Michael et al v. The Estate Of Alex Kovarbasich et al

Filing 162

MEMORANDUM OPINION AND ORDER ADOPTING R&R (Dkt. No. 99 ) and GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. NO. 4 ). The court ADOPTS the 99 Report and Recommendation in its entirety, except for its recommendation that the Court find that the Plaintiffs' complaint alleges a deliberate intent claim; DENIES the Plaintiffs' 64 motion to amend the complaint to add Sacchetti as a defendant; DENIES as MOOT Consolidation Coal Company's 68 motion to strike the am ended complaint; GRANTS Consolidation Coal Company's 4 motion to dismiss and DISMISSES WITH PREJUDICE all claims in this case against Consolidation Coal Company. The clerk is directed to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/31/17.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL D. MICHAEL, as the
Administrator of the ESTATE
OF JACK D. MICHAEL, and
JUDITH A. KUHN, as the
Administratrix of the ESTATE
OF PAUL F. HENDERSON, et al.,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:14CV212
(Judge Keeley)

CONSOLIDATION COAL COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Pending before the Court are the Report and Recommendation
(“R&R”) of United States Magistrate Judge (ret.) John S. Kaull
(dkt. no. 99), and the motion to dismiss filed by the defendant,
Consolidation Coal Company (“CCC”) (dkt. no. 4). This case stems
from the deaths of seventy-eight miners as a result of a tragic
coal mining explosion in 1968. Ultimately, the Court concludes that
the

Plaintiffs’

wrongful

death

claim

is

barred

by

the

then

applicable two-year limitation period, and was not tolled by either
the

discovery

rule

or

the

fraudulent

concealment

doctrine.

Accordingly, the Court ADOPTS the R&R and GRANTS the defendant’s
motion to dismiss.

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
I. BACKGROUND
A.

Factual Background
On the fateful day of November 20, 1968, the Consol No. 9 coal

mine (“the Mine”), located near Farmington, West Virginia, exploded
and caught fire, resulting in the deaths of seventy-eight coal
miners. Following ten years of recovery efforts, the Mine was
permanently sealed in November of 1978.
At the time of the explosion, the Mine had four ventilation
fans that controlled the level of methane buildup resulting from
the mining operations. The No. 3 fan, which is the only fan at
issue in this case, was located at Mod’s Run near the 4 North area
of the Mine (“Mod’s Run fan”). Each fan was controlled by a “FEMCO
Supervisory Control” safety alarm system (“FEMCO”), which was
designed to trigger a red light and audible alarm in the Mine’s
lamp house whenever the fan slowed down or stopped. When triggered,
the alarm would notify the underground miners of the situation; if
the fan remained inoperable for more than twelve minutes, the alarm
would shut down electricity to the Mine.
For the next twenty-two years, inspectors from various state
and federal agencies conducted multiple investigations into the
fire and explosion at the Mine. One of the inspectors was Larry L.

2

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Layne

(“Layne”),

Administration

who

worked

(“MSHA”).

for

Layne

the

Mine

filed

a

Safety

and

memorandum

Health
of

his

investigation on September 15, 1970, in which he reported the
following:
On September 5, 1970, 12am-8am shift, the Mods Run
substation was energized for the first time since the
explosion of November 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 Mod’s Run fan had been rendered
inoperable prior to 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 system was bypassed .
. . .
(Dkt. No. 1-19 at 13).
In March, 1990, nearly twenty years after Layne wrote his
memorandum,

MSHA

issued

an

investigation

report,

stating

pertinent part:
. . . [t]he 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 out by the working
section because of inadequate ventilation and the lack of
sufficient ventilation controls . . . and 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 the
face after the explosion.
Id.
3

in

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Although the Plaintiffs acknowledge that they became aware of
Layne’s memorandum sometime in 2008, they allege that it was not
until June 9, 2014, that they learned that the chief electrician at
the Mine, Alex Kovarbasich (“Kovarbasich”), was the person who had
rendered the FEMCO alarm on the Mod’s Run fan inoperable.1 Thus,
they claim that, from November 20, 1968 until June 14, 2014, they
never knew the identity of the person responsible for rendering the
fan inoperable, nor could they have discovered his identity through
the exercise of reasonable diligence. Further, they contend that
neither Kovarbasich nor CCC ever disclosed that the Mod’s Run fan
was “intentionally rendered inoperable by mine management.” Id. at
14.
B.

Procedural Background
On November 6, 2014, the Plaintiffs and class representatives,

Michael D. Michael, as the Administrator of the Estate of Jack D.
Michael, and Judith A. Kuhn, as the Administratrix of the Estate of
Paul F. Henderson (collectively “Plaintiffs”), brought suit in the
Circuit Court of Marion County, West Virginia “on behalf of a class

1

CCC contends that Kovarbasich was not “chief electrician,”
but simply a “shop mechanic, an hourly union position.” (Dkt. No.
1 at 5, n. 1). Regardless, Kovarbasich’s true position at the Mine
is not important to the discussion here.
4

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
of the estates of the seventy-eight (78) coal miners,” against CCC
and Albert Marano, Sheriff of Harrison County (“Sheriff”), as
Administrator of the Estate of Kovarbasich, who had died on August
3, 1992. The complaint alleges one count of “fraud, concealment and
nondisclosure.” Id. at 19.
On December 11, 2014, CCC removed the case to this Court based
on diversity jurisdiction.

It argued that the Plaintiffs had

fraudulently joined Kovarbasich to destroy diversity, (dkt. no. 1),
and that the Harrison County Commission had improperly appointed
Sheriff Marano as Administrator of the Kovarbasich Estate.

It

contended that the Estate, which had been closed since April 25,
1994,

should

never

have

been

reopened.

It

also

argued

that

Kovarbasich was not a proper defendant because any claims against
him were barred by the statute of limitations and the doctrine of
laches. Id.
Pursuant to Fed. R. Civ. P. 12(b)(6), CCC moved to dismiss the
suit against it on December 17, 2014, on the basis that the
Plaintiffs’ claims were barred by the statute of limitations. (Dkt.
No. 4). Shortly after that, the Plaintiffs filed a motion to remand
the case to the Circuit Court of Marion County.

They denied that

Kovarbasich had been fraudulently joined, or that their claims were

5

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
barred by the statute of limitations. They also moved to stay
consideration of CCC’s motion to dismiss until after the Court
ruled on their motion to remand. (Dkt. No. 10).
On February 9, 2015, while the parties’ motions were pending,
the Plaintiffs moved to “Preserve Evidence and Promptly Perpetuate
the Testimony of Leonard Sacchetti and Request Immediate Hearing.”
(Dkt.

No.

22).

