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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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 Page 1 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
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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.
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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
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Steven L. Shaffer (WV #9365)C. Paul Estep (WV 5731)ESTEP & SHAFFER L.C.212 West Main StreetKingwood, WV 26537304-329-6003
Representing Plaintiff
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
40 with the same force and effect as if fully set forth herein.
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
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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
45. Plaintiffs reaffirm and reallege every allegation contained in paragraphs 1 through
44 with the same force and effect as if fully set forth herein.
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
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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
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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;
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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.
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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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 19 of 79 PageID #: 227
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 20 of 79 PageID #: 228
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 21 of 79 PageID #: 229
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 22 of 79 PageID #: 230
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
and reprehensible. Plaintiffs and the class are thus entitled to recover punitive damages
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 23 of 79 PageID #: 231
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 24 of 79 PageID #: 232
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 25 of 79 PageID #: 233
..•••• 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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 26 of 79 PageID #: 234
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
Now THEREFORE, be it known that full faith and credit are due all lawful acts of the
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 27 of 79 PageID #: 235
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.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 28 of 79 PageID #: 236
/
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
Scott S. Segal (WVSB # 4717)Samuel A. Hrko (WVSB #7727)THE SEGAL LAW FIRM810 Kanawha Blvd. EastCharleston, West Virginia 25337Telephone (304) 344-9100
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 29 of 79 PageID #: 237
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 30 of 79 PageID #: 238
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 31 of 79 PageID #: 239
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 32 of 79 PageID #: 240
c\cSUMMONS
IN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 33 of 79 PageID #: 241
SUMMONSIN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA
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 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
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 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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 34 of 79 PageID #: 242
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 35 of 79 PageID #: 243
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 36 of 79 PageID #: 244
SUMMONSIN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA
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 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
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, 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•
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 37 of 79 PageID #: 245
IN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA
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- 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.
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.
R7- r:IVED
rn,s 1' 91114 1
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 38 of 79 PageID #: 246
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 39 of 79 PageID #: 247
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
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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
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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
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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
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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.
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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
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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
41. Plaintiffs reaffirm and reallege every allegation contained in paragraphs 1 through
40 with the same force and effect as if fully set forth herein.
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
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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.
PLAINTIFFS' CLASS ACTION ALLEGATIONS
45. Plaintiffs reaffirm and reallege every allegation contained in paragraphs 1 through
44 with the same force and effect as if fully set forth herein.
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
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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
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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;
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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.
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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
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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
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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
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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
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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
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
and reprehensible. Plaintiffs and the class are thus entitled to recover punitive damages
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:
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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
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
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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
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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
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 Company (Hrtit-pri Spcnri ty Acrpriny Pal innont ,WV)
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 20th
day of Octobe AD 2014
Ja e osco, Cou , i ierk of Marion County
-11/4 Depu ty
.m..............m...•
EXHIB
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 58 of 79 PageID #: 266
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
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 Company-United Security Agency
Now THEREFORE, be it known that full faith and credit are due all lawful acts of the
said Judith A. Henderson Kuhn
as such Administratrix DBN
Given under my hand and the seal of said County Commission at my
office in Fairmont in said county, this
day September
30th
AD 2014
I. ice C sec aunty Clerk of
Deputy
EXHIBIT
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 59 of 79 PageID #: 267
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.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 60 of 79 PageID #: 268
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 61 of 79 PageID #: 269
' 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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 62 of 79 PageID #: 270
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 63 of 79 PageID #: 271
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 64 of 79 PageID #: 272
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)
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 65 of 79 PageID #: 273
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:
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 66 of 79 PageID #: 274
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
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
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.
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....., (-)
Sincerely, c=p-i..... 70
=I C, P3 •
c" c=
—1 m c".
Michael I c-) •-•, Iv c, .7 —1.4- ••• 1.--1 r-
mr- rn —= co=
SGW c, -13 a.
." F;
cc: Honorable David R. Janes ..:, . C,
=
• C.) -*I r-n-n
Timothy C. Bailey, Esquire CA)U1 F)
Scott S. Segal, Esquire rn
Steven L. Shafffer, Esquire
Shannon Green, Recusal Clerk
vdourt File
ti
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 67 of 79 PageID #: 275
State fx
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
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
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.
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.
Michael J
Sincerely,/
=1
..57
c.,_C .
r....1C=-.4...C.
'M=cEV
C7
P5
C,
=—!—tc,
P3
rncnt
..7
r" rn •E 0 :a:3
SGW
.—0 pz Pe
VI ...n.
cc: Honorable David R. Janes C.....) 71 rnn ,=,
Timothy C. Bailey, Esquire Ca CJ1 C,
Scott S. Segal, Esquire rn
Steven L. Shaffer, Esquire
Siaannon Green, Recusal Clerk
Court File
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 68 of 79 PageID #: 276
ELECTRONICALLY FILED12/9/2014 12:07 PMCK-24-20 I .1 -C-3 18
CIRCUIT COURT OFMARION COUNTY, WV
RHONDA STARN
IN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA
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-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.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 69 of 79 PageID #: 277
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
deny the allegations
3. This
deny the allegations
4. This
deny the allegations
PARTIES AND JURISDICTION
Defendant is without information or knowledge sufficient to either admit or
contained in paragraph 1 of Plaintiffs' Complaint.
