For the second time in five months, the West Virginia Supreme Court ruled Thursday that Massey Energy does not have to pay a multimillion-dollar verdict to a bankrupt Boone County coal company and its owner.

The 3-2 decision released Thursday reaffirms another 3-2 decision on Nov. 21. Both decisions, written by Justice Robin Davis, reverse a 2002 decision from Boone Circuit Court that awarded $50 million to Harman Mining and its owner, Hugh Caperton. With interest, the verdict would now be worth about $77 million.

"We reverse the judgment in this case and remand for the circuit court to enter an order dismissing this case against A.T. Massey Coal Company and its subsidiaries with prejudice," Davis wrote.

Bruce E. Stanley, a Pittsburgh lawyer who represents Caperton, said he plans to appeal Thursday's ruling to the U.S. Supreme Court.

The state Supreme Court agreed to reconsider its decision after lawyers for Harman and Caperton presented photos of Chief Justice Elliott "Spike" Maynard and Massey chief executive Don Blankenship on vacation on the French Riviera in July 2006, when the case was pending before the Supreme Court. (A national ABC News producer working on that story apparently got into a scuffle with Blankenship earlier this week.)

Maynard initially refused to step down after the photos were made public, then agreed to recuse himself. Another justice, Larry Starcher, also recused himself because he had publicly criticized Massey and Blankenship.

In effect, Maynard's and Starcher's recusals canceled each other out. Maynard's replacement, Circuit Judge Donald Cookman of Hampshire County, said Massey should have to pay the judgment. Circuit Judge Fred Fox of Marion County, who replaced Starcher, agreed with the majority that Massey should not have to pay. He joined Justice Joseph Albright in dissenting.

Justice Brent Benjamin, who voted against Harman and Caperton on Thursday, repeatedly refused to disqualify himself from hearing the case. Blankenship spent about $3.5 million of his own money to help get Benjamin elected to the Supreme Court in 2004.

Benjamin, as acting chief justice, also appointed the replacements for Maynard and Starcher.

"We are not surprised that Justice Benjamin cast the deciding vote to reverse the jury verdict in this case in order to allow Massey to walk away from a $77 million judgment," Stanley said.

The original lawsuit was prompted by Massey's cancellation of a long-term contact Harman had to supply metallurgical coal to LTV Corp. steel mills in the Pittsburgh area.

In Thursday's majority opinion, Davis again said Harman and Caperton did not have the right to sue Massey in West Virginia after they won a $6 million breach-of-contract verdict in a Buchanan County, Va. court.

In his dissent, Albright wrote, "Regrettably, the majority has radically strayed from the fundamental principles of fairness and justice in maintaining its course of setting aside the Boone County decision in this case."

Lawyers for Harman and Caperton argued the Virginia lawsuit raised narrow breach of contract issues, while the Boone County lawsuit raised much larger questions about Massey's intent to destroy Harman Mining's ability to continue doing business.

The Virginia lawsuit focused on Harman's loss of a long-term coal supply contract it had signed with United Coal and Wellmore Coal, after Massey bought those companies on July 31, 1997.

For the second time in five months, the West Virginia Supreme Court ruled Thursday that Massey Energy does not have to pay a multimillion-dollar verdict to a bankrupt Boone County coal company and its owner.

The 3-2 decision released Thursday reaffirms another 3-2 decision on Nov. 21. Both decisions, written by Justice Robin Davis, reverse a 2002 decision from Boone Circuit Court that awarded $50 million to Harman Mining and its owner, Hugh Caperton. With interest, the verdict would now be worth about $77 million.

"We reverse the judgment in this case and remand for the circuit court to enter an order dismissing this case against A.T. Massey Coal Company and its subsidiaries with prejudice," Davis wrote.

Bruce E. Stanley, a Pittsburgh lawyer who represents Caperton, said he plans to appeal Thursday's ruling to the U.S. Supreme Court.

The state Supreme Court agreed to reconsider its decision after lawyers for Harman and Caperton presented photos of Chief Justice Elliott "Spike" Maynard and Massey chief executive Don Blankenship on vacation on the French Riviera in July 2006, when the case was pending before the Supreme Court. (A national ABC News producer working on that story apparently got into a scuffle with Blankenship earlier this week.)

