Lester et al v. C&J Well Services, Inc et al

Filing 50

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART NOBLE ENERGY, INC.'S MOTION TO DISMISS: Granting in part and Denying in part 14 Motion to Dismiss for failure to State a Claim; granted as to alleged duty of care owed by Noble Energy to Mr. Lester by virtue of permits; and denied as to alleged duty of care owed by Noble Energy to Mr. Lester by virtue of contractor relationship. Signed by Senior Judge Frederick P. Stamp, Jr on 9/28/17. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIMOTHY LESTER and ROBIN LESTER,
husband and wife,
Plaintiffs,
v.

Civil Action No. 5:17CV46
(STAMP)

C&J WELL SERVICES, INC.,
a corporation,
NOBLE ENERGY, INC.,
a corporation,
CONSOL ENERGY, INC.,
a corporation and
CNX GAS COMPANY, LLC,
a limited liability company,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
NOBLE ENERGY, INC.’S MOTION TO DISMISS
I.

Background

This civil action was removed from the Circuit Court of
Marshall County, West Virginia.

The case arises out of injuries

that plaintiff Timothy Lester (“Mr. Lester”) allegedly received
while operating his employer’s water truck on County Route 26 (“CR
26”) in Marshall County.

Mr. Lester’s employer was C&J Well

Services, Inc. (“C&J”), a defendant in this civil action.

Mr.

Lester was driving the truck to deliver water to a gas well pad
owned and operated by a joint venture consisting of defendants
Noble Energy, Inc. (“Noble”), CONSOL Energy, Inc. (“CONSOL”), and
CNX Gas Company, LLC (“CNX”) and, collectively with Noble and
CONSOL, the “joint venturers”).

C&J contracted with the joint

venturers

to

provide

them

with

oil

and

gas

field

services,

including the transportation, delivery, and removal of equipment
and materials to and from the sites of the gas well pads operated
by the joint venturers.
The complaint states that Mr. Lester was driving uphill on CR
26 at the same time two other drivers were operating tanker trucks
hauling fluids to the joint venturers’ well pads.

The plaintiffs

allege that Mr. Lester moved his truck as far to the right as
possible to avoid oncoming traffic but was run off the road by the
two tanker trucks coming from the joint venturers’ well pads in the
opposite direction.

The complaint states that the roadway and

shoulder of CR 26 collapsed, which caused Mr. Lester’s truck to
roll over the guardrail and down a steep embankment, where the
truck struck a tree.
The complaint also states that the joint venturers’ traffic
plan for CR 26 required drivers driving uphill to call ahead over
their radios and drivers driving downhill to respond by yielding to
the uphill drivers.

The complaint alleges, however, that the two

downhill drivers did not yield to Mr. Lester when Mr. Lester
indicated over his radio that he was driving uphill towards the
well pad. The plaintiffs allege that the downhill drivers’ failure
to yield to him is what caused him to run off the road.
The plaintiffs then allege that Mr. Lester sustained severe
and permanent injuries as a result of the accident. The plaintiffs

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further

allege

that

the

joint

venturers’

traffic

plan

was

dangerously deficient because it did not properly regulate the flow
of heavy trucks on CR 26. Additionally, the plaintiffs allege that
the joint venturers were negligent in the maintenance and repair of
CR 26, which allowed the roadway and shoulder to become undercut,
soft, and subject to collapse.
Noble filed a motion to dismiss or, in the alternative, for
judgment on the pleadings.

Noble is named in Count II of the

complaint, which alleges that the joint venturers were negligent
both in the maintenance and repair of CR 26 and in the formulation
and implementation of a traffic control plan for CR 26.

The

plaintiffs base these allegations on two separate duties of care.
First, Count II alleges that the joint venturers had a duty to
maintain and control CR 26 by virtue of the permits issued to them
by the West Virginia Department of Transportation, Division of
Highways (the “WVDOH”).

