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updated 11/12/2010 3:35:42 PM ET 2010-11-12T20:35:42

A judge dismissed all claims against one of 12 defendants Friday in a wrongful death lawsuit filed by the families of two Maryland coal miners killed when a surface mine wall collapsed near Barton in 2007.

Lawyers for Tri-Star Mining Inc. employee Kerry Beener argued successfully that the families' complaint alleges no wrongdoing by their client. The complaint states that Beener arrived on the scene after the 250-foot highwall of the company's No. 3 surface mine had failed, burying Dale F. Jones and Michael R. Wilt under thousands of tons of rock.

Allegany County Circuit Judge W. Timothy Finan said he would rule later on defense motions to dismiss claims for punitive damages against Kerry Beener's father, Tri-Star chief George R. Beener of Rockwood, Pa.; his companies, BTC Developments of Rockwood, Pa. and BTC Trucking Inc. of Barton; and safety trainer Bituminous Safety Services Inc., of Morgantown, W.Va.

The families of Jones, 51, of Lonaconing, and Wilt, 38, of Frostburg, contend that gross negligence by the mine's planners, operators and safety trainers caused the collapse that buried the men on April 17, 2007. They are seeking a total of $8 million in compensatory damages, plus unspecified punitive damages.

The defendants have denied the claims.

To win punitive damages, the plaintiffs would have to show that the defendants acted with "actual malice," meaning they had either an evil motive, intent to injure or ill will, or that they knew of the mine's defect and deliberately disregarded the consequences.

The federal Mine Safety and Health Administration fined Tri-Star $100,000 last year for failing to establish a safe ground-control plan, conducting an inadequate daily safety inspection and failing to train miners on the hazards of surface-mining terrain weakened by decades of underground mining.

The families' lawyers argued Friday that the defendants knew the highwall, or mine face, was unsound and ignored obvious danger signs such as cracks and fissures hours before the collapse.

"We allege this is an accident that was going to happen and the defendant knew it," said James K. MacAlister, representing Jones' widow Linda and two children.

Lawyers for George Beener and Bituminous Safety said there was no evidence their clients wished to harm the victims.

"There was no malice," said George Beener's lawyer, Louise Warmath

Kerry C. Raymond, representing Bituminous Safety and its owner, Edward A. Moss, said Moss visited the mine just once a year for safety training.

"He had no ill intent to cause a series of events that occurred months later," she said.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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