CHARLESTON -- Four months, two recusals and numerous national headlines later, West Virginia's Supreme Court has echoed its earlier conclusion vacating a $76.3 million judgment against Massey Energy Co. in a coal contract dispute.
As it had in November, the court voted 3-2 to overturn a 2002 Boone County verdict that Harman Mining Co., and its president had won against the competing coal producer.
Thursday's majority decision repeated the initial findings that a clause in the underlying supply contract and a related Virginia lawsuit should each have barred the Boone County case.
But the court did so without Chief Justice Elliott "Spike" Maynard, who was part of the November majority, and Justice Larry Starcher, who had dissented.
Maynard recused himself after photos surfaced showing him in Monaco with Don Blankenship, Massey's chief executive, while the company pursued its appeal.
Lawyers for Harman President Hugh Caperton had filed the anonymously obtained 2006 vacation shots as they sought a rehearing in the case and Maynard's withdrawal. The photos generated headlines well beyond West Virginia. After the chief justice stepped down, while denying any wrongdoing, the court erased the November decision and reheard the arguments last month.
Starcher had by then also disqualified himself from the case, amid Massey's allegations of bias and in an unsuccessful bid for a third justice's recusal.
Justice Brent Benjamin rebuffed that attempt. As acting chief justice, he appointed replacements for his withdrawn colleague and again joined the majority Thursday in siding with Massey.
Subbing for Maynard, Hampshire County Circuit Judge Donald Cookman dissented along with Justice Joseph Albright. Marion County Circuit Judge Fred Fox, sitting in for Starcher, went with Davis and Benjamin.
"As we said previously, we have always believed that the verdict in the lower court was wrong and we are pleased that the (West Virginia) Supreme Court has once again agreed," said Shane Harvey, Massey's general counsel.
Lawyers for Harman and Caperton said they will ask the U.S. Supreme Court to review the case and Benjamin's decision to remain on it.
"Our clients must now turn to our Nation's highest court to seek the justice that they have been manifestly denied," lawyers Bruce Stanley and Dave Fawcett said in a joint statement.
Blankenship, president, chairman and CEO of the Richmond, Va.-based Massey, declined comment Thursday.
Benjamin also issued a separate statement Thursday rejecting an 11th-hour recusal request.
Harman and Caperton cited the estimated $3.5 million that Blankenship estimated spending to help Benjamin defeat an incumbent justice for his court seat in 2004. Noting the passage of time since his election, Benjamin also challenged the credibility and relevance of a Harman-commissioned poll that queried West Virginians about the case and surrounding issues.
The survey of 753 residents found 67 percent with doubts about Benjamin's impartiality. But Benjamin has also ruled in several cases against Massey, include two involving millions of dollars in owed severance taxes.
Harman had been providing metalworking-grade coal to a steelmaker through its contract with Wellmore Coal Corp. The Boone County jury, and November's ruling, found that Massey bought Wellmore to interfere with that arrangement, substituting its own coal for Harman's and forcing Harman out of business.
The jury had awarded Harman and Caperton, also left bankrupt, $50 million in damages. Post-judgment interest increased the award to $76.3 million.
As with the November ruling, Thursday's decision rested on a clause in the 1997 contract that required any resulting disputes to be resolved in the Virginia county where the coal was mined. Writing again for the majority, Davis set out a four-part test for weighing such clauses in the new, 64-page opinion.
"The forum-selection clause should have been enforced by the circuit court, and that court's failure to grant the Massey Defendants' motion to dismiss based upon the forum-selection clause was an abuse of discretion," Davis wrote.
Joined by Cookman, Albright disagreed with that finding as he had in November.
"Under our law as it existed before the majority decision in this case, the proper inquiry regarding the enforceability of a forum selection clause in a contract was whether, with careful analysis, its enforcement was reasonable and just in the circumstances of the case," the joint dissent said. "In this case it was not."
But the majority also repeated the earlier finding that a 1998 breach of contract lawsuit filed by Harman against Wellmore, which resulted in a $6 million verdict for Harman, should also have barred the West Virginia case.
Filed later that year, the Boone County lawsuit added Caperton as a plaintiff and Massey as a defendant along with several of its subsidiaries. With both sides having operations in West Virginia, that case focused on such tort-related claims as interference with a contract, fraudulent misrepresentation and concealment.
Besides the headline-grabbing photos and sometimes-testy recusal battles, the case decided Thursday also sparked lawsuits filed by Massey against the trial stenographer and two of its defense firms.
ABC is working on a story about Blankenship's relationship with Maynard. A network spokesman said Thursday that Blankenship threatened to shoot an ABC News producer and tore his shirt collar. The newsman had tried to interview him in a parking lot outside the coal company's offices in eastern Kentucky.
Blankenship said the scuffle happened after the producer put a camera too close to his face.
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