This news story originally provided by The State Journal

Coal Under the Gun

Charleston Firm Suing On Behalf of Residents Who Say Coal Trucks are a Nuisance

By JULIET A. TERRY
jterry@statejournal.com

West Virginia's coal industry is under the gun again on the seemingly never-ending issue of overweight coal trucks.

The Calwell Practice, a Charleston-based law firm, is suing major coal companies on behalf of residents in four counties who complain that coal trucks are a public and private nuisance.

"We would like for the coal and truck industries to know that they are going to be held accountable for damage to the roads, for their lawlessness and the dangers they pose to people they share the roads with," said Julia Bonds, community outreach coordinator for Coal Mountain River Watch, an environmental advocacy group spearheading the coal truck litigation in Kanawha County Circuit Court.

The Calwell Practice filed the Kanawha County case last spring and filed similar lawsuits in Webster, Wyoming and Harrison counties during the summer. Tom White is one of several lawyers at the firm handling the lawsuits. He said the cases have nothing to do with controversial new laws raising the coal truck maximum weights for certain public roads.

"These lawsuits were not precipitated by legislation," White said. "People who live along those (coal-hauling) roads are the ones we're concerned about. This has been going on for years."

But the West Virginia Coal Association sees these lawsuits as just another attack on the coal industry.

"This seems to be another effort by law firms to extract as much from West Virginia businesses as they can," said association President Bill Raney. "This is just another chapter in the effort to further cripple the coal industry in this state."

Terror on the Road

Bonds said coal trucks simply are too big for the roads they traverse.

"You're literally afraid to pull out of your own driveway, and you avoid being put in situations where a truck could run you over," she said. "There are a lot of blind curves, and it poses a big hazard to people who live close to the roads. These trucks are so huge it's hard for them to get around curves without going into the other lane.

"The scariest thing is driving home and seeing nothing in your rear-view mirror but a chrome grill," Bonds said.

The fear and trepidation Bonds described combines with road damage, dust, noise and vibrations from overweight coal trucks to create a massive public and private nuisance, White said.

The trucks interfere with the plaintiffs' private use and enjoyment of their property. They also cause a public nuisance because roads and bridges are damaged to such a degree that they interfere with public safety, particularly the safety of those who live near coal-hauling roads, he said.

Bonds said money awarded in the lawsuit would go to repairing the roads not to individual plaintiffs.

Action Against Coal

White is hopeful the four separate lawsuits can be merged into one class action against coal companies for the nuisance caused by overweight coal trucks.

"We are looking to determine whether there is a proper mechanism to join all four cases under one forum. ... We believe the defense really can't offer a factual basis to dispute their liability," he said. "We did a lot of research before filing this lawsuit."

Bonds said her group's litigation is not trying to eradicate the coal industry from West Virginia. She just wants companies to pay for the damages they cause, and the courts are her only option.

"Our redress is the court system because the coal industry basically owns most of the legislators who make these laws. That's pretty clear with the new legislation," Bonds said. "The politically correct name for 'bribe' is 'campaign contribution.'"

White and Bonds said they are not suing coal truck drivers or trucking companies. Their targets are coal producers and receivers, not transporters.

"We understand the trucking companies have to bid for jobs with the coal companies," Bonds said. "This goes back to the coal companies. It's a situation they created."

White said coal companies pay drivers based on tonnage, not hours worked or miles driven, a practice that forces drivers to weigh down trucks beyond statutory limits to earn a decent wage.

"The companies have truckers over a barrel. The truckers are just trying to make a living ... and under the law the defendants can be held vicariously liable for the truckers," he said.

Vicarious liability usually involves an employer being held responsible for the actions of an employee. In this case, White said the coal companies are responsible for the actions of trucking companies transporting their goods.

But Raney said White has oversimplified contractual arrangements between transportation and coal companies.

"There are hundreds of different arrangements out there. ... To say that all are paid by the ton, I'm not sure (the plaintiffs) have any idea about this," Raney said. "They are capitalizing on an emotional argument."

Why Blame Just Coal?

Charleston lawyer Mychal Schulz of Dinsmore & Shohl LLP is defending Kanawha River Terminals and Progress Fuels Corp., two companies that receive coal shipments, against the coal truck lawsuit.

Like Raney, Shulz sees the litigation as a thinly veiled attack on a select industry, not a crusade for road repairs.

"It is an attack on the coal industry. They're not going after just the producers, but they're also attacking the receivers of the world, companies that have the deep pockets in the industry. They're not going after the truckers because they are smaller companies," Schulz said. "... The mere fact that (class-action status) is their goal is indicative of the fact that this is an attack on the industry."

Schulz questioned how the plaintiffs could attribute the nuisance of truck traffic to just one kind of business, excluding other industries that transport goods on the targeted roads.

"To what extent is the dust, noise or rumbling attributable to the mere fact that it is a coal truck, or an overweight coal truck, and how is it different from regularly loaded trucks or those of another industry?" he said.

Raney said if lawyers who pursue these kinds of lawsuits against the coal industry truly had a resolution at heart, coal companies and the legal community could have reached an agreement long ago about how to address road and noise problems without decimating the coal industry.

"I was told by a lawyer years ago that there was not interest in finding a solution to this problem without resorting to litigation. He said all he needed were a couple of suits filed in the manner such as this to make a handsome living in the course of the year," Raney said. "... It's remarkably convenient that these lawyers have the best intentions for West Virginia so much at heart that they have tried to identify the larger employers in areas and named them in this lawsuit.

"It's really frustrating for people who show up at these mines every day and have people consistently trying to take their jobs."