paul Estep (WVSB # 5731)ESTEP & SHAFFER L.C.212 West Main StreetKingwood, West Virginia 26537Telephone (304) 329-6003

Counsel for plaintiffs

20


..•••• M•4i11•4 . ...... _____

e tatt

L Janice Cosco,

Pnittb

Of

Clerk

I' I' rot pirsina,of the County

MICHAEL

tales1.41iSi

1f.../'Vca

,,,,.•

C•,,./ . •

' - . ..

I...'! ...... .. •

(fount

Commission

M. MICHAEL

of ntertra

-A

of Atarimt, es;

of said county, do hereby certify that

was on the 20th day of October A D 2014

appointed by the Marion County Commission of Fairmont, W. Va,

Administrator, DBN. of the Personal Estate of JACK D. MICHAEL,

Deceased, late of this County.

(DATE OF DEATI-11 NOVEMBER 20. 1968)

1

and duly qualified as such by taking the oath and giving approved bond in the sum of

$ 500.00 as required by law, which appointment is now in full force and effect

Surety Erie Insurance rnmpany (Unitpd Ascurii-y AgpncliVairmnstWV)

Now THEREFORE, be it known that full faith and credit are due all lawful acts of the

said MICHAEL M. MICHAEL

as such Administrator, DBN

Given under my hand and the seal of said County Commission at my

office in Fairmont in said county, this 2 0 th

day of Octobe A D 2014

".4-0, -,Ja e osco, Cou Aim Jerk o anon County

Liar /.z ."

1 - Deputy

EXHIBIT


Pitiftb takesi ke

4frV ‘'''.. g. -

of nurtra

•Z

of Alarion, so;

of said county, do hereby certify that

Kuhn

g

Statt Of III est xiirginia, exultI, Janice Cosco, Clerk of the County Commission

Judith A. Henderson

was on the 30th day of September A D 2014

appointed by the Marion County Commission of Fairmont,

Administratrix DBN of the Personal Estate

W. Va., ..

of PAUL FRANK HENDERSON,

deceased, late of this County.

(Re-Open for a possible lawsuit)

Date of Death: November 20, 1968

and duly qualified as such by taking the oath and

$ 500.00 as required by law, which appointment

giving approved bond in the sum of

is now in full force and effect

Security AgencySurety Erie Insurance Company—United


said Judith A. Henderson Kuhn

as such Administratrix DBN

Given under my hand and the

office in Fairmont in

day s.

seal of said County Commission at my

said county, this 30th

September A D 2014

e"-----1., -1:2- 7:_e.9J. Ice C sco

B

unty Clerk of I '; ' o ty

--Aft...f_411 __-1:ft _ _,"Deputy

EXHIBIT


IN THE COUNTY COMMISSION OF HARRISON COUNTY, WEST VIRGINIA

IN RE: MOTION TO APPOINT THE SHERIFF OF HARRISON COUNTY TOADMINISTER THE ESTATE OF ALEX KOVARBASICH

COMES NOW, the undersigned petitioner pursuant to W.Va. Code § 44-1-11 and hereby

moves the Harrison County Commission to appoint the Sheriff of Harrison County, West

Virginia to take into his possession the estate of Alex Kovarbasich and administer the same.

In support of this motion, petitioner states as follows:

I. That Alex Kovarbasich passed away in Marion County, West Virginia on August3, 1992;

2. That, prior to his death, Alex Kovarbasich resided in Harrison County, WestVirginia;

3. That more than two (2) months have elapsed since the date of Alex Kovarbasichdeath; and

4. That no one has come forth to be appointed as Administrator of Alex KovarbasichEstate.

WHEREFORE, petitioner moves the County Commission of Harrison County, West

Virginia to ORDER, pursuant to W.Va. Code § 44-1-11 the Sheriff of Harrison County, West

Virginia to take into his possession of the estate of Alex Kovarbasich and administer the same

pursuant to W.Va. Code § 44-1-11.

Submitted this Z71 day of OC1066 2014.


/

Timothy . Haile WVSB # 5839)Mark A. Barney SB # 10282)BUCCI BAILEY & JAV1NS, LC213 Hale StreetPost Office Box 3712Charleston, West Virginia 25337Telephone (304) 345-0346

and


and

Steven L. Shaffer (WVSB # 9365)C. Paul Estep (WVSB # 5731)ESTEP & SHAFFER L.C.212 West Main StreetKingwood, West Virginia 26537Telephone (304) 329-6003Attorney

STATE OF WEST VIRGINIA,

COUNTY OF , to-wit:

TAKEN, SUBSCRIBED and SWORN to before me this:07lay of Depht_ , 201

My commission expires: 0.....L&C.t A* (90AS

NOTARY PUBLIC

jIMiIii1111ii11111EINlLOWNWINUPPIIEIIIII

illifirribk. ditatiehisWM I Iwo

Did big& NaPAL int

"71,111fili RINI 11111 141""11111111 mil2


STATE OF WEST VIRGINIACOUNTY OF HARRISON

I, Susan J Thomas, Clerk of The Harrison County Commission, do hereby certify that the foregoing writing is atrue and accurate copy as appears of record in my office in Fiduciary , Book #: 117 at Page: ak, of said record.

The foregoing instrument was acknowledged before me this 31 day of October, 2014.

6,

Susan J ThomasClerk of Harrison County Commission

Deputy

ne Eschenmann


Susan J ThomasHARRISON County 12:57:48 P11

SCANNen Insult No 201400052094Date Recorded 10/31/2014Decant T. FOPages Recorded 4

IN THE COUNTY COMMISSION OF HARRISON COUNTY, WEST VIIMM 117-396

IN RE: ORDER GRANTING MOTION TO APPOINT THE SHERIFF OFHARRISON COUNTY TO ADMINISTER THE ESTATE OF ALEXKOVARBASICH

NOV 4 2014This day comes the below-identified counsel who advised the Commission that more than

two (2) months have elapsed since the date of death of Alex Kovarbasich on August 3, 1992, and

that no one has come forth to be appointed as Administrator of his estate. Finding the same to be

proper the Commission grants said motion and ORDERS the Sheriff of Harrison County to take

into his possession of the estate of the decedent and administer the same pursuant to the

provisions of W.Va. Code § 44-1-11.

A certified copy of this document shall be forwarded to:

Timothy C. BaileyMark A. BarneyBUCCI BAILEY & JAVINS, LC213 Hale StreetPost Office Box 3712Charleston, West Virginia 25337

and

Scott S. SegalSamuel A. HrkoTHE SEGAL LAW FIRM810 Kanawha Blvd. EastCharleston, West Virginia 25337

and

Steven L. ShafferC. Paul EstepESTEP & SHAFFER L.C.212 West Main StreetKingwood, West Virginia 26537

APPROVED:Ronald R. Watson, PresidentHarrison County Commission


OFFICE OF THE CLERK OF THECOUNTY COMMISSION OF HARRISONCOUNTY, WEST VIRGINIA

The foregoing MOTION, together with the order confirming same, was this daypresented in said office and admitted to record.

2

Clerk


c\cSUMMONS


MICHAEL D. MICHAEL as the Administrator ofthe ESTATE OF JACK D. MICHAEL, andJUDITH A. KUHN, as the Administratrix for theESTATE OF PAUL F. HENDERSON, et al.,

Plaintiffs,

v. Civil Action No. 14-C-\Judge

THE ESTATE OF ALEX KOVARBASICH,by and through ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY,as administrator for the Estate of AlexKovarbasich, andCONSOLIDATION COAL COMPANY,a Delaware Company,

Defendants.