Defendant is without information or knowledge sufficient to either admit or
contained in paragraph 2 of Plaintiffs' Complaint.
Defendant is without information or knowledge sufficient to either admit or
contained in paragraph 3 of Plaintiffs' Complaint.
Defendant is without information or knowledge sufficient to either admit or
contained in paragraph 4 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.
8. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 8 of Plaintiffs' Complaint.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 70 of 79 PageID #: 278
9. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 9 of Plaintiffs' Complaint.
10. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 10 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.
12. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 12 of Plaintiffs' Complaint.
13. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 13 of Plaintiffs' Complaint.
14. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 14 of Plaintiffs' Complaint.
15. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 15 of Plaintiffs' Complaint.
16. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 16 of Plaintiffs' Complaint.
17. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 17 of Plaintiffs' Complaint.
18. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 18 of Plaintiffs' Complaint.
19. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 19 of Plaintiffs' Complaint.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 71 of 79 PageID #: 279
20. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 20 of Plaintiffs' Complaint.
21. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 21 of Plaintiffs' Complaint.
22. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 22 of Plaintiffs' Complaint.
23. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 23 of Plaintiffs' Complaint.
24. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 24 of Plaintiffs' Complaint.
25. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 25 of Plaintiffs' Complaint.
26. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 26 of Plaintiffs' Complaint.
27. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 27 of Plaintiffs' Complaint.
28. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 28 of Plaintiffs' Complaint.
29. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 29 of Plaintiffs' Complaint.
30. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 30 of Plaintiffs' Complaint.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 72 of 79 PageID #: 280
31. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 31 of Plaintiffs' Complaint.
32. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 32 of Plaintiffs' Complaint.
33. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 33 of Plaintiffs' Complaint.
34. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 34 of Plaintiffs' Complaint.
35. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 35 of Plaintiffs' Complaint.
36. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 36 of Plaintiffs' Complaint.
37. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 37 of Plaintiffs' Complaint.
38. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 38 of Plaintiffs' Complaint.
39. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 39 of Plaintiffs' Complaint.
40. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 40 of Plaintiffs' Complaint.
DISCOVERY DOCTRINE AND FRAUDULENT CONCEALMENT
4 1 . This Defendant reasserts and incorporates by reference each and every response
contained in paragraphs 1 through 40 as if fully set forth herein.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 73 of 79 PageID #: 281
42. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 42 of Plaintiffs' Complaint.
43. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 43 of Plaintiffs' Complaint.
44. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 44 of Plaintiffs' Complaint.
PLAINTIFFS' CLASS ACTION ALLEGATIONS
45. This Defendant reasserts and incorporates by reference each and every response
contained in paragraphs 1 through 44 as if fully set forth herein.
46. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 46 of Plaintiffs' Complaint.
47. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 47 of Plaintiffs' Complaint.
48. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 48 of Plaintiffs' Complaint.
49. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 49 of Plaintiffs' Complaint.
50. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 50 of Plaintiffs' Complaint.
51. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 51 of Plaintiffs' Complaint.
52. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 52 of Plaintiffs' Complaint.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 74 of 79 PageID #: 282
53. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 53 of Plaintiffs' Complaint.
54. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 54 of Plaintiffs' Complaint.
COUNT ONE — 14 RAUD, CONCEALMENT AND NONDISCLOSURE
55. This Defendant reasserts and incorporates by reference each and every response
contained in paragraphs 1 through 54 as if fully set forth herein.
56. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 56 of Plaintiffs' Complaint.
57. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 57 of Plaintiffs' Complaint.
58. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 58 of Plaintiffs' Complaint.
59. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 59 of Plaintiffs' Complaint.
60. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 60 of Plaintiffs' Complaint.
61. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 61 of Plaintiffs' Complaint.
62. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 62 of Plaintiffs' Complaint.
63. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 63 of Plaintiffs' Complaint.
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 75 of 79 PageID #: 283
64. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 64 of Plaintiffs' Complaint.
65. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 65 of Plaintiffs' Complaint.
66. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 66 of Plaintiffs' Complaint.
67. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 67 of Plaintiffs' Complaint.
68. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 68 of Plaintiffs' Complaint.
69. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 69 of Plaintiffs' Complaint.
70. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 70 of Plaintiffs' Complaint.
71. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 71 of Plaintiffs' Complaint.
72. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 72 of Plaintiffs' Complaint.
73. This Defendant is without information or knowledge sufficient to either admit or
deny the allegations contained in paragraph 73 of Plaintiffs' Complaint.
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 76 of 79 PageID #: 284
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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 77 of 79 PageID #: 285
IN THE CIRCUIT COURT OF MARION COUNTY, WEST VIRGINIA
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-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
Case 1:14-cv-00212-IMK-MJA Document 1-19 Filed 12/11/14 Page 78 of 79 PageID #: 286
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 Page 79 of 79 PageID #: 287