UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION
In Re: ) Chapter 11 ) WALTER ENERGY, INC., et al., ) Case No.: 15-02741-TOM11 ) Debtors. ) Jointly Administered
AMENDED MOTION FOR RELIEF FROM AUTOMATIC STAY AS TO THE DEBTOR WALTER ENERGY, INC
COMES now Jewel Chaney, (“Chaney”), and moves the Court pursuant to 11 USC §
362(d)(1) for Relief from Stay to permit Chaney to mediate her civil lawsuit, viz Jewel Chaney,
et al v. Jim Walter Resources, et al Case Number 63-CV-2011-900963.00.1 In support of this
Motion, Chaney represents as follows:
1. Chaney filed a wrongful lawsuit in the Circuit Court of Tuscaloosa County,
Alabama on November 18, 2011 against the Debtor, Walter and other Defendants. A copy
of this Complaint is appended as Exhibit “A”;
2. Substantial discovery has been conducted in the state court action and dispositive
motions have been filed by various of the parties;
3. The parties agreed to mediate and on June 26, 2015, the civil action was continued
to allow the parties to do so. A copy of that order is appended as Exhibit “B”;
4. The parties selected Brad Walsh to mediate the case and the case was scheduled for
mediation on August 27, 2015;
1 At this time, Chaney is not requesting relief from stay to prosecute her claims against the Debtor, Walter Energy Inc. (Walter) in state court. Instead, Chaney simply seeks relief to mediate.
Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 1 of 87 5. The Defendant Walter filed its Chapter 11 Petition on July 15, 2015;
6. On July 22, 2015, a suggestion of bankruptcy was filed with the Tuscaloosa County
Circuit Court. A copy of this pleading is appended as Exhibit “C”;
7. Through discovery, Chaney has learned that one of the non-debtor Defendants,
Black Warrior Methane Corporation (“Black Warrior”) possesses insurance which
provides coverage for the claims she asserts in the civil action. A copy of the declaration
page related to this insurance coverage is appended hereto as Exhibit “D”;
8. Chaney has also learned through discovery that Walter Energy is named as
additional insured under the Black Warrior policy.2 A copy of the endorsement reflecting
this status is attached as Exhibit “E”.
9. Chaney desires relief from stay solely for the purpose of allowing her to mediate
her state court action. In the event the mediation is successful, the likely result will be that
the state court action will be dismissed with prejudice as to all Defendants including the
Debtor;
10. Granting relief from stay for purposes of mediation only will have no deleterious
effect on the Debtor, the Debtors estate or the creditors of the Debtor.
11. In determining whether to lift the automatic stay, this court is obliged to balance
the hardship to the creditor, if she is not allowed to proceed with her lawsuit, against
potential prejudice to the debtor, the debtor’s estate and other creditors. In re: Carraway
Methodist Health Systems, 355 B.R. 853 (2006).
2 The insurance carrier for Black Warrior has declined to engage in mediation while its additional insured, Walter is in bankruptcy absent an order granting relief from stay.
Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 2 of 87 12. In the present matter the hardship to Chaney substantially outweighs prejudice to
the debtor and other creditors:
A.) Chaney’s state court action has been pending for nearly four (4) years;
B.) Chaney does not seek relief from stay to liquidate her claim but rather to engage in mediation which was scheduled pre-petition;
C.) If mediation is successful, any agreed upon settlement proceeds will be paid from available insurance and not from the debtor’s estate;
D.) If the mediation is successful the debtors will be relieved of what could be a significant claim;
E.) The mediation is expected to last one (1) day and the cost of the same to the Debtor will upon information and belief be born by the insurance carrier.
WHEREFORE, Chaney prays that this honorable Court will enter an order granting her relief from the automatic stay to proceed with the mediation in the state court action and for such other, further, different or additional relief which it may deem proper.
/s/ Bobby H. Cockrell, Jr. Bobby H. Cockrell, Jr. (COC-008)
/s/ Ginger D. Cockrell Ginger D. Cockrell (COC-009)
OF COUNSEL: COCKRELL AND COCKRELL 1409 University Boulevard Tuscaloosa, Alabama 35401 (205) 349-2009 Email: [email protected]
/s/ Albert G. Lewis Albert G. Lewis, III (LEW-010)
OF COUNSEL: LEWIS, SMYTH & FORD, LLC 611 Helen Keller Boulevard Tuscaloosa, Alabama 35404 (205) 553-5353 Email: [email protected]
Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 3 of 87
/s/ Bryan P. Winter Bryan P. Winter (WIN-028)
OF COUNSEL: WINTER AND MCFARLAND 205 McFarland Circle N. Tuscaloosa, Alabama 35401 (205) 650-1400 Email: [email protected]
Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 4 of 87 ELECTRONICALLY FILED EXHIBIT A 11/18/2011 5:24 PM CV-2011-900963.00 CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA MAGARIA HAMNER BOBO, CLERK IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TUSCALOOSA COUNTY, ALABAMA CIVIL DIVISION
JEWEL CHANEY, as the Administratrix of the Estate of James Luther Chaney, deceased, and
JEWEL CHANEY, individually,
Plaintiffs,
v.
JIM WALTER RESOURCES, INC., an Alabama Corporation;
WALTER ENERGY, INC., a foreign corporation qualified to do business in the State of Alabama;
BLACK WARRIOR METHANE CORPORATION, an Alabama Corporation;
EL PASO CORPORATION, a foreign corporation qualified to do business in the State of Alabama;
EL PASO PRODUCTION COMPANY, INC., a foreign corporation that is a subsidiary of El Paso Corporation;
MINE SAFETY APPLIANCES COMPANY, INC., a foreign corporation qualified to do business in the State of Alabama;
KEITH SHALVEY, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 5 of 87 TRENT THRASHER, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
KEITH PLYLAR, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
PAUL PHILLIPS, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
MILTON ETHRIDGE, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
TY OLSON, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
WILLIAM BURGESS, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
WILLIAM HAROLD JONES, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
ROMIE PENDLETON, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
TOMMY McNIDER, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 6 of 87 JOE STEELE, an Alabama Resident, individually and as an agent, servant and employee of Black Warrior Methane Corp.;
GEORGE RICHMOND, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
ROBERT HOWELL, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
GARY ALLINSON, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
DALE BYRAM, an Alabama resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.;
CHARLES WILLIS, an Alabama resident, individually and as an agent, servant and employee of Black Warrior Methane Corporation;
FICTITIOUS DEFENDANTS 1-10, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation or other legal entity, or successor in interest, and the respective managers, executives, directors, and board members thereof, and the respective supervisors managers, executives, directors, and board members thereof, that designed, engineered, constructed, de-gasified, ventilated, assembled, installed, operated, inspected, maintained, repaired, owned, leased, responsible for safety of, and/or utilized the No. 2 Longwall (also known throughout this complain as the
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 7 of 87 Southwest A Longwall) and its bleeder system of the No. 7 Mine, for safety, which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITIOUS DEFENDANTS 11-20, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation or other legal entity, or successor in interest, and the respective supervisors managers, executives, directors, and board members thereof, who or which negligently, recklessly, wantonly and/or intentionally and/or in violation of the Alabama Extended Manufacturer’s Liability Doctrine or any express or implied warranties, designed, engineered, manufactured assembled, installed, inspected, maintained, supplied, sold, retailed, trained, designed warnings for, marketed and/or placed on the market certain monitoring device(s) and/or equipment, or any component part thereof, including but not limited to the MSA Solaris Multigas Detector or any component part thereof, that monitored or failed to monitor the levels of various gasses, substances and conditions in the No. 2 Longwall and bleeder system of the No. 7 Mine, which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITIOUS DEFENDANTS 21-30, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation or other legal entity, or successor in interest, and the respective supervisors, managers, executives, directors, and board members thereof, that negligently, recklessly, and/or wantonly and/or intentionally
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 8 of 87 and/or in violation of the Alabama Extended Manufacturer’s Liability Doctrine or any express or implied warranties designed, engineered, constructed, manufactured, assembled, installed, inspected, maintained, repaired, supplied, sold, distributed, retailed, marketed and/or placed on the market the ventilation plan(s), controls, system, structures, devices, machinery, equipment and/or component parts thereof used throughout the No. 7 Mine, which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITIOUS DEFENDANTS 31-40, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation or other legal entity, or successor in interest, and the respective supervisors, managers, executives, directors, and board members thereof, that negligently, recklessly, wantonly and/or intentionally and/or in violation of the Alabama Extended Manufacturer’s Liability Doctrine or any express or implied warranties designed, engineered, constructed, manufactured, assembled, installed, inspected, maintained, repaired, supplied, sold, distributed, retailed, marketed and/or placed on the market the mine roof, rib and ground control(s), plan(s), system, structures, devices, equipment, machinery and/or component parts thereof used throughout the No. 7 Mine, which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITIOUS DEFENDANTS 41-50, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation or other legal entity, or successor in interest, and the
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 9 of 87 respective supervisors, managers, executives, directors, and board members thereof, that negligently, recklessly, wantonly and/or intentionally and/or in violation of the Alabama Extended Manufacturer’s Liability Doctrine or any express or implied warranties designed, engineered, constructed, manufactured, assembled, installed, inspected, maintained, repaired, supplied, sold, distributed, retailed, marketed and/or placed on the market the mine roof, rib and floor plan(s), system, controls, structures, machinery, devices, equipment and/or component parts thereof used throughout the No. 7 Mine, which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITIOUS DEFENDANTS 51-60, whether singular or plural, intending to refer to the true name of that person or persons who were co-employees of the Plaintiff’s husband and decedent, who had been delegated by or assumed the responsibility for employer to provide Plaintiff’s husband and decedent with a safe place to work or a reasonably safe work environment or safe tools, machines, safety equipment, and other equipment with which to work, and who willfully, purposefully, intentionally, and/or wantonly caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITOUS DEFENDANTS 61-70, whether singular or plural, intending to refer to the true name of that person or persons who were co-employees of the Plaintiff’s husband and decedent, who engaged in actionable, willful conduct as the same is defined in §§ 25-5-11, Code of Alabama, which caused or contributed
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 10 of 87 to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITOUS DEFENDANTS 71-80, whether singular or plural, intending to refer to the true name of that person or persons who were co-employees of the Plaintiff’s husband and decedent, who willfully and/or intentionally failed to install safety devices and/or safety guards on certain machines, and/or who willfully and intentionally removed or failed to utilize safety devices and/or safety guards on certain machines, which conduct is intentional or willful conduct within the meaning of § 25-5-11, Code of Alabama (1975), and which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITOUS DEFENDANTS 81-90 whether singular or plural, intending to refer to the true name of that person or persons who were co-employees of the Plaintiff’s husband and decedent, who intentionally and/or willfully acted or failed to act in violation of Alabama coal mining laws and regulations, as well as laws and regulations of the United States, and who or which caused or contributed to cause the death of the Plaintiff’s husband and decedent;
FICTITOUS DEFENDANTS 91-100, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation, or other legal entity or successor in interest, and the respective supervisors, managers, executives, directors, and board members thereof, who or which is the inspector, insurance company, or other entity that inspected the No. 2 Longwall and Bleeder System of the No. 7 Mine for safety, and
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 11 of 87 who or which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITIOUS DEFENDANTS 101-110, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation, or other legal entity or successor in interest, and the respective supervisors, managers, executives, directors, and board members thereof, who or which negligently, recklessly, wantonly, and/or intentionally, failed to give reasonable and adequate warnings of dangers known to them, or which in the exercise of reasonable care, should have been known to them, and which Plaintiff’s husband and decedent could not discover, regarding certain products, machines, components or systems which caused or allowed to cause or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
FICTITIOUS DEFENDANTS 111-120, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation, or other legal entity or successor in interest, and the respective supervisors, managers, executives, directors, and board members thereof, acting alone, or along with other defendants and fictitious defendants, who or which were responsible for designing, consulting, planning, engineering, installing, constructing, inspecting, maintaining, operating, repairing, the pre- mining degasification systems, and or the vertical, horizontal, or gob wells in, along, around, above and or adjacent to the No. 2 Longwall and its Bleeder System in the No. 7 mine, and/or who or which explored, drilled, mined, gathered, produced,
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 12 of 87 refined, marketed, sold or distributed methane gas produced from JWR Mine No. 7, all of which including but not limited to those individuals and/or entities, defendants and fictitious defendants acting individually, or in concert with other defendants and/or fictitious defendants, in designing, engineering, consulting, planning, constructing, maintaining, repairing, manufacturing, supplying, selling, distributing, retailing, marketing and/or placing on the market, the degasification and ventilation plans, systems, structures, devices, equipment and/or component parts in the No. 7 Mine, in such the method and manner which caused or allowed to cause or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit;
Plaintiff avers that the identity of the fictitious party defendants herein are otherwise unknown to the Plaintiff at this time or, if their names are known to the Plaintiff at this time, their identity as proper party defendants is not known to the Plaintiff at this time, and their true names will be substituted by amendment when the aforesaid lacking knowledge is ascertained.
COMPLAINT FOR WRONGFUL DEATH
COMES NOW your Plaintiff, Mrs. Jewel Chaney, acting both individually and in
her capacity as the personal representative and Administratrix of the Estate of her
beloved husband, Mr. James Luther Chaney, deceased, and by and through her
undersigned attorneys of record, and pursuant to the relevant provisions of § 6-5-410 of
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 13 of 87 the Code of Alabama (1975) and the Alabama Rules of Civil Procedure, says and
represents unto this Circuit Court as follows, viz:
PARTIES
1. Your Plaintiff, Mrs. Jewel Chaney (“Plaintiff” or “Mrs. Chaney”), is over the age of nineteen (19) years and a resident citizen of Berry, Fayette County, Alabama. She is the wife, widow, and personal representative of her late husband, Mr. James Luther Chaney, deceased (“Mr. Chaney”), who was caused to suffer a wrongful death in Tuscaloosa County, Alabama on or about the 23rd day of November, 2009, when he entered, travelled along and inspected the No. 2 Longwall and Bleeder System located in the No. 7 Mine of Jim Walter Resources, which is located near Brookwood, Alabama, in Tuscaloosa County. Mrs. Chaney is the Administratrix of Mr. Chaney’s estate.
2. At the time of his death, Mr. Chaney was an adult resident citizen of Berry, Fayette County, Alabama, and a general laborer inside for JWR. Subsequent to this incident which wrongfully took the life of her decedent husband, Mrs. Chaney timely petitioned the Probate Court of Fayette County, Alabama, for the issuance of Letters of Administration in her favor. On or about the 9th day of December, 2009, following a review of said petition by the Probate Court of Fayette County, Alabama, the Honorable William H. Oswalt, Probate Judge of Fayette County, entered unto Mrs. Chaney his Order Granting Letters of Administration.
3. Upon information and belief, Defendant Jim Walter Resources, Inc. (“JWR”) is an Alabama corporation qualified to do business and doing business in Alabama with its central mine office located at 16243 Highway 216, Brookwood, Alabama 35444, and its principal operations located in Brookwood, Alabama, in Tuscaloosa, County, Alabama. Upon information and belief, JWR, Walter Energy, Black Warrior Methane, El Paso Corporation, and El Paso Production Company, along with other defendants and fictitious defendants are/were partners, joint venturers and co-conspirators in the exploring, mining, producing, capturing, removing, selling, retailing, marketing, and/or distributing of methane gas produced, removed, and/or captured in and around Mine No. 7.