To the above-named Defendant: ESTATE OF ALEX KOVARBASICHC/O Albert F. MaranoSheriff of Harrison County, WV

o

73C") rn

rG C>

C> <

Cr) r- MM

73 4-

rV 01=-r1 m

ctCA3CO

IN THE NAME OF THE STATE OF WEST VIRGINIA, you are hereby summoned and

required to serve upon Bucci Bailey & Javins, L.C., plaintiffs attorney, whose address is Post Office Box

3712, Charleston, West Virginia, 25337, an answer, including any related counterclaim you may have, to

the complaint filed against you in the above-styled civil action, a true copy of which is herewith delivered

to you. You are required to serve your answer within 30 days after service of this summons upon you,

exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the

relief demanded in the complaint and you will be thereafter barred from asserting in another action any

claim you may have which must be asserted by counterclaim in the above-styled / civil ction

A.41...,

Dated: 10-0-4.1)-e-A (6104C rk of the Court

L-Pkupta iLtivitzi, 4 OCis5Zkrbr,

%cre4-, +V


SUMMONSIN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA


Plaintiffs,

v. Civil Action No I4-C- 3Judge U—SLA--

THE ESTATE OF ALEX KOVARBASICH,by and through ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY, C")

1-•-•

as administrator for the Estate of Alex 7:1 c-) rnKovarbasich, and c'•53- 0 rnCONSOLIDATION COAL COMPANY,

rn Delaware Company, CD rn —z

0 • —D-r1Defendants.

rrl Cr)

1 -n rn-n

ca F.)To the above-named Defendant: CONSOLIDATION COAL COMPANY rrn

C/O The Corporation Trust CompanyCorporation Trust Center1209 Orange StreetWilmington, DE 19801



3712, Charleston, West Virginia, 25337, an answer, including any related counterclaim you may have, to

the complaint filed against you in the above-styled civil action, a true copy of which is herewith delivered

to you. You are required to serve your answer within 30 days after service of this summons upon you,

exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the

relief demanded in the complaint and you will be thereafter barred from asserting in another action any

claim you may have which must be asserted by counterclaim in the above-styled civil Lion. ..."Dated: abltir-fi■LtA 1, 3-401 kl-

Cl of the Court

J e_.2)..viA_Lafi /4"0-tArd Irv" -t- ,kprouss trtpe.(-Tir,„ paid,/‘, t am


Nov.25. 2014 3:14PMRECEIVED 11/25/2014 16:11

No.8591 P. 1/1

ADMINISTRATIVE ORDER

SUPREME COURT OF APPEALS OF WEST VIRGINIA

RE: TEMPORARY ASSIGNMENT OF THE HONORABLE JACK AMP TOTHE SIXTEENTH JUDICIAL CIRCUIT TO PRESIDE IN THEPROCEEDING OF MICHAEL D. MICHAEL, ET AL., PLAINTIFFS VS. THEESTATE OF ALEX KOVARBASICH, ET AL., DEFENDANTS, MARIONCOUNTY CIVIL ACTION NO. 14-C-318

The Honorable Michael John Aloi and the Honorable David R. Janes,Judges of the Sixteenth Judicial Circuit, have advised the Chief Justice of theSupreme Court of Appeals that they wish to recuse themselves voluntarily frompresiding in the above-styled proceeding.

Chief Justice Robin Jean Davis is disqualified from considering thevoluntary recusals of Judges Alol and Janes from presiding In the above-styledproceeding. Acting Chief Justice Margaret L. Workman, upon review of thereasons for recusals, deems the same to be warranted.

IT 15 THEREFORE ORDERED, that the Honorable Jack Alsop, Judge ofthe Fourteenth Judicial Circuit, be, and he hereby is, assigned to the SixteenthJudicial Circuit under the provisions of Article VIII, § 3 of the Constitution of WestVirginia for the purpose of presiding In the above-styled proceediffl.

IT IS FURTHER ORDERED, that the Circuit Clerk of awl■ Ccgnty go:3rdthis Order in the Office of the said Clerk and provide cgpia o e ame o allparties of record or their counsel. = 1:1 r...) r-),--

> 1--- rnrn —r — c?

IT IS FURTHER ORDERED, that the Circuit cile. of largn Ctuntyforward to Judge Alsop copies of such documents andmilterialg in he cierk'sOffice as directed by him.

I---• -11

C;1..0 c,

rnENTERED: NOVEMBER 25, 2014

MARGARET L. WORKMANActing Chief Justice


Office of the Secretary of StateBuilding 1 Suite 157-K1900 Kanawha Blvd E.Charleston, WV 25305

Rhonda L. StarnMarion County Courthouse219 Adams St Rm 211Fairmont, WV 26554-1269

Control Number: 45070

Defendant: CONSOLIDATION COAL COMPANY5400D BIG TYLER RDCHARLESTON, WV 25313-1103 US

Agent:

County:

Civil Action:

Certified Number:

Service Date:

Natalie E. TennantSecretary Of State

State Of West VirginiaPhone: 304-558-6000

866-767-8683Visit us online:www.wvsos.com

C3

Cr" "-rtC. T. CorporationSysBm

rnMarion

14-C-318

92148901125134100000485688

11/13/2014

am enclosing:

1 summons and complaint

which was served on the Secretary at the State Capitol as your statutory attorney-in-fact. According to law, I have acceptedservice of process in the name and on behalf of your corporation.

Please note that this office has no connection whatsoever with the enclosed documents other than to accept service ofprocess in the name and on behalf of Your corporation as your attorney-in-fact. Please address any questions about thisdocument directly to the court or the plaintiffs attorney, shown in the enclosed paper, not to the Secretary of State's office.

Sincerely,

ektbf(40,4a4Natalie E. TennantSecretary of State

3os grd.kuvuti_ A. 11 (17yea taf"d11A4


SUMMONSIN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA


Plaintiffs,

v. Civil Actio, fri No. 14-C-3Judge Gic..k.4-L

THE ESTATE OF ALEX KOVARBASICH,by and through ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY,as administrator for the Estate of AlexKovarbasich, andCONSOLIDATION COAL COMPANY,a Delaware Company,

Defendants.

To the above-named Defendant: CONSOLIDATION COAL COMPANYC/O The Corporation Trust CompanyCorporation Trust Center1209 Orange StreetWilmington, DE 19801



3712, Ch-

the compi

to you. Y.

exclusive c.

relief dems

claim you

Dot'

0—I eluding any related counterclaim you may have, to

157176.00 ,c mi.

rl- ro ca Irl IP t kCAI --kw copy of which is herewith delivered

.•

flf ns upon you,Itm=in. - for theill7ri-

Drt•




Plaintiffs,

v. Civil Action No. 14-C- V Judge

THE ESTATE OF ALEX KOVARBASICH,by and through ALBERT F. MARANO,SHERRIF OF HARRISON COUNTY,as administrator for the Estate of AlexKovarbasich, andCONSOLIDATION COAL COMPANY,

a Delaware Company,

Defendants.

COMPLAINT

NOW into Court through undersigned counsel comes the plaintiffs and Class

Representatives Michael D. Michael, as the Administrator for the Estate of Jack D. Michael, and

Judith A. Kuhn, as the Administratrix for the Estate of Paul F. Henderson, on behalf of a class of

the estates of seventy-eight (78) coal miners who died on November 20, 1968, as a result of the

Consol No. 9 coal mine explosion, pursuant to Rule 23 of the West Virginia Rules of Civil

Procedure, and does hereby institute this class action against defendants the Estate of Aiex

Kovarbasich and Consolidation Coal Company.


