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Lawsuit filed in Boone County against West Virginia American Water

Fred Pace fpace@civitasmedia.com

March 2, 2014

MADISON – West Virginia American Water Company filed a notice in Boone County Circuit Court asking for a lawsuit to be removed and sent to U.S. Bankruptcy Court.


The lawsuit was filed on Feb. 19, 2014, by The Warren McGraw Law Firm, John Kennedy Bailey Law, Grant & Eisenhoffer, P.A., and Cook, P.C. as counsel for the plaintiffs Little Bo Peep Daycare, Kids R Us Daycare, Pauline’s House of Curls, June Gurski and Paula Miller.


The lawsuit is related to a Jan. 9, 2014, chemical leak when an estimated 10,000 gallons of crude MCHM leaked from Freedom Industries storage tanks into West Virginia American Water’s intake facility along the Elk River. More than 300,000 residents in parts of nine counties, including Boone County, were without tap water for days, and many still are wary of using the water.


The lawsuit claims water was not usable and forced the businesses to close down, which resulted in lost revenue and additional expenses for the purchase of bottled water.


Others suffered lost income, annoyance, inconvenience, additional expenses and other damages.


West Virginia American Water Company owed a duty to the plaintiffs and others to exercise reasonable care in conducting business to ensure that toxic chemicals do not contaminate the public water supply, and breached its duty by failing to exercise reasonable care, the complaint said.


The lawsuit alleges negligence, public nuisance and private nuisance by West Virginia American Water Company.


More than 50 complaints have been filed in various state and federal courts related to the chemical spill.


In those complaints, they say the water company “owed a duty to the plaintiffs to establish and maintain adequate and suitable facilities, safety appliances and other suitable devices with respect to its public service to furnish its customers water for domestic use which is pure, wholesome, potable and in no way dangerous to the health of the consumer, and to perform such service in a reasonable, safe and secure manner for the convenience of the public.”


The plaintiffs claim West Virginia American Water Company has failed to live up to its end of the deal since the Jan. 9, 2014 spill and resulting water crisis.


Other complaints allege that plaintiffs have “suffered considerable adverse health effects for which he was required to be hospitalized.”


The plaintiffs seek compensatory damages for injuries, medical expenses, physical and mental pain and suffering, infliction of emotional distress as well as general aggravation, annoyance and inconvenience.


Businesses are seeking damages for lost revenue and additional expenses, while individuals are also seeking damages for lost income and other damages.


They also seek attorney fees, pre- and post-judgment interest and other relief.


Others are seeking damages relating to costs and expense of replacing the water and the waste of water, the cost of sewer, emotional distress, humiliation, embarrassment, fear, loss of enjoyment of life, loss of income past and present, medical monitoring, annoyance and inconvenience, expenses for replacing water supply and other related living expenses as well as other damages.


They also seek punitive damages, pre- and post-judgment interest, equitable and injunctive relief.


Jackson Kelly PLLC represents West Virginia American Water Company.


Freedom Industries filed for bankruptcy Jan. 17, 2014.


Some of the cases against Freedom Industries were removed to the U.S. Bankruptcy Court for the Southern District of West Virginia at Charleston.


On Feb. 24, 2014, West Virginia American Water Company filed notice of removal in Boone County Circuit Court to have the Boone County lawsuit also removed to the U.S. Bankruptcy Court saying the civil proceeding is related to the Freedom Industries bankruptcy case. West Virginia American Water Company has not filed for bankruptcy.


The Boone County lawsuit is civil action 14-C-38.