Callihan v. Surnaik Holdings of WV, LLC
2:17-cv-04386
S.D.W. VaDec 3, 2018Background
- Fire at a Parkersburg, WV warehouse on October 21, 2017; warehouse allegedly used to store hazardous materials shipped by SABIC and Kuraray and operated by Surnaik-related entities.
- Plaintiffs (local residents) allege exposure to smoke, gases, odors, particulate "fallout," bodily injury, property damage, lost property value, emotional distress, and risk of latent disease; brought a class action and filed a fourth amended complaint against Surnaik Defendants, SABIC, and Kuraray.
- Defendants moved to dismiss; motions fully briefed and decided on Rule 12(b)(6) standards.
- Court evaluated multiple tort claims (negligence, gross negligence, trespass, nuisance, negligent infliction of emotional distress, failure to warn, medical monitoring, unjust enrichment, declaratory relief, veil-piercing).
- Court allowed negligence claims against Surnaik Defendants to proceed; dismissed many claims against SABIC and Kuraray for failure to plead requisite facts or duties. Some claims dismissed with prejudice, others without prejudice with leave to amend (deadline set).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence / Gross negligence (Surnaik) | Warehouse operators negligently stored hazardous materials causing present injuries and future risk | Insufficiently pled past or reasonably certain future injury | Denied as to negligence (past injury pled); future damages speculative so not sustained for now |
| Negligence / Gross negligence (SABIC, Kuraray) | Manufacturers participated in joint venture or otherwise responsible for warehouse operations | Did not own/operate warehouse; no joint venture pled; no control | Gross negligence claims against SABIC and Kuraray dismissed without prejudice (SABIC dismissed; Kuraray: gross negligence remains only against Surnaik) |
| Trespass | Deposition of fallout onto plaintiffs' land is a tangible interference | Deposition from airborne fumes/particulate does not constitute trespass under WV law | Trespass dismissed with prejudice (airborne deposits not trespass) |
| Nuisance (private/public) | Interference with property and personal injuries from fallout supports private/public nuisance | Harm is public in nature; plaintiffs lack special injury; defendants argue nuisance didn’t originate from them | Private and public nuisance claims dismissed without prejudice (plaintiffs may replead special-injury facts) |
| Negligent infliction of emotional distress | Exposure to carcinogens caused foreseeable severe emotional distress/fear of disease | Plaintiffs fail to plead exposure particulars, foreseeability elements, and defendants’ duty | Claims dismissed without prejudice as to Surnaik; dismissed without prejudice as to SABIC and Kuraray for failure to allege tortious conduct/duty |
| Failure to Warn | SABIC/Kuraray failed to provide MSDS or storage warnings | Any duty to warn ran to the buyer/operator (Surnaik), not to plaintiffs; plaintiffs are not foreseeable users | Failure to warn dismissed with prejudice (no duty to plaintiffs and plaintiffs cannot assert third-party claim on behalf of Surnaik) |
| Medical Monitoring | Plaintiffs need monitoring because of significant exposure to carcinogens | Plaintiffs failed to plead factual basis for significant exposure, increased risk, and necessity of monitoring; also need underlying tort liability against specific defendants | Medical monitoring claims dismissed without prejudice as to Surnaik; dismissed without prejudice as to SABIC/Kuraray due to lack of underlying tort allegations |
| Unjust Enrichment | Defendants unjustly benefited by offloading hazardous waste/fallout onto plaintiffs' properties | No benefit received by defendants; absurd to treat fallout as stored property for enrichment; lack of consent/expectation to pay | Unjust enrichment dismissed with prejudice (court finds claim implausible) |
| Declaratory Relief re: joint-and-several liability under HWMA | Plaintiffs seek declaration that defendants violated HWMA allowing joint-and-several liability | Plaintiffs failed to allege required pre-suit statutory notice under HWMA | Declaratory claim dismissed without prejudice (notice deficiency); joint-and-several relief contingent on proving HWMA violation |
| Veil-piercing | Plaintiffs seek to pierce corporate veil to reach individuals | Veil-piercing is not a freestanding claim and pleading insufficient facts to pierce | Veil-piercing dismissed with prejudice (plaintiffs conceded by not opposing) |
Key Cases Cited
- McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582 (4th Cir. 2015) (pleading standard and notice function of Rule 8)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (courts disregard legal conclusions; evaluate well-pleaded facts for plausibility)
- Wheeling Park Comm’n v. Dattoli, 787 S.E.2d 546 (W. Va. 2016) (injury is element of negligence claim under WV law)
- Armor v. Lantz, 535 S.E.2d 737 (W. Va. 2000) (requirements for joint venture and shared control/profits)
- Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999) (elements for medical monitoring claim)