1. Plaintiff Michael D. Michael, as the Administrator for the Estate of Jack D.

Michael, is a resident of Madison County, Ohio, and is above the age of majority. Michael D.

Michael was duly appointed as administrator of the Estate of Jack D. Michael on October 20,

2014, See Exhibit 1. Plaintiff Judith A. Kuhn, as the Administratix for the Estate of Paul F.

R7- r:IVED

rn,s 1' 91114 1


Henderson, is a resident of Marion County, West Virginia, and is above the age of majority.

Judith D. Kuhn was duly appointed as administrator of the Estate of Paul F. Henderson on

September 30, 2014. See Exhibit 2. Plaintiffs file this action on behalf of a class of the estates

of seventy-eight (78) coal miners who died on November 20, 1968, as a result of the Consol No.

9 coal mine explosion, pursuant to Rule 23 of the West Virginia Rules of Civil Procedure.

2. Defendant Alex Kovarbasich, was, upon information and belief, at all times

relevant hereto a citizen of West Virginia and at all times relevant resided in Harrison County,

West Virginia. On and prior to November 20, 1968, Alex Kovarbasich was a member of mine

management at the Consol No. 9 coal mine operated by Consolidation Coal Company and

located in or near Farmington, Marion County, West Virginia.

3. Upon information and belief, Defendant Alex Kovarbasich with the birthdate of

June 10, 1919, passed away on August 3, 1992 in Marion County, West Virginia.

4. Upon information and belief, no person has been appointed as the personal

representative of the Estate of Alex Kovarbasich in the past two years.

5. Defendant Albert F. Marano, is the duly elected Sheriff of Harrison County, West

Virginia.

6. On October 27, 2014, pursuant to W.Va. Code § 44-1-11, undersigned counsel

made a motion before the County Commission of Harrison County, West Virginia for the Sheriff

of Harrison County to take into his possession the estate of Alex Kovarbasich. See Exhibit 3.

7. Pursuant to the authority imposed by W.Va. Code § 44-1-22, the Sheriff of

Harrison County, West Virginia, is a proper party to this action.

8. Defendant Consolidation Coal Company is a Delaware company with its principal

office in Saint Clairsville, Ohio. It managed, oversaw, planned, conducted, participated in and

2


profited from the operation of the Consol No. 9 Mine located in or near Farmington, Marion

County, West Virginia. Mountaineer Coal Company was, at all times relevant to the allegations

contained in this complaint, the employer of the plaintiffs' deceased and of the seventy-eight

(78) miners who died in the November 20, 1968, Consol No,9 coal mine explosion and a 100

percent owned subsidiary of Consolidation Coal Company. At all times relevant, Consolidation

Coal Company was mandated to comply with all mine regulations and industry standards that

existed for the protection of coal miners at the Consol No. 9 coal mine. Consolidation Coal

Company directly communicated with mine management level employees of Mountaineer Coal

Company related to day-to-day mining activities and had full authority to direct, and at various

times directed their activities.

9. Jurisdiction and venue are appropriate in this Court pursuant to West Virginia

Code §§ 51-2-2 and 56-1-1 as the amount in controversy is in excess of the jurisdictional pre-

requisites and the injury and/or damages occurred in Marion County, West Virginia.

10. The claims raised herein are claims under West Virginia law and do not concern

any federal law or federal constitutional provision.

OPERATIVE FACTS



12. On and prior to November 20, 1968, plaintiffs and all similarly situated class

members were coal miners the Consol No. 9 Mine located in or near Farmington, Marion

County, West Virginia.

13. Defendant Alex Kovarbasich was a member of mine management and performed

mine management duties as the chief electrician at the Consol No. 9 Mine. In accordance with

3


such duties, defendant Alex Kovarbasich was responsible for the maintenance and safe operation

of the surface fans which flushed methane from the Consol No, 9 Mine so as to ensure that

methane did not reach unsafe levels.

14. Defendant Consolidation Coal Company was, at all times relevant, responsible for

the safe operation of the Consol No. 9 Mine, including safe operation of the ventilation fans to

ensure that methane did not reach unsafe levels. The Consol No. 9 Mine was under the direction

and control of Consolidation Coal Company.

15. Mountaineer Coal Company was the employer of the plaintiffs' deceased and of

the seventy-eight (78) miners who died in the November 20, 1968, Consol No.9 coal mine

explosion. At all times relevant hereto, and upon information and belief, Mountaineer Coal

Company operated at the direction and authority of Consolidation Coal Company.

16. Defendant Consolidation Coal Company, by and through its management

personnel at the Consol No. 9 Mine was, on and before November 20, 1968, responsible for:

(a) properly inspecting the working areas of the mine for safety

hazards and for correcting all safety hazards discovered or that

should have been discovered, through proper inspections;

(b)

(c)

complying with all required state and federal mining laws and

industry standards, including ventilation, methane and dust control

plans;

ensuring the safe operating condition of all mining equipment in

conformity with the manufacturer's specifications and original

design and safe mining practices;

(d) ensuring the proper removal, control or dilution of explosive

methane gas and coal dust at the mine; and

(e) otherwise operating the mine in a safe and lawful manner.

17. At all times relevant to the allegations contained within this Complaint,

Consolidation Coal Company directly and indirectly controlled the mining activities at Consoi

4


No. 9 Mine and voluntarily undertook duties and responsibilities commensurate with the daily

operations at the Consol No. 9 Mine.

18. Under West Virginia law, a parent company is legally responsible for injuries and

deaths which occur at its subsidiary when the parent company, through its officers, executives,

employees or agents actually exercises control over or is intimately involved in the operation of

the subsidiary's facility.

19. Under West Virginia law, a parent company or an affiliated company is also

legally responsible for injuries and deaths which occur at its subsidiary or affiliate when:

(a) the parent or affiliate company voluntarily assumes a duty to perform a

service for the subsidiary;

(b) that service is necessary for the protection of third parties, such as

employees of the subsidiary; and

(c) the services are provided in a negligent manner resulting in harm or death

to those third parties.

20. By and through the involvement of defendant Consolidation Coal Company in the

operation of the Consol No. 9 Mine, said defendant exercised control over and/or was intimately

involved in the operation of the Consol No. 9 Mine.

21. Consolidation Coal Company directly communicated with mine management-

level employees of Mountaineer Coal Company related to day-to-day mining activities and had

full authority to direct, and at various times directed their activities.

22. Methane is a highly flammable, odorless, colorless, hydrocarbon. It is a product

of the decomposition of organic matter and of the carbonization of coal. During the coal mining

5


process, methane is liberated into the mine environment, necessitating ventilation of the mine

area to avoid ignition and explosion.

23. To flush methane from the Consol No. 9 Mine, the defendants utilized four large

surface fans: the No. 1 fan at the slope; the Athas Run fan near the 2 North area of the mine (No.

2. fan); the Mod's Run fan near the 4 North area of the Mine (No. 3 fan); and the Llewellyn fan

near the 7 South area of the mine (No. 4 fan). The No. 3 and No. 4 fans ventilated the west side

of the mine. By operation of mining regulations and safe mining practices, fans were required to

run twenty-four hours a day, seven days a week, unless a mine safety regulatory agency granted

permission to shut one fan down. Further, by operation of mining regulations and safe mining

practices, each fan must be visually inspected at least one time per day.