The

motion

asserted

that

Leonard

Sacchetti

(“Sacchetti”), a former electrician at the Mine, had personal
knowledge of the identity of the individual who had bypassed the
FEMCO alarm on the Mod’s Run fan in 1968. Because Sacchetti was
ninety years old, the Plaintiffs sought an order authorizing them
to promptly take his videotaped deposition. The Court granted the
motion and ordered that, in recognition of Sacchetti’s advanced
age, the parties work together to establish parameters for the
deposition.
Shortly after Sacchetti’s deposition, on April 6, 2015, the
Plaintiffs filed a motion to “Preserve Evidence and Promptly
Perpetuate the Testimony of Larry Layne and Request Immediate
Hearing.” (Dkt. No. 57). They asserted that Layne knew the identity
of the person who had reported to him that someone had bridged the
Mod’s Run fan. As they had when seeking Sacchetti’s deposition, the

6

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Plaintiffs maintained that, because of Layne’s advanced age (80
years old at the time), it was imperative to promptly secure his
testimony. On April 10, 2015, Magistrate Judge Kaull permitted the
Plaintiffs to depose Layne on a date certain more than 180 days
from the entry of his order, which would allow them time to
initiate any process required under 29 C.F.R. §§ 2.20 et seq.2
(Dkt. No. 57 at 5). In addition, he authorized the defendants to
conduct discovery of certain enumerated categories of information
relevant to the deposition of Layne. Id.
Also on April 10, 2015, after it learned that the Circuit
Court of Harrison County was reviewing CCC’s appeal of the County
Commission’s

appointment

of

the

Sheriff

as

Administrator

of

Kovarbasich’s Estate, the Court stayed a ruling on the pending
motions, noting that, in the interests of federalism, comity, and

2

This regulation “sets forth the procedures to be followed
whenever a subpoena, order, or other demand (hereinafter referred
to as a demand) of a court or other authority, in connection with
a proceeding to which the U.S. Department of Labor [“DOL”] is not
a party, is issued for the production or disclosure of (1) any
material contained in the files of the Department, (2) any
information relating to material contained in the files of the
Department, or (3) any information or material acquired by any
person while such person was an employee of the Department as a
part of the performance of his official duties or because of his
official status.” 29 C.F.R. § 2.20(a). As Layne was an employee of
the DOL, his testimony and records were subject to this regulation.
7

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
judicial economy, the surest way to avoid “the possibility of
inconsistent adjudications and unnecessary entanglement between the
federal and state court systems in West Virginia” was to stay any
ruling on the motion to remand pending a decision from the Supreme
Court of Appeals of West Virginia (“Supreme Court of Appeals”).
(Dkt. No. 56 at 3-4).
During the stay, on July 31, 2015, the Plaintiffs sought leave
to amend their complaint in order to add Sacchetti as a defendant.
(Dkt. No. 64). They contended that they had only become aware of
his role in bridging the Mod’s Run fan on April 3, 2015. CCC
opposed the motion, contending that, in “direct and intentional
violation

of

discovery],”

this

Court’s

April

10,

2015

Order

[limiting

the Plaintiffs had met with Layne on April 3, 2015,

and had secured his affidavit.3 (Dkt. No. 68 at 2). In CCC’s view,
because Plaintiffs’ motion for leave to amend rested solely on an
improperly obtained affidavit, the Court should strike it as
improper. Id. Alternatively, CCC asked the Court to strike Layne’s
affidavit and any reference to it from the motion to amend, and to
afford the affidavit no consideration in deciding that motion.

3

The motion also argued that, because he was a DOL employee,
taking Layne’s affidavit without authorization from the DOL
violated 29 C.F.R. §§ 2.20, et seq.
8

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Id. Finally, it sought to prohibit the Plaintiffs from introducing
Layne’s affidavit or any testimony from it into evidence in the
case. Id.
The Court referred these motions to Magistrate Judge Kaull,
who concluded that the Plaintiffs had not violated any court order
or 29 C.F.R. §§ 2.20, et seq.(Dkt. No. 97 at 7-10). Accordingly, he
denied CCC’s attempt to strike Layne’s affidavit or testimony. Id.
at 10. As to the Plaintiffs’ motion for leave to amend their
complaint, Magistrate Judge Kaull indicated he would address that
issue and CCC’s objections in a forthcoming R&R. Id.
On September 29, 2015, Magistrate Judge Kaull entered an R&R
that recommended the Court deny the Plaintiffs’ motion for leave to
amend the complaint. (Dkt. No. 99). It also concluded that, despite
having

characterized

their

complaint

as

one

for

fraud,

the

Plaintiffs actually had alleged claims for wrongful death and
deliberate intent, both of which have a two-year statute of
limitations. Id. at 13-15. It further concluded that, as to the
claims against Sacchetti, neither the discovery rule nor the
fraudulent concealment doctrine tolled the statute of limitations
because neither had been available in wrongful death actions in

9

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
1968.4 Id. at 21. Because the statute of limitations barred any
claim against Sacchetti, the R&R recommended that the Court deny,
as futile, the Plaintiffs’ motion for leave to add him as a
defendant. Id. at 21, 39.
On September 30, 2015, the Court stayed all proceedings in
this case pending a ruling by the Circuit Court of Harrison County
on CCC’s appeal from the Harrison County Commission’s decision to
reopen the Kovarbasich Estate. (Dkt. No. 100). Two days later,
Circuit Court Judge John Lewis Marks vacated and reversed the
Commission’s decision, and ordered that the Estate be re-closed.
Judge Marks also denied the Plaintiffs’ motion to stay his order
pending their appeal to the Supreme Court of Appeals. After this
quick turn of events prompted the Court to lift its stay in the
case on October 2, 2015, the Plaintiffs filed objections to
Magistrate Judge Kaull’s recommendation that their complaint pled
claims for wrongful death and deliberate intent, not fraud. (Dkt.
No. 106). They contended that their claim was for fraud, and also
argued that, even if their complaint was construed to state claims
for

wrongful

death

and

deliberate

4

intent,

the

statute

of

As discussed later in this opinion, the R&R also concluded
that any stand alone claim for fraudulent concealment failed as to
Sacchetti.
10

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
limitations on those claims had been tolled by both the discovery
rule and fraudulent concealment doctrine. Id. In response, CCC
contended that the Court should adopt the R&R. (Dkt. No. 151).
Based on the closure of the Kovarbasich Estate, Sheriff Marano
and CCC moved to dismiss the Estate as a party to this action.
(Dkt. Nos. 118 and 122). The Plaintiffs, however, argued that the
Court should not decide that motion prior to deciding their motion
to remand, and that, because they were in the process of appealing
Judge Marks’s order, it should stay the case in its entirety
pending a ruling from the Supreme Court of Appeals on the reclosure of the Estate. (Dkt. No. 121). The Court agreed and stayed
all proceedings pending a decision from the Supreme Court of
Appeals. (Dkt. No. 124).
On March 8, 2016, the Plaintiffs moved to lift the stay on a
limited basis in order to depose Layne, noting that the parties had
exchanged discovery relevant to Layne’s knowledge of the incidents,
and their concern about his advanced age. (Dkt. No. 125). CCC
opposed lifting the stay, because it was waiting for the DOL to
release documents it needed to properly depose Layne. (Dkt. No.
127). The Court denied the motion to lift the stay on March 10,
2016. (Dkt. No. 130).