Second, Count II alleges that the joint

ventures had a duty under West Virginia law to provide Mr. Lester,
an invitee, with a reasonably safe workspace.
The plaintiffs filed a response in opposition to Noble’s
motion to dismiss.
response.

Noble then filed a reply to the plaintiffs’

After a review of the parties’ memoranda and the

applicable law, this Court finds that Noble’s motion to dismiss
must be granted in part and denied in part.

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II.

Applicable Law

In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.

Nemet Chevrolet, Ltd v.

Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”

Id.

(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).

This

Court

also

declines

to

consider

“unwarranted

unreasonable conclusions, or arguments.”

inferences,

Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.

5B Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
1998).

The Rule 12(b)(6) motion also must be distinguished from a

motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.

Id.

For

purposes of the motion to dismiss, the complaint is construed in
the

light

essentially

most
the

favorable
court’s

to

the

inquiry

4

party
is

making

directed

the
to

claim

and

whether

the

allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).

Id. § 1357.

A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Facial

plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).

Detailed

factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.
III.

A.

Discussion

Duty of Care Arising from the WVDOH Permits
The plaintiffs allege that Noble had a duty of care as to CR

26 by virtue of the permits issued to it by the WVDOH.

In its

motion to dismiss, Noble contends that the plaintiffs’ reliance on
the WVDOH permits as a source of legal duty is misplaced.
acquired two sets of permits from the WVDOH.

Noble

The first set

consists of the Encroachment Permits, issued by the WVDOH pursuant
to Section 17-16-6 of the West Virginia Code.1

1

The WVDOH issued

“No opening shall be made in any state or county-district
road or highway, nor shall any structure be placed therein or
thereover, nor shall any structure, which has been so placed, be
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Encroachment Permits to Noble that permitted Noble to construct
access roads to its well pads off of CR 26.

The second set

consists of the Commisioner of Highways’ Oil and Gas Road Policy,
pursuant to Section 17-4-47 of the West Virginia Code,2 the Oil and
Gas Road Bonding Agreement,3 entered into pursuant to the Oil and
Gas Road Policy, and addendums to those permits.
This Court finds that Noble is correct that none of those
permits

transferred

responsibility

for

maintenance, and control of CR 26 to Noble.

the

construction,

The Commisioner of

Highways has “exclusive power over the construction, maintenance
and control of [the state road] system.”

Thacker v. Ashland Oil &

Refining Co., 41 S.E.2d 111, 116 (W. Va. 1946).

Nothing in the

relevant sections of the West Virginia Code or the two sets of
permits does anything to transfer that exclusive control over CR
26, part of the state road system, to Noble.

changed or removed, except in accordance with a permit from the
state road commission or county court, as the case may be.” W. Va.
Code § 17-16-6.
2

“Reciprocal access between state highways and real property
used or to be used for commercial, industrial or mercantile
purposes and reciprocal access between state highways and real
property that is subdivided into lots is a matter of public concern
and shall be regulated by the Commissioner of Highways . . . .”
W. Va. Code § 17-4-47(a).
3

“As a condition of granting access to a state highway, the
commissioner may require the owners of real property developed or
to be developed to provide a bond in an amount the commissioner
determines necessary to compensate the division for improvements to
highway facilities required as a result of the development.”
W. Va. Code § 17-4-47(f).
6

Section XIV of Noble’s Oil and Gas Road Statewide Bonding
Agreement with the WVDOH specifically states that “[n]othing herein
shall be construed to mean that [Noble] shall have any jurisdiction
or control over any public roadways in the state road system.” ECF
No. 14-9 at 3. The Commissioner of Highways’ scheme for permitting
and posting security pursuant to permitting is not intended to
impose

on

Noble

and

other

real

property

obligations as to state-owned roadways.

owners

broad

legal

CR 26 is 5.61 miles long,

and the Oil and Gas Road Statewide Bonding Agreement makes clear
that Noble is not responsible for the entire 5.61 mile length by
virtue of having access roads stemming from it.

