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State ex rel. American Electric Power Co. v. Nibert

ELR Citation: 46 ELR 20037
Nos. 15-0819, (W. Va., 02/10/2016)

West Virginia's highest court held that individuals' lawsuit against a power company for injuries they allegedly incurred due to their exposure to coal combustion waste may go forward in the West Virginia courts even though the vast majority of plaintiffs live outside the state. Of the 77 named plaintiffs, approximately 9 plaintiffs are West Virginia residents; the remaining plaintiffs are primarily residents of Ohio and Kentucky, while a few reside elsewhere. The power company filed a motion to dismiss based upon forum non conveniens. It argued that because most of the plaintiffs are not residents of West Virginia and because the plaintiffs' cause of action, i.e., exposure to coal waste and resultant injuries, accrued in Ohio and not in West Virginia, dismissal of the case pursuant to the forum non conveniens statute was proper. The lower court denied the motion, concluding that West Virginia is not such an inconvenient forum as to require trial of the case elsewhere. The court further expressed concern that dismissal of the case would deprive West Virginia residents of their constitutional right to pursue their claims against the defendants in a West Virginia court and simultaneously treat nonresidents differently by depriving nonresidents of rights afforded to West Virginia residents. The court also noted that, to the extent that Ohio law might govern the parties' dispute, the court regularly applies Ohio law in cases over which it presides given its proximity to the Ohio border. The power company then filed the instant motion for a writ of prohibition. But the high court ruled that the lower court adequately considered and applied the statutory forum non conveniens factors in refusing the company's motion to dismiss.