11

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
On November 10, 2016, the Supreme Court of Appeals affirmed
Judge Marks’s decision to re-close the Kovarbasich Estate. In re:
Estate of Alex Kovarbasich, No. 15-1032, 2016 WL 6651583 (W.Va.
2016). Following that, the Court lifted its stay and scheduled a
status conference with the parties. (Dkt. No. 139). During that
conference, it denied the motion to remand, granted the motion to
dismiss the Estate of Kovarbasich, and permitted the parties to
proceed with Layne’s deposition and other limited discovery. (Dkt.
No. 141). The Court also found that none of that discovery would
impede its ability to rule on Plaintiffs’ objections to the R&R and
CCC’s motion to dismiss. Id.
Finally, as a result of a dispute between the parties about
Layne’s deposition, on March 3, 2017, the Court ordered that the
deposition should proceed, and Layne was deposed on March 8, 2017.
(Dkt. No. 158).
II. STANDARD OF REVIEW
A.

Fed. R. Civ. P. 12(b)(6) Motion to Dismiss
In reviewing the sufficiency of a complaint, a district court

“‘must accept as true all of the factual allegations contained in
the complaint.’” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

12

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
However,

while

a

complaint

does

not

need

detailed

factual

allegations, a plaintiff’s obligation to provide the grounds of his
entitlement

to

relief

requires

more

than

mere

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Indeed, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). In considering whether the facts alleged are
sufficient, “a complaint must contain ‘enough facts to state a
claim to relief that is plausible on its face.’” Anderson, 508 F.3d
at 188 (quoting Twombly, 550 U.S. at 547).
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency
of

a

complaint;

importantly,

it

does

not

resolve

contests

surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992). “But in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are alleged in
the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6),” so long as “all facts necessary to the
affirmative

defense

‘clearly

appear[]

on

the

face

of

the

complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.

13

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)).
B.

Amendment Pursuant to Fed. R. Civ. P. 15
Under the federal civil rules, a plaintiff may amend a

complaint “once as a matter of course” within either 21 days after
serving the complaint, or 21 days after service of a responsive
pleading or a motion under Rule 12(b), (e), or (f), whichever is
earlier. Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may
amend its pleading only with the opposing party’s written consent
or the court’s leave. The Court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2).
Although granting or denying a motion to amend is within the
discretion of the Court, Scott v. Family Dollar Stores, Inc., 733
F.3d 105, 121 (4th Cir. 2013), the Fourth Circuit has interpreted
Rule 15(a)(2) to require that “leave to amend a pleading should be
denied only when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving party, or
the amendment would have been futile.”

Johnson v. Oroweat Foods

Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)); See also Edwards v. City of Goldsboro, 178
F.3d 231 (4th Cir. 1999).

14

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Leave to amend is futile when the amended complaint would not
survive a motion to dismiss, Perkins v. United States, 55 F.3d 910,
917 (4th Cir. 1995), or “when the proposed amendment is clearly
insufficient or frivolous on its face.” Johnson, 785 F.2d at 510;
Burns v. AAF–McQuay, Inc., 980 F.Supp. 175, 179 (W.D. Va. 1997)
(noting that proper standard of review when amendment is challenged
on grounds of futility is whether the proposed amendment states a
claim upon which relief can be granted). When assessing futility,
“a

district

court

may

look

to

‘substantive

or

procedural

considerations.’” Jones v. HSBC Bank USA, N.A., 444 Fed.Appx. 640,
643 (4th Cir. 2011) (quoting Davis v. Piper Aircraft, 615 F.2d 606,
613 (4th Cir. 1980)).
III. DISCUSSION
CCC contends that the Plaintiffs’ objections to the R&R simply
reiterate arguments previously addressed by Magistrate Judge Kaull.
The issues that are dispositive of the recommendation to deny the
Plaintiffs

leave

to

amend

their

complaint

to

add

Sacchetti,

however, are also dispositive of CCC’s motion to dismiss, which was
not

the

subject

of

the

R&R.

Therefore,

because

Plaintiffs’

objections relate to issues that are germane to both the R&R and

15

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
the motion to dismiss, the Court will review de novo the R&R, the
parties’ pleadings, and the applicable case law.
Notably, at the outset, although the Plaintiffs label their
case as one for fraudulent concealment, Magistrate Judge Kaull
rejected that argument, finding they had pled a claim for wrongful
death, to which the two-year statute of limitations applied.
Because neither the discovery rule nor the doctrine of fraudulent
concealment

applied

to

wrongful

death

actions

in

1968,

he

recommended that the Court deny Plaintiffs’ motion to amend as
futile. In their objections, the Plaintiffs argue that, because the
Supreme Court of Appeals later extended the discovery rule and
fraudulent concealment doctrine to wrongful death actions, the
Court should retroactively apply them in this case.
CCC contends that, even if retroactively applied, the statute
of limitations would still bar the Plaintiffs’ wrongful death
claim. It also argues that any claim against Sacchetti would fail
because he owed no duty of disclosure to the Plaintiffs.
For the reasons that follow, the Court GRANTS CCC’s motion to
dismiss the claims against it, and DENIES the Plaintiffs’ motion
for leave to add Sacchetti as a defendant as such an amendment
would be futile.

16

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
A.

The Nature of the Plaintiffs’ Claims
Magistrate

Judge

Kaull

determined

that

the

Plaintiffs’

complaint alleged claims of wrongful death or deliberate intent.
At common law, there was no cause of action for wrongful death.
Thus,

“the

right

or

cause

of

action

for

wrongful

death,

if

maintainable, exists under and by virtue of the provisions of the
wrongful death statute . . . .” Baldwin v. Butcher, 184 S.E.2d 428,
429 (W.Va. 1971); see also Miller v. Romero, 413 S.E.2d 178, 181,
(W.Va. 1991) overruled in part, Bradshaw v. Soulsby, 558 S.E.2d 681
(2001) (“In Baldwin . . . we held that no right of action for
wrongful death existed separate and apart from the wrongful death
statute.”). West Virginia’s wrongful death statute, codified at W.
Va. Code § 55-7-5 and § 55-7-6, provides for who may bring such a
suit, the amount and distribution of damages, and the period of
limitation for commencing such an action.
Here, Plaintiffs assert that, due to CCC and Sacchetti’s
fraudulent concealment, they were unable to discover and file a
wrongful

death

action

on

a

timely

basis.

(Dkt.

No.

1-19

(“Defendants deprived plaintiffs of their right to obtain relief
against

defendants

under

West

Virginia’s

wrongful

death

statute.”)). They contend that, “[p]ursuant to W. Va. Code § 55-7-6

17

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
(1967),” they are entitled to $110,000 per deceased coal miner, the
maximum recovery allowed under the statute in 1968. Id. at 56.
The Court agrees that the Plaintiffs’ claims sound in wrongful
death. An allegation of fraud that prevents the bringing of a
wrongful death suit can hardly be said to exist “separate and apart
from the wrongful death statute.” Miller, 413 S.E.2d at 181.
Indeed, any fraud claim in this case is no more than a thinly
veiled argument in support of Plaintiffs’ contention that the twoyear limitation period regarding wrongful death actions should be
tolled based on fraudulent concealment. Nevertheless, tracking
Magistrate Judge Kaull’s R&R, the Court will consider all claims
alleged or potentially alleged in the complaint.
B.

Wrongful Death
When the explosion in the No. 9 mine occurred in 1968, W. Va.