4. Upon information and belief, Defendant Walter Energy, Inc. (“Walter Energy”) is a foreign corporation qualified to do business and doing business in Alabama, with a principal address of 3000 Riverchase Galleria, Suite 1700, Birmingham, Alabama 35244. Walter Energy is the parent corporation of Defendant JWR. Upon information and belief, JWR, Walter Energy, Black Warrior Methane, El Paso Corporation, and El Paso Production Company, along with other defendants and fictitious defendants are/were partners, joint venturers and co-conspirators in the exploring, mining, producing, capturing, removing, selling, retailing, marketing, and/or distributing of methane gas produced, removed, and/or captured in and around Mine No. 7.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 14 of 87 5. Upon information and belief, Defendant Black Warrior Methane Corporation (“Black Warrior Methane”) is an Alabama corporation qualified to do business, and doing business in Alabama with a principal place of business located at 16243 Highway, Brookwood, Alabama 35444. Black Warrior Methane is in the business of exploring, mining, producing, capturing, removing, selling, retailing, marketing, and/or distributing methane gas, including gas produced, removed, and/or captured from the No.7 Mine. Upon information and belief, JWR, Walter Energy, Black Warrior Methane, El Paso Corporation, and El Paso Production Company, along with other defendants and fictitious defendants are/were partners, joint venturers and co-conspirators in the exploring, mining, producing, capturing, removing, selling, retailing, marketing, and/or distributing of methane gas produced, removed, and/or captured in and around Mine No. 7.
6. Upon information and belief, Defendant El Paso Corporation, Inc. (“El Paso”) is a foreign corporation qualified to do business and doing business in Alabama, with a principal address of 1001 Louisiana Street, Houston, Texas, 77002. Upon information and belief, JWR, Walter Energy, Black Warrior Methane, El Paso Corporation, and El Paso Production Company, along with other defendants and fictitious defendants are/were partners, joint venturers and co-conspirators in the exploring, mining, producing, capturing, removing, selling, retailing, marketing, and/or distributing of methane gas produced, removed, and/or captured in and around Mine No. 7.
7. Upon information and belief, Defendant El Paso Production Company, Inc. (“El Paso Production”) is a foreign corporation, with a principal address of 1001 Louisiana Street, Houston, Texas, 77002. Upon information and belief, JWR, Walter Energy, Black Warrior Methane, El Paso Corporation, and El Paso Production Company, along with other defendants and fictitious defendants are/were partners, joint venturers and co- conspirators in the exploring, mining, producing, capturing, removing, selling, retailing, marketing, and/or distributing of methane gas produced, removed, and/or captured in and around Mine No. 7.
8. Upon information and belief, Defendant Mine Safety Appliances Company, Inc. (“MSA”), is a foreign corporation qualified to do business and doing business in Alabama, with a principal address of 1000 Cranberry Woods Drive, Cranberry Township, Pennsylvania, 16066, and upon information and belief, is the designer, manufacturer, distributor, retailer and/or seller of one or more of the Solaris Multigas Detectors utilized by miners working in and/or involved with JWR’s No. 7 Mine at the time and instances of the occurrence made the basis of this Complaint.
9. Upon information and belief, Defendant Keith Shalvey (“Shalvey”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and Mine Manager of the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 15 of 87 10. Upon information and belief, Defendant Trent Thrasher (“Thrasher”) is an adult resident of Tuscaloosa County, Alabama, and was also a co-employee of Mr. Chaney and Mine Manager of the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
11. Upon information and belief, Defendant Keith Plylar (“Plylar”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and Safety Manager of the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
12. Upon information and belief, Defendant Paul Phillips (“Phillips”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and the General Services Coordinator of the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
13. Upon information and belief, Defendant Milton Ethridge (“Ethridge”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and an Outby Supervisor on the evening shift of the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
14. Upon information and belief, Defendant Ty Olson (“Olson”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and Mine Foreman and Outby Area Manager for the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
15. Upon information and belief, Defendant William Burgess (“Burgess”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and Safety Supervisor for the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
16. Upon information and belief, Defendant William Harold Jones (“Jones”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and a JWR Supervisor, as well as being the certified mine examiner who usually conducted the examination of the No. 2 Longwall and its Bleeders. Upon further information and belief, William Harold Jones was the mine examiner who conducted the examination of the No. 2 Longwall and its Bleeders on or about November 16, 2009.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 16 of 87 Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
17. Upon information and belief, Defendant Romie Pendleton (“Pendleton”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and a Mining Systems Manager and certified mine examiner. Upon further information and belief, Romie Pendleton accompanied William Harold Jones on the inspection of the No. 2 Longwall and its Bleeders on or about November 16, 2009. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
18. Upon information and belief, Defendant Tommy McNider (“McNider”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and the General Manager Mining Engineer at JWR at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
19. Upon information and belief, Defendant Joe Steele (“Steele”) is an adult resident of Tuscaloosa County, Alabama and was the Supervisor of Black Warrior Methane at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
20. Upon information and belief, Defendant George Richmond (“Richmond”) is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and the President and Chief Operating Officer of Jim Walter Resources at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his then employer.
21. Upon information and belief, Defendant Robert Howell (“Howell”) is an adult resident of Tuscaloosa County, Alabama, and a co-employee of Mr. Chaney and senior mining engineer at Jim Walter Resources, Inc.’s No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
22. Upon information and belief, Defendant Gary Allinson is an adult resident of Tuscaloosa County, Alabama, and was a co-employee of Mr. Chaney and Longwall Manager of the No. 7 Mine at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 17 of 87 23. Upon information and belief, Defendant Dale Byram (“Byram”) is an adult resident of Tuscaloosa County, Alabama, and a co-employee of Mr. Chaney and the General Manager of Safety and Training for JWR at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
24. Upon information and belief, Defendant Charles Willis (“Willis”) is an adult resident of Tuscaloosa County, Alabama and was the President and General Manager of Black Warrior Methane, at the time and occurrences made the basis of Plaintiff’s Complaint. Suit is being filed against him in both his individual capacity and in his representative capacity as an agent, servant and employee of his employer.
FACTUAL BACKGROUND
25. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein in their entirety.
26. The No. 7 Mine (MSHA I.D. No. 01-01401) is an underground coal mine located in Tuscaloosa County, Alabama, near Brookwood, Alabama, owned and operated by Jim Walter Resources, Inc. and/or Walter Energy, Inc.
27. The No. 2 Longwall and the No. 2 Longwall Bleeder System where Mr. Chaney suffered a wrongful death are one underground area of the No. 7 Mine.
28. Prior to operating the No. 7 Mine, and the No. 2 Longwall and its Bleeder System, Defendants and Fictitious Defendants had a duty to conduct pre-mining degasification ahead of the commencement of coal mining in the No. 2 Longwall. The Defendants and Fictitious Defendants also had a duty to utilize horizontal, vertical and gob-well degasification devices and systems with which to conduct ventilation following the commencement of mining operations necessary for the safe operation of the mine and the health and safety of your Plaintiff’s beloved husband and decedent.
29. The No. 2 Longwall, (also known and referred to as the Southwest A Longwall) which is a single longwall panel, is ventilated by a multiple entry “wrap–around” bleeder system commonly referred to as the No. 2 Longwall Bleeder. The Bleeder System is required to be adequately supported and maintained free of water to permit appropriate ventilation, safe travel and inspection and/or examination.
30. Upon information and belief, besides the wrap-around bleeder system ventilation system, the No. 2 Longwall was also ventilated via both horizontal and vertical degasification devises and systems (including gob wells), which upon information and belief, were designed, installed, maintained, repaired, controlled and/or operated by partners, joint venturers, and co-conspirators, Walter Energy, JWR, Black Warrior Methane, El Paso, El Paso Production, and/or Defendants and Fictitious Defendants.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 18 of 87 31. Upon information and belief, methane that is liberated, captured, produced, and/or removed from the degasification wells located in, on, above and/or adjacent to the No. 7 Mine is sold and distributed on the open market by Black Warrior Methane and other Defendants and Fictitious Defendants.
32. Upon information and belief, the ventilation system, plan and/or design for the No. 2 Longwall and Longwall Bleeder was designed, constructed, engineered, installed, inspected by the partners, joint venturers, and co-conspirators, Walter Energy, JWR, Black Warrior Methane, El Paso, El Paso Production, and/or Defendants and Fictitious Defendants Fictitious Defendant(s).
33. Upon information and belief, Defendant Black Warrior Methane is a joint venture owned by Defendant JWR and Defendant El Paso Production, who succeeded the interest of SONAT, formerly Southern Natural Gas Company. Upon further information and belief, El Paso Production is a wholly-owned subsidiary of El Paso. Upon further information and belief, JWR is a wholly-owned subsidiary of Defendant Walter Energy.
34. Upon information and belief, in the earliest phases of development of the JWR Mines in the Brookwood area, agents, servants and employees of JWR announced the corporate policy with regard to these mines concerning methane. Upon information and belief, these mines are the deepest and most gaseous mines in North America, and in response to that condition, JWR, and its parent company, Walter Energy, announced that the mines could not be safely mined without pre-mining degasification, and thus, upon further information and belief, Black Warrior Methane Corporation was formed to provide the services of pre-mining degasification, as well as degasification during and after mining.
35. Upon information and belief, initially pre-mining degasification was conducted with numerous methane degasification wells being drilled in advance of the mining, from the surface vertically down into the coal bed itself.
36. Upon information and belief, the United States Congress provided substantial and significant tax credits for degasification wells up until approximately 1992 or 1993. Upon information and belief, methane degasification required filings and approvals from the State of Alabama Oil and Gas Board, and upon further information and belief, appropriate filings were made by Black Warrior Methane with the State of Alabama Oil and Gas Board, resulting in approvals to conduct the vertically drilled pre-mining degasification wells in the Brookwood coal bed area. Upon further information and belief, sometime after the expiration of the tax credits, JWR, Black Warrior Methane, Walter Energy, El Paso and El Paso Production, or its predecessor SONAT, and Fictitious Defendants, jointly, severally and individually participated in a civil conspiracy to obstruct the purposes and intent of the required filings with the State of Alabama Oil and Gas Board, and also to obstruct the purposes and intent of the State of Alabama, by and through the coal mining laws of the State of Alabama as implemented by and through the Office of Safety and Inspection and Department of Industrial Relations of the State of Alabama, as well as the United States Federal Coal Mining Health and
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 19 of 87 Safety Act as amended, as implemented by and through its enforcement by, the Mine Safety and Health Administration (“MSHA”).
37. Upon information and belief, Plaintiff alleges that the Defendants and Fictitious Defendants conspired to not drill the requisite number of degasification wells and/or to not properly pump the gas from the No. 7 Mine (i.e., to not degasify the No. 7 Mine), to the detriment of the miners and Plaintiff’s beloved husband and decedent.
38. Upon information and belief, this conspiracy by Defendants and Fictitious Defendants resulted in exposing the Plaintiff’s beloved husband and decedent (as well as other injured and killed miners, as well as those miners who were not injured and killed) to an unreasonable risk of danger by not providing them with a safe place to work or safe working conditions. To the contrary, upon information and belief, the conspiracy exposed the Plaintiff’s decedent and others to hazards to which they should not otherwise have been exposed.
39. Upon information and belief, the conspiracy between the Defendants and Fictitious Defendants was implemented in part because JWR did not provide as part of its ventilation plan the information needed by MSHA to assess adequately the ventilation plan once pre-mining degasification was abandoned, despite the fact that once pre-mining degasification was abandoned and degasification then became a product associated with mining, all of the degasification activities were required to be approved by MSHA. However, upon further information and belief, as a result of the activities of the joint, several, and individual co-conspirators, these approvals were not appropriately obtained.
40. Upon information and belief, Plaintiff alleges and avers that the conditions which were caused or allowed to be created by the failure of Fictitious Defendants and Black Warrior Methane Corporation by and with its parent corporations, JWR and Defendant El Paso Productions and El Paso, created the hazardous and harmful conditions which caused and/or contributed to the death of the Plaintiff’s beloved husband and decedent.
41. Upon information and belief, Plaintiff alleges that it has long been known that pre- mining degasification with coal bed degasification generally provides safety from hazardous gases, but additionally it provides safety benefits to ventilation and ventilation plans as well as for mine roof, rib and ground control(s) and issues of rock mechanics in underground coal mines. Upon further information and belief, as a result of the negligent, reckless, wanton, with conscious disregard of the circumstances, and reckless conduct of the joint and several co-conspirators, neither the State of Alabama Oil and Gas Board, the Federal Mine Safety and Health Administration, the Office of Safety and Inspection nor the Department of Industrial Relations in the State of Alabama had sufficient information as required under State and Federal Law to require the joint and several co-conspirators named herein to cease and desist from engaging in activities which created an unsafe working environment hazardous to the lives and safety of coal miners working in JWR No. 7 Brookwood Mine.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 20 of 87 42. Additionally, upon information and belief, the co-conspirators, Black Warrior Methane, JWR, Walter Energy, El Paso Production, El Paso, and Fictitious Defendants, control the gob wells in the No. 7 Mine in a manner to produce quality methane gas. Upon further information and belief, these gob wells can and also do constitute a ventilation system for the mine in that they can affect the quality and quantity of air and other gasses, as well as the air flow and temperature of the mine and the assorted bleeders. In this case, upon information and belief, the Defendants and Fictitious Defendants and co-conspirators did not utilize this ventilation system to improve the conditions in the No. 2 Longwall and Bleeder System at the time and occurrences made the basis of Plaintiff’s Complaint, but only after as required to remove the Defendants’ and Fictitious Defendants’ equipment.
43. Upon information and belief, like many underground mines, the No. 7 Mine was and is ventilated with an exhaust system. Upon further information and belief, the No. 7 Mine and No. 2 Longwall had a ventilation plan and/or system. Upon further information and belief, the ventilation and exhaust plan and/or system in the No. 7 Mine was designed, engineered, constructed, marketed, created, distributed, sold, and/or inspected by Fictitious Defendants. Proper ventilation is critical to the safety of mines in an underground mine, especially in the No. 7 Mine, which, upon information and belief, is one of the deepest and most gaseous mines in the country. Upon further information and belief, the purpose of ventilating the No. 7 Mine was and is to limit and/or prevent the accumulation of dust and dangerous and/or combustible gasses, including but not limited to methane, carbon monoxide, and carbon dioxide, as well as to sustain adequate oxygenation in the atmosphere. The requirements of MHSA and the State of Alabama provided that the bleeder system was to be inspected at least once per week, as required by federal and/or state law. The results of these examinations were to be recorded.
44. Upon information and belief, the No. 2 Longwall had a roof control plan which contained specific requirements for continuous mining machine development sections and longwall mining sections. However, upon further information and belief, the roof control plan did not contain specific support requirements, and/or reasonable and prudent mine roof, rib and floor control(s) for the bleeder systems.
45. Upon information and belief, longwall mining commenced in the No. 2 Longwall of the No. 7 Mine on or about September of 2008. Upon further information and belief, six thousand, one hundred (6100) feet of the No. 2 Longwall face were mined in the first seven months of operation. However, upon further information and belief, by April 28, 2009, adverse mining conditions, associated with fault geology along the Longwall face, had considerably slowed mining operations. Upon further information and belief, in the next six and one half months, only one thousand, six hundred (1600) feet of the longwall face of the coal seam were mined.
46. Upon information and belief, Defendants, in order to facilitate the production, capture, marketing, sale, and distribution of methane, failed to maintain a safe level of
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 21 of 87 ventilation in the No. 2 Longwall that was necessary for the safety and protection of human life.
