Ketchum
Workman
Davis
McHugh
Berger
CHARLESTON – The West Virginia Supreme Court has ruled that a woman can go ahead with her car wreck lawsuit, after the Kanawha Circuit Court dismissed it for inactivity.
The court ruled 3-2 (justices Robin Jean Davis and Thomas McHugh dissenting) that the circuit court was wrong to dismiss Jennifer L. Caruso's 2004 lawsuit over a car wreck -– even though there had been no movement on her case for more than 54 weeks.
Caruso, through lawyer Terri Tichenor, filed a lawsuit Oct. 12, 2004, against Brian M. Pearce and P&T Trucking over a Nov. 8, 2002, car wreck. Caruso claimed it was the defendants' negligence that caused the wreck.
According to the court's opinion filed this week, Pearce and P&T Trucking filed an answer to the lawsuit in November 2004, filed a third-party complaint against Quality Machine Company and Garry K. Knotts and served interrogatories on Caruso, which she answered in March 2005.
The parties then agreed that Pearce and P&T Trucking could file another third party complaint against Joyce K. Hall in October 2005.
In March 2006, according to the opinion, the various parties began sending discovery requests among each other, but not to Caruso. The last response to a discovery request was filed on July 13, 2006.
On July 31, 2007, the Kanawha Circuit Clerk noticed the various parties that the case would be dismissed for inactivity because it had been more than a year without an order or proceeding.
State court rules allow for such dismissals to ensure speedy and inexpensive proceedings for all litigants.
Kanawha Circuit Judge Irene Berger dismissed the case with an order on Oct. 12, 2007, finding that Caruso could not show good cause for the lack of activity. Caruso, represented now by Frances C. Whiteman, appealed.
The opinion, written by Justice Menis Ketchum, states that Whiteman conceded that the delay in the case was due in part to Tichenor's not vigorously pursuing the case. But Caruso partly blamed the delay on the circuit court's failure to enter a scheduling order, which is required by state court rules for the management of cases.
Tichenor claimed that because there had been no scheduling order entered, she was under the impression that discovery requests were still pending for some of the parties to the lawsuit, the opinion says.
The Supreme Court agreed that the circuit court erred in not entering the order.
"We are not convinced that the inactivity in the instant case was so egregious as to necessitate the harsh sanction of dismissal," the opinion says. "Because dismissing an action for failure to prosecute is such a harsh sanction, dismissal with prejudice is appropriate only in 'flagrant' cases."
The opinion continues to say that while Tichenor was "less than diligent," the dismissal, if left to stand, would have serious implications. The court added that it is "not beyond reason" that the lack of a scheduling order caused the case to languish.
As for the other parties to the lawsuit, the majority opinion states, "Although the appellees have now suggested that they would be prejudiced by the one-year delay, we cannot reasonably find that such prejudice is so great as to outweigh the harm the plaintiff would suffer if the dismissal of her case were to stand."
In their dissenting opinion, Davis and McHugh criticize Caruso for not taking any affirmative action in the case between when she filed the lawsuit in 2004 until the circuit clerk noticed her that the case was up for dismissal in 2007, while the other parties exchanged discovery requests.
"…this is not a case where a plaintiff had begun discovery and subsequent thereto, neglected the case for over a year," the dissent says. "Rather, the plaintiff in this case filed her complaint then simply did nothing ... for nearly three years."
Davis and McHugh say that the lack of a scheduling order doesn't change the fact that Caruso and her lawyer initiated no discovery requests in the case. They called the majority's blame of the circuit court for not entering the order "misplaced."
Justice Margaret Workman, in a concurring opinion, also faults her colleagues for blaming the court for the delay in the case. She says nothing in rules places time limits on when a judge has to enter a scheduling order.
"There is no evidence in this case that either party moved the court either to set a scheduling conference or enter a scheduling order," Workman wrote. "Consequently, given our current Rules of Civil Procedure, I believe that the majority opinion unfairly transfers part of the responsibility for the delay here from the lawyer to the court."
Supreme Court case number: 34144