Code § 55-7-6 (1967) provided that “every [wrongful death] action
shall be commenced within two years after the death of such
deceased person.” The Plaintiffs do not dispute that, if their
action is one for wrongful death, the applicable statute of
limitations is two years. As noted earlier, however, they contend
that the statute of limitations was tolled either by the discovery
rule or by the fraudulent concealment doctrine.

18

They further

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
submit that, even if those tolling doctrines were unavailable in
1968, their subsequent adoption in wrongful death actions should be
applied retroactively.
1.

Historical Wrongful Death Statute of Limitations

An action for wrongful death is a statutory creation. As such,
in 1968, and for some time thereafter, West Virginia courts held
that the applicable two-year limitation period was a statute of
repose. In other words, it was an element of the action that could
not

be

tolled

and,

strictly

speaking,

was

not

a

statute

of

limitations. See Lambert v. Ensign Manufacturing Co., 26 S.E. 431,
432 (W.Va. 1896) (“The bringing of the suit within two years . . .
is made an essential element of the right to sue . . . . And it is
made

absolute,

without

saving

or

qualification

of

any

kind

whatever. There is no opening for explanation or excuse. Therefore,
strictly speaking, it is not a statute of limitation.”); see also
Prater v. Norfolk & Western Ry. Co., 1995 WL 493014, at *1 (4th
Cir. 1995) (per curiam).
Moreover, in Rosier v. Garron, Inc., 199 S.E.2d 50, 53-54
(1973), the Supreme Court of Appeals held that West Virginia’s
savings statute, W. Va. Code § 55-2-18, did not apply to actions

19

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
for wrongful death.5 In support of this conclusion, the court
reached back to its decision in Smith v. Eureka Pipe Line Co., 8
S.E.2d 890 (1940), observing:
[T]he saving provision of Code 55-2-18 does not apply to
actions for wrongful death. In the Smith case the Court
reasoned that the two year limitation upon the bringing
of an action for wrongful death is an integral part of
the statute itself and creates a condition precedent to
the bringing of an action which bears no relationship to
statutes of limitation and contains no language that
would justify a joint construction with the statutes of
limitation. The Court in Smith traced the origin of the
saving provision to the revised Code of Virginia of 1819,
which contained a substantially similar provision as that
contained in the Virginia Code of 1849. The provisions of
this section have remained in effect in West Virginia
from the State’s inception until the present time. As
there were no enactments in the United States creating
the right of recovery for death by wrongful act until
after the British Parliament passed Lord Campbell’s Act
in 1846, the Court in Smith reasoned that it is obvious
that the savings section at the time of the original
enactment could not have been intended to include
proceedings for death by wrongful act, as in 1819 there
was no cause of action for wrongful death. The two years
limitation on the bringing of an action for wrongful
death is an integral part of the cause of action, and
statutes in derogation of common law will be strictly
construed.
Rosier, 156 W.Va. at 53-54.

5

The savings statute allows for re-filing a lawsuit that was
originally timely filed if “the action was involuntarily dismissed
for any reason not based upon the merits of the action; or [] the
judgment was reversed on a ground which does not preclude a filing
of new action for the same cause.” W. Va. Code § 55-2-18(a).
20

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Yet again, in 1980, the Supreme Court of Appeals confirmed
that the strict two-year limitation on bringing suits for wrongful
death was a non-tollable condition precedent. Huggins v. Hospital
Board of Monongalia County, 270 S.E.2d 160 (W.Va. 1980). The ruling
in Huggins relied on the precedent established in Lambert, Rosier,
and Smith:
This Court has reasoned that the two year limitation upon
the bringing of an action for wrongful death is an
integral part of the statute itself and creates a
condition precedent to the bringing of an action. The
condition is made absolute and, strictly speaking, is not
a statute of limitations. The time fixed by the statute
creating the right is one of the components entering into
the plaintiff’s right of recovery. Once the statutory
period expires, there remains no foundation for judicial
action. In a preceding [sic] which is barred by the
statute of limitations, however, the basis for relief
continues, but the use of the means of enforcing it may
be barred if the lapse of time is affirmatively asserted
for that purpose. The issue here is whether the action
was properly commenced within two years after the death
of the appellant’s decedent.
Id. at 162-63 (internal citations omitted) (citing Rosier, 199
S.E.2d 50; Smith, 8 S.E.2d 890; Hoover v. Chesapeake & O. Ry. Co.,
33 S.E. 224 (W.Va. 1899); Lambert, 26 S.E. 431).
Still later, in 1991, the Supreme Court of Appeals reinforced
that the discovery rule did not generally extend to wrongful death

21

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
claims.6 In Miller v. Romero, it stated that “[t]he plaintiff’s
argument for extending the time limitations for wrongful death
cases ignores a crucial line of West Virginia case law interpreting
our wrongful death act.” 413 S.E.2d at 180.
It is thus clear that, at the time of the miners’ deaths in
1968, and for some time thereafter, neither the discovery rule nor
the doctrine of fraudulent concealment was available to toll the
two-year limitation on bringing a wrongful death action. Absent
those tolling mechanisms, the instant suit, brought forty-six years
after the explosion, is late by more than forty-four years.
2.

The Discovery Rule as Applied to Wrongful Death Actions

The discovery rule provides that “the statute of limitations
is tolled until a claimant knows or by reasonable diligence should
know of his claim.” Gaither v. City Hosp., Inc., 487 S.E.2d 901,
906 (W.Va. 1997) (citing Syl. Pt. 1, Cart v. Marcum, 423 S.E.2d
644, 645 (W. Va. 1992) overruled in part by Dunn v. Rockwell, 689
S.E.2d 255 (W.Va. 2009)). “The ‘discovery rule’ is generally
applicable

to

all

torts,

unless

6

there

is

a

clear

statutory

The court in Miller did, however, provide an exception to the
two-year limitation for those cases in which “evidence of fraud,
misrepresentation, or concealment of material facts surrounding the
death is presented.” 413 S.E.2d at 183. This exception relates to
the fraudulent concealment doctrine discussed infra.
22

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
prohibition of its application.” Syl. Pt. 2, Cart, 423 S.E.2d at
645. As noted, however, the discovery rule did not apply to
wrongful death claims at the time of the miners’ deaths.
It was not until 2001, thirty-three years after the explosion
at the No. 9 mine, that, in Bradshaw v. Soulsby, the Supreme Court
of Appeals overruled Miller v. Romero and extended the discovery
rule to wrongful death actions. 558 S.E.2d 681. In syllabus points
7 and 8 of Bradshaw, the court applied the discovery rule to
wrongful death actions and clarified the conditions under which the
statute of limitations would commence:
7.

The discovery rule, as set forth in Gaither v. City
Hospital, 199 W.Va. 706, 487 S.E.2d 901 (1997),
applies to actions arising under the wrongful death
act. To the extent that Miller v. Romero, 186 W.Va.
523, 413 S.E.2d 178 (1991) conflicts with this
holding, it is overruled.

8.

