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Court ruling clears way for Aracoma widows' suit against MSHA

CHARLESTON, W.Va. -- The state Supreme Court on Tuesday paved the way for the widows of two miners killed in the 2006 Aracoma Mine fire to pursue their lawsuit against the U.S. Department of Labor over lax enforcement of federal mine safety standards at the operation.

In a 5-0 ruling, the justices said that a private party conducting mine inspections is liable for the wrongful death of a miner resulting from that private party's negligent inspection.

The decision allows Delorice Bragg and Freda Hatfield to pursue their suit against the labor department's Mine Safety and Health Administration, which has publicly conceded major inspection and enforcement lapses at the Aracoma operation.

"A private inspector who inspects a work premises for the purpose of furthering the safety of employees who work on said premises owes a duty of care to those employees to conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession," said the ruling, written by Justice Robin Davis.

Bruce Stanley, a lawyer for the Bragg and Hatfield families, said that decision "marks another step in the widows' continuing efforts to bring to justice all those responsible for the senseless disaster at Aracoma.

"The conscious decision of coal companies to ignore the most basic of mine safety laws and instead just run coal should not and cannot excuse government regulators from their independent responsibility to enforce those laws, regardless of the prevailing political climate or perceived economic pressures," Stanley said. "Hopefully, the threat of a private suit will serve as an incentive for them to do their jobs instead of turning their heads."

Continuation of the suit could reveal more information about serious MSHA problems related to the fire and, eventually, to the deaths of 29 miners at Massey Energy's Upper Big Branch Mine in an April 2010 explosion

During oral argument last October, Stanley told the justices that MSHA inspectors had become "too cuddly" with Massey officials and may have "looked the other way" when they found safety violations at Aracoma.

MSHA referred questions about the Supreme Court ruling to the U.S. Department of Justice, where officials did not immediately respond to a request for comment.

The case stems from the Jan. 19, 2006, fire at Massey Energy's Aracoma Alma No. 1 Mine in Logan County. A crew of workers trying to evacuate the underground tunnels ran into thick black smoke in their primary escape tunnel, and was forced to try find another way out. Two workers, Don Bragg and Ellery Hatfield, became separated from the group, got lost, and eventually succumbed to the smoke.

While MSHA cited a variety of serious violations that led to the deaths - and Massey subsidiary Aracoma Coal Co. pledged guilty to criminal violations - an agency "internal review" report also documented major lapses by MSHA officials.

Among other things, the internal review concluded MSHA officials did not identify serious violations or require them to be fixed. The review also raised questions about "conflicts of interest" among MSHA officials charged with enforcing safety requirements at Massey operations."

"The team members are unaware of a similar situation in which health and safety hazards were so prevalent, and conditions in the mine so deplorable, yet MSHA personnel at so many levels failed to follow established agency policies and procedures which are designed to provide that coal mines be fully and effectively inspected," said the MSHA internal review, release in June 2007.

Citing MSHA's failures, the Bragg and Hatfield families sued MSHA under the federal Tort Claims Act, alleging federal officials were partly responsible. A suit against Massey was settled, with the terms being kept confidential.

In February 2011, U.S. District Judge John T. Copenhaver threw out the case, concluding that it wasn't allowed because under West Virginia law a private person in circumstances similar to MSHA's would not have been held liable. Under the FTCA, the federal government is liable in the same manner, and to the same extent, as private individuals would be in similar situations.

Then, in July 2012, the 4th U.S. Circuit Court of Appeals said it found "no clear controlling West Virginia precedent" on the issue, and asked the state Supreme Court to consider the matter.

In a 24-page ruling, Davis disagreed with federal government lawyers, who argued that, to continue their case, Bragg and Hatfield would have to prove that third-party inspectors - whether private or governmental - had "unreasonably created or increased the risk of injury to their decedent husbands."

Davis wrote that, "a safety inspector owes a duty of care to the employees whose safety the inspection is intended to secure. That is to say, that it is foreseeable that harm is likely to come to such employees if a safety inspection is negligently performed."

Justice Brent Benjamin, whose campaign for the court in 2004 was aided by independent expenditures by then-Massey CEO Don Blankenship, recused himself from the case. Cabell Circuit Judge Paul T. Farrell replaced him.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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