SER American Electric Power v. Hon. David W. Nibert, Judge

784 S.E.2d 713, 237 W. Va. 14, 46 Envtl. L. Rep. (Envtl. Law Inst.) 20037, 2016 W. Va. LEXIS 62
West Virginia Supreme Court·Decided February 10, 2016·No. 15-0819·Published·Cited by 17 cases

Opinions

DAVIS, Justice:

The petitioners herein, American Electric Power Co.j Inc., et al, (collectively, “AEP”), request this Court to issue a writ of-prohibition to prevent the enforcement of an order entered August 5, 2015, by the Circuit Court of Mason County. By that order, the circuit eourt denied AEP’s motion to dismiss based upon forum non conveniens.1 Before this Court, AEP contends that the circuit court erred by refusing to dismiss the underlying complaint pursuant to the forum non conveniens statute, W. Va.Code § 56-1-la (2008) (Repl. Vol. 2012).2 Upon a review of the parties’ briefs, the record designated for appellate consideration, and the pertinent authorities, we deny the requested writ of prohibition. In summary, we find that the circuit court adequately considered and applied the statutory forum non conve-niens factors in refusing AEP’s motion to dismiss on such grounds,

I.

FACTUAL AND PROCEDURAL HISTORY

The instant proceeding originated when the respondents herein, the estate of Bobby Clary, by his administrator Joy Clary, et al. (collectively, “the Plaintiffs”), filed the underlying action against AEP in the Circuit Court of Mason County on August 9, 2014. In their complaint, the Plaintiffs sought damages for injuries they, or their family members, have incurred as a result of their exposure to coal combustion waste from the General James [18]*18M. Gavin Power Plant, the General James M. Gavin Landfill, and associated facilities (collectively, “Gavin Landfill”) in Gallipolis, Ohio. The Plaintiffs allege that they, or the parties they represent, have developed numerous different types of cancer and/or other health problems from their exposure to the coal waste. Specifically, the Plaintiffs claim that such coal waste, or fly ash, contains a variety of toxic metals, including arsenic, mercury, chromium, lead, uranium, cadmium, thallium, and molybdenum. Of the seventy-seven named plaintiffs, approximately nine plaintiffs are West Virginia residents; the remaining plaintiffs are primarily residents of Ohio and Kentucky, while a few reside in still other states.

The Plaintiffs allege that AEP owns and/or operates3 the Gavin Landfill and that its employee and named defendant below, Doug Workman (“Mr. Workman”), specifically directed the employee plaintiffs to work in and around the coal waste and fly ash. The Plaintiffs further allege that Mr. Workman failed to address concerns raised by the employee plaintiffs questioning the safety of coal waste exposure, that they were not provided with protective gear to minimize the effects of such exposure, and that AEP and Mr. Workman intentionally concealed the hazardous effects of the coal waste and exposure thereto. While the Gavin Landfill is located in Ohio, AEP conducts significant business in West Virginia, and Mr. Workman is a West Virginia resident.

In response to the Plaintiffs’ complaint, AEP filed a motion to dismiss based upon forum non conveniens. To support its motion, AEP contended that because most of the Plaintiffs are not residents of West Virginia and because the Plaintiffs’ cause of action, i.e., exposure to coal waste and resultant injuries, accrued. in Ohio, and not in West Virginia, dismissal of the case pursuant to the forum non conveniens statute, W. Va.Code § 56-1-la, was proper. The Plaintiffs replied that any inconvenience resulting from pursuing their claims in West Virginia, rather than in Ohio, was insignificant insofar as the geographical distance between the West Virginia and Ohio courthouses is less than ten miles, the majority of the defendants are amenable to suit in West Virginia, the Plaintiffs have all agreed to litigate their claims in West Virginia, and the vast majority of the case’s witnesses are the Plaintiffs, themselves, who have agreed to make themselves available for depositions and courtroom testimony in West Virginia.

The circuit court held a hearing on AEP’s motion, and, by order entered August 5, 2015, refused AEP’s motion to dismiss based upon forum non conveniens. Applying each of the statutory factors, and rendering findings of fact and conclusions of law as to each,4 the circuit court determined that West Virginia is not such an inconvenient forum so as to require trial of the case elsewhere. The court further expressed concern that dismissal of the case would deprive West Virginia residents of their constitutional right to pursue their claims against the defendants in a West Virginia and simultaneously treat nonresidents differently by depriving nonresidents of rights afforded to West Virginia residents.5 Finally, the court noted that, to the extent that Ohio law might govern the parties’ dispute, the court regularly applies Ohio law in cases over which it presides given its proximity to the Ohio border. From this adverse ruling, AEP seeks extraordinary relief from this Court to prohibit [19]*19the circuit court from enforcing its August 5, 2015, order.

II.

STANDARD FOR ISSUANCE OF WRIT

In this proceeding, AEP requests this Court to issue a writ of prohibition to prevent the circuit court from enforcing its order which denied AEP’s motion to dismiss based upon forum non conveniens. As an extraordinary remedy, this Court reserves the granting of such relief to “really extraordinary causes.” State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted). Accordingly, “[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court., It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Moreover, “this Court will use prohibition ... to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in eases where there is • a high probability that the trial will be completely reversed if the error is not corrected in advance.” Syl. pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), .superseded by statute on other grounds as stated in State ex rel Thornhill Grp., Inc. v. King, 233 W.Va. 564, 759 S.E.2d 795 (2014).

Furthermore, we previously have recognized that cases involving venue determinations entail a high probability of reversal if errors are not corrected at the outset and, thus, are appropriate for extraordinary relief. See State ex rel. Huffman v. Stephens, 206 W.Va. 501, 503, 526 S.E.2d 23, 25 (1999) (“In the context of disputes over venue, such as dismissal for forum non conveniens ... a writ of prohibition is an appropriate -remedy to.

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SER American Electric Power v. Hon. David W. Nibert, Judge, 784 S.E.2d 713, 237 W. Va. 14, 46 Envtl. L. Rep. (Envtl. Law Inst.) 20037, 2016 W. Va. LEXIS 62 (W. Va. 2016).

784 S.E.2d 713 (SER American Electric Power v. Hon. David W. Nibert, Judge) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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