Judge grants motion to dismiss former bouncer's lawsuit

By Kyla Asbury | Nov 5, 2010

CHARLESTON –- Circuit Judge James C. Stucky granted a motion to dismiss a lawsuit regarding a former bouncer at Banana Joe's who claimed he was unable to collect the $1.5 million a jury awarded him about he was shot in 2005.

Marlon Ferguson filed the lawsuit on March 6, 2009, against Derek S. Jones, Gregory A. Ray, Roger Hensel, Kevin Hensel, Hensel & Hensel, Nicholas J. Wall and Don Wiley, claiming since he was unable to collect the damages from the nightclub, the former owners of the should have to pay.

On Oct. 30, 2005, Ferguson was shot by a patron at the nightclub. He initially sued the defendants' businesses in 2006 and was awarded $1.5 million for medical costs, pain and suffering and lost wages in 2007.

Ferguson claimed none of the defendants' businesses had liability insurance coverage and could not pay him what he owed.

Wall moved the court to dismiss the action because it would violate due process to enforce a judgment against him when he was deprived the opportunity to defend against the claims underlying the judgment; West Virginia courts cannot pierce the corporate veil of foreign corporations; Ferguson had failed to allege a viable cause of action under Ohio law and under West Virginia law; and both state's law precludes the piercing of a limited liability company's corporate veil, according to the dismissal order filed Oct. 28 in Kanawha Circuit Court.

Ferguson was "attempting to enforce judgment against Mr. Wall that was issued in a lawsuit in which he was not a party," according to the order.

"Mr. Wall never should have been sued because he had no financial interest in Banana Joe's at the time of the shooting," said attorney Nick Preservati. "He was a silent partner in a company that owned another company that sold Banana Joe's to another unrelated company prior to the shooting. Yet, the plaintiff still argued that Mr. Wall was personally liable for his damages."

It is rare to successfully defend a personal injury lawsuit on constitutional arguments, but the court granted relief on two constitutional grounds because enforcing the judgment against Wall would violate his due process and piercing the veil of an Ohio corporation would violate the Full Faith and Credit Clause.

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