Three families of the 29 miners killed in the Upper Big Branch disaster claim they have not been paid the restitution called for in the Dec. 6, 2011 “non-prosecution agreement” between the government and company, and have filed a complaint in U.S. District Court to enforce it.
The three families are part of the 11 who settled wrongful death claims before the U.S. Attorney’s Office reached the non-prosecution agreement with Alpha Natural Resources, who merged with Massey Energy, the owner of the UBB mine.
The $209 million settlement, in which the government agreed not to pursue criminal charges against the company, called for Alpha “to provide restitution to each of the families of the fallen miners and two individuals affected by the UBB explosion.” (Non-Prosecution Agreement, pg. 1, para. 3).
However, before the non-prosecution agreement, some of the families had settled “wrongful death” claims, which under West Virginia law is separate from a claim of “restitution.”
Restitution and subsequent payments are defined under West Virginia Code §61-11A-4.
Under West Virginia law, the victim’s estate must consent to the restitution. The 11 families never consented to the restitution as required under state law, explained Michael Ranson, attorney for the three families who have brought the complaint against Alpha.
Eleven families settled wrongful death claims with Massey prior to the non-prosecution agreement. Actions for wrongful death claims are defined under West Virginia Code §55-7-5. Under the state’s wrongful death statute, an injured party can recover damages, and the wrongful death action is brought by, and in the name of, “the personal representative of such deceased person who has been duly appointed in this state.” In wrongful death cases a court must award damages that “… seem fair and just, and, may direct in what proportions the damages shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death.”
The complaint, filed Oct. 19, 2012, asks the U.S. District Court for the Southern District of West Virginia to enforce the restitution agreement for families of 11 miners listed in “Appendix C” of the non-prosecution agreement. The lawsuit was brought by Jeffrey Skeens as Administrator for the estate of Grover Skeens; Carolyn Davis on behalf of the estate of Charles Davis; and, Owen Davis on behalf of the estate of Cory Davis.
In explaining the reasoning behind the complaint, attorney Ranson likened it to a case of a drunk driver who agrees in court to pay $50,000 to a family hurt by his driving, “but then says the insurance company paid you $50,000 last year so I’m not paying.”
Eighteen families were treated differently than 11 families, Ranson said. “We settled cases for wrongful death, not restitution,” Ranson said. The 18 families who had not settled, and have received payments of restitution, are free to pursue wrong death claims in addition to the restitution called for under the agreement. But the 11 families have already settled their wrongful death claims, but never received the restitution. “Why should the 18 families be treated differently than then 11 families?” Ranson said. “Why did the government give advantage to the 18 over the 11?”
Page 5 of the non-prosecution agreement also states that $16,500,000 was previously paid out, or “anticipated” to be paid out, as part of the restitution, although the amount is under seal and cannot be verified. But again, Ranson stressed that any money paid by Massey was under wrongful-death claims the families had against the company – not restitution as called for in the agreement.
Other problems have cropped up because the agreement does not define who is “family.” For instance, if a miner has a sister with whom he had no contact, and a common-law wife, a court can award the wrongful death payment to the common law wife. However, in this case, if the restitution check is written to the estate, the sister gets the money, Ranson explained. In a wrongful death case, the court must approve the distribution of the money.
The lawsuit asks the court to recognize the 11 families listed in Appendix C of the Non-prosecution agreement as a “class,” and for an immediate restitution payment of $500,000 to each of the family members listed in Appendix C.
Miners Who Died in Explosion Whose Families Settled Wrongful Death Claims Before the Non-Prosecution Agreement:
Christopher L. Bell Sr.
Charles T. Davis
Cory T. Davis
Richard K. Lane
James E. Mooney
Joshua S. Napper
Grover D. Skeens
Benny R. Willingham
Rex L. Mullins
Edward D. Jones
Joel R. Price
The complaint can be read here: (JeffreySkeens_v_Alpha_FKA_Massey).