24. By operation of mining regulations and safe mining practices, if a fan stops and

ventilation cannot be restored within 15 minutes, all power to the mine must be shut off and all

miners must be withdrawn from the affected areas and/or the mine.

25. Defendants fitted their fans with a FEMCO brand safety system. Each fan was

connected to a display board at the lamp house. If a fan was running, its light on the display

board was green. If a fan slowed or stopped, a red light came on and an alarm sounded. The

miner in the lamp house would then contact the miners underground. If a fan was down for more

than 12 minutes, the system was designed to cut off all the power in the mine.

26. Prior to and on November 20, 1968, each mine fan at the Consol No. 9 Mine was

equipped with a mine fan recording chart, in accordance with safe mine industry practices. The

mine fan recording charts recorded information with regard to the operation of the particular

mine fan to which it was connected. Mine fan recording charts were contained within a

protective box, under lock and key. During a fan's operation, a pen drew a line around the


1

circular chart and if a fan stopped, the stoppage would be recorded on the chart as the pen would

stop.

27. At approximately 5:30 a.m. on Wednesday, November 20, 1968, an explosion

occurred in the Consol No. 9 Mine. The force of the explosion extended throughout the west

side of the mine inby Plum Run overcast which included nine active working sections. Of the

ninety-nine (99) miners in the mine, seventy-eight (78) died as a result of the explosion.

28. The entire ventilation system in the west side of the mine inby 3 North was

destroyed by the force of the explosion. This included the No. 3 and No. 4 face and most of the

ventilation controls such as stoppings, overcasts and regulators.

29. Mine fires along with several additional underground explosions interfered with

and eventually prevented the recovery efforts. The mine was sealed at its surface opening on

November 30, 1968.

30. In September 1969, the mine was reopened and operations to recover the remains

of seventy-eight (78) miners were begun and continued until April of 1978.

31. After the November 20, 1968, explosion, mine investigators revealed that the

mine fan recording chart for the Mod's Run fan was taken from the mine fan box sometime after

the explosion. The person who absconded with mine fan recording chart presumably broke the

glass covering on the fan chart box to take it.

32. Immediately after the November 20, 1968, explosion, defendant Alex

Kovarbasich was in the vicinity of the Mod's Run fan shaft.

33. Between 1969 and 1978, the bodies of 59 victims were recovered and brought to

the surface. However, recovery operations ceased and all entrances to the mine were

permanently sealed in November of 1978, leaving 19 victims buried in the mine.

7


34. From November 20, 1968, to April of 1990, investigation of the cause of the

explosion was conducted by the West Virginia Department of Mines, the United States Bureau

of Mines, or the United States Department of Labor, Mine Safety and Health Administration.

35. In March of 1990, a United State Department of Labor, Mine Safety and Health

Administration ("MSHA") investigation concluded, in part, that "the ventilation along the Main

West headings was inadequate overall, and most probably non-existent in some areas between 1

South and 4 North. On the day before the explosion . . . methane accumulated to about four

percent on the right side of the 7 South section for a distance of approximately 1,000 feet outby

the working section because of inadequate ventilation and the lack of sufficient ventilation

controls.. . ."

36. Further, the March 1990, MSHA investigation found that the "FEMCO

Supervisory Control (fan monitoring and mine power cutoff system) was not operating properly

at the time the explosion occurred, as mining operations continued at a face after the explosion."

37. In 2008, a copy of a September 5, 1970, handwritten memorandum by federal

coal mine inspector Larry L. Layne was discovered. The memorandum provided as follows:

On Sept. 5, 1970, 12am-8arn shift, the Mods Run substation was energized

for the first time since the explosion of Nov. 20, 1968. The electrician (name

withheld by request) reported that while energizing the substation he found

evidence to indicate that the Femco fan alarm system for Mods Run fan had been

rendered inoperable before the explosion. The fan alarm system had been bridged

with jumper wires; therefore when the fan would stop or slow down, there was no

way of anyone knowing about it because the alarm signal was bypassed. This

information was reported to me Sept 15. 1970.

38. In 2009, a copy of an alleged November 20, 1968, Mod's Run mine fan recording

chart was discovered. The Mod's Run mine fan recording chart was off schedule with the mine

fan recording charts for the other fans. The ink line on the chart is thick and solid, unlike the

8


thin, jagged lines on the other mine fan recording charts. The line on the Mod's Run mine fan

recording chart stops abruptly at 5:00 a.m. on November 20, 1968.

39. From November 20, 1968, to June 9, 2014, the identity of the person responsible

for rendering the FEMCO alarm system inoperable on the Mod's Run fan was unknown to the

plaintiffs and, through the exercise of reasonable diligence, could not have been discovered by

the plaintiffs. Neither the Estate of Alex Kovarbasich nor Consolidation Coal Company

disclosed or otherwise advised the plaintiffs, the West Virginia Department of Mines, the Bureau

of Mines or the United State Department of Labor, Mine Safety and Health Administration

("MSHA"), that the FEMCO fan alarm system on the Mod's Run fan near the 4 North area of the

mine had been intentionally rendered inoperable by mine management before the November 20,

1968, explosion.

40. On June 9, 2014, it was first discovered that the person responsible for rendering

the FEMCO alarm system inoperable before the November 20, 1968, explosion was defendant

Alex Kovarbasich, the chief electrician at the Consol No. 9 Mine. Upon information and belief,

Alex Kovarbasich was acting under the direction and control of defendant Consolidation Coal

Company.




42. The nature and specificity of plaintiffs' claims were inherently undiscoverable.

Consequently, the discovery rule applies to toll the running of the statute of limitations until

plaintiffs knew or, through the exercise of reasonable care and diligence, should have known of

the existence of their claims against defendants. Plaintiffs did not discover and, through the

9


exercise of reasonable clue diligence, could not have discovered their claims earlier because the

identity of the person who rendered the FEMCO alarm inoperable was omitted, concealed and

not disclosed.

43. Further, plaintiffs did not have knowledge of facts that would lead a reasonable,

prudent person to make inquiry to discover defendants' fraudulent conduct. Under appropriate

application of the "discovery doctrine," plaintiffs' suit was filed well within the applicable

statutory limitations period.

44. Defendants affirmatively and intentionally concealed or otherwise prevented

plaintiffs from discovering the existence of their cause of actions against defendants by

fraudulent act, omission, concealment, and suppression of the identity of the person who was a

cause of the mine explosion and other information necessary to put plaintiffs on notice.

Plaintiffs have therefore been kept in ignorance of vital information essential to the pursuit of

their claims, without any fault or lack of diligence on their part. Plaintiffs could not reasonably

have discovered the fraudulent nature of defendants' conduct. Accordingly, defendants are

estopped from relying on any statute of limitations to defeat any of plaintiffs' claims as set forth

below.




46. Plaintiffs bring this action pursuant to West Virginia Rules of Civil Procedure,

Rule 23(a), (b) and (c) on behalf of themselves and all personal representatives of the estates of

coal miners who were killed on or about November 20, 1968, as a result of the Consol No. 9

Mine explosion in or near Farmington, Marion County, West Virginia. Excluded from the class

10


are the Court and its officers, employees, and relatives; defendants, their co-conspirators, their

officers and directors.