Maynard initially refused to step down after the photos were made public, then agreed to recuse himself. Another justice, Larry Starcher, also recused himself because he had publicly criticized Massey and Blankenship.

In effect, Maynard's and Starcher's recusals canceled each other out. Maynard's replacement, Circuit Judge Donald Cookman of Hampshire County, said Massey should have to pay the judgment. Circuit Judge Fred Fox of Marion County, who replaced Starcher, agreed with the majority that Massey should not have to pay. He joined Justice Joseph Albright in dissenting.

Justice Brent Benjamin, who voted against Harman and Caperton on Thursday, repeatedly refused to disqualify himself from hearing the case. Blankenship spent about $3.5 million of his own money to help get Benjamin elected to the Supreme Court in 2004.

Benjamin, as acting chief justice, also appointed the replacements for Maynard and Starcher.

"We are not surprised that Justice Benjamin cast the deciding vote to reverse the jury verdict in this case in order to allow Massey to walk away from a $77 million judgment," Stanley said.

The original lawsuit was prompted by Massey's cancellation of a long-term contact Harman had to supply metallurgical coal to LTV Corp. steel mills in the Pittsburgh area.

In Thursday's majority opinion, Davis again said Harman and Caperton did not have the right to sue Massey in West Virginia after they won a $6 million breach-of-contract verdict in a Buchanan County, Va. court.

In his dissent, Albright wrote, "Regrettably, the majority has radically strayed from the fundamental principles of fairness and justice in maintaining its course of setting aside the Boone County decision in this case."

Lawyers for Harman and Caperton argued the Virginia lawsuit raised narrow breach of contract issues, while the Boone County lawsuit raised much larger questions about Massey's intent to destroy Harman Mining's ability to continue doing business.

The Virginia lawsuit focused on Harman's loss of a long-term coal supply contract it had signed with United Coal and Wellmore Coal, after Massey bought those companies on July 31, 1997.

The Boone County lawsuit focused on Caperton's failed efforts to sell Harman to Massey in late 1997 and early 1998.

Caperton says that when he met Blankenship on Nov. 26, 1997 in his Beckley offices, he told Blankenship confidentially about his plans to expand Harman's mining operations near Grundy, Va.

Then Wellmore stopped buying coal from Harman on Dec. 1, 1997, playing a major role in Harman's bankruptcy in May 1998.

Davis wrote Thursday, "Although the Virginia proceeding addressed [breach of] contract claims, while the [Boone County] proceeding addressed tort claims, this distinction is of no moment."

She said claims made by Caperton and Harman in both suits "arise from the same 'conduct, transaction or occurrence' ... carried out under the direction and control of the Massey defendants.

"Thus, the tort claims asserted in this action arise from the same transactional facts as the Virginia proceeding and should have been asserted in that proceeding," Davis wrote.

But Albright wrote in his dissenting opinion, "The weight of the evidence at trial fairly established and was clearly sufficient for the jury to conclude that Massey chose to acquire [United Coal] in order to eliminate a competitor and to gain more access to LTV."

Lawyers for Caperton and Harman criticized Davis' Nov. 21 opinion that cited a rule the Virginia Supreme Court created in 2006 to prevent the same civil lawsuit from being filed more than once.

They argued the new rule "clearly has no application to this case because it expressly states that it is effective only with respect to Virginia judgments entered in civil actions commenced after July 1, 2006."

Davis re-asserted her previous opinion on Thursday, stating, "We are called upon to decide whether or not the principles of law developed in this opinion, involving forum-selection clauses, should be applied retroactively to the parties....

"We find no impediment to applying the new forum-selection clause principles to the parties in this case," she wrote.

Albright's dissent stated, "Apparently the [Supreme Court] majority believes Mr. Caperton and the Harman companies should have anticipated all of the peculiarities arising in this case.

"Ultimately, by placing such unrealistic requirements as to foreseeability [about future behavior by] contracting parties, the majority makes West Virginia a truly vulnerable place to do business," Albright wrote.

To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.