MORGANTOWN, W.Va. (AP) — The widows of two West Virginia coal miners killed in a 2006 fire want the state Supreme Court to rule that private and federal mine safety inspectors can be held legally liable when workers die as a result of their negligence.
Last month, 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" that has yet to be specifically addressed. It urged the high court to decide the question once and for all, calling it "a matter of exceptional importance" for West Virginia.
On Wednesday, lawyers for Delorice Bragg and Freda Hatfield petitioned for that ruling, arguing the justices should explicitly address a matter of public policy and justice. Failure to squarely address the question, they contend, effectively immunizes inspectors who shirk their duties.
"Death is the gravest possible consequence for negligent conduct, and it cries out for judicial recourse" through compensatory and punitive damages in civil cases and fines, penalties and imprisonment in criminal cases, the petition argues.
"It follows that negligent mine inspections that cause a miner's wrongful death warrant the strongest moral condemnation the state and this court can provide."
The case stems from a 2010 lawsuit filed over the deaths of Don Israel Bragg and Ellery Elvis Hatfield, who were unable to escape a fire at Massey Energy's Aracoma Alma No. 1 mine. Massey was later bought by Virginia-based Alpha Natural Resources.
A faulty ventilation system caused smoke from the fire to flood the mine's 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.
U.S. District Judge John Copenhaver dismissed the case, saying inspectors can't be deemed negligent under state laws as they are currently written.
MSHA has not commented on the appellate court's ruling and didn't immediately comment Wednesday on the new petition.
In the Aracoma case, the widows said, MSHA admitted its inspectors' conduct was sub-par, so it should be held liable.
"To hold otherwise would provide an immunity from liability in circumstances where West Virginia can ill afford it," attorney Bruce Stanley argues in the petition. "Recognition of a duty of care, by stark comparison, will serve the public good."
MSHA's review acknowledged that inspections were insufficient before the fire. In late 2005, for example, MSHA issued 95 citations for safety violations but failed to require corrective actions.
The petition said a favorable ruling from the court would also conform with the oft-stated position of legislators.
"It is no mystery, as the West Virginia Legislature has expressly found, that the coal mining industry is the lifeblood of West Virginia's economy, embedded deeply in the fabric of the state and its people," it says. Some 30,000 people work in the industry that has a payroll of nearly $2 billion a year, it argues, and the Legislature has repeatedly recognized "the special need to ensure mine safety and the welfare of miners."
West Virginia, after all, has a long history of mine disasters. The nation's single deadliest occurred near Monongah in 1907, claiming 362 men and boys.
In 1968, an explosion at Farmington No. 9 killed 78 men and led to passage of the federal Coal Mine Health and Safety Act. Nineteen of those who died remain entombed there.
In January 2006, just before the Aracoma fire, 13 men were trapped after an explosion at the Sago Mine. All but one succumbed to carbon monoxide poisoning.
Then, in April 2010, 29 men died when Massey's Upper Big Branch mine exploded. It was the worst U.S. coal mine disaster in four decades.
The petition argues no public policy, statutory or otherwise, suggests that private mine inspectors "should receive special treatment, much less some immunity."
"To the contrary, requiring private mine inspectors to act with reasonable care in the performance of their chosen profession will foster West Virginia's paramount public policy of ensuring mine safety and protecting the miners who work there."