CHARLESTON – The West Virginia Supreme Court of Appeals agreed that a motion to dismiss was rightfully ordered in a lawsuit involving Lumber & Things and a former employee who lost part of his hand in a workplace accident.
Kenneth Bing appealed two orders granting Lumber & Things' motion to dismiss for failure to prosecute.
The Supreme Court said in its Sept. 9 decision that Bing may have a cause of action against his former attorney, David E. Furrer, who may have failed to adequately represent him.
Bing, employed by Lumber & Things, suffered a workplace injury in 2008 that required the partial amputation of his hand. Bing filed a complaint against Lumber & Things in 2009 alleging it intentionally removed the protective guards from the miter saw on which he suffereed his injury.
Bing's former counsel, Furrer, failed to appear for hearings and didn't file proper court documents in the case. At one point, the case had no activity for eight years.
In 2018, Bing filed a notice of substitution of counsel and, a few weeks later, a motion to dismiss was filed by Lumber & Things for failure to prosecute.
"In his response to this motion, petitioner asserted that Mr. Furrer never informed him of the motion to dismiss for defective service, the discovery defaults or the motion for summary judgment," the court said. "Petitioner claimed that Mr. Furrer never provided letters, e-mails, or phone messages with updates in his case, but that phone records document that he called Mr. Furrer’s office no less than twenty-three times in the period following the denial of respondent’s motion for summary judgment."
On July 11, 2018, the court granted Lumber & Things' motion to dismiss.
On July 30, 2018, the order was amended to include additional findings that the delay in prosecution was not attributable to Bing, that Furrer falsely told Bing that his case was progressing, that Bing acted diligently in communicating with Furrer to ascertain the status of his case and that the prejudice to Lumber & Things caused by the delay in prosecution was equally prejudicial to Bing.
The court found that the lower court made no error in its conclusion.
West Virginia Supreme Court of Appeals case No. 18-0691