47. Upon information and belief, on September 21, 2009, JWR submitted a supplemental ventilation plan for MSHA’s approval in order to move the evaluation points in the bleeder system of the No. 2 Longwall Bleeder of the No. 7 Mine. Upon further information and belief, according to JWR, as of September 21, 2009, there were approximately one hundred and ten feet of the remaining coal seam to be mined. Upon further information and belief, according to JWR, the proposed supplement to the ventilation plan was required because of deteriorating roof conditions and an increase of the inflow of water from the gob, which were negatively impacting the ventilation, as well as impeding the examination and maintenance of the bleeder ventilation system. Upon information and belief, as of September 21, 2009, JWR believed that the examiners conducting the required examinations and employees performing work to maintain the bleeders were exposed to these deteriorating roof conditions in the bleeder entries. Upon further information and belief, supplemental support had been set to the point where the setting of additional support could not keep up with the deteriorating conditions, and adequate pumping capacity and adequate supplemental supports were not available or installed in the Bleeder to provide safe and stable conditions in the Bleeder.
48. Upon information and belief, by September 21, 2009, mine management at JWR expected that the mining of the coal seam in the No. 2 Longwall would be completed by October 10, 2009, and that the removal and recovery of the continuous mining equipment used to mine the seam would be completed by November 12, 2009. Upon further information and belief, despite these predictions, by the November 23, 2009 incident made the basis of this Complaint, the recovery of the equipment had not been completed, and thus weekly inspections of the No. 2 Longwall were required. Upon information and belief, the most recent inspections of the No. 2 Longwall and Longwall Bleeder System were dated November 4, 2009 and November 16, 2009. Moreover, upon further information and belief, by November 23, 2009, significant discrepancies existed between the September 21, 2009 supplemental ventilation plan and the actual ventilation system controls.
49. MSHA Regulations required preshift, on-shift and weekly examinations of the No. 2 Longwall and Longwall Bleeder System, and MSHA Regulations further provide for supplemental examinations. Specifically, MSHA Regulations require that at least every seven days, a certified person shall evaluate the effectiveness of the bleeder systems, including the gas concentrations, air flow, and air quantity in said bleeder sections.
50. MSHA Regulations require the person conducting the preshift examination to examine for hazardous conditions, test for gasses, and determine if the air is moving in its proper direction.
51. MHSA Regulations further require that, except for those certified persons conducting examinations required by this subpart, a certified person shall examine the
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 22 of 87 area for hazardous conditions, determine whether the air is traveling in its proper direction and its normal volume, and test for methane and oxygen deficiency within 3 hours before anyone enters an area in which a pre-shift examination has not been made for that shift.
52. Upon information and belief, on or about November 23, 2009, your Plaintiff’s beloved husband and decedent, Mr. Chaney, a coal miner (classified as a general inside laborer), reported to work at JWR’s No. 7 Mine, just prior to his regularly scheduled evening shift (3:00 p.m. to 11:00 p.m.). Mr. Chaney was not a certified fire- boss, mine inspector, mine examiner, safety inspector, or mine foreman. Mr. Chaney had worked at the No. 7 Mine for approximately one (1) year.
53. Upon information and belief, JWR’s Outby Supervisor, Mr. Milton Ethridge, (“Ethridge”) was Mr. Chaney’s direct and regularly assigned supervisor. Upon further information and belief, Ethridge had twenty-nine (29) years of experience in mining and was a certified fire-boss and mine foreman.
54. Upon information and belief, on November 23, 2009, William Harold Jones, a JWR supervisor and certified mine examiner, was on vacation. Upon further information and belief, Jones was the individual who normally inspected the No. 2 Longwall and Longwall Bleeder, and was also the individual who had most recently inspected the No. 2 Longwall and Longwall Bleeder prior to the date of the incident made the basis of this Complaint.
55. Upon information and belief, while Jones would later detail the numerous hazards, including high heat, humidity and heaved floors, which he and Romie Pendleton (another JWR Supervisor) had encountered in the No. 2 Longwall and Longwall Bleeder during prior inspections and/or examinations, neither Jones nor Pendleton had recorded in writing, any hazardous conditions from their weekly examination on November 16, 2009.
56. Upon information and belief, although he failed to report or note the hazardous conditions encountered in the No. 2 Longwall and Longwall Bleeder during his pre-shift examination on November 16, 2009 in the weekly examination record book, Jones used the conditions in the No. 2 Longwall and Longwall Bleeder as a means of providing instruction to Pendleton about safe and unsafe conditions. Upon further information and belief, Jones pointed out the poor roof conditions, roof bolts that needed to be replaced, timbers that had been exposed to floor heave, as well as slipping and tripping hazards, and unsafe ribs.
57. Upon information and belief, prior to November 23, 2009, Ethridge was instructed by Phillips, general services coordinator, to conduct the required weekly inspection of the No. 2 Longwall and Longwall Bleeder in Jones’ place.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 23 of 87 58. Upon information and belief, after Mr. Chaney reported to work on November 23, 2009, Ethridge directed Mr. Chaney to accompany Ethridge on the required weekly examination and inspection of the No. 2 Longwall and Longwall Bleeder System.
59. Upon information and belief, Ethridge was aware that the temperature in the No. 2 Longwall Bleeder was dangerously hot. Furthermore, upon information and belief, Mr. Ethridge was also aware that the conditions in the No. 2 Longwall Bleeder System had significantly deteriorated, as Ethridge had recently discussed the examination of the No. 2 Longwall and Longwall Bleeder system with Jones, who informed Ethridge that the conditions, including but not limited to the heat, had worsened in the No. 2 Longwall Bleeder. In addition, upon further information and belief, Jones told Ethridge to take extra water and other liquids during the pre-shift examination of the No. 2 Longwall and Longwall Bleeder. Upon further information and belief, Ethridge, prior to entering the No. 2 Longwall bleeder on November 23, 2009, also had a conversation with Manager Ty Olson in which Ethridge told Olson that it might take him all shift to complete the examination.
60. In addition, upon information and belief, mine management had been aware, since the summer of 2009, that miners working in the No. 2 Longwall and Longwall Bleeder needed to carry more water and other liquids with them while working in the No. 2 Longwall and Longwall Bleeder than in other sections of Mine No. 7, because of the high heat and other dangerous conditions.
61. Upon information and belief, Ethridge was also aware that Mr. Chaney was not a certified mine foreman, mine examiner, mine inspector, or a certified fire-boss, as is required under the State and Federal mining safety laws and regulations in order to participate in such an inspection as the one to be performed on November 23, 2009.
62. Upon information and belief, despite the state and federal safety laws and regulations, Ethridge directed Chaney to accompany him on the inspection in order to comply with a JWR company policy, which had been adopted by JWR following the death of a JWR supervisor in 2006. Specifically, upon information and belief, JWR had established a policy and practice of illegally using uncertified workers, like Mr. Chaney, in a “buddy system” during the weekly examination of the No. 2 Longwall and Longwall Bleeder System. This “Buddy System” violated mining laws. Upon further information and belief, JWR required a mine examiner to be accompanied by another miner for the purpose of providing assistance to the other person should one of them become incapacitated.
63. Upon information and belief, this “buddy system” practice was used while conducting the weekly examinations of the No. 2 Longwall and Longwall Bleeder System. However, upon further information and belief, the certified person conducting the weekly examination was sometimes accompanied by a miner who was not a certified fire-boss, mine inspector, mine examiner, or mine foreman.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 24 of 87 64. Upon information and belief, at the direction of Ethridge, Mr. Chaney and Ethridge entered the No. 2 Longwall and Longwall Bleeder and travelled deep into the Bleeder towards the required inspection points.
65. Upon information and belief, prior to entering the mine, JWR provided Ethridge, but did not provide Mr. Chaney, with a Solaris Multigas Detector safety device (“Solaris”), which analyzes the atmosphere and determines the percentage of methane, carbon monoxide and oxygen. Upon further information and belief, if the amount of any of these gases in the atmosphere is beyond the acceptable range, the Solaris triggers an audible and visual alarm.
66. Upon information and belief, Ethridge and Mr. Chaney entered the uninspected No. 2 Longwall and Longwall Bleeder at approximately 4:30 p.m.
67. Upon information and belief, as Ethridge and Mr. Chaney advanced into the uninspected No. 2 Longwall and Longwall Bleeder, the travel and inspection became increasingly difficult and onerous, due to the numerous supplemental standing roof supports, cave-ins, floor heavings, rocks-falls, and the ever-increasing heat, humidity and deterioration of the atmosphere in the No. 2 Longwall and Longwall Bleeder.
68. Upon information and belief, on numerous occasions during the course of the inspection conducted by Ethridge and Mr. Chaney on November 23, 2009, the Solaris carried by Ethridge recorded oxygen concentration levels below the minimum 19.5% required by state and federal safety laws and regulations. Upon further information and belief, the Solaris first alarmed for oxygen at 4:46 p.m., and recorded an oxygen concentration of less than 19.5% between 4:47 and 4:50. In fact, upon information and belief, no oxygen concentration of 19.5% or higher was recorded until after a ventilation change was made during the rescue and recovery effort. Moreover, upon further information and belief, other gasses, and excessive heat and humidity were also present in the No. 2 Longwall and Longwall Bleeder.
69. Upon information and belief, Ethridge had a habit, custom, and practice of deactivating the Solaris, and actually turned off the Solaris on several occasions during the November 23, 2009 inspection, despite the alarms and low oxygen concentration readings on the Solaris, which were occurring during the inspection.
70. Furthermore, upon information and belief, conditions in the No. 2 Longwall and Longwall Bleeder required “zig-zag” travel, and because the floor was heaved and the roof had deteriorated, examiners had to crawl along sections of the Bleeder floor. Upon information and belief, the floor and ground conditions, as well as severely deteriorated roof conditions, made travel in the No. 2 Longwall and Longwall Bleeder extremely hazardous, arduous and slow-going, both inby and outby.
71. Upon information and belief, after Ethridge and Chaney did not timely report out of the No. 2 Longwall and Longwall Bleeder, it was determined that they were missing and a search party was formed.
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72. Upon information and belief, at approximately 12:00 a.m. on November 24, 2009, a search party located Ethridge and Chaney deep within the No. 2 Longwall and Longwall Bleeder.
73. Upon information and belief, Ethridge was located approximately twenty (20) feet outby of Crosscut No. 26 of the No. 2 Longwall Bleeder. Upon further information and belief, although Ethridge was responsive, he was not coherent and appeared to be going in and out of consciousness. Moreover, upon information and belief, Ethridge was not sweating, had leg cramps and could not stand.
74. Upon information and belief, Mr. Chaney was located approximately fifteen (15) feet deeper inby the No. 2 Longwall Bleeder from Mr. Ethridge. Upon information and belief, Mr. Chaney was not breathing, and his pulse could not be detected, and the rescuers presumed Mr. Chaney to be dead.
75. Upon information and belief, from the time that Ethridge and Mr. Chaney were located, the conditions in the No. 2 Longwall and Longwall Bleeder were so heinous, hateful, loathsome and horrendous that three specially trained mine teams of mine rescue personnel were not able to rescue Ethridge from the No. 2 Longwall Bleeder for over seven (7) hours.
76. Upon information and belief, despite the best efforts of the mine rescue personnel, the horrendous conditions in the No. 2 Longwall and Longwall Bleeder required the installation of additional ventilation devices before two more teams of trained rescue personnel could safely reach and recover Mr. Chaney’s body from the mine. Upon further information and belief, the mine rescue teams were not able to recover and remove Mr. Chaney’s body from the mine for over fourteen (14) hours, and Mr. Chaney was not brought out of the mine until 2:23 p.m. on November 24, 2009.
77. Upon information and belief, in total, over eighty (80) personnel were involved in the underground rescue and recovery operation in the No. 2 Longwall and Longwall Bleeder on November 23, 2009 and November 24, 2009. In addition, upon information and belief, during the course of the rescue operation, numerous trained mine rescue personnel were so overcome by the dangerous conditions in the No. 2 Longwall and Longwall Bleeder, including but not limited to the excessive heat, humidity and hazardous atmosphere, that they became sick, with some of the rescue personnel being transported to the hospital for evaluation and treatment.
78. Upon information and belief, following the tragic and wrongful death of Mr. Chaney, the United States Department of Labor, by and through the Mine Safety and Health Administration (“MSHA”), conducted an investigation of certain of the events surrounding Mr. Chaney’s death. MSHA issued its report on or about August 18, 2010.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 26 of 87 79. Upon information and belief, the State of Alabama also conducted an investigation of certain of the events surrounding Mr. Chaney’s death and issued a report with citations (“Alabama Report”).
80. Upon information and belief, numerous and significant discrepancies existed between the ventilation controls, evaluation point (“EP”) locations, and airflow directions depicted on the mine map, and those that existed underground in the No. 2 Longwall and Longwall Bleeder at the time of the incident made the basis of this Complaint.
81. Upon information and belief, after the incidents made the basis of this Complaint, Defendants regulated the vertical and horizontal and gob wells in and around the No. 7 Mine in a manner by which maximum ventilation of the No. 2 Longwall and Longwall Bleeder could be achieved in order to recover Defendants’ equipment.
COUNT ONE
Action Pursuant to §25-5-11
Removal of Safety Device and Guards and Failure to Maintain Safety Guards or Safety Devices
82. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein in their entirety.
83. Ethridge, Co-Employee Defendants, Defendants, and Fictitious Defendants are liable for willful and purposeful conduct which resulted in and/or proximately caused injury and death to the Plaintiff’s decedent.
84. Ethridge, Co-Employee Defendants, Defendants, and Fictitious Defendants willfully, purposefully and intentionally disengaged the alarm on the Solaris Multigas Detector, and/or turned off the Solaris Multigas Detector, which was a machine and/or device issued by JWR to test the gases in the air in the mines, and to warn and protect and guard underground miners, including Mr. Chaney from dangerous levels of gases. The disengagement of the Solaris and its alarms was not done for the purpose of repair of the machine and/or was not a part of an improvement or modification of the machine which rendered the safety device unnecessary or ineffective.
85. Ethridge, Co-Employee Defendants, Defendants, and Fictitious Defendants willfully, intentionally and purposefully permitted the habit, custom and practice of JWR supervisors, like Ethridge, of disengaging the alarms on the Solaris Multigas Detector and other gas detectors. Upon information and belief, the Solaris Multigas Detectors have data-logging capabilities by and through which supervisory co-employees could and should have known that the supervisors were disengaging the Solaris and its alarms on these machines and/or devices. The Co-Employee Defendants, Defendants,
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 27 of 87 and Fictitious Defendants intentionally, purposefully and willfully failed to monitor the proper and continuous use of the Solaris Multigas Detectors and to prevent the disengagement of the alarms on the Solaris Multigas Detectors by supervisors, such as Ethridge.
86. The willful and purposeful conduct of Ethridge, Co-Employee Defendants, Defendants and Fictitious Defendants combined and concurred, to proximately cause or contributed to cause the death of Plaintiff's husband.
WHEREFORE, PREMISES CONSIDERED, as the conduct of Ethridge, Co-Employee Defendants, Defendants and Fictitious Defendants combined and concurred, caused and contributed to wrongfully cause the death to Plaintiff’s beloved husband and decedent, Plaintiff demands judgment of Ethridge, Co-Employee Defendants and Fictitious Defendants and all other named Defendants and Fictitious Defendants, jointly and separately and severally, in such amount of punitive damages which are reasonable and necessary in accordance with Alabama law to allow money recovery to the Plaintiff by way of punishment to the Defendants, and for the added purpose of protecting the public by deterring these Defendants and others from doing such wrong in the future. The character and degree for the wrong and the necessity of preventing similar wrongs require judgment against Ethridge, Co-Employee Defendants and Fictitious Defendants and all other named Defendants and all Fictitious Defendants and require the imposition of punitive damages.
COUNT TWO
Action Pursuant to §25-5-11
Willful Intent to Injure
87. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein in their entirety.
