West Virginia Supreme Court upholds class certification in IEI fire lawsuit
PARKERSBURG — A class-action lawsuit over the impact of a massive 2017 fire at a Parkersburg warehouse can move forward after the West Virginia Supreme Court of Appeals upheld the certification of the class of plaintiffs.
It’s the second time Surnaik Holdings of WV challenged certification of the class by Harrison County Circuit Court Judge Thomas A. Bedell, who was appointed to hear the case after Wood County Circuit Court judges recused themselves. But this time, the state’s highest court agreed with Bedell’s ruling in a 3-1 decision with recently appointed Justice C. Haley Bunn not participating.
The suit was filed on Oct. 30, 2017, nine days after a fire erupted at the former Ames shovel plant, which was being used as a warehouse to store materials for recycling by International Export and Import Plastics. IEI is part of the Naik family of companies, including Surnaik Holdings.
The fire burned for more than a week, creating a noxious plume of black smoke and impacting local air quality.
Parkersburg resident Paul Snider filed the suit, claiming the company allowed the facility’s fire protection system to fall into a state of disrepair and seeking compensatory damages for respiratory ailments, exacerbation of existing medical conditions, property damage and loss of enjoyment of property caused by the fire.
According to the Supreme Court decision, penned by Chief Justice John A. Hutchison, the class was defined using geographic areas called “isopleths” based on areas where “there were concentrations of fine particles 2.5 micrometers or less in size that had been emitted by the fire; and the fine particles averaged 3 micrograms per cubic meter or more over any 24-hour period during the fire.”
The class was certified in September 2019, but Surnaik’s attorneys sought a writ of prohibition, which the state Supreme Court granted in November 2020, saying more consideration needed to be given to the requirements for certifying the class.
Bedell certified the class again in June 2021, and Surnaik challenged it, using many of the same arguments. But this time the court had a slightly different makeup following the election of Justice William R. Wooton in 2020, replacing retired Justice Margaret Workman, and the resignation of former Justice Evan Jenkins, who Bunn was appointed to replace.
“The difference, however, was that the circuit court’s order clearly contains the appropriate and thorough analysis of predominance and superiority required by our decision in” the first case, the opinion says.
The opinion notes the Surnaik arguments are similar, and in one case identical, to those offered in the previous petition. Among those was that the vast majority of the people in the class were not injured by the smoke.
“We have found the mere invasion of property by dust, smoke or other noxious elements to be actionable,” it says.
Justice Tim Armstead dissented, saying that although he agrees with his fellow justices on some of the arguments, he would have granted the writ based on the question of predominance.
“It is difficult to see how common questions can predominate in a case where 70 percent of the class has suffered no injury and the injuries that were arguably suffered may vary greatly,” he said.
Armstead said a class-action format will not be an efficient means of addressing the case because of the different circumstances that will apply to each class member.
Alex McLaughlin, a Charleston attorney representing Snider, said he was pleased with the decision. The next step will be working with the judge and opposing counsel to establish a schedule for approving and sending out the required class action notices.
“At one point, we were on track for a very speedy trial in this case, especially considering the complexities of the case, but that has all changed as a result of two appeals to the Supreme Court and COVID in between,” McLaughlin said via email.
A call to Ryan Donovan, an attorney for Surnaik, was not returned Thursday.
Evan Bevins can be reached at email@example.com.