In a wrongful death action, under the discovery
rule, the statute of limitation contained in W.Va.
Code, 55-7-6(d) [1992] begins to run when the
decedent’s representative knows or by the exercise
of reasonable diligence should know (1) that the
decedent has died; (2) that the death was the
result of a wrongful act, neglect, or default; (3)
the identity of the person or entity who owed the
decedent a duty to act with due care and who may
have engaged in conduct that breached that duty;
and (4) that the wrongful act, neglect or default
of that person or entity has a causal relation to
the decedent’s death.

Syl. Pts. 7-8, 558 S.E.2d at 683.
23

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Of particular importance to this case, Bradshaw specifically
recognized that the prohibition on the discovery rule’s application
to wrongful death actions had remained in place following Miller.
Id. at 685 (“We must therefore revisit our decision in Miller v.
Romero to determine whether the discovery rule can be used to toll
the 2-year statute of limitation for a wrongful death claim
contained in W.Va. Code, 55-7-6(d).”).

Thus, it is clear that,

until 2001, the discovery rule was unavailable to toll the two-year
limitation on filing a wrongful death action.
3.

Fraudulent Concealment7 Tolling Doctrine as Applied to
Wrongful Death Actions

West Virginia had recognized that fraudulent concealment could
toll a limitation period well before 1968. See, e.g., Syl. Pt. 5,
Vanbibber v. Beirne, 6 W.Va. 168 (W.Va. 1873). In Hundley v.
Martinez, the Supreme Court of Appeals reviewed a series of its
prior rulings applying the fraudulent concealment doctrine to
medical negligence cases, and concluded that “the statute of
limitations begins to run when the fraud is penetrated and the

7

As discussed below, the Plaintiffs allege fraudulent
concealment as a stand alone cause of action in their complaint.
Nonetheless, in their objections to the R&R and their response to
CCC’s motion to dismiss, they embrace fraudulent concealment as a
doctrine that would toll the two-year limitation period should the
Court conclude that their claims sound in wrongful death.
24

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
injury is discovered or when, by the exercise of reasonable
diligence, it should have been discovered.” 158 S.E.2d 159, 165
(W.Va. 1967).
Nonetheless, as late as 1980, in Huggins, the Supreme Court of
Appeals

made

it

clear

that

no

tolling

doctrines,

including

fraudulent concealment, applied to the two-year limitation on
wrongful death actions as that limitation was a statute of repose
and a condition precedent to bringing suit. 270 S.E.2d at 162-63
(“The condition is made absolute and, strictly speaking, is not a
statute of limitations. The time fixed by the statute creating the
right is one of the components entering into the plaintiff’s right
of recovery.”).
In fact, it was not until 1991, in Miller, that the Supreme
Court of Appeals, in response to a certified question, first
extended the tolling doctrine of fraudulent concealment to wrongful
death actions.
The question certified was:
In a medical malpractice case, is the wrongful death
statute of limitations tolled by the allegation of
fraudulent concealment on the part of the defendant
and/or failure on the part of the plaintiff to discover
the cause of the decedent’s death?
The Court’s answer was:

25

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
The two-year period which limits the time in which a
decedent’s representative can file suit is extended only
when evidence of fraud, misrepresentation, or concealment
of material facts surrounding the death is presented.
413 S.E.2d at 179, 183.
Here, in support of their argument that the statute of
limitations was tolled by the doctrine of fraudulent concealment,
the Plaintiffs also rely on W.Va. Code § 55-2-17 (1923), which
provided in pertinent part:
Where any such right as is mentioned in this article
shall accrue against a person who had before resided in
this State, if such person shall, by departing without
the same, or by absconding or concealing himself, or by
any other indirect ways or means, obstruct the
prosecution of such right, . . . the time that such
obstruction may have continued shall not be computed as
any part of the time within which the said right might or
ought to have been prosecuted.
(Dkt. No. 106 at 7 (emphasis added by Plaintiffs)). Plaintiffs
argue that this statute “must be read in pari materia with W. Va.
Code § 55-7-6 (1967) so as to permit the tolling of the statute of
limitations under the circumstances presented.” (Dkt. No. 152 at
7).
This argument is unavailing. None of the cases preceding
Huggins recognized any statutory tolling provisions applicable to
the wrongful death statute. On the contrary, in Rosier and Smith,
the court had emphasized that even the one-year savings statute,
26

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
W. Va. Code § 55-2-18, had no impact on the strict two-year
limitation. Smith’s reasoning as to why the savings clause was
inapplicable is particularly instructive regarding why § 55-2-17 is
inapplicable:
It is, of course, clear that Code, 55-2-18, [the savings
statute,] applies universally to statutes of limitation,
and that it is to be read in pari materia with our other
statutes dealing with that subject matter. It is also
clear that Code, 55-7-5 and 6, under our present
decisions bear no relationship to statutes of limitation,
and contain no language that would justify a joint
construction therewith.
8 S.E.2d at 892.
Clearly, from the time of the miners’ deaths in 1968 until
1991, when the Supreme Court of Appeals decided Miller v. Romero,
the doctrine of fraudulent concealment was unavailable to toll the
two-year limitation on filing wrongful death actions.
4.

Retroactivity
Concealment

of

Discovery

Doctrine

and

Fraudulent

The Plaintiffs next contend that, even if the discovery rule
and

fraudulent

concealment

doctrine

were

unavailable

to

toll

wrongful death cases at the time of the mine explosion, the Court
nevertheless should afford them retroactive applicability in this
case. (Dkt. No. 106 at 6, 8; Dkt. No. 12 at 6). In Bradley v.
Appalachian Power Co., the Supreme Court of Appeals laid out six

27

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
factors that courts should weigh in determining whether a decision
should be afforded retroactivity:
In determining whether to extend full retroactivity, the
following factors are to be considered: First, the nature
of the substantive issue overruled must be determined. If
the issue involves a traditionally settled area of law,
such as contracts or property as distinguished from
torts, and the new rule was not clearly foreshadowed,
then retroactivity is less justified. Second, where the
overruled decision deals with procedural law rather than
substantive, retroactivity ordinarily will be more
readily accorded. Third, common law decisions, when
overruled, may result in the overruling decision being
given retroactive effect, since the substantive issue
usually has a narrower impact and is likely to involve
fewer parties. Fourth, where, on the other hand,
substantial public issues are involved, arising from
statutory
or
constitutional
interpretations
that
represent a clear departure from prior precedent,
prospective application will ordinarily be favored.
Fifth, the more radically the new decision departs from
previous substantive law, the greater the need for
limiting retroactivity. Finally, this Court will also
look to the precedent of other courts which have
determined the retroactive/prospective question in the
same area of the law in their overruling decisions.
Syl. Pt. 5, 256 S.E.2d 879 (W.Va. 1979)(emphasis added); see also
Sitzes v. Anchor Motor Freight, Inc., 289 S.E.2d 679, 683 (W.Va.
1982) (summarizing Bradley factors).
It is not necessary to decide whether the adoption of the
discovery rule and fraudulent concealment doctrine in wrongful
death actions should apply retroactively because, even if the