47. The members of the class are so numerous that joinder of all members is

impracticable. Inclusive of the plaintiffs, the class consists of seventy-eight (78) estates of coal

miners who were killed in the Consol No. 9 coal mine explosion. Class members include the

following: Estate of Forrest B. Goff; Estate of James Jones; Estate of Orvil D. Bean; Estate of

Pete J. Kasnoski, Sr.; Estate of Edward A. Williams; Estate of Jack D. Michael; Estate of Robert

D. Kerns; Estate of David V. Cartwright; Estate of Paul O. Moran; Estate of Jerry L. Stoneking;

Estate of William E. Currence; Estate of Charles F. Hardman; Estate of William L. Takaos;

Estate of Paul F. Henderson, Jr.; Estate of Henry J. Skarzinski; Estate of Walter R. Martin; Estate

of Joe Feris; Estate of Nicholas Petro; Estate of John Sopuch; Estate of Edwin A. Tennant; Estate

of Junior M. Jenkins; Estate of Jack O. Armstrong; Estate of Frank Matish; Estate of Albert R.

DeBerry; Estate of George R. Kovar; Estate of Hartsel L. Mayle; Estate of Gorman H. Trimble;

Estate of Steve Horvath; Estate of John J. Bingamon; Estate of James r. Kniceley; Estate of

Arthur A. Anderson, Jr.; Estate of Lester B. Willard; Estate of Charles E. Moody; Estate of

William T. Walker; Estate of Albert Takaos; Estate of David Mainella; Estate of Emilio D.

Megna; Estate of Randall Ray Parsons; Estate of James H. Walter; Estate of Dennis N.

McDonald; Estate of Howard A. Deel; Estate of Robert J. Sigley; Estate of Jerry R. Yanero;

Estate of Charles E. King; Estate of John W. Toothman; Estate of Fred B. Rogers; Estate of

Robert L. Glover; Estate of Joseph Muto; Estate of Lloyd W. Wilson; Estate of Ebert E. Harzell;

Estate of Roscoe M. Triplett; Estate of Raymond R. Parsons; Estate of Louis S. Boros; Estate of

Frank Tate, Jr., Estate of George O. Decker; Estate of Dewey Tarley; Estate of William D.

Sheme; Estate of Jimmy Barr; Estate of Lee E. Carpenter; Estate of Adron W. Morris; Estate of

11


Simon P. Hayes; Estate of Homer E. Tichenor; Estate of Wayne R. Minor; Estate of Harry L.

Strait; Estate of Dennis L. Toler; Estate of Harold W. Butt; Estate of James E. Efaw; Estate of H.

Wade Foster; Estate of John F. Gouzd; Estate of Russell D. Snyder; Estate of Virgil A. Forte;

Estate of Thomas D. Ashcraft; Estate of Aulda G. Freeman, Jr.; Estate of Dale E. Davis; Estate

of Thomas Boggess; Estate of Goy A. Taylor; and Estate of Roy F. Henderson.

48. Plaintiffs, on behalf of the class members, seek compensatory damages as

permitted by W.Va. Code § 55-7-6 (1967).

49. Plaintiffs, on behalf of the class members, seek punitive damages based upon

claims of fraud, concealment and non-disclosures by defendants.

50. The questions of fact and law raised in this Complaint are common to all members

and predominate over questions affecting only individual members.

Questions common to all members include:

a. Whether defendants made misrepresentations and/or concealed or failed

to disclose information in violation of a duty owed to the plaintiffs;

b. Whether the plaintiffs reasonably relied on the representations, omissions

and/or non-disclosures by the defendants;

c. Whether defendants' misrepresentations, omissions and/or

nondisclosures were material;

d. Whether defendants intentionally prevented plaintiffs from acquiring

material information with regards to legal claims plaintiffs had against the

defendants for their conduct that was a cause of the November 20, 1968

explosion;

12


e. Whether the plaintiffs suffered harms and losses as a result of the

defendants' conduct; and

f. Whether defendants' conduct was willful, wanton and reckless so as to

warrant an award of punitive damages against defendants.

51. The claims asserted by the named plaintiffs are typical of the claims of

each class member. The named plaintiffs will fairly and adequately represent the

interests of all members of the class.

52. A class action is superior to all other available methods for the fair and

efficient adjudication of this controversy. Class treatment will permit a large number of

similarly situated persons to prosecute their claims in a single forum simultaneously,

efficiently and without the unnecessary duplication of evidence, effort and expense that

numerous individual actions would entail. There will be no insuperable difficulty in the

management of this action as a class action.

53. Defendants have acted or refused to act on grounds generally applicable to

plaintiffs and the other class members, thereby rendering class certification with respect

to the class described herein as a whole appropriate.

54. Upon information and belief, more than two-thirds of the class resides

and/or exists in the State of West Virginia. Plaintiffs seek significant relief from West

Virginia-domiciled defendant, the Estate of Alex Kovarbasich. The principal conduct

complained of occurred entirely within the State of West Virginia. No other class actions

alleging the same or similar claims against any of these defendants have been brought in

the State of West Virginia within the past three years.

13


COUNT ONE- FRAUD, CONCEALMENT AND NONDISCLOSURE

55. Plaintiffs reaffirm and reallege every allegation contained in paragraphs 1

through 54 with the same force and effect as if fully set forth herein.

56. On and prior to November 20, 1968, defendants were responsible for safe

operation and maintenance of surface fans, including the Mod's Run fan discussed

herein, at the Consol No. 9 Mine. In recognition of the decedents' reliance upon

defendants to provide safe, breathable air while in the Consol No. 9 Mine, there existed a

fiduciary relationship and a special relationship between the decedents and the

defendants,

57. Beginning November 20, 1968, and continuing to the present, defendants

have made continued representations as to the facts surrounding the November 20, 1968,

explosion, all while failing to disclose to the plaintiffs and mine regulatory agencies the

disabling of the FEMCO alarm system for the Mod's Run fan by defendants. All

comments and statements made by defendants have been communicated as half-truths so

as to deprive the plaintiffs of their ability to know who was responsible for the failure of

the FEMCO alarm to operate prior to the November 20, 1968, explosion.

58. Defendants made misrepresentations of material facts, omitted, concealed

and/or failed to disclose material facts related to Alex Kovarbasich's disablement of the

FEMCO alarm system on the Mod's Run fan prior to November 20, 1968.

59. Defendants deliberately and intentionally misrepresented, omitted,

concealed and/or failed to disclose material facts to the plaintiffs and regulatory mining

agencies. Such misrepresentations, omissions, and concealments of facts include, but are

not limited to:

14


a. Failing to disclose, omitting, and/or intentionally concealing that

Alex Kovarbasich disabled the FEMCO alarm system for the

Mod's Run fan at the Consol No. 9 Mine before the November 20,

1968, explosion; and

b. Concealing and/or providing half-truths regarding the causes of the

November 29, 1968, explosion.

60. Defendants intentionally concealed facts known to them, misrepresented,

omitted and failed to disclose material facts, as alleged herein, in order to deprive the

plaintiffs of their ability to investigate and seek redress for the harms and losses suffered

as a result of the defendants' conduct and to increase profits so as to avoid justly

compensating plaintiffs for their harms and losses incurred as a result of the defendants'

conduct.

61. From November 20, 1968, to June 9, 2014, defendant, by their

misrepresentations, omissions, concealments, and nondisclosures of material facts,

prevented the plaintiffs from making an investigation and pursuing legal recourse he

would have otherwise made but for defendants' misrepresentations, omissions,

concealments, and nondisclosures of the person responsible for disabling the FEMCO

alarm system on the Mod's Run fan prior to November 20, 1968.

62. Defendants had a duty to disclose their disablement of the FEMCO alarm

system and failed to do so. Moreover, defendants knew that their statements were half-

truths, knew of the harms and losses sustained by the families of the victims and knew

that their omissions rendered their statements false or misleading.

