MICHAEL v. Estate of Alex Kovarbasich, By and through Albert F. Marano, Sheriff of Harrison County as administrator for the estates of Alex Kovarbasich, Defendant. (2019)

The facts and history of this case are set forth in this Court’s prior opinion, Michael v. Consolidation Coal Co., 744 F. App'x 152 (4th Cir. 2018). In that opinion, we certified two questions of law to the Supreme Court of Appeals of West Virginia (the West Virginia court), pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code §§ 51-1A-1 through 51-1A-13. The West Virginia court accepted our request, and restated the first certified question as follows:

Is a fraudulent concealment claim cognizable when the alleged injury was the plaintiffs’ loss of a timely claim for wrongful death under West Virginia Code §§ 55-7-5, 55-7-6 (1967)?

Michael v. Consol. Coal Co., 828 S.E.2d 811, 816–17 (W. Va. 2019).^*

In their complaint, the plaintiffs, survivors of 78 miners killed in a mine explosion, alleged against Consolidation Coal Co. a single claim of “fraud, concealment and nondisclosure” based on the company’s fraudulent concealment of the cause of the explosion. Michael, 744 F. App'x at 154. The plaintiffs alleged that this act of fraudulent concealment deprived them of their right to obtain relief under West Virginia’s wrongful death statutes, West Virginia Code §§ 55-7-5, 55-7-6 (1967). Id. at 154-55. The district court dismissed the plaintiffs’ complaint, holding that West Virginia did not recognize a fraudulent concealment claim in this context and, even if the claim were cognizable, it was time-barred. Id. at 155. The plaintiffs appealed to this Court.

Upon review of the restated certified question, the West Virginia court held unequivocally that “no cause of action for fraudulent concealment exists” when the injury alleged is “the plaintiffs’ loss of a timely claim for wrongful death under the West Virginia wrongful death statutes, [West Virginia] Code §§ 55-7-5 and 55-7-6.” Michael, 828 S.E.2d at 819–20. The court further explained that, construed as a wrongful death claim, the plaintiffs’ claim was barred by the two-year statute of limitations applicable at the time of the decedents’ deaths. Id. at 818–20. The court declined to apply retroactively West Virginia precedent, decided decades after the explosion, which extended the limitations period for certain wrongful death claims. Id. at 819–20.

Applying these principles of law articulated by the West Virginia court, we hold that the district court properly dismissed the plaintiffs’ complaint. We therefore affirm the district court’s judgment.

AFFIRMED

FOOTNOTES

FOOTNOTE.   Based on its answer to this question, the court declined to answer the second certified question regarding the applicability of West Virginia’s “discovery rule” to the limitations period for a fraudulent concealment claim. See Michael, 828 S.E.2d at 814–15, 816–17, 820.

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.