88. Ethridge, Co-Employee Defendants, Defendants, and Fictitious Defendants are liable for willful and purposeful conduct which resulted in and/or proximately caused and contributed to the wrongful death of the Plaintiff’s beloved husband and decedent.
89. Upon information and belief, Ethridge, Co-Employee Defendants, Defendants, and Fictitious Defendants knew that the atmosphere, ventilation, roof, and floor conditions in the No. 2 Longwall and Longwall Bleeder had deteriorated to the degree that entry into the No. 2 Longwall Bleeder was hazardous to human health, safety and life.
90. Upon information and belief, Ethridge, Co-Employee Defendants, Defendants, and Fictitious Defendants purposefully and/or intentionally designed to injure the Plaintiff’s beloved husband and decedent. Upon further information and belief, Ethridge,
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 28 of 87 Co-Employee Defendants, Defendants, and Fictitious Defendants had knowledge of the hazardous conditions in the No. 2 Longwall Bleeder, and of the danger and/or peril to the Plaintiff’s beloved husband and decedent posed by being required to enter the No. 2 Longwall Bleeder without the appropriate training and safety gear and devices. Upon further information and belief, Ethridge, Co-Employee Defendants, Defendants and Fictitious Defendants consciously pursued a course of conduct with a design, intent and purpose of inflicting injury to the Plaintiff’s beloved husband and decedent, and are guilty of purposeful, willful and intentional conduct, in that they, upon information and belief:
A. Purposefully and intentionally required Mr. Chaney to enter, travel, inspect and examine the No. 2 Longwall Bleeder System even after knowing that the Bleeder had deteriorated to the extent that it could not be kept safe and/or properly ventilated due to the deteriorating roof, floor, and ventilation conditions, high heat, and the increase of inflow of heat, gases, and humidity from the gob, which thus made the Bleeder and the travel route impossible to be maintained to the extent required for safe inspection of the Bleeder System;
B. Purposefully and intentionally required non-certified personnel, such as Mr. Chaney, in direct violation of state and federal mining laws, to enter into, examine and inspect, the No. 2 Longwall Bleeder prior to the completion of a pre-shift examination of the area, knowing that such action would expose Mr. Chaney to the horrifyingly hazardous conditions in this area, which caused or contributed to cause Mr. Chaney’s death;
C. Purposefully and intentionally required non-certified personnel, such as Mr. Chaney to accompany certified personnel, like Mr. Ethridge, in direct violation of state and federal mining laws, to enter into, examine and inspect in pre-shift inspection, knowing that such action would expose Mr. Chaney to the horrifyingly hazardous conditions which caused or contributed to cause his death;
D. Purposefully and intentionally required Mr. Chaney to continue to accompany Mr. Ethridge, in direct violation of state and federal mining laws, to enter into, examine and inspect, in the illegal inspection of the No. 2 Longwall Bleeder System after the Solaris Multigas Detector safety device warned of the dangerous atmosphere, including the fact that oxygen levels were below the 19.5% minimum required by state and federal laws and regulations, and even after the Solaris Multigas Detector had been turned off by Mr. Ethridge;
E. Purposefully and intentionally required Mr. Chaney to accompany Mr. Ethridge, in direct violation of state and federal mining laws, to enter into, examine and inspect, and enter, travel through, and participate in the illegal inspection of the No. 2 Longwall Bleeder even after knowing that
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 29 of 87 the inspectors who had conducted the prior week’s inspection had been required to use extreme measures to survive the dangerous atmosphere, conditions, excessive heat and humidity in the No. 2 Longwall Bleeder System;
F. In direct violation of state and federal mining laws, purposefully and intentionally did not record in the weekly examination record book the extent of the dangerous atmosphere and conditions, temperatures, humidity, and problems with the mine roof, rib, floor and ventilation controls in the No. 2 Longwall Bleeder, knowing that this failure to record would expose Mr. Chaney and others to conditions in the No. 2 Longwall Bleeder that were hazardous to human health and safety;
G. In direct violation of state and federal mining laws, purposefully and intentionally required Mr. Chaney to accompany Mr. Ethridge and enter, travel through, and participate in the illegal inspection of the No. 2 Longwall Bleeder System knowing that the degasification, ventilation, mine roof, rib and floor controls were not constructed, engineered, maintained, repaired, and inspected as required, and that this failure to construct, engineer, maintain, repair and inspect significantly increased the hazardous conditions of the No. 2 Longwall Bleeder System, including but not limited to the dangerous atmosphere, high heat, increased gases and humidity, and decreased oxygen concentration, which caused or contributed to cause his death;
H. In direct violation of state and federal mining laws, purposefully and intentionally required Mr. Chaney to accompany Mr. Ethridge and enter, travel through, and participate in the illegal inspection of the No. 2 Longwall Bleeder System knowing that the mine roof, rib, floor and ventilation controls had been inadequately maintained and/or not maintained, and that such failure to maintain the mine roof, rib, floor and ventilation controls made the conditions in the No. 2 Longwall Bleeder System hazardous to human health and safety, and which caused or contributed to cause the death of the Plaintiff’s husband and decedent;
I. In direct violation of state and federal mining laws, purposefully and intentionally failed to construct and provide necessary and proper ventilation controls as proposed and approved, knowing that such a failure would make the conditions in the No. 2 Longwall Bleeder System hazardous to human health and safety;
J. In direct violation of state and federal mining laws, purposefully and intentionally failed to course air in the No. 2 Longwall Bleeder System as required, knowing that such a failure would make the conditions in the No. 2 Longwall Bleeder System hazardous to human health and safety;
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 30 of 87 K. In direct violation of state and federal mining laws, purposefully and intentionally failed to close the No. 2 Longwall knowing that conditions dictated that closure and evacuation were the only possible ways to protect the life of Plaintiff’s beloved husband and decedent;
L. In direct violation of state and federal mining laws, purposefully and intentionally failed to provide Plaintiff’s beloved husband and decedent with a safe workplace, safe working conditions, and proper safety equipment;
M. In direct violation of state and federal mining laws, purposefully and intentionally failed to conduct a pre-shift and weekly or daily inspections of the No. 2 Longwall Bleeder when such pre-shift inspection was required by state and federal safety laws and regulations in order to maintain safe working conditions in this section and that this area could not possibly be maintained safe for continued travel;
N. Purposefully and intentionally violated multiple safety laws, rules and regulations, policies, and duties imposed by the State of Alabama, Department of Labor, by and through the Mine Safety and Health Administration;
O. Purposefully and intentionally failed to provide Mr. Chaney with necessary safety devices and/or machines, including but not limited to a Solaris Multigas Detector, before sending Mr. Chaney into the No. 2 Longwall and Longwall Bleeder System, which Ethridge, Co-Employee Defendants and Fictitious Defendants knew contained conditions which are dangerous to human health and safety without the safety devices and/or machines; and
P. In direct violation of state and federal mining laws, purposely and intentionally failed to properly conduct pre-mining degasification and appropriate degasification and ventilation during and after the course of mining the No. 2 Longwall.
91. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
92. The willful and purposeful conduct of Ethridge, Co-Employee Defendants, Defendants and Fictitious Defendants combined and concurred, to proximately cause or contributed to cause the death of Plaintiff's husband.
WHEREFORE, PREMISES CONSIDERED, as the conduct of Ethridge, Co-Employee Defendants and Fictitious Defendants intentionally, purposefully and willfully combined and concurred, caused or contributed to inherently cause the wrongful death to
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 31 of 87 Plaintiff’s beloved husband and decedent, Mr. Chaney, Plaintiff demands judgment of Ethridge, Co-Employee Defendants and Fictitious Defendants, jointly and separately and severally, in such amount of punitive damages which are reasonable and necessary in accordance with Alabama law to allow money recovery to the Plaintiff by way of punishment to the Defendants, and for the added purpose of deterring these Defendants and others from doing such wrong in the future. The character and degree of the wrong and the necessity of preventing similar wrongs require judgment against Co-Employee Defendants and Fictitious Defendants, and require the imposition of punitive damages.
COUNT THREE
Multigas Detectors
Alabama Extended Manufacturer’s Liability Doctrine
93. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
94. Upon information and belief, the defendant, Mine Safety Appliances Company, and one or more Fictitious Defendants, were engaged in the business of designing, engineering, manufacturing, selling, marketing, supplying and/or distributing Solaris Multigas Detectors throughout the United States, including the State of Alabama, for use by the general public. Upon further information and belief, said Defendants and Fictitious Defendants, during said period of time and for a valuable consideration, designed, engineered, manufactured, sold, marketed, supplied, and/or distributed the Solaris Multigas Detector which caused or contributed to cause the death of Plaintiff's husband and decedent.
95. Upon information and belief, at the time of the occurrence made the basis of this Complaint, the Solaris Multigas Detector which had been designed, engineered, manufactured, sold, marketed, supplied, and/or distributed by MSA and Fictitious Defendants, and which was in substantially the same condition as when designed, engineered, manufactured, sold, marketed, supplied and/or distributed, was being used by Ethridge in a manner that was foreseeable.
96. Upon further information and belief, the Solaris Multigas Detector was not reasonably safe, but, to the contrary, was defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because Defendant MSA and Fictitious Defendants, as the designer, engineer, manufacturer, seller, marketer, supplier, and/or distributer of the Solaris Multigas Detector which caused or contributed to cause the death of Plaintiff's husband and decedent, did not design, engineer, manufacture and sell the device to appropriately test for certain dangerous and deadly gases and atmospheric conditions, to the detriment of those relying upon the device, including the Plaintiff’s beloved husband and decedent.
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97. Upon further information and belief, the Solaris Multigas Detector was not reasonably safe, but, to the contrary, was defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because the said Solaris Multigas Detector was designed, engineered, and manufactured in such a manner as to allow the user/consumer to turn off the device during use, to the detriment of those relying on the device for warning and safety, including the Plaintiff’s beloved husband and decedent.
98. Upon further information and belief, the Solaris Multigas Detector was not reasonably safe, but, to the contrary, was defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because the said Solaris Multigas Detector was designed, engineered, and manufactured in such a manner as to allow the user/consumer to turn off the alarm, to the detriment of those relying on the device for warning and safety, including the Plaintiff’s beloved husband and decedent.
99. Upon further information and belief, the Solaris Multigas Detector was not reasonably safe, but, to the contrary, was defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because Defendant MSA and Fictitious Defendants, as the designer, engineer, manufacturer, seller, marketer, supplier, and/or distributer of the Solaris Multigas Detector which caused or contributed to cause the death of Plaintiff's husband and decedent, did not provide all of the pertinent data and warnings as to all reasonably foreseeable hazards and conditions to those relying on the device, to the detriment of those relying on the device, including the Plaintiff’s beloved husband and decedent.
100. Upon information and belief, Defendant MSA and Fictitious Defendants, as the designer, engineer, manufacturer, seller, marketer, supplier, and/or distributer of the Solaris Multigas Detector which caused or contributed to cause the death of Plaintiff's husband and decedent, could have designed the device to prevent the disabling of the device by the user in the field and/or the disabling of the device by the user in the field after the device had alarmed; as well as test and warn of the presence of dangerous and deadly gases and atmospheric conditions in the mine, which would have reduced or eliminated the harm to and/or death of the Plaintiff’s beloved husband and decedent.
101. The defective and unreasonably dangerous condition of the Solaris Multigas Detector was a proximate cause of Plaintiff's husband's death and renders said Defendant MSA and Fictitious Defendants liable to Plaintiff pursuant to the Alabama Extended Manufacturer's Liability Doctrine.
102. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 33 of 87 WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Mine Safety Appliances and each of the named Defendants, including Fictitious Party Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the Defendants' wrongful acts and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT FOUR
Multigas Detectors
Negligent, Reckless, and Wanton Design, Engineering, Manufacture, Sale, Distribution, Supply, Marketing, Installing and Failure to Warn
103. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
104. Upon information and belief, Defendant, MSA, and one or more Fictitious Party Defendants, were engaged in the business of designing, engineering, manufacturing, selling, marketing, supplying, distributing, installing and/or training on the Solaris Multigas Detector, including the Solaris Multigas Detector which caused or contributed to cause the death of Plaintiff's husband and decedent. Upon further information and belief, Defendant MSA and Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of Solaris Multigas Detector, sold the Solaris Multigas Detector which caused or contributed to cause the death of Plaintiff's beloved husband and decedent.
105. Upon information and belief, Defendant MSA and Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of Solaris Multigas Detector, had a duty to design, engineer, manufacture, sell, distribute, supply, warn, install, and/or train on the Solaris Multigas Detector as a reasonably prudent designer, engineer, manufacturer, merchant, distributor, marketer, retailer, trainer, supplier and/or seller would do.
106. Upon further information and belief, Defendant MSA and Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of Solaris Multigas Detector, breached that duty in that Defendant MSA and Fictitious Defendants, negligently, recklessly and/or wantonly designed, engineered, manufactured, distributed, marketed, failed to warn, supplied, sold, installed and/or trained on the Solaris Multigas Detector, and its attendant equipment, involved in the occurrence made the basis of this lawsuit,
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 34 of 87 and said negligent, reckless, and/or wanton conduct was a proximate cause of Plaintiff’s husband's fatal injuries, including but not limited to the following:
A. Not preventing the disengagement of the alarm system on the device by a user in the field to the detriment of those relying on the device;
B. Not preventing the disengagement of the Multigas detector while in use underground to the detriment of those relying on the device;
C. Not testing for the presence of certain foreseeable dangerous and deadly gases and atmospheric conditions to the detriment of those relying on the device; and
D. Not warning about the presence of certain foreseeable dangerous and deadly gases and atmospheric conditions to the detriment of those relying on the device.
107. Furthermore, upon information and belief, Plaintiff alleges that Defendant MSA and Fictitious Defendants, negligently, recklessly and/or wantonly failed to warn Plaintiff's husband and decedent of the dangers associated with the use of the Solaris Multigas Detector, and its attendant equipment, in the absence of certain safety devices and/or procedures being used for the purpose of eliminating the possibility of said products injuring Plaintiff’s husband. Said negligent, reckless, and/or wanton conduct was a proximate cause of the fatal injuries suffered by Plaintiff’s husband.
108. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
109. The aforesaid wrongful conduct of Defendant MSA and Fictitious Defendants, combined and concurred, to cause or contributed to cause the death of Plaintiff's husband.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Defendant MSA and Fictitious Defendants and each of the named Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the Defendants' and Fictitious Defendants’ wrongful acts and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 35 of 87 COUNT FIVE
Multigas Detectors
Breach of Warranties
110. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
111. Upon information and belief, Defendant MSA, and one or more Fictitious Party Defendants, were regularly in the business of manufacturing, designing, engineering, supplying, distributing, marketing, training on, installing, and/or selling Solaris Multigas Detectors of the type which caused or contributed to cause the death of Plaintiff's husband. Upon further information and belief, in their capacity as manufacturers, engineers, designers, suppliers, merchants, distributors, marketers, retailers, trainers, installers, and/or sellers of Solaris Multigas Detectors, Defendant MSA and Fictitious Defendants manufactured, engineered, designed, supplied, distributed, marketed, installed, trained on, and/or sold the Solaris Multigas Detector to JWR which caused or contributed to cause the death of Plaintiff’s husband.
112. Upon information and belief, at the time of the incident made the basis of this Complaint, the Solaris Multigas Detector was being used by Defendants JWR and Ethridge for the ordinary purposes for which such Solaris Multigas Detectors were used.
113. Upon information and belief, Defendant MSA and Fictitious Defendants had reason to know or reasonably should have known that Defendant JWR purchased the Solaris Multigas Detector from Defendant MSA and Fictitious Defendants for the purposes of protecting the health and safety of individuals entering, working and/or travelling in an underground mine such as the No. 7 Mine, and/or for the purposes of warning individuals entering, working and/or travelling in an underground mine of the presence of dangerous and deadly gases and atmospheric conditions.