15


63. Plaintiffs were not aware of the falsity and half-truths of the defendants'

representations, nor was he aware that material facts related to the disabling of the

FEMCO alarm system had been concealed or omitted. In reliance upon defendants'

misrepresentation (and the absence of disclosure), plaintiffs have been thwarted in their

ability to investigate the cause of the November 20, 1968, explosion and determine who

was responsible for disabling the FEMCO alarm system on the Mod's Run fan prior to

November 20, 1968.

64. The reliance by plaintiffs upon defendants' misrepresentations, omissions,

concealments and/or nondisclosures was justified because said misrepresentations,

omissions, concealments and/or nondisclosures were made by defendants, which were in

a position to know the true facts concerning defendants' conduct. Plaintiffs were not in a

position to know the true facts because defendants failed to disclose that chief electrician

Alex Kovarbasich disabled the FEMCO alarm thereby prohibiting plaintiffs from fully

investigating the person responsible for the explosion and the deaths of seventy-eight (78)

miners and preventing the plaintiffs from filing a civil action as a result of defendants'

willful, wanton and reckless conduct.

65. As a direct and proximate result of defendants' misrepresentations,

omissions, concealments and/or nondisclosures, plaintiffs have been deprived of their

ability to fully investigate the cause of the explosion and identify the person responsible

for disabling the alarm system. As a result of defendants' conduct, plaintiffs have been

deprived of their ability to file a civil action seeking redress for defendants' conduct.

66. Defendants deprived plaintiffs of their right to file a common law cause of

action against defendants for negligence and the right to file a common law deliberate

16


intention against their employer, Mountaineer Coal Company. In Mandolidis v. Elkins

Industries, Inc, 161 W.Va. 695, 246 S.E.2d 907 (1978) superseded by statute, the West

Virginia Supreme Court of Appeals held that "[u]nder W.Va. s 23-4-2 an employer is

subject to a common law tort action for damages or for wrongful death where such

employer commits an intentional tort or engages in wilful, wanton, and reckless

misconduct." Id. at 161 W.Va. at 909, 246 S.E.2d at 695-96. This common law cause of

action existed in West Virginia jurisprudence before the November 20, 1968, explosion.

See generally Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933);

Maynard v. Island Creek Coal Co., 115 W.Va. 249, 175 S.E. 70 (1934).

67. Defendants deprived plaintiffs of their right to obtain relief against

defendants under West Virginia's wrongful death statute. W.Va. Code § 55-6-6 (1967)

provides that an action for wrongful death action may be brought by and in the name of

the personal representative of a deceased person and "[i]n every such action the jury may

award damages as they deem fair and just not exceeding ten thousand dollars. . . ." "In

addition, the jury may award such further damages, not exceeding the sum of one

hundred thousand dollars, as shall equal the financial or pecuniary loss sustained by the

dependent distributee or distributes of such deceased person. . . ." Id.

68. West Virginia public policy mandates that such a cause of action exists in

West Virginia as decedent coal miners have been deprived of their safety and liberty as a

result of defendants' conduct and breach of fiduciary obligation owed to the deceased

miners. Article III, Section 1 of the West Virginia Constitution provides as follows:

A11 men are, by nature, equally free and independent, and have certain

inherent rights, of which, when they enter into a state of society, they cannot, by

any compact, deprive or divest their posterity, namely: The enjoyment of life and

17


liberty, with the means of acquiring and possessing property, and of pursuing and

obtaining happiness and safety.

69. The conduct of defendants, as set forth herein, is willful, wanton, reckless


against defendants.

70. Defendants were grossly negligent, willful, wanton, reckless and

malicious in their deprivation of the plaintiffs' right to discover the facts related to the

Consol No. 9 Mine explosion and such acts exhibited a deliberate disregard for the rights

of the plaintiffs.

71. As a direct result of defendants' deliberate disregard for the rights of

plaintiffs, gross negligence, willful, wanton, reckless and malicious acts, and other

wrongful acts, plaintiffs suffered the damages and as stated herein.

72. Defendants' acts, as described herein, exhibited deliberate disregard for

the rights of others and were grossly negligent, malicious, oppressive, willful, wanton and

reckless. An award of punitive and exemplary damages is therefore necessary to punish

each defendant and to generally deter any reoccurrence of this intolerable conduct.

Consequently, plaintiffs are entitled to an award of punitive damages.

73. The conduct of defendants as set forth herein is willful, wanton, reckless


against defendants in an amount sufficient to punish defendants for their wrongful

conduct and to deter defendants and others from similar wrongful conduct in the future.

WHEREFORE the plaintiffs herein demand a trial by jury and pray for the

following relief for their loved-one's estates:

18


I. Pursuant to W.Va. Code § 55-7-6 (1967), one hundred and ten thousand dollar

($110,000.00) per class member for the wrongful death of each deceased coal

miner;

II. Pre-judgment and post judgment interest on their award;

III. Punitive damages that may be awarded for the intentional, grossly negligent

and reprehensible actions on the part of the defendants; and

IV. Such other and further relief as the Court may deem just.

PLAINTIFFS DEMAND A TRIAL BY JURY.

Respectfully submitted,

MICHAELD D. MICHAEL as administrator forthe ESTATE OF JACK D. MICHAEL, et al.

Timothy C. Bailey (WVS 39)Mark A. Barney (WVSB f 0282)BUCC1 BAILEY & JAVINS, LC213 Hale StreetPost Office Box 3712Charleston, West Virginia 25337Telephone (304) 345-0346

and


And

19


Steven L. Shaffer (WVSB 14 9365)C. Paul Estep (WVSB # 5731)ESTEP & SHAFFER L.C.212 West Main StreetKingwood, West Virginia 26537Telephone (304) 329-6003

Counsel for plaintiffs

20


....~..11....,!11.•11•16.41.• 1....mh.a.•••.•=1....mism.d...M. ••••••••••...roril.. wm...m.. 611.

4

*ate

I, Janice Cosco,

niftti tatty of utterttraoorEsi.,,,4v444 • . 4

0-• 4,1211.0-, C"1 2- rd" 7. " ! ' . •if ` 'rn.'14k5;..

:-44. ''''''''

of ri i: est irsinia, Gaudy of cam,es,

Clerk of the County Commission of said county, do hereby certify that

MICHAEL M. MICHAEL

was on the 20th day of October AD. 2014

appointed by the

Administrator,

Marion County Commission of Fairmont, W. Va,

DBN, of the Per,ssmal Estate of JACK D. MICHAEL,_

Deceased, late of this County.

(DATE OF DEATH.: NOVEMBER 20. 15681


$ 500,00 as required by law, which appointment is now in full force and effect

Surety Erie Insurance Company (Hrtit-pri Spcnri ty Acrpriny Pal innont ,WV)


said MICHAEL M. MICHAEL

as such Administrator, DBN


office in Fairmont in said county, this 20th

day of Octobe AD 2014

Ja e osco, Cou , i ierk of Marion County

-11/4 Depu ty

.m..............m...•

EXHIB


1

••••••.•-

rtiteb fates nterica

State of re Pirsittia, Taunt ofgaritat, os;

I, Janice Cosco, Clerk of the County Commission of said county, do hereby certify that

Judith A. Henderson Kuhn

was on the 30th day of September A D 2014

appointed by the Marion County Commission of Fairmont, W. Va ,

Administratrix DBN of the Personal Estate of PAUL FRANK HENDERSON,

deceased, late of this County.

