Bluefield Daily Telegraph, Bluefield, WV

WV State News

July 17, 2012

Court: W.Va. justices must rule on MSHA liability

MORGANTOWN — A federal appeals court said Tuesday the state Supreme Court should decide whether Mine Safety and Health Administration inspectors can be held liable for coal miners’ deaths, calling it “a matter of exceptional importance for West Virginia.”

The U.S. 4th Circuit Court of Appeals in Richmond, Va., said it found no case law, constitutional authority or state statute to definitively answer what it called “a pure question of state law, which has not been squarely addressed.”

The lawsuit was filed in April 2010 by the widows of miners Don Israel Bragg and Ellery Elvis Hatfield. The men died when they were unable to escape a January 2006 conveyer belt fire at Massey Energy’s Aracoma Alma No. 1 mine.

A faulty ventilation system caused smoke from the fire to flood the escape route, reducing visibility. The miners also struggled to find an unmarked personnel door in the dark and tried to use their breathing devices but lacked the training to properly activate them.

Ten men made it out alive, but Bragg and Hatfield died of carbon monoxide poisoning. Their widows accused MSHA of negligence, arguing the inspectors who’d failed to do their jobs before the fire should held be liable under state law.

But U.S. District Judge John Copenhaver dismissed the case last year, saying inspectors can’t be deemed negligent under state laws as they are currently written.

Copenhaver said he could not conclude the current statute “would impose negligence liability on a ‘private individual under like circumstances’ to the MSHA inspectors.” Essentially, he reasoned, if a private party can’t be held liable, neither can federal inspectors.

The three-judge appeals panel said the state’s high court should now decide if a private party would be liable if a death resulted from a negligent inspection.

“The question ... appears to be a matter of exceptional importance for West Virginia,” the order said.

MSHA didn’t immediately comment on the ruling.

An internal review after the fire, however, acknowledged that inspections of the mine had been insufficient. In late 2005, for example, the agency issued 95 citations for safety violations but failed to require corrective actions.

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