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Aracoma fire survivors win round in Massey court battle

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    Aracoma fire survivors win round in Massey court battle Charleston Gazette By Ken Ward Jr. February 1, 2010 CHARLESTON, W.Va. -- Survivors of the 2006 fire at
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      Aracoma fire survivors win round in Massey court battle
      Charleston Gazette
      February 1, 2010
       

      CHARLESTON, W.Va. -- Survivors of the 2006 fire at the Aracoma Alma No. 1 Mine have won a major round in their court battle with Massey Energy.

      Late last week, Logan Circuit Judge Roger L. Perry ruled that nine miners who escaped the fire had proven four of the five key elements to making a case against Massey's Aracoma Coal Co. subsidiary.

      In a series of three rulings issued Jan. 27, Perry also declined to throw out the miners' effort to sue the Massey parent company over the fire.

      Two miners, Ellery Hatfield and Don Bragg, died in the Jan. 19, 2006, fire. Their families settled a lawsuit filed against Aracoma Coal. Details of the deal have not been disclosed.

      Nine miners who escaped the fire also have sued Massey and Aracoma. Generally, they allege that inhaling smoke from the fire caused long-term health concerns, and that the experience has caused them to suffer physical and emotional injuries.

      In order to sue their employer, Aracoma Coal, successfully, the miners must meet the five-part test spelled out in West Virginia's "deliberate intent" statute. Those parts include: There was an unsafe working condition that could cause death or injury, the employer knew of that condition and the risk it posed, the unsafe working condition was a violation of state or federal or industry standards, the employer intentionally exposed workers to that unsafe condition, and the employee suffered serious injury as a result.

      Perry ruled that the miners had met the first four parts of that test, citing federal and state citations and Aracoma Coal's guilty plea to criminal mine safety violations that caused the fire and the fatalities.

      "Aracoma's conduct in this case is clear and uncontroverted," Perry wrote. "Given the voluntary admissions of guilt, it is clear not only that Aracoma acted with deliberate intent regarding the unsafe working conditions in its coal mine, it acted with criminal intent."

      Among other findings, Perry noted that the company's expert witness in the case, Joseph Overbay, testified in a deposition that he would not contradict the state or federal findings or any of the wrongdoing Aracoma pleaded guilty to in its deal with federal prosecutors.

      Under Perry's ruling, the miners now have to prove only one other element to make their case against Aracoma Coal: That they suffered serious injury in the fire.

      And the judge also rejected the company's argument that the miners could not, as a matter of law, prove that they had been seriously injured. That allows lawyers for the miners to take that issue to a jury and seek damages from Aracoma and from Massey.

      In allowing the miners to pursue their case against the Massey parent company, Perry noted a widely publicized Oct. 15, 2005, memo in which Blankenship told mine superintendents to ignore other issues and "run coal."

      Massey has pointed to a follow-up memo dated Oct. 26, 2005, in which Blankenship said the earlier memo should not have been misconstrued to mean that safety was a "secondary responsibility."

      But Perry ruled that the second memo could be used as evidence to try to convince a jury that Blankenship, as CEO of Massey, was controlling day-to-day matters at the Aracoma Mine.

      "The fact that the second memo needed to be transmitted supports the contention that Aracoma management would have received the first memo and taken action upon the directives of the memo. The Court does not herein find that Mr. Blankenship exercised inappropriate control over Aracoma, but that such an interpretation is possible," the judge wrote.
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