28

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Bradley factors generally weighed in favor of doing so, their
retroactive application still would not extend to Plaintiffs’ case.
Although the general rule is that “appellate decisions are
presumed to apply retroactively,” BPI, Inc. v. Nationwide Mut. Ins.
Co., 773 S.E.2d 647, 651 (W.Va. 2015), retroactivity does not
extend back ad infinitum but is limited to those “cases pending in
the circuit courts or on appeal.” Richmond v. Levin, 637 S.E.2d
610, 616 (W.Va. 2006). The Supreme Court of Appeals of West
Virginia, like all courts in the country, “adheres to the common
law principle that, as a general rule, judicial decisions are
retroactive in the sense that they apply both to the parties in the
case before the court and to all other parties in pending cases.”
Caperton v. A.T. Massey Coal Co., Inc., 690 S.E.2d 322, 350 (W.Va.
2009) (quoting Crowe v. Bolduc, 365 F.3d 86, 93 (1st Cir. 2004);
see also BPI, 773 S.E.2d at 651 (recognizing that retroactivity is
limited “both to the parties in the case before the court and to
all other parties in pending cases” (quoting Caperton, 690 S.E.2d
at 350)).
Indeed, Richmond unambiguously rejected an argument by the
appellee that retroactive application of a newly pronounced rule of
law would “revive all cases decided before the decision was

29

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
reached.” 637 S.E.2d at 617. The court emphasized that, because
retroactivity was limited to those “cases pending in the circuit
courts or on appeal,” it would necessarily be limited to the narrow
number of “cases pending in the circuit courts or on appeal” at the
time of the decision. Id. Notably, the court stated that it was
“not aware of any prior ‘civil’ decision of this Court that was
made retroactive to cases in which the appeal period had expired.”
Id. at 616-17.
Later decisions of the Supreme Court of Appeals weighing the
third factor of Bradley have recognized the limited reach of
retroactivity. For example, in Sitzes, where the court noted that
retroactivity satisfied the third Bradley factor because “our
statute of limitations . . . limits the class that will benefit by
retroactivity,” that class did not extend beyond potential claims
still viable under the then applicable statute of limitations.
Subsequently, in Richmond, Caperton, and BPI, the court limited
retroactivity to suits actually filed at the time of the decision.
To apply the holdings in Bradshaw and Miller to the wrongful
death claims asserted in this case would reach far beyond the
limits of retroactivity recognized by the Supreme Court of Appeals
- to then pending cases, or, at the outer limit, to cases that, at

30

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
the time of the decision, were still within the applicable statute
of limitations. Consequently, neither the discovery rule nor the
doctrine of fraudulent concealment is retroactively applicable in
this case.
5.

The Discovery Rule would not Toll the Statute of
Limitations in this Case

Even if the discovery rule had been available in 1968 to toll
the running of the statute of limitations in wrongful death
actions, it would not have saved the Plaintiffs’ claims. The
discovery rule tolls the statute of limitations only until “the
decedent’s representative knows or by the exercise of reasonable
diligence should know (1) that the decedent has died; (2) that the
death was the result of a wrongful act, neglect, or default; (3)
the identity of the person or entity who owed the decedent a duty
to act with due care and who may have engaged in conduct that
breached that duty; and (4) that the wrongful act, neglect or
default of that person or entity has a causal relation to the
decedent’s death.” Syl. Pt. 8, Bradshaw, 558 S.E.2d at 683.
Following the explosion in the No. 9 mine, the estates of the
miners filed three separate civil actions that, by their nature,
belie any argument they were unaware that the “death[s] [of the

31

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
decedents] were the result of a wrongful act, neglect, or default.”
Id.
In 1970, the miners’ estates simultaneously filed two civil
actions, the first in federal court in the Western District of
Pennsylvania (dkt. no. 4-3), and the second in state court in
Marion County, West Virginia. In both actions, Plaintiffs accused
CCC of “negligence and willful misconduct in the operation and
maintenance

of

the

legislation

and

Mine

including

regulations

and

violations

that

the

of

mine

explosion

safety

resulted

therefrom,” ultimately causing the miners’ deaths. See Kaznoski v.
Consolidation

Coal

Co.,

368

F.

Supp.

1022

(W.D.

Pa.

1974).

Following four years of discovery, the federal court dismissed the
claims against CCC on the merits. Id. at 1024. The state court also
dismissed with prejudice the claims against CCC, in part in 1974,
and fully in 1975. (Dkt. No. 4-3; Dkt. No. 4-4).
Several of the Plaintiffs then filed a third lawsuit in 1978,
alleging that CCC had breached its settlement agreement by ceasing
recovery efforts and sealing the No. 9 mine. Although this suit did
not involve litigation over the wrongful deaths of the miners, the
complaint

outlines

what

the

Plaintiffs

believed

caused

their

deaths. Specifically, it alleged that CCC had “obstruct[ed] the

32

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Plaintiffs from prosecuting their rights and claims against [CCC]
for its liability in causing said explosion or explosions, and the
consequences resulting therefrom.” (Dkt. No. 4-6 at 5). It further
alleged that CCC “did unlawfully and fraudulently conceal and cause
to be concealed, from the appropriate State and Federal authorities
and from the Plaintiffs, and from the public at large, the cause or
causes of the aforesaid explosion or explosions.” Id. at 5-6
(emphasis added). Finally, the complaint listed multiple ways in
which CCC had allegedly concealed relevant information. Id. at 6-7.
Clearly, as early as 1970, Plaintiffs were aware of a cause of
action for wrongful death against CCC. Any argument that they were
unaware that someone had bypassed the FEMCO alarm until 2008, when
they discovered Layne’s letter, would not alter the outcome; the
Layne letter disclosed information relevant to that issue fully six
years before this suit was filed.
C.

Deliberate Intent
In the R&R, Magistrate Judge Kaull concluded that, in addition

to a claim for wrongful death, the amended complaint asserted
statutory and common law claims for deliberate intent.8 In their

8

CCC’s motion to dismiss never argued that the complaint
presented deliberate intent claims, but contended that Plaintiffs’
claims were solely for wrongful death.
33

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
objections,

the

Plaintiffs

deny

that

their

amended

complaint

includes any claims of deliberate intent, and insist that their
only claim is for fraud. (Dkt. No. 106 at 5; Dkt. No. 152 at 14).
Although the Court has concluded that the Plaintiffs’ claims do not
sound in fraud, it does agree that they have not pleaded a
deliberate intent claim in this case.
Under West Virginia’s deliberate intent statute, an employee
may

collect

damages

beyond

those

provided

under

the

state’s

workers’ compensation system:
. . . If death results to any employee from the
deliberate intention of his or her employer to produce
the injury or death, the representative of the estate may
recover under this chapter and bring a cause of action,
pursuant to section six, article seven of chapter
fifty-five of this code, against the employer, as if this
chapter had not been enacted, for any excess of damages
over the amount received or receivable in a claim for
benefits under this chapter. To recover under this
section, the employee, the employee’s representative or
dependent, as defined under this chapter, must, unless
good cause is shown, have filed a claim for benefits
under this chapter[9].