(Re-Open for a possible lawsuit)

Date of Death: November 20, 1968


$ 500.00 as required by law, which appointment is now in full force and effect

Surety Erie Insurance Company-United Security Agency


said Judith A. Henderson Kuhn

as such Administratrix DBN


office in Fairmont in said county, this

day September

30th

AD 2014

I. ice C sec aunty Clerk of

Deputy

EXHIBIT


IN THE COUNTY COMMISSION OF HARRISON COUNTY, WEST VIRGINIA

IN RE: MOTION TO APPOINT THE SHERIFF OF HARRISON COUNTY TOADMINISTER THE ESTATE OF ALEX KOVARBASICH

COMES NOW, the undersigned petitioner pursuant to W.Va, Code § 44-1-11 and hereby

moves the Harrison County Commission to appoint the Sheriff of Harrison County, West

Virginia to take into his possession the estate of Alex Kovarbasich and administer the same.

In support of this motion, petitioner states as follows:

1. That Alex Kovarbasich passed away in Marion County, West Virginia on August

3, 1992;

2. That, prior to his death, Alex Kovarbasich resided in Harrison County, West

Virginia;

3. That more than two (2) months have elapsed since the date of Alex Kovarbasichdeath; and

4. That no one has come forth to be appointed as Administrator of Alex KovarbasichEstate.

WHEREFORE, petitioner moves the County Commission of Harrison County, West

Virginia to ORDER, pursuant to W.Va. Code § 44-1-11 the Sheriff of Harrison County, West

Virginia to take into his possession of the estate of Alex Kovarbasich and administer the same

pursuant to W.Va. Code § 44-1-11.

Submitted this 2713 day of Ockier , 2014.


Timothy Bail • SB # 5839)Mark A. Barney ' SB # 10282)BUCCI BAILEY & JAVINS, LC213 Hale StreetPost Office Box 3712Charleston, West Virginia 25337Telephone (304) 345-0346

and

Scott S. Segal (WVSB # 4717)Samuel A. Hrko (WVSB #7727)THE SEGAL LAW FIRM8] 0 Kanawha Blvd. EastCharleston, West Virginia 25337Telephone (304) 344-9100

and

Steven L. Shaffer (WVSB # 9365)C. Paul Estop (WVSB # 5731)ESTEP & SHAFFER L.C.212 West Main StreetKingwood, West Virginia 26537Telephone (304) 329-6003Attorney

STATE OF WEST VIRGINIA,

COUNTY OF , to-wit:

TAKEN, SUBSCRIBED and SWORN to before me thisMiday of 7)0eirybek. , 201

My commission expires: OU-k51,1571- I cgDr9,3

%,,.110‘ /I •NOTARY PUBLIC

driminimmilitslilinimmiuumenumnummaslirifibft ihri 4if aled 11.1

lilt binMI Imp Cola IA

PA. DEMIa —MAIN IN.Id Dwain* biliwompoi=unumlimi mini

2


' STATE PF WEST VIRGINIA COUNTY OF HARRISON

1, Susan J Thomas, Clerk of The Harrison County Commission, do hereby certify that the foregoing writing is atrue and accurate copy as appears of record in my office in Fiduciary . Book #: Illat Page: 396, of said record.

The foregoing instrument was acknowledged before me this 31 day of October. 2014.

Susan J ThomasClerk of Harrison County Commission

Deputy

n e Eschenmann


Susan 3 MomsHARRISON County 12:57:48 Pvi

SCANNED Dateruaent No

Recorded 10/31/00

2014Inst 2014052094

Docizaent TYR FOPages Recorded 4

N THE COUNTY COMMISSION OF HARRISON COUNTY, WEST VAlitItt 117-3%

IN RE: ORDER GRANTING MOTION TO APPOINT THE SHERIFF OFHARRISON COUNTY TO ADMINISTER THE ESTATE OF ALEXKOVARBASICII

NOV 4 2014This day conies the below-identified counsel who advised the Commission that more than

two (2) months have elapsed since the date of death of Alex Kovarbasich on August 3, 1992, and

that no one has come forth to be appointed as Administrator of his estate. Finding the same to be

proper the Commission grants said motion and ORDERS the Sheriff of Harrison County to take

into his possession of the estate of the decedent and administer the same pursuant to the

provisions of W.Va. Code § 44-1-11.

A certified copy of this document shall be forwarded to:

Timothy C. BaileyMark A BarneyBUCCI BAILEY & JAVINS, LC213 Hale StreetPost Office Box 3712Charleston, West Virginia 25337

and

Scott S. SegalSamuel A. HrkoTHE SEGAL LAW FIRM810 Kanawha Blvd. EastCharleston, West Virginia 25337

and

Steven L. ShafferC. Paul EstepESTEP & SHAFFER L.C.212 West Main StreetKingwood, West Virginia 26537

APPROVED:

Ronald R. Watson, PresidentHarrison County Commission


OFFICE OF THE CLERK OF THECOUNTY COMMISSION OF HARRISONCOUNTY, WEST VIRGINIA

The foregoing MOTION, together with the order confirming same, was this daypresented in said office and admitted to record.

2

Clerk


CC:

State 13f

Division 1

M1CMAEL JOHN ALOI. CHIEF JUDGE

P. O. Box 555

FAIRMONT, WEST VIRGINIA 56550-0629

13041 307-5300

DIVISION D

DAVID R. JANES. JUDGE

P. O. Sox 1611

FAIRMONT. WEST VIRGINIA E5555-1611

(304) 367-1395

November 21, 2014

eot Pirginia

SIXTEENTH JUDICIAL CIRCUIT

Robin Jean Davis, Chief Justice

Supreme Court of Appeals of West Virginia

Room E-301, State Capitol

Charleston, West Virginia 25305

RE: Michael D. Michael, et aL v. The Estate of Alex Kovarbasich, et al.

Case No. 14-C-318

Dear Chief Justice Davis:

COUNTY

OF

MARION

La accordance with West Virginia Trial Court Rule 17.02, 1 would respectfully request that I h

e

allowed to reeuse myself in the above referenced case, and that the case be assigned to an

other

circuit judge. This case involves the No. 9 coal mine explosion where 78 coal miners died o

n

November 20, 1968. I am personal friends with many of the families and it is my feeling that m

y

participation in this matter could present the appearance of an impropriety.

I am authorized to advise you that Judge Janes also requests recusal for the same reason.

Enclosed you will find the completed "Request for Assignment' form.

Please contact me should you have any questions.

r"....3 C)

Sincerely, _ c=...

c,c) :T. = ==2 = ---4

Michael I of ••••-t i• rN..1 c-)..,7 —

— .7:. ,---i r- rn—Irn = c

t"-" =

SGW c-) - --t) pc Po

rn 3 Cr) -n. ,..;:, . c-.3 F.

C....7 11 m-n c,

Honorable David R. Janes

Timothy C. Bailey, Esquire

Scott S. Segal, Esquire

Steven I,. Shaffer, Esquire

Shannon Green, Recusal Clerk

court File

c_nC.3 rn

rnTY)


REQUEST FOR ASSIGNMENT

TO: HONORABLE ROBIN JEAN DAVIS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

FROM: JUDGE MICHAEL JOHN ALOI

16TH JUDICIAL CIRCUIT

DATE: NOVEMBER 21, 2014

RE: MICHAEL D. MICHAEL, et al. v. THE ESTATE OF ALEX

KOVARBASICH, et al.

MARION COUNTY CASE NO. 14-C-318

REASON FOR REQUEST:

VOLUNTARY DISQUALIFICATION

BRIEF SUMMARY AND STATUS OF CASE:

The complaint in this case was filed on November 6, 2014

and it involves the No. 9

coal mine explosion where 78 coal miners died on November

20, 1968.

