CHARLESTON, W.Va. — Lawyers representing The Greenbrier resort and associated properties might have jumped the gun on filing a federal lawsuit but don’t want it to be thrown out.
Lawyers for the properties owned by Gov. Jim Justice and his family filed a lawsuit in February over insurance claims stemming from the devastating 2016 flood.
Last week, U.S. District Judge Joseph Goodwin filed an order warning that he’ll throw out the lawsuit unless the plaintiffs can say why they haven’t officially notified the insurers about the lawsuit.
Now lawyers for the plaintiffs filed a response, asking for a little more time to negotiate with the insurers.
The response says that in September, 2017, some of the plaintiffs and defendants entered into a tolling agreement, which pauses a statute of limitations to assess the viability of a claim.
The agreement was “in relation to earlier litigation that Plaintiffs had filed to obtain copies of insurance policies that Defendants had refused to provide.”
The lawyers for The Greenbrier and associated companies acknowledge there was some overlap with the current lawsuit, but they didn’t know that when they filed the 62-page lawsuit in February.
“The claims covered by the Tolling Agreement arguably include those asserted by Plaintiffs in the instant matter, but present counsel for Plaintiffs was not aware of the existence of the Tolling Agreement when the Complaint in this matter was filed,” the lawyers wrote.
Once the plaintiffs’ lawyers learned about they agreement, they initially invoked a termination provision.
But after that, the two sides agreed to extend it until this July 1 to attempt to resolve matters.
The parties have a meeting June 18, 2019, in Pittsburgh “to discuss whether the matter can be resolved and the complaint dismissed.”
If the meeting goes nowhere, the lawyers wrote, the plaintiffs will go ahead with service of process — official notification of the lawsuit — on July 1.
“Plaintiffs therefore respectfully request that this matter remain on the court’s active docket.”
There are several lawyers on the plaintiffs’ side, including former federal prosecutor Mike Carey, who also represents Justice and the Governor’s Office on several other matters.
The lawsuit claims insurance companies owe at least $100 million to fix damage from an enormous flood that hit the historic Greenbrier Resort and surrounding properties.
The plaintiffs include The Greenbrier, The Greenbrier Sporting Club, Greenbrier Sporting Club Development Co., Old White Charities, Justice Family Group and more.
The lawsuit claims the insurance companies have dragged their heels on payment after the June 23, 2016, flood, creating cash flow problems that affected the rest of the family’s business holdings.
The defendants — insurance companies and underwriters — are so numerous that describing them takes 18 pages of the 62-page lawsuit.
The lawsuit claims the insurers have paid only $37 million of The Greenbrier’s flood-related expenses.
“Because of Defendant Insurers’ intransigent, bad faith, unreasonable refusal to honor their contractual obligations, Plaintiffs — and in particular Greenbrier Hotel — have been brought to near financial insolvency and have been unable to fulfill certain of their financial obligations,” the lawsuit states.
The lawsuit asks for millions of dollars in losses, plus damages and attorneys fees. Discovery has been referred to Magistrate Judge Dwane Tinsley.
Goodwin, in his order dated May 21, wrote that The Greenbrier and associated companies had already had 90 days to serve the insurers with official papers on the lawsuit.
He was giving the plaintiffs 10 days to respond.
The filing “orders the plaintiffs to demonstrate good cause for not serving the defendants with process.”
“Failure to respond to this notice within ten days or an insufficient showing of good cause will result in dismissal without prejudice of this case against the defendants.”