9

There is no allegation in the case that the Plaintiffs filed
a claim for workers’ compensation benefits, which, according to §
23-4-2(c), would be a prerequisite to any deliberate intent
recovery.
34

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
W. Va. Code § 23-4-2(c) (emphasis added); see also Reynolds v.
Consol of Kentucky, Inc., 2010 WL 3522130, at *4-5 (S.D.W.Va. 2010)
(outlining elements of a deliberate intent action).
Relevant to any deliberate intent claim is the fact that
neither Sacchetti nor CCC employed the Plaintiffs’ decedents — a
fact the Plaintiffs acknowledge in their objections. See Dkt. No.
152 at 13 (“Given that neither Consolidation Coal Company nor
Leonard Sacchetti were the plaintiffs’ employer, or acting under
the direction of the plaintiffs’ employer, neither fall within the
ambit of the ‘deliberate intent’ scheme.”).
Both the complaint and the proposed amended complaint allege
that the miners who died in the No. 9 mine were employed by
Mountaineer Coal Company, and that Plaintiffs were deprived of the
“right to file a common law deliberate intention [sic] against
their employer, Mountaineer Coal Company.”

(Dkt. No. 1-19 at 22;

Dkt. No. 64-1 at 18). Furthermore, “[t]he law presumes that two
separately incorporated businesses are separate entities and that
corporations are separate from their shareholders.” Southern Elec.
Supply Co. v. Raleigh Cty. Nat. Bank, 320 S.E.2d 515, 523 (W.Va.
1984).

35

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Accordingly, the Plaintiffs cannot pursue a deliberate intent
action; and, even if they could, pursuant to Fed. R. Civ. P.
12(b)(6), they would be subject to dismissal because neither
Sacchetti nor CCC employed the miners. For that reason, the Court
REJECTS that portion of the R&R construing the Plaintiffs’ claims
as alleging deliberate intent. Nevertheless, the Court concurs with
the

recommendation

deliberate

intent

in

the

would

R&R

have

that
been

any
barred

potential
by

the

claims

of

statute

of

limitations.
D.

Fraud and Fraudulent Concealment
The Plaintiffs object to the recommendation in the R&R that

the Court reject the argument that their claim is one for fraud or,
more accurately, fraudulent concealment. See Dkt. No. 64-1 at 15.
1.

Fraud and Fraudulent Concealment Actions

There are two identically named yet legally distinct concepts
at

play

when

considering

fraudulent

concealment

actions.

As

discussed earlier, fraudulent concealment is a tolling doctrine
recognized in West Virginia law; it also may be a cause of action
that in some circumstances stands alone. When addressing fraudulent
concealment as a cause of action, both parties have relied on
precedent relating to fraudulent concealment as a tolling doctrine.

36

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Although they may share similar traits, these doctrines are legally
distinct. While West Virginia has significant case law discussing
the tolling doctrine of fraudulent concealment, significantly less
case law exists discussing what constitutes a cause of action for
fraudulent concealment in West Virginia.
It

must

be

remembered

that,

at

its

core,

fraudulent

concealment is a form of fraud. To succeed on a fraud claim, a
plaintiff in West Virginia must prove the following elements: “(1)
that the act claimed to be fraudulent was the act of the defendant
or induced by him; (2) that it was material and false; that
plaintiff relied on it and was justified under the circumstances in
relying upon it; and (3) that he was damaged because he relied on
it.” Trafalgar House Const., Inc. v. ZMM, Inc., 567 S.E.2d 294, 300
(W.Va. 2002) (quoting Syl. Pt. 1, Lengyel v. Lint, 280 S.E.2d 66
(W.Va. 1981)); see also
(W.Va.

1998).

concealment

of

Kessel v. Leavitt, 511 S.E.2d 720, 752

Fraud

by

concealment,

facts

by

one

with

however,

knowledge

or

“involves
the

means

the
of

knowledge, and a duty to disclose, coupled with an intention to
mislead or defraud.” Quicken Loans, Inc. v. Brown, 737 S.E.2d 640,
654 (W.Va. 2012) (quoting Trafalgar, 567 S.E.2d at 300). Notably,
fraudulent concealment requires “active concealment of information

37

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
from a party with the intent to thwart that party’s effort to
conduct an investigation.” Kessel, 511 S.E.2d at 753.
A serious problem with the Plaintiffs’ claim of fraudulent
concealment is that it is unclear whether such a cause of action
exists in West Virginia where a wrongful death is involved. The
limited

circumstances

in

which

West

Virginia

has

recognized

fraudulent concealment as a cause of action do not include wrongful
deaths

cases.

fraudulent

Virtually

concealment

as

every
a

West

cause

of

Virginia
action

case
has

alleging

involved

a

commercial transaction, the majority of which are real estate sales
involving failure to disclose latent defects.10 There appears to be
only one case of fraudulent concealment that does not involve a
business or commercial transaction.

That case is distinguishable

from the case at bar, however, and is unavailing to the Plaintiffs.
In Kessel v. Leavitt, the Supreme Court of Appeals concluded
that the defendants had fraudulently concealed information from a

10

See, e.g., Kassab v. Ellis, 2013 WL 6152416 (W.Va. 2013)
(failure to disclose latent property defects); Logue v. Flanagan,
584 S.E.2d 186 (W.Va. 2003) (home vendor’s failure to disclose
latent construction defects); Trafalgar House Const., Inc. v. ZMM,
Inc., 567 S.E.2d 294 (W.Va. 2002) (same); Darrisaw v. Old Colony
Realty Co., 501 S.E.2d 187 (W.Va. 1997) (same); Teter v. Old
Colony, 441 S.E.2d 728 (W.Va. 1994) (same); Thacker v. Tyree, 297
S.E.2d 885 (W.Va. 1982) (same).
38

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
father regarding the status and whereabouts of his child and the
child’s

mother.

misinformation

511

and

S.E.2d

omissions

720,
had

755-56.
prevented

The
the

defendants’
father

from

establishing a relationship with his child or preventing the
child’s eventual adoption by a Canadian couple. Id. at 735-38.
Notably,

the

defendants’

fraudulent

concealment

had

not

prevented the plaintiff from bringing a different cause of action,
but was relevant to the loss of his ability to “demonstrate his
commitment to the responsibilities of parenthood so as to permit
him to establish and maintain a relationship with [the child],”
which is not a cause of action in its own right.

Id. at 751.

Given that virtually every case in West Virginia in which
fraudulent concealment presented as a cause of action involved
contracts, real estate sales, or other business transactions,
Kessel stands alone. Indeed, the court noted the unusual nature of
Kessel’s claim:
[W]e now look to [Kessel’s] specific cause of action:
whether the defendants are liable to [Kessel] for their
alleged fraudulent concealment of information in response
to inquiries about the post-birth whereabouts of his son.
We observe that not only is this asserted cause of action
novel to the jurisprudence of this State, but it appears
that the courts of no other states have addressed
directly whether such a claim may be maintained.

39

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Kessel, 511 S.E.2d at 754. The Court, therefore, adopts Magistrate
Judge Kaull’s recommendation that the Plaintiffs have not pleaded
a cause of action for fraudulent concealment, but rather have
asserted the fraudulent concealment doctrine to toll their real
claim for wrongful death.
2.

Statute of Limitations

Even if Plaintiffs had stated a valid claim of fraudulent
concealment, the two-year statute of limitation barred the claim as
to

CCC.

See

W.

Va.

Code

§

55-2-12

(2016).

