                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-1564


MICHAEL D. MICHAEL, as the Administrator of the Estate of Jack D. Michael;
JUDITH A. KUHN, as the Administratrix for the Estate of Paul F. Henderson et
al.,

                    Plaintiffs - Appellants,

             v.

CONSOLIDATION COAL COMPANY, a Delaware Company,

                    Defendant - Appellee,

             and

ESTATE OF ALEX KOVARBASICH, By and through Albert F. Marano, Sheriff
of Harrison County as administrator for the estates of Alex Kovarbasich,

                    Defendant.


Appeal from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, Senior District Judge. (1:14-cv-00212-IMK-JES)


Argued: May 9, 2018                                             Decided: July 24, 2019


Before GREGORY, Chief Judge, and MOTZ and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.
ARGUED: Scott Sumner Segal, SEGAL LAW FIRM, Charleston, West Virginia, for
Appellants. William Henry Jernigan, DINSMORE & SHOHL LLP, Charleston, West
Virginia, for Appellee. ON BRIEF: Timothy C. Bailey, BAILEY, JAVINS &
CARTER, LC, Charleston, West Virginia; Mark A. Barney, BARNEY LAW PLLC,
Hurricane, West Virginia; Samuel A. Hrko, BAILEY & GLASSER, LLP, Charleston,
West Virginia; C. Paul Estep, Steven L. Shaffer, ESTEP & SHAFFER, LC, Kingwood,
West Virginia, for Appellants. William E. Robinson, Alex M. Greenberg, Christopher
M. Jones, DINSMORE & SHOHL LLP, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       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., ---S.E.2d---, 2019 WL 2414739, at *5 (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



       ∗
          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, 2019 WL 2414739,
at *3, 5, 10.



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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,

2019 WL 2414739, at *9. 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 *8-9. 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 *9.

       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




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