Previous vote should affirm $50M verdict, mining company says

John O'Brien Jul. 24, 2009, 12:45pm


CHARLESTON, W.Va. (Legal Newsline) - There is no need for the West Virginia Supreme Court to hear a headline-causing case a third time, attorneys for Harman Mining Co. said Thursday.

Harman, the recipient of a $50 million Boone County verdict against Massey Energy, says a previous vote that had overturned the verdict is now in its favor. Taking away Chief Justice Brent Benjamin's vote for Massey, the last vote would be 2-2 and affirm the verdict.

The U.S. Supreme Court ruled in June that Benjamin should have recused himself from the case because of campaign support from Massey CEO Don Blankenship.

"When a justice is disqualified, and the result is an evenly divided court, the standard practice in West Virginia is to affirm the last official ruling in the matter," said Harman's motion, filed Thursday.

Arguments have been scheduled for Sept. 8, and Senior Status Judge James Holliday has been appointed to take Benjamin's place.

The case concerns a coal supply contract.

Hoping to unseat Justice Warren McGraw in 2004, Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "And For the Sake of the Kids."

When the $50 million verdict against Massey came before the Court in 2007, Benjamin twice refused to step down.

The state Supreme Court overturned the verdict in Nov. 2007 with a 3-2 vote, then again by the same vote in April after then-Chief Justice Spike Maynard recused himself.

Photographs had surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Caperton, throughout, complained that Benjamin should have taken himself off the case. Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.

Benjamin refused and insisted that he cannot control spending outside his campaign. The U.S. Supreme Court voted 5-4 that he should've recused himself.

From Legal Newsline: Reach John O'Brien by e-mail at

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