The

statute

of

limitations begins in a fraud action when:
the plaintiff knows, or by the exercise of reasonable
diligence, should know (1) that the plaintiff has been
injured, (2) the identity of the entity who owed the
plaintiff a duty to act with due care, and who may have
engaged in conduct that breached that duty, and (3) that
the conduct of that entity has a causal relation to the
injury.
Dunn v. Rockwell, 689 S.E.2d at 255, 268 (W.Va. 2009)(quoting Syl.
Pt.4, Gaither, 487 S.E.2d at 909). Generally, a cause of action is
discovered, and the statute of limitations runs, “at the same time
that the actionable conduct occurs.” Id. Discovery of the action is
an objective test, focusing on “whether a reasonable prudent person
would have known, or by the exercise of reasonable diligence should
have known, of the elements of a possible cause of action.” Id.

40

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
The relevant question here is when did the Plaintiffs discover
the alleged fraudulent concealment by CCC. They contend that CCC
has concealed the truth since the time of the explosion. But the
record is clear that the Plaintiffs discovered their cause of
action for fraudulent concealment much earlier than two years prior
to the filing of this law suit.
Multiple incidents in the past triggered the running the
statute of limitations. In 1980, MSHA filed a report concluding,
among other things, that the FEMCO alarm controlling the Mod’s Run
fan was inoperable at the time of the explosion, and that the fan
alarms had been blocked out in the past. (Dkt. No. 4-2 at 4, 5).
This report would have put the Plaintiffs on notice that CCC had
not disclosed all the information related to the cause of the
explosion, at which point they could have filed a claim.
Layne’s letter, which the Plaintiffs acknowledge discovering
in 2008 (dkt. no. 1-19 at 13), put them on notice that an
electrician working at the Mine had informed Layne that someone had
bypassed the FEMCO alarm:
On Sept. 5, 1970, 12am-8am 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
41

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
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.
Id. Upon discovering this letter, the Plaintiffs were aware that
CCC had not disclosed all of the facts surrounding the explosion,
including that the fan had been physically bypassed, or that
certain individuals might have been involved in bypassing or reenergizing the fan.
Tellingly, Plaintiffs’ complaint alleges that CCC “failed to
disclose . . . . the disabling of the FEMCO alarm system for the
Mod’s Run fan by defendants,” and that “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.” (Dkt. No. 1-19 at
19). The Plaintiffs either knew or should have known these facts no
later than 2008. They have not alleged any change of circumstances
between the time they discovered the Layne letter and the filing of
the instant lawsuit, except for the discovery of the identity of
Sacchetti as the unnamed electrician, and the allegation that he
and Kovarbasich had disabled the FEMCO alarm.

42

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Neither

of

those

facts,

however,

was

necessary

for

the

Plaintiffs to assert a claim of fraudulent concealment against CCC.
Upon discovery of the Layne letter in 2008, they were aware that
someone had disabled the FEMCO alarm and that CCC had never
disclosed such information. The specific identity of the person who
had disabled the alarm was irrelevant to a claim of fraudulent
concealment, which the Plaintiffs could have asserted once they
knew CCC had not disclosed that the FEMCO alarm had been bypassed.
To sum up, the Plaintiffs knew in 2008 “(1) that [they] ha[d]
been injured, (2) that [CCC] owed them a duty to act with due care,
and [] may have engaged in conduct that breached that duty [by
failing to disclose the disabling of the FEMCO alarm], and (3) that
the conduct of [CCC] ha[d] a causal relation to the injury.” Dunn,
689 S.E.2d at 265. Thus, at the very latest, the discovery of
Layne’s letter in 2008 triggered the running of the statute of
limitations.11

11

It should also be noted that, as discussed earlier, in 1978
several Plaintiffs had alleged that CCC “did unlawfully and
fraudulently conceal and cause to be concealed, from the
appropriate State and Federal authorities and from the Plaintiffs,
and from the public at large, the cause or causes of the aforesaid
explosion or explosions.” (Dkt. No. 4-6 at 5-6 (emphasis added)).
43

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
Consequently, even if the Court construed their claim as a
cause of action for fraudulent concealment rather than wrongful
death,

Plaintiffs

were

on

notice

of

any

alleged

fraudulent

concealment no later than 2008, approximately six years before they
filed

this

action,

and

likely

much

earlier.

Their

claim,

therefore, is barred by the statute of limitations.
3.

Failure to State a Claim as to Sacchetti

The Court also notes that, had the proposed amended complaint
asserted a claim for fraudulent concealment against Sacchetti, it
would have failed to state a valid claim. As Magistrate Judge Kaull
recognized in the R&R, the Plaintiffs have cited no case law or
statute holding that a “mine electrician has a duty to disclose
information regarding his own misconduct to potential litigants and
open himself up to civil liability and possible criminal charges
(and the [Magistrate] Court’s search has turned up no such case or
statutory law).” (Dkt. No. 99 at 25). Nor has this Court found a
case or statute establishing such a duty. Consequently, because
Sacchetti owed no duty to the Plaintiffs to disclose his alleged
involvement in disabling the FEMCO alarm on the Mod’s Run fan, any
claim of fraudulent concealment against him must fail. See Quicken
Loans, 737 S.E.2d at 654 (noting that fraudulent concealment

44

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
“involves the concealment of facts by one with knowledge or the
means of knowledge, and a duty to disclose, coupled with an
intention to mislead or defraud” (emphasis added)).
IV. CONCLUSION
In summary, the Court concludes that:
1)

The claims brought in the Plaintiffs’ complaint and
proposed amended complaint sound in wrongful death;

2)

The discovery rule and fraudulent concealment doctrine
did not apply to wrongful death actions in 1968;

3)

The subsequent adoptions of the discovery rule and
fraudulent concealment doctrine as to wrongful death
actions are not retroactively applicable to this case;

4)

The Plaintiffs have not asserted a deliberate intent
claim and, even if they had, such would be barred by the
statute of limitations;

5)

Although West Virginia has recognized fraudulent
concealment as a stand alone cause of action in limited
circumstances, it is not applicable in this case;

6)

Even if Plaintiffs had asserted a valid fraudulent
concealment cause of action against CCC, it would have
been barred by the statute of limitations; and

7)

No fraudulent concealment cause of action would apply to
Sacchetti, who owed the Plaintiffs no duty to disclose.

Consequently, for the reasons discussed, the Court:
•

ADOPTS the R&R in its entirety (dkt. no. 99), except for
its

recommendation

that

the

Court

find

that

the

Plaintiffs’ complaint alleges a deliberate intent claim;
45

MICHAEL, ET AL. V. CONSOLIDATION COAL CO.

1:14CV212

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 99]
AND GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 4]
•

DENIES the Plaintiffs’ motion to amend the complaint
(dkt. no. 64) to add Sacchetti as a defendant because
such amendment would be futile;

•

DENIES as MOOT Consolidation Coal Company’s motion to
strike the amended complaint (dkt. no. 68);

•

GRANTS Consolidation Coal Company’s motion to dismiss
(dkt. no. 4); and

•

DISMISSES WITH PREJUDICE all claims in this case against
Consolidation Coal Company.

It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record and to enter a separate judgment order.
DATED: March 31, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

46