ESTIMATE OF TIME REQUIRED:

Unknown

REMARKS:


DIVISION 1

MICHAEL JOHN ALOI. CHicrJuoox

P. O. Box assFAIRMONT. WEST VIRGINIA 66555-0629

13041 367-5390

DIVISION 11

DAVID R. JAMS. JUDGE

P.O. Box 1511FAIRMONT, WEST VIRGINIA 605564011

1304) 367-5395

November 21, 2014

tatt iY tot ?atrail-tin






RE: Michael D. Michael, et al. v. The Estate of Alex Kovarbasich, et al.

Case No. 14-C-318


COUNTY

OF

MARION

In accordance with West Virginia Trial Court Rule 17.02, 1 would respectfully request that I be

allowed to recuse myself in the above referenced case, and that the case be assigned to another

circuit judge. This case involves the No. 9 coal mine explosion where 78 coa] miners died on

November 20, 1968. 1 am personal friends with many of the families and it is my feeling that my

participation in this nialter could present the appearance of an impropriety.


Enclosed you will find the completed "Request for Assignment" form.


r....., (-)

Sincerely, c=p-i..... 70

=I C, P3 •

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DIVISION 1

MICHAEL JOHN ALOI. CHIEFJUDGE

P. O. Box ea*FAIRMONT. WEST VIRGINIA 66565,06E9

1304) 367-5390

DIVISION n

DAVID R. JANza. JUDGE

P.O. Box amFAIRMONT. WEST VIRGINIA 56059-1911

1304/ 367.5395

November 21, 2014

zet Pirsinia






RE: Michael D. Michael, et al. v. The Estate of Alex Kovarbasich, et al.

Case No. 14-C-318


COUNTY

OF

MARION

In accordance with West Virginia Trial Court Rule 17.02, I would respectfully request that 1

be

allowed to recuse myself in the above referenced case, and that the ease be assigned to anot

her

circuit judge. This case involves the No. 9 coal mine explosion where 78 coal millets died

on

November 20, 1968. I am personal friends with many of the families and it is my feeling that m

y

participation in this matter could present the appearance of an impropriety.


Enclosed you will find the completed "Request for Assignment" form.


Michael J

Sincerely,/

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Timothy C. Bailey, Esquire Ca CJ1 C,

Scott S. Segal, Esquire rn

Steven L. Shaffer, Esquire

Siaannon Green, Recusal Clerk

Court File


ELECTRONICALLY FILED12/9/2014 12:07 PMCK-24-20 I .1 -C-3 18

CIRCUIT COURT OFMARION COUNTY, WV

RHONDA STARN



Plaintiffs,

v. Civil Action No. 14-C-318Judge: Aloi

THE ESTATE OF ALEX KOVARBASICH,By and through ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY,As administrator for the Estate of AlexKovarbasich, andCONSOLIDATION COAL COMPANY,a Delaware Company,

Defendants.

ANSWER

COMES NOW, the Defendant, the Estate of Alex Kovarbasich, by and through Albert F.

Marano, Sheriff of Harrison County, as Administrator for the Estate of Alex Kovarbasich, by

counsel, Peter G. Zurbuch and the law firm of Busch, Zurbuch & Thompson, PLLC, and answers

Plaintiffs' Complaint as follows:

FIRST AFFIRMATIVE DEFENSE

Plaintiffs' claims may be barred by the applicable statute of limitations.

SECOND AFFIRMATIVE DEFENSE

Plaintiffs' claims may be barred by the doctrine of laches.

THIRD AFFIRMATIVE DEFENSE

Plaintiffs' Complaint fails to state a cause of action pursuant to Rule 12(b)(6) of the West

Virginia Rules of Civil Procedure.


FOURTH AFFIRMATIVE DEFENSE

This Defendant reserves the right to raise any affirmative defense pursuant to Rule 8(c) of

the West Virginia Rules of Civil Procedure as further discovery may develop.

FIFTH AFFIRMATIVE DEFENSE

Without waiving the aforementioned affirmative defenses, this Defendant responds as

follows:

1. This

deny the allegations

2. This


3. This


4. This



Defendant is without information or knowledge sufficient to either admit or

contained in paragraph 1 of Plaintiffs' Complaint.







5. This Defendant admits the allegations contained in paragraph 5 of Plaintiffs'

Complaint.

6. This Defendant admits the allegations contained in paragraph 6 of Plaintiffs'

Complaint.

7. This Defendant is without information or knowledge sufficient to either admit or

deny the allegations contained in paragraph 7 of Plaintiffs' Complaint.








OPERATIVE FACTS

11. This Defendant reasserts and incorporates by reference each and every response

contained in paragraphs 1 through 10 as if fully set forth herein.







































4 1 . This Defendant reasserts and incorporates by reference each and every response







COUNT ONE — 14 RAUD, CONCEALMENT AND NONDISCLOSURE








































WHEREFORE, the Defendant, the Estate of Alex Kovarbasich, by and through Albert F.

Marano, Sheriff of Harrison County, as Administrator for the Estate of Alex Kovarbasich, requests


this Court deny the Plaintiffs the relief sought in their Complaint and award this Defendant his

attorney fees and costs incurred in defending this action.

THIS DEFENDANT DEMANDS A TRIAL BY JURY.

ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY,

Defendant,

By counsel

/4/ P a. 2044aPeter G. ZurbuchWV State Bar No. 5765Robert C. ChenowethWV State Bar No. 10498BUSCH, ZURBUCH & THOMPSON, PLLCP.O. Box 1819Elkins, WV 26241(304) 636-3560




Plaintiffs,

v. Civil Action No. 14-C-318Judge: Aloi

THE ESTATE OF ALEX KOVARBASICH,By and through ALBERT F. MARANO,SHERIFF OF HARRISON COUNTY,As administrator for the Estate of AlexKovarbasich, andCONSOLIDATION COAL COMPANY,a Delaware Company,

Defendants.

CERTIFICATE OF SERVICE

I, Peter G. Zurbuch, one of counsel for Defendant Albert F. Marano, Sheriff of Harrison

County, do hereby certify that the foregoing ANSWER was served this day upon all counsel of

record by depositing a true copy in the U.S. Mail in envelopes addressed to:

Timothy C. Bailey, EsquireMark A. Barney, EsquireBucci Bailey & Javins, LC

213 Hale Street / P.O. Box 3712Charleston, WV 25337

Scott S. Segal, EsquireSamuel A. Hrko, EsquireThe Segal Law Firm

810 Kanawha Blvd. EastCharleston, WV 25337


Steven L. Shaffer, EsquireC. Paul Estep, EsquireEstep & Shaffer L.C.212 West Main StreetKingwood, WV 26537

William E. Robinson, EsquireDinsmore & Shohl LLP

P.O. Box 11887Charleston, WV 25339

Jill Cranston Rice, EsquireJacob Shaffer, EsquireDinsmore & Shohl LLP

215 Don Knotts Blvd Ste 310Morgantown, WV 26501

DATED: This 8th day of December, 2014.

/a/ Pat4 G. 2044Peter G. ZurbuchWV State Bar No. 5765Robert C. ChenowethWV State Bar #10498BUSCH, ZURBUCH & THOMPSON, PLLCP. O. Box 1819Elkins, WV 26241(304) 636-3560


case 1:14-cv-00212-imk-mja document 1-19 filed 12/11/14 ......case 1:14-cv-00212-imk-mja document...

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