FRANKFORT, Ky. (Legal Newsline) - A Kentucky appeals court upheld the dismissal of a proposed class action by property owners against a nearby coal-fired power plant, saying they tailored the suit to avoid problems over personal-injury claims only to run afoul of other procedural rules governing class actions.
In 2017, homeowners sued Louisville Gas & Electric over emissions from its Cane Run Plant, claiming coal dust, fly ash and other substances were contaminating their land and causing a variety of health problems. They sought to certify a class of some 9,800 property owners to sue for money to remove the pollutants and compensate the owners for the loss of use and enjoyment of their properties.
A district court refused to certify the class, however, citing the potential for the case to strip other class members of their ability to sue for physical injuries.
Claims involving purely economic damages are easier to package into class actions than personal injury claims, because physical injuries tend to be too diverse and present too many different potential defenses to be bundled together into a single lawsuit.
The lawyers behind the Kentucky case ran into another snag when they tried to restrict their lawsuit to economic claims, however. A federal court in Burkhead v. LG&E, another case involving a power plant, ruled that property-only class actions threaten the rights of class members who might have personal-injury claims, since at the conclusion of the case they would no longer be able to litigate them.
One of the main functions of a class action is to resolve all claims in a single proceeding and the doctrine of res judicata prevents people from later suing over claims that were or could have been included in the original suit.
The plaintiffs argued personal injury claims would be “purely speculative, hypothetical, and barred by the statute of limitations.” But in their complaint they sought money for the harm caused by power plant emissions, which they described as toxic and harmful to their health.
The Kentucky appeals court said the potential for personal injury claims meant the property-only class action must fail. One of the most important rules governing class actions is adequacy of representation – that the plaintiffs and their lawyers in control of the litigation represent the interests of every class member affected by it. Since the property owners suing LG&E might win a verdict or negotiate a settlement ending all claims over the pollution, the appeals court ruled, they could not slice off personal-injury claims from their case in order to obtain class certification more easily.
“Considering the particular facts alleged in the complaint and the interdependency between the class members’ property claims and potential personal injury claims, we are simply unable to conclude the circuit court’s reasoning strayed from the parameters of the requirement for class certification,” the appeals court concluded.