Plaintiff doesn't show for hearing, case dismissed

By Kyla Asbury | Sep 18, 2013

CHARLESTON - A lawsuit against Mountaineer Gas Company for injuries allegedly sustained by a man who tripped over a gas line hole was dismissed a year ago after the plaintiff didn't show up for a hearing.

On Sept. 18, 2012, an Order of Dismissal was filed in Kanawha Circuit Court.

On Aug. 20, 2012, Mountaineer Gas Company came for a hearing on its motion to dismiss and the plaintiff was not present, according to the dismissal order.

After the bailiff of the court called Shantay Shipp's name three times in the hallway outside of the courtroom, his failure to appear was noted on the record, according to the dismissal.

On Aug. 24, 2011, Shipp's counsel filed a Motion to Withdraw from Representation in which counsel stated there had been a "complete breakdown in communication" between himself and Shipp, and that counsel had serious doubts "as to the credibility of the plaintiff and the factual basis of the Complaint," according to the dismissal order.

On Feb. 14, 2012, the court entered its Order Granting Motion to Withdraw as Counsel, finding that the plaintiff's counsel appeared to have complied with the applicable provisions of the West Virginia Rules of Civil Procedure and the West Virginia Trial Court Rules and granting his leave to withdraw from representation of the plaintiff, according to the order.

The plaintiff was directed to notify the Court within 45 days of entry of the Order as to whether he had retained replacement counsel or whether he desired to proceed pro se, the order states.

On April 3, 2012, the defendant filed a Motion to Dismiss on the grounds that Shipp failed to comply with the court's order constituted failure prosecute his case and that dismissal was appropriate pursuant to West Virginia Rules of Civil Procedure 41(b), the order states.

The defendants' motion was properly noticed for hearing on Aug. 20, 2012.

On April 13, 2010, Shipp was walking on Horn Ave. in Charleston when he tripped on a gas line hole and was injured, according to a complaint filed June 23, 2011, in Kanawha Circuit Court.

Shipp claimed the defendant negligently, carelessly and recklessly failed to cover the gas line hole; failed to maintain the gas line hole in a manner consistent with protecting the public at large; and failed to warn the general public of the immediate danger of the uncovered gas line hole with placard warnings or other warning devices.

As a result of the defendant’s negligent and carelessness, Shipp suffered serious, painful and permanent bodily injuries; great physical pain and mental anguish; severe and substantial emotional distress; loss of the capacity for the enjoyment of life; and incurred medical expenses, according to the suit.

Shipp was seeking compensatory and punitive damages with pre- and post-judgment interest. He was previously represented by Jon D. Hoover of Hoover Andrews.

The defendant was represented by Harry F. Bell Jr. and Jonathan W. Price of the Bell Law Firm PLLC.

The case was assigned to Circuit Judge James C. Stucky.

Kanawha Circuit Court case number: 11-C-1039

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