114. Upon information and belief, Defendant MSA and Fictitious Defendants had reason to know or reasonably should have known that Defendant JWR and the users of the Solaris Multigas Detector purchased by Defendant JWR were relying upon Defendant MSA and Fictitious Defendants, as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of devices such as the Solaris Multigas Detector, to provide a suitable multigas detector for use by individuals entering, working and/or travelling in an underground mine.
115. Upon information and belief, the Solaris Multigas Detector designed, engineered, manufactured, supplied, marketed, distributed, installed by, and/or sold by Defendant MSA and Fictitious Defendants, and which caused or contributed to cause the death of Plaintiff's husband and decedent, was defective, unmerchantable, and not fit for the particular purpose for which JWR bought the device.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 36 of 87 116. Upon information and belief, the Solaris Multigas Detector designed, engineered, manufactured, supplied, marketed, distributed, installed by, and/or sold by Defendant MSA and Fictitious Defendants, and which caused or contributed to cause the death of Plaintiff's husband and decedent, was defective, unmerchantable, and not suitable or fit for the ordinary purposes for which such products are manufactured, distributed, sold, and/or used.
117. Upon information and belief, the Solaris Multigas Detector designed, engineered, manufactured, supplied, marketed, distributed, installed by, and/or sold by Defendant MSA and Fictitious Defendants, and which caused or contributed to cause the death of Plaintiff's husband and decedent, was defective, unmerchantable, not suitable or fit for the ordinary purposes and breached their warranties for such products;
118. As a proximate cause of the defective and unmerchantable condition of the Solaris Multigas Detector manufactured, designed, engineered, marketed, supplied, distributed, installed and/or sold by Defendant MSA and Fictitious Defendants, Plaintiff's husband and decedent suffered a wrongful death.
119. Plaintiff has given notice to defendant MSA, pursuant to the Alabama Commercial Code. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
120. The aforesaid wrongful conduct and breaches of warranty combined and concurred, and as a proximate consequence thereof, Plaintiff's husband and decedent, was caused to suffer a wrongful death.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against MSA and each of the named Defendants, including Fictitious Party Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the Defendants' and Fictitious Defendants’ wrongful acts and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT SIX
Fans and Ventilation Controls, Plans, Systems, Structures, and Devices, and the Attendant Equipment and Components
Alabama Extended Manufacturers Liability Doctrine
121. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
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122. Upon information and belief, Fictitious Defendants were engaged in the business of designing, engineering, manufacturing, selling, marketing, supplying and/or distributing the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, such as the ones located in the No. 7 Mine of JWR, throughout the United States, including the State of Alabama, for use by the general public. Upon further information and belief, the said Fictitious Defendants, during said period of time and for a valuable consideration, designed, engineered, manufactured, sold, marketed, supplied, and/or distributed the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's husband and decedent.
123. Upon information and belief, at the time of the occurrence made the basis of this Complaint, the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which had been designed, engineered, manufactured, sold, marketed, supplied, and/or distributed by Fictitious Defendants, and which were in substantially the same condition as when designed, engineered, manufactured, sold, marketed, supplied and/or distributed, were being used by Defendants in a manner that was foreseeable.
124. Upon further information and belief, the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were not reasonably safe, but, to the contrary, were defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because Fictitious Defendants, as the designer, engineer, manufacturer, seller, marketer, supplier, and/or distributer of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's husband and decedent, did not design, engineer, manufacture and sell the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, to appropriately control, degasify, and ventilate the airflow and atmosphere in the No. 2 Longwall and its Bleeder System, to the detriment of those relying upon the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, including the Plaintiff’s beloved husband and decedent.
125. Upon further information and belief, the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were not reasonably safe, but, to the contrary, were defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were designed, engineered, and manufactured in such a manner that they would fail to appropriately control, degasify, and ventilate the airflow and atmosphere in the No. 2 Longwall and its Bleeder System, and/or reduce or eliminate the foreseeable hazards and conditions in the No. 2 Longwall
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 38 of 87 and Bleeder System, to the detriment of those relying on the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, including the Plaintiff’s beloved husband and decedent.
126. The defective and unreasonably dangerous condition of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were a proximate cause of Plaintiff's husband's death, and renders said Fictitious Defendants liable to Plaintiff pursuant to the Alabama Extended Manufacturer's Liability Doctrine.
127. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against the Fictitious Party Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of their wrongful acts, and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT SEVEN
Fans and Ventilation Controls, System, Plans, Structures, and Devices, and the Attendant Equipment and Components
Negligence, Recklessness and Wantonness
128. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
129. Upon information and belief, Fictitious Party Defendants were engaged in the business of designing, engineering, manufacturing, selling, marketing, supplying, distributing, installing and/or training as to the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's beloved husband and decedent. Upon further information and belief, Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, manufactured, engineered, distributed, sold, marketed, supplied, trained on, and/or installed fans and ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which were not reasonably safe and
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130. Upon information and belief, Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, had a duty to design, engineer, manufacture, sell, distribute, supply, warn, install, and/or train as to the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, as a reasonably prudent designer, engineer, manufacturer, merchant, distributor, marketer, retailer, trainer, supplier and/or seller would do.
131. Upon further information and belief, Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, breached that duty in that Fictitious Defendants negligently, recklessly and/or wantonly designed, engineered, manufactured, distributed, marketed, failed to warn, supplied, sold, installed and/or trained as to the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which were not reasonably safe in that fans and ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof did not appropriately and adequately control, degasify, and ventilate the airflow and atmosphere in the No. 2 Longwall and its Bleeder, and said negligent, reckless, and/or wanton conduct was a proximate cause of the death of the Plaintiff’s beloved husband and decedent.
132. Furthermore, upon information and belief, Plaintiff alleges that Fictitious Defendants negligently, recklessly and/or wantonly failed to warn Plaintiff's husband and decedent of the dangers associated with the use of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, in that the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, would not appropriately and adequately control, degasify and ventilate the airflow and atmosphere in the No. 2 Longwall and its Bleeder. Said negligent, reckless, and/or wanton conduct was a proximate cause of the fatal injuries suffered by Plaintiff’s beloved husband and decedent.
133. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
134. The aforesaid wrongful conduct of Fictitious Defendants, combined and concurred, to cause or contributed to cause the death of Plaintiff's husband.
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WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Fictitious Defendants and each of the named Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the Defendants' and Fictitious Defendants’ wrongful acts and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT EIGHT
Fans and Ventilation Controls, System, Plans, Structures, and Devices, and the Attendant Equipment and Components
Breach of Warranties
135. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
136. Upon information and belief, Fictitious Party Defendants were in the business of manufacturing, designing, engineering, supplying, distributing, marketing, training on, installing, and/or selling the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's husband. Upon further information and belief, in their capacity as manufacturers, engineers, designers, suppliers, merchants, distributors, marketers, retailers, trainers, installers, and/or sellers of fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, Fictitious Defendants manufactured, engineered, designed, supplied, distributed, marketed, installed, trained on, and/or sold the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, to JWR, Black Warrior Methane, and/or Fictitious Defendants, which caused or contributed to cause the death of Plaintiff’s beloved husband and decedent.
137. Upon further information and belief, at the time of the incident made the basis of this Complaint, the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were being used by Defendants JWR, Black Warrior Methane, and/or Fictitious Defendants for the ordinary and particular purposes for which such fans and ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were used.
138. Upon information and belief, Fictitious Defendants had reason to know or reasonably should have known that Defendants JWR, Black Warrior Methane, and/or
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 41 of 87 Fictitious Defendants purchased the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, for the purposes of controlling, degasifying, and ventilating the airflow and atmosphere in the No. 7 Mine and protecting the health and safety of individuals entering, working and/or travelling in an underground mine such as the No. 7 Mine.
139. Upon information and belief, Fictitious Defendants had reason to know or reasonably should have known that Defendants JWR, Black Warrior Methane, and/or Fictitious Defendants, and the users of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, purchased by Defendants JWR, Black Warrior Methane, and/or Fictitious Defendants, were relying upon Fictitious Defendants, as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, to provide suitable and effective fans and ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, to control, degasify, and ventilate the airflow and atmosphere in the No. 7 Mine, for the use and protection of individuals entering, working and/or travelling in an underground mine.
140. Upon information and belief, the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, used in the No. 2 Longwall and Bleeder System of the No. 7 Mine, and which were designed, engineered, manufactured, supplied, marketed, distributed, installed by, and/or sold by Fictitious Defendants, and which caused or contributed to cause the death of Plaintiff's beloved husband and decedent, were defective, unmerchantable, and not suitable or fit for the ordinary, intended and particular purposes for which such products, plans, systems, structures and devices are manufactured, distributed, sold, and/or used.
141. Upon information and belief, the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, designed, engineered, manufactured, supplied, marketed, distributed, installed by, and/or sold by Fictitious Defendants, and which caused or contributed to cause the death of Plaintiff's husband and decedent, were defective, unmerchantable, not suitable or fit for the ordinary purposes, and breached their warranties for such products, plans, systems, structures and devices.
142. As a proximate cause of the defective and unmerchantable condition of the fans and the ventilation controls, plans, systems, structures and devices, and the attendant equipment and components thereof, designed, engineered, marketed, supplied, distributed, installed and/or sold by Fictitious Defendants, Plaintiff's beloved husband and decedent suffered a wrongful death.
143. Plaintiff will give notice to Fictitious Defendants pursuant to the Alabama Commercial Code upon discovery of the identity of the Fictitious Defendants. Upon information and belief, the Fictitious Party Defendants, whose true correct names and
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144. The aforesaid wrongful conduct and breaches of warranty combined and concurred, and as a proximate consequence thereof, Plaintiff's husband and decedent, was caused to suffer a wrongful death.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Fictitious Defendants and Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the Fictitious Defendants’ wrongful acts and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT NINE
Mine Roof, Rib and Floor Controls, Plans, Systems, Structures, and Devices, and the Attendant Equipment and Components
Alabama Extended Manufacturers Liability Doctrine – Product Liability
145. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
146. Upon information and belief, Fictitious Defendants were engaged in the business of designing, engineering, manufacturing, selling, marketing, supplying and/or distributing the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, such as the ones located in the No. 2 Longwall of the No. 7 Mine of JWR, throughout the United States, including the State of Alabama, for use by the general public. Upon further information and belief, the said Fictitious Defendants, during said period of time and for a valuable consideration, designed, engineered, manufactured, sold, marketed, supplied, and/or distributed the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's beloved husband and decedent.
147. Upon information and belief, at the time of the occurrence made the basis of this Complaint, the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which had been designed, engineered, manufactured, sold, marketed, supplied, and/or distributed by Fictitious Defendants, and which were in substantially the same condition as when designed, engineered, manufactured, sold, marketed, supplied and/or distributed, were being used by Defendants in a manner that was foreseeable.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 43 of 87 148. Upon further information and belief, the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were not reasonably safe, but, to the contrary, were defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because Fictitious Defendants, as the designer, engineer, manufacturer, seller, marketer, supplier, and/or distributer of the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's beloved husband and decedent, did not design, engineer, manufacture and sell the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, to appropriately and adequately maintain and control the mine roofs, ribs and floors, and to protect against the degradation of the mine roofs, ribs and floors, such that they would not become a detriment to passage, airflow and atmosphere in the No. 2 Longwall and its Bleeder, to the detriment of those relying upon the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, including the Plaintiff’s beloved husband and decedent.
149. Upon further information and belief, the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were not reasonably safe, but, to the contrary, were defective and unreasonably dangerous and did not meet the reasonable expectations of the ordinary user, because the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were designed, engineered, and manufactured in such a manner that they would fail to appropriately and adequately maintain and control the mine roof, rib and floor and the foreseeable hazards and conditions in the No. 2 Longwall and its Bleeder System, and to protect against the degradation of the mine roof, rib and floor, of the No. 2 Longwall and its Bleeder System, to the detriment of those relying on the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, including the Plaintiff’s beloved husband and decedent.
150. The defective and unreasonably dangerous condition of the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were a proximate cause of Plaintiff's husband's death, and renders said Fictitious Defendants liable to Plaintiff pursuant to the Alabama Extended Manufacturer's Liability Doctrine.
151. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against the Fictitious Party Defendants and Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of their wrongful acts and which will effectively prevent other similar wrongful
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 44 of 87 acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT TEN
Mine Roof, Rib and Floor Controls, System, Plans, Structures, and Devices, and the Attendant Equipment and Components
Negligence, Recklessness, and Wantonness
152. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
153. Upon information and belief, Fictitious Party Defendants were engaged in the business of designing, engineering, manufacturing, selling, marketing, supplying, distributing, training on, and/or installing the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's beloved husband and decedent. Upon further information and belief, Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, manufactured, engineered, distributed, sold, marketed, supplied, trained on, and/or installed mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which were not reasonably safe and which caused or contributed to cause the death of Plaintiff's beloved husband and decedent.
154. Upon information and belief, Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, had a duty to design, engineer, manufacture, sell, distribute, supply, warn, train on, and/or install the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, as a reasonably prudent designer, engineer, manufacturer, merchant, distributor, marketer, retailer, trainer, supplier and/or seller would do.
155. Upon further information and belief, Fictitious Defendants, in their capacity as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, breached their duties in that Fictitious Defendants negligently, recklessly and/or wantonly designed, engineered, manufactured, distributed, marketed, failed to warn,
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 45 of 87 supplied, sold, trained on, and/or installed the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, which were not reasonably safe in that the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, did not appropriately and adequately maintain and control the mine roofs, ribs and floors and protect against the degradation of the mine roofs, ribs and floors so that they would not become a detriment to passage, airflow, and atmosphere in the No. 2 Longwall and Bleeder System, and said negligent, reckless, and/or wanton conduct was a proximate cause of the death of the Plaintiff’s beloved husband and decedent.
156. Furthermore, upon information and belief, Plaintiff alleges that Fictitious Defendants negligently, recklessly and/or wantonly failed to warn Plaintiff's husband and decedent of the dangers associated with the use of the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, in that the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, would not appropriately and adequately maintain and control the mine roofs, ribs and floors and protect against the degradation of the mine roofs, ribs and floors so that they would not become a detriment to passage, airflow, and atmosphere in the No. 2 Longwall and Bleeder System. Said negligent, reckless, and/or wanton conduct was a proximate cause of the fatal injuries suffered by Plaintiff’s beloved husband and decedent.
157. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
158. The aforesaid wrongful conduct of Fictitious Defendants, combined and concurred, to cause or contributed to cause the death of Plaintiff's husband.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Fictitious Defendants and each of the named Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the Defendants' and Fictitious Defendants’ wrongful acts and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT ELEVEN
Mine Roof, Rib and Floor Controls, System, Plans, Structures, and Devices, and the Attendant Equipment and Components
Breach of Warranties
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 46 of 87 159. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
160. Upon information and belief, Fictitious Party Defendants were in the business of manufacturing, designing, engineering, supplying, distributing, marketing, training on, installing, and/or selling the mine roof, rib and floor controls, systems, structures and devices, and the attendant equipment and components thereof, which caused or contributed to cause the death of Plaintiff's husband. Upon further information and belief, in their capacity as manufacturers, engineers, designers, suppliers, merchants, distributors, marketers, retailers, trainers, installers, and/or sellers of mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, Fictitious Defendants manufactured, engineered, designed, supplied, distributed, marketed, installed, trained on, and/or sold the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, to JWR, Black Warrior Methane, and/or Fictitious Defendants, which caused or contributed to cause the death of Plaintiff’s beloved husband and decedent.