Rather, the

permitting and security scheme is simply a means for the state to
ensure that Noble has financial responsibility for damage it causes
to state roads by virtue of its business activity.
Additionally, there is not sufficient evidence supporting the
plaintiffs’ allegation that Noble was negligent in the formulation
and implementation of a traffic plan for CR 26.

The addendum to

the Oil and Gas Road Policy requires that Noble develop and
maintain

a

traffic

plan

but

does

not

impose

any

specific

requirements as to its formulation and implementation.

The only

language in the policy related to a traffic plan is provided in
paragraphs 10 and 11 of the addendum to the policy.
paragraphs provide as follows:
10. The Facilities Owner/Operator shall be responsible
for the development and maintenance of a traffic plan
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Those

which shall be approved by the District Traffic Engineer.
The Facilities Owner/Operator shall be responsible to
provide all signing required for work zones, road
closures, and detours.
11. When Facilities Owner/Operator impedes traffic for
more than one hour, the Facilities Owner/Operator may be
assessed a fine by enforcement personnel of all costs
associated with exceeding the one-hour time limit.
Incidents that require the use of law enforcement or
emergency services personnel are not subject to the onehour time limit.
ECF No. 14-8 at 4.
The traffic plan implemented by Noble is not attached to the
complaint or the motion to dismiss. However, the Court finds that,
even accepting the plaintiffs’ allegations as to Noble’s traffic
plan as true, there is still not sufficient evidence to state a
negligence cause of action arising from the permits. The complaint
alleges that the traffic plan “mandated that heavy trucks laden
with drilling equipment and drilling materials operating on CR26
southbound (uphill) call ahead on their CB radios for the road and
periodically indicate their position along the road.

Heavy trucks

and equipment traveling in the opposite direction (downhill) would
then yield to the southbound traffic.”

ECF No. 1-1 at 3.

Even

accepting this as true, the permits issued to Noble by the WVDOH
specifically state that Noble does not have control of CR 26, a
fact

which

implemented.

is

not

changed

by

any

traffic

plan

that

Noble

Furthermore, the plaintiffs never allege that the

accident occurred near any point of entry to Noble’s well pads.
The existence of a traffic plan does not affect the Court’s finding
8

that Noble did not owe Mr. Lester a duty of care as to all of CR 26
by virtue of any permit to occupy a point of entry on CR 26.
B.

Duty of Care Arising from Parties’ Relationship
The Court does find, however, that Noble may have owed Mr.

Lester a narrow duty stemming from Mr. Lester’s status as an
independent contractor of Noble.

“The owner or occupier of

premises owes to an invitee such as a non-employee workman or an
independent contractor the duty of providing him with a reasonably
safe place in which to work and has the further duty to exercise
ordinary care for the safety of such persons.”

Taylor v. Sears,

Roebuck and Co., 437 S.E.2d 733, 733 (W. Va. 1993) (quoting Sanders
v. Georgia-Pacific Corp., 225 S.E.2d 218, 219 (W. Va. 1976)).

It

is clear that Mr. Lester was an independent contractor of Noble.
However, it is an issue to be developed in discovery whether
Noble’s duty as a premises owner extended to the site of the
accident on CR 26.

Thus, the Court’s dismissal of the plaintiff’s

claim against Noble cannot encompass the potential duty owed by
Noble to Mr. Lester as an independent contractor. Accordingly, the
Court dismisses the complaint against Noble only in part, not in
its entirety.
IV.

Conclusion

For the reasons set forth above, Noble Energy, Inc.’s motion
to dismiss (ECF No. 14) is GRANTED IN PART and DENIED IN PART.

The

motion to dismiss is GRANTED as to any alleged duty of care owed by

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Noble Energy, Inc. to Mr. Lester as to County Route 26 by virtue of
permits to occupy the premises. The motion to dismiss is DENIED as
to any alleged duty of care owed by Noble Energy, Inc. as to Mr.
Lester by virtue of their independent contractor relationship.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

September 28, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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