Published: June 27, 2008 07:12 am      

State Supreme Court reinstates 2001 flood lawsuits

CHARLESTON — Thousands of West Virginians hammered by floods that devastated southern counties in 2001 will get their day in court after all.

The state Supreme Court reinstated a pair of lawsuits Thursday, including one in which a trial judge threw out a jury verdict, seeking damages from timber, mining and land companies. The ruling likewise breathes new life into related lawsuits left in limbo until the Supreme Court acted.

All center on flooding that hit after up to 7 inches of rain fell across seven southern counties and caused more than $143 million in damage July 8, 2001.

Generally, the suits claim that mountaintop removal mining and logging left forests unable to soak up excessive rain and caused streams and rivers to overflow. The list of defendants includes some of the coal industry’s largest companies, among them St. Louis-based Arch Coal Inc. and Richmond, Va.-based Massey Energy Co.

“It’s really, I think, a really important decision for the court for a number of reasons, not the least of which it underscores the importance of when a community speaks through a jury,” said plaintiffs’ attorney Stuart Calwell. “Yet another step in this litigation (is) to establish that a private citizen who happens to own a house and live in the coal fields has to be shown some respect for his property.”

Another plaintiffs’ lawyer, Scott Segal, was likewise happy.

“I am pleased that the Supreme Court recognized the hard work of the jury and I’m very pleased for all the citizens who were affected by the flood, that they will yet have another day in court,” Segal said.

Thousands of people whose homes and businesses were flooded have since sued well over 100 defendants. But just one case has gone to trial.

About 500 residents of the Mullens area won a 2006 jury verdict that found improper logging practices allowed by timberland owners Western Pocahontas Properties and Western Pocahontas Corp. helped cause the flooding.

Raleigh County Circuit Judge John Hutchison later tossed that verdict before a second trial to determine damages.

The Supreme Court, however, found that Hutchison shouldn’t have thrown out the testimony of expert witnesses for the plaintiffs nor overturned the jury’s verdict and granted judgment for the Pocahontas companies.

The high court also rejected the Pocahontas companies’ appeal of whether the jury should have decided if their use of the land was reasonable.

The case now goes back to a panel of judges overseeing the flood lawsuits for scheduling of a penalty-phase trial.

An attorney representing the Pocahontas companies did not have immediate comment Thursday.

The Supreme Court likewise overturned the dismissal of a suit filed on behalf of people living in the Coal River watershed. Their case had been dismissed before trial, but the high court held that the plaintiffs “have sufficiently stated claims upon which relief may be granted, and they are entitled to try and prove those claims to a trier of fact.”

The Coal River case also goes back to the panel for eventual trial.

An attorney representing more than 100 defendants in the Coal River case did not immediately return a call from The Associated Press.

Thursday’s opinion did not break down how the court’s members voted. However, the case was decided by just two regular members of the court, Justices Larry Starcher and Joseph Albright. Chief Justice Elliott “Spike” Maynard and Justices Brent Benjamin and Robin Davis disqualified themselves from the case. They were replaced by Circuit Court Judges Russel Clawges Jr., Darrell Pratt and O.C. Spaulding.