161. Upon further information and belief, at the time of the incident made the basis of this Complaint, the mine roof, rib and floor controls, systems, structures and devices, and the attendant equipment and components thereof, were being used by Defendants JWR, Black Warrior Methane and/or Fictitious Defendants for the ordinary and particular purposes for which such mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, were used.
162. Upon information and belief, Fictitious Defendants had reason to know or reasonably should have known that Defendants JWR, Black Warrior Methane and/or Fictitious Defendants purchased the mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, for the purposes of appropriately and adequately maintaining and controlling the mine roofs, ribs and floors and protecting against the degradation of the mine roofs, ribs and floors so that they would not become a detriment to passage, airflow, and atmosphere in the No. 2 Longwall and Bleeder System, and for protecting the health and safety of individuals entering, working and/or travelling in an underground mine such as the No. 7 Mine.
163. Upon information and belief, Fictitious Defendants had reason to know or reasonably should have known that Defendants JWR, Black Warrior Methane and/or Fictitious Defendants, and the users of the mine roof, rib and floor controls, systems, structures and devices, and the attendant equipment and components thereof, were relying upon Fictitious Defendants, as the designers, engineers, manufacturers, merchants, distributors, marketers, retailers, trainers, suppliers and/or sellers of the mine roof, rib and floor controls, systems, structures and devices, and the attendant equipment and components thereof, to provide suitable, appropriate and effective mine roof, rib and floor controls, plans, systems, structures and devices, and the attendant equipment and components thereof, to appropriately and adequately maintain and
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 47 of 87 control the mine roofs, ribs and floors and protect against the degradation of the mine roofs, ribs and floors so that they would not become a detriment to passage, airflow, and atmosphere in the No. 2 Longwall and Bleeder System, for the use and protection of individuals entering, working and/or travelling in an underground mine.
164. Upon information and belief, the mine roof, rib and floor controls, systems, structures and devices, and the attendant equipment and components thereof, used in the No. 2 Longwall and Bleeder System of the No. 7 Mine, and which were designed, engineered, manufactured, supplied, marketed, distributed, installed by, and/or sold by Fictitious Defendants, and which caused or contributed to cause the death of Plaintiff's beloved husband and decedent, were defective, unmerchantable, and not suitable or fit for the ordinary, intended and particular purposes for which such products, plans, systems, structures and devices are manufactured, distributed, sold, and/or used.
165. Upon information and belief, the mine roof, rib and floor controls, systems, structures and devices, and the attendant equipment and components thereof, designed, engineered, manufactured, supplied, marketed, distributed, installed by, and/or sold by Fictitious Defendants, and which caused or contributed to cause the death of Plaintiff's beloved husband and decedent, were defective, unmerchantable, not suitable or fit for the ordinary purposes, and breached their warranties for such products, plans, systems, structures and devices.
166. As a proximate cause of the defective and unmerchantable condition of the mine roof, rib and floor controls, systems, structures and devices, and the attendant equipment and components thereof, designed, engineered, marketed, supplied, distributed, installed and/or sold by Fictitious Defendants, Plaintiff's beloved husband and decedent suffered a wrongful death.
167. Plaintiff will give notice to Fictitious Defendants pursuant to the Alabama Commercial Code upon discovery of the identity of the Fictitious Defendants. Upon information and belief, the Fictitious Party Defendants, whose true correct names and identities are unknown to Plaintiff, but who will be correctly named and identified when ascertained, are the respective entities who or which fit the descriptions above.
168. The aforesaid wrongful conduct and breaches of warranty combined and concurred, and as a proximate consequence thereof, Plaintiff's husband and decedent, was caused to suffer a wrongful death.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Fictitious Party Defendants and the named Defendants, jointly and separately and severally, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the Defendants' and Fictitious Defendants’ wrongful acts and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 48 of 87 COUNT TWELVE
Trespass
169. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
170. Upon information and belief, Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, intentionally and purposely failed to perform pre-mining degasification, post-mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System of the No. 7 Mine, and intentionally and purposefully caused the build-up of heat and gases in the No. 2 Longwall and Bleeder System to levels that were dangerous to humans and cause physical harm, sickness and death to humans, such as the Plaintiff’s beloved husband and decedent.
171. Upon information and belief, while knowing and expecting that employees of JWR, such as the Plaintiff’s beloved husband and decedent, would be required to enter and travel in the No. 2 Longwall and Bleeder System, Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, intentionally and purposefully failed to perform the required pre-mining degasification, post-mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System.
172. Upon information and belief, while knowing and expecting that employees of JWR, such as the Plaintiff’s beloved husband and decedent, would be required to enter and travel in the No. 2 Longwall and Bleeder System, Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, intentionally and purposefully caused the build-up in the No. 2 Longwall and Bleeder System of heat and gases to dangerous and deadly levels.
173. Upon information and belief, the Plaintiff’s beloved husband and decedent, while travelling in the No. 2 Longwall and Bleeder System as ordered by his employer, was exposed to and assaulted by dangerous levels of heat and gases while in the No. 2 Longwall and Bleeders System by Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators.
174. Upon information and belief, the intentional and purposeful build-up and emission of heat and gases by Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, individually and jointly as partners, joint venturers and co-conspirators, proximately caused Plaintiff’s decedent to suffer injury and death.
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175. Upon information and belief, Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, individually and jointly as partners, joint venturers and co-conspirators, intentionally and purposefully caused the heat and gases to trespass upon the person of the Plaintiff’s decedent, proximately causing Plaintiff’s decedent to suffer injury and death.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, jointly, individually, and severally, and as partners, joint venturers and co-conspirators, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the wrongful acts of Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co- conspirators, and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT THIRTEEN
Dual Capacity
176. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
177. Defendant JWR is liable in tort to Plaintiff’s beloved husband and decedent because JWR, in addition to its capacity as an employer, also occupied a second capacity that conferred upon JWR obligations independent of those imposed on JWR as an employer. JWR’s conduct in the second role of capacity has generated obligations that are unrelated to those arising from JWR’s role as the employer of the Plaintiff’s beloved husband and decedent. Specifically, JWR had two independent relationships with Plaintiff’s decedent: 1) that of employer and 2) that of independent contractor responsible for degasification.
178. The death of the Plaintiff’s husband was caused by conduct on the part of Defendant Jim Walter Resources, Inc. which results from a separate, independent relationship between Defendant Jim Walter Resources, Inc. and Plaintiff’s beloved husband and decedent. JWR’s actions in a special individual capacity separate from its capacity as an employer subjects JWR to common law liability.
WHEREFORE, PREMISES CONSIDERED, as the conduct JWR and Fictitious Defendants, combined and concurred, caused or contributed to cause injuries and death to Plaintiff’s beloved husband and decedent, Plaintiff demands judgment of Defendant JWR and Fictitious Defendants, jointly and separately and severally, in such
Page 46 of 60
Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 50 of 87 amount of punitive damages which are reasonable and necessary in accordance with Alabama law to allow money recovery to the Plaintiff by way of punishment to the defendant, and for the added purpose of protecting the public by deterring these defendants and others from doing such wrong in the future. The character and degree of the wrong and the necessity of preventing similar wrongs require judgment against Defendant JWR and all Fictitious Defendants and require the imposition of punitive damages.
COUNT FOURTEEN
Negligence, Recklessness, Wantonness
179. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
180. Upon information and belief, Defendants Black Warrior Methane, El Paso Production and/or El Paso, and Fictitious Defendants, entered into a degasification agreement and other agreements with the owner and operator of the mine and the property, JWR, and its parent company, Walter Energy, wherein Defendants Black Warrior Methane, El Paso Production and/or El Paso, and Fictitious Defendants agreed that they would give all notices and comply with the applicable laws, ordinances, rules, regulations and lawful order of any public authority bearing on the safety of persons or property or their protections from damages, injury or loss. Upon further information and belief, Defendants Black Warrior Methane, El Paso Production and/or El Paso, and Fictitious Defendants negligently, recklessly, and wantonly breached their duties under this contract and violated this contract by failing to follow applicable state and federal rules and regulations where the incident occurred. Upon information and belief, as a proximate result of the negligence, recklessness, and wantonness of Defendants Black Warrior Methane, El Paso Production and/or El Paso, and Fictitious Defendants, Plaintiff’s beloved husband and decedent was wrongfully caused to suffer injury and death.
181. Upon information and belief, Plaintiff’s beloved husband and decedent, Mr. Chaney, was a business invitee of Defendants Walter Energy and Black Warrior Methane, El Paso Production and/or El Paso, and Fictitious Defendants. Upon further information and belief, Defendants Walter Energy and Black Warrior Methane, El Paso Production and/or El Paso, and Fictitious Defendants owed Plaintiff’s husband and decedent, as a business invitee, a legal duty to keep the premises of Mine No. 7 and the No. 2 Longwall Bleeder in a reasonably safe condition; to comply with the applicable federal and state laws and regulations; to warn Plaintiff’s husband and decedent of any dangers and conditions of which he was unaware; to implement and enforce an adequate ventilation and safety plan; to provide appropriate training; to inspect and maintain all work areas where Plaintiff’s decedent and husband was working; and to implement and comply with all safety standards, procedures and regulations, including the integrity of the areas’ roofs, ribs, floors, and ventilation systems, plans, controls,
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 51 of 87 devices, and structures, and the attendant equipment and components thereof, safety equipment, and atmosphere and environment. Upon further information and belief, Defendants Walter Energy and Black Warrior Methane, El Paso Production and/or El Paso, and Fictitious Defendants negligently, recklessly, wantonly and/or willfully breached these duties and these breaches proximately caused injury and death to Plaintiff’s beloved husband and decedent.
WHEREFORE, PREMISES CONSIDERED, as the conduct of these Defendants and Fictitious Defendants, combined and concurred, caused or contributed to cause, injuries and death to Plaintiff’s beloved husband and decedent, Plaintiff demands judgment of these Defendants and Fictitious Defendants, jointly and separately and severally, in such amount of punitive damages which are reasonable and necessary in accordance with Alabama law to allow money recovery to the Plaintiff by way of punishment to the defendant, and for the added purpose of protecting the public by deterring these defendants and others from doing such wrong in the future. The character and degree of the wrong, and the necessity of preventing similar wrongs, require judgment against these Defendants and Fictitious Defendants, and require the imposition of punitive damages.
COUNT FIFTEEN
Negligence, Recklessness and Wantonness
182. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
183. Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, had a duty to perform pre-mining degasification, post- mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System of the No. 7 Mine.
184. Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, breached their respective and joint duties and negligently, recklessly and wantonly failed to perform pre-mining degasification, post- mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System of the No. 7 Mine as required by federal and state law and regulations, and negligently, recklessly and wantonly caused the build-up of heat and gases and the degradation of the airflow and atmosphere in the No. 2 Longwall and its Bleeder System to levels and such a degree that were dangerous and hazardous to the health, safety, and life of persons entering, working in, travelling in, and/or inspecting the No. 2 Longwall and Bleeder System, such as the Plaintiff’s beloved husband and decedent.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 52 of 87 185. Upon further information and belief, although it was reasonably foreseeable, and had happened before, that employees of JWR, such as the Plaintiff’s husband and decedent, would be required to enter and travel in the No. 2 Longwall and its Bleeder System, Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, negligently, recklessly and wantonly breached their duties and failed to perform their duties of pre-mining degasification, post-mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System, as required by federal and state laws and regulations, causing the build-up of heat and gases to dangerous, hazardous and deadly levels and the degradation of the airflow and atmospheric conditions, in the No. 2 Longwall and Bleeder System.
186. Upon information and belief, the Plaintiff’s beloved husband and decedent, while travelling in the No. 2 Longwall and Bleeder System as ordered by his employer, was exposed to and assaulted by dangerous levels of heat and gases, reduced airflow, and degraded and hazardous atmospheric conditions while in the No. 2 Longwall and its Bleeder System, by Defendants JWR, Black Warrior Methane, Walter Energy, El Paso and/or El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators.
187. Upon information and belief, the negligent, reckless and wanton failure of Defendants JWR, Black Warrior Methane, Walter Energy, El Paso and/or El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, to perform their duties of pre-mining degasification, post- mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System, as required by federal and state laws and regulations, caused or contributed to cause the Plaintiff’s beloved husband and decedent to suffer injury and death.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, jointly, individually, and severally, and as partners, joint venturers and co-conspirators, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the wrongful acts of Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co- conspirators, and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 53 of 87 COUNT SIXTEEN
Outrage
188. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
189. Upon information and belief, in violation of applicable state and federal laws and regulations, Defendants and Fictitious Defendants purposely and/or intentionally failed to properly conduct pre-mining, post-mining and other degasification and ventilation, as well as required maintenance and repair of and in the No. 2 Longwall and its Bleeder System, even though they knew that pre-mining, post-mining and other degasification and ventilation, as well as proper maintenance and repair of and in the No. 2 Longwall and its Bleeder System, were necessary to safely operate the coal mine and to protect the health, safety and life of the Plaintiff’s beloved husband and decedent.
190. Upon information and belief, Defendants and Fictitious Defendants consciously and deliberately allowed dangerous conditions, gases, heat and atmosphere to occur and remain in the No. 2 Longwall and its Bleeder System, and did nothing to improve, ameliorate, eliminate or otherwise reduce the dangerous conditions, gases, heat and atmosphere, despite knowing of these unusually dangerous conditions, gases, heat and atmosphere, in order to improve profits.
191. Upon information and belief, Defendants and Fictitious Defendants purposely and/or intentionally failed to close the No. 2 Longwall and its Bleeder System when conditions dictated that closing this section of the No. 7 Mine was the only possible way to protect the health, safety, and life of the Plaintiff’s beloved husband and decedent.
192. Upon information and belief, in violation of applicable state and federal law, Defendants and Fictitious Defendants intentionally and deliberately sent the Plaintiff’s beloved husband and decedent into a dangerous environment that the Defendants and Fictitious Defendants knew or should have known was unreasonably dangerous.
193. Upon information and belief, Defendants and Fictitious Defendants purposely and/or intentionally failed to provide Plaintiff’s husband with a safe workplace and safe working conditions, in order to improve profits.
194. Upon information and belief, Defendants and Fictitious Defendants purposely and/or intentionally violated multiple state and federal mining laws, rules and regulations, as well as reasonable and prudent mining practices.
195. Upon information and belief, Defendants and Fictitious Defendants knew or should have known that exposing Plaintiff’s decedent to the dangerous conditions, gases, heat and atmosphere in the No. 2 Longwall and its Bleeder and thus harming the health, safety and life of Plaintiff’s beloved husband and decedent, would likely result in emotional distress to Plaintiff’s husband and decedent.
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196. Upon further information and belief, Defendant and Fictitious Defendants knew or should have known that exposing Plaintiff’s decedent to the dangerous conditions, gases, heat and atmosphere in the No. 2 Longwall and Bleeder and thus harming the health, safety and life of Plaintiff’s beloved husband and decedent, would likely result in emotional distress to Plaintiff.
197. Upon information and belief, Defendants and Fictitious Defendants’ conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in civilized society.
198. Upon information and belief, Defendants and Fictitious Defendants either purposefully and intentionally or recklessly caused the Plaintiff and Plaintiff’s beloved husband and decedent emotional distress, so severe that no reasonable person could be expected to endure it.
199. Upon information and belief, Defendants and Fictitious Defendants are subject to liability in damages for such distress and the bodily harm resulting from distress.
WHEREFORE, PREMISES CONSIDERED, as the conduct of Defendants and Fictitious Defendants, combined and concurred, caused or contributed to cause injuries and death to Plaintiff’s beloved husband and decedent, Plaintiff demands judgment of Defendants and Fictitious Defendants, jointly and separately and severally, in such amount of punitive damages which are reasonable and necessary in accordance with Alabama law to allow money recovery to the Plaintiff by way of punishment to the defendant, and for the added purpose of protecting the public by deterring these defendants and others from doing such wrong in the future. The character and degree of the wrong, and the necessity of preventing similar wrong, requires judgment against Defendants and Fictitious Defendants, and requires the imposition of punitive damages.
COUNT SEVENTEEN
Civil Conspiracy
200. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
201. Upon information and belief, Defendant Black Warrior Methane is a joint venture owned by Defendant JWR and Defendant El Paso Production, who succeeded the interest of SONAT, formerly Southern Natural Gas Company. Upon information and belief, El Paso Production is a wholly-owned subsidiary of El Paso. Upon further information and belief, JWR is a wholly-owned subsidiary of Defendant Walter Energy.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 55 of 87 202. Upon information and belief, in the earliest phases of development of the JWR Mines in the Brookwood area, agents, servants and employees of JWR announced the corporate policy with regard to these mines concerning methane. Upon information and belief, these mines are the deepest and most gaseous mines in North America, and in response to that condition, JWR, and its parent company, Walter Energy, announced that the mines could not be safely mined without pre-mining degasification. Upon information and belief, Black Warrior Methane Corporation, the offspring of JWR and Defendant El Paso, was formed to provide the services of pre-mining degasification, as well as degasification during and after mining.
203. Upon information and belief, initially pre-mining degasification was conducted with numerous methane degasification wells being drilled in advance of the mining, from the surface vertically down into the coal bed itself.
204. Upon information and belief, the United States Congress provided substantial and significant tax credits for degasification wells up until sometime in 1992 or 1993. Methane degasification required filings and approvals from the State of Alabama Oil and Gas Board. Upon further information and belief, appropriate filings were made by Black Warrior Methane with the State of Alabama Oil and Gas Board, and approvals were given to conduct the vertical drilled pre-mining degasification wells in the Brookwood coal bed area. Upon information and belief, sometime after the expiration of the tax credits, JWR, Black Warrior Methane, Walter Energy, El Paso and El Paso Production, or its predecessor SONAT, and Fictitious Defendants, jointly, severally and individually participated in a civil conspiracy to obstruct the purposes and intent of the required filings with the State of Alabama Oil and Gas Board, and also to obstruct the purposes and intent of the State of Alabama, by and through the coal mining laws of the State of Alabama as implemented by and through the Office of Safety and Inspection and Department of Industrial Relations of the State of Alabama, as well as the United States Federal Coal Mining Health and Safety Act as amended by and through its enforcement, the Mine Safety and Health Administration.
205. Upon information and belief, Plaintiff alleges that the Defendants and Fictitious Defendants conspired to not drill the requisite number of degasification wells and/or to not pump the gas from the No. 7 mine (i.e., to not degasify), to the detriment of the miners and to Plaintiff’s beloved husband and decedent.
206. Upon information and belief, this conspiracy by these Defendants and Fictitious Defendants resulted in exposing the Plaintiff’s beloved husband and decedent (as well as other injured miners and other miners underground who were not killed or injured) to an unreasonable risk of danger by not providing them with a safe place to work or safe working conditions. To the contrary, upon information and belief, the conspiracy exposed the Plaintiff’s decedent and others to hazards to which they should not otherwise have been exposed.
207. Upon information and belief, the conspiracy between these Defendants and Fictitious Defendants was implemented in part because JWR did not provide as part of
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 56 of 87 its ventilation plan the information needed by MSHA to assess adequately the ventilation plan once pre-mining degasification was abandoned. In fact, once pre-mining degasification was abandoned and degasification then became a product associated with mining, all of the degasification activities were required to be approved by MSHA. However, upon further information and belief, as a result of the activities of the joint several, and individual co-conspirators these approvals were not appropriately obtained.
208. Upon information and belief, Plaintiff alleges and avers that the conditions which were caused or allowed to be created by the failure of Fictitious Defendants and Black Warrior Methane Corporation by and with its parent corporations, JWR and Defendant El Paso Productions and El Paso, created the hazardous and harmful conditions which caused and/or contributed to the death of the Plaintiff’s beloved husband and decedent.
209. Upon information and belief, Plaintiff alleges that it has long been known that pre- mining degasification with coal bed degasification generally provides safety from hazardous gases, but additionally it provides safety benefits to ventilation and ventilation plans as well as for mine roof and ground control and rock mechanics issues in underground coal mines. Upon further information and belief, as a result of the negligent, reckless, wanton, with conscious disregard of the circumstances, and reckless conduct of the joint and several co-conspirators, neither the State of Alabama Oil and Gas Board or the Federal Mine Safety and Health Administration or the Office of Safety and Inspection, and the Department of Industrial Relations in the State of Alabama had sufficient information as required under State and Federal Law to require the joint and several co-conspirators named herein to cease and desist from engaging in activities which created an unsafe working environment hazardous to the lives and safety of coal miners working in JWR No. 7 Brookwood Mine.
210. Additionally, upon information and belief, the co-conspirators, Black Warrior Methane, JWR, Walter Energy, El Paso Production, El Paso, and Fictitious Defendants, control the gob wells in the No. 7 Mine in a manner to produce quality methane gas. Upon further information and belief, these gob wells can and also constitute a ventilation system for the mine in that they can affect air flow and temperature of the Mine and the assorted bleeders. In this case, upon information and belief, the Defendants and Fictitious Defendants and co-conspirators did not utilize this ventilation system to improve the conditions in the No. 2 Longwall and Bleeder System during the time of the occurrence of the incidents made the basis of this Complaint, but only after as required to remove the Defendants’ and Fictitious Defendants’ equipment.
211. As a consequence of the combining and concurring, joint and several negligent, reckless, wanton, purposeful, and intentional conduct of these named joint and several co-conspirators, Defendants, and Fictitious Defendants, Plaintiff alleges, upon information and belief, that each of the co-conspirators, Defendants and Fictitious Defendants, are jointly, severally and individually liable for the conduct of the remaining co-conspirators and all of the co-conspirators, Defendants, and Fictitious Defendants, are responsible for the injuries and damages by the injured miners and the death of the Plaintiff’s beloved husband and decedent.
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 57 of 87 WHEREFORE, PREMISES CONSIDERED, as the conduct of Defendant Black Warrior Methane, Defendant Walter Energy, Defendant JWR, Defendant El Paso Production and Defendant El Paso and all other named Defendants and Fictitious Defendants, combined and concurred, caused or contributed to cause injuries and death to Plaintiff’s beloved husband and decedent, Plaintiff demands judgment of Defendant Black Warrior Methane, Defendant Walter Energy, Defendant JWR, Defendant El Paso Production, Defendant El Paso, and Fictitious Defendants, jointly, separately, individually, and severally, in such amount of punitive damages which are reasonable and necessary in accordance with Alabama law to allow money damages to the Plaintiff by way of punishment to the defendant, and for the added purpose of protecting the public by deterring these defendants and others from doing such wrong in the future. The character and degree of the wrong and the necessity of preventing similar wrongs require judgment against Defendant Black Warrior Methane, Defendant Walter Energy, Defendant JWR, Defendant El Paso Production, Defendant El Paso, and Fictitious Defendants, and require the imposition of punitive damages.
COUNT EIGHTEEN
Nuisance
212. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
213. Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, had a duty to perform pre-mining degasification, post- mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System of the No. 7 Mine.
214. Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, breached their respective and joint duties and negligently, recklessly and wantonly failed to perform pre-mining degasification, post- mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System of the No. 7 Mine, as required by federal and state law and regulations, and negligently, recklessly and wantonly caused the build-up of heat and gases and the degradation of the airflow and atmosphere in the No. 2 Longwall and Bleeder System to levels and such a degree as to cause hurt, inconvenience and damage to the health, safety, and life of persons entering, working in, travelling in, and/or inspecting the No. 2 Longwall and Bleeder System, such as the Plaintiff’s beloved husband and decedent.
215. Upon further information and belief, it was reasonably foreseeable that employees of JWR, such as the Plaintiff’s husband and decedent, would be required to enter and travel in the No. 2 Longwall and Bleeder System.
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216. Upon information and belief, the Plaintiff’s beloved husband and decedent, while travelling in the No. 2 Longwall and Bleeder System as ordered by his employer, was exposed to and assaulted by, and caused inconvenience, harm, and damage by, the dangerous levels of heat and gases, reduced airflow, and degraded and hazardous atmospheric conditions in the No. 2 Longwall and its Bleeder System.
217. Upon further information and belief, the negligent, reckless and wanton failure of Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co-conspirators, to perform their duties of pre-mining degasification, post-mining degasification and ventilation, and other degasification and ventilation of the No. 2 Longwall and Bleeder System, as required by federal and state laws and regulations, caused or contributed to cause the Plaintiff’s beloved husband and decedent to suffer injury, hurt, inconvenience, damage and death.
WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, jointly, individually, and severally, and as partners, joint venturers and co-conspirators, and that damages be awarded to Plaintiff in an amount which will adequately reflect the enormity of the wrongful acts of Defendants JWR, Black Warrior Methane, Walter Energy, El Paso, El Paso Production, and Fictitious Defendants, both individually and jointly as partners, joint venturers and co- conspirators, and which will effectively prevent other similar wrongful acts. Further, Plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award Plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
COUNT NINETEEN
Loss of Consortium
218. Plaintiff readopts and realleges the preceding paragraphs of this Complaint as if set forth herein their entirety.
219. Plaintiff had a right to the love, company, fellowship, cooperation, assistance, society, affection, services, and comfort of her spouse, the Plaintiff’s decedent, Mr. Chaney. Plaintiff also had her right to the continuation of the normal marital relationship.
220. The physical injuries and death of Plaintiff’s beloved husband and decedent, Mr. Chaney, which were proximately caused by Defendants and Fictitious Defendants, have also caused Plaintiff to lose her consortium with her husband, Mr. Chaney.
WHEREFORE, PREMISES CONSIDERED, the conduct of Defendants and Fictitious Defendants, combined and concurred, caused or contributed to cause injuries and
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 59 of 87 death to Plaintiff’s beloved husband and decedent, Plaintiff demands judgment against Defendants and Fictitious Defendants, jointly, separately, individually, and severally, in such amount of punitive damages which are reasonable and necessary in accordance with Alabama law to allow money damages to the Plaintiff by way of punishment to the defendants, and for the added purpose of protecting the public by deterring these defendants and others from doing such wrong in the future. The character and degree of the wrong and the necessity of preventing similar wrongs require judgment against Defendants and Fictitious Defendants and require the imposition of punitive damages.
PRAYER FOR RELIEF AND DAMAGES
WHEREFORE, PREMISES CONSIDERED, your Plaintiff demands judgment against
the Defendants and Fictitious Defendants, and each of them, pursuant to the “Alabama
Wrongful Death Act,” §6-5-410 of the Code of Alabama (1975), in such an amount of
punitive damages as the jury may determine to be just and appropriate, in consideration
of the wrongful acts, omissions, negligence, recklessness, wantonness and willfulness
which proximately caused the catastrophic personal injuries and wrongful death of
James Luther Chaney, plus costs of this action.
The Plaintiff respectfully prays for any and all such other, further or additional
relief, general or special, including but not limited to the costs of this action, as this
Court may deem wise and proper in view of the relevant facts and circumstances.
[Remainder of Page Intentionally Blank]
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 60 of 87 Attorneys for Plaintiff
/s/ Bryan P. Winter Bryan P. Winter (WIN-028)
/s/ Albert G. Lewis, III Albert G. Lewis, III (LEW-010)
/s/ Justice D. Smyth, III Justice D. Smyth, III (SMY-004)
/s/ Ruth B. McFarland Ruth B. McFarland (BRI-034)
Of Counsel: Lewis, Smyth & Winter, P.C. 611 Helen Keller Boulevard Tuscaloosa, Alabama 35404 Telephone: (205) 553-5353 Facsimile: (205) 553-5593
/s/ Bobby H. Cockrell, Jr. Bobby H. Cockrell, Jr. (COC-008)
/s/ Byron E. House Byron E. House (HOU-014) Of Counsel: Cockrell & Cockrell 1409 University Boulevard Tuscaloosa, Alabama 35401 Telephone: (205) 349-2009 Facsimile: (205) 758-3090
PLAINTIFF DEMANDS A TRIAL BY STRUCK JURY
/s/ Bryan P. Winter Bryan P. Winter (WIN-028)
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 61 of 87 SERVE THE FOLLOWING DEFENDANTS BY CERTIFIED MAIL
Jim Walter Resources, Inc. c/o C T Corporation System 2 North Jackson Street Suite 605 Montgomery, Alabama 36104
Walter Energy, Inc. c/o C T Corporation System 2 North Jackson Street Suite 605 Montgomery, Alabama 36104
Black Warrior Methane Corporation c/o C T Corporation System 2 North Jackson Street Suite 605 Montgomery, Alabama 36104
El Paso Corporation, Inc. c/o C T Corporation System 2 North Jackson Street Suite 605 Montgomery, Alabama 36104
El Paso Production Company, Inc. 1001 Louisiana Houston, Texas 77002
Mine Safety Appliances Company, Inc. c/o C T Corporation System 2 North Jackson Street Suite 605 Montgomery, Alabama 36104
SERVE THE FOLLOWING DEFENDANTS BY PRIVATE PROCESS SERVER
Keith Shalvey c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 62 of 87 Trent Thrasher c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Keith Plylar c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Paul Phillips c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Milton Ethridge c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Ty Olson c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
William Burgess c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
William Harold Jones c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Romie Pendleton c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Tommy McNider c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
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Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 63 of 87 Joe Steele c/o Black Warrior Methane Corporation 16243 Highway 216 Brookwood, AL 35444
George Richmond 11123 Lighter Drive Northport, AL 35475
Robert Howell c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Gary Allinson c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Dale Byram c/o Jim Walter Resources, Inc. 16243 Highway 216 Brookwood, AL 35444
Charles Willis c/o Black Warrior Methane Corporation 16243 Highway 216 Brookwood, AL 35444
/s/ Bryan P. Winter Bryan P. Winter (WIN-028)
Page 60 of 60
Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 64 of 87 DOCUMENT 627 ELECTRONICALLY FILED 6/26/2015 4:56 PM EXHIBIT B 63-CV-2011-900963.00 CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA MAGARIA HAMNER BOBO, CLERK IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA
CHANEY JEWEL, ) AS ADMINISTRATRIX OF THE ESTATE ) OF JAMES L. CHANEY, Plaintiffs, ) ) V. ) Case No.: CV-2011-900963.00 ) JIM WALTER RESOURCES, INC., ) WALTER ENERGY, INC., ) BLACK WARRIOR METHANE CORP., ) EL PASO CORPORATION, INC. ET AL, ) Defendants. )
ORDER
MOTION TO CONTINUE filed by CHANEY JEWEL and AS ADMINISTRATRIX OF THE ESTATE OF JAMES L. CHANEY is hereby GRANTED TO ALLOW THE PARTIES TO SEEK MEDIATION. THE PARTIES WILL REPORT THE RESULTS OF MEDIATION WITHIN 60 DAYS.
DONE this 26th day of June, 2015.
/s/ JOHN HENRY ENGLAND JR CIRCUIT JUDGE
Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 65 of 87 DOCUMENT 632 ELECTRONICALLY FILED 7/22/2015 11:28 AM 63-CV-2011-900963.00 EXHIBIT C CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA MAGARIA HAMNER BOBO, CLERK
IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA
JEWEL CHANEY, as the Administratrix of the Estate of James Luther Chaney, deceased, and
JEWEL CHANEY, individually, CIVIL ACTION NO. CV: 2011-900963 Plaintiffs,
v.
WALTER ENERGY, INC., et al.,
Defendants.
NOTICE OF BANKRUPTCY AND SUGGESTION OF STAY
Please take notice that on July 15, 2015, Defendant Walter Energy, Inc., (the “Debtor”),
filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code, 11
U.S.C. §§101, et seq. (the “Bankruptcy Code”) in the United States Bankruptcy Court for the
Northern District of Alabama, Southern Division (the “Bankruptcy Court”). A copy of the
Debtor’s voluntary petition is attached as Exhibit “A” and incorporated by reference. The
Debtor’s bankruptcy case currently is pending before the Bankruptcy Court under case number
Case No. 15-02741 (TOM).
The claims asserted in the action arose before the commencement of the Debtor’s
bankruptcy case. Accordingly, the Plaintiff’s claims are subject to the automatic stay provisions
of Section 362(a) of the Bankruptcy Code.
WHEREFORE, premises considered, the Debtor respectfully submits that the instant
lawsuit and collection efforts related thereto are stayed with respect to the Debtor by operation of
the automatic stay provisions of Section 362(a) of the Bankruptcy Code.
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Respectfully submitted,
___/s/ Josh Bennett ______David M. Smith (SMI085) Allen B. “Josh” Bennett (BEN052) Attorneys for Walter Energy, Inc.
OF COUNSEL:
MAYNARD, COOPER & GALE, P.C. 1901 Sixth Avenue North 2400 Regions/Harbert Plaza Birmingham, Alabama 35203-2618 Office: (205) 254-1000 Fax: (205) 254-1999 E-mail: [email protected] [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of July, 2015, I electronically filed the foregoing pleading with the Clerk of the Court using the AlaFile system which will send notice to all counsel of record.
Bryan P. Winter Bobby H. Cockrell, Jr. Albert G. Lewis, III Cockrell & Cockrell Justice D. Smyth, III 1409 University Boulevard Ruth B. McFarland Tuscaloosa, Alabama 35401 Lewis, Smyth & Winter, P.C. 611 Helen Keller Boulevard Attorney for Plaintiff Tuscaloosa, Alabama 35404
Attorneys for Plaintiff
Phillip R. Collins, Esq. Matthew W. Robinett, Esq. Huie, Fernambucq & Stewart, LLP Norman, Wood, Kendrick & Turner Three Protective Center The Financial Center 2801 Highway 280 South 505 20th Street, North Suite 200 Birmingham, Alabama 35203 Birmingham, AL 35223-2484 Attorney for Defendant Mine Safety Attorney for Defendants Steele, Willis Appliances Company, Inc. and Black Warrior Methane Corporation
Laura Susan Burns, Esq. Gregory, Burns & Brashier, LLC Suite 1475 Financial Center 505 20th Street North Birmingham, AL 35203
Attorney for Defendants Steele, Willis and Black Warrior Methane Corporation
_/s/ Josh Bennett______OF COUNSEL
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EX HIBIT A
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ATTACHMENT 1
PENDING OR CONCURRENT BANKRUPTCY CASES FILED BY AFFILIATES
On the date hereof, each of the affiliated entities listed below (including the debtor in this chapter 11 case) filed a voluntary petition for relief under title 11 of the United States Code in the United States Bankruptcy Court for the Northern District of Alabama. A motion has been filed with the Court requesting that the chapter 11 cases of these entities be jointly administered.
Entity Name Case Number Judge Atlantic Development and Capital, LLC Not Yet Assigned Not Yet Assigned Atlantic Leaseco, LLC Not Yet Assigned Not Yet Assigned Blue Creek Coal Sales, Inc. Not Yet Assigned Not Yet Assigned Blue Creek Energy, Inc. Not Yet Assigned Not Yet Assigned J.W. Walter, Inc. Not Yet Assigned Not Yet Assigned Jefferson Warrior Railroad Company, Inc. Not Yet Assigned Not Yet Assigned Jim Walter Homes, LLC Not Yet Assigned Not Yet Assigned Jim Walter Resources, Inc. Not Yet Assigned Not Yet Assigned Maple Coal Co., LLC Not Yet Assigned Not Yet Assigned Sloss-Sheffield Steel & Iron Company Not Yet Assigned Not Yet Assigned SP Machine, Inc. Not Yet Assigned Not Yet Assigned Taft Coal Sales & Associates, Inc. Not Yet Assigned Not Yet Assigned Tuscaloosa Resources, Inc. Not Yet Assigned Not Yet Assigned V Manufacturing Company Not Yet Assigned Not Yet Assigned Walter Black Warrior Basin LLC Not Yet Assigned Not Yet Assigned Walter Coke, Inc. Not Yet Assigned Not Yet Assigned Walter Energy Holdings, LLC Not Yet Assigned Not Yet Assigned Walter Energy, Inc. Not Yet Assigned Not Yet Assigned Walter Exploration & Production LLC Not Yet Assigned Not Yet Assigned Walter Home Improvement, Inc. Not Yet Assigned Not Yet Assigned Walter Land Company Not Yet Assigned Not Yet Assigned Walter Minerals, Inc. Not Yet Assigned Not Yet Assigned Walter Natural Gas, LLC Not Yet Assigned Not Yet Assigned
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B 1A (Official Form 1, Exhibit A) (9/97) [If debtor is required to file periodic reports (e.g., forms 10K and 10Q) with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 and is requesting relief under chapter 11 of the Bankruptcy Code, this Exhibit “A” shall be completed and attached to the petition.] UNITED STATES BANKRUPTCY COURT
______Northern District District of ofAlabama ______Southern Division
In re Walter Energy, Inc. ,)Case No. Debtor ) ) ) Chapter 11
EXHIBIT “A” TO VOLUNTARY PETITION 1. If any of the debtor’s securities are registered under Section 12 of the Securities Exchange Act of 1934, the SEC file number is 001-13711 .
2. The following financial data is the latest available information and refers to the debtor’s condition on March 31, 2015 .
a. Total assets $ 5,202,437.00 b. Total debts (including debts listed in 2.c., below) $ 5,005,288.00
c. Debt securities held by more than 500 holders: Approximate number of holders:
secured u unsecured u subordinated u $ secured u unsecured u subordinated u $ secured u unsecured u subordinated u $ secured u unsecured u subordinated u $ secured u unsecured u subordinated u $
d. Number of shares of preferred stock e. Number of shares common stock 80,746,088 36,000 Comments, if any: Information regarding number of shares of common stock, the approximate number of holders of such common stock, and the persons identified in the response to Question 4 below is based on information known to the Debtor as of close of business on March 3, 2015, the record date for the Company's 2015 annual meeting of shareholders. Number of shares common stock is as of April 30, 2015. Approximate number of holders refers to the number of beneficial holders.
3. Brief description of debtor’s business: The debtor, through its subsidiary companies, is a leading producer and exporter of metallurgical coal for the global steel industry from underground and surface mines with mineral reserves located in the United States, Canada and the United Kingdom. The debtor, through its subsidiary companies, also extracts, processes, markets and possesses mineral reserves of thermal coal and anthracite coal, as well as produces metallurgical coke and coal bed methane gas.
4. List the names of any person who directly or indirectly owns, controls, or holds, with power to vote, 5% or more of the voting securities of debtor:
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WALTER ENERGY, INC.
Certificate of Secretary
The undersigned, Earl H. Doppelt, hereby certifies that he is the duly elected, qualified and acting Secretary of Walter Energy, Inc., a Delaware corporation (the “Company”), and further certifies, solely in such capacity and not in his individual capacity, as follows:
1. Attached hereto as Exhibit A is a true, complete, and correct copy of the resolutions of the board of directors of the Company (the “Board of Directors”) duly adopted at a properly convened meeting of the Board of Directors on July 14, 2015, in accordance with the bylaws of the Company.
2. Such resolutions have not been amended or revoked and are in full force and effect on the date hereof.
[Signature Page Follows]
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Exhibit A
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RESOLUTIONS OF THE BOARD OF DIRECTORS OF WALTER ENERGY, INC.
WHEREAS, the Board of Directors of Walter Energy, Inc., a Delaware corporation has reviewed and considered the materials prepared and presented by the Company’s management team and its financial and legal advisors regarding the Company’s liabilities and liquidity, the strategic alternatives available to it, and the impact of the foregoing on the Company’s business; and
WHEREAS, the Board has consulted with the Company’s management team and its financial and legal advisors, and fully considered each of the Company’s strategic alternatives available to it;
NOW, THEREFORE, BE IT RESOLVED, by the Board that in the judgment of the Board, it is desirable and in the best interests of the Company, its creditors and other interested parties for the Company to file a voluntary petition (the “Petition”) for relief under the provisions of chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern District of Alabama (the “Bankruptcy Court”); and be it further
RESOLVED, that the Company shall be, and it hereby is, authorized, directed and empowered (i) to file the Petition, and (ii) to perform any and all such acts as are reasonable, advisable, expedient, convenient, proper or necessary to effect any of the foregoing; and be it further
RESOLVED, that each of the Chief Executive Officer, Chief Financial Officer, Chief Commercial Officer, Chief Audit Officer, Chief Accounting Officer, General Counsel, Secretary, Treasurer, and Vice Presidents (each individually a “Designated Officer” and collectively, the “Designated Officers”) be, and each of them hereby is, authorized, directed and empowered, on behalf of and in the name of the Company (i) to execute and verify the Petition as well as all other ancillary documents and to cause the Petition to be filed with the Bankruptcy Court and to make or cause to be made prior to the execution thereof any modifications to the Petition or ancillary documents as such Designated Officers, in their sole discretion, deem necessary or desirable, and (ii) to execute, verify and file or cause to be filed all petitions, schedules, lists, motions, applications, pleadings, and other papers or documents necessary or desirable in connection with the foregoing; and be it further
RESOLVED, that each of the Designated Officers be, and each of them hereby is, authorized, directed and empowered, on behalf of and in the name of the Company in its capacity as sole member of each of the limited liability companies listed on Schedule 1 to these resolutions (collectively, the “Subsidiary LLCs”) to take any and all actions as may be reasonable, advisable, expedient,
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convenient, proper or necessary to cause each of the Subsidiary LLCs to file a voluntary petition for relief under the provisions of chapter 11 of the Bankruptcy Code in the Bankruptcy Court, including but not limited to (i) the filing of any petitions, schedules, lists, motions, applications, pleadings, and other papers or documents necessary or desirable in connection with the foregoing, and (ii) the employment of counsel, financial advisors, investment bankers, accountants, and other professionals in connection with the foregoing, and in furtherance of such filings, to authorize and consent to, on behalf of the Company in its capacity as sole member of each of such Subsidiary LLCs, the filing of such voluntary petitions for relief under the provisions of chapter 11 of the Bankruptcy Code in the Bankruptcy Court and ratifying, approving and confirming the actions of the managers of each of such Subsidiary LLCs in authorizing the same; and be it further
RESOLVED, that each of the Designated Officers be, and each of them hereby is, authorized, directed and empowered, on behalf of and in the name of the Company in its capacity as sole shareholder of each of the corporations listed on Schedule 2 to these resolutions (collectively, the “Subsidiary Corporations”) to take any and all actions as may be reasonable, advisable, expedient, convenient, proper or necessary to cause each of the Subsidiary Corporations to file a voluntary petition for relief under the provisions of chapter 11 of the Bankruptcy Code in the Bankruptcy Court, including but not limited to (i) the filing of any petitions, schedules, lists, motions, applications, pleadings, and other papers or documents necessary or desirable in connection with the foregoing, and (ii) the employment of counsel, financial advisors, investment bankers, accountants, and other professionals in connection with the foregoing, and in furtherance of such filings, to authorize and consent to, on behalf of the Company in its capacity as sole shareholder of each of such Subsidiary Corporations, the filing of such voluntary petitions for relief under the provisions of chapter 11 of the Bankruptcy Code in the Bankruptcy Court and ratifying, approving and confirming the actions of the directors of each of such Subsidiary Corporations in authorizing the same; and be it further
RESOLVED, that the law firm of Paul, Weiss, Rifkind, Wharton & Garrison (“Paul Weiss”) be, and hereby is, retained, authorized, empowered and directed to represent the Company as its counsel in connection with any case commenced by the Company under the Bankruptcy Code and all related matters; and be it further
RESOLVED, that the law firm of Bradley Arant Boult Cummings LLP be, and hereby is, retained, authorized, empowered and directed to represent the Company, as co-counsel with Paul Weiss, in connection with any case commenced by the Company under the Bankruptcy Code; and be it further
RESOLVED, that the law firm of Ogletree Deakins LLP be, and hereby is retained, authorized, empowered and directed to represent the Company as its
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special counsel with respect to any labor and employment matters; and be it further
RESOLVED, that the law firm of Maynard, Cooper & Gale, P.C. be, and hereby is retained, authorized, empowered and directed to represent the Company as its special counsel; and be it further
RESOLVED, that Blackstone Advisory Services, L.P. be, and hereby is, retained, authorized, empowered and directed to represent the Company as its investment banker and financial advisor in connection with any case commenced by the Company under the Bankruptcy Code; and be it further
RESOLVED, that AlixPartners, LLP be, and hereby is, retained, authorized, empowered and directed to represent the Company as its financial advisor and consultant in connection with any case commenced by the Company under the Bankruptcy Code; and be it further
RESOLVED, that Kurtzman Carson Consultants LLC be, and hereby is, retained, authorized, empowered and directed to serve as the notice, claims, solicitation and balloting agent in connection with any case commenced by the Company under the Bankruptcy Code; and be it further
RESOLVED, that the Designated Officers be, and they each hereby are, authorized to cause the Company to employ other special counsel, financial advisors, investment bankers, accountants and other professionals as such Designated Officers deem appropriate in connection with any case commenced by the Company under the Bankruptcy Code; and be it further
RESOLVED, that in addition to the specific authorizations heretofore conferred upon the Designated Officers, each of the officers of the Company be, and each of them acting alone hereby is, authorized, directed and empowered, in the name and on behalf of the Company, to do or cause to be done any and all such further acts and things, including the payment of all fees and expenses and other amounts payable by the Company with respect to the foregoing, and to execute and deliver any and all such other instruments, certificates, agreements and documents as they or any of them may consider necessary or appropriate to enable the Company to carry out the intent and to accomplish the purpose of the foregoing resolutions; and be it further
RESOLVED, that each and every officer of the Company be, and each of them acting alone, hereby is, authorized, directed and empowered from time to time in the name and on behalf of the Company, to (i) take all such further actions and execute and deliver all such certificates, instruments, guaranties, notices, agreements and other documents as may be required or as such officer may deem necessary, advisable or proper to carry out the intent and purpose of the foregoing resolutions, including, without limitation, the execution and delivery of any credit
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or security agreements, pledges, financing statements and the like, and (ii) perform the obligations of the Company under the Bankruptcy Code, with all such actions to be performed in such manner, and all such certificates, instruments, guaranties, notices and documents to be executed and delivered in such form as the officer performing or executing the same shall approve, and the performance or execution thereof by such officer shall be conclusive evidence of the approval thereof by such officer and by the Company; and be it further
RESOLVED, that all actions heretofore taken or performed by any officer, director, employee or agent of the Company in connection with the foregoing resolutions be, and they hereby are, confirmed, ratified and approved in all respects.
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SCHEDULE 1
Subsidiary LLCs
Walter Energy Holdings, LLC
Walter Natural Gas, LLC
Jim Walter Homes, LLC
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SCHEDULE 2
Subsidiary Corporations
Walter Coke, Inc.
Walter Minerals, Inc.
Jim Walter Resources, Inc.
Blue Creek Energy, Inc.
Blue Creek Coal Sales, Inc.
J.W. Walter, Inc.
Walter Land Company
Jefferson Warrior Railroad Company, Inc.
SP Machine, Inc